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The opinion of the court was delivered by
McFarland, J.:
This action was brought by the State of Kansas, ex rel. Secretary of Social and Rehabilitation Services (SRS), against Carrie Conner Jackson for reimbursement of public assistance benefits paid during a period in which SRS had determined she was ineligible to receive such benefits. Such an action is authorized by K.S.A. 39-719b. The case was tried in a bench trial upon stipulated facts which incorporated certain depositions and interrogatories. The district court held in favor of the defendant, and the State appealed therefrom. The Court of Appeals affirmed the district court in State ex rel. Secretary of SRS v. Jackson, 15 Kan. App. 2d 126, 803 P.2d 1045 (1990). The case is before us on the State’s petition for review.
Jackson received benefits comprised of medical assistance, food stamps, and cash public assistance from May 1983 through February 1986 in the total amount of $35,565.11. Her benefits were terminated in February 1986 by SRS on the basis that her interests in two trusts were undisclosed available resources which rendered her ineligible for the benefits she had received. The two trusts, known as the Essmiller Trust and the Carrie Conner Jackson Irrevocable Trust (Jackson Trust), were established by W. D. Essmiller, Jackson’s maternal grandfather prior to the time Jackson received SRS benefits herein. By the time the State’s appeal was heard by the Court of Appeals, the State was no longer claiming the Essmiller Trust was an available resource to Jackson. We are concerned herewith solely with the Jackson Trust.
Before proceeding further, it is important to further delineate exactly what is and what is not involved in the case before us. The State brings this action under K.S.A. 39-719b, which provides:
“If at any time during the continuance of assistance to any person, the recipient thereof becomes possessed of any property or income in excess of the amount ascertained at the time of granting assistance, or if any of the recipient’s circumstances which affect eligibility to receive assistance change from the time of determination of eligibility, it shall be the duty of the recipient to notify the secretary immediately of the receipt or possession of such property, income, or of such change in circumstances affecting eligibility and said secretary may, after investigation, cancel.or modify the assistance payment in accordance with, the circumstances.
“Any assistance paid shall be recoverable by the secretary as a debt due to the state. If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient, the total amount of the assistance may be recovered by the secretary as a fourth class claim from the estate of the recipient or in an action brought against the recipient while living.”
Thus, in this action, the State is contending Jackson is indebted to it in the amount of $35,565.11, this sum being the amount of assistance received by Jackson when she was an ineligible recipient. The trustees of the Jackson Trust are not parties hereto, and no claim is asserted herein against them. The propriety of the termination by SRS of Jackson from receipt of future benefits is, likewise, not before us as Jackson did not appeal that administrative determination. The claim that Jackson received $35,565.11 in assistance is uncontroverted.
Although the posture of this case does not require us to analyze the particular benefits received, it is appropriate to state, generally, how eligibility is determined. The Court of Appeals explained:
“Eligibility requirements for general assistance, medical assistance, and assistance to families with dependent children (AFDC) are governed by K.S.A. 1989 Supp. 39-709. Assistance from programs involving federal funds is governed by K.S.A. 1989 Supp. 39-709(a), which provides in part that assistance ‘may be granted to any needy person who: (1) Has insufficient income or resources to provide a reasonable subsistence compatible with decency and health.’ The provision also permits SRS to establish income and resource exemptions as permitted by federal legislation.
“Eligibility for the AFDC program is governed by K.S.A. 1989 Supp. 39-709(b), which provides that assistance ‘may be granted’ to any dependent child or relative meeting the requirements of K.S.A. 1989 Supp. 39-709(a).
“Eligibility for general assistance programs not involving federal funds is governed by K.S.A. 1989 Supp. 39-709(d)(l), which provides in part:
‘(A) To qualify for general assistance in any form a needy person must have insufficient income or resources to provide a reasonable subsistence compatible with decency and health and, except as provided for transitional assistance, be a member of a family in which a minor child or a pregnant woman resides or be unable to engage in employment.’
“Eligibility for medical assistance is governed by K.S.A. 1989 Supp. 39-709(e), which provides in part: ‘[M]edical assistance in accordance with such plan shall be granted to any person . . . whose resources and income do not exceed the levels prescribed by the secretary. In determining the need of an individual, the secretary may provide for income and resource exemptions and protected income and resource levels.’
“K.S.A. 39-719b authorizes an action for reimbursement of public assistance benefits and provides in part:
‘Any assistance paid shall be recoverable by the secretary as a debt due to the state. If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient, the total amount of the assistance may be recovered by the secretary as a fourth class claim from the estate of the recipient or in an action brought against the recipient while living.’
“Pursuant to the authority granted by K.S.A. 39-708c, the Secretary of SRS has issued a number of regulations concerning eligibility for public assistance benefits. K.A.R. 30-4-34 et seq. contain the eligibility requirements for most public assistance programs. Eligibility requirements for medical assistance programs (other than Medicaid) are contained in K.A.R. 30-6-34 et seq.
“K.A.R. 30-4-53 contains financial eligibility requirements for public assistance and provides in part:
‘Each applicant or recipient shall be determined to be financially eligible if the client: (a) Owns property within the allowable limits;
‘(b) has income that does not exceed 185% of the public assistance standards as set forth in K.A.R. 30-4-100; and
‘(c) has a budgetary deficit after subtracting total applicable income from the public assistance standards.’
“While K.A.R. 30-4-53 has been restructured and the income eligibility standard has been adjusted, the basic eligibility requirements of the regulation have not changed since 1982. See K.A.R. 30-4-53 (1983); K.A.R. 30-4-53 (1982 Supp.).
“K.A.R. 30-4-106 (1983) contains ‘rules for consideration of resources’ of a public assistance applicant and provides in part:
‘(a) Ownership for assistance purposes shall be determined by legal title. In the absence of a legal title, ownership shall be determined by possession.
‘(b) Resources shall be real and of a nature that the value can be defined and measured. . . .
‘(c) Resources shall be considered available both when actually available and when the applicant or recipient has the legal ability to make them available.
‘(d) The resource value of property shall be that of the applicant’s or recipient’s equity in the property.’
“K.A.R. 30-4-109 provides a definition of personal property for eligibility purposes. K.A.R. 30-4-109(a)(2) provides: “ ‘Cash assets” means money, investments, cash surrender or loan values of life insurance policies, trust funds, and similar items on which a determinate amount of money can be realized.’ This definition has not been changed since 1982. See K.A.R. 30-4-109(a)(2) (1982 Supp.).
“The provisions of K.A.R. 30-6-106 (1983), concerning medical assistance, are nearly identical to the provisions of K.A.R. 30-4-106. The current version of 30-6-106 contains an additional provision concerning trusts created by the applicant or their spouse. See K.A.R. 30-6-106(c)(2) (1990 Supp.). Even if this provision is deemed applicable to benefits granted in 1986 and earlier, the provision does not address a trust created by a grandparent.
“Essentially, the State argues the trust [fund was] an ‘available’ resource within the meaning of K.A.R. 30-4-106(c) and K.A.R. 30-6-106(c)(l). As noted, the resolution of this issue will depend upon the nature of Jackson’s interest in the [trust].” 15 Kan. App. 2d at 127-29.
The trust provisions at issue are as follows:
“(A) During the lifetime of Carrie Conner Jackson, the Trustees, in their uncontrolled discretion, shall pay to Carrie Conner Jackson the net income of the Trust. In addition, the Trustees may pay to Carrie Conner Jackson, from the principal of the Trust from time to time, such amount or amounts as the Trustees in their uncontrolled discretion, may determine is necessary for the purposes of her health, education, support and maintenance. The Trustees are not prohibited from invading the principal of the trust for my granddaughter, Carrie Conner Jackson, before she has exhausted her own funds.
“(B) On the death of my granddaughter, Carrie Conner Jackson, the trust property shall be distributed among her issue, per stirpes, and held in separate trusts until all of her children reach the age of twenty-one (21) with the Trustees having the sole discretion to distribute the income and invade the principal for purposes of their health, education, support or maintenance. If she does not leave issue which survive her, but she leaves one or more brothers or sisters who survive her or who leave issue which survive her, the trust estate is to be divided and distributed to such brothers or sisters or their issue, per stirpes, and if Carrie Conner Jackson or her issue leave no issue, brothers, sisters or issue of such brothers or sisters which survive her, her share is to be divided and distributed to my daughter, Laverna Conner. However, in the event Laverna Conner shall be deceased, then, and in such event, the assets of this trust shall be distributed to Alvin Otte and Lorena Calcara, equally or to their issue, per stirpes.
“(C) The interest of each beneficiary and the income or principal of the trust created under this instrument shall be free from the control or interference of any creditor of a beneficiary or of any spouse of a married beneficiary and shall not be subject to attachment or susceptible of anticipation or alienation.”
The parties stipulated that the Jackson Trust was “a discretionary trust with spendthrift provisions.” The district court and the Court of Appeals accepted this categorization of the Jackson Trust. If we are bound by this stipulation, it controls the outcome of this case, as a discretionary trust is not an available resource to the beneficiary. We recognized the validity of discretionary trusts in Watts v. McKay, 160 Kan. 377, 162 P.2d 82 (1945).
The plaintiff in Watts sought an order compelling the trustee to pay a judgment for alimony. The court determined that a discretionary trust existed and stated:
“The beneficiary has no right, as a matter of law, to require the trustee to turn over to him the principal of the estate or any part of it. . . .
“. . . [The beneficiary] does not have such an interest in the corpus of the trust estate in the hands of the trustee as can be reached to satisfy the judgment for alimony and attorney’s fees, and . . . the trustee did not abuse his discretion in refusing to pay such judgment.” 160 Kan. at 385.
In Watts, we cited with approval the provisions of the Restatement of Trusts § 155 (1935) concerning discretionary trusts. The present version of this treatise contains the same language:
“Except as stated in § 156, if by the terms of a trust it is provided that the trustee shall pay to or apply for a beneficiary only so much of the income and principal or either as the trustee in his uncontrolled discretion shall see fit to pay or apply, a transferee or creditor of the beneficiary cannot compel the trustee to pay any part of the income or principal.” Restatement (Second) of Trusts § 155(1) (1957).
Comment b of this subsection states:
“A trust containing such a provision as is stated in this Section is a ‘discretionary trust’ and is to be distinguished from a spendthrift trust, and from a trust for support. In a discretionary trust it is the nature of the beneficiary’s interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary’s interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trustee to pay anything to him because the beneficiary could not compel payment to himself or application for his own benefit.”
See 76 Am. Jur. 2d, Trusts § 164, pp. 401-02, as follows:
“A trust protective against the grantees or assignees and against the creditors of a beneficiary by virtue of a provision vesting discretion in the trustee to determine the time, amount, or manner of payments to a beneficiary generally, is recognized to be valid. The protection of such a trust results from the nature of the beneficiary’s interest, and not from any restraint on alienation. The question in cases involving such trusts is not one of the power, but of the intention, of the testator or grantor to prohibit the anticipation or exclude the creditor or alienee, and if the court is satisfied of the intention in that respect, it will enforce it. Such a discretionary trust is sometimes called a spendthrift trust, although ordinarily it is distinguished from a true spendthrift trust. The discretion of the trustee may relate to payments for support and maintenance. But the fact that a trustee has a discretion to apply so much of the income as may be necessary for the support of the beneficiary and for other purposes does not remove the trust funds from liability for debts of the beneficiary, if the trustee has no right to exclude the beneficiary from the benefit thereof.”
Restatement (Second) of Trusts § 157 (1957) provides:
“Although a trust is a spendthrift trust or a trust for support, the interest of the beneficiary can be reached in satisfaction of an enforceable claim against the beneficiary,
(a) by the wife or child of the beneficiary for support, or by the wife for alimony;
(b) for necessary services rendered to the beneficiary or necessary supplies furnished to him;
(c) for services rendered and materials furnished which preserve or benefit the interest of the beneficiary;
(d) by the United States or a State to satisfy a claim against the beneficiary.”
The nature, construction, and legal effect of a written instrument are questions of law. Courts are not bound by stipulations as to questions of law. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 31, 744 P.2d 840 (1987); City of Lenexa v. Board of Johnson County Commrs, 237 Kan. 782, 703 P.2d 800 (1985). We may determine for ourselves the type of trust created herein.
We believe the Jackson Trust clearly treats the income from the trust differently from the principal. For convenience, the key trust provision is iterated as follows:
“(A) During the lifetime of Carrie Conner Jackson, the Trustees, in their uncontrolled discretion, shall pay to Carrie Conner Jackson the net income of the Trust. In addition, the Trustees may pay to Carrie Conner Jackson, from the principal of the Trust from time to time, such amount or amounts as the Trustees in their uncontrolled discretion, may determine is necessary for the purposes of her health, education, support and maintenance. The Trustees are not prohibited from invading the principal of the trust for my granddaughter, Carrie Conner Jackson, before she has exhausted her own funds.”
Stripped down, the provision states the Trustees shall pay the net income and, in addition, may pay from the principal. The payment of the net income is not tied to any determination of need as are payments from the principal.
Black’s Law Dictionary 1375 (Centennial ed. 1991) defines “shall” as follows:
“As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term ‘shall’ is a word of command, and one which has always or which must be given a compulsory meaning; as denoting obligation. The word in ordinary usage means ‘must’ and is inconsistent with a concept of discretion. People v. Municipal Court for Los Angeles Judicial Dist., 149 C.A.3d 951, 197 Cal. Rptr. 204, 206. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favor of this meaning, or when addressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. People v. O’Rourke, 124 Cal. App. 752, 13 P.2d 989, 992.
“But it may be construed as merely permissive or directory (as equivalent to ‘may’), to carry out the legislative intention and in cases where no right or benefit to any one depends on its being taken in the imperative sense, and where no public or private right is impaired by its interpretation in the other sense. Wisdom v. Board of Sup’rs of Polk County, 236 Iowa 669, 19 N. W.2d 602, 607, 608.”
Black’s distinguishes its definition of “shall” from its definition of “may,” as follows:
“An auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility, probability or contingency. U.S. v. Lexington Mill & E. Co., 232 U.S. 399, 34 S. Ct. 337, 340, 58 L. Ed. 658. Word ‘may’ usually is employed to imply permissive, optional or discretional, and not mandatory action or conduct. Shea v. Shea, Okl., 537 P.2d 417, 418. Regardless of the instrument, however, whether constitutional, statute, deed, contract or whatever, courts not infrequently construe ‘may’ as ‘shall’ or ‘must’ to the end that justice may not be the slave of grammar. However, as a general rule, the word ‘may’ will not be treated as a word of command unless there is something in context or subject matter of act to indicate that it was used in such sense. Bloom v. Texas State Bd. of Examiners of Psychologists, Tex. Civ. App., 475 S.W.2d 374, 377. In construction of statutes and presumably also in construction of federal rules word ‘may’ as opposed to ‘shall’ is indicative of discretion or choice between two or more alternatives, but context in which word appears must be controlling factor. U.S. v. Cook, C.A. Ill., 432 F. 2d 1093, 1098.” Black’s Law Dictionary 979.
True, the term “in their uncontrolled discretion” is used in the provisions relating to the payment of income and principal, but its usage in payment of income provisions is inconsistent with the “shall pay” language except perhaps as to the form of the payment. Since Jackson has been cut off welfare, the Trustees have been paying Jackson’s rent, groceries, and baby-sitting costs by checks made out to the suppliers of such goods and services. How often the payments are made and the form of such payments are a matter of the Trustees’ discretion. “Shall pay” so interpreted results in the payment of income not being a discretionary trust provision. This interpretation is consistent with what has actually occurred in this case. The parties stipulated that Jackson received “only nominal distribution from the Jackson Trust” during the period public assistance was received. In their briefs, the parties ascribe different but equally valid definitions to the word “nominal.” The State argues the amounts paid were small. Jackson uses the term in its meaning of in-name-only.
Webster’s New Collegiate Dictionary 779 (1977) defines nominal as follows:
“1: of, relating to, or being a noun or a word or expression taking a noun construction 2a: of, relating to, or constituting a name b: bearing the name of a person 3a: existing or being something in name or form only ([nominal] head of his party) b: of, being, or relating to a designated or theoretical size that may vary from the actual: APPROXIMATE c: TRIFLING, INSIGNIFICANT 4: being according to plan: SATISFACTORY (everything was [nominal] during the spacecraft launch).”
See also the definition in Black’s Law Dictionary at 1049:
“Nominal. Titular; existing in name only; not real or substantial; connected with the transaction or proceeding in name only, not in interest. Park Amusement Co. v. McCaughn, D.C.Pa., 14 F.2d 553, 556. Not real or actual; merely named, stated, or given, without reference to actual conditions; often with the implication that the thing named is so small, slight, or the like, in comparison to what might properly be expected, as scarcely to be entitled to the name; e.g., a nominal price. Lehman v. Tait, C.C.A.Md., 58 F.2d 20, 23.”
During the years in question, some $32,000 was reported on Jackson’s income tax returns as having been received from Jackson Trust sources (directly from the Jackson Trust and from Affiliated Fund). Some income from the Jackson Trust was apparently invested in the Affiliated Fund. These amounts were apparently reported to the Internal Revenue Service by the Jackson Trust and Affiliated Fund as having been paid to Jackson, although it was a paper or nominal transaction in that the money was not physically received by Jackson. The Affiliated Fund reinvested the money. Such funds were apparently constructively delivered to Jackson. It could certainly be argued that such constructive delivery removed whatever discretion the Trustees may have had in these monies.
We believe our interpretation of the trust is consistent with the grantor’s intention. W. D. Essmiller was concerned over his granddaughter’s lifestyle, choice of a spouse, and financial responsibility. The Jackson Trust was intended to prevent her from decimating her inheritance and becoming destitute and, presumably, dependent upon public assistance for her support. The ac tion and inaction of the Trustees gave her no funds and resulted in instant destitution. Thus, the very thing the Jackson Trust was intended to prevent occurred immediately — instant destitution and dependence upon the taxpayers’ largess for survival. Had SRS not become aware of the trust, presumably, SRS could have continued to support Jackson indefinitely. It should be noted that SRS does not contend Jackson acted willfully or fraudulently herein.
There is yet another reason to hold the income of the Jackson Trust was available to Jackson — public policy. Public assistance is available to the destitute and truly needy. It is not intended to provide subsistence to those with other resources. As was stated in In re van Gaalens Estate, 38 Misc. 2d 853, 854-55, 239 N.Y.S.2d 312 (1963):
“The trust beneficiary is not able to work, earns no money and has no source of income other than the funds in the hands of the petitioner trustee. Although it cannot be seriously asserted that the public funds advanced to and for the trust beneficiary for his care and maintenance constitute income to him, the trustee has nevertheless taken the novel position that there appears to be no need for the invasion of the trust for the benefit of the trust beneficiary other than for small luxury items because the needs of the trust beneficiary are being taken care of by the Department of Welfare of the City of New York. The fallacious nature of this argument is readily exposed when one inquires what the position of the trustee would be if the Department of Welfare did not or refused to support and maintain the trust beneficiary. (Matter of Gruber, 122 N.Y.S.2d 654.) Charity bestowed by the State or any local political subdivision thereof to alleviate the suffering of the destitute is a grant or gift by an enlightened government that seeks to keep its less fortunate citizens from deprivation and want. It is in fact a gift by all the other citizens of the State and community who work, earn and pay taxes to the less fortunate who are unable to work and support themselves.”
Public assistance funds are ever in short supply, and public policy demands they be restricted to those without resources of their own. The Jackson Trust’s grantor intended that Jackson receive the income of the Trust regardless of need, and said income was an available resource under the applicable statutes and SRS regulations.
When this matter was tried to the district court, it was the position of SRS that all trust monies in both trusts, including income and corpus, were available assets to Jackson. Jackson contended neither trust was an available resource. There was apparently no issue as to whether or not the total trust funds were insufficient to render her ineligible for the assistance received. As noted previously, SRS abandoned any claim as to the Essmiller Trust prior to its appeal being determined by the Court of Appeals. Because of the posture of the case in the district court, no evidence was introduced as to how much income the Jackson Trust had generated in the years in question.
We have held herein that the net income from the Jackson Trust was an available resource to Jackson. There has, of course, been no determination as to how much income there was or whether such income rendered Jackson ineligible in whole or in part for the assistance received. Accordingly, the case must be remanded to the district court for such determination.
Before concluding this opinion, there is another matter which is of concern — namely the many hats worn by Jackson’s attorney, Mark D. Calcara. The evidence in this case indicates he:
1. was the attorney for W. D. Essmiller;
2. drafted the Jackson Trust instrument;
3. has served as one of the two trustees of the Jackson Trust since its creation;
4. is the attorney for the other trustee, Willard Conner, Jr. (brother of Carrie Conner Jackson); and
5. represents the trust beneficiary in this action.
Obviously, it is the intention of the State to proceed against the Jackson Trust if successful herein. In any subsequent proceedings arising from this action, the trial court should insure that Carrie Conner Jackson has independent legal counsel.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings consistent with this opinion.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by Gregory J. Milo from his convictions for first-degree murder and aggravated robbery.
On appeal, Milo raises issues concerning his alleged lack of counsel during the videotaping of a lineup; comments made by the State during closing argument; the sufficiency of the evidence and whether he was denied a fair trial by the introduction of irrelevant evidence; the racial makeup of the jury panel; and the State’s use of its peremptory challenges to allegedly systematically exclude blacks.
On the evening of June 17, 1989, Nathaniel Burnett, Sr., an alleged cocaine dealer, was killed by a gunshot wound to the head during an armed robbery at his residence. James Nance, a codefendant, was convicted for his participation in the robbery and murder and his convictions were affirmed on appeál.
At trial, the State’s main witness was Anita Nance, James Nance’s wife. She testified, under a grant of immunity, that on the day prior to the murder, she, James, Alganette Trevillion, and a friend of Alganette’s went to Atchison. They stopped at the Burnett residence and Alganette, a friend of Burnett’s, went in. On the return trip to Kansas City, Alganette, apparently without realizing that a robbery was being planned, described the layout of the house and the location of Burnett’s safe.
Anita testified that the following day, she, James, and Gregory Milo went to Atchison to rob Burnett. When they arrived in the afternoon, Milo went to Burnett’s front door to attempt to purchase cocaine, but Burnett would not sell to Milo since he did not know him.
Anita testified that later, she drove the group back to Burnett’s. She testified she remained in the car while James and Milo went inside Burnett’s home. She heard a gunshot, and the two came out and they returned to Kansas City with the proceeds of the robbery.
I. Videotaped Lineup.
At trial, Ivan Cushinberry testified that on the day of the murder, he had gone to Burnett’s house in an attempt to purchase a used tire for his car. (Burnett ran a salvage yard in addition to his other enterprises.) Cushinberry testified that while he was talking to Burnett, a vehicle stopped half a block down the street and a man walked up to Burnett and asked to buy “50 cents worth.” Cushinberry testified that Burnett asked the man his name, and the man asked what difference that made. Cushinberry testified that Burnett refused to sell cocaine to the man.
Cushinberry testified that he was shown a photo lineup followed by a videotaped lineup by the KBI. He was unable to identify anyone in the photo lineup, but he picked Milo out in the videotaped lineup as the man who had walked up to Burnett’s house. Cushinberry’s description of the man to the KBI and his description of that man at trial were inconsistent.
Prior to trial, the defense moved to have Cushinberry’s pretrial identification of Milo suppressed and argued that Cushinberry should not be allowed to identify Milo in court, as an in-court identification would be tainted.
There was no testimony at the suppression hearing. Counsel simply argued the motion. The defense claimed that Milo was picked up in Kansas City, Missouri, pursuant to a warrant issued in Kansas, based on these charges, and that Ivan Cushinberry viewed a videotaped lineup of Milo, which included seven other individuals. The defense claims that Milo had no counsel when the video was made in Kansas City, Missouri. The defense did not state the date that Milo was taken into custody, the date when the video was taken, or the date when Ivan Cushinberry viewed the video. The tape is not in the record on appeal. The defense claims that the warrant was issued on July 25, 1989.
The State claimed that Cushinberry viewed the tape on July 27, 1989. The State argued that it did not know why the Missouri police picked up Milo. The State claimed that Kansas did not send a warrant to Missouri until sometime in August. The defense conceded that no one actually knew why Milo was picked up or how he was returned to Kansas.
The procedure used at trial to decide this issue presents us with an inadequate record on appeal. An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper. State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989).
However, there is another problem with considering the issue. The defense failed to object to Cushinberry’s testimony at trial about the videotaped lineup or to his in-court identification. When either a motion in limine or a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Nunn, 244 Kan. 207, 213, 768 P.2d 268 (1989). Thus, the defendant has failed to furnish a record demonstrating error and has not preserved the issue on appeal.
In any event, the trial court did not err in admitting the identification made after viewing the videotape. In United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), the Court discussed the policy reasons behind requiring counsel to be present at in-person lineups conducted after adversary proceedings have commenced. The reasons given by the Court concerned potential abuse of the lineup by the prosecution. The Court quoted an example:
" ‘In a Canadian case . . . the defendant had been picked out of a line-up of six men, of which he was the only Oriental. In other cases, a black-haired suspect was placed among a group of light-haired persons, tall suspects have been made to stand with short non-suspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a line-up with five other persons, all of whom were forty or over.’ ” 388 U.S. at 233.
The Court said:
“Those participating in a lineup with the accused may often be police officers; in any event, the participants’ names are rarely recorded or divulged át trial. ... In short, the accused’s inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness’ court-room identification.” 388 U.S. at 230-32.
Then, in United States v. Ash, 413 U.S. 300, 37 L. Ed. 2d 619, 93 S. Ct. 2568 (1973), the Court held that photo lineups conducted without counsel present after adversary proceedings have been initiated do not violate the Sixth Amendment. 413 U.S. at 321. The Court said, “Since the accused himself is not present at the time of the photographic display, ... no possibility arises that the accused might be misled by his lack of familiarity with the law or overpowered by his adversary.” 413 U.S. at 317. The Court discussed the fact that the defendant could make equal use of the photos in the lineup, making cross-examination of identifying witnesses possible: “Although we do not suggest that equality oí- access to photographs removes all potential for abuse, it does remove any inequality in the adversary process itself and thereby fully satisfies the historical spirit of the Sixth Amendment’s counsel guarantee.” 413 U.S. at 319. This court has recognized and followed Ash. See State v. Marks, 231 Kan. 645, 650, 647 P.2d 1292 (1982).
A videotaped lineup that is preserved by the State and made available to the defense keeps a record of what the lineup participants looked like and how they behaved. Because the videotaping of such a lineup presents none of the confrontation problems as that done in an in-person lineup, a defendant does not have a Sixth Amendment right to have counsel present when a nonconfrontational videotaped lineup is made.
II. Prosecutorial Misconduct.
During the State’s closing arguments, the following occurred:
“MR. SUNDBY: . . . What are your choices?
“Well, first, the defendant has offered an alibi without any witnesses. “They did not show up.
“MR. MEARS: Your Honor, I object to that. May we approach the bench. (The following proceedings were held at the bench between the Court and counsel:)
“MR. MEARS: I think it is improper for the County Attorney to comment upon what the defendant did not produce.
“We have no obligation to produce any evidence.
“What evidence we produced, he can comment on, but the fact we did not produce evidence is improper, and I move for a mistrial.”
The trial court, after hearing considerable argument on this issue, instructed the jury as follows:
“THE COURT: Ladies and gentlemen of the jury, you are instructed at this particular time to disregard the last statement by the County Attorney as it pertains to alibi defense.
“You are not to consider anything concerning an alibi defense in your deliberations.
“That is all the further I am going to go.”
The defendant had filed a notice of alibi. The opening arguments are not in the record, so it is impossible to tell the exact language defense counsel used concerning an alibi defense. The defense did comment during jury selection that it would show that Milo was not at the scene. The defense made no such attempt at trial. Milo did not testify at trial.
Resolution of this issue depends on how one interprets the prosecution’s statements. On one hand, the prosecution’s closing argument could be interpreted to merely be a comment that the defense, after promising to do so, failed to call an alibi witness. Courts have held such comment permissible. In State v. Mims, 222 Kan. 335, 337, 564 P.2d 531 (1977), the defendant testified that, on the night of the crime, he was in the company of a number of friends and relatives; however, the defendant did not call those friends as witnesses. In closing, the prosecution noted the failure to call the friends. This court said: “The failure of a party to produce evidence which is available to him may give rise to an inference that the evidence would have been adverse to him.” 222 Kan. 335, Syl. ¶ 2.
Some other jurisdictions follow the same rule. In United States v. Santana, 877 F.2d 709 (8th Cir. 1989), the defendant testified that he was staying with a friend out of town when the crime was committed. The prosecution argued, in closing, that this friend had not been called to testify. The court said: “We find that the prosecutor’s statements were not improper. The record indicates that Santana and his attorney had information regarding Gonzales’ location, yet they did not obtain testimony from him. . . . ‘The prosecutor is free to comment on the failure of the defendant to call an available alibi witness.’ [Citations omitted.]” 877 F.2d at 711. See also United States v. Schultz, 698 F.2d 365, 367 (8th Cir. 1983) (holding that such a comment does not impermissibly shift the burden of proof to the defendant). _
The common thread between Mims and Santana is, however, that the defendant testified. Neither court reached the question of whether the defendant’s Fifth Amendment privilege against self-incrimination was violated. The prosecutor in a criminal case may not comment upon an accused’s failure to testify. Griffin v. California, 380 U.S. 609, 615, 14 L. Ed. 2d 106, 85 S. Ct. 1229, reh. denied 381 U.S. 957 (1965); State v. Beebe, 244 Kan. 48, Syl. ¶ 4, 766 P.2d 158 (1988); K.S.A. 60-439.
In U.S. v. DiCaro, 852 F.2d 259 (7th Cir. 1988), the court was faced with a question closer to that before us. The court discussed the interplay between comments on failure to produce other alibi witnesses and the defendant’s own failure to take the stand and testify, stating:
“There has been some confusion in this circuit about what types of comments impermissibly infringe on the privilege against self-incrimination. [Citation omitted.] We have recently clarified that the ‘defendant’s decisions about evidence other tha[n] his own testimony do not implicate the privilege, and a comment on the defendant’s failure to call a witness does not tax the exercise of the privilege.’ [Citation omitted.] A prosecutor’s assertion that evidence is uncontradicted is impermissible only if it is highly unlikely that anyone other than the defendant could rebut the evidence.” 852 F.2d at 263.
Here, we simply cannot evaluate what the defense had originally meant to prove because the defense did not present any evidence concerning alibi. Because the defense opened the door to the prosecution’s comment and because the comment could be interpreted to go to failure to present alibi witnesses other than the defendant, we do not find reversible error.
III. Use of Peremptory Challenge.
Defendant, a black man, argues error in the exclusion of other blacks from the jury panel.
During jury selection, the prosecution used one of its peremptory challenges to strike the only black person on the panel. When the State made the strike, it stated, “That’s because she knew the child who -may be a witness in the case.” Then, after both sides were done exercising the peremptory challenges, the defense objected:
“Your Honor, I think for the record we are going to object to the County Attorney’s strike of Mrs. Winrow.
“It shows an obvious attempt by the State to exclude the only Black person in the panel, the only Black person in the array, the only Black person called into the box, to give this defendant a chance to have a jury of his peers.
“There are other people who in the voir dire indicated that they knew Mr. Burnett that he has not stricken.
“And we think it is an obvious attempt to show prejudice against this defendant and ask the court to overrule that strike.”
The State replied: “It should reflect that Sharon Peltzer knew Kea Burnett. We struck her. Anna Winrow said she knew Kea. We struck her.”
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the Court found that the Equal Protection Clause of the 14th Amendment to the United States Constitution forbids prosecutors from exercising peremptory challenges solely on account of race. 476 U.S. at 89.
Under Batson, in order to question the State’s use of peremptory challenges, the defendant must make a prima facie showing of purposeful discrimination in the State’s selection of the jury. The defendant needs to show that he is a member of a cognizable group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of that group. The defendant is entitled to rely upon the fact that peremptory challenges constitute a jury selection process that permits those to discriminate who are of a mind to discriminate. The defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the jury on account of their race or group. 476 U.S. at 96.
Once the defendant has made a prima facie showing of purposeful discrimination, the burden then shifts to the State to come forward with a neutral explanation for peremptorily challenging jurors of a minority defendant’s race or group. 476 U.S. at 97. Kansas adopted the Batson holding in State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987).
Here, if the defense has made a prima facie case, all this court is presented with is the fact that one black person was struck. However, even assuming that a prima facie case has been made, there is still the question of whether the State asserted a neutral reason for striking the juror.
The State asserts that it struck Winrow because she knew Kea Jackson. Kea was the victim’s nine-year-old stepdaughter. She was in the house at the time of the murder. She was expected to, and did, testify at trial.
The defense argues that this is not a sufficient reason. The defense argues that because other jurors with similar characteristics were not struck, the reason is invalid. In State v. Belnavis, 246 Kan. 309, 787 P.2d 1172 (1990), this court said, “A prosecutor’s explanation fails to be racially neutral if characteristics of a person struck are present in white panel members not challenged by the State.” 246 Kan. 312.
In fact, the State did strike all other jurors who knew Kea. The State struck venireman Kasl, who was the supervisor of another of Burnett’s daughters. The State struck venireman Peltzer, who knew Kea. (Peltzer also knew Ivan Cushinberry, the man who was at Nathaniel’s house trying to buy a tire the afternoon before the murder.)
The State also struck other jurors who knew parties closely related to the case.
Ellison was struck by the State. He knew Alganette Seymore Trevillion (who rode to Atchison the day before the murder with James and Anita and went to Nathaniel’s house and described it to James and Anita and who testified at trial), Ivan Cushinberry, Anita Nance, Bobby Smith (Alganette’s son, who was visited by Alganette, Anita, and James the day before the murder and who testified at trial), and Ellajean Appel (a firefighter and E.M.T., who first responded to the scene and who testified at trial).
Hooper was struck by the State. She knew Ivan Cushinberry.
Underwood was struck by the State. She knew Bobby Smith.
Some jurors, not struck by the State, did know witnesses. For instance, Pickman, who knew Ellajean Appel; Flynn, who knew Ellajean Appel; and Brewer, who knew Dr. Rider (coroner for Atchison County and who testified at trial) were not struck. But, these jurors knew witnesses who were not closely associated with the case — i.e., people whose only connection with the case came from their jobs.
In short, the State treated like jurors alike — the State consistently struck jurors who knew witnesses who had a close personal connection with the case. No error is shown.
IV. Fair Cross-section.
At trial, the defense moved to have the jury array dismissed, arguing that there was only one black person in the panel and that this was not representative of the community of Atchison. The court said:
“We take our lists from the registration and motor vehicle license list, and we get it that way and usually we have two or three is about all we ever have up here in that respect.
“And so the Court feels that he is getting what every other person that ever comes up here for trial, whether it be civil or criminal, gets in a case.
“There is not anything that has been done by our fine clerk that is different from previous methods of selection.
“So your motion to dismiss this panel is hereby denied.”
Counsel for the State commented:
“We would also further comment, your Honor, that there is no evidence as to what is the percentage of Blacks in the community.
“Furthermore, as the Court says, from motor vehicles, I think it is actually from driver’s records, driver control, is where we get the list from, is who has driver’s licenses in our community, in Atchison County.
“We believe that driver’s licenses are a fair representation of a cross-section of our community.
“It also supplemented with those voter registrations, as I understand, which would then add people who maybe do not drive, but vote.
“And I believe that is a fair cross-representation of our community.”
Defense counsel then went on to argue that black people constitute seven to eight percent of the population in Atchison County, although counsel did not offer evidence to prove the point or state a basis for his percentage figure. Further, there is no showing in the record of what races the jury array was composed. At voir dire, there was a discussion of the races of the venire members but no one was sure who was of what race.
At defendant’s motion for a new trial, defendant apparently renewed this argument, but the motion is not in the record, so it is impossible to tell if the defense actually produced any evidence of racial composition of Atchison or the jury array.
In State v. Jordan, 220 Kan. 110, Syl. ¶ 3, 551 P.2d 773 (1976), the court said, “When a challenge is made to the entire jury array, systematic or purposeful exclusion of members of a particular race or group may not be presumed. Such exclusion must be established by proof.”
Jordan is still good law. In a recent case, United States v. Afflerbach, 754 F.2d 866, 870 (10th Cir.), cert. denied 472 U.S. 1029, reh. denied 473 U.S. 927 (1985), the court said, “Appellants can prevail only if they show that the district’s reliance on [voter] registration lists systematically excluded a distinct, cognizable class of persons from jury service.”
Here, there is no proof of exclusion of racial groups. The record does not disclose the racial mix of Atchison County or of the jury array. No error is shown,
V. Firearm.
At trial, Anita Nance testified that after the robbery and murder, as they were driving down Old Highway 73, a handgun was thrown from the car window. The morning after the murder, Mike Wagner found a .38 revolver in the middle of old Highway 73. At trial, Anita identified it as the gun James Nance had had the previous night at the robbery and murder.
A K.B.I. firearms examiner testified that the .38 caliber bullet found in Burnett’s head was shot from a gun with similar characteristics to the gun found on the highway. The examiner, however, was unable to conclusively state that the bullet was shot from this handgun because in test firings the gun did not “reproduce well” — that is, it did not leave detailed and consistent markings on each bullet.
On appeal, the defense argues that because the K.B.I. examiner could not conclusively establish that the bullet fired came from the gun, it should have been excluded.
The question of whether evidence is too remote to be relevant is left to the discretion of the trial judge, whose decision will not be disturbed unless a clear abuse of discretion has been demonstrated. State v. Griffin, 246 Kan., 320, 326, 787 P.2d 701 (1990). Once the evidence is admitted, it is for the jury to determine its weight. 246 Kan. at 325-26.
Here, although the K.B.I. examiner was unable to positively say that the gun found on the highway had fired the bullet that killed Burnett, there is sufficient evidence for a jury to rationally connect the gun to Milo and James Nance. The trial court did not abuse its discretion in admitting the handgun into evidence.
VI. Sufficiency of Evidence.
The defense claims there is insufficient evidence for the jury to find Milo guilty. When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990).
Mattie Burnett, Nathaniel’s wife, testified that on the evening of June 17, 1989, two black men came to the house, robbed her husband and shot him, and then robbed her at gunpoint. Mattie was able to identify one of the men as James Nance, by his voice. She testified that she never got a good look at the other man and was unable to identify him.
Kea Jackson, Mattie’s nine-year-old daughter, gave similar testimony, but she later picked Milo out of a videotaped lineup (although she was unable to pick him out of a previous photo lineup).
Anita Nance testified that on the day prior to the murder, she, James, Alganette Trevillion, and a friend of Alganette’s came to Atchison and stopped at Burnett’s residence. Alganette went in, and, on the return trip to Kansas City, described the layout of the house and the location of the same. Anita testified that the following day, she, James, and Milo went to Atchison to rob Burnett.
Anita testified that Milo went to Burnett’s door in an attempt to purchase cocaine, but that Burnett would not let him in. Anita testified that later, they returned to Burnett’s and James and Milo went inside, she heard a gunshot, the two came out with stolen property, and, on the return trip, they disposed of a gun by throwing it out the car window.
The defense, in cross-examination of Anita, suggested that her credibility was low because she had previously lied on the stand and was testifying under a grant of immunity. The defense suggested that she was a more active participant in the robbery than she claimed.
Anita’s credibility was certainly suspect, and a rational jury could have disbelieved her. However, a rational jury could have believed her because there was corroborating evidence: Ivan Cushinberry testified he saw Milo come to the door the afternoon of the murder and attempt to purchase cocaine from Burnett, and Mike Wagner found a gun on the highway in an area consistent with Anita’s testimony.
Certainly, there was a question for the jury, but there is sufficient evidence to convince us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
Affirmed;
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The opinion of the court was delivered by
Martin, C. J.
: At March term, 1895, the defendant was convicted of forgery in the third degree, and sentenced to imprisonment in the penitentiary for a term of two years, under section 135 of the crimes act (¶2272, Gen. Stat. 1889), the offense being accomplished by burning and totally destroying and obliterating two certain promissory notes, one of them alleged in the information to have been made by one J. S. Reppy for $80, payable to the defendant, W. A. Woodrow, or order, and by him indorsed, and delivered to Sarah E. Charles, and the other made by J. L. Cecil for $75, payable to said defendant, or order, and by him indorsed and delivered to said Sarah E. Charles. The instruments were described in the information only by their purport, it being alleged that the tenor could not be set out by reason of the destruction and obliteration aforesaid. A motion to quash the information on the ground of vagueness and uncertainty as to the instruments destroyed was overruled. On the trial it was shown that the maker of the $80 note was “J. I. Rippey,” and that the maker of the $75 note was “J. S. Cecil,” and that $4 had been paid and credited on it. Upon the close of the evidence for the state, the defendant moved the court to instruct the jury to return a verdict of not guilty, said motion being based principally upon the variances between the allegations and the proofs, which were specifically stated in the motion ; but this was overruled, and after all the evidence had been introduced the defendant asked an instruction to the same effect on like grounds, but this was refused. No evidence was offered tending to show the identity of “J. S. Reppy” with “J. I. Rippey,” nor that of “ J. L. Cecil” with “ J. S. Cecil,” and no application was made to amend the information. It will be observed that the Christian names were indicated only by initials.
Under the authorities, the variance between the allegations and the proofs -was fatal, and nothing was done or attempted to cure the mistakes of the prosecutor in drawing the information. In Porter v. The State, 15 Ind. 433, the counterfeit notes were described as payable to “E. Lymour,” wdiile those offered in evidence were payable to “E. Seymour” ; the variance was held fatal, and the judgment of conviction was reversed. In Yount v. The State, 64 Ind. 443, an indictment for the forgery of a promissory note payable to and indorsed by “E. J. Schweitzer” alleged that the offense ■was committed witli intent to defraud “Emily J. Schweitzer,” and in was held bad. In The State v. Houseal, 1 Brev. (S. C. Law,) 219, the forgery charged was in signing the name of “Nathaniel Durkie” with intent to defraud him, but the signature,’as set out by tenor, was “N. Durkie” ; and it was adjudged that the repugnancy was fatal to the indictment, and judgment -was arrested. In McClellan v. The State, 32 Ark. 609, the defendant was prosecuted for forging two orders purporting to be signed by “Richard Hudgins,” but the signature to the instruments set forth by their tenor was “Richard Hudgson,” and a conviction upon the information was set aside, and a new trial granted. In Murphy v. The State, 6 Tex. App. 554, it was charged that the forged instrument was signed “ Pat Whelan,” and proved that it was signed “P. Whelan” or “D. Whelan,” and the court held that this was a fatal variance, and the judgment of conviction was reversed. In Westbrook v. The State, 23 Tex. App. 401, where it was charged that the instrument purported to be the act of “C. J. Chapman,” but in setting out its tenor the signature was given as “ C. J. Chatman,” the indictment was held bad for repugnancy, although it was not attacked in the trial court nor in the court of appeals, and the judgment was reversed and the case dismissed. In Brown v. People, 66 Ill. 344, where the indictment set out the name signed to the forged instrument as “OthaCarr,” it was held not to be supported by the instrument offered in evidence signed by “ Oatha Carr.” In United States v. Keen, 1 McLean, 429, 440, 441, it was held that a draft signed “Jos. Johnson, president,” was not admissible in evidence under a count alleging it to be signed “Joseph Johnson.”
It may be said generally, in criminal pleadings as to forgery, that repugnancy between the purport and tenor clauses as to the signature of the instrument alleged to be forged, or a variance between the allegation and the proof in that respect, is fatal, unless cured by allegation or evidence showing that the repugnancy or the variance is apparent only, and not real, or that the different names are used to describe the same person. In giving the purport of a promissory note, the name of the maker is descriptive of the forgery alleged, and it must generally be proved as laid. Even in a case of larceny this court held that evidence that the property stolen was that of “ J. M. Wandler” did not support the allegation that it belonged to “Michael Wandler.” There was no evidence that “ J. M. Wandler” was the same person as “Michael Wandler,” and the judgment was reversed and a new' trial granted because of the variance. (The State v. Taylor, 15 Kan. 420.) Mere differences in the spelling or pronunciation of the name of a third person, as stated in an information and by the witnesses in a criminal case, are not fatal, where the person is so well described and his name so given that his identity cannot be mistaken, as held in the murder case of The State v. Witt, 34 Kan. 488. Nor is this like the case of the omission of the middle initial, where the first name is given in full and the party is generally known by such first Christian name, as in the false-pretenses case of The State v. Gordon, ante, p. 64, 42 Pac. Rep. 346.
On account of the variances between the allegations and the proofs, which v'ere in no way cured, the judgment must be reversed, and a new trial granted
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.":
This proceeding is brought to review the ruling of the district court of Atchison county confirming a sale of real estate. Executions were issued upon a judgment rendered against L. R. Staudenmayer, sr., and L. R. Staudenmayer, jr., and in favor of R. B. Drury, C. J. Drury, and Robert Mc-Crie, which judgment has just been reversed and set aside. (Wood v. Staudenmayer, ante, p. 399.) The executions were levied upon a quarter-section of land adjoining 'the city of Atchison and upon three lots in that city. The land was sold for $3,200, and, according to' most of the testimony offered on the motion to confirm, it was worth more than double that amount, and the' city lots brought only a small part of their actual value. The plaintiffs below, who were the judgment creditors, attended the sale, and it appears that two of them openly stated to those in attendance that' there was a mortgage for a large sum upon the property, and in that way to some extent discredited the title to the property offered. This conduct was irregular, and may have affected the price paid for the property. It had then been adjudged that the mortgage to which they referred had been paid and discharged ; and, while there was some competition at the sale, the attack upon the title probably chilled the sale, and conduced to the inadequacy of the prices offered. On account of this action, which would naturally deter bidders and depress values, together with the great inadequacy of the prices paid for the property, we think the sale should have been vacated. The rule is that great inadequacy of price is a circumstance which courts will always regard with suspicion, and in such cases slight additional circumstances only are required to authorize the setting aside of the sale.
The orders of the court refusing to set the sale aside and in confirming the same will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The opinion of the court was delivered by
Maktin, C. J.
: I. The plea in abatement is urged on the authority of The State v. Gleason, 32 Kan. 245 ; but in that case the prosecution was commenced in the district court, and the information was verified by the county attorney only upon information and belief. Section 15 of the bill of rights provides that “no warrant shall issue but on probable cause supported by oath or affirmation,” and this court held that the verification of the information was neither an oath nor an affirmation ; and this position is supported by City of Atchison v. Bartholow, 4 Kan. 124, 139, 140 ; and Thompson v. Higginbotham, 18 id. 42, 44. In the Gleason case, therefore, no legal foundation had been-laid for issuing the warrant, and, its validity having been challenged at the first opportunity, this court held that the defendant ought to have been discharged until the information should be veri fied, and a new warrant issued thereon. In the case at bar the complaint was regúlar in form, and was supported by the oath of Thomas Cahill, and this conferred jurisdiction, and authorized the justice to issue the warrant without the calling in of other witnesses, as authorized by section 36 of the code of criminal procedure. (¶5099, Gen. Stat. 1889.) Counsel for defendant cite no authority in support of their óontention, that on a plea in abatement the question can be tried either with or without a jury as to the extent of the knowledge of the person who makes oath to the complaint, and we know of none. It is therefore quite immaterial in this case whether, upon a plea in abatement raising an issue of fact, the trial of such issue should be by the court or by a jury. The complaint was in due and legal form, as was the warrant issued upon it, and we must hold that the arrest of the defendant was fully authorized by law, and that the court committed no error in refusing to hear evidence in support of the plea.
II. It was the duty of the clerk of the court to make out a copy of the information, and cause the same to be delivered to the defendant, or his counsel, at least 48 hours before the arraignment.. (¶ 5223, Gen. Stat. 1889.) There is no specific requirement .of a-certificate by the clerk under the seal of the court to the correctness of the copy, although it is the better practice to attach such certificate and seal. The certificate of the clerk here was in good form, except that the seal was not affixed ; but we are required to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.' (¶ 5355, Gen. Stat. 1889 ; Laurent v. The State, 1 Kan. 313 ; Millar v. The State, 2 id. 175 ; The State v. Winner, 17 id. 298.) There is no claim that the copy of the information delivered to the defendant was not full, true, and correct, as certified by the clerk, and, if it was irregular to omit the seal, the error was immaterial, and not prejudicial to the defendant.
III. James Clune was killed by the defendant on Tuesday, April 30. The defendant claims that the act was committed in self-defense. On the Sunday night next preceding, Clune, one O’Brien, the defendant, and perhaps some others, were engaged in an affray, and there was considerable evidence that on Sunday night, Monday and Tuesday Clune made threats that he would kill the defendant on sight, and some of these threats were communicated to the defendant. On Tuesday the defendant and one Buffing-ton were driving a team through an alley in Kansas City, Kanv when they saw Clune and OjBrien with some other persons in a barn abutting on the alley. The defendant offered to show by his own testimony and that of Buffington that he then expressed his fears to Buffington in words something like these : '‘ There are those fellows. They will get me.” But the evidence was excluded on the ground that it was a declaration of the defendant in his own interest. Counsel claimed that, as the homicide occurred only about three minutes afterward, and within 150 feet from the place where this expression' is alleged to have been used, it ought to have been admitted, if not as part of the res gestee, at least as showing the state of mind of the defendant very shortly before the fatal shot was fired, and which might'be presumed to continue until that event. Buffington was allowed to testify that at this time he told the defendant, in substance, to sit 'still, and they wouldn’t hurt him, which implies that the defendant had expressed or manifested some fear. The evidence for the prosecution tended to show that the defendant and Buffington drove on a little way and stopped at Buffington’s house on the alley, and that Clune and O’Brien, coming out of the barn, passed by the wagon, and when they were opposite the horses the defendant, without warning or present provocation, shot Clune, who fell dead, and the defendant then jumped from the wagon, running after O’Brien, and firing one shot at him. The defendant testified that when Clune was opposite the horses he reached down and got a brickbat and threatened to kill the defendant with it, when he shot; and his statement was in a measure corroborated by Buffington. Under the circumstances, we hold that the court did not err in excluding the declaration of the defendant to Buffington. It was not part of the res gestae. No trouble had occurred that day, and neither Clune nor O’Brien had made any hostile demonstration at that time. The declaration was of a self-serving character, such as a man might easily frame in anticipation. of the commission of a crime, to be used afterward in exculpation of his guilt. (1 Greenl. Ev. § 108 ; The State v. Montgomery, 8 Kan. 351, 361; The State v. Pomeroy, 25 id. 349, 351.) And, even if it were admissible, we think its exclusion would not be material error, for the state of mind of the defendant might well be inferred from the other testimony in his behalf on the hypothesis of its being true. The defense was based entirely upon what took place after the team stopped at Buffington’s house, and Clune and O’Brien had passed the wagon. If the jury gave credit to the defendant’s testimony as to the hostile demonstration with the brickbat and the threats said to accompany it, evidently they did not believe that the defendant was justified in taking Clune’s life.
No other points having been argued orally or in the defendant’s briefs, the judgment must be affirmed.
All the Justices concurring.
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' The opinion of the court was delivered by
Allen, J.
: The petitioner was charged by the county attorney of Wyandotte county with burglary and larceny in a dwelling-house in the night-time, and, being arraigned in court, he pleaded guilty to the charge. The court, apparently understanding the charge to be that of burglary in the first degree, sentenced him to confinement and hard labor in the penitentiary for the term of 20 years. The crime in fact charged is bur glary in the second degree, and grand larceny committed in a dwelling-house. It is not stated that any human being was in the dwelling-house at the time of the burglary, which is an essential fact to be stated in a charge of burglary in the first degree. Under the charge contained in the information, the defendant was liable to a sentence of imprisonment for the burglary not less than five nor more than 10 years, and for the larceny not less than one nor more than seven years. The minimum punishment that the court was authorized to impose for both offenses was six years, and the maximum punishment was 17 years. It thus appears that the sentence actually pronounced was for a term three years longer than the law authorized. It is contended that the judgment is therefore absolutely void. While there are some authorities that would seem to go to this length, the better rule is that, where the court has jurisdiction of the person of the defendant and the subject-matter of the action, and might in a proper case impose the sentence that it did in fact impose, the judgment is not absolutely void. (In re Petty, 22 Kan. 477 ; In re Dill, 32 id. 668 ; 9 Am. & Eng. Encyc. of Law, 231.)
That it was error for the district court to render the judgment it did is very clear, but it is not so clear that the error can be corrected under a writ of habeas corpus, the defendant being held ‘1 upon any process issued on any final judgment of a court of competent jurisdiction.” (See §671 of the Code of Civil Procedure, and Ex parte Nye, 8 Kan. 99.) If the court may inquire into the validity of the commitment, and may under a writ of habeas corpus relieve the petitioner from the punishment imposed in excess of that authorized by law, then we have to determine what that excess is. Of course all over 17 years, the maximum punish ment authorized, is excessive, but whether this court ought to assume that the district court intended the maximum punishment may be a question of serious doubt. If the charge had been in fact burglary in the first degree, as the court evidently understood it, the maximum punishment ■ authorized would have been 21 years for the burglary, and seven years for the larceny, or 28 years in all. The maximum punishment of the offense the court understood to have been committed was therefore not imposed. We can, however, say with certainty that the court intended to impose the minimum sentence at least, of imprisonment for six years. The defendant was charged with and pleaded guilty to crimes for which the court was required under the law to direct his punishment by confinement at hard labor for terms aggregating not less than six years. The judgment in this case was rendered on the 8th day of March, 1890, and six years have not passed since that time. The imprisonment of the petitioner at this time therefore is not shown to be illegal, and we cannot in this proceeding undertake to correct the judgment.
Whether the prisoner can be discharged on habeas corpus after he has served out so much of the sentence as the law authorized the court to impose, or not, we are not now called upon to determine.
The petitioner is remanded to the custody of the warden of the penitentiary.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: The substantial charge upon which a conviction was obtained was that Gordon unlawfully obtained from Trenier the sum of $35 by falsely and fraudulently pretending that Gordon and an Indian owned and then had in their possession in Shawnee county a gold brick or bar of the value of $10,000, when in truth and in fact they did not own or possess such gold brick or bar. Some matters are alleged in the information relative to the future actions and conduct of the parties, and it is argued that these do not amount to false pretenses within the statute, and, as these were the main representations in the information, that no ci‘ime was charged. As will be seen, however, the substantial features of the charge were representations and assurances of present existing facts, viz., that Gordon and the Indian were then the owners and possessors of a valuable gold brick, which they then had in Shawnee county, and that they were then on their road to take the gold brick to the United States mint at Philadelphia to be coined. It is alleged that on the faith of these representations and *he assurance of those facts the money was obtained from Trenier. The mere fact that a false pretense of an existing or past fact is accompanied by a future promise will not relieve the defendant or take the case out of the operation of the statute. Besides,
“It is not necessary, to constitute the offense of obtaining goods by false pretenses, that the owner has been induced to part with his property solely and entirely by pretenses which are false ; nor need the pretenses be the paramount cause of the delivery to the prisoner. It is sufficient if they are a part of the moving cause, and without them the defrauded party would not have parted with the property.” (In re Snyder, 17 Kan. 542.)
Further than that, it appears that the district court in charging the jury eliminated all immaterial matters, and submitted the case only upon such representations as amounted to false pretenses under the statute.
The name of the injured party, as alleged in the information, is Henry Trenier, and in the testimony it appears that his name was Henry G. Trenier, or Henry Guild Trenier, and it is contended that the misnomer or variance is fatal. It appears that some of the witnesses called him Henry Trenier, and on several occasions Trenier, in giving his own name, omitted the middle initial or name. It does not appear that this objection was raised in the trial court'; but in any event we do not think that the defendant ^ -, . ,, „ ,, sintered. any preuidice by reason ox the omission of the middle letter or name, nor do we regard the variance between the pleading and the proof in this respect to befatal. (The State v. Watson, 30 Kan. 282 ; The State v. Blackman, 32 id. 615 ; The State v. Drake, 33 id. 151; The State v. Rook, 42 id. 419 ; The State v. Flack, 48 id. 146 ; 16 Am,. & Eng. Encyc. of Law, 114, and cases cited.)
It is next contended that the testimony fails to establish the charge, and particularly that it did not prove that the bar or brick was not genuine gold. It appears that Trenier is a farmer, about 70 years of age, who resided near Holton, Kan.; that he is in moderate circumstances, and has fair financial credit. Gordon came into the neighborhood, and, after making some inquiries concerning Trenier, approached him and professed to be searching for an uncle by the name of Henry Trenier, who used to work with him in the mountains of Alaska. He stated that Trenier, to whom he was speaking, was not his uncle, and that he would go in search of him to St. Joseph, where he was last heard from ; and after a few days he returned and told Trenier that he had been unable to find his uncle, but that he had found an aunt who said that he was dead. He then took Trenier to one side, and informed him that he and an Indian had found a rich vein of gold in Alaska, and were now on their way to the mint to have coined a bar of the gold which they had brought with them, but that, as he was illiterate and liable to be cheated, he desired to have Trenier accompany and protect them, and that after the mineral had been coined they would return to the mountains where all would get rich. He informed Trenier that the gold bar was then in the possession of the Indian in the woods near Topeka, and that Trenier should have an interest in the same. They went together to the edge of the woods, where Gordon left Trenier with the information that it would not do to have the Indian see Trenier, and soon afterward returned with a pair of balances, a brace and two bits, and a sack containing the brick. Gordon professed not to understand the figures on the balances, and asked Trenier to weigh the brick, which he did, and it was found to weigh 40 pounds. With the brace and bit they bored into the brick, obtaining some chips, which were wrapped up and carried by Gordon back into the woods for the purpose of having the Indian melt them into a nugget. He also carried with him the brick, balances, brace and bits into the woods, and shortly returned with a nugget, which they took to Topeka for the purpose of having it tested. . After some considerable searcli they came upon one F. I). Fisher, evidently a confederate, who professed to be able to test minerals, and after making a test he informed Trenier that it was worth $20 an ounce or $240 a pound, and that the entire brick was worth $10,000. Gordon, claiming not to be acquainted with figures, requested Trenier to ascertain what one-third of the amount would be, and when the computation was made he insisted that Trenier should have one-third of the value of the same. Gordon informed Trenier that the Indian would not let the brick go to the mint unless he got some money for it, and Trenier then gave Gordon $40, but $5 of the sum was returned by Gordon with the statement that perhaps the Indian could be persuaded to let it go for the remainder. After a while Gordon came back and reported that the Indian would not let the bar go unless Trenier would pay him $1,000 on it, and asked Trenier if he could procure that amount. Trenier then went to Holton to obtain the money, and did borrow what he supposed was $1,000 from one of the banks at that place. It appears that the bank by inquiry ascertained that Trenier was being swindled, and they gave him a package said to contain and which was marked “ $1,000,” but which in fact was nothing more than a package of blank checks and notes. Trenier returned to Topeka, and after making some arrangements with Gordon in relation to going to the mint he delivered to Gordon the package supposed to contain $1,000. About the time the package was delivered, an officer, who had been watching the transactions, arrested Gordon, and took from his person about $30 in money, which was returned to Trenier. There are many other circumstances attending the transaction, some of them of the most ridiculous character, but a recital of which is now unnecessary. While the gullible old man was actually deceived by the flimsy tricks and absurd representations of Gordon, it is plain that, when all the circumstances connected with the transaction are considered, very little proof was necessary to sustain the charge that there was no gold in the brick said to have been brought from the mountains of Alaska. However, when Gordon was arrested he furnished proof that it was not a brick of gold. The officer who took him into custody demanded from him the $1,000 package and the gold brick, but he replied that he knew nothing about the gold brick. As lie was familiar with the character of the brick which they had with them, his positive assertion that he knew nothing of a gold brick is sufficient under the circumstances to sustain the finding that it was not made of gold. We think the testimony was sufficient to sustain the verdict. The charge of the court is criticized, but an examination of the same shows that the case was fairly submitted to the jury, and that there is nothing substantial in the objections urged against it.
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
Allen, J.
: It is strenuously urged by counsel for the plaintiff in error that the court erred in refusing to instruct the jury to find for the defendant, and that there can be no recovery under the facts disclosed by the testimony in this case. The main objections urged are, that the evidence clearly disclosed the fact that the railroad on which the plaintiff was injured was not operated by the defendant company at the time of the injury, but was, in fact, operated by the Chicago, Rock Island & Pacific Railway Company; and that the injury to the plaintiff was due solely to Ms own negligence. As to the first of these claims, it must be conceded that the evidence tending tó show that the railroad was operated by the defendant company was very slight, and that there was a great deal of testimony to the effect that the Chicago, Rock Island & Pacific took possession of and operated the road on or about tlie 1st of April, 1889, and the plaintiff’s injury appears to have been received on the 22d of that month. Whatever weight we might be willing to give to it if the matter were submitted to us as a question of fact, we yet think there was some slight evidence tending to support the finding of the jury in that particular. Nor can we declare, as a matter of law, that the plaintiff’s injury was due' to his own culpable negligence. It is true that a boy of ordinary intelligence, nearly 15 years old, cannot be excused from using such care and prudence as a boy of that age would ordinarily exercise in order to avoid danger. Courts will not presume boys of that age to be incapable of providing for their own safety. But in this case it appears from the testimony that the baggageman to whom he delivered the railroad mail was grossly abusive, and that the violent and profane language the baggageman used caused him to lose for the instant his presence of mind, and that while he was confused he stepped into the place of danger where he received Ms injury. It was for the jury to say, under this testimony and all' the other evidence in the case, whether an unwarranted act of the baggageman did excuse the plaintiff’s want of care in stepping in front of the approaching train, by depriving him for the time being of his capacity to act with ordinary prudence. This judgment, however, must be reversed and a new trial ordered because of very serious errors in the instructions given by the court. The sixth instruction is to the effect that, if the injury was caused by the negligence of the defendant, and the plaintiff was also guilty of some slight degree of negligence, this would not alone prevent a recovery, provided the jury further believe that the act of the defendant which caused the injury was done after discovering the plaintiff’s negligence, and the defendant could have avoided the injury by the exercise of reasonable' care. The engineer in charge of the engine which caused the injury testified that the first he saw of the boy was when he made the first step, and was about to make the.second step when the engine struck him ; that, in approaching the station, he applied the air, and seeing that he was going to stop too quick, he released the air and put his head out of the window to recognize the other train, according to the rule on the road, and that by the time he took his head in again he saw the boy, and when he stopped the boy was at the hind end of the tender.
It is claimed that it was the duty of the engineer, when going into a station, to look out for the safety of persons who had a right to be on and about the tracks, and to be constantly on the alert’to avoid injury to them, and that by turning his attention to the other train the engineer neglected the duty he owed the plaintiff to look out for his safety. The only negligence charged against the engineer • in the petition is in failing to ring the bell, sound the whistle, or give any other signal of the approach of the train. This instruction would authorize a recovery if the jury believed that the plaintiff negligently stepped in front of the approaching train, but that, after he had done so, the engineer might, by the exercise of reasonable diligence, have avoided Injury to him. If negligence in this respect was relied on, it ought to have been charged in the petition.'
The objections to the tenth, eleventh and twelfth instructions are still more serious. The tenth instruction is in effect that if the baggage-master, by accosting the plaintiff in an angry manner, caused him to be confused, so that his attention was taken off the coming train, and by reason of his being disconcerted he was injured, the company is liable for the injury. This instruction wholly excludes the consideration of any question of negligence, and directs the jury to find against the defendant if the baggageman, by his language, did in fact confuse the plaintiff, and if his being so confused in fact caused his injury. It is exceedingly difficult to see how a recovery can be based solely on the conduct of the baggage-master. While it is, of course, reprehensible for him to have cursed a boy of the age of the plaintiff, it does not necessarily follow that he might have reasonably anticipated that by so doing the boy would altogether lose his self-control and step in front of the approaching train. The conduct and language of the baggage-master might properly be proven for the purpose of relieving the plaintiff from the charge of contributory negligence, but it would not render the company liable for the injury unless such conduct might reasonably be expected to cause the plaintiff to act as he did, and thereby to induce the injury. It is only where the act of a servant might reasonably be expected to produce the injury that in fact results that the master Can be held to answer in damages.
The eleventh and twelfth instructions declare it to have been the duty of the station-agent, Collins, after delivering the mail to the plaintiff to be carried to the car, to protect him from all dangers that might be reasonably apprehended, and that the company was liable for any failure to so protect him. By these instructions the liability was imposed on the defendant,not for negligently sending the plaintiff into a place of danger, but for failing to protect him from the dangers which surrounded him. If it were conceded that the plaintiff went into a place of danger where he had no right, and that liability -was incurred by the defendant by reason of the act of its agent in sending him there, the measure of the defendant’s liability, as declared by the instructions, would be an extreme one, substantially the same as that disapproved by this court in the case of A. T. & S. F. Rld. Co. v. Winston, ante, p. 456, 43 Pac. Rep. 777. But the plaintiff does not claim that he was a trespasser, nor that he went to the place of danger solely because of the direction given him by the agent, Collins. His own testimony shows that he had started to mail letters given him by Licht,- and it is claimed by counsel here, and we think justly so, that he had a right to go to the car in which the railway post-office was kept for the purpose of mailing the letters intrusted to him ; that he was not a trespasser ; and that, though in a place of some danger, it was a place where, by the exercise of reasonable prudence on his part and of proper care on the part of those in charge of the trains, he might do his errand and return in safety. It is difficult to perceive how the act of the agent, Collins, in calling him back to give him other letters to mail radically changed his situation, and certainly it did not render the company an insurer of his safety. It is very difficult to see how Collins could have protected the boy against the rude language of the baggage-master, or how he could have caused the engineer of the west-bound train to ring the bell, sound the whistle, or keep a close watch in front of his engine. None of the agencies which produced the plaintiff’s injury were under the control of Collins, nor is it pointed out how it would have been possible for him to have protected the plaintiff. His negligence, if negligence it was, was in halting the boy while performing the mission he had first undertaken, and in imposing on liim the further task of delivering railroad letters to the baggage-master. Whether in doing this he failed to act as a person of ordinary prudence would have acted under like circumstances was a question which might have been submitted to the jury; but no liability could be imposed on the defendant company by reason of his doing so, unless his acts were the direct and proximate cause of the plaintiff’s injury, and only this question, so far as imposing liability on the defendant company because of the acts of the agent, Collins, could properly be submitted to the jury.
Various other criticisms are made on the instructions. We think it might have been well for the court to have explained to the jury just what negligence was imputed to the defendant, but we find nothing in the other criticisms requiring special mention.
The judgment is reversed, and a new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: The view we take of this case renders it unnecessary to consider the subject of implied warranties, so fully and ably discussed in the briefs. The rights of the parties were fixed by the written contract and the two letters read in evidence. If the description of the article sold were to be taken solely from the contract of March. 27, 1889, the plaintiff might find it somewhat difficult to prove that it had ever delivered silver binding twine. Of course, none of the parties to the agreement understood that there was to be any silver in the twine. This is made clear by the letter written by Mr. Terpenning, the plaintiff's manager at St. Louis, under date “4-5-89.'' This letter, while denying the authority of Wilson to. guarantee, and insisting on an erasure of the clause written on the margin by him, makes the direct statement and representation “We deal in nothing but first-class twine.” The defendant, by his letter of the 8th, put the plaintiff directly on notice that he relied on the declaration contained in Terpenning’s letter. As the defendant could not possibly inspect the twine before it was purchased, he had a right to rely on the statement in the letter of the plaintiff’s manager as to the quality of the goods to be furnished. If the plaintiff failed to furnish first-class twine as represented, he had.a right to a reasonable time after receipt of the twine in which to inspect it, rescind the whole contract, and return the goods received, or, if he so elected, he had the right to retain the inferior article, and recoup the damages sustained by reason of the failure of the plaintiff to furnish goods of the proper quality.
The judgment is reversed, and a new trial ordered.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: At June term, 1895, the défendant was tried upon information for robbery in the first degree, the charge being in substance that, on or about April 18, 1895, the defendant, feloniously, forcibly, and with violence, did make an assault upon one F. W. Harvy, and, by putting him in immediate fear of bodily injury, did, from his person, steal, take and carry away a certain pistol, of the value of $3, the same being the property of said F. W. Harvy. The body of the verdict returned by the jury was as follows : “We, the jury - the defendant guilty as charged in the information.” Motions for a new trial and in arrest of judgment respectively having been overruled, the defendant was sentenced to imprisonment in the penitentiary for a term of 10 years, and he prosecutes his appeal to reverse said judgment on the single ground that by reason of informality of the verdict, in not stating that the jury found the defendant guilty, a new trial should have been granted.
The court is of opinion, however, that the verdict is sufficient, notwithstanding this defect in form. It is true that in this state verdicts both in civil and criminal cases must be in writing, (¶ ¶"4379, 5278, and 5306, Gen. Stat. 1889,) and when the verdict is informal in any respect it is the duty of court or counsel to call attention to the same, and to have the jury make the necessary correction before discharge and separation; but where the defect is not detected and corrected at the time, the sufficiency of the verdict must depend upon whether the court can certainly say from it and the information what was the true intent and meaning of the jury. In the present case, it would seem that the meaning of the jury might be understood if the following part only had been returned, viz., “ the defendant guilty as charged in the information.” It is true that the verb “ find ” should have followed the word “jury,” but since it was the duty of the jury to find a verdict, either of guilty or not guilty, it may well be taken as if the verb “find” had been supplied. In some states verdicts are amendable after the discharge of the jury. (Thomp. Trials, § 2642.) This practice does not obtain in Kansas, but if the court can determine with certainty, from the information and the verdict, the real intention of the jury, judgment may be pronounced upon it in the same manner as if amended.
The foregoing is not the view of the writer, who thinks that the verdict was not sufficient as against a motion for a new trial, and this position is supported by Shaw v. The State, 2 Tex. App. 487, where a verdict of the same character was set aside and a new trial granted ■, the statute of Texas governing the practice not being essentially different from our own. It is not best to permit courts to supply the operative words in a verdict.. If they may supply one word, why not several? By such process the verdict in this case might easily be changed to “ We, the jury, do not find the defendant guilty”; or, “We, the jury,find the defendant not guilty.” Before the discharge of the jury, their verdict ought itself to be so definite and certain as to manifest their will and intent, and where it does not, the writer thinks it should be set aside and a new trial granted, on motion of the defendant.
The judgment will be affirmed.
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The opinion of the court was delivered by
Fromme, J.:
The appellant, Joseph M. Winston, was convicted of aggravated burglary (K. S. A. 1973 Supp. 21-3716) and rape (K. S. A. 1973 Supp. 21-3502) in connection with entering a private residence in Leavenworth, Kansas, in the early morning hours of June 29, 1971. The intruder entered the bedroom of the victim, committed the rape, took money from her purse and then left the premises. Appellant beoame the suspect when his picture was identified among photographs. of eleven individuals contained in a police album. He was arrested while standing on a street comer in Leavenworth two weeks after the crimes were committed. The shoes he was wearing and the wallet he was carrying at the time of his arrest were identified as stolen property belonging to the victim’s husband.
Appellant was tried before a jury. He appeals to this court because of alleged trial errors.
Appellant contends the trial court erred in refusing to suppress the photograph and the subsequent in-court identification. The legal bases for this attack are K. S. A. 38-815 (f), (g), and (h) which provide:
“(f) Neither the fingerprints nor a photograph shall be taken of any child less than eighteen (18) years of age, taken into custody for any purposes, without the consent of the judge of the court having jurisdiction; and when the judge permits the fingerprinting of any such child, the prints shall be taken as a civilian and not as a criminal record.
“(g) All records in this state concerning a public offense committed or alleged to have been committed by a child less than eighteen (18) years of age, shall be kept separate from criminal or other records, and shall not be open to inspection, except by order of the juvenile court; and it shall be the duty of any peace officer, magistrate, judge, or other similar officer, making or causing to be made any such record, to at once report to the judge of the juvenile court of his county the fact that such record has been made and the substance thereof together with all of the information in his possession pertaining to the making of such record.
“(h) When a record has been made by or at the instance of any peace officer, magistrate, judge, or other similar officer, concerning a public offense committed or alleged to have been committed by a child less than eighteen (18) years of age, the judge of the juvenile court of the county in which such record is made shall have the power to order such officer, magistrate or judge to expunge such record; if he shall refuse or fail to do so within a reasonable time after receiving such order, he may be adjudged in contempt of court and punished accordingly.”
The photograph had been taken by the Leavenworth police department nine months before the present crimes were committed and before appellant had reached the age of eighteen. At the hearing on the motion to suppress, appellant called two witnesses to testify. The officer who exhibited the book of eleven photographs to the victim testified that the victim identified the photo graph, that the photograph was taken on September 25, 1970, and that he knew of no court order authorizing the photograph to be taken. The victim identified the picture as the one she had viewed prior to appellant’s arrest. There was very little other evidence introduced on the motion. In denying the motion to suppress the court said it did not have sufficient evidence before it to support a finding that the photograph itself was illegally obtained. We are inclined to agree with the trial court.
The juvenile code (K. S. A. 38-815 [f]) permits the taking of photographs of minors with the consent of the juvenile judge. Records concerning a public offense by a minor are not open to inspection, except by order of the juvenile court. (K. S. A. 38-815 [g].) When such a record has been made, such as a police photograph, the judge of the juvenile court has the authority to order the same expunged. (K. S. A. 38-815 [h].) The purpose of the statute is to place control of the records of minors charged with crime in the office of the juvenile court so as to protect their confidentiality. However, it is not illegal to take such a picture if the court consents to the taking. In State v. Hinkle, 206 Kan. 472, 479 P. 2d 841, it is stated:
“Police officers are authorized to investigate and obtain information from a juvenile relative to a crime, and when there are sufficient grounds to believe a crime has been committed and the juvenile committed the crime, they must then deliver the juvenile into the hands of the proper juvenile authorities along with all information in their possession.” (p. 478.)
In Hinkle it is held a confession by a minor is not inadmissible merely because the person making it is a minor. It was further held that the provisions of K. S. A. 38-815 (b) (formerly 1970 Supp.) should not be construed to hamper the traditional function of law enforcement officers in investigating a crime even though committed by a juvenile.
In the instant case the evidence was insufficient to establish the circumstances under which the photograph had been taken and used. The judge of the juvenile court was not called to testify at the hearing on the motion to suppress. We cannot assume for the purposes of the appellant’s appeal that the judge refused to permit the photograph to be taken and we cannot assume the judge ordered the photograph expunged. The statute, K. S. A. 38-815 (/), does not require a written order from the judge to permit the photographing. It merely requires his consent. We cannot presume the officers violated the statute.
The trial court’s finding that appellant had failed in his burden of proof in this regard was proper and the motion to suppress was properly denied. With this determination the balance of appellant’s argument fails. The victim made a positive in-court identification of the appellant as follows:
“Q. Your testimony and identification in court today is it based on that photograph?
“A. No, it’s not.
“Q. What is it based on?
"A. On who I seen in my bedroom that night.”
It is apparent under our holdings in State v. Kelly, 210 Kan. 192, Syl. ¶ 2, 499 P. 2d 1040, and State v. Lora, 213 Kan. 184, Syl. ¶ 6, 515 P. 2d 1086, the in-court identification in this case is capable of standing on its own, free of taint from previous identification procedures.
Appellant’s next claim of error is based on two news articles which appeared in the Leavenworth Times during the trial. The articles stated that appellant was presently serving a sentence in the Kansas State Penitentiary for destruction of property and auto theft and referred to him as Joseph M. Winston, alias Runny Winston. There is nothing in the record before us to show that a single juror read or heard of the news articles. No post-trial affidavits were filed. In State v. Eldridge, 197 Kan. 694, 421 P. 2d 170, cert. den. 389 U. S. 991, 19 L. Ed. 2d 483, 88 S. Ct. 486, it is held:
"... A defendant is not deprived of a fair trial in violation of the due process clause of the Fourteenth Amendment by publicity attending the trial proceedings when he fails to show that a single member of the jury was made aware of the publicity; and when it does not appear the publicity was massive, pervasive or disruptive of the trial proceedings.” (Syl. ¶ 2.)
(See also State v. Platz, 214 Kan. 74, Syl. ¶ 3, 519 P. 2d 1097.
Appellant’s bald assertion of prejudice from trial publicity is unsupported by the record and without merit.
The state introduced a pair of shoes and a wallet belonging to the victim’s husband which were on the person of the appellant when he was arrested on the present charges. The owner of these articles testified they were discovered missing from his home on or about June 29, 1971, and the articles would have had to disappear from the premises between June 15 and June 29. Appellant objected to the introduction of the articles into evidence for the reason that their introduction tended to prove a crime of which he was not charged. He argues that the trial court should have excluded this evidence under K. S. A. 60-445 which provides:
“Except as in this article otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
It is difficult to support appellant’s argument under this statute for the admission of these articles in evidence came as no surprise to appellant. The articles were taken from his person when he was arrested and they had been stolen from the home in which the crimes charged had occurred. Although he was not charged with unlawfully taking these articles he knew or should have anticipated they would be introduced in evidence. The fact that evidence bearing upon the crime charged may indicate the commission of another crime does not render such evidence inadmissible if it is relevant to establish the guilt or innocence of the accused with respect to the crime charged. (State v. Martin, 175 Kan. 373, 385, 265 P. 2d 297; State v. Platz, supra.) In the present case the fact that the owner of the articles could not establish the exact date the articles were missing from the home does not destroy their relevance to establish the guilt or innocence of the defendant with respect to the crime charged. The evidence did bear upon proof of the appellant’s presence in the home from which the articles were taken and where the crimes charged were committed.
The appellant’s next three points relate to a blackboard drawing which the victim was permitted to make during the trial to show the location of her bedroom and sources of light coming into the bedroom by which she could view and identify her assailant. Appellant contends the drawing was so inaccurate it should not have been allowed at the trial, that the court erred in refusing to permit the jurors to view the scene during the trial and that the court erred in denying the motion of appellant to reopen the case and permit further defense testimony on the location of outside light sources.
No attempt was made to reproduce the drawing for the record on appeal and there is nothing in the record to indicate what additional evidence appellant desired to introduce on his request to reopen the case. The most that we can glean from the record before us is that the defense was contending there was but one street light in the alley instead of two. The foregoing matters all rest in the sound discretion of the trial judge. This court will not reverse the trial judge except for an abuse of discretion which affirmatively appears to have affected the substantial rights of the party complaining. (K. S. A. 60-2105.) The admission or the exclusion of evidence must be measured by the harmless error rule governing trial courts. (K. S. A. 60-261.) It is discretionary as to whether a trial court shall permit a jury in a criminal case to view the scene of a crime (K. S. A. 1973 Supp. 22-3418.) or reopen a case to introduce additional evidence (Anderson v. Berg, 202 Kan. 659, 451 P. 2d 248). The victim testified that after appellant raped her he asked for money. She then told him that her purse was on the dining room table. She further testified “then he got up and he flipped the light on, and he went into the front of the room and got my purse, like he knew the house, and turned around and came back.” Under the evidence it is difficult to see how the location of the outside fights were so crucial on the question of identification. The trial court did not abuse its discretion in this regard and the contentions are without substantial merit.
The appellant next complains about an instruction given at the trial. The court included a reasonable doubt instruction similar to one approved in State v. Mullins, 95 Kan. 280, 147 Pac. 828. The thrust of his argument is that the words “reasonable doubt” are of such common understanding and import that they need no further explanation. We agree with this premise. The question was posed and answered in State v. Larkin, 209 Kan. 660, 662, 498 P. 2d 37. The words “reasonable doubt” are clear in their meaning and no instruction defining their meaning is necessary. (See PIK Criminal, 52.04, p. 49.)
Although the above premise is sound it does not follow that prejudicial error flows therefrom. This court will not reverse a conviction merely because a reasonable doubt instruction was given. See State v. Booker, 200 Kan. 166, 174, 434 P. 2d 801, cert. den. 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031, and State v. Osbey, 213 Kan. 564, 572, 517 P. 2d 141. The terms “moral certainty” and “satisfied the reason” used in the instruction are no more understandable than the term “reasonable doubt” which they define, but the instruction as given has been approved and is not an erroneous statement of law which would mislead the jury. So once again we say no such instruction need be given but the giving of the instruction does not appear to have prejudicially affected the substantial rights of the appellant and we must disregard such as a mere technical error as provided in K. S. A. 60-2105.
Appellant’s final argument to this court, if none of the preceding points discussed are sufficient to justify a reversal, is that the totality of the points raised have the cumulative effect of denying a fair and impartial trial. We do not agree and the judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This class action was instituted by plaintiffs-appellees and other persons similarly situated as homeowners or occupants of homes in a residential classification that are not connected to the sewer system of Kansas City, Kansas, but are being assessed a sewer service fee of $1.80 per month. The plaintiffs’ class numbers approximately 11,200 homeowners. The relief sought was a declaratory judgment and permanent injunction. The defendants-appellants are the City of Kansas City, Kansas, and the individual City Commissioners. In response to plaintiffs’ petition, defendants answered alleging the charges in question were authorized by either K. S. A. 12-3101, et seq. or K. S. A. 12-631g.
The case was submitted to the trial court on an agreed statement of facts. Following an adverse judgment the defendants perfected this appeal.
The sewer charge in question is assessed under City Ordinance Sec. 32.20 which reads:
“Subject to the provisions of this article, no person shall discharge untreated sewage in the city, or into a sewer system discharging sewage in the sewer system of the city, or discharge sewage in the city or use private septic or disposal tanks in the city without paying the sewer service charges set out in this article.”
It is admitted that the homes of plaintiffs are not connected with the city system, but all use septic tanks, 90 percent of which are cleaned at least once every three years by private contractors who most generally discharge the sewage from their trucks into the city’s system.
It appears the city first claimed authority for its ordinance under provisions of the Kansas Water Pollution Act (K. S. A. 12-3101, et seq.), and later in the alternative, also asserted authorization for the ordinance under 12-631g.
We shall first consider defendants’ contention with respect to 12-631g which was enacted in 1953. It reads:
“The governing body of any city or any township sewer district which has installed or may hereafter install a system of sewage disposal may, by ordinance of such city or by the resolution of the governing body of such township sewer district, establish just and equitable rates of service charges to be paid to such city, or to such township sewer district, for the use of such sewage disposal system by all persons, firms, corporations, city departments, the United States, the state of Kansas and its political subdivisions, and any organizations whose premises are connected or may hereafter he connected to the sanitary sewer system of such city or of such township sewer district: Provided, That the provisions of this act shall not apply to any city of the first class having a population of more than two hundred thousand (200,000).” (Emphasis supplied.)
Defendant’s latch on to the phrase “or may hereafter be connected” in support of their position. The city says it has plans to set up “no protest” districts to provide sewer service to many of the affected class by 1975 and, thus, they will be hereafter connected. However, no plans were described or submitted into evidence. We believe the clear import of the language of 12-631g is to authorize a resolution by the governing body concerned to levy a service charge for the use of the disposal system by anyone whose premises are presently connected or for the use by anyone when hereafter connected. To adopt the construction urged by defendants would be to destroy the relationship between use and charges therefor which is manifestly intended by the language employed in the statute. The charge is to be levied against those who use and are connected to the system.
The Water Pollution Act (K. S. A. 12-3101, et seq.) was enacted in 1959. Its purpose was to provide for the abatement of water pollution by municipalities. The various sections of the act extend to municipalities authorization for the developing, constructing and maintaining of sewer systems and provide for the financing thereof by sewer service charges and the issuance of revenue bonds. The portion of act relating to the issue herein is 12-3104 which reads in pertinent part:
“(a) To adopt by ordinance or resolution sewer service charges based on a per unit volume of water used and based on the strength and volume of sewage contributed.” (Emphasis supplied.)
Here, as in 12-631g, the relationship of use to the authority to levy a charge is clearly evidenced by the language employed. The levying of a service charge is authorized if based on a per unit volume of water “used” and on the strength and volume of sewage contributed. Plaintiffs contribute no sewage to be measured by strength and volume. No language appears in either of the two statutes which indicates that a charge for indirect use of the system is contemplated. If the private contractors who clean plaintiffs’ septic tanks discharge the sewage into the city system they, of course, would be contributing, but no issue is presented in this regard. The relationship between use and charges therefor appears to run through the various statutes (K. S. A. and K. S. A. 1973 Supp. 12-630, et seq.) pertaining to sewage and drainage as well as the water pollution act. For example, I2-631c which pertains to the levying of sewer service charges where a city has acquired a system by gift or purchase, authorizes die levying of equitable service charges for the “use” of such sewer system based upon the quantity and character of the sewage discharged. Also K. S. A. 1973 Supp. 12-1674a, enacted in 1973, while not relevant here expressly prohibits cities in certain counties from imposing sewer service charges upon persons not receiving sewer service. (See, also, K. S. A. 1973 Supp. 12-631m.)
In support of their position defendants refer to a decision of the Court of Common Pleas of Allen County, Ohio in the case of Wiford v. Village of Elida, 179 N. E. 2d 559, wherein a village ordinance imposing a charge on land which discharged sewage into the village system was upheld. The facts are dissimilar in several respects from those present in the instant case. The evidence disclosed that, at the time installed, septic tanks in the village of Elida were not required to have leech beds or filter beds and that the overflow herefrom entered the drains and pipes of the village system. In the opinion the court specifically noted that the septic tank of the Elida Public School was without a filter or leech bed and that the outlet thereof was controlled only by a baffle board; and that the outflow of the tank was discharged into the village system. It was pointed out that the school septic tank was built to accommodate a student population of 600, whereas the school population now numbers approximately 1600.
In a later case, Giesel v. Broadview Hts., 14 Ohio Misc. 70, 236 N. E. 2d 222, the Common Pleas Court of Cuyahoga County, Ohio noted the distinguishing features of the Village of Elida case and adhered to what was denominated the general rule that the key to a valid sewer rental charge is “use” of the system. An attempt by the City of Broadview Heights to collect a sewer rental charge before the premises in question were served by the system was held to be in contravention of Section 729.49, Ohio Revised Code, the thrust of which is similar to Kansas statutes previously mentioned. Generally speaking, sewer charges by a municipality must be tied to the use of the services and the fee imposed, under most authorities is not a tax, but a charge for services rendered. (64 C. J. S., Municipal Corporations, § 1805, pp. 265, 273.) In 11 Mc-Quillin [3rd Ed. Revised], Municipal Corporations, Sewers and Drains, § 31.30a, p. 248, the rule is stated in this fashion:
“Sewer charges and fees are not taxes or special assessments . . . but are in the nature of tolls or rents paid for services furnished or available. . . ."
Finally, defendants suggest authority for the ordinance in question under the Home Rule power evolving from Article 12, Section 5, of the Kansas Constitution. Plaintiffs point out that the matter of Home Rule authority was not raised in the court below and, thus, cannot be advanced for the first time on appeal. Nevertheless, we would note that Home Rule power of cities is not absolute, but subject to the power of the legislature in certain areas — exclusively in some, optionally in others as expressly set forth in the amendment. (Claflin v. Walsh, 212 Kan. 1, 509 P. 2d 1130.) With respect to the instant case, as has already been pointed out, the legislature has exercised its option in the. area of water pollution and specifically in the area of sewer service fees by enacting statutes relating thereto and applicable to all cities of the same class.
We find no authorization under either K. S. A. 12-631g or K. S. A. 12-3104 for the ordinance imposing sewer service charges on homeowners or occupants who are not connected to the city sewer system.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an action for damages for wrongful death, personal injury and property loss arising out of a head-on collision between two passenger motor vehicles. Defendants in the action are the owner of a truck-trailer, its public liability carrier and the state highway commission. Plaintiffs sought recovery on the theory the combined negligence of the truck driver and of the driver of the vehicle with which plaintiff’s vehicle collided plus statutory defects in the highway caused the collision. The case was tried to a jury which returned a general verdict for the defendants and plaintiffs have appealed.
We first summarize the background facts revealed at trial.
The collision occurred September 20, 1969, on U. S. highway 54 approximately 14.6 miles northeast of Liberal. About one and one-half miles west of the area where the collision occurred the highway crosses the Cimarron river. From the river bridge northeastward the highway went upgrade and contained three marked lanes — two lanes for eastbound traffic separated by white stripes or dashes, and one for westbound traffic. The right hand lane for eastbound traffic, called a creeper or climbing lane, was for use of trucks and heavy vehicles ascending the hill. A double yellow line on the highway divided the eastbound from the westbound traffic in the area involved. The speed limit was seventy miles per hour. As eastbound traffic reached the crest of the hill and entered the transition lane the highway curved slightly to the right. Various highway department signs were posted along the right side of the highway for eastbound traffic. A short distance northeast of the road taming off to the Meade county state lake there was a pavement width transition sign which indicated a narrowing of the right side of the roadway. This sign was about 750 feet in advance of the- actual transition in the road. Beyond this sign to the east there was a sign upon which the legend “merging traffic” appeared. Next there appeared a curve sign indicating a curve to the right. Then in the transition area where the collision occurred there were five W 16 vertical panels delineating the tapered area of the roadway where the two eastbound lanes merged into one.
At about 9:30 a. m. on the day in question Celia J. Massoni was operating a Mercury automobile in a southwesterly direction toward Liberal at a point on the crest of the aforementioned hill on U. S. highway 54. She was accompanied by her sister, Melissa M. Massoni, and a friend, Vicki Hinz. Celia and Melissa were minor daughters of plaintiffs Jack R. Massoni and Mary Jane Massoni. Plaintiff Jack R. Massoni owned the Mercury automobile. An automobile driven by a Mr. Olsen was behind the Massoni vehicle, traveling in the same direction, and behind the Olsen vehicle a Mr. Hinman was driving his automobile with his wife as a passenger, also headed toward Liberal.
At the same time a truck-trailer rig, sixty feet in length and eight feet wide, owned by defendant Time-D. C., Inc., was proceeding northeasterly up the grade in the creeper lane. Rehind the truck and also proceeding in a northeasterly direction was a Dodge automobile owned and being driven by Jerry C. Dean. Dean was accompanied by Jerome McHenry. McHenry was asleep until awakened by Dean’s frantic voice just before the collision saying, “Where is this guy going?” or something similar. As the truck was approaching and entering the unmarked transition lane without any left turn signal being made, Dean was seen to pull out to his left, apparently in an effort to go around the left side of the truck. As he was either at about the midpoint of the truck-trailer rig or at the rear, he collided almost head-on with the Massoni vehicle. The Dean car laid down forty-two feet of skid-marks to the point where it crossed die double yellow center lines, then thirty-two feet more of skidmarks up the roadway, then there were no skidmarks for a distance of twenty-two feet to the point of impact. The point of impact was three feet south of the north edge of the roadway or at the extreme right hand side of the Massoni lane of traffic, and was 280 feet east of the last of the white stripes marking the end of the creeper lane. After the Dean-Massoni collision the Olsen vehicle swerved and missed the Massoni car but slid into the Dean vehicle. Dean and Melissa Massoni were killed as a result of the collision. Celia Massoni was seriously injured and burned and we are told has no memory of file collision. The roadway where the collision occurred was about twenty-nine feet wide. The width of the two-lane roadway was twenty-four or twenty-five feet.
Other evidence and events occurring at trial will be related in connection with the matters raised on appeal; however, at this point it may be well to mention the basis of the claims asserted by plaintiffs against the defendant highway commission. Plaintiffs contended the highway was defective in that traffic control signs were not maintained in accord with the uniform sign manual adopted by the commission and also that it was defective in design. Highly summarized, plaintiffs asserted the curve sign was placed too close to the curve — it should have been from 500 to 600 feet further back to give adequate warning; the pavement width transition sign should have been set further west another 750 feet in advance of the hazard — also a duplicate sign should have been placed on the left side of the roadway to enable an eastbound driver to see it at a time when the view on the right might be blocked by a vehicle in the creeper lane; the merging sign was inappropriate and likely to cause driver confusion; the transition lane, 400 to 425 feet in length, was too short — it should have been from 600 to 840 feet long; and a creeper lane should not end at the beginning of a curve in the highway toward the right.
Although we are not here called upon to determine whether the evidence was sufficient to show that the highway was defective, mention should also be made of the fact that evidence pro and con was received on that issue. Plaintiffs’ experts testified the signs and design mentioned did not conform to manual and blue-book requirements and that maintenance of the highway constituted a hazardous and dangerous condition — the highway commission produced experts who testified to thé contrary.
Plaintiff-appellants assert several trial errors. We shall first consider two which in the unanimous' opinion of the court constitute reversible error requiring new trial, although the court is divided as to the reasons.
Shortly after the collision a highway patrolman, Trooper Schlegel, who had had six years’ experience in investigating highway accidents, went to the scene, conducted an investigation and made a report. Called as a witness by appellants, he testified as to the facts ascertained by him. Upon cross-examination by counsel for the truck company, the following occurred:
“Question: Now, Trooper, in your findings, as the result of this accident, I believe you listed only one contributing circumstance to the accident. Is that correct?
“Mr. Sharp: We are going to object to the form of the question. It is invading the province of the jury and calling for the opinion of the witness.
‘The Court: Rephrase your question please.
“Mr. Larson: All right.
“Question: (By Mr. Larson) What did you find, if anything, to have been the contributing circumstance to this acoident?
“Mr. Sharp: We are going to object to the form of the question as calling for the opinion and conclusion of the witness.
“The Court: He is qualified as an expert. I will permit the question.
"Answer: (By the Witness) The cause of the accident listed on my report was improper overtaking on the vehicle number 2.
“Question: Who does that refer to?
“Answer: Vehicle number 2.
“Question: Was that Dean?
“Answer: The Dean vehicle.”
Appellants assert error in several respects in the reception of the foregoing evidence. We think the matter is controlled by two separate rules expressed in Ziegler v. Crofoot, 213 Kan. 480, 516 P. 2d 954, which decision had not yet been rendered at the time of the trial of this case. Ziegler's posture was similar to that at bar. Upon cross-examination of a highway patrolman who had investigated the intersection collision in question, he was permitted to testify, over objection, that in his written report under the column “Contributing Circumstances” he showed that the plaintiff driver failed to yield the right of way; on the part of the defendant driver he indicated “None”. Jury verdict and judgment were for the latter. On appeal plaintiff challenged admission of this testimony urging, among other things, as here, “that said testimony usurped the province of the jury by stating ultimate facts which should have been reserved for the jury’s final determination”, (p. 483.) In affirming the judgment by a divided court it was pointed out that under K. S. A. 60-456 (d) expert testimony in the form of opinions otherwise admissible is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact. We said this of the testimony, which was held to be admissible:
“In the case under consideration the opinions requested and given were directed to the actions of the parties, if any, which contributed to cause the accident. We believe the opinion of the expert on this subject would assist the jury in understanding and summarizing the material in the evidence and it was not objectionable.
“. . . The question merely called for the patrolman s conclusion as to what actions of the parties, if any, contributed to the accident. The jury was free to make the ultimate decisions as to fault, negligence or contributory negligence. In an intersection accident if all the requirements of K. S. A. 60-456 are otherwise met an expert may be permitted to give his opinion as to actions and circumstances of the parties, if any, which contributed to the accident.” (pp. 487-488.)
However, in Ziegler we referred approvingly to certain language used in Frase v. Henry, 444 F. 2d 1228 (CA 10, 1971) wherein the federal court of appeals for this circuit examined Kansas statutes pertaining to evidence and cautioned that there still exists assurances against admission of opinions which merely tell the jury what result to reach, stating that opinions are admissible only up to a point where an expression of opinion would require the expert to pass on the weight or credibility of the evidence. In Ziegler we also said:
“This court feels that to permit an expert to give his opinion on who ivas ai fault in causing an accident is objectionable and should not be permitted.” (p. 487.)
We there concluded the form of the questions and the patrolman s answers were not subject to the foregoing objection. Thus it will be seen a narrow distinction has been drawn in determining admissibility of this type of opinion evidence. The rules stated are that an expert witness may give an opinion as to what aotions of the parties, if any, contributed to the collision but he may not give an opinion as to who was at fault in causing the collision.
In the case at bar a majority of the court is of opinion the answer of the highway patrolman (that the cause of the accident was improper overtaking on the part of Dean vehicle, which answer was not directly responsive to the. question) falls within the category said in Ziegler to be objectionable and constitutes reversible error.
Another majority of the court (necessarily with some overlapping) is of opinion the testimony presently under challenge was improperly received for another reason, rooted in K. S. A. 60-456 (b), also mentioned in Ziegler and stated as follows:
“. . . [Olpinion testimony is not without limitations and although an expert witness may be permitted to give an opinion bearing on the ultimate issue he may do so only insofar as the opinion will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. (Staudinger v. Sooner Pipe & Supply Corporation, [208 Kan. 100, 490 P. 2d 619] Syl. ¶ 6.)” (pp. 486-487.)
K. S. A. 60-456 (b) provides:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” (Our emphasis. )
In Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67, we considered the foregoing and stated:
“Where the normal experience and qualifications of laymen jurors permit them to draw proper conclusions from given facts and circumstances, expert conclusions or opinions to be drawn from the facts and circumstances are inadmissible.” (Syl. ¶ 7.)
The matter is elaborated in Jones on Evidence (Sixth Edition, Gard) § 14:28 thus:
“Although an expert witness may not usurp the jury function of weighing the evidence and deciding what the facts are, the question of arriving at a reasonable faotual conclusion from the evidence which is believed is quite another matter. This, to, is a jury function, but in technical or other matters requiring special knowledge, skill, experience, and the like, the jury or the judge trying the case may be quite at sea without the aid of those who understand the mysteries better than they of little or no experince in such matters.
“If it may be said that there still exists a general rule to the effect that a witness may not express his opinion upon an ultimate issue of fact, it is obvious that the extensive relaxation of the rule turns it into what amounts to an expression by the courts of reluctance or reserve in the receipt of even expert opinion which would seem to substitute the witness for the jury or the judge in the final decision. On this basis what would seem to be confusion and conflict may be looked upon as reflecting a trend toward a common sense and not an abitrary view. This common sense view is to receive the opinion testimony where it appears that the trier of the fact would be assisted rather than impeded in the solution of the ultimate problem.” (p. 660.)
The rule was discussed in Smith v. Lockheed Propulsion Co., 247 Cal. App. 2d 774, 56 Cal. Rptr. 128, 29 ALR 3d 538, as follows:
“The crucial consideration in determining whether expert testimony should be received is whether ‘. . . the subject of the inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness or whether, on the other hand, the matter is sufficiently beyond common experience that the opinion of am expert would assist the trier of fact.’ ” (p. 783.)
In the case at bar there were five eyewitnesses to the collision who testified: The truck driver; McHenry, passenger in the Dean automobile; Hinz, passenger in the Massoni vehicle; and Mr. and Mrs. Hinman who were following the Olsen and Massoni vehicles. Testimony respecting the positions of the vehicles involved and estimates of their speed was received. The highway patrolman testified at length concerning his observation and investigation at the scene shortly after the collision. Diagrams, charts and aerial photographs depicting the scene and estabhshing pertinent measurements were presented to the jury. As indicated", experts testified pro and con and fully aired their views as to the propriety of the signing and design of the highway. Although the experts differed as to their conclusions and opinions, the signs and road conditions were such as are encountered by and within the experience of persons everywhere and there was little difference or dispute arising from the other testimony as to just what happened.
This other majority of the court is of the opinion that the matters at issue were not sufficiently beyond the common knowledge of ordinary persons that the opinion of an expert would be helpful to the jury. The case was not of a complicated or technical nature. In other words the situation was one where the normal experience and qualifications of laymen jurors would have enabled them to draw proper conclusions without the aid of expert conclusions or opinions. In such a situation expert testimony is inadmissible (Gardner v. Pereboom, supra).
The conclusions just reached dispose as well of the allegation of error in die receipt of testimony of a witness called by both appellees, George W. Forman. Upon his direct examination the following occurred:
“Question: All right. Based upon your investigation, your reconstruction, and all of the information available to you, do you have an opinion as to the cause of this accident on September 20, 1969?
“Answer: Yes, I have.
“Question: And would you state that opinion to the Jury, please?
“Mr. Sharp: To which we are going to object, Your Honor, as insufficient foundation, calling for an opinion and conclusion of the Witness which invades the province of the Jury.
“The Court: Overruled.
“Answer: (By Witness) I am of the opinion that the proximate oause of this accident was an improper overtaking action on the part of the driver of the Dodge automobile, Mr. Jerry Dean. He was proceeding at a speed which in all probability was unreasonable, was excessive, and attempted to overtake improperly at the end of a clearly marked merging of the creeper lane to the normal two lane highway.”
Receipt of this testimony must be held to be erroneous in the same fashion as that of the highway patrolman.
Complaint is also made of the trial court’s refusal to admit expert testimony offered by appellants respecting causation of the collision in question. The witness, Bob L. Smith, professor at Kansas State University, who had had extensive training, study and experience in the field of highway design and signing, testified at length, without objection, that the signing and design of the highway did not conform to manual and good design requirements, and that these defaults rendered the highway dangerous to traffic and could contribute to an accident. The trial court then sustained objections to further questions by appellants as to the cause of the collision on the basis the witness was not an accident reconstructionist. We think this testimony is likewise objectionable under the rules stated in Ziegler, rather than for the reason given by the trial court.
Since new trial is being directed mention should be made of further points raised by appellants. They complain of the fact each appellee was allowed three peremptory challenges to the jury while appellants were limited to a total of three. K. S. A. 1973 Supp. 60-247 provides in pertinent part:
“(b) Challenges. In civil cases, each party shall be entitled to three (3) peremptory challenges. . . . Several defendants or several plaintiffs shall be considered as a single party for the purposes of making challenges. If there is more than one defendant and if the judge finds there is a good faith controversy existing between the defendants, the court shall allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.”
The crux of the matter is whether a finding by the trial court that a good faith controversy existed between the defendants was justified. We think it was. In their petition appellants alleged that the combined acts of both appellees caused their damage. In their answers both appellees denied these allegations. The highway commission additionally responded that appellants’ damage was caused either by the neglect of Dean or that of the truck driver. The record on appeal does not contain any pretrial order further refining the issues nor does it contain the instructions to the jury. Upon this state of the record it would appear that the interests of appellees were at least adverse in part and a good faith controversy between them existed. Appellants have not demonstrated otherwise. The situation is akin to that in Lehar v. Rogers, 208 Kan. 831, 494 P. 2d 1124. There the plaintiff driver sued the city of Wichita for negligent maintenance of a traffic control device and another driver of an automobile involved in a collision with plaintiff. The defendant driver pleaded in the alternative that plaintiff’s damages were caused by negligence of parties other than defendant. The two defendants were each allowed three peremptory challenges. Upon plaintiff’s appeal this court stated:
“. . . With the case in this posture, at the time of impaneling the jury, the trial court could well have found a good faith controversy between the City and defendant Rogers on the issue of proximate cause. The trial court did not make an express finding that a controversy existed between defendants but plaintiffs made no objection on this ground. . . . We find no error shown with respect to the trial court’s handling of the peremptory challenges.” (pp. 837-838.)
Appellants make complaint of certain statements by counsel for the highway commission in his opening statement to the jury. The statements had to do with the manner in which Jerry C. Dean drove his vehicle at the time of the collision and the fact his estate was not being sued in the action. They were made after counsel for appellants had told the jury they expected that appellees would try to lay all the blame for the accident upon Dean. Aside from the argumentative aspect of the statements challenged we see nothing wrong with them.
Finally, appellants complain of language used by counsel for the highway commission in his closing argument to the jury. Counsel obliquely referred to the fact the jurors were taxpayers and public funds would be used to pay any judgment which might be rendered against the state. No objection was voiced at the time the statements were made and nothing further was said to the jury about the matter.
Unprovoked argument directing jurors’ attention to the fact that any judgment rendered will be paid from tax funds constitutes an improper appeal to the self-interest of the jurors (see anno. 33 ALR 2d 442) and if not effectively corrected, may be held to be prejudicial error requiring reversal or new trial. The statements complained of here were improper but we need not assess their prejudicial impact in view of the fact new trial is being ordered for erroneous admission of evidence.
The judgment is reversed and the cause remanded with directions to grant appellants’ motion for new trial.
approved by the court.
Fontron, J., concurs in the result.
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The opinion of the court was delivered by
Kaul, J.:
Plaintiffs-appellants brought this action to recover damages which they alleged resulted from publication by defendants-appellees of allegedly libelous statements in a proceeding before the Interstate Commerce Commission. In their answer to plaintiffs’ petition, defendants alleged the statements were relative to the issue involved and were filed in support of their “Protestant’s Motion to Re-Open and Protestant’s Petition for Reconsideration” in the proceedings before the Interstate Commerce Commission. Simultaneously with the filing of their answer, defendants filed a motion for judgment on the pleadings pursuant to K. S. A. 1973 Supp. 60-212 (c). Defendants’ motion was based on the ground of absolute privilege. In due course the motion was heard and sustained by the trial court. Thereafter plaintiffs perfected this appeal.
The overall issue presented is whether absolute privilege should extend to defendants’ conduct as it is set out in plaintiffs’ petition. A motion for judgment on the pleadings under 60-212 (c), filed by a defendant, is based upon the premise that the moving party is entitled to judgment on the face of the pleadings themselves and the basic question to be determined is whether, upon the admitted facts, the plaintiffs have stated a cause of action. (Tabor v. Lederer, 205 Kan. 746, 472 P. 2d 209.) The motion serves as a means of disposing of the case without a trial where the total result of the pleadings frame the issues in such manner that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real issue to be tried. (Gard, Code of Civil Procedure Annotated, §60-212 [c], p. 55.) The motion operates as an admission by movant of all fact allegations in the opposing party’s pleadings. (1 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure [1973 Pocket Parts], 60-212 [c], Authors’ [Fowks, Harvey and Thomas] Comments.)
Plaintiffs’ petition incorporated by reference a decision and order of the Interstate Commerce Commission, dated June 13, 1973, and a “Motion to Re-Open” and “Petition for Reconsideration” filed by defendants on July 8, 1972.
From the petition and attached exhibits it appears that both plaintiff and defendant corporations operated trucking businesses. Both parties were engaged in interstate commerce as contract oaniers of meat and packing house products over irregular routes. Plaintiff Claude Harpster is the chief executive officer of plaintiff Clear Water Truck Company, Inc., and defendant Maurice Bruenger is the principal stockholder and chief executive officer of defendant M. Bruenger & Company, Inc. For brevity we shall refer to plaintiffs collectively as Clear Water or plaintiffs; likewise, to defendants as Bruenger or defendants, and Interstate Commerce Commission as the Commission.
Clear Water filed an application for a permit and Bruenger appeared as a party protestant before the Interstate Commerce Commission. With the “Motion to Re-Open” after granting of Clear Waters permit, Bruenger attached a statement of one Marion R. Hoover as a supporting exhibit. Hoover is traffic coordinator for a Liberal, Kansas, meat packing house whose freight business was a subject of the Commission proceedings. Hoover’s statement was to the effeot that testimony given by Claude Harpster, under oath, in the Commission proceedings was false.
Plaintiffs alleged 'that defendants prepared Hoover’s statement, submitted it to him, that he signed it without reading it; that defendants then caused it to be notarized; and that the statement was published before the Commission by defendants for tire purpose of accusing Claude Harpster of falsely testifying before the Commission Examiner. Plaintiffs alleged that as a result of the solicitation and publication of the false and libelous statement both plaintiff Harpster and plaintiff Clear Water suffered substantial damages. Plaintiffs in their petition alleged a series of events culminating in the filing of the statement; however, no claim is. made that any of the activities prior to the filing of the Hoover statement would constitute a cause of action.
In their answer defendants admit filing before the Commission their “Protestant’s Motion to Re-Open” with the supporting verified statement of Hoover. In their motion for judgment on the pleadings defendants alleged that their action in preparing and filing the motion with the supporting verified statement before the Commission constituted the preparation of pleadings before a judicial body; that the contents thereof enjoyed an absolute privilege and; thus, could not be made a basis for an action for damages resulting from an 'alleged libel and slander. No issues of fact material to the defense of absolute privilege were left in dispute. Thus, the action was in proper posture for disposition on a motion for judgment on the pleadings under K. S. A. 1973 Supp. 60-212 (c). The basis of the trial court’s judgment was that since the libelous statements were published in the course of a judicial proceeding by parties to the litigation, recovery for damages which may have been suffered, is foreclosed by the rule of absolute immunity.
The defense of absolute immunity in defamation actions has long been recognized in virtually every American jurisdiction. The premise upon which the rule is based is succinctly stated by Arthur B. Hanson in his work (Vol. 1) entitled “Libel and Related Torts, Absolute Privilege,” § 108, pp. 85-86:
“In order to encourage use of courts for settlement of disputes and to facili tate the search for justice, an absolute privilege attaches to statements by any participant in a judicial proceeding which the speaker could reasonably have thought to be relevant and which were made in connection with such proceeding.”
See, also, Prosser Law of Torts (4th Ed.), §114 pp. 776-781; 50 Am. Jur. 2d, Libel and Slander, § 193, p. 696.
Concerning administrative proceedings the same author (Hanson) has this to say:
“In addition to regular judicial proceedings, an absolute privilege attaches also to administrative proceedings which are quasi-judicial in nature, such as hearings by licensing agencies or workmans compensation boards, proceedings to remove public officers or employees, and other similar activities.” (§ 109, p. 86.)
In the recent case of Thompson v. Amis, 208 Kan. 658, 493 P. 2d 1259, cert. den. 409 U. S. 847, 34 L. Ed. 2d 88, 93 S. Ct. 53, this court had occasion to consider what constitutes a quasi-judicial function of an administrative body. Speaking through Chief Justice Fatzer we had this to say:
“. . . quasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature.” (p. 663.)
A proceeding before the Commission such as that involved in the case at bar clearly falls within the concept of a quasi-judicial function. On oral argument we were informed by plaintiffs’ counsel that no issue is made in this regard. Plaintiffs also concede that the statements complained of were relevant to the matter to be determined by the Commission, i. e., the fitness and capability of plaintiffs to perform the function of a contract carrier.
In this jurisdiction, if a statement or communication, given in the course of a judicial proceeding, is relevant to the issue involved therein it is privileged whether it be the testimony of a party or an affidavit filed in the proceedings. (See cases collected in Vol. 3 Hatcher’s Kansas Digest, Rev. Ed. [Perm. Supp.J, Libel & Slander, §36; Vol. 6A West’s Kansas Digest, Libel and Slander, §38.) In the recent case of Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993, the rule of absolute privilege in judicial proceedings was referred to in these terms:
“. . . Judicial proceedings are absolutely privileged communications, and statements in the course of litigation otherwise constituting an action for slander, libel, or one of the invasion of privacy torts involving publication, are immune from such actions. They are privileged communications because of the overriding public interest in a free and independent court system. This absolute privilege extends immunity to parties to private litigation and to anything published in relation to a matter at issue in court, whether said in pleadings, affidavits, depositions or open court. (Weil v. Lynds, 105 Kan. 440, 185 Pac. 51.)”
In the instant case the pleadings disclose that the libelous statements of Hoover were relevant to the issue before the Commission. The affidavit of Hoover was incorporated in a pleading filed by defendants who were party litigants in the quasi-judicial proceedings before the Commission. All of the elements necessary to maintain the defense of absolute privilege are shown.
Despite their admission in their brief that only the end result (i. e., publication in the Commission proceedings) of defendants’ activities caused damage, plaintiffs argue the publication to be privileged must be “in office” and that the incidents thereof are not shown to exist in the instant case. In support of this proposition plaintiffs refer to an article in Vol. IX Columbia Law Review entitled “Absolute Immunity in Defamation: Judicial Proceedings,” pp. 463-490. The author credits the origin of the absolute privilege rule to Lord Mansfield and points out that the publication, as Lord Mansfield said, must be made:
“. . . ‘in office’; in other words, it must be made in the character of judge, juror, witness, litigant, or counsel, in the performance of the public duty or in the exercise of the private right upon which the immunity is based. . . .” (p. 490.)
In the instant case defendants were exercising a private right as litigants in incorporating the libelous statements in a pleading filed in a judicial proceeding before the Commission. Publication was made “in office” as we understand the definition given the term in the article referred to.
Plaintiffs cite only the case of Laun v. Union Electric Co. of Missouri, 350 Mo. 572, 166 S. W. 2d 1065, in support of their position. The Laun case involved an attempt to extend the privilege to defendants who were not parties or otherwise directly involved in the litigation in which the libelous statements were published. Laun alleged that defendants Union Electric Co. of Missouri and a holding company, The North American Company, controlled and owned all of the stock of Union Electric Company of Illinois and the Missouri River Power Company, and because of their control defendant companies caused and procured Union Electric of Illinois and Mississippi River Power Company to file complaints containing the libelous matter in the United States Distriot Court. Since neither of the defendants sued by Laun for libel were parties or witnesses to the underlying action, the Missouri court reasoned that absolute privilege did not extend to them even though they had caused and procured the publication of the defamatory material through immune parties. In the instant case, as we have previously noted, defendants, as parties protestants, where directly involved in the Commission proceedings — the underlying action.
The action herein was in a proper posture for judgment on the pleadings and the pleadings demonstrated that with respect to the publication of the material in question die defendants were protected by absolute privilege.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a judgment foreclosing mechanics’ liens and entering personal judgments against individuals. The basic facts are not in dispute.
On February 18, 1970, the Satanta Feed Yards, Inc., acting through its president, Harold Daniels, entered into a contract with Harper Steel Construction Company for the construction of tanks and hoppers for feeding cattle on its premises. The contract price was $12,999.97. Following the execution of the principal construction contract, Harper Steel Construction Company entered into contracts with six subcontractors for the performance of services and the furnishing of materials and equipment. The labor was alleged to have been performed and the material furnished during the seven-month period following the execution of the principal contract.
In August 1970, Harper Steel Construction Company defaulted on the principal contract after receiving two payments of $3,249.99 each. The last payment was made by Satanta Feed Yards, Inc., on June 5, 1970. Shortly thereafter Harper Steel Construction Company was placed in voluntary bankruptcy and the claimants in this action received notice thereof. The claimants then proceeded to convert their claims into statutory mechanics’ liens. The bankruptcy proceedings were completed and the principal contractor discharged.
On February 11, 1971, one of the claimants, Geis Irrigation Company of Kansas, Inc., brought an action to foreclose its mechanic’s hen against Satanta Feed Yards, Inc.; Harold Daniels, d/b/a Satanta Feed Yards, Inc.; Irene M. Daniels; Harper Steel Construction Company, and William C. Harper, d/b,/a Harper Steel Construction Company. Five other lien claimants were also made parties. They are listed for the purpose of future reference, if necessary, as follows: Builders Service, Inc., rented crane and operator; Smith Sand Company, Inc., furnished crane and operator; Davis, Inc., furnished ready-mix concrete; Russell G. Johnson, d/b/a Johnson Rat Hole Drilling, dug a hole 38 feet by ten feet in connection with the construction, and Star Lumber Company delivered supplies and ready-mix concrete. We here note the plaintiff, Geis Irrigation Company of Kansas, Inc., furnished steel pipe T beams, rebar, and wire mesh.
The controversy was tried by the district court and it found generally in favor of the statutory lien claimants. One of the claimants, Don Dubois, d/b/a Dubois Sand Company, did not answer.
The journal entry of judgment reads in part:
“. . . and that the following named lien claimants be and they are hereby given judgment against Harold Daniels and Irene Daniels, Harold Daniels d/b/a Satanta Feed Yard and Satanta Feed Yards, Inc., in the amounts set opposite each, to-wit: . . .”
There followed the names of the six lien claimants with the amount of their claims. The journal entry of judgment concluded:
"And that in the event the judgment hereinabove rendered is not paid within 30 days from the date hereof, an Order issue to the Sheriff of Haskell County, Kansas, commanding him to sell said premises as upon execution, and to return the proceeds thereof into this Court for application to satisfaction of the costs of this action and the judgments heretofore rendered, all upon confirmation of said sale.”
Satanta Feed Yards, Inc., Harold Daniels and Irene Daniels have appealed. The appellants’ statement of points raise sixteen specified errors, however, many of them are duplications as the same error relates to numerous lien claimants. The numerous alleged errors are considered as a class to avoid repetition.
The appellants first contend the district court erred in rendering judgment against them because the discharge in bankruptcy of the principal contractor precludes enforcement by the subcontractors of their lien rights against the improved property. The point is not well taken.
The general purpose of the mechanic’s lien statute is to protect labor and materialmen. It is when the principal contractor is bankrupt or unable to pay that labor and materialmen need the protection of the statute.
In 9 Am. Jur. 2d, Bankruptcy, § 764, p. 570, we find the following statement:
“. . . When it comes to the matter of bankruptcy of the principal contractor for the work in connection with which the lien claims arise, however, a different aspect is presented. The principal contractor is the person primarily liable for payment of subcontractors, materialmen, and laborers, whose lien rights in case of nonpayment are in the nature of secondary security. For this reason, some authority can be found to the effect that discharge in bankruptcy of the principal contractor precludes enforcement, by subcontractors, material-men, and laborers, of hen rights against the improved property, if the property owner is precluded by the principal contractor’s discharge from shifting the burden back where it belongs. In the light of the purpose of mechanic’s lien latos to protect laborers and materialmen against any such result, however, the more generally accepted view is that discharge in bankruptcy of the principal contractor is no bar to assertion and enforcement of their lien rights against the improved property. . . .” (Emphasis supplied.)
The view that the discharge in bankruptcy of the principal contractor is no bar to the enforcement of subcontractors’ statutory hen rights, is in harmony with the purpose of our mechanic’s hen statute. (K. S. A. 1973 Supp. 60-1103.)
Although this court has not ruled on a question exactly in point, it did, in Manufacturing Co. v. Casualty Co., 114 Kan. 151, 217 Pac. 282, quote with approval the syllabus in an Oklahoma case, which reads:
“ ‘Where on the construction of a building the principal contractor becomes a bankrupt, and the owner requests or consents to an order of the bankruptcy court directing the receiver or trustee of such contractor to complete his contract, and such order is made, the mere fact of bankruptcy of the original contractor will not preclude recovery against the owner, or the enforcement of a lien against the property for services rendered or materials furnished within the scope of the contract.’ [Eberle et al. v. Drennan et al., 40 Okla. 59, Syl. ¶ 10.” (l.c. 154, 155.)
Those wishing to pursue the two theories further should see 98 A. L. R. 329.
The appellants next contend the district court erred in granting judgment against tire defendants Harold Daniels and Irene M. Daniels personally, since all of the claims are in rem against specific property. The point is well taken.
The record shows Irene M. Daniels had no part in the transaction other than as a stockholder in Satanta Feed Yards, Inc. In fact, counsel for appellees conceded in oral argument there was no basis for a personal judgment against her. Neither do we find any basis for a personal judgment against Harold Daniels. It was determined in Sash Co. v. Heiman, 71 Kan. 43, 49, 80 Pac. 16, that a subcontractor seeking the foreclosure of a mechanic’s lien could not recover a personal judgment against the owner of the improved property. Here, Harold Daniels was not the owner. At best, he was only a stockholder, president and general manager of Satanta Feed Yards, Inc., which was the record owner of the premises.
In their joint brief, three of the claimants rely on an oral promise made to Ben Davis, of Davis, Inc. Davis testified he informed Harold Daniels he (Davis) was concerned about Harpers paying methods and Daniels said, “he would see things were taken care of.”
The promise, if made as a promise to pay, was barred by the statute of frauds as it was in the form of a guaranty. In Walton v. Piqua State Bank, 204 Kan. 741, 466 P. 2d 316, this court held:
“A guaranty is a collateral undertaking by one person to answer for the payment of a debt or the performance of some contract or duty in case of default of another person who is liable for such payment or performance in the first instance.
“The fact that one who has made a loan of funds does not assert a claim against a third person until he has failed to receive payment from the person who was principally obligated, indicates that the third person was not looked to primarily for payment and that whatever promise he made for payment is within the statute of frauds as a collateral obligation.
“The fact that the guarantor-promisor derives some personal benefit from a transaction is insufficient to remove his promise from the statute of frauds.
“If the statute of frauds is held to apply only where a promisor guarantees the debt of another in a transaction in which the promisor is completely uninterested, the statute is effectively destroyed. Completely uninterested persons do not guarantee the debts of others.
“It is the duty of one who contends an oral promise is outside the statute of frauds to show or establish facts taking the promise out of the statute.” (¶¶ 3, 4, 5, 6 & 7.)
Also, the promise, even if valid, was made for none other than Ben Davis and formed no basis for a personal judgment in favor of all claimants. There is nothing in the record to support a personal judgment against either of the Daniels.
The appellants contend the district court erred in granting judgment in favor of Geis Irrigation Company of Kansas, Inc., since it was estopped from enforcing the mechanics lien because of its action in making a notation on an invoice statement, “paid by check No. 2056. . . .”
Without going into the many ramifications of the testimony on this question, it is sufficient to state that estoppel is an affirmative defense and it must be set forth affirmatively. (K. S. A. 60-208 [c].) The appellants failed to plead estoppel as a defense. In North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P. 2d 1060, we held:
“The defense of change of position asserted by a defendant amounts to a plea of estoppel in pais, and is an affirmative defense which must be pleaded and proved by the defendant.” (Syl. ¶ 3.)
The appellants contend the district court erroneously allowed mileage or travel time under the mechanic s lien. The statute (K. S. A. 1973 Supp. 60-1101) provides for such allowance, and reads in part:
“Any person furnishing labor, equipment, material, or supplies used or consumed for the improvement of real property, under a contract with the owner or with the trustee, agent or spouse of the owner, shall have a lien upon the property for the labor, equipment, material or supplies furnished, and for the cost of transporting the same, and the Hen shall be preferred to all other liens or encumbrances which are subsequent to the commencement of the furnishing of such labor, equipment, material or supplies at the site of the property subject to the lien. . . .”
Certainly the cost of delivering materials and supplies to the construction site is cost of transportation. The foregoing provision is made applicable to subcontractors by K. S. A. 1973 Supp. 60-1103, which stated:
“(a) Procedure. Any subcontractor or other person furnishing labor, equipment, material or supplies, used or consumed at the site of the property subject to the lien, under an agreement with the contractor, or a subcontractor of the contractor, may obtain a hen for the amount due in the same manner and to the same extent as the original contractor. . . .”
The appellants object to the allowance of the liens for the reason the statutory notice was not properly given. They assert the notices were not sent by restricted registered or certified mail properly carrying the phrase “deliver to addressee only.” They refer to K. S. A. 60-103 for the definition of restricted mail. The difficulty with the appellants’ argument is the fact die statute was amended in 1970 (effective July 1) by the addition of the following exception:
“. . . except that mail on which the addressee is not a natural person or persons the endorsement ‘deliver to addressee only’ may be omitted.”
The principal contractor and Satanta Feed Yards, Inc., are corporations, hence, not being natural persons, the endorsement was unnecessary. The case of Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, 505 P. 2d 640, dealt with notice to natural persons and has no application to the point before us.
Two of the claimants did not attempt to make service by regis tered or certified mail, but personal service of notice was made by the attorneys for the claimants. The statute covering service, K. S. A. 1973 Supp. 60-1103, provides in part:
“.. . . The claimant shall either cause a copy of the lien statement to be served personally upon the owner ... or shall mail a copy of the lien statement to the owner of the property. . . .”
The appellants challenge the sufficiency of the personal service. The record contains ample evidence to support the district court’s findings that proper personal service was made. It would serve no useful purpose to review that evidence and extend this opinion.
The appellants argue with considerable force there was not sufficient proof that the material and supplies furnished found their way into the building. Again, this is a question of fact for the determination of the district court. It found the material and supplies in question were delivered and placed at the building site. There was substantial evidence to support the finding. With respect to the enforcement of a mechanic’s lien, this state follows the rule of presumptive use where material is delivered to the building site. In Seyb-Tucker Lumber and Implement Co. v. Hartley, 197 Kan. 58, 415 P. 2d 217, we held:
“The rule of presumptive use in connection with a mechanic’s lien, that is, that proof of delivery of material to a building site constitutes prima facie evidence, or creates a presumption, of use of the material in the construction or improvement of the building, has been recognized and applied in Kansas, but such rule does not establish a conclusive presumption of use, the presumption being rebuttable, and evidence to the contrary may be shown.” (Syl. ¶ 2.)
Although there was some conflicting evidence, it was for the district court to resolve the question.
A careful examination of the record discloses no trial errors which would justify the granting of a new trial. The judgment is reversed insofar as it purports to grant a personal judgment against Harold Daniels and Irene M. Daniels, and affirmed in all other respects.
It is so ordered.
Fromme, J., not participating.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by Key Securities, Inc. (plaintiff-appellee) against Edward L. and Lillian C. Clithero, Floyd Z. and Mary E. Kelley, Werner F. and Rosalie G. Friess and William N. and Delores L. Pursley (defendants-appellants) for the default of Mid-Continent Securities, Inc., on a $13,500.00 promissory note. The action is predicated upon subordination agreements whereby the defendants pledged various securities to Mid-Continent Securities, Inc., for the benefit of its creditors.
The case was tried to the court without a jury upon issues joined by the pleadings of the parties, and the trial court, without finding or stating the controlling facts, entered judgment for the plaintiffs.
The controlling issue is whether the trial court was required to comply with the provisions of K. S. A. 60-252.
On November 25, 1970, Mid-Continent Securities, Inc., Trans-Financial Corporation, and Key Securities, Inc., executed a letter agreement wherein Mid-Continent agreed to pinchase certain office furniture and equipment from Key Securities for the amount of $13,500.00. The contract of sale was secured by a promissory note and chattel mortgage payable in one year. Mid-Continent further agreed with Key Securities that Mid-Continent would assume the remainder of Key Securities’ office lease commencing on December 1, 1970. Trans-Financial Corporation granted Key Securities the option of converting the promissory note of Mid-Continent into Trans-Financial stock at one-half the public offering price and further granted Key Securities a three year option to purchase additional shares of Trans-Financial stock for one-third the public offering price. This agreement was executed by Gary L. Blevins on behalf of Mid-Continent Securities, Inc., and Trans-Financial Corporation. B. G. Whorton executed the agreement on behalf of Key Securities, Inc.
It appears from the record that Trans-Financial Corporation is the parent company of Mid-Continent Securities, Inc.
On December 1, 1970, three additional instruments were executed by the parties to the earlier letter agreement. The first of these, a bill of sale and assignment of the office furniture and equipment, was executed by B. G. Whorton on behalf of Key Securities, Inc.
The second instrument, a security agreement-promissory note was executed by Gary L. Blevins on behalf of Mid-Continent Securities, Inc. This instrument provided that Mid-Continent would pay Key Securities $13,500.00 plus interest on or before December 1, 1971, as consideration for the office furniture and equipment. It further provided that Key Securities was granted a security interest in the furniture and equipment.
The third instrument was an agreement between Mid-Continent Securities, Inc., Trans-Financial Corporation, and Key Securities, Inc. Gary L. Blevins executed this agreement on behalf of Mid-Continent Securities, Inc., and Trans-Financial Corporation. B. G. Whorton executed the contract on behalf of Key Securities, Inc. This agreement formulated and finalized the promises and agreements between the parties as exhibited in the letter agreement of November 25, 1970.
In this third instrument Mid-Continent and Trans-Financial represented and warranted to Key Securities, Inc., that “Mid-Continent and Trans-Financial are corporations duly organized and validly existing in good standing under the laws of the States of Kansas and Delaware, respectively.”
On December 7, 1970, Mid-Continent Securities, Inc., entered into two subordination agreements, one with William and Delores Pursley, and the other with Werner and Rosalie Friess. In these agreements the Pursleys and the Friesses agreed to subordinate certain securities owned by them to Mid-Continent Securities, Inc. The signatures of the Pursleys and the Friesses to their respective subordinated loan agreements were procured by Mid-Continent Securities, Inc., through the efforts of one J. J. Carson.
On December 8, 1970, Mid-Continent Securities, Inc., entered into a subordination agreement with Edward and Lillian Clithero whereby Mr. and Mrs. Clithero agreed to subordinate certain securities owned by them to Mid-Continent. The signatures of Mr. and Mrs. Clithero to the subordinated loan agreement was procured by Mid-Continent Securities, Inc., through the efforts of J. J. Carson.
On December 23, 1970, Mid-Continent Securities, Inc., entered into* a subordination agreement with Floyd Z. Kelley whereby Mr. Kelley agreed to subordinate certain securities owned by him to Mid-Continent. The signature of Mr. Kelley to* the subordinated loan agreement was procured by Mid-Continent Securities, Inc., through the efforts of J. J. Carson.
During the solicitation of each of the four subordinated loan agreements, J. J. Carson represented to the lenders, i. e., the appellants:
1. That the subordinated loans were for the express purpose of meeting the net capital requirements of a new security broker-dealership which was seeking a license from the Kansas Securities Commissioner;
2. That the corporation to which the subordinated loans were made, i. e., Mid-Continent Securities, Inc., had no assets and no existing liabilities; and
3. That the lenders, i. <?., the appellants, would have no liability under the subordinated loan agreements unless and until a new broker-dealership was formed.
In or around December 1970 or January 1971, an official hearing was held by the Kansas Securities Commissioner on the application of Mid-Continent Securities, Inc., for a security broker-dealership. At the hearing the commissioner ruled:
1. That the subordination agreements were themselves securities,
2. That the subordination agreements had been illegally solicited, and
3. That the subordination agreements were not marketable and, thus, could not be used as net capital.
Because of this the application of Mid-Continent was withdrawn and the subordinated securities were returned to the lenders by direction of the commissioner. From that point on Mid-Continent and the lenders mutually considered the agreements to be cancelled.
On December 1, 1971, the promissory note of Mid-Continent Securities, Inc., to Key Securities, Inc., became due and owing. B. G. Whorton contacted Donald Alldritt, president of Mid-Continent, and demanded payment. Alldritt assured Whorton the note would be paid.
On or about December 22, 1971, a fire broke out in the office suite wherein the furniture and fixtures, which were the subject of the promissory note, were located. As a result of the fire the furniture and fixtures were destroyed.
On January 25, 1972, Key Securities, Inc., commenced this action against the appellants. The case was heard on July 20, 1972, in the district court of Sedgwick County, Kansas, Division 1, before Judge William Kandt. After reviewing the evidence, arguments, and briefs of counsels, the trial court ruled that Key Securities, Inc., could recover from the appellants based upon the subordinated loan agreements and so entered judgment for the appellee, Key Securities.
Appeal has been duly perfected from a denial of the appellants’ post trial motions, and the judgment rendered in the trial court.
While the types and amounts of the securities pledged varied with each of the four subordination agreements which are the subject of this action, the same forms were used in each. These agreements, with the names, dates and amounts deleted read as follows:
“On This Day, . . . party of the first part and Mid-Continent Securities, Incorporated, a Kansas corporation, party of die second part, agree as follows:
“(1) On this day, party of the first part has loaned to party of the second part securities and/or cash described on the attached Exhibit A, such securities and/or cash in the sum of . . . such loan bearing interest at the rate of eight & one half percent (8½%) per annum, with principal payable to the order of party of the first part.
“(2) That any right that party of the first part shall have to demand or receive payment or return of the securities and/or cash loaned, as hereinabove set forth, is hereby subordinated to the claims of all present and future general creditors of party of the first part. Party of the first part also agrees to subordinate not only the principal amount of this loan but also any interest thereon that becomes due and is unpaid.
“(3) That this agreement evidence hereby is not subject to cancellation at the will of either party hereto and that this agreement is for a term of thirteen (13) months from the date hereof.
“(4) That this agreement shall not be terminated, rescinded or modified by mutual consent or otherwise, if the effect thereof would be to make this agreement inconsistent with the conditions of either Rule I5c3-1 of the Rules and Regulations under the Securities Exchange Act of 1934, or Article 81-3 of the Regulations of the Securities Commissioner of the State of Kansas or if the effect thereof would be to reduce the net capital of Mid-Continent Securities, Incorporated, below the amount required by said Rule.
“(5) That no default in the payment of interest or in the performance of any other covenant or condition by Mid-Continent Securites, Incorporated, shall have the effect of accelerating the maturity of the indebtedness.
“(6) Party of the first part further acknowledges the securities and/or cash that party of the first part has loaned to party of the second part, under this agreement, and that a receipt for same and a letter have been received by party of the first part and that it is so noted on the receipt that such are being loaned by party of the first part to party of the second part under that agreement and conditions of this Subordination Agreement.
“(7) That the securities and/or cash loaned to Mid-Continent Securities, Incorporated, pursuant to the provisions of this agreement may be used and dealt with by Mid-Continent Securities, Incorporated, as part of its capital and shall be subject to the risks of the business of said Mid-Continent Securities, Incorporated.
“Executed This . . . day of December, 1970, and this agreement shall thereby be binding and enforceable upon part of the first part, his or its creditors, heirs, executors, administrators and assigns.”
The appellants assert, among other points, that the trial court erred because its decision is contrary to the weight of the evidence presented at the trial.
Most of the appellants’ brief is focused upon an attempt to convince this court it should determine the controlling facts in the case. While the record consists of 86 pages, less than four pages are devoted to the testimony of the various witnesses.
R. G. Whorton, president of Key-Securities, Inc., a broker-dealer, testified he sold office equipment to Mid-Continent Securities, headed by Don Alldritt, which was the only Mid-Continent Securities Company he knew, for a price of $13,500.00. He said he always thought he was dealing with the old Mid-Continent headed by All-dritt, and was never aware that a new corporation called Mid-Continent Securities, Inc., was formed which never obtained a license as a broker-dealer. Further in cross-examination Mr. Whorton again stated, as far as he was concerned, he was dealing with the old corporation.
An auditor by the name of Galen Gose testified that he conducted an audit of Mid-Continent Securities, Inc., as of December 29,1970. The audit showed no furniture among the assets and no debts to Key-Securities. The information furnished to the auditor was furnished by Don Alldritt. There was a suggestion to the auditor that the furniture would be subsequently transferred to the company if the deal went through. A reading of his testimony shows that he considered Mid-Continent Securities, Inc., a shell corporation seeking to be licensed as a broker-dealer.
Don Alldritt’s testimony indicates that both he and Mr. Whorton considered the original contract to be between the old corporation and the plaintiff, and that the new corporation would or might assume the obligation. Alldritt further testified that either in December 1970 or January 1971, the subordinated securities were returned to the subordinate holders at the direction of the Kansas Securities Commissioner’s office. He testified this action terminated the subordination agreements.
J. J. Carson testified that he was the agent of Trans-Financial Corporation, and that he solicited and obtained the subordination agreements involved in this lawsuit. Mr. Carson’s testimony was consistent with the testimony of the appellants heretofore related in the statement of facts. Mr. Carson said he first learned of the promissory note in question when this lawsuit came about.
Much of the testimony in the record concerning the Kansas Securities Commissioner and his action with respect to the subordinated stock is hearsay.
A foundation fact necessary to determine this lawsuit is whether there were two corporations named Mid-Continent Securities, Inc. And, if so, whether the note in question was given by the old Mid-Continent or the new one. It would also be necessary to determine whether the appellants entered into their subordination agreements with the old or the new company.
K. S. A. 60-252 provides in part as follows:
“Findings by the court, (a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the judge shall find, and either orally or in writing shall state, the controlling facts, and judgment shall be entered pursuant to section 60-258; . . .”
Absent the foregoing statute, the trial court’s judgment would inferentially cany the prerequisite findings of fact in favor of the appellee.
In Andrews v. Board of County Commissioners, 207 Kan. 548, 485 P. 2d 1260, this court said:
“The findings required by K. S. A. 60-252 (a) should be sufficient to resolve the issues, and in addition they should be adequate to advise the parties, as well as the appellate court, of the reasons for the decision and the standards applied by the court which governed its determination and persuaded it to arrive at the decision. These requirements are apparent in the statute itself.
“The purpose of the requirements in the statute is similar to the purpose for findings by administrative agencies. See Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572; and Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 482 P. 2d 1.” (pp. 555, 556.)
The provisions in 60-252 (a), supra, were held to be mandatory, in Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442, where the court held:
“In civil actions tried to the court the rules requiring expression of controlling findings of fact (K. S. A. 60-252 [a]) and controlling principles of law (Rule No. 116, 209 Kan. xxxviii) are designed as an aid to the integrity of the decision. They are mandatory and should be fairly observed by the trial judge.” (p. 772, Syl. ¶ 2.)
Similarly in Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993, this court reversed where the trial court failed to make findings as to the controlling facts, under the circumstances in the case, because they were necessary to a determination of the appeal.
Failure to make findings as to the controlling facts under the circumstances in this case preclude review, because they are necessary to a determination of the appeal.
The judgment of the lower court is reversed and the case is remanded for a new trial.
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The opinion of the court was delivered by
Owsley, J.:
Plaintiffs seek a mandatory injunction restraining defendants from completing and occupying a building and ordering them to remove tire building from certain lots in Pefherbridge Subdivision in Leavenworth County, Kansas, claiming violation of restrictive covenants. The trial court sustained defendants’ motion for summary judgment and plaintiffs appeal.
Plaintiffs allege in their petition they are the owners, of certain lots in said subdivision; that all the lots in said subdivision are subject to specific covenants and restrictions; and that said restrictions provide as lot owners they may prosecute any attempt to violate said restrictions by proceedings in law or equity. The petition further alleges:
“6. The restrictions provide that no structure shall be moved on to any lot in said subdivision unless it meets with the approval of the owners or the survivors or survivor, and any dwelling erected wholly or partially on any of the lots or part or parts thereof shall cost not less than $5,000.00.
“7. Said defendants have caused to be moved a residence on said lots within the past few months which up to this time has not been entirely completed; that said buildings have to be moved and constructed in such a manner that same violates certain covenants and restrictions in paragraphs 8 and 10 of said restrictions.”
Paragraphs 8 and 10 of the restrictions read:
“VIII. USE OF LAND
“No structure shall be moved onto any lot in said subdivision unless it meets with the approval of the OWNERS or the survivors or survivor, and no residence of a temporary character shall be permitted on any lot.”
“X. COST AND SIZE OF DWELLING
“Any dwelling erected wholly or partially on any of the lots or part or parts thereof, as shown on the recorded plat, shall cost not less than the amount listed below;
"FIVE THOUSAND DOLLARS
“The above cost refers to the cost of dwelling structure only, including any garage which is an integral part of the house.”
After answering plaintiffs’ petition, defendants filed a motion for summary judgment, stating they had obtained the approval of the “OWNERS” as required by paragraph 8 of the restrictive covenants and that the structure placed on the property exceeded the value of $5,000.00 as required by paragraph 10 of said restrictive covenants. Attached to defendants’ motion was the affidavit of Edna Petherbridge which stated in part:
“4. That said permission was granted by affiant’s husband, John E. Petherbridge, and your affiant for approval to move a structure onto Lots Seventeen (17) and Eighteen (18), Block Two (2), Petherbridge Subdivision, City of Basehor, Leavenworth County, Kansas. Your affiant states that he personally discussed this matter on the phone with A. K. Mussett and thereafter, confirmed permission in writing by return letter original letter dated from A. K. Mussett January 25th, 1970.
“5. Your affiant, at the present time, has a copy of said letter and permission that she signed and affiant states that the letter attached to this affidavit is the letter that she personally signed. Affiant further states that she is personally acquainted with John E. Petherbridge but that John E. Petherbridge, affiant’s husband, is now deceased. That prior to his demise, he specifically approved as one of the owners in the dedication of Petherbridge Subdivision, Block Two (2), City of Basehor, Leavenworth County, Kansas, A. K. Mussett moving a structure onto Lots Seventeen (17) and Eighteen (18), in Petherbridge Subdivision, Block Two (2).
“6. Affiant further states that John E. Petherbridge, later confirmed said verbal authorization in writing and that your affiant witnessed the said John E. Petherbridge sign the attached approval to move a house on Lots Seventeen (17) and Eighteen (18), Petherbridge Subdivision, Block Two (2); that the signature appearing thereon is the signature of affiant’s husband, John E. Petherbridge, and that she personally witnessed John E. Petherbridge signing the same.”
An affidavit of defendant A. K. Mussett was filed, which disclosed Edna Petherbridge was the sole survivor of the original owners, John E. Petherbridge, Mary B. Petherbridge, Ripley Petherbridge and Edna Petherbridge. Also attached to the motion was the affidavit of defendants Glen and Linda Mussett, that the cost of the structure was $10,163.87. Plaintiffs filed several affidavits in opposition to defendants’ motion for summary judgment, but examination of plaintiffs’ affidavits fails to reveal any statement of fact which is contrary to facts disclosed by the affidavits filed by defendants.
At this point in the proceedings the court granted defendants’ motion for summary judgment and. in its memorandum decision stated:
“From a full and careful consideration of the pleadings, answers to interrogatories, admissions on file, and the affidavits filed by the parties, it is the conclusion of this Court that there is no genuine issue as to any material fact and that the defendants are entitled to a judgment as a matter of law. It is the further conclusion of this Court that the defendants have complied with the provisions of paragraphs eight and ten of the restrictions of Petherbridge Subdivision, Block Two, Leavenworth County, Kansas.
“In regard to the restrictions in question, it is the conclusion of this Court that said restrictions (as contended by the plaintiffs) run with the land and are binding on all purchasers. However, paragraph one of the restrictions clearly specifies that the members of the Petherbridge family will be referred to in said documents as the OWNERS (in capital letters). It has been established by affidavit that Edna Petherbridge is the survivor of the OWNERS and that she gave her approval as required by the provisions of paragraph eight of the restrictions. Also it has been established by affidavit that the value of the structure in question is in excess of five thousand dollars as required by the provisions of paragraph ten of the restrictions.”
On appeal, plaintiffs contend the motion should not have been granted because genuine issues of material fact exist and the trial court permitted trial by affidavit. K. S. A. 60-256 provides:
“(a) For claimant. A party seeking to recover upon a claim, counter claim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of twenty (20) days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
“(e) Form of affidavits; further testimony. Supporting and opposing affi davits shaE be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shaE be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
“(f) When affidavits are unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the apphcation for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
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 he. 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. (Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770.)
There were only two issues of fact in this case. First, did defendants violate paragraph 8 of the restrictions relative to obtaining permission from the owners to move a structure onto the lots. Second, did defendants violate paragraph 10 of the restrictions relative to prohibiting erection of a dwelling costing less than $5,000.00. The only evidence before the court was unopposed affidavits which disclosed defendants had not violated the restrictions and in fact had complied with them. No depositions or admissions were filed in this action and the interrogatories on file did not disclose any material facts related to the issues before the court.
The issue on appeal is based on the determination of the duties of a party against whom an affidavit supported motion for summary judgment is filed. K. S. A. 60-256 provides the non-moving party may file affidavits in opposition to the affidavits of the moving party; or the non-moving party may request time to obtain opposition affidavits or to make additional discovery. The statute also provides the non-moving party may file an affidavit that he cannot, for reasons stated, obtain and present by affidavit facts essential to justify his opposition. The plaintiffs in this case failed to utilize any of these alternatives. They did not file affidavits in opposition to the material facts disclosed by defendants’ affidavits. The plaintiffs did not request additional time to obtain affidavits or to permit further discovery, nor did plaintiffs file an affidavit setting forth reasons why they could not obtain or present by affidavit facts essential to justify their opposition. The facts disclosed by- defendants’ affidavits were challenged only by the allegations of plaintiffs’ petition.
The federal equivalent to K. S. A. 60-256 is Rule 56 of the Federal Rules of Civil Procedure. An amendment to Rule 56 in 1963 eliminated the right of a non-moving party to rely upon allegations of a pleading to oppose facts stated by affidavit in support of a motion for summary judgment. Although this provision is not contained in our code we have firmly established the rule by case law. (Brick v. City of Wichita, 195 Kan. 206, 210, 403 P. 2d 964; Meyer, Executor v. Benelli, 197 Kan. 98, 100, 415 P. 2d 415.) The rule is intended to permit a party to pierce the allegations of fact in an opponents pleadings. If a party were not permitted to go beyond the allegations of fact in an opponent’s pleadings there would be no point to the summary judgment procedure, for it would merely duplicate the old common-law demurrer or motion for judgment on the pleadings. No matter what the true facts might be or how readily proved, absent a duty on non-moving party to respond to supporting affidavits, the moving party would be forced to incur the expense and delay of a trial if the non-moving party’s pleadings were legally sufficient. It is our, conclusion that allegations in pleadings will not sustain a genuine issue of fact when opposed by uncontradicted affidavits supporting a motion for summary judgment.
We agree with the trial court that there is no genuine issue of material fact and defendants are entitled to judgment as a matter of law.
Judgment is affirmed.
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Per Curiam:
This is an appeal from an order denying post conviction relief under K. S. A. 60-1507, wherein the appellant attacks the constitutionality of the habitual criminal statute applicable at the time of his conviction in 1968, K. S. A. 21-107a.
The appellant claims the habitual criminal statute’s application resulted in cruel and unusual punishment; a denial of due process of law; a denial of equal protection of the law; that the statute is an unconstitutional delegation to the prosecutor of judicial power, and that its application is a violation of the separation of powers doctrine.
We have oarefully considered the numerous authorities cited by the appellant and the orderly and the well-reasoned arguments of his counsel, but find no merit in his contentions. The constitutionality of this statute and the principle of increased penalties for repeater defendants has been before this court many times. We see no reason to cite precedents, or to elaborate upon the questions raised.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an action to enjoin the levying of a special assessment by defendant city against the plaintiff’s real estate for a portion of the costs of the establishment of a lateral sanitary sewer district and the construction of a sewer. The trial court granted an injunction and defendant city appeals.
As we view the case, the basic issue is whether plaintiff’s evidence is sufficient to support the trial court’s determination that the method employed by the city in levying the special assessments was arbitrary and unreasonable to the extent that palpable injustice resulted which justified injunctive relief.
Plaintiff school district’s property is comprised of 28 acres, approximately 3 acres of which is used for classroom purposes.
On the recommendation of the city engineering department, the city laid out the sewer district boundaries and levied the assessments pursuant to the provisions of the General Improvement and Assessment Law of 1957 (G. S. 1957 Supp. 12-6a01, et seq. [now K. S. A. and K. S. A. 1973 Supp.]). Under the provisions of K. S. A. 12-6a08, pertaining to assessment plans, the city selected a per square foot plan for levying the assessment against all lots and pieces of land within the improvement district. The total cost of the project was $416,000.00 which, under application of the square foot plan, resulted in an assessment factor of approximately four cents per square foot. Utilizing this formula the assessment against plaintiff’s land amounted to $38,537.46.
Relying on the testimony of a real estate broker, Loren Hohman, a witness for plaintiff, the trial court found that all properties within the benefit district were not similarly benefited and specifically that one property identified by Hohman as the Reibstein tract, was enhanced in value over three hundred percent; whereas plaintiff’s land was increased in value only twenty percent. On this evidence the trial court found that the use of the square foot assessment plan was unreasonable and failed to meet the requirements of 12-6a08. While the trial court made extensive findings, its judgment rests on Hohman’s testimony concerning the properties of plaintiff and Reibstein. Other than a general statement that some areas in the district benefited more than plaintiff’s property — Hohman’s testimony was confined to the Reibstein and plaintiff properties.
On appeal the city contends the trial court erred in admitting evidence of the percentage use of the school district’s property and evidence of its benefit from the lateral sewer in proportion to its costs or in relation to the benefits and costs of other undeveloped properties in the district. These contentions are aimed at the admission of the testimony of Dr. Bruce Henoch, superintendent of plaintiff school district, and Hohman. Henoch’s testimony consisted largely of a description of the school buildings, the school grounds and school enrollment trends. His testimony concerning the present use of the school property was relevant. Neither do we find Hohman’s testimony to be irrelevant; however, we give it a much different effect than that ascribed to it by the trial court.
The substance of plaintiff’s contentions on appeal appears in specifications Nos. 3, 4 and 5 which read as follows:
“3. The trial court erred in finding certain properties and commercial tracts in the District were benefited materially and substantially more than the plaintiff’s properties by the installation of the Lateral Sanitary Sewer.
“4. The lower Court erred in finding that the defendant’s method of apportionment and assessment, i. e., assessing the cost equally per square foot against all lots and pieces of land within the improvement district, resulted in palpable injustice and in finding that the burdens imposed thereby were entirely disproportionate to the benefits received.
“5. The trial court erred in finding that the utilization of the square foot assessment plan in the instant case failed to satisfy the statutory requirements that the apportionment be fair and reasonable.”
As we have previously indicated, City Engineer Terhune testified that he had recommended that the city proceed under 12-6a01, et seq. In an affidavit filed in support of city’s motion for summary judgment Terhune stated that the assessments were formulated under that portion of 12-6a08 which expressly allows the use of the square foot method of assessment, which in his opinion was an equitable method of assessment within the improvement district, particularly between residentially and educationally used properties. K. S. A. 12-6a08 referred to by engineer Terhune reads as follows:
“The portion of the cost of any improvement to be assessed against the property in the improvement district as determined in section 12-6a04 of the General Statutes Supplement of 1957, as amended, shall be apportioned against said property in accordance with the special benefits accruing thereto by reasons of such improvement. Said cost may be assessed equally per front foot or per square foot against all lots and pieces of land within such improvement district or assessed against such property according to the value of said lots and pieces of land therein, such value to be determined by the governing body of said city with or without regard to the buildings and improvements thereon or said cost may be determined and fixed on the basis of any other reasonable assessment plan which will result in imposing substantially equal burdens or shares of the cost upon property similarly benefited. The governing body may from time to time determine and establish by ordinance reasonable general classifications and formulae for the apportionment of tire cost between the city and the area to be assessed, and the methods of assessing the special benefits, for various classes of improvements.”
In order to put the issues raised herein in proper perspective we deem it necessary to consider the overall scope and general legislative intendment to be gleaned from the General Improvement and Assessment Law of 1957 (G. S. 1957 Supp., now K. S. A. and K. S. A. 1973 Supp. 12-6a01 to 12-6al8, inch), hereafter referred to as the 1957 Act. Several sections have been amended since 1957, but none of the amendments are pertinent to the issues herein. Since its enactment proceedings under the 1957 Act have been considered by this court in two cases (Snyder Realty Co. v. City of Overland Park, 208 Kan. 273, 492 P. 2d 187 and Giddings v. City of Pittsburg, 197 Kan. 777, 421 P. 2d 181). While both of the cases mentioned dealt primarily with the composition of the improvement districts in each case, much of what was said therein concerning the general import of the 1957 Act, bears upon the central problem in the instant case.
The 1957 Act, under the provisions of section 12-6a02 coupled with the definitions set forth in 12-6a01, grants broad authority for undertaking all types of municipal improvements initiated either by petition or by a resolution of the city governing body as to the advisability of the proposed improvement. Obviously, with respect to procedure the Act is intended to be complete within itself. It is declared to be a complete alternative to all other methods provided by law whereby the governing body of any city may undertake any improvements or municipal works. In this regard section 12-6a02 reads in pertinent part:
“As a complete alternative to all other methods provided by law, the governing body of any city is hereby authorized to make, or cause to be made, municipal works or improvements which confer a special benefit upon property within a definable area of the city and may levy and collect special assessments upon property in the area deemed by the governing body to be benefited by such improvement for special benefits conferred upon such property by any such municipal work or improvement and to provide for the payment of all or any part of the cost of the work or improvement out of the proceeds of such special assessments as hereinafter provided. . . .”
The aspect of the Act as a complete alternative to other statutory methods was recognized and given effect by this court on the first appearance of the Act before us in Giddings v. City of Pittsburg, supra.
Section 12-6a04 contains provisions relating to notice and hearing, provides for a resolution determining advisability and under subsections 2 (d) and (e) requires that notice be given of the extent of the proposed improvement district to be assessed and the proposed method of assessment.
Section 12-6a05 provides further limiting safeguards with respect to a hearing on the advisability of any improvement. Section 12-6a06 provides for the procedure in adopting the resolution of authorization and prescribes the method for lodging protests. Sections 12-6a08, 12-6a09 and 12-6al0 deal with the assessment plan, assessment rolls, including provisions for notice and hearing and objections and the levying of assessments.
In the instant case plaintiff raises no error or irregularity regarding the procedural steps in the course of the proceedings. We are not informed whether protests or objections were lodged along the way. The record indicates the city carefully followed the procedures outlined in the various sections of the Act which we have mentioned. On May 16, 1967, the city adopted Resolution No. 1150 declaring a need for a lateral sewer in accordance with the provisions of 12-6a04 and in conformance with subsection (1) (e) announced the proposed method of assessments — “Area basis equally per square foot contained within each lot, parcel or tract of land within the improvement district.” Resolution No. 1150 was followed by the adoption on May 22, 1967, of Resolution No. 1151 — the Resolution of Authorization — and in compliance with the statute the proposed method of square foot assessment was again spelled out. Finally, on October 8, 1971, in accordance with 12-6a09 the city adopted Ordinance No. 13152 apportioning and levying the special assessments and establishing the assessment rolls. The method of assessment was again stated.
We are convinced from our examination of the proceedings, coupled with the testimony of Engineer Terhune, that the boundaries of the benefit district were established in the first instance so as to include only tracts and parcels of land which would be similarly benefited by the availability of the lateral sewer. On this point Terhune’s testimony is narrated as follows:
", . . The boundaries of lateral sanitary sewer district number 424 were determined by ascertaining if a particular piece of property had the availability of lateral to it and if so, it would be included in the district. . . .”
Thus, it was established that insofar as availability of the lateral sewer for use, all tracts included within the district were similarly situated as distinguished from the situation in the case of Hurley v. Board of County Commissioners, 188 Kan. 60, 360 P. 2d 1110, which will be discussed hereafter. With respect to plaintiffs land the trial court found:
“There are no physical or topographical defects in plaintiff’s properties which would create any problem in receiving full utilization of the sewer.”
We turn now to the testimony of real estate broker Hohman, upon which the trial court based its decision. Hohman testified that plaintiff’s and the Reibstein tracts were both of the approximate value of $2,500 an acre immediately prior to the construction of the sewer. Thus, if the assessment method selected by the city had been according to the value of the tracts, which is also a permissible method under 12-6a08, the assessments against plaintiff’s land and the Reibstein tract would have been proportionally the same as that arrived at by the square foot method. With respect to increase in value resulting from construction of the sewer, Hohman testified plaintiff’s land increased in value from $2,500 to $3,000 or $500 per acre. Concerning the Reibstein tract, Hohman testified it was worth $2,500 per acre or $50,000.00 prior to the construction of the sewer. Concerning the increase in value of the Reibstein tract following installation of the sewer, Hohman’s testimony was:
“Q. All right. I will ask you, sir, what your opinion might be as to the market value of that real estate immediately after the construction and installation of the sewer line.
“A. Well, it’s not only my opinion, but it’s a known fact, that property sold for $176,000 after the sewer was installed.”
When questioned further concerning plaintiffs property, Hohman’s testimony appears as follows:
“Q. Is there anything about this school tract which is inherently incompatible with a residential use or a motel use or a commercial use at some future date, 50 years in the future? Is there anything about physical terrain or topography—
“A. No.
“Q. —that makes this tract such that it could never be used for something other than for school?
“A. No, it could easily be used for something else other than a school.”
Following Hohman’s verbatim testimony this narrative excerpt is reproduced in the record:
“The witness felt that if the school grounds were vacated, the only other use which the school ground would be strictly residential because of its limited access to the highway.”
While Hohman concedes there is nothing inherently incompatible with plaintiffs property for residential, motel or commercial use in the future, he, nevertheless, restricts its use to residential because of limited access to the highway. Hohman’s testimony in this regard is not only inconsistent within itself, but incompatible with that of plaintiffs superintendent Dr. Henoch who testified that 6.8 acres of plaintiffs land is presently used as a parking lot to accommodate the football field. If accessible for a football crowd requiring a 6.8 acre parking lot it must be inferred plaintiffs property would have the accessibility necessary for apartment use. While Hohman’s testimony concerning highway accessibility might foreclose the possibility of commercial development of plaintiffs land under present conditions it does not appear that plaintiffs land, if usage for school purposes were abandoned, would be unadaptable for apartment use which we are informed is the development of the Reibstein tract.
Viewing the whole of Hohman’s testimony in the light most favorable to plaintiff we are convinced that his opinion was based essentially on the present use of plaintiffs land. This approach flies in the face of the basic principle threaded through our decisions dealing with special assessments, regardless of which of the several statutory proceedings is used, that benefit from the improvement is presumed to inure to the property itself rather than to the particular use being made of it at the time. The test is not whether the property is enhanced in value for the particular purpose for which it is being devoted at the time of the assessment, but whether the property is enhanced in value for any purpose. (Snyder Realty Co. v. City of Overland Park, supra; Mullins v. City of El Dorado, 200 Kan. 336, 436 P. 2d 837; and Giddings v. City of Pittsburg, supra.)
Based on Hohman’s testimony the trial court found:
“The uncontroverted evidence discloses that all properties within the benefit district were not similarly benefited and that plaintiff’s properties were enhanced in value 20 per cent while the Reibstein tract was increased in value over 300 per cent by reason of the installation of the sewer.”
On the other hand, with respect to the condition of plaintiff’s land, as we have previously noted, the trial court found there were no physical or topographical defects which would bar full utilization of the sewer.
It appears the trial court in reaching its conclusion tested the benefit to plaintiff’s property on the basis of its use for educational or residential purposes rather than on its enhancement in value for any purpose. The record indicates that out of more than 400 parcels levied upon plaintiff latched on to one tract that had been sold and employed this one isolated sale in an attempt to demonstrate that benefits were so disproportionate as to justify injunctive relief. According to Hohmans testimony the value of plaintiff’s property and the Reibstein tract were equal — $2,500 per acre at the time of the assessment. The record indicates, as the trial court found, that there was nothing concerning plaintiff’s property that prevented full utilization of the sewer. In other words, plaintiffs property was as adaptable to utilization of the sewer as was the Reibstein tract at the time the assessment method was proposed. The sole fact that the Reibstein tract, apparently because of a change in use, was later sold at a price much greater than the value at the time of the selection of the assessment method does not operate so as to create disproportionate benefits resulting in palpable injustice.
The factual situation in the instant case is not analogous to that in Hurley v. Board of County Commissioners, supra, wherein a per acre area assessment method was found to be palpably unjust because plaintiffs land was shown to be rough, rocky, unimproved and located a mile and one-half from the sewer as opposed to other tracts within the district which were already developed for commercial and residential use.
Neither are the facts herein comparable to the facts in Strickland v. City of Wichita, 203 Kan. 954, 457 P. 2d 162, wherein a square foot method based on zoning was held to be an arbitrary assessment where the appraisers based the appraisal solely on zoning without regard to actual land values despite wide discrepancies in the value of lands within the same zoning. Evidence in the instant case showed the per acre values of plaintiff’s and Reibstein’s land to be equal at the time the square foot method was selected.
Although, as we have indicated, the 1957 Act provides a complete alternative to other methods of creating benefit districts and levying special assessments, as in proceedings under other statutes, the questions of the existence and extent of special benefits are questions of fact to be determined by the authorized governing body. The exercise of the governing body’s judgment in this regard is presumed to be legal, equitable and just and only if palpable injustice results from the method applied so that the burden imposed is entirely disproportionate to benefits received will courts intercede. (Mullins v. City of El Dorado, supra.)
The square foot plan of assessment is one of those specifically authorized by 12-6a08, it was selected in May 1967 by the city governing body based upon the premise that there would be comparable utilization of the sewer facilities by the tracts included within the benefit district in the composition thereof as laid out by the city engineer. The fact that one tract, equal in per acre value to that of plaintiffs land at the time, was later sold at a greatly enhanced price is not sufficient to sustain the plaintiff’s burden in attempting to overcome the action of the city governing body. Applying the principle that benefits inure to the property itself rather than to the present particular use thereof it cannot be said that the two properties themselves were not similarly benefited.
Our holding herein is not to be construed as eroding the well-established principle that the judgment of a governing body, though the exercise thereof is authorized by statute, may not be exercised arbitrarily, unreasonably or fraudulently. This admonition, so often iterated in our cases, is reasserted in substance in the language of 12-6a08 requiring that equal burdens or shares of costs be imposed upon property similarly benefited. Our decision herein is limited to the effect that a showing by a plaintiff property owner that of the more than 400 assessed tracts included in a benefit district, one tract, which was initially of equal per acre value to that of plaintiff’s, was subsequently sold at a greatly enhanced price is insufficient to establish that the assessment plan used imposed a burden entirely disproportionate to the benefits firming to plaintiffs land and other lands similarly situated so as to result in palpable injustice.
The judgment is reversed.
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Hie opinion of the court was delivered by
Kaul, J.:
This was an action to recover money paid by mistake. The case was submitted to the trial court on a stipulation of the facts and the discovery depositions of two witnesses which, the parties agreed, might be considered by the court.
The mistake in question involved the value of the common stock of two corporations, one Midwestern Financial Corporation of Kansas, a relatively small insurance holding company; the other, Midwestern Financial Corporation, a large concern, whose stock was traded on the New York Stock Exchange. While we are not informed of the corporate domicile of Midwestern Financial Corporation, we shall, for purposes of clarity and convenience, refer to it as Midwestern of New York and the other corporation as Midwestern of Kansas.
Plaintiff-appellee, Westamerica Securities, Inc., conducts a brokerage business consisting of the buying and selling of stocks and securities. Its business office is located in Emporia. Defendants are husband and wife and reside in Leoti.
In 1963 a salesman for Investor's Reserve Life Insurance Company called upon defendants. As a result of the contact, defendants purchased an insurance package from the salesman. The package consisted of life insurance policies and 500 shares of die common stock of Midwestern of Kansas which, as a holding company, owned the Investors Reserve Life Insurance Company. The sales pitch used by tire salesman in making the sale to defendants was that the dividends on the stock of the holding company would be applied to the premiums on the insurance policies to the effect that the insurance contracts would be entirely, or in large part, self-supporting. Prior to this occasion the defendants had never before purchased or sold stock in any corporation.
In May of 1989, defendant Worth Cornelius attended a meeting of stockholders of Midwestern of Kansas at Ulysses. The defendant and other stockholders were told by a representative of the company that it and its subsidiary, Investors Reserve Life Insurance Com pany, had been sold to Centennial Life Insurance Company. The representative gave an optimistic view of the future of Midwestern of Kansas.
W. J. Yotter operated an insurance agency in Leoti and handled insurance business for defendants. Mr. Yotter was also, and had been since 1955, an agent and representative of plaintiff. In this capacity, Yotter handled purchases and sales of stock and mutual funds. On several occasions, Yotter had discussed investment in mutual funds with defendants. In July of 1969, Yotter invited Worth Cornelius to bring to his office the insurance policies issued by Investors Reserve Life and the stock in the holding company. Yotter proposed to liquidate the insurance contracts and sell the stock. Yotter prepared a form furnished by plaintiff which provided that defendants offered to sell 500 shares of Midwestern of Kansas. The form was executed by defendants on July 7, 1969, and was in turn forwarded by Yotter, together with the stock certificates, to plaintiff’s office in Emporia. Plaintiff sold the stock in two separate sales; 400 shares were sold at $10.25 per share and the remaining 100 shares were sold in a separate sale for $10.37 per share. After deducting expenses and costs of sale, plaintiff remitted a total net of $5,115.07 for the two sales. The remittance to defendants was transmitted with reports of each sale disclosing the price per share. At the time defendants received the reports of the sales, Yotter was on a trip to Europe. Upon his return he was contacted by defendants who inquired whether the returns of the sales were correct. Defendants were assured by Yotter that plaintiff did not make mistakes.
A few days after the returns of the sales were received by defendants they were contacted by a Mr. Hendricks, a representative of Key Securities, a brokerage firm operating in Wichita. Defendants made inquiry of Hendricks concerning the sale price of Midwestern of Kansas and were informed that it was $1.50 per share. Defendants decided to buy 1170 shares through Hendricks at a price of $1.50 per share. On August 29, 1969, defendant Worth Cornelius delivered three stock certificates aggregating 1170 shares of Midwestern of Kansas to Yotter and offered to sell at a price not less than $9.50 per share. Yotter again prepared the forms for the offer to sell and had defendants execute the stock certificates in blank. Yotter then forwarded the certificates to plaintiff’s office in Emporia with a letter of transmittal directing that the sale was offered for a price not less than $9.50 per share. On September 3, 1969, plaintiff reported the sale of. the 1170 shares. The sale was made in three parts; 1000 shares at $10.87 per share; 100 shares at $11.25 per share; and 70 shares at $11.00 per share. After deducting commissions, taxes and costs a net total of $12,514.14 was remitted by plaintiff to defendants. It was stipulated that the proceeds of the stock sales were expended by defendants in financing two years of university education for two of their children and the balance used in payment of debts.
It was further stipulated that at all time during the transactions the stock of Midwestern of Kansas was selling for $1.50 per share and the stock of Midwestern of New York was selling for a price ranging between $10.00 and $11.00 per share. When the sell orders were received by plaintiff in its Emporia office its employees, through inadvertance and oversight, misread the sale orders as being for the stock of Midwestern Financial Corporation, a stock traded on the New York Stock Exchange rather than stock of Midwestern Financial Corporation of Kansas, a locally traded stock. It was not until the second sale of 1170 shares had been completed that plaintiff discovered the mistake.
After discovering the mistake, a few days after the second sale, plaintiff offered to tender back to defendants the Midwestern of Kansas stock or in the alternative pay defendants the actual value thereof and requested reimbursement for the difference from defendants. Agent Yotter on two occasions contacted defendants regarding the error, but defendants refused to reimburse plaintiff. This litigation was then initiated.
On the facts recited the trial court found the first transaction was a unilateral mistake, but that under the attending circumstances neither the law nor public policy prevented the granting of the requested relief. Concerning the second sale the court found essentially the same circumstances existing as in the case of the first sale, but further found that defendants had, as a matter of law, implied notice of the mistake. The trial court further found that there had been no change of position by defendants which would preclude restitution under the circumstances and awarded plaintiff judgment in the amount of $17,549.39. This judgment was journalized as of June 28, 1971. The concluding paragraph of the journal entry reads as follows:
“It is Therefore, by the Court Considered, Ordered, Adjudged and Decreed that the plaintiff do have and recover of and from the defendants the sum of $17,549.39, less the value of the stock in Midwest Finance Corporation of Kansas, Inc., sold by the defendants, said value to be determined as of the highest bona fide sale of said stock in the regular course of business occurring in the period from September 3rd, 1969, to the date of this judgment. The Court retains jurisdiction for determining the amount of said highest sale if the parties are unable to agree thereon. Defendants shall also be given credit for all brokerage fees, etc,, involved. Costs are charged to the plaintiff.”
Defendants appealed from the judgment of June 28, 1971, but after several extensions were granted the appeal was dismissed by this court on January 28,1972.
Apparently, the parties were unable to agree or, in any event, failed to fix the value of the Midwestern of Kansas stock, as directed by the court’s judgment of June 28, 1971; thus, on January 9, 1973, a journal entry was filed reflecting the trial court’s calculations of the offset to which defendants were entitled. It reads:
“Now on fifis 6th day of January, 1973, the above entitled matter comes regularly on for hearing. Plaintiff appears by Van Smith and Don Vsetecka. Defendants appear by James W. Wallace and Keen K. Brantley, their attorneys.
“Thereupon it is determined by the Court that the offset to which the defendants are entitled for the value of the stock is $2,087.50; that the offset to which they are entitled for brokerage fees is $345.61, and that therefore after allowing credit for the offsets the plaintiff is entitled to judgment in the amount of $15,116.28, with interest thereon at the rate of 8% per annum from June 28th, 1971.
“And hereof let execution issue.”
On January 26, 1973, defendants filed notice of appeal in the instant appeal. The notice of defendants was met with a motion to dismiss the appeal filed in the trial court by plaintiff. The trial court overruled plaintiff’s motion. Thereafter plaintiff filed a motion to dismiss in this court, which was overruled with leave granted to renew when the case was argued on the merits. We have considered plaintiff’s motion to dismiss, but have concluded the appeal should be resolved on the merits of the issues presented.
The first two points raised by defendants involve procedural matters. Defendants first claim the trial court erred in failing to honor their request for a jury trial. Defendants made a timely demand for trial by jury along with the filing of their answer. Defendants’ demand was apparently denied by the trial court, but the record fails to reflect at what point during the proceedings or under what circumstances the denial occurred. Be that as it may, the parties proceeded to stipulate as to the facts and agreed that the case be submitted to the trial court on the stipulation together with the depositions of two witnesses. From our examination of the entire record, we are unable to discern any dispute as to the facts at the trial court level nor do defendants point specifically to any factual dispute on appeal. Even though the nature of the case in the first instance may have entitled defendants to a jury trial, where the facts are not traversed and are consented to by defendants the right does not exist. The right to a jury trial only arises where there are disputed facts or where different inferences may be drawn from the disputed facts. (47 Am. Jur. 2d, Jury, § 15, p. 637.) Moreover, the record indicates the parties proceeded to stipulate the facts and submit the case to the court without defendants reasserting their request for a jury or lodging any objection to the court proceeding with the case. Conduct or acquiescence inconsistent with an intention to insist on a jury trial may constitute waiver thereof. (Elwood-Gladden Drainage District v. Ramsel, 206 Kan. 75, 476 P. 2d 696; and Cunningham v. City of Iola, 86 Kan. 86, 119 Pac. 317.) Under the circumstances shown to exist, defendants have failed to establish error in this regard.
Defendants’ next contention concerning procedure is that the trial court erred in permitting plaintiff to submit additional stipulations of fact over defendants’ objection. The record reflects that when the case was first called for argument on the facts then stipulated, the plaintiff objected to three paragraphs of the stipulation, they were stricken by the court without objection. At this point, plaintiff asked for additional stipulations — defendants objected. The trial court overruled defendants’ objections and reset the case for trial, granting both parties the opportunity to offer any additional testimony or to stipulate further. Plaintiff prepared further stipulations which were entered into by defendants. In view of the fact that defendants joined in the further stipulations, their position appeal's to be inconsistent. In any event, this court has long been committed to the rule that it is discretionary whether a trial court may permit a party to reopen a case to introduce additional evidence, and our decisions approve that practice where the record fails to disclose conduct amounting to abuse of discretion. (Anderson v. Berg, 202 Kan. 659, 451 P. 2d 248; In re Estate of Cox, 184 Kan. 450, 337 P. 2d 632, and In re Estate of Wittman, 161 Kan. 398, 168 P. 2d 541.)
For their third claim of error defendants assert:
"The Court erred in ordering restitution on the part of defendants in the absence of tender on, the part of plaintiff to defendants of the stock sold on the first sale, or its value, and the value of the stock at the second sale at a value of not less than $9.50 per share.”
This point of defendants actually lacks a basis in fact. It was stipulated that plaintiff offered to tender back the Midwestern of Kansas, or in the alternative pay to defendants the actual value thereof. As shown in the portion of the journal entry previously quoted, the trial court did in fact give defendants credit for the value of the Midwestern of Kansas stock relinquished to plaintiff plus brokerage fees. The journal entry clearly shows the aim of the court was to prevent any unjust enrichment of either party, and that the court did in fact return the parties to their status quo.
Defendants assert that plaintiff was negligent when it sold defendants’ stock; and that such negligence precludes recovery by plaintiff of the proceeds of the sale unless defendants can be returned to status quo. In support of their position defendants cite this statement taken out of context from 66 Am. Jur. 2d, Restitution and Implied Contracts, [Effect of Negligence], § 131, p. 1063:
“. . . [I]t bas been held that an action for the recovery of money will not lie where money has been paid by a mistake which arose from the fault or negilgence of the party paying, and cannot be recovered without prejudice to the party who has received it.” (p. 1064.)
The principle cited by defendants is pertinent where the circumstances of the case are such that negligence may be relevant in determining whether the allowance of recovery is equitable. The rule applicable to the instant case is set forth in the same section (131) as follows:
“. . . [T]he prevailing view is that in the absence of a change of position upon the part of the payee, the failure of one paying money to another under a mistake of fact to use ordinary care to avoid such mistake will not defeat his right to recover it back in an action for money had and received. In other words, the general principle is said to be that where money is paid under a mistake of fact, it is no defense to an action brought to recover it that the mistake arose through the plaintiff’s negligence, if such negligence caused the defendant no harm.” (p. 1064.)
The general rule that lack of due care does not preclude recovery is also set out in Restatement of the Law, Restitution, § 59, p. 232:
"A person who has conferred a benefit upon another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care.”
In the instant case the trial court, by giving defendants the setoff credit, has equitably replaced defendants to status quo financially.
Defendants next contend the findings and conclusions of the trial court are contrary to the evidence. Since this case was heard on a stipulation of facts the usual rules (K. S. A. 60-252 [a]; Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 500 P. 2d 39), governing the scope of appellate review are not applicable. We have held that when an action is tried to the court upon a written stipulation of facts or the evidence is written or documentary in form, either by way of deposition or transcript, an appellate court within certain limitations can decide for itself what facts have been established essentially as is done in an original trial. (In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527; Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10; and Koch, Administratrix v. Prudential Ins. Co., 202 Kan. 229, 447 P. 2d 825.) We have examined the stipulations and depositions reproduced in the record and can find no fault with tire findings and conclusions announced by the trial court. The salient facts are that this unfortunate occurrence stemmed from the mistake in the identity of the two corporations involved; that with respect to the first sale the mistake was unilateral; that because of implied notice of mistake the second sale should be treated in law as a mutual mistake; and that the position of defendants had not changed so as to foreclose recoverey by plaintiff. The findings and conclusions are based upon essentially undisputed evidence.
Defendants’ fifth point that judgment is contrary to law and other points raised are tied into the points previously discussed. Defendants cite the rule concerning a broker’s duty to carry out the instructions of his principle. (12 Am. Jur. 2d, Brokers, § 121, p. 867.) This rule, of course, is subject to the general rules of law pertaining to mistakes which have been heretofore discussed. (Restatement of the Law, Restitution, § 142 [Illustration 6], p. 572.)
Defendants say the trial court erred in concluding the second sale was made under circumstances which constitute a mutual mistake of fact. In this regard the trial court specifically determined from the facts that the defendants had “implied notice of a mistake.” Prior to the second sale defendant Worth Cornelius admitted he knew of the existence of another corporation with a similar name whose stock was listed on the New York Stock Exchange. This knowledge, coupled with the extraordinary profit made from the first sale, the quick repurchase of the same type of stock at its true price and a quick resale at the exaggerated price, constitutes a sufficient basis for the trial court’s conclusion of implied notice. It is difficult to conceive that a reasonable man, acting in good faith, would not have suspected a mistake under these circumstances. It is a firmly established general rule that money paid to another under the influence of a mistake of fact may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund. (66 Am. Jur. 2d, Restitution and Implied Contracts, § 119, p. 1055.)
Concerning defendants’ claim of change of circumstances in that the money was spent for two years of education for their two children and to pay debts, the record discloses that within a few days after defendants received plaintiff’s check for the second sale in September of 1969, defendants were informed by plaintiff that a mistake had been made. This was less than two months after the first sale. The evidence shows nothing was done by defendants to change their circumstances during this short period of time. In order that a change of position be such as will defeat an action to recover money paid by mistake, the change must be detrimental to the payee, material and irrevocable and such that the payee cannot be placed in status quo. If the payee uses the erroneous payment to pay debts existing when he received the money, or to pay living expenses, there is no change of position as will be a defense to an action to recover the payment. (66 Am. Jur. 2d, Restitution and Implied Contracts, § 136, p. 1068; and 40 A. L. R. 2d, Anno., [Restitution-Payment Under Mistake], § 5, p. 1013.)
The foregoing principles pertaining to an action for the recovery of money paid by mistake and change of position as a defense thereto have been substantially adopted and followed by this court in the case of North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P. 2d 1060. North River brought suit to recover back money paid to Aetna in the mistaken belief that an insured automobile had been stolen. Aetna relied entirely upon the defense of change of position based on its action in releasing a chattel mortgage on the automobile in question and paying a sum to its debtor. Pointing out that Aetna could have reasserted its mortgage which was released under a mistake, we held Aetna’s action did not constitute such a change of position as would defeat North River’s suit. With respect to an action to recover money paid under mistake and change of position as a defense, we held:
“An action to recover money paid to the defendant under a mistake of fact sounds in quasi contract, and the court will imply a promise to repay on the part of defendant.
“The defense of change of position asserted by a defendant amounts to a plea of estoppel in pais, and is an affirmative defense which must be pleaded and proved by the defendant.” (Syl. ¶¶ 2, 3.)
Finally, defendants claim error in the trial court’s order of January 6, 1973, directing payment of interest from die date of judgment on January 28, 1971. As to the rights of parties, the trial court’s judgment of June 28, 1971, was a final determination. Plaintiffs judgment became a liquidated claim for purposes of accrual of interest on that date; the information necessary to establish the net amount due plaintiff had been firmly and irrevocably established in the stock exchange record. A claim becomes liquidated when both the amount due and the date on which it is due are fixed and certain, or when the same becomes definitely ascertainable by mathematical computation. (Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, 455 P. 2d 555.)
Finding no error the judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Clifford Hollaway, was tried on one count of aggravated robbery in violation of K. S. A. 1973 Supp. 21-3427, and on three separate counts of aggravated assault on a uniformed or properly identified law enforcement officer while engaged in the performance of his duty, in violation of K. S. A. 1973 Supp. 21-3411. He was convicted of aggravated robbeiy, of one count of aggravated assault on a law enforcement officer, and of one count of aggravated assault as such is defined in K. S. A. 21-3410. On the other assault charge Hollaway was acquitted.
Briefly stated, the evidence disclosed that on the morning of March 29, 1971, the defendant, armed with a .25 caliber pistol, held up the Thrifty Market in Wichita, Kansas, and got away with some $226. After obtaining the loot, he left the store and proceeded to a waiting car driven by Charles White, who was jointly charged in the robbery and whose case on appeal is reported as State v. White, 211 Kan. 862, 508 P. 2d 842. The two men sped away in the car, although not before its description was obtained and reported. Not long thereafter the Wichita police, having been placed on the alert, closed in on the car and brought its occupants to bay. Three police officers, two garbed in plain clothes, approached the suspect car on foot, whereupon Mr. Hollaway, who was sitting in the passenger s seat, opened fire on the officers, while Mr. White got out of the driver’s seat peacefully and with no show of force. Hollaway’s fire was returned by the officers; Hollaway himself was wounded and threw away his gun; and the car was punctured by various and sundry bullets. A search of Mr. Hollaway’s person at the jail house uncovered some $233.
On appeal, the defendant has raised a number of trial errors. First of all he maintains the trial court erred in overruling his motion to suppress certain items of physical evidence. This contention is based on the alleged failure of attorneys for the prosecution to permit an inspection of the evidence at the police station as had been ordered by the court under the provisions of K. S. A. 1973 Supp. 22-3212. The court’s order specified the inspection should take place at 12:15 p. m. on June 23, 1971. From the record it appears that defense counsel made an appointment with a member of the prosecutor’s staff to meet at the police station at the appointed hour; that the prosecutor failed to appear as he had agreed; and that defense counsel, after waiting about an hour, left without having seen the evidence. A second appointment was made to meet at a later date at which the prosecutor again failed to make an appearance. This time, members of the police department refused to permit inspection because the time specified in the order had passed.
However, the record further reflects that defense counsel was provided an opportunity to inspect the evidence at the courthouse shortly before the commencement of trial and that he thereafter announced to the court he was satisfied. While we do not condone the seemingly evasive tactics of the prosecutor we cannot say, under the attending circumstances, that prejudicial error was committed in overruling the motion to suppress.
Assuming that the spirit if not, indeed, the letter of the inspection order was ignored, the trial court was vested with wide discretion as to the course it might thereafter pursue. Subparagraph 22-3212 (7) provides in substance that where it is shown that a prosecuting attorney has failed to comply with an order to permit the defendant to inspect relevant evidence, the trial court may order the prosecuting attorney to permit inspection of the materials not previously disclosed, or may grant a continuance, or may prohibit the introduction of the material not disclosed, or may enter such other order as it deems just under the circumstances.
We have previously had occasion to deal with this section of the statute. In State v. Jones, 209 Kan. 526, 498 P. 2d 65, we had this to say about it:
“The clear import of this proviso, which is identical to one contained in Federal Rule 16 (g), is to vest the trial court with wide discretion in dealing with the failure of a party to comply with a discovery and inspection order and federal tribunals have so held (see cases cited 1 Wright, Federal Practice and Procedure, §§260-261).” (p. 528.)
In State v. Sullivan & Smith, 210 Kan. 842, 504 P. 2d 190, we also discussed the options open to the trial court where there had been a failure to comply with a discovery or inspection order. We said in that case:
“. . . K. S. A. 1971 Supp. 22-3212 (7) gives the court several options when the prosecuting attorney has not complied with its discovery order. The court may order the offending party to permit the discovery or inspection of materials not previously disclosed, may grant a continuance, or refuse to admit the undisclosed material in evidence, or it may make such other order as it deems just under the circumstances.” (p. 847.)
In our opinion the trial court did not abuse its discretion in this case when it permitted the state to introduce the physical evidence held at the police station inasmuch as defense counsel had inspected the evidence before trial and had said he was satisfied.
After Hollaway had ensconced himself in the getaway car and that vehicle had gotten underway, information was radioed by the police dispatcher concerning the route taken by the car and its tortuous pathway through the streets of Wichita. At the trial, reference was made by some of the officers as to police dispatches tracing the automobile and giving its location. The defendant complains of this, contending that the contents of the dispatches were inadmissible as hearsay. This contention is without merit. A similar objection was raised by the defendant in State v. Trotter, 203 Kan. 31, 453 P. 2d 93, where the testimony of a police officer was admitted regarding a conversation he overheard between the police dispatcher and another officer immediately before the defendant was apprehended. In rejecting the defendant’s claim of error tire court said:
“. . . The testimony was not inadmissible as hearsay evidence for the reason it was not offered to prove the truth of the matter asserted. At most, the evidence provided some explanation of the officer's action in proceeding to the location where defendant was subsequently taken into custody. (Citing cases.)” (p. 37.)
Tire defendant next complains of the admission of photographs taken of the bullet-riddled car. The basis of this objection was that the photos had not been identified by the officer who took them. The objection is not valid. Officer Davis, who was present when the pictures were taken by his fellow police officer, testified they accurately portrayed what was depicted. In State v. Jefferson, 204 Kan. 50, 54, 460 P. 2d 610, we said that photographs are generally admissible upon proper foundation and identification, if they accurately represent matters relevant to the issues in the case, and that their admission rests in the sound judicial discretion of tire court. (See, also, State v. McVeigh, 213 Kan. 432, 516 P. 2d 918.) In our opinion the photographs were sufficiently identified and their weight was for the jury.
Two of the three officers who converged on the getaway car were dressed in plain clothes. Because of their wearing apparel, the defendant argues they were not properly identified to him as officers of the law and he therefore moved to dismiss the counts charging him with aggravated assaults upon them as law enforcement officers. The trial court properly rejected the motion to dismiss the counts, and in the alternative instructed on the lesser offense of aggravated assault which is defined by K. S. A. 1973 Supp. 21 3410 as:
“(a) Unlawfully assaulting or strildng at another with a deadly weapon; or
“(b) Committing assault by threatening or menacing another while disguised in any manner designed to conceal identity; or
“(c) Willfully and intentionally assaulting another with intent to commit any felony.
“Aggravated assault is a class D felony.”
On the other hand, aggravated assault on a law enforcement officer is defined in 21-3411 as “an aggravated assault . . . committed against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty” and is a class C felony. In our opinion it is clear that aggravated assault is an offense included in but lesser than an aggravated assault against a law enforcement officer. Consequently the court correctly instructed on aggravated assault. K. S. A. 1973 Supp. 21-3107 (3) requires the court to instruct on lesser included offenses which are supported by the evidence and our case law has been to the same effect. (2 Hatcher’s Kansas Digest [Rev. Ed.] Criminal Law, § 315.)
The defendant finally complains, somewhat belatedly since the issue is not raised in his statement of points, that the court failed to instruct on the offense of robbery under K. S. A. 1973 Supp. 21-3426 as a lesser included offense of aggravated robbery defined in 21-3427. Although our rule is not to consider matters omitted from the statement of points, we have nonetheless not ignored the point, but find it entirely without merit. All four eyewitnesses to the robbery testified that Hollaway used a firearm. Their testimony brings the charge squarely within the framework of aggravated robbery. If Hollaway was guilty of any offense in this case it was, under all the evidence, aggravated robbery. The failure to instruct on a lesser degree of the offense alleged does not constitute error where the evidence excludes any theory of guilt as to a lesser degree thereof. (State v. McDermott, 202 Kan. 399, 401, 449 P. 2d 545; State v. Hoy, 199 Kan. 340, 430 P. 2d 275; State v. Zimmer, 198 Kan. 479, 426 P. 2d 267.) In State v. Hockett, 172 Kan. 1, 238 P. 2d 539, the accused was charged with first degree robbery and we there held the court was not required to instruct on any lesser degree of that offense where the evidence clearly negatived a lesser degree of guilt.
We find no prejudicial error inhering in' the judgment of the court below and the same is affirmed.
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Per Curiam:
This is an original proceeding in discipline.
Respondent, Jimmie H. Dickens, took exception to the recommendation of the State Board of Law Examiners (hereinafter referred as the Board) that he be suspended from the practice of law for an indefinite period.
The complaint against respondent was filed by Phillip L. Waisblum, a member o£ the Missouri Bar engaged in the practice of law in Kansas City, Missouri. Mr. Waisblum was attorney for the estate of Phillip Lindstrom, which at the time of the complaint was being probated by the public administrator in the probate court of Jackson County, Missouri. The matters at issue stem from respondent’s representation of Mr. Lindstrom during his lifetime.
In 1967 Mr. Lindstrom was charged with driving while under the influence of intoxicating liquor in Leavenworth following an accident in which he struck and damaged two parked automobiles. Lindstrom retained respondent to represent him in the matter. Respondent arranged bond and subsequently disposed of the charges against Lindstrom. Prior to the disposition of the criminal case in Leavenworth, Lindstrom was sued by State Farm Mutual Insurance Company in a subrogation action to recover damages to the two automobiles which were insured by State Farm. Lindstrom requested respondent to represent him in the defense of the State Farm action and told respondent that he had paid the Ray H. Patterson Insurance Agency of Kansas City, Missouri a premium for the renewal of his automobile liability insurance coverage. Respondent determined that though Lindstrom had paid the premium to his agent Patterson the policy was not renewed because Patterson never remitted payment to State Farm.
During this period of time respondent was associated in an office expense share arrangement with several other Wyandotte County lawyers, one of whom was Nick Tomasic. On April 8, 1968, a petition was filed in the case of Lindstrom v. Patterson in Wyandotte District Court, seeking to recover damages for Pattersons fraudulent failure to remit lindstrom’s premium money to the insurance company. The petition was signed by respondent and Tomasic as attorneys for Lindstrom.
In 1968 respondent, although maintaining his law office in Kansas City, Kansas began to spend extended periods of time away from his Kansas City office because of health reasons. The evidence discloses that for the most part Mr. Tomasic handled the subrogation action in Leavenworth County and the suit against Patterson in Wyandotte County. After the suit was filed in Wyandotte County Tomasic learned that Patterson was essentially judgment proof because of advanced age, no insurance, and poor health. Tomasic testified that he attempted to contact Lindstrom and inform him concerning Patterson’s situation, but was unable to locate him'. In order to recoup something from the Patterson case, Tomasic negotiated with Patterson’s attorneys who finally agreed to settle the case for $750, which they told Tomasic were all the funds that were available. Tomasic testified that he again tried to locate Lindstrom, but was unable to do so and, finally, in June 1969 he learned of Lindstrom’s death. Actually, Lindstrom was-killed in an automobile accident on April 30, 1969, and his estate was opened in the probate court of Jackson County, Missouri on May 3, 1969.
Waisblum learned of Lindstrom’s judgment against Patterson and wrote to Mr. Tomasic concerning the matter on July 24, 1969, and again on December 20, 1969. On December 10, 1969, a settlement check in the amount of $750 was issued payable to Lindstrom,. Tomasic and Dickens. Late in January or during February 1970,. respondent obtained Tomasic’s endorsement on the check. The check was then endorsed by respondent and Lindstrom’s name was written on the back of the check, apparently by respondent as his attorney, although Lindstrom was dead at the time. Respondent testified the check was deposited in his trust account, but there was no corroboration of this testimony. Respondent and Tomasic had a fifty-fifty percent contingent fee arrangement with Lindstrom in the Patterson case. After the check was deposited respondent withdrew $750 from the account and paid Tomasic one-half of that sum.
After Waisblum learned that judgment had been entered settling the Patterson case, he wrote to respondent requesting that the funds be paid into the Lindstrom estate. Respondent refused, claiming an attorney’s lien. Waisblum also contacted respondent’s secretary who excused the matter because of respondent’s absence from the city.
Several letters written by Mr. Waisblum or his associate, Mr. Ball, to Dickens’s office are reproduced in the record. Waisblum finally secured a copy of the Patterson settlement check from Patterson’s attorney. Waisblum then filed a letter of complaint with the probate judge of Jackson County, Missouri who in turn forwarded the letter to the Wyandotte County Bar Grievance Committee, who notified Dickens of the complaint against him. Thereafter Waisblum, on May 27, 1971, wrote a letter to the Kansas State Board of Law Examiners setting out the particulars of the complaint. On January 28, 1972, Dickens mailed a money order to the Jackson County public administrator in the amount of $375 to be credited to Lindstrom’s estate. It appears the money order came from funds contributed by respondent and Tomasic, rather than from respondent’s trust account.
On October 27, 1972, the Board convened a panel of three members to hear the complaint; respondent appeared pro se. In due cornse, the panel filed a report, findings and recommendations with the Board recommending the indefinite suspension of respondent. The Board received the report of the hearing panel at its meeting on January 5, 1973, and after review thereof approved and adopted the report of the hearing panel as . the report of the Board.
On March 6, 1973, the Board filed its report with this court and thereafter respondent filed his exceptions. In its report the Board found respondent had violated the provisions of (Supreme Court Rule No. 501) Disciplinary Rules DR 1-102 (A); DR 7-102 (A); and DR 9-102 (A) and (B) of the Code of Professional Responsibility (209 Kan. lxxiv, ixxxiv, lxxxix.)
The findings of the hearing panel, which were approved by the Board, are as follows:
“1. Respondent, with the foreknowledge of the death of his client, failed to report the fact of death to the court or to opposing counsel.
“2. Respondent, concealing the fact of his client’s death, and without the prior authority of his client or of the duly appointed representative of his client’s estate, entered into a settlement agreement disposing of the client’s cause of action.
“3. Respondent, concealing the fact of his client’s death from the court and the defendant and his attorneys, knowingly failed to disclose that which he knew was required by law to be revealed, and fraudulently induced the court to enter judgment disposing of the pending action.
“4. Respondent, concealing the fact of his client’s death, and without approval of any party having authority, received payment of the judgment rendered in favor of his client and caused pleadings to be filed disposing of the action.
“5. Respondent, without authority, endorsed the name of his predeceased client to the check given in payment of the client’s judgment.
“6. Respondent, without authority, caused all of the proceeds of his deceased client's judgment to be paid into his business account and did retain same until complaint was filed against him with the State Board of Law Examiners, on the basis that the deceased client owed him added amounts as fees.
“7. Respondent refused to respond to inquiries of representatives of his deceased client’s estate concerning the client’s recovery and failed and refused to pay over the client’s share of the judgment after due demand was made.
“8. Respondent failed to make a candid disclosure of the facts of his deceased client’s case, of the recovery, or of his possession of his client’s moneys until the Public Administrator of Jackson County, Missouri made independent discovery thereof.”
The basic thrust of respondent’s argument before this court is that the evidence adduced at the hearing is insufficient to support the findings of the Board. Generally, respondent contends that the first four findings are based upon the premise that he had foreknowledge of the death of his client and concealed the fact from the court on the occasions specified in the findings — when the fact is, respondent says, he never knew of Lindstom’s death, until August 1971, when he received notification of a complaint filed before the Wyandotte County Bar Association. While there is no direct evidence in the record as to precisely when respondent learned of Lindstrom’s death, the record does reflect that respondent was in touch with his office, where the fact of death was certainly known since April 30, 1969, when Tomasic had this information. From the record, respondent’s lack of knowledge seems highly improbable. In any event, since respondent was still doing business as a practicing lawyer and maintained an office with a secretary, he has the responsibility for and should have known of the death of his client.
Assuming respondent did not know of Lindstrom’s death his failure to adequately keep himself advised of the status of his client is negligence of the legal matter entrusted to him in violation of DR 6-101 (A) (3) (209 Kan. lxxxiv.).
Concerning findings Nos. 5, 6, 7 and 8 respondent contends he had authority to' endorse the check and that he had an attorney’s lien upon the funds. Respondent admits, in his, brief, that the signature of Lindstrom was endorsed upon the settlement check either by respondent or at his, direction, but he contends, that as an attorney he had the power to sign his client’s name, particularly if he endorsed his own name as he did in this case. Respondent also admits that this authority expires upon the death of a client, but that if the fact of death is unknown respondent would, nevertheless, have the authority to do what he did. In the case of Pearcy v. First National Bank, 167 Kan. 696, 208 P. 2d 217, the relationship of attorney and client was said to be one of agency and with respect to an attorney’s authority to endorse his client’s signature upon a check it was s tated:
“. . . It may be conceded that there are many occasions where by reason of emergency in protecting the client’s rights the attorney might be warranted in signing and cashing a check payable to his client’s order, or that he might have a hen on the proceeds which he would have a right to collect and withhold, or that there might be other circumstances warranting an inference he was authorized to endorse and collect the check, but none such are disclosed by the amended petition before us. . . .” (p. 699).
Respondent makes no showing of any emergency here, nor does he claim any specific authorization for endorsing his client’s signature. Moreover, the relationship being one of agency, any authority which respondent might have had as agent terminated upon the death of his principal. (Jackson v. Hall, 139 Kan. 832, 32 P. 2d 1055; and Farmer v. Marvin, 63 Kan. 250, 65 Pac. 221.) Even though respondent, as he claims, had no, direct knowledge of Lindstrom’s death his neglect in not ascertaining such fact during a period of at least eighteen months is negligence that cannot be tolerated.
With respect to findings Nos. 6, 7 and 8 respondent contends that he had a valid attorney’s lien which excused him from his failure to remit the funds to Lindstrom’s estate. An attorney’s lien is authoried by K. S. A. 7-108 which contemplates two types of liens,; a "retaining lien” and a "charging lien.” Grayson v. Pyles, 184 Kan. 116, 334 P. 2d 341; and Ahalt v. Gatewood, 109 Kan. 328, 198 Pac. 970.) Since respondent claimed to hold funds of his client which came into his hands he is asserting a retaining hen. (Ahalt v. Gatewood, supra.) At the time respondent received the funds, his client was dead and the attorney-client relationship had terminated. Thus, it may be said that since respondent did not obtain possession of the funds until after the death of Lindstrom, a retaining lien was never created which could survive. Whether respondent had a lien or not he had a duty to promptly notify his client of the receipt of the funds. (DR 9-102 [B] [1]) See, also, Voss v. Bachop, 5 Kan. (2d) * 59. The record is clear that respondent failed during a period of eighteen months to attempt to properly notify his client of the retention of the funds.
Assuming that respondent did not know (which seems unlikely under the circumstances) of his client’s death until he received a letter from the Wyandotte Grievance Committee we, nevertheless, find clear and satisfactory proof of acts by him which warrant disciplinary action. There remains the question of the severity of the discipline to administer. After carefully reviewing the facts surrounding the complaints, we believe suspension of respondent from the practice of law for a period of two years is appropriate under the circumstances shown.
IT IS SO ORDERED.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Richard Delwayne Clark, was charged with murder in the first degree, in violation of K. S. A. 21-401. He was convicted of murder in the second degree, as defined in K. S. A. 21-402. He has appealed, alleging various errors.
The facts of this case reflect a sordid tale of an illicit relationship which exploded into the violence of a savage beating given Mrs. Elizabeth J. Cato by her paramour, resulting in her death. An attempt will be made to sketch the salient facts as briefly as possible.
As recounted by the defendant, he began the morning of the fatal day, February 23, 1970, by buying a bottle of whiskey instead of going to work. He followed this with another purchase of booze which he shared with a friend. About noon he repaired to the Cato residence, where Elizabeth was living alone at the time, her husband then being in the hospital. At the Cato home, Clark became embroiled in a quarrel with Elizabeth over his drinking. Following this argument Mrs. Cato walked to a nearby store for some cigarettes where a second argument occurred. On her way back home Elizabeth was picked up by a Mr. Phillips who, some two hours later, let her out of his car near her home, under die watchful and vengeful eye of Mr. Clark. A third argument ensued in the Cato house which will be described in more detail later. At this point it will suffice to say the fight occurred early in the afternoon. After the violent affray, Clark apparently tried to wash the blood off of his girl friend and attempted to clean her up. He left her place around six o’clock on the pretext he was going to work and that he would return for a late supper. He did not go to work, however, but drove around, drinking and stopping a place or two, and about ten thirty or so he returned to the house to find Mrs. Cato stretched out on the couch, dead. She had died, so the autopsy revealed, from edema or internal bleeding as a result of her grievous injuries.
The defendant’s first three points relate in one way or another to the sufficiency of the evidence. He contends the evidence was insufficient to establish malice or intent to kill and that his motion for a directed verdict of acquittal as to murder in either degree should have been sustained.
Clark points to the fact no weapon was found at the scene or introduced at the trial, and he argues that as a general rule an intent to kill cannot be inferred from an assault or beating with the hands and fists. Under ordinary circumstances this appears to be the rule. (See 22 A. L. R. 2d Anno: Killing Without Weapon — Intent— Malice, p. 854, et seq.) However, where conditions are beyond the ordinary or usual, the authorities recognize an exception, as noted in the A. L. R. annotation at pp. 856, 857:
“While it is generally held that hands and feet are not to be classed as deadly weapons per se, it is recognized that they may be a means likely to produce death, that one may commit murder by means of an attack with the fists or feet, and that they may become ‘deadly weapons’ when used in such manner and in such circumstances as are reasonably calculated to produce death.”
We cannot agree that the record is barren of evidence from which malice or intent to kill may be inferred. For a number of reasons we view the evidence as sufficient to support the verdict. Dr. Eckert, a medical doctor specializing in forensic pathology, conducted the autopsy held in connection with the death. He testified as to the massive injuries inflicted on the deceased, the wounds, the fractures, the deep bleeding, the swelling of tissues and the final edema which terminated in her death. It was his opinion that the injuries were not administered at one time but could have extended over a period of from thirty minutes to three or four hours; that they could have been caused by a knee, a fist, an arm or forearm, a leg or a foot. There were abrasions, he testified, similar to those he had seen on people who had been stomped on.
It is no exaggeration to say there is evidence to indicate a brutal beating, brutal in the sense that it transcended the usual assault with fisticuffs and deteriorated into a slugging, kicking, or stomping episode of extended duration. A case with similar overtones is reported in 163 Kan. 225, 181 P. 2d 473, State v. McCombs. McCombs was prosecuted and convicted under the provisions of G. S. 1935, 21-435, the mayhem statute. He contended, on appeal, that the trial court erred in overruling his demurrer to the evidence. In rejecting that claim this court said:
“. . . Appellant’s vicious assault with his hands, fists and feet was terminated only after he had beaten, tackled and thrown Cloyd onto the cement sidewalk, kicked him and left him helpless and unconscious. The evidence was entirely sufficient to go to the jury on the charge of assault with intent to kill.” (p. 229.)
The holding in McCombs accords with the general rule that evidence of a vicious assault with the fists is sufficient to support an inference of intent to kill. (Carson v. Commonwealth, 188 Va. 398, 49 S. E. 2d 704; Commonwealth v. Dorazio, Appellant, 365 Pa. 291, 74 A. 2d 125; Pine v. People, 168 Col. 290, 455 P. 2d 868.)
There is other evidence from which an intent to kill may reasonably have been deduced. In a telephone conversation between the defendant and Elizabeth’s mother, Mrs. Ford, about 3:00 or 3:30 in the afternoon, the defendant said, according to Mrs. Ford, that “I beat the hell out of her” and that when Elizabeth asked Clark why he was telling that to her mother, the defendant told her “to shut up because when he got off the telephone he was going to finish her.” Between 5:00 and 5:30 Mrs. Cato also made a phone call to Mr. Phillips, her companion of an earlier hour that afternoon, and said “Paul, come here, help”, before Clark took over the telephone.
We conclude there was sufficient competent evidence to take the case to the jury on the charge of murder, and that the verdict of murder in the second degree is adequately supported.
More serious questions are raised in the area of instructions. In instruction 7, the trial court informed the jury that the information charged the defendant with murder in the first degree and that this charge included murder in the second degree, manslaughter in the first degree, manslaughter in the second degree and manslaughter in the fourth degree. The court then proceeded to instruct on first degree murder, second degree murder, first degree manslaughter under 21-407, and second degree manslaughter as defined in 21-412. No instruction whatever was given on fourth degree manslaughter.
The defendant requested instructions, in addition to those given, on (1) second degree manslaughter as defined in K. S. A. 21-411, (2) fourth degree manslaughter under K. S. A. 21-419, and simple assault and battery. The foregoing manslaughter statutes read as follows:
K. S. A. 21-411. “The killing of a human being without a design to efFect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.”
K. S. A. 21-419. “The involuntary killing of another by a weapon, or by means neither cruel nor unusual, in the heat of passion, in any cases other than justifiable homicide, shall be deemed manslaughter in the fourth degree.”
It is the duty of a trial court to instruct the jury not only as to the crime charged specifically in the information but also with respect to such lesser offenses included therein as may be justified by the evidence. The rule is firmly imbedded in our jurisprudence. In State v. Cunningham, 120 Kan. 430, 243 Pac. 1006, it is framed in these words:
“It is made the duty of the court in charging the jury, to state to them all matters of law which are necessary for their information in giving their verdict. (R. S. 62-1447.) The rule in homicide cases has been repeatedly declared that the court should instruct the jury not only on the evidence adduced by the prosecution in support of the higher offense, but also upon the whole evidence and especially upon the lower degrees of the offense, if there is substantial evidence applicable to the lower degrees. The instructions should cover every issue or theory in the case which has support in the evidence. Whether the evidence tended to support the lower degrees of the offense appears to the court to be weak and unsatisfactory, the accused is nevertheless entitled upon request to have the issue and the effect of the evidence submitted to the jury. . . .” (p. 431.)
State v. Palmer, 173 Kan. 560, 251 P. 2d 225, is quite in point. Palmer was charged with first degree murder and was convicted of murder in the second degree, as in the case before us. The homicide occurred during a shooting match arising over remarks about a lady present at an establishment where players were wont to throw the galloping dice. On appeal, the defendant contended the trial court should have instructed on 21-411 as well as on other manslaughter statutes. This court agreed that the trial court should have instructed the jury on all appropriate degrees of manslaughter where the evidence would so justify, since the accused was entitled to have his theory of the case submitted to the jury. See, also, State v. Patterson, 52 Kan. 335, 355, 34 Pac. 784; State v. Curtis, 93 Kan. 743, 145 Pac. 858; State v. Booker, 200 Kan. 166, 171, 434 P. 2d 801; State v. Roberson, 210 Kan. 209, 211, 499 P. 2d 1137.
The right of an accused to have his theory of defense submitted to the jury under proper instructions has been considered so basic as to require the trial court to instruct on lesser offenses included in the principle charge, where there is support in the evidence, without any request therefor being made. This principal, now codified in K. S. A. 1973 Supp. 21-3107 (3), is exemplified in State v. Fouts, 169 Kan. 686, 221 P. 2d 841:
“In prosecutions for homicide it is the duty of the trial court to instruct the jury, not only as to the offense charged but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, even though such instructions have not been requested or have been objected to." (Syl. ¶ 3.)
Among other cases to this effect are State v. Smith, 161 Kan. 230, 236, 167 P. 2d 594; State v. Severns, 158 Kan. 453, 458, 148 P. 2d 488; State v. Williams, 182 Kan. 468, 473, 322 P. 2d 726.
The Williams case bears points of similarity to the case at hand. Williams was tried for murder and convicted of second degree manslaughter under 21-411. The homicide occurred when Williams beat and kicked a handcuffed jail-mate to his death. He contended the evidence did not justify the court in submitting instructions on 21-411, claiming that the manner in which the injuries were inflicted was not cruel and unusual. This court disagreed, observing that “we cannot say that the treatment given deceased by the defendant was not cruel and unusual.”
In our opinion there was sufficient evidence before the court to require instructions on second degree manslaughter under K. S. A. 21-411 and on fourth degree manslaughter as defined in K. S. A. 21-419, the so-called "heat of passion” statutes. The defendant’s testimony was to this effect: The fatal fracas began when he told Elizabeth he wanted out of their intimate relationship — that he was going to leave town; Elizabeth voiced objection and angry, heated arguments ensued; when she started toward the kitchen, where he thought she had a gun, he followed her; she grabbed a butcher knife and lunged at him; Iris hand was slightly cut; they began to struggle with each other and wrestled over possession of the knife; Elizabeth kept repeating she was going to kill him; both parties were very angry; that once he was kicked in the face when he was down; that he lost all control of himself — lost his cool; he didn’t know how many times he struck Mrs. Cato. The condition of the house could be said to reflect a moving, violent struggle, and there was disinterested testimony that Clark had lacerations across the knuckles of one hand.
In State v. Jones, 185 Kan. 235, 341 P. 2d 1042, we construed heat of passion as meaning any intense or emotional excitement prompting violent and agressive action such as rage, anger, hatred, furious resentment or fear to such an extent that a normal person would be caused to act on impulse without reflection. The defendant’s own testimony would appear to be of such pattern.
The evidence pointing to a lesser offense of which an accused might rationally be found guilty in a given case need not be strong or extensive to require instructions to the jury with regard thereto. (State v. Roberson, supra.) Nor need the trial court be satisfied as to its weight or conclusive character. Long ago this aspect of the rule was given expression in State v. Buffington, 66 Kan. 706, 72 Pac. 213:
“The defendant in a criminal prosecution has a right to have the court instruct the jury in the law applicable to his contention, if it be supported by substantial evidence, however weak, unsatisfactory or inconclusive it may appear to the court. To refuse so to instruct the jury would be to- invade its province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of an inferior degree of the offense charged, but whether there is any substantial evidence tending to prove an inferior degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court so to instruct.” (pp. 709, 710.)
We cannot put it any plainer.
We believe the trial court committed error in still another respect with regard to instructions. In its case in chief the state presented evidence concerning an episode which took place some years before, where the defendant had stabbled his wife. That incident had resulted in Clark’s conviction and he apparently was still on parole.
On several occasions we have discussed the provisions of K. S. A. 60-455. So far as pertinent here the statute provides in substance that evidence that a person committed a crime on a specified occasion is not admissible to prove his disposition to commit a crime as a basis for inferring that he committed another crime on another occasion, but that such evidence is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or knowledge. However, the trial court deviated from the language of the statute and instructed that the evidence was to be considered only as circumstances bearing on the question of “the defendant’s motive, inclination or tendencies, disposition or absence of mistake or accident.” (Emphasis supplied. )
In the very recent case of State v. Clingerman, 213 Kan. 525, 516 P. 2d 1022, we had occasion to examine an instruction very much like tire one given here. In the opinion it was said:
“Evidence of prior crimes cannot be used under K. S. A. 60-455 to establish ‘inclination’, ‘attitude’, or ‘tendencies’. The statute does not include these within the eight possible factors of proof. K. S. A. 60-455 expressly excludes evidence of prior crime if its only purpose is to show a disposition to commit crime, i.e., inclination, attitude, or tendency.” (p. 527.)
The ink used in that opinion is hardly dry. We are satisfied with our decision in the Clingerman case and deem it controlling of the point raised here. Moreover, we cannot say that the error in the instruction could not have resulted in prejudice to the defendant under the circumstances appearing here.
Other points raised by the defendant are somewhat minor in character and we deem it unnecessary to discuss them in view of our disposition of this appeal.
The judgment is reversed with directions to grant the defendant a new trial.
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The opinion of the court was delivered by
Hatcher, C.:
The defendant, C. C. Parrish, was charged with, and convicted of, burning insured property, the Parrish Hotel, Great Bend, Kansas, and the burning of the personal property of another.
On Sunday, October 8, 1967, a fire destroyed the Parrish Plotel. The hotel was owned by the defendant who was in Washington, D. C. on business the night the hotel burned.
The evidence connecting Parrish with the burning consisted largely of hearsay testimony of four principal witnesses. As the appeal challenges the propriety of this testimony it must be reviewed at some length.
The testimony of Sharyn Patterson was summarized in the record. We present it here in part:
“She had known C. C. ‘Monte’ Parrish and Kenneth Christendon for about seven years. She dated Ken Christendon in January, February, May and July, 1967, and moved to Great Bend in August of 1967. She and Christendon were supposed to get married. She and Christendon shared apartment A in the Zahra Hotel in Great Bend with her 10-month old daughter. The Parrish Hotel and Zahra Hotel are located on the same block. She and Christendon lived together in Apartment A until the latter part of September. She then moved to Room 318 and he moved to Room 321 in the Zahra. They had decided not to get married. During this time Christendon was employed by Mr. Parrish. She was employed by Mr. Parrish at the Golden Belt Grill. . . .
“Mrs. Patterson testified that in December, 1966, or January, 1967, Kenneth Christendon told her that Mr. Parrish had told Christendon that Parrish would like to have Christendon burn the Parrish Hotel and to get rid of it for him because he needed the insurance money from it to get back on his feet. This testimony was allowed over the objection of defendant that it called for hearsay testimony.
“. . . She did not have any conversations with Mr. Parrish. Any conversations she had were with Christendon who related what Mr. Parrish told him. ... In the early hours of Sunday morning, October 8, 1967, Chris-tendon told her, while they were in his room, that Ahlf was going to help him burn the hotel down and that they were going to do it Sunday evening. Christendon said he was going to give Ahlf half of what he received for burning the hotel. At the time of this conversation, Christendon was very, very drunk —on the verge of passing out.
“Christendon and Ahlf decided they would have to purchase some gasoline. She suggested that she go get the gasoline. She and Phyllis Hamed Ahlf purchased the gasoline at Mering’s Mobil Station. She testified that they purchased a five-gallon can of gasoline and charged it to the account of C. C. Parrish by signing Kenneth Christendon’s name on the ticket. . . .
“Between 8:15 and 8:30 p. m. on October 8, 1967, Christendon and Ahlf left the apartment. Ahlf asked Phyllis Hamed Ahlf for a bucket of some kind to put gasoline in. They were gone approximately 15 or 20 minutes. When they returned, one of the men stated, ‘Well, we did it’. . . .
“Within a day or two following the fire, Christendon went to Wichita to pick up Mr. Parrish. Christendon was gone overnight. When he returned, he told her that Mr. Parrish just shook his hand real hard and said he did a good job. . . .” (Emphasis supplied.)
The testimony of Thomas Ahlf was also summarized in the record and we present it here in part:
“. . . He came to Great Bend in August of 1967, with the R. H. Fulton Contractors, a pipeline company. He left Great Bend for about 2 weeks, then returned to live with Phyllis Harned and her four children whom he now considers his wife, even though they have not been married.
“He met Kenneth Christendon around the 1st of October, 1967, in the tavern called The Place, operated by Phyllis Harned Ahlf. He saw Christendon every day from October 1 until the night of the fire on October 8. Five or six days before the fire, Christendon offered him half of $5,000.00 if he would help burn down the Parrish Hotel. Christendon said Parrish offered Christen-don the $5,000.00. Defendant’s objection that the reference to Mr. Parrish was hearsay and leading was overruled.
“The night after their first discussion, Christendon and Ahlf discussed plans for burning the hotel. They decided to burn the hotel on a Sunday evening so fewer people would be in the hotel. Christendon suggested starting the fire in tifie furnace room by saturating rags in gasoline and hanging them in front of the furnace. They decided to do it Sunday, October 8, because the wind had died down and they did not want to bum up the whole block.
“On Saturday, October 7, he tended bar at the tavern, The Place, and after closing, Phyllis Harned Ahlf, Sharyn Patterson, Christendon, and he got a couple cases of beer and rode around and drank. . . . He and Chris-tendon together drank 2 or 3 cases of beer between Saturday night and early Sunday morning.
“On the evening of Sunday, October 8, 1967, he was in Apartment A together with Phyllis Harned Ahlf and her children, Sharyn Patterson, and Christendon. About 8:30 he told Phyllis Harned he wanted a plastic bucket to wash the car. He and Christendon left the apartment, got into Phyllis Harned Ahlf’s car, and sat there for about 10 minutes, planning the fire. They then drove around the block into the alley behind the Parrish Hotel. They got the five-gallon gas can out of the car and emptied the contents into a two gallon plastic bucket. They then entered the back door of the Parrish Hotel, went down into the furnace room in the basement. Ahlf testified as to the steps he and Christendon went through in throwing the gasoline into the ceiling joists, soaking a rag in gasoline and hanging it in front of the open furnace door, throwing gasoline around on the floor, and then Christendons igniting the fire by throwing a match back into the room as they started up the stairway. The fire started with sort of a swoosh. It did not explode.
“Ahlf testified that Christendon told him that Mr. Parrish told Christendon that the way they had burned the Parrish Hotel was a $10,000 job. Christendon told Ahlf he was going to give Ahlf $5,000.00. Ahlf testified that he received a 1968 Plymouth Roadrunner, $200.00 cash, and checks amounting to $450.00, on the 21st of December, 1967, in lieu of the $5,000.00 he was to be paid for his part in the burning of the hotel.
“On December 19, 1967, he told Christendon that he was ready to leave for California and wanted a new car. He was going to California to see his folks for Christmas. Ahlf testified that on that same night he had a conversation with Mr. Parrish. The conversation occurred in Mr. Parrish’s car in a field near Christendon’s trailer. Mr. Parrish asked him what his intentions were and Ahlf told Mr. Parrish he was going to California to see his folks and from there to Montana to work for his former employer, R. H. Fulton, Contractors. On the night of December 19, he told Mr. Parrish he wanted a car and Mr. Parrish said it would take a couple of days before he could get it. The cost of the car was $3,195.00. Mr. Parrish told Ahlf that he would make up the difference between the cost of the car and the $5,000.00, but it would have to be worked out so Mr. Parrish would have some way of showing where it went.”
Sharon Cole’s testimony was placed in the record in question and answer form. We summarize:
Sharon and Kenneth Christendon were married in July, 1960. They separated in April or May, 1967, and were divorced August 11, 1967. In the spring of 1967, she had a conversation with Mr. Christendon concerning the destruction of the Parrish Hotel. On request to state to the jury what was said in the conversation, she stated:
“Yes, he came in and he sat down at the table and he said he had been talking to Mr. Parrish. He said they had been talking about the hotel, and that it was about the time of the year, I think, when the inspector came around, and it was to be condemned, and he said it would be a good way — it would be all right if there would be something could happen to get it out of the way, and I thought he was just fooling, but he said it would be a good idea for a fire or something to happen to it, to destroy it and get it out of the way, so it would relieve a lot of bother and pressure there and worry.”
Christendon further stated to Sharon in the conversation that there would be a profit coming to him from Parrish.
Sharon further testified that she had another conversation with Christendon about destroying the Parrish Hotel in September, 1967. She met him in Pratt, Kansas where he was working for Parrish at Christendon’s suggestion that they talk about a reconciliation. The best that Sharon could recall he said:
“A. Well, he said that he would get a chance as soon as he did away with the hotel. He said he was going to pick a time when Mr. Parrish was out of town, and he wouldn’t he — he wouldn’t be suspected in that sense, and he would have the money, and he had an idea about going off to Australia. That he had talked to somebody that worked on the pipeline, and he said they paid to go there, and we could pay off the debts and get a fresh start as soon as this job was done and he collected the money.
“Q. Do you recall if on that occasion any amount of money was mentioned?
“A. He said, $10,000.00.” (Emphasis supplied.)
After the conversation with Christendon at Pratt, Kansas, she went home to her motiber and told her about the conversation. Her mother told her to “stay out of it, to stay away from it, and she did.”
Sharon Cole testified that in March, 1968, she was drinking at a private club in Great Bend, the DAV. At this time she was very unhappy with her former husband, Kenneth Christendon, and she recounted her conversations with Christendon concerning the burning of the Parrish Hotel to Wilbur Root, a Great Bend fireman, who was also at the DAV Club.
The cross-examination of Sharon will be presented when we discuss the issue in which it is involved.
The defendant lodged objections to the hearsay testimony of the witnesses Sharyn Patterson and Sharon Cole, and continues his objections on appeal. The trial court admitted the testimony under the authority of K. S. A. 60-460 (/) which provides:
“(j) Declarations against interest. Subject to the limitations of exception (/), a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected him to civil or criminal liability or so far rendered invalid a claim by him against another or created such risk of making him an object of hatred, ridicule or social disapproval in the community that a reasonable man in his position would not have made the statement unless he believed it to be true;”
The appellant does not challenge the validity or effect of the above provision but contends—
“The testimony of Sharon Patterson as to her conversation with Christendon in December, 1966, and those in September, 1967, and the testimony by Sharon Cole of her conversations with Christendon in the spring of 1967 and also in September, 1967, is not admissible under this exception to the rule. There is no testimony by any witnesses that Christendon told anybody that he was, in fact, going to burn the hotel prior to his conversation on October 2 or 3 with Tom Ahlf in which he allegedly asked Ahlf to help him. The testimony of Patterson and Cole as to their respective conversations was to the effect that Parrish would like to have Christendon burn the hotel and Christendon would be paid for it. They did not testify that Christendon said he was going to do it. Nothing that Christendon said on these occasions was a declaration against his interest, and that is die test under subsection (j). . . .”
The appellant does not challenge the admissibility of the testimony of Thomas Ahlf. We must conclude that the objection made to the testimony of Sharyn Patterson and Sharon Cole is not valid. We cannot agree with appellant’s suggestion that they did not testify that Chritsendon said he was going to burn the hotel. We find quite the contrary. We have set out the testimony of these two witnesses at some length and underscored that part where Christendon made the derogatory statements against his interest. It would serve no useful purpose to repeat them at this point. We must conclude that the statements made to the two witnesses by Christendon subjected him to criminal liability if the hotel burned and created a risk of making him an object of hatred, ridicule and social disapproval in the community.
We find nothing objectionable in the admission of testimony of the preliminaries and circumstances leading up to and surrounding the making of the assertion against the declarant’s interest.
There was no error in the reception of the hearsay testimony.
The appellant next suggests—
“The admission of the testimony of Mrs. Shelby Johnson is undoubtedly the primary issue involved in this appeal. This is not to say that the other errors complained of are unimportant, but the admission of her testimony was extremely prejudicial to the defendant and greatly affected the outcome of the case and was a critical error by the court below.”
Mrs. Shelby Johnson testified, on rebuttal for the appellant, that when her daughter, Sharon Cole, returned home from Pratt where she had talked with Christendon, it was about one o’clock at night. She further testified:
“Q. Were you asleep or awake?
“A. No, I was still up.
“Q. At that time did you have any conversation with her concerning her conversation with Mr. Christendon?
“A. Yes. She said she would like to talk to me, and I told her, ‘All right.’ And she said she had been to Pratt to talk to Kenny, and that he was wanting her to come back to him, and she said she told him that they owed too many bills, and too many things had happened, and she just didn’t see how they could do it.
“Q. All right, was anything said by her as to conversation between them concerning the Parrish Hotel?
“A. Yes. She said that while they were talking that Kenny said that whenever he succeeded in getting the hotel burned he would get a sum of money, approximately $10,000.00, and well, with that they could pay their bills and could go to Australia and start a new life.”
It is conceded by the appellee that the sole purpose of the testimony of Mrs. Johnson was to bolster the testimony of Sharon Cole.
Both parties rely on State v. Fouts, 169 Kan. 686, 221 P. 2d 841, where we held:
“The general rale is that prior statements of a witness, consistent with his testimony at the trial, are not admissible in corroboration of his testimony unless he has been impeached or his credibility as a witness has been attacked.” (Syl. 14.)
We must look to the record to determine the issue. Was Sharon Cole impeached or her credibility as a witness attacked?
On cross-examination Sharon’s chastity was questioned for the purpose of attacking her credibility. The following was elicited on cross-examination:
“After work once or twice, while she was still married to Christendon, she went to the home of the police officer she was dating.
“Prior to the summer of 1967 she dated a Frankie Turner who was about nineteen years old. She also occasionally went out with an Earl Allen who was about forty-five years old. At the time of the trial Mrs. Cole was 25 years old. . . .”
Appellant’s counsel also cross-examined Sharon at some length as to her testimony on the witness stand and what she had told the fireman when she reported the cause of the fire. It appears that she had told the fireman Christendon was to receive $5,000.00 and in her testimony at the trial she mentioned $10,000.00.
Sharon further testified on cross-examination:
“Q. Now, you say that at the time you were out at the DAV Club, you discussed this matter with Mr. Root?
“A. Yes sir.
“Q. You were mad at your husband?
“A. Yes, sir.
“Q. During the times that you say these conversations occurred between you and your husband, did you ever tell your husband that you were going to report these to the authorities at any time?
“A. No.
“Q. When you say your husband and you were discussing reconciliation in the late summer or early fall of 1967, and this came up about taking th¡e $10,000.00 and going to Australia, did you tell him you didn’t want to have any part of that?
“A. No, sir.”
We are forced to conclude that the facts established on cross-examination did tend to impeach the credibility of Sharon and attack her credibility. The corroborating testimony of Mrs. Shelby Johnson was therefore admissible to rehabilitate or support the witness.
The appellant objects to the testimony of the appellee’s expeirt witness, one of the firemen present when the hotel burned. The fireman based his opinion that the fire was of an incendiary nature solely upon his observations while he was on duty at the fire.
The appellant contends that observation of the fire itself, without more, is insufficient to enable an expert to express an opinion as to the cause of the fire. This argument may be proper in considering the weight of the testimony but not admissibility. In State v. Gore, 152 Kan. 551, 106 P. 2d 704, we stated at page 555 of the opinion:
“It is well to bear in mind at the outset that the admission of opinion evidence in prosecutions for arson is governed by the same rules as are applicable in prosecutions for other crimes. (2 R. C. L. 518; 4 Am. Jur. 108 [Arson],, § 52.) The general rule is, if a witness has acquired peculiar knowledge or skill, by experience, observation or practice on a subject with which the mass of mankind is not supposed to be acquainted, he may give his opinion on it. (State v. Nordmark, 84 Kan. 628, 631, 114 Pac. 1068; State v. Parsons, 140 Kan. 157, 160, 33 P. 2d 1096.) . . .”
The appellant complains because the trial court denied his motion for a change of venue.
The appellant submitted but seven affidavits in support of his motion. Of the 75 jurors sworn and empaneled only 32 were dismissed for having formed an opinion. It appears there was no difficulty in obtaining a jury from the other 43 empaneled. It also appears that counsel for appellant spent 12 days interviewing people in Barton County to obtain the seven affidavits mentioned. Counsel for appellee in less than five hours obtained twenty-three affidavits stating that the appellant could receive a fair trial in Barton County.
A motion for change of venue is addressed to the sound discretion of the trial court. (Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P. 2d 786.) We find nothing which would support the claim of prejudice in not granting a change of venue.
The appellant complains of the trial court’s failure to give the following instruction:
“In determining the weight and credit to be given a testimony of an admitted accomplice, the jury should exercise caution and receive such testimony with care.”
The trial court refused to give the instruction, stating:
“This request is denied on the belief that the eredibility-of-witnesses instruction that the court is giving is adequate as a measure for the jury to use in testing the testimony of any of the witnesses. The court would rather not pinpoint particular witness’s testimony to the jury if it can be avoided. To give the instruction requested by Mr. Martin would, in effect, be encouraging the jury to use a stricter test of credibility as to witnesses Sharyn Patterson, Sharon Christendon Cole, and Thomas Ahlf, and arguably, even as to their own witness, Kenneth Christendon. I do not believe I should do that.”
The credibility of witness instruction given by the trial court was as follows:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with men in general, in regard to the matter about which a witness has testified. You may take into account his ability and opportunity to observe and know the things about which he or she has testified, his memory, manner, and conduct while testifying, any interest he may have in the result of this trial, and the reasonableness of his testimony, considered in the light of all the evidence in this case.”
This question was discussed at considerable length in State v. Wood, 196 Kan 599, 413 P 2d 90, where we held:
“In the trial of a criminal action, failure of the court to instruct the jury that the testimony of an accomplice should be considered with caution does not constitute reversible error when the testimony of the accomplice is fully corroborated and amounts to merely cumulative evidence and where the jury was instructed as to their duty to consider the weight of evidence and credibility of witnesses.” (Syl. ¶ 2.)
The necessity for many of these tautological instructions is losing force when a case is being considered by our present enlightened jurors. In State v. Miller, 83 Kari. 410, 111 Pac. 437, we said:
“. . . Without such an instruction a jury of ordinary intelligence would naturally receive with caution the testimony of a confessed accomplice. . . .” (p. 412.)
A careful examination of the record discloses no trial errors which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Harman, C.:
This is an action to foreclose a security interest in a number of cattle in possession of a rancher at the time of his death. In trial to the court the plaintiff bank prevailed. Ten defendants who claimed ownership to about two-thirds of the cattle have appealed.
This dispute stems from the cattle operations of Paul Roush, a reputable Greenwood county rancher, who was accidentally electrocuted August 8, 1966.
During his lifetime Roush conducted four types of enterprises involving cattle: (1) He raised cattle in partnership with others; (2) he conducted large scale grazing operations in which he pastured cattle belonging to other persons on land he rented; (3) he raised cattle owned by himself individually; and (4) under contractual arrangement he bought, cared for and sold cattle belonging to others. The disputed claims in. this suit arise from the last two operations. Ascertainment of the facts regarding them has been complicated because Roush’s personal business records were destroyed by fire in the same incident in which he lost his life.
Plaintiff, the First National Bank of Madison, Kansas, contends the 208 cows, together with certain calves, which were in Roush’s possession at the time of his death, were cattle owned by Roush individually and therefore subject to the security agreement entered into by Roush with it; the ten defendants claimed absolute ownership of 143 of these same cattle under contractual arrangement with Roush. After the bank filed this lawsuit a receiver was appointed, the cows and calves (along with a number of steers and bulls) were sold and the sale proceeds turned in to the trial court for disposition. So far as possible each cow sold was separately identified by the receiver and a record kept of the sale price of each cow. The amount of the bank’s claim exceeds the net proceeds of the sale.
The evidence at trial included the testimony of the bank’s president, a rancher neighbor to Roush who was appointed receiver, and of the ten contract cattlemen as well as exhibits in the form of bank records, and contracts and checks passing between Roush and the contract cattlemen, revealing the following:
Roush, as a cattleman, had been a customer of the appellee bank for twenty years prior to his death, both as depositor and borrower. He had been indebted to the bank since some time prior to 1958. Frequently the bank would honor drafts he drew for the purchase of cattle although he had no funds on deposit to cover them. Annually his indebtedness would be consolidated and renewed in the form of a chattel mortgage. Roush’s indebtedness to the bank was a continuing one. In December, 1962, he owed it $38,082.25 and as security had mortgaged 159 cows and other property. On December 30, 1963, the number of his mortgaged cows had been reduced to 144. Between that date and the time of his death the bank financed his purchase of seventy-nine cows and forty-nine calves. During this period he sold some cattle with permission of the bank. Roush purchased forty-two cows and twenty-eight calves with bank money during the six months preceding his death. The bank’s security agreement sought to be foreclosed here was entered into by Roush May 23,1966, covering 210 Hereford and Angus cows three to six years old as well as other livestock and ranching equipment. The instrument recited: “This chattel mortgage is intended to and does cover all our livestock, cattle and horses and all equip ment cars-trucks, etc.”, and was given along with a financial statement, in security of Roush’s promissory note in the sum of $61,374.75. The security instrument was duly recorded. Soon after its execution the bank president viewed cattle in a pasture identified by Roush as the cattle covered by the agrément.
Sometime in 1963 Roush, aided by two agents, developed a plan to enter into contracts with persons wishing to invest money in the cattle business. Generally, the plan provided that the investor, called a contract cattleman, would furnish Roush money to buy a cow and would pay Roush in advance to keep the cow for him. When a calf was produced Roush was to receive for future care of the cow either sixty per cent of the price of the calf at the time of marketing or $5.00 per head per month. The contract cattleman would own the cows and calves and share in the proceeds from calf sales. Roush was to provide all services and do all the work in caring for the cattle and make all decisions as to sale. Each contract cattleman initially paid Roush $110.00 per cow for its purchase plus $89.00 to maintain it for eighteen months or until its first calf reached marketable age. Roush was to buy cows at auction for the contract cattlemen. In January, 1963, Roush opened an account in appellee bank styled “Roush Cattle Company”, ostensibly to serve the contract cattle program. By October, 1963, he had begun to commingle in this account other funds representing both the purchase and sale of cattle having no connection with the contract program and in June, 1965, this account was closed. Meanwhile, during 1963 and 1964 Roush entered into separate written contracts with appellants for the handling of cattle under the program. Only two or three of the appellants were acquainted with each other prior to this litigation and each acted separately in dealing with Roush. In all, appellants over a period of time contracted with Roush for the purchase and handling of 143 cattle which, together with whatever calves may have belonged to these cows, are the subject of appellants’ claims here. Appellants each claim ownership of from five to forty-nine cows. Apparently other persons had also entered Roush’s contract program but in some manner had left it prior to Roush’s death.
At various times Roush purportedly sold calves belonging to appellants and remitted their forty per cent to them. These payments were always, uniform, each appellant receiving the same price for exactly the same weight calf. Occasionally some one of the appellants would appear at Roush’s ranch and Roush would point to a cow and say, “That’s one of your cattle.” Roush kept his own cattle and those of the contract cattlemen in the same pastures.
Roush possessed two registered brands. The first, the 4-F brand, was registered in 1943. In October, 1963, he registered one known as the Slash Open A. The evidence was somewhat conflicting respecting the purpose and use of these brands. There was testimony the old brand tended to splotch and Roush desired one wherein the marks did not cross as in the latter. The appellants offered testimony their cattle were to bear the latter brand and an individual number as well identifying each contract cattleman. Roush used the Slash Open A brand on some cattle purchased or produced after initiation of the contract cattle program but having no connection with it. At the time of his death, twenty-four cows bore the 4-F brand, forty-five bore the Slash Open A brand with a number, sixty-six bore the Slash Open A brand without a number and the remainder bore no brand at all.
There was no evidence that anyone had paid taxes on the cattle in question. There was evidence no cattle were listed for taxation in the name of any of the appellants.
We have not attempted to set forth all the evidence before the trial court and will not detail it further except in connection with the trial court’s findings.
Two trial errors urged by appellants should be mentioned first. They contend the trial court erroneously excluded two exhibits from evidence. These consisted of a letter and a brochure addressed to prospective contractors in the cattle program describing in glowing terms how the program operated and the opportunities presented from the investment and income tax standpoint.
The basis of the trial court’s ruling excluding these documents from evidence apparently was that they had not been mentioned at the pretrial conference where all exhibits were expected to be produced, and no mention of them had been made either to the court or adverse counsel prior to trial. This alone could form a satisfactory basis for the ruling. Moreover, the written contracts and purchase orders entered into between Roush and appellants were in evidence and appellants testified fully as to their prior negotiations with Roush and his agents. The proffered exhibits contained little if any relevant information not made known to the trial court through other testimony and must be considered cumulative. Re versible error in any event could not be predicated upon the exclusion.
Appellants complain the trial court erroneously shifted the burden of proof to them to prove ownership of the cattle rather than permitting it to remain upon appellee as plaintiff in the action. Although the trial court did use some language respecting the burden to be sustained by appellants in establishing their claim to the cattle, we think that overall it left the requisite burden upon the appellee bank to sustain its claim. Appellants concede each side had to establish its claim to the cattle by evidence before it could prevail. The trial court found favorably to appellee, concluding as a fact that the bank had established a security interest in the cattle. Implicit therein is a finding of ownership in Roush.
We turn now to those findings, and reasons given therefor, which are really the target of appellants’ skillfully presented position upon appeal. Their remaining specifications of error are such they must fail if the trial court’s findings of fact are sufficiently supported by the evidence.
The trial court discussed the evidence at length in a comprehensive memorandum opinion. Factors taken into account in its finding that the cattle in question were subject to the security agreement included the age and productivity of the cows in relation to the date and the purpose of their purchase; indicia of title in Roush including their possession by him and use of his registered brands, such use being forbidden by law upon cattle belonging to anyone else; the continuous furnishing by the bank of money to Roush with which to buy cattle and a long continued course of dealing with the bank which did not change immediately preceding his death; Roush’s representation the cattle in question were the ones covered by the security agreement; statements by him to a neighbor upon seeing a fat calf, “That is mine and [the banker’s] calf.” The court commented on the paucity of evidence as to Roush’s actual dealings under the contract cattle program including the statement that no particular cow could be identified as having in fact been purchased for any of the appellants nor was there any showing in their behalf of the specific ownership of any cow; also no showing was made that calves had actually been sold at the times Roush made the always uniform payments to appellants for calf proceeds under their contracts.
This is essentially a fact case. The purchase and disposition of cattle were evidentiary matters for the trial court to weigh and we must conclude its findings were sufficiently supported by evidence. Upon appellate review conflicting evidence and inferences to be drawn therefrom supporting a view contrary to that arrived at by the trial court are, of course, to be disregarded.
Appellants urge application of the equitable doctrine that where one of two innocent parties must suffer from the wrongdoing of a third person, the burden should fall upon the one whose conduct occasioned the loss. They point to evidence that two of them consulted the bank’s president as to Roush’s reliability as a cattleman prior to investing in the program. The banker reported he considered Roush reliable; he also told them how Roush operated and what he owed the bank but did not tell them the bank had transferred some of his indebtedness to its reserve account. The inferences to be drawn from this latter omission are conflicting. The banker explained the transfer was made for the purpose of enabling the bank to increase its reserve and did not mean the borrower was a bad risk; if the bank had a borrower who it knew was not going to pay off for three or four years it was the bank’s policy to transfer part of the debt to the reserve account so it could transfer monies out of the profits to the reserve account; this was generally done for cattle customers and that such a transfer was no reflection on the borrower. Before the equitable doctrine would be applicable the disputed inferences of fact would have to be resolved favorably to appellants, which we cannot do upon appeal. Appellants in their brief frankly state they relied on the integrity and ability of Roush. The record of trial reveals no explanation for the shortage of cattle at the time of his unfortunate death, but for which these conflicting claims might all have been satisfied.
Finally, appellants urge the cows on hand at the time of Roush’s death bearing the Slash Open A brand, along with a pro rata share of calves, be declared to be their property, but in view of the trial court’s findings of fact we are aware of no legal theory under which we can so compromise and modify the judgment.
The judgment appealed from is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment of the district court of Sedgwick county denying relief to a fireman who appealed from an order of the Board of Trustees, Policemen’s and Firemen’s Retirement System of the City of Wichita denying his application for service-connected disability benefits.
The general facts, which are all that are necessary for the determination of the issues presented on appeal, may be roughly stated as follows:
On August 18, 1967, appellant was employed by the city of Wichita as a fireman. On that date appellant fell off a fire truck while in the process of fighting a fire and hurt his back. He reported the injury to his supervisor upon returning to the fire station and called the fire department’s doctor who referred him to an orthopedic surgeon, Dr. Eugene Kaufman. Upon calling Dr. Kaufman’s office the appellant learned it would be a couple of weeks before he could get in to see the doctor. The following day, August 19, 1967, the appellant began his yearly vacation and saw the doctor at the previously arranged time and date. Shortly after this visit the appellant was hospitalized and did not return to work at the fire department after the day of the fall.
The appellant remained absent from his regular duties as a fireman by drawing injury leave pay. The maximum period of time during which this pay could be received expired on March 4, 1968. Shortly before that date appellant resigned from the fire department and filed an application for service-connected disability benefits. Mr. Lauchland, secretary to the appellee, received this application along with a letter from William Spriggs, attorney for appellant. At the March 13, 1968, meeting of the appellee it determined to take up appellant’s application at the April 10, 1968, meeting. Some members of the Board also expressed the opinion that it was improper for an attorney to be involved in the representation of an applicant.
Lauchland then sent out forms to Dr. Kaufman and Dr. K. W. Binyon, the fire department’s doctor. These forms were filled out and returned to the appellee by the doctors. Those doctors concluded that appellant was permanently disabled. Mr. Lauchland then wrote a letter to Dr. Leon Bauman and received a response regarding the reports of Drs. Binyon and Kaufman. In Dr. Bauman’s report he concluded that appellant was unable to perform the duties of a fireman. At the next meeting of appellee on April 10, 1968, the appellee determined that additional medical information was necessary and directed Lauchland to make an appointment for appellant with another orthopedic physician. Lauch land then made an appointment with Dr. Hany Anderson, an orthopedic specialist. Dr. Anderson examined appellant, wrote a report to the appellee, and concluded: “I see no reason why this man should not be able to do some type of work.” Upon receipt of this report Lauchland wrote a letter to Dr. Bauman who responded that he would agree with Dr. Anderson. The service-connected disability benefits depended upon inability to perform services as a fireman.
On June 19, 1968, the appellee had a meeting at which it determined that appellant was not entitled to- a service-connected disability pension. After the appellee had made its decision it sent a copy of Dr. Anderson’s report to Mr. Spriggs, appellant’s attorney. At no time was either appellant or Mr. Spriggs notified of any board hearing nor were they permitted to make any presentation of their own case. The appellee made no transcript of the meeting at which appellant’s application for benefits was denied. During the preparation of the trial of this case the deposition of Dr. Anderson was taken and Dr. Kaufman testified personally. Each of these doctors concluded that appellant was unable to perform the duties of a fireman. Friends and neighbors of appellant testified that appellant has been unable to function as well as he did prior to the fall.
The trial court concluded that appellant was not entitled to a trial de novo in his appeal from the decision of appellee and that the question was limited solely to whether the board was arbitrary and capricious. The trial court ruled that the board was not arbitrary and capricious and upheld the decision of appellee.
The appellant has appealed to this court.
Appellant first contends that he is entitled to a trial de novo when appealing to the district court from an order or decision of an administrative agency or tribunal under the provisions of K. S. A. 60-2101.
In the recent case of Lauber v. Firemens Relief Association, 202 Kan. 564, 451 P. 2d 488, we held:
“The provisions of K. S. A. 60-2101 (a) are construed and it is held they do not authorize the district court to consider an appeal from an administrative agency or tribunal in a trial de novo, nor do they enlarge the jurisdiction of the district court to review administrative matters beyond limitations heretofore imposed by the law of this state. The application of the provision therein for expanded jurisdiction over appeals from judicial bodies lies only in cases where the district court would have had original jurisdiction in the first instance.
“A district court may not, on appeal, substitute its judgment for that of an administrative agency or tribunal, but is restricted to considering whether, as a matter of law: (a) the tribunal acted fraudulently, arbitrarily or capriciously; (b) the administrative order is substantially supported by evidence; and (c) the tribunal’s action was within the scope of its authority.” (Syl. ff 2 and 3.)
The appellant recognizes the effect of the Lauber decision but questions its conclusion and asks us to reconsider it. He calls our attention to the last sentence of 60-2101 (a), which reads:
“. . . When an action is filed in the district court on appeal or removal from an inferior court the jurisdiction of the district court shall not be limited to only such matters as were within the jurisdiction of the lower court, and the district court may by order permit the issues to be enlarged in the same manner and to the same extent as if the action had been originally commenced in the district court.”
Appellant then suggests:
“It is clear that these provisions give the district court authority to hear matters which could not have been heard in the lower tribunal if the district court had jurisdiction to hear the case originally. Presumably therefore, if the court could not have heard the case originally, it could not hear matters which the lower tribunal could not have heard; however, this is not to say that the district court cannot hear all matters which the lower tribunal could have heard. . . .”
Again we suggest that the particular provision refers only to “inferior courts” and not quasi judicial bodies. If the courts were allowed to hear such matters de novo and substitute their judgment for that of the administrative agency or tribunal they would be usurping the power delegated by the legislature to the administrative department. In the late case of Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239, we held:
“By reason of the constitutional inhibition known as the separation of powers doctrine, the legislature may not impose upon the judiciary the function of a trial de novo of action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.” (Syl. f 4.)
The rule was again recognized in the recent case of Goetz v. Board of Trustees, 203 Kan. 340, 454 P. 2d 481. See, also, Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, where the rule was applied in an action attacking the reasonableness of a zoning ordinance under the provisions of K. S. A. 12-712.
Appellant further contends that—
“The failure of the board to allow appellant to be present and to notify him of the hearing and to provide a process by which appellant could present his case to the appellee was arbitrary and capricious and denied appellant of due process of law.”
We are inclined to agree with appellant on this contention. The constitutional guaranty of due process of law applies to administrative as well as judicial proceedings where such proceedings are quasi judicial in nature.
Where an administrative body acts in a quasi judicial capacity, a person whose substantial rights may be affected by the action taken is entitled to notice, the right to be present at the hearing and the right to be heard. This court so ruled in Penquite v. Dunn, 123 Kan. 528, 256 Pac. 130. We quote:
“It hardly needs to be emphasized here that by virtue of plaintiff’s contributions to the creation of the firemen’s relief fund he had an interest in that fund which could not be cut off by the mere ex parte nonjudicial action of the board where plaintiff had no chance to present his side of the controversy and have it fairly considered. (Reno Lodge v. Grand Lodge, 54 Kan. 73, 80, 37 Pac. 1003; Supreme Lodge v. Raymond, supra [57 Kan. 647, 47 Pac. 533].)
“More in accord with our view is the case of Stevens v. Minneapolis F. D. R. Asso., 124 Minn. 381, 50 L. R. A., n. s., 1018, where it was held that a fireman had a vested right in a pension fund in which he had contributed out of his wages; and that such a fireman injured in the course of duty had a claim for a pension out of that fund of which he could not be denied except by due process of law; and that the action of the defendant association in cancelling his right to a pension without notice and a chance to be heard was illegal and void. . . .” (p. 530.)
We are not impressed with appellee’s suggestion that the appellant had constructive notice because the Board’s meeting dates were fixed by the by-laws and employee’s personnel manual and all members were given the right to attend such meetings. The appellant was never notified as of what meeting date his application would be heard.
Neither are we impressed with appellee’s suggestion that an appeal under K. S. A. 60-2101 (a) cures any technical defect in due process. This rule is not applicable where a trial de novo is not permitted on appeal. The applicant must have one trial de novo where he has notice and an opportunity to be heard.
We have said:
“. . . The fundamental requisite of due process is notice and an opportunity for a full and complete hearing. . . .” (Carrigg v. Anderson, 167 Kan. 238, 246, 205 P. 2d 1004.)
Also, in Rydd v. State Board of Health, supra, we held:
“Procedural due process requires that an applicant for license pursuant to K. S. A. 65-504 be given notice and opportunity for hearing by the state board of health before he may be denied a license on the ground of personal unfitness.” (Syl. ¶ 6.)
The appellant suggests that the failure of appellee to allow appellant to be represented by counsel was arbitrary and capricious and contrary to due process of law.
As this matter must be returned to the board for a hearing in the absence of notice and opportunity to be heard at its first ex parte consideration, it would serve no useful purpose to enter into the argument as to whether or not appellant was denied counsel at the hearing. It will suffice to say for future guidance that appellant should have been allowed to appear with counsel if he so desired.
The right of counsel where an applicant’s substantial rights may be affected is a part of due process of law. In Richa v. Wichita Precision Tool Co., 190 Kan. 138, 373 P. 2d 201, we stated at page 142 of the opinion:
“Our system of jurisprudence is founded on the proposition that every litigant has a right to be heard. The right to be heard carries with it the absolute right to be represented by counsel, and the right of counsel to assist the court by oral argument in analyzing the evidence and applying the law.”
The appellant complains of appellee’s failure to make findings of fact.
The grounds upon which an administrative agency has acted should be clearly disclosed. In order for the reviewing court to determine whether the decision reached is reasonable and lawful it is necessary that the decision contain a finding of the pertinent facts upon which it is based. In Rydd v. State Board of Health, supra, we held:
“When pursuant to K. S. A. 65-504, the state board of health refuses to grant a license to an applicant, it should furnish a concise, explicit statement of the basic, underlying facts relied upon to support the order of denial.” (Syl. f 7.)
Without findings on the basic issues it is impossible for a reviewing court to determine whether the decision is contrary to the evidence.
The failure of the appellee to meet necessary procedural requirements on its first consideration of appellant’s application requires that the matter be remanded to the appellee for a complete hearing.
The judgment is reversed with instructions to the district court to remand the case to the Board of Trustees, Policemen’s and Firemen’s Retirement System, Wichita, Kansas, for a hearing in harmony with what has been stated in this opinion.
APPROVED BY THE COURT.
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The opinion o£ the court was delivered by
Harman, C.:
The issues here are the amount of rent due upon a leased motel property and whether the lease should be forfeited.
The proceeding is a sequel to Groendycke v. Town & Country Lodge, Inc., 202 Kan. 126, 446 P. 2d 730, insofar as the Western Trails Motel lease is concerned. There, in reversing the trial court, we construed certain provisions of the lease and held that credit for overpayment of rent during the first year could not be carried forward beyond the next subsequent year, and we remanded the case for further proceedings to determine the rights and liabilities of the parties. The present appeal challenges the trial court’s judgment rendered after the cause was remanded. Reference is made to the prior opinion for further background facts.
That opinion was filed November 9, 1968. On November 15, 1968, appellants therein (plaintiff lessors in the action and appellants also in this appeal) filed a motion for rehearing. On November 19, 1968, counsel for appellees in that appeal (defendant lessees in the action and appellees also in this appeal) forwarded to counsel for appellants a form of decree conforming to the mandate, entering judgment for appellants for $11,691.20 less a counterclaim of $4,828.82 in favor of appellees, or a net amount of $6,862.38 which appellees contended was the correct amount of rent due appellants under our decision. Appellants’ motion for rehearing was denied by this court December 11,1968. On December 13, 1968, appellants forwarded to appellees written notice of termination of tenancy for nonpayment of rent. On December 20, 1968, appellees delivered to appellants a check for $6,862.38. Appellants refused to accept this check and returned it to appellees and filed their motion in the trial court for further judgment in accord with our mandate. In this motion appellants contended the total amount of rent due was $13,587.73, from which should be deducted appellees’ counterclaim of $4,828.82, leaving a net judgment of $8,758.91.
The trial court heard the entire matter on February 7, 1969. The issues presented to the court were the amount of unpaid Western Trails rent and whether the lease had been breached and should be terminated. The only new evidence offered consisted of correspondence between the parties indicating the income and expenses of the motel operation each year and the December 13, 1968, termination notice. No purely factual issue was raised. At the hearing appellants presented a new computation of rent which they contended was then due them under the lease. On February 13, 1969, the trial court accepted appellees’ computation of rent due, that is, the sum of $6,862,38, and held appellees were not in default of rent payments on the Western Trails lease on December 13, 1968, (the date appellants served them with the termination notice) and therefore the lease had not been breached and was not subject to termination for nonpayment of rent.
The first question raised upon appeal concerns the amount of rent due. The lease provided:
“The term shall be for a term of 25 years commencing on the 1st day of April, 1962, and terminating on the 1st day of April, 1987, the consideration for the same to be paid by the Lessees to the Lessors in monthly payments commencing on the 1st day of April, 1962, at $2000.00 and continuing in such amount until the 1st day of April, 1987, it being understood that such monthly rental is intended to be equal to one-twelfth of $24,000, less one-twelfth of one-half of the difference between $48,000.00 and the annual net profit of the motel if such annual net profit shall be less than $48,000, or, in the alternative, plus three-fourths of the difference between the annual net profit and $48,000.00 if such annual net profit shall be more than $48,000.00. If the annual net profit in any one year is less than $48,000.00, then the monthly payments for the subsequent year shall be adjusted accordingly and the Lessees shall receive credit on monthly payments for the overage paid during the year just completed for the subsequent year. When the annual net profit is more than $48,000.00 the difference shall be paid by the Lessees to the Lessors not more than thirty days after the close of the fiscal year, such year to run from the 1st day of May each year to the 1st day of May each year. It is further understood that rental paid shall not be considered in computing the net annual profit.”
The amounts of net profit arising from operation of the motel are not in dispute, appellants having accepted the figures submitted by appellees. The rental question arises in this fashion: The motel property included a service station which was rented to the Texaco Oil Company. Texaco paid the station rental to appellees by monthly checks. Appellees in turn forwarded Texaco’s rental checks to appellants requesting that appellants endorse and return the checks to them. Appellants kept certain of these checks totaling $4,828.82, crediting them on the rent they contended appellees owned. The trial court initially allowed this amount as a counterclaim in favor of appellees and against appellants. The amount of the counterclaim and its propriety are no longer in dispute.
The parties are in agreement the Texaco rentals are to be considered part of appellees’ motel earnings but do not agree as to the method or time when these rentals should be counted as a part of the net profits for the purpose of determining the total rent due under the lease. The tidal court, following appellees’ suggestion that lessees were on a cash basis and Texaco rentals should not be credited until the end of the 1968-1969 fiscal year, or termination of the lease, ruled that credit for the counterclaim should be given in the accounting of the parties at the end of the then current year, March 31, 1969. Appellants initially argued they were entitled to have the Texaco rent treated as income to appellees during the years it was actually paid by Texaco for the purpose of enhancing the net profits and thereby increasing the rent. Appellants’ later computation as contained in their exhibit 4 presented to the trial court was made in response to appellees’ contention they were operating on a cash basis. Appellees say it does not make any difference in the long run when the counterclaim is treated as income. Re that as it may, we think the proper method of computation under the provisions of the lease already set out is as initially urged by appellants and as contained in their computation accompanying their December 13, 1968, notice to appellees to terminate tenancy, or the sum of $8,758.81 as of December 1, 1968. Under this method the Texaco rentals are to be considered a part of the net profits of the motel operation each year, rather than at the end of the 1968-1969 fiscal year, and such rentals withheld by appellants are to be considered as part payment of the rent due. As we understand the matter, appellants retained, and appellees continued to send, the Texaco checks only after dispute had arisen between the parties as to the rent due following the first two years’ operation. Having resolved that dispute against appellees in the former appeal, we know of no reason why appellants should be deprived of the benefit of those rentals in determining the total due them.
The principal issue in the appeal is whether appellees have, by their failure to pay rent, breached the lease so as to permit its forfeiture. Several questions are involved in the determination of this issue; the first we shall consider is sufficiency of the notice of termination.
The lease contained the following provisions:
“11. It is further agreed between the parties hereto that if the Lessees shall become in default in the payment of any sums due hereunder for a period of sixty (60) days or more, that the Lessors shall have the right to terminate this lease by giving ten (10) days written notice thereof, and in such event the Lessors shall be entitled to the immediate and peaceable possession of such premises. In such event any sums received hereunder by the Lessors from the Lessees shall be kept by the Lessors as liquidated damages.
“13. Time is of the essence of this lease.”
Appellees challenge in several respects the efficacy of the December 13, 1968, notice of termination, but appellants correctly point out that in addition to this notice they had previously, on December 17, 1963, served appellees with written notice of termi nation of the lease for, among other grounds, nonpayment of rent and further they commenced this action January 24, 1964, seeking cancellation of the lease for nonpayment of rent and they have continuously sought cancellation in this action, the rent having remained unpaid since April 1, 1964.
We think appellants’ position in relying on maintenance of this suit as their notice and demand for forefeiture is well taken. The filing and maintenance of this action by them clearly gave appellees notice of default because of nonpayment of rent and clearly expressed appellants’ intent to forfeit the lease because of the default. This positive manifestation of intent gave appellees ample opportunity to correct the default and sufficiently satisfied the notice proviso in the lease (see 51C C. J. S., Landlord & Tenant, § 114 [3]). The December 13, 1968, notice becomes unimportant.
A lessor ordinarily may terminate a lease, pursuant to a forfeiture clause contained therein, for lessee’s breach of covenant as to payment of rent. However, the right to forfeiture for nonpayment of rent is subject to judicial control and relief may be granted therefrom where special circumstances warrant denial of forfeiture (51C C. J. S., Landlord & Tenant, § 110a.; § 110c.). An excellent annotation on the subject of relief against forfeiture of a lease for nonpayment of rent may be found at 31 A. L. R. 2d 321. At page 348 the annotator, citing supporting authority, states:
“Wilful, calculated, or persistent failure to pay rent pursuant to the terms of a lease, under circumstances negativing exercise of good faith, may prevent relief from a forfeiture of the lease upon that ground.”
And at page 350 we find this:
“Where a default in the payment of rent under a lease occurs and subsists without apparent justification or legal excuse or a showing that it would be inequitable to enforce a forfeiture of the lease, made pursuant to its terms, the lessee is not entitled to relief.”
In Kanakry v. Sayles Finishing Plants, Inc., 53 R. I. 455, 167 A. 121, the complainant lessee was seeking relief from a forfeiture declared by his lessor for nonpayment of rent. In affirming a decree against the complainant the court stated:
“The relief sought by complainant is not a matter of right.
“Some facts must be shown which would render it inequitable to permit the lessor to enforce his legal rights. The provision in a lease for a term of years for forfeiture for nonpayment of rent is valid and enforceable . . . and equity will not relieve against a plain violation of a contract without any circumstances of justification or excuse.” (p. 457.)
Appellees contend forfeiture for nonpayment of rent should be denied where a good faith controversy exists as to the amount of rent due and they cite authority for this view, the soundness of which we do not question. Appellees state the parties have been in continuous disagreement as to the rent since the first year of operation of the motel. However, the disagreement has not been over the particular amount due under the lease formula of computation — a matter not free from difficulty — rather appellees have taken the position, as stated in our prior decision, no rent at all was due because of their privilege to carry forward credits into subsequent years, with the result no rent would be due until 1978. Appellants argue we responded that such construction by appelles “violates the plain and unambiguous language of the lease provision in question.” (Groendycke v. Town & Country Lodge, Inc., supra, p. 129.)
The lease in question here was prepared by appellees. As we pointed out in the first appeal, “It plainly states that if the annual net profit in any one year is less than $48,000.00 then the monthly payments for the subsequent year shall be adjusted accordingly and the lessees are to receive credit on monthly payments for coverage paid during the year just completed for the subsequent year. In other words — credit for ‘overage’ is to be carried forward for only the subsequent year — and not beyond.” (pp. 129-130.)
In 49 Am. Jur. 2d, Landlord and Tenant, § 143, we find this:
“One who prepares a lease is responsible for the language used, and should not be allowed to demand an interpretation upon a basis different from the language used or different from that of the plain and ordinary meaning of the words used.” (p. 171.)
Appellees persisted over a long period of time — since April, 1964 —in refusing to pay any rent as such. We can only characterize this as willful, calculated and arbitrary. The circumstances negative the exercise of good faith. We have examined the entire record relating to this particular lease and the equities inherent therein so> far as lessees are concerned and, under the undisputed facts, we find nothing warranting a denial of forfeiture. We think the trial court erred in denying forfeiture and so hold.
The judgment of the trial court is reversed with directions to enter judgment for appellants for forfeiture of the lease and further to recompute the amount of rent due appellants up to the time of such forfeiture in accord with the views herein expressed and to enter judgment thereon.
APPROVED BY THE COURT.
Price, C. J., and Fromme, J., dissent from that portion of the opinion ordering a forfeiture of the lease.
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The opinion of the court was delivered by
Harman, C.:
Plaintiff brought this action to recover on a promis sory note. Defendants admitted execution of the note but sought to avoid it by alleging the execution was under duress.
The trial court found the facts were insufficient to sustain the allegation of duress and entered summary judgment for plaintiff for $8,000, the balance due on the note. Defendants appeal from that order.
Defendant R. R. Greenbaum is an individual doing business under the name of Time Petroleum Company; defendant California-Time Petroleum, Inc., is a corporation of which defendant Greenbaum is president and sole stockholder. Hereafter we shall refer to defendants in the singular, either as appellant or Greenbaum.
At the time of rendition of summary judgment the court had before it the depositions of appellee, appellant and a California attorney who represented appellant in connection with the signing of the note in question, together with numerous exhibits. These latter consisted principally of written communications passing between the parties or their agents.
Appellant has conceded the trial court at the time of its ruling had all the available evidence before it which a formal trial would have produced on the issue of duress, and the sole point on appeal is the trial court erred in granting appellee summary judgment because there existed a genuine issue of material fact as to whether appellant executed the promissory note under duress.
The following facts appear from the record: Appellee J. W. Hastain is a lawyer residing at Tulsa, Oklahoma. Appellant Greenbaum, fifty-five years of age, who formerly lived at Wichita, Kansas, but now resides in Reverly Hills, California, has been in the oil and gas business for about thirty years. The two first became acquainted in 1961 when appellee undertook to procure investment participants for appellant in a prospective oil development project in Jamaica. If appellee was successful he was to be paid a specific fee, but nothing materialized in this venture.
At Christmas time, 1965, the two exchanged greetings and letters. Appellee was then suffering from a heart condition. Appellant indicated to appellee his desire to secure additional venture capital so as to enlarge his oil operations and described various plans he had in mind as to raising money and expanding his business. Appellant solicited appellee’s services and appellee responded by asking for further detailed information of the project. Eventually appellee agreed with appellant to contact appellee’s friend, a Mr. Emby Kaye of Tulsa, and to attempt with Mr. Kaye to find financ ing for appellant. Mr. Kay had had wide experience in the oil industry, including financing, and had many contacts with persons interested in oil investments. Compensation was not discussed but both appellee and appellant understood that if appellee should make a deal satisfactory to appellant, appellee would be compensated.
Appellant operated oil properties on the west coast under the name of California-Time Petroleum Company and in the mid-continent field under the name of Time Petroleum Company. Basically, appellant wanted to secure more capital by merging or affiliating with some other company, preferably one on the New York or American stock exchange, or by selling an interest in the companies owned by him and placing the money in a new corporation. Appellant was not contemplating an outright sale of his property but expected to remain in the oil business in a position of control.
During the year 1966 extensive correspondence passed between appellant, appellee and Mr. Kaye. Appellant was advised that to make a deal feasible all of the co-owners of the working oil interests with whom appellant was involved would have to participate. Appellant gave assurance he could deliver substantially all of these working interests. In further response to appellee for information appellant estimated his oil reserves at 14,000,000 barrels. He also advised all the properties owned by him and his participants would be consolidated into one corporation known as California-Time Petroleum, Inc. Appellee and Kaye actively sought possible investors. Kaye met with appellant in New York and also in California with the latter s California attorney. Appellee met in California with appellant. The parties made numerous telephone calls.
On December 20, 1966, Kaye advised appellant his presentation to investors was defective since he had not been provided with an engineering report, indicating that experienced investors want to see substantive reports supported by meaningful figures. March 2, 1967, appellant advised by letter that the oil reserves were evaluated at 6,222,000 barrels, which figure had been reduced to 5,700,000 barrels by the Securities and Exchange Commission.
In late 1966 or early 1967 California-Time Petroleum, Inc., was incorporated. It was a mere shell. On February 9, 1967, the first registration application of California-Time Petroleum, Inc., was filed with the Securities and Exchange Commission. Appellee be came aware of this filing. The application contemplated an issue of $4,000,000 of stock to appellant and his co-participants and a stock offering of $5,000,000 to the public. Meanwhile appellee had become dissatisfied and had gone to California to consult with an attorney there about a possible tort action against appellant. However, appellee became ill and did not consult with the attorney. He did advise appellant he would have nothing further to do with the deal.
On March 13, 1967, appellee wrote appellant a lengthy letter setting out his claims and demands. He stated he had wasted a year trying to work something out, having spent all his available time on the project; that appellant had made material misrepresentations of fact upon which appellee, and also Mr. Kaye, had relied to their detriment. These misrepresentations were listed as: Statement by appellant he had reserves of 14,000,000 barrels of oil when he had only 6,000,000 or less; statement he could deliver substantially all his joint venturers who owned oil interests together with him, when he could deliver not more than seventy per cent of them; statement he did not intend to sell his properties when he had offered them for sale all over the country. Appellee indicated other misrepresentation had been made. Appellee also stated he had just learned of Greenbaum’s personal involvement in the case of Jamaica Time Petroleum, Inc. v. Federal Insurance Company, 366 F. 2d 156. Appellee stated he expected to file suit against appellant for damages in the sum of $300,000 and at the same time attach appellant’s Kansas oil runs. Appellee offered to settle his claim for $35,000 provided appellant accepted the offer within seven days. Appellant referred this letter to his California attorney, Mr. Ralph Frank, for handling, telling Frank he would do whatever Frank thought best. On March 24, 1967, Mr. Frank wrote a lengthy reply letter’to appellee; he indicated a hard fought lawsuit could have a detrimental effect upon appellee’s heart problem; that appellant would vigorously resist appellee’s lawsuit; that appellee’s filing of a malicious lawsuit could result in loss of the underwriting of the proposed public stock issue before the SEC and exposure of appellee to damages in seven figures; he proposed that all parties sit down and discuss the matter sensibly and straighten out the problems. In April, 1967, appellee went to California again; in a telephone conversation he told appellant that if appellant did not agree to give him a large sum of money, he would go to the SEC and see to it appellant didn’t get a registration of any kind; appellee was still talking about $35,000; appellant characterized appellee’s conversation as an irrational tirade. Appellant testified Mr. Frank was handling the matter for him at that time. Appellee met Frank in Reverly Hills. In their discussion little was said about the merits of appellee’s claim. Appellee’s position was as stated in his March 13, 1967, letter. Appellee stated he had come to California to hire a lawyer and prepare papers for the filing of a million dollar lawsuit involving fraud, which would “fix” appellant and his stock issue. Frank indicated he would charge his client $10,000 to try the case. Appellee still offered to settle his claim for $35,000. Frank advised appellee the filing of the lawsuit would kill the public stock issue.
The next day Frank called appellee and offered to settle appellee’s claim for $12,000. Appellee accepted the offer. Several conversations ensued concerning the form of the settlement papers. Frank suggested appellee act as a consultant for the mid-continent area operations upon a fee basis of $1,000 per month for a year. Appellee agreed. It is now conceded the consultant arrangement was actually a subterfuge to shield for tax purposes the amount to be paid in the settlement. Frank delivered to appellee appellant’s check dated April 14, 1967, in the sum of $1,000. The back side of the check contained an endorsement prepared by Frank which provided as follows:
“This check payable to James Hastain and accepted by said James Hastain as consideration for one (1) year Consultation Services to California Time Petroleum, Inc. commencing April 15, 1967 to April 15, 1968, and in additional consideration of full and complete release from James Hastain and Mr. Emby Kaye as to California Time Petroleum Inc., R. R. Greenbaum, and any legal entity in which he is a part as to any and all alleged obligations of any kind, type or description payable or due from the aforesaid to James Hastain, Emby Kaye, or any person or legal entity claiming any rights through them. Upon receipt of executed formal releases, approved as to form by Attorney Ralph R. Frank, in favor of aforesaid from James Hastain and Emby Kaye, California Time Petroleum, Ino. shall issue and deliver a $11,000.00 Promissory Note to James Hastain payable monthly commencing May 15, 1967 without interest in consideration of services and release herinabove described.”
Appellee cashed the check and returned to Tulsa. Appellee prepared a written release of all his claims against appellant, a contract for consultation services, a disclaimer and release by Mr. Kaye, and a promissory note in the sum of $11,000 and mailed them to Frank on April 17, 1967, for signature by appellant. Not hearing from Frank for some time after trying unsuccessfully to communicate with him appellee sent Frank a telegram, complaining about not receiving the signed papers back. Appellee talked with Frank by telephone May 13, 1967. Frank stated the note would not be signed because then it would have to be disclosed to the SEC but they were not reneging and appellant would pay the amount agreed upon. Appellee then went to Washington to talk to the SEC. Appellant and Frank did not know appellee was in Washington but on May 15, 1967, while he was there, Frank called appellee’s wife and advised the note and other executed copies were being mailed. The executed documents were transmitted by letter dated May 15, 1967.
The note dated April 17, 1967, being the one sued upon, was for $11,000, signed by Greenbaum individually and by California-Time Petroleum, Inc., payable in $1,000 monthly installments commencing May 15, 1967. Besides the initial $1,000 payment to appellee, appellant made three monthly payments of $1,000 each upon the note. Sometime in the summer appellant was unable to obtain a broker to handle the public stock issue. He testified his reason for paying appellee disappeared and he discontinued payments on the note. This suit was subsequently commenced.
Appellant testified that appellee had no exclusive contract with him; that after appellee made his demands appellant considered him irrational and turned the matter over to his California attorney; he thought appellee was trying to blackmail him into paying something which was not due as appellee had not produced; his California attorney recommended he agree to a compromise settlement of $12,000 with appellee; although he did not want to do it he listened to his counsel “as a matter of prudent business judgment” and “went along with it”; he signed the note under duress because appellee was threatening to tell the SEC something but he did not know what; in his conversation with appellee appellant did not inquire as to what appellee was going to tell the SEC and he never did find out; he was not afraid of anything appellee might have been going to tell the SEC but it was a question of causing an investigation and aggravation. The registration statement could have been amended to include appellee’s claim. Mr. Frank, who had had considerable experience with SEC registrations, recommended the settlement to appellee because at that time there had been a good response to the proposed registration; he considered appellee’s claim to be without merit.
As indicated the sole point urged on appeal is the trial court erred in granting appellee summary judgment because there existed a genuine issue of material fact as to whether appellant executed the promissory note under duress.
K. S. A. 60-256 (c) fixes the standard for determining whether summary judgment should be granted. In pertinent part, it provides:
“The judgment sought shall be rendered forthwith 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 and that the moving party is entitled to a judgment as a matter of law.”
In Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415, we stated:
“The provision for summary judgments (K. S. A. 60-256) was intended to permit a party to pierce the allegation of facts in his opponent’s pleadings by affidavits and discovery. The formal issues presented by the pleadings are not controEing.” (Syl. f 2.)
The determination of that which constitutes a genuine issue as to any material fact is sometimes difficult. In considering grounds for summary judgment under Federal Rule 56 (c), of which our 256 (c) is a counterpart, in 3 Rarron and Holtzoff, Federal Practice and Procedure, rules edition, § 1234, we find this discussion:
“NormaEy where the only conflict is as to what legal conclusions should be drawn from the undisputed facts, a summary judgment should be entered, [p. 128.] ... It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. ... It has been said that a genuine issue is one which can be maintained by substantial evidence. Where the pleadings or proof of either party disclose that no cause of action or defense exists, a summary judgment may be granted, [pp. 131-132.] . . . A popular formula is that summary judgment should be granted on the same kind of showing as would permit direction of a verdict were the case to be tried, [p. 133.] ... If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied.” (p. 134.)
Our cases are in accord with the foregoing statements (Hatcher’s Kansas Digest, rev. ed., Permanent Supplement, Volumes 4-6, Summary Judgments, § 3; 6 West’s Kansas Digest, 1970 Cum. Annual Pocket Part, Judgment, § 181 [2]).
In 1 Rlack on Rescission and Cancellation, 2d ed., § 221, we find this definition of duress:
“Duress is a form of coercion, physical or moral, and is said to exist where one person, by the unlawful act of another, is induced to make or discharge a contract, or to perform or forego some other act affecting his rights of person or property, under circumstances which deprive him of the exercise of his free will, subject him to the will of that other, and constrain him to act contrary to his wishes and inclination.” (p. 626.)
In Vandine v. Vandine, 171 Kan. 626, 237 P. 2d 224, this court stated:
“To constitute duress there must be a wrongful act or wrongful threat which compels apparent assent by another to a transaction without his volition.” (p. 630.)
Whether certain facts actually exist is, of course, ordinarily a question of fact for a jury. Rut whether the facts offered in a particular case constitute a defense is a question of law. In 5 Williston on Contracts, rev. ed., § 1603, the rule as to duress is stated thus:
“Whether alleged facts, pleaded as constituting duress, existed, if the existence of those facts is denied, is a question for the jury. Whether the alleged facts are sufficient to constitute duress is a question of law.” (p. 4497.)
In Western Paving Co. v. Sifers, 126 Kan. 460, 268 Pac. 803, the action was one to recover on a promissory note. The defense was that the note was given under duress. The trial court directed a verdict for plaintiff and defendants appealed. This court affirmed, saying:
“The law defines duress. Whether, in a given instance, duress has been exercised is a question of fact. To constitute duress by threats the actor’s manifestation must be made for the purpose of coercing tire other; must have for its object the securing of undue advantage with respect to the other; must be of such a character that it is adapted to overpower the will of the other and is reasonably adequate for the purpose; must in fact deprive the other of free exercise of will; and must cause the other to act to his detriment. The evidence to establish duress must be substantial — not merely some evidence — and the court is not obliged to submit to the jury evidence which does not measure up to the required standard of proof.
“ ‘It would not be proper to simply hold that, merely because a person who has made a contract declares under oath that he was intimidated and acting under fear and duress when the contract was made by him, the contract should by reason of his mere statement be avoided. If that rule were adopted most contracts would be avoided.’ (Cornwell v. Anderson, 85 Wash. 369, 375.) [pp. 463-464.]
“This court is committed to the doctrine that in negotiations for settlement of the claim of a person injured by the wrongful conduct of another, it is not duress for the injured person to threaten to use the law to its full extent against the other.” (p. 465.)
The court there also quoted approvingly from Rochester Machine Tool Works v. Weiss, 108 Wis. 545, 547, 548, 84 N. W. 866, as follows:
“The- one really substantial question in the case is whether the court was justified in directing a verdict for the plaintiff. The action was upon an account stated. The defense was duress. . . . When it is perfectly evident from the testimony adduced that there is no foundation for a claim of duress, the court may so decide and take the case from the jury. . . . The parties were several days in looking over their accounts. Mutual claims and allowances were made. The defendant testified that plaintiff’s agent told him that he had committed grand larceny, and that he was liable to imprisonment in the state of New York; that he wanted him to get down to a settlement and make it good, or he would have him sent to state’s prison in New York for grand larceny; that he (defendant) became nervous, ‘and was sweating like the deuce,’ and then signed the document. The defendant was apparently a man of intelligence and business experience, thirty-six years of age. He had dealt with plaintiff nine or ten years — had sold their machinery and engines in different parts of the country. To claim that he was imposed upon and put in such fear as to be unable to understand what he was doing looks a great deal like self-stultification. The surrounding circumstances completely negative his claim of duress. Without spending further time in the discussion of the facts, we are satisfied that, upon the defendant’s own showing, the court was amply justified in the ruling made.” (pp. 466-467.)
Again, in Jones v. Prickett, 135 Kan. 640, 11 P. 2d 1008, a note was sought to be avoided on the ground of duress in its execution. The verdict was for defendant. Upon appeal this court set aside that verdict for the reason the evidence presented did not show such duress as would justify nullification of the note, saying:
“We think the full story told by the defendants themselves falls short of meeting the essential requirements of duress. .
“We have no evidence as to the state of mind of any of these defendants. We only have their statements that they would not have done so but for the threat. This is not sufficient if they were in fact able to exercise their free will or judgment in the premises.” (p. 644.)
In Gill v. Reveley, 132 F. 2d 975, Kansas law was applied to a plaintiffs contention that corporate stocks had been obtained by defendants from him at less than fair value by threats of criminal prosecution. At the close of plaintiff’s evidence the trial court directed a verdict for defendants. In sustaining this action, the appellate court stated:
“Under the law of Kansas, a threat of criminal prosecution does not constitute duress and will not defeat a contract unless the person to whom the threat was made became so frightened or was placed in such fear as to over come his judgment and make it impossible for him to exercise his own free will. [Citations]” (p. 978.)
See also In re Prima Co., 98 F. 2d 952, 965 (7CA).
In 1 Black on Rescission and Cancellation, 2d ed., § 223, we find this discussion of duress as an efficient cause of action taken:
“To establish duress as ground for the avoidance of a contract, conveyance, or other act, it is not alone sufficient to show the exertion of pressure by threats or even by physical compulsion, but it must also clearly appear that the force or threats employed actually subjugated the mind and will of the person against whom they were directed, and were thus the sole and efficient cause of the action which he took. . . . And it is a general rule that a transaction cannot be held to have been induced by duress, notwithstanding any threats which may have been made, where the party had and took an opportunity for reflection and for making up his mind, and where he consulted with others and had the benefit of their advice, especially where he was advised by his counsel.” (pp. 630-631.)
Applying the foregoing under the undisputed evidentiary facts in the case at bar, and giving appellant the benefit of all justifiable inferences to be drawn from those facts, we must conclude the evidence before the trial court was insufficient to sustain the defense of duress. Appellant Greenbaum was of mature age with many years’ experience in large scale oil and gas business. His testimony and certain letters written by him indicate a vigorous, strong-minded individual with a high degree of astuteness in the area of finance and financial planning. The record contained nothing indicating his will and judgment were dominated by appellee, or that he was totally subjugated and overcome by anything done by appellee. The parties dealt at arm’s length. Appellant evinced no real concern as to appellee’s possible disclosures to the SEC or their effect. The misrepresentations of fact attributed to appellant in his letter claiming damages were not denied. Whether they were such as to be actionable under all the circumstances is a question of no present concern — at the least a dispute existed. Appellant’s counsel indicated the prospect of “a hard fought lawsuit”. After considerable discussion it was he who proposed the settlement figure finally agreed upon. Appellant signed the note upon the advice of his own independent counsel. He did not deliver it until more than a month after the settlement was initially negotiated between appellee and his lawyer. Appellant thus had extensive opportunity to reflect on what he was doing. In his own words he signed the note “as a matter of prudent business judgment.” He simply made no showing the compromise and settlement agreement resulted from anything other than the exercise of his own free will. Trial would have been futile and the trial court correctly terminated the matter.
Judgment affirmed.
approved by the court.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy as to the real party in interest in an action for breach of contract.
The following facts were disclosed by the evidence:
During some two months prior to March 31, 1967, Bob L. Martin, the plaintiff, was employed by the defendant as its agent in the city of Fort Scott, Kansas, with his principal duties being the picking up and delivering of freight in and around the city of Fort Scott.
On or about the first of March, 1967, the plaintiff was contacted by Lee Osborne, president of operations for Bos Lines, Inc., for the purpose of negotiating a contract with the plaintiff for delivery of freight in the towns of Jasper, Sheldon, Lamar and Nevada, Missouri, and Fort Scott, Kansas. An agreement was reached and a contract was prepared in the offices of the defendant, Bos Lines, Inc., in Marshalltown, Iowa. At all times during these negotiations all contacts with the plaintiff were by Lee Osborne, Kenneth Aldinger, Joe Fuqua and Jack Blanchan, who represented themselves as being agents of the defendant. The defendant informed the plaintiff that it had nearly completed purchase of Red Arrow Transportation Company, Inc., and was in the process of obtaining the proper Interstate Commerce Commission and Kansas Corporation Commission permits in order that they would have full authority in this area. The defendant requested through its agents that the name, Red Arrow Transportation Company, Inc., be used in the contract so as to facilitate and not to cause any trouble with the Interstate Commerce Commission or Kansas Corporation Commission, since the full authority and permits in the area to be served by contract were still in the name of Red Arrow Transportation Company, Inc.
The contract was then prepared and signed by the plaintiff, and by Kenneth Aldinger, who represented himself as vice-president of Bos Lines, Inc., and having the authority to bind the defendant. The contract was for a period of one year and contained an option to renew for a further period of one year by either party upon giving the proper written notice. It was dated March 31, 1967.
During the first year the plaintiff and defendant operated under this contract. Freight was picked up by the plaintiff from the terminal operated by the defendant in Joplin, Missouri, as provided for in the contract. The Joplin terminal was carried under the name of Bos Lines, Inc., the company trucks located at the Joplin terminal and elsewhere carried the name of Bos Lines, Inc., and their various telephone numbers were listed under Bos Lines, Inc.
During the first year collections from freight were sent to Bos Lines, Inc., Marshalltown, Iowa, and all payments from the defendant to the plaintiff were made from the offices of Bos Lines, Inc., Marshalltown, Iowa, and all other correspondence and various phone calls were directly made between the defendant and the plaintiff. All reports and receipts concerning the freight transportation were sent directly to Bos Lines, Inc., Marshalltown, Iowa, and all payments were received directly from Bos Lines, Inc., Marshall-town, Iowa. The plaintiff did not know any representatives or officers of Red Arrow Transportation Company, Inc., and he did not know where, or even in what state Red Arrow Transportation Company, Inc., was located.
On February 28, 1968, the plaintiff gave written notice to the defendant of his election to accept the option of renewal for a further period of one year.
The defendant, Bos Lines, Inc., notified the plaintiff on March 13, 1968, that it had received the written notice to exercise the option under the contract for an additional period of one year, but stated that it had no alternative except to terminate the contract. The defendant, Bos Lines, Inc., then attempted to negotiate a new agreement with plaintiff.
The plaintiff brought an action for breach of the contract naming the Bos Lines, Inc. as defendant. The petition alleged in part:
“This contract was to commence on April 1, 1967 and end March 31, 1968. Prior, during and at all times the contract was entered into, and at all times thereafter, Bos Lines, Inc. was in the process of buying out and operating Bed Arrow Transportation Company, Inc., and in fact was in complete operation and control of Red Arrow Transportation Company, Inc. at the time this contract was signed. At all times the negotiating, drafting and signing of this contract was carried on directly with defendant Bos Lines, Inc.”
The defendant answered denying the above allegation and alleged other defenses as follows:
“Defendant, Bos Lines, Inc., specifically denies that they had any Interstate Commerce Commission permit to operate in the Ft. Scott area and as a result could not have entered into any agreement with plaintiff in regard to a freight contract.
“Further answering, defendant states that the contract in question was made between plaintiff, Bob Martin and Red Arrow, and in no way involved defendant. At no time has defendant obligated itself to assume the liabilities, debts or obligations of Red Arrow.”
The case was tried to the court and the journal entry of judgment contained the following:
“1. The Court finds that the contract dated March 31, 1967, involved in this action, was in full force and effect between the parties to this action at all times material hereto.
“2. The Court finds the defendant unlawfully terminated this contract as against the plaintiff.
“3. The Court finds that as a result of such unlawful termination and breach, that the plaintiff suffered damages in the amount of $9,882.82.
“4. Plaintiff is hereby awarded judgment against the defendant in tire sum of $9,882.82, and costs of this action.”
The trial court’s opinion on rehearing is informative. We quote:
“It is familiar law that where an agent, while acting as such, executes in his own name a written contract which does not reveal the fact of his agency, parol evidence is admissible to charge the undisclosed principal. New York Life Insurance Co. v. Martindale, 75 Kansas 142, 144. The rule is stated in Jones on Evidence, 5th Ed, 936, as follows: ‘Parol evidence is often received to show the capacity in which a person acts, the real relation of parties to a writing, and the fact that persons who are not named therein are in fact interested.’ . . .
“The contract sued upon was signed ‘Red Arrow Transportation Company, Inc. by Kenneth Aldinger, Its Carrier.’ Kenneth Aldinger was identified in the evidence as the executive vice-president of Bos Lines, Inc. Plaintiff’s evidence was that he carried on all prior negotiations with Bos; that Bos prepared the contract and told him that because of pending permit applications Bos preferred the contract in its adopted form; and that plaintiff’s only contact during the year of operation under the contract was with Bos. Bos paid plaintiff and delivered merchandise freight to him, he paid Bos and delivered freight to it. The court concludes that this evidence was properly received under the noted exceptions to the parol evidence rule, and also as tending to explain the signatures to the contract!.]”
The defendant has appealed.
The appellant does not challenge the sufficiency of the evidence to establish the fact that it was the real party in interest but rather contends that—
“The lower court erred in granting judgment for appellee because said judgment was based wholly upon improperly admitted oral evidence which changed the terms of a written agreement and changed the names of the parties to the written contract.”
The appellant states the issue as follows:
“The sole question presented to the corut in this appeal is whether the evidence offered by the appellee at the trial level was competent evidence and would change or alter the expressed terms of a written contract. . . .”
Appellant suggests that appellee’s testimony relates to negotiations carried on prior to the preparation and signing of the contract. It further suggests that it has long been the established rule in Kansas that prior negotiations are merged into the contract and parol evidence of prior contemporaneous agreements or understandings which tends to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible. In support of this statement, our attention is called to Grace v. Martin, 182 Kan. 33, 318 P. 2d 1007; Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P. 2d 23; Lawrence v. Sloan, 201 Kan. 270, 440 P. 2d 626.
Appellant’s statement of the rule cannot be challenged. However, like all good rules it has its exceptions. One of the exceptions is that parol evidence is admissible to identify the real party in interest to a contract.
A party cannot make a contract for his own benefit in the name of another and then avoid his obligations and liabilities by invoking the parol evidence rule to exclude proof of his true relationship to the transaction.
In 32A C. J. S., Evidence, § 989, p. 496, it is stated:
“When the terms of a contract are not thereby varied or contradicted, parol evidence is admissible to show for whose benefit the contract was made, or the real party in interest, as where the instrument shows that a party thereto acts not for himself, but for another, or to show who the parties intended should be bound.”
At an early date we stated the rule in Nutt v. Humphrey, 32 Kan. 100, 3 Pac. 787, at page 105:
“. . . It is true that the written contract is signed by Sarah A. Hunt and Mary Humphrey, but it cannot be doubted that parol testimony is admissible to show that one or both of the contracting parties to a written contract were agents of other persons, and acted as such agents in making the contract so as to give the benefit of the contract to an unnamed principal and to charge with liability an unnamed principal. Such evidence in no way contradicts the written agreement. (Dykes v. Townsend, 24 N. Y. 61; Butler v. Kaulback, 8 Kas. 668; Wolfly v. Rising, 12 id. 535-538; Railway Co. v. Thacher, 13 id. 564.)”
Again in Edwards v. Gildemeister, 61 Kan. 141, 59 Pac. 259, we stated at page 145 of the opinion:
“. . . The resulting law is plain and well settled.
“ ‘Where a simple contract, other than a bill or note, is made by an agent in his own name, whether he describes himself to be an agent or not, whether the principal be known or unknown, he, the agent, will be liable to be sued, and entitled to sue thereon; and his principal also will be liable to be sued, and entitled to sue.thereon in all cases; and parol evidence is admissible, although the contract is in writing, to show that the person named in the contract was an agent, and that he was acting for his principal.’ (1 A. & E. Encycl. of L., 1st ed., 392.)
“A multitude of authorities support the above-stated rule of liability of a principal in whose behalf a contract has been executed in the name of a duly-authorized agent, and its corrollary rule of admissibility of parol evidence to identify the principal, if unnamed, and to show the authority of the agent. . . (See, also, Insurance Co. v. Martindale, 75 Kan. 142, 88 Pac. 559.)
Those interested in cases from other states which follow the rule should see 80 A. L. R. 2d 1141 and 3 Am. Jur. 2d, Agency, § 315, p. 673, where it is said:
“When a principal, for the purpose of transacting business, adopts an assumed name, or the name of another, or of his agent, he is bound by the contract made in that name. The principal has a right to do business in his own name, or in the name of his agent, if he things [sic] it proper and advisable; and the admission of parol evidence identifying him as the real party in interest violates to no greater extent the rule against varying written contracts by extrinsic evidence than subjecting to liability an unknown and unnamed principal by similar means.”
Parol evidence was admissible to show Bos Lines, Inc., was the real party in interest and there was ample evidence to sustain the verdict.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Harman, C.:
Andrew Rollins appeals from his conviction of the offense of disturbing the peace.
This is a companion case to State v. Cleveland, 205 Kan. 426, 469 P. 2d 251. The determinative issues are identical in the two cases.
Appellant Rollins was specifically charged with disturbing the peace and quiet of the Marine recruiter, Corporal Michael Huston, and others, at the student union building at Kansas State University upon the occasion in question. The facts need not be elaborated beyond those stated in the Cleveland decision, to which reference is made. There was testimony appellant Rollins used loud, profane, vulgar and insulting language in the presence of Corporal Huston and numerous other persons. His grossly offensive taunts were directed toward the Marines, the then president of the United States, the flag and the Kansas Bureau of Investigation, three of whose agents were present at the time. Included in his rhetoric were threats of violence to the persons of Marines. Several persons present were visibly offended and annoyed by appellant’s conduct. Under authority of the companion case the judgment appealed from is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fromme, J.:
This appeal and cross-appeal is from an order of the district court vacating and setting aside an execution sale of real estate in Hodgeman county.
The judgment debtors appeal from that portion of the order which requires them to repay to the purchaser at the sale the amount paid by the purchaser on a prior outstanding mortgage. The judgment debtors, Stanley E. Young and Geraldine M. Young, are the owners of the land. They were the defendants below and are the appellants herein. We will refer to them as the defendants.
The judgment creditor cross-appeals and. contends generally that the court erred in vacating the sale proceedings. The judgment creditor, Leslie L. Needham, was the purchaser at the sale. He was the plaintiff below and is the appellee and cross-appellant herein. We will refer to him as the plaintiff or the purchaser.
A recitation of the events leading to the execution sale is necessary to understand the contentions of the parties.
The plaintiff obtained a judgment against the defendants in the district court of Edwards county. Nine months later he caused an attested copy of the journal entry of judgment to be filed in the office of the clerk of the district court of Hodgeman county. The filing procedure is authorized by K. S. A. 60-2202 and perfects the judgment lien on any real estate owned by the judgment debtor in the county where the filing occurs.
The defendants owned a half section of land in Hodgeman county. On the day the journal entry was filed a general execution was issued by the clerk to the sheriff of Hodegman county. Pursuant to the general command of the execution the sheriff levied upon the defendants’ land. The real estate was advertised and sold at the courthouse in Hodgeman county. The plaintiff who had obtained the original judgment against the defendants in Edwards county was the successful bidder at the sheriff’s sale. All subsequent proceedings referred to herein were held in the district court of Hodgeman county.
The sheriff filed his return on the execution sale with the clerk of the district court. The return shows the land was sold to plaintiff for $100,000 subject to mortgage liens of record. The record on appeal indicates the plaintiff paid only $30,102.88 cash into court and then moved the court to confirm the sale. We assume this was the amount of the defendants’ equity in the land above the amount of the judgment ($4,597.77) and the mortgage indebtedness.
On November 8, 1967, the district court confirmed the sale and fixed the period of redemption at eighteen months. The decree of confirmation stated the defendants could redeem the land by paying $30,102.88 with interest plus the amount of the judgment lien and costs. A certificate of purchase was issued to the plaintiff.
On December 1, 1967, the defendants entered an appearance in the district court of Hodgeman county by filing a motion to set aside the sale. They asked the court to vacate the sale proceedings on the ground the sale price was inadequate and on the further ground the entire sale price ($100,000) had not been paid into court. The motion was denied on December 6 after oral arguments. In denying the motion the court ordered the plaintiff to pay the outstanding mortgage indebtedness. The order further provided in event of redemption any payments of principal and interest made on the mortgage should be repaid to plaintiff.
In February 1968 the defendants filed a second motion asking the court to require the plaintiff to pay the full amount of his bid ($100,000) into court. The motion was denied.
On July 18, 1968, the defendants filed a third motion to vacate and set aside the sale proceedings for the reason the execution was wrongfully issued in Hodgman county in violation of the express terms of K. S. A. 60-2202. This statute in perinent part reads:
“. . . Executions shall be issued only from the court in which the judgment is rendered.”
While this motion was pending a mortgage payment came due. The plaintiff had previously paid $8,868.91 to the clerk of the court to cover this payment. The district court at the request of the plaintiff ordered the clerk to pay this sum to the mortgagee bank. The payment was made and the bank filed a receipt for the payment with the clerk.
Before the third motion was heard the defendants paid the judgment against them in the district court of Edwards county.
The third motion was heard.
The district court of Hodgeman county entered an order vacating and setting aside the sale proceedings for the reason the execution had been wrongfully issued in violation of the provisions of K. S. A. 60-2202. It had been issued in Hodgeman county. The judgment had been rendered in Edwards county. In addition to setting the sale aside the court directed the clerk to refund to plaintiff the $30,102.88 which sum had been paid into court on the sale price. This refund was ordered without interest. The court further ordered the defendants to reimburse the plaintiff for the mortgage payment by paying into court the sum of $8,868.91 with interest from the date the mortgage payment was made to the mortgagee bank. Both the appeal and the cross-appeal stem from this order.
We will examine the contentions of the plaintiff first. He argues the court erred in vacating the sale for the reason defendants’ motion was not timely made.
The sale was held on October 17, 1967. The order vacating the sale was entered December 4, 1968. This was less than fourteen months after the sale and well within the eighteen month period of redemption set by the court.
K. S. A. 60-260 (b) authorizes a court on motion and upon such terms as are just to relieve a party from a final judgment, order or proceeding. The basis for such a motion are listed in the statute. The sixth basis listed is for any reason justifying relief from the operation of the judgment, order or proceeding. The time specified in the statute for filing such a motion is “a reasonable time”. A reasonable time is not a precise period such as the one year limitation specifically placed on motions filed for reasons (1), (2) and (3) in this statute. Judicial discretion is indicated when the time specified by statute merely has to be reasonable.
When real estate is sold on execution and a period of redemption fixed under the provisions of K. S. A. 60-2414 a motion to set aside the sale proceedings is within a reasonable time as required by K. S. A. 60-260 (b) (6) if it is filed during the period of redemption set by the court. To hold otherwise would be to disregard the purposes of the redemption statute which is to prevent hardship and inequity.
The plaintiff contends the defendants were estopped to question the validity of the sale and cites Hazel v. Lyden, 51 Kan. 233, 32 Pac. 898. That case is readily distinguishable on the facts. In Hazel v. Lyden, supra, the owner lived within two miles of the land, was present at the sale and made no protest. Pie gave the purchaser possession of the land quietly and without objection. He accepted the proceeds of the sale. The validity of the sale was not attacked until 12 years after the sale and by that time the purchaser had made valuable improvements on the land.
In the present case the defendants appeared and moved the court to set aside the proceedings within a month after the order of confirmation was entered. They did not accept the proceeds of the sale. The order of confirmation was set aside before the period of redemption had expired. The elements of estoppel are not present.
The present sale on execution was made in violation of the express provisions of the statute which requires an execution to be issued from the court in which the judgment is rendered. (K. S. A. 60-2202) The provisions of K. S. A. 60-2401 (d) were not followed and K. S. A. 60-2410 (b) relating to where the sale of land on execution is to be held was disregarded. The defendants’ motion was filed within a reasonable time after the sale was completed and the proceedings were properly vacated and set aside.
The defendants appeal from that portion of the order requiring them to reimburse the plaintiff for the $8,868.91 with interest. This sum was paid by the plaintiff under order of the court and applied on the mortgage. The defendants argue the execution and sale proceedings were null and void and the district court lacked jurisdiction to make any collateral order with respect to payments on the outstanding mortgage. They conclude the plaintiff had no right to reimbursement for the amount paid on the mortgage indebtedness. In the alternative, if the plaintiff did have a right to reimbursement, they contend the district court erred in not affording them an opportunity to introduce evidence and to establish offset damages which arose from plaintiff’s unlawful acts in obtaining the void sale under the execution.
At the outset we cannot consider defendants’ alternative claim of error because the defendants never raised or presented such a claim in the district court. (Schneider v. Washington National Ins. Co., 200 Kan. 380, Syl. ¶ 6, 437 P. 2d 798; see also 2 West’s Kansas Digest, Appeal & Error, § 169, and 1 Hatcher’s Kansas Digest [rev. ed.], Appeal & Error, § 304.) Their motion was limited to attacldng the sale on execution. They neither pled nor sought to show damages in the district court.
Defendants’ primary contention is that the district court exceeded its jurisdiction when it entered a collateral order for reimbursement.
When a person moves a court to vacate a sale of real estate on execution he submits himself to the jurisdiction of that court and the court has jurisdiction not only to grant the relief prayed for but also to adjust the equities between the parties. The court should render a proper judgment which will return the parties to their original positions.
In Hultz v. Taylor, 163 Kan. 180, 181 P. 2d 515, the court quoted favorably from 19 Am. Jur. 126, § 127 as follows:
“ ‘The rule is that equity will not enter a partial or incomplete decree. Having taken cognizance of a cause for any purpose, a court of equity will ordinarily retain jurisdiction for all purposes; decide all issues which are involved by the subject matter of the dispute between the litigants; award relief which is complete and finally disposes of the litigation so as to make performance of the court’s decree perfectly safe to those who may be compelled to obey it; accomplish full justice between the parties litigant; and prevent future litigation.’” (p. 184.)
In Stady v. The Texas Company, 150 Kan. 420, 94 P. 2d 322, the court stated:
“The distinguishing feature of equity jurisdiction is that it possess full power to apply settled rules to unusual conditions and to mold its decree so as to do equity between the parties.” (Syl. f 5.)
In Nelson v. Robinson, 184 Kan. 340, 336 P. 2d 415, it is said:
“. . . [I]t is a well-settled principle of equity jurisprudence that where a court of equity has obtained jurisdiction of a controversy on any ground it will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject matter. . . .” (p. 345.)
We are not without authority in Kansas for authorizing a reimbursement of amounts paid by a purchaser at a void judicial sale.
In Galbraith v. Drought, 24 Kan. 590, a sale of real estate was made by a sheriff to himself. The sale was held to be void and was set aside. The court directed that the amount paid for the property be refunded to the sheriff.
In the present case the purchaser at the sale purchased the property subject to the outstanding mortgage. He paid the mortgage payment under the order of the court. The defendants received the benefit of the reduction of their indebtedness to the bank and no reason appears why plaintiff should not be reimbursed by the defendants.
Our statute provides when property is sold on execution, special execution or order of sale the holder of the certificate of purchase shall be entitled to repayment of all sums paid by him for interest or sums due upon a prior lien or encumbrance when the property is redeemed. (K. S. A. 60-2414 [d].) Reimbursement is proper even though the purchaser may have failed to file receipts for the item paid. (Blurton v. First Nat'l Bank, 127 Kan. 304, 273 Pac. 401.) Reimbursement for federal tax liens paid is proper although not specifically authorized or covered in the statute. (Lambert Lumber Co. v. Petrie, 191 Kan. 709, 383 P. 2d 518.) In these cases it was held that equity requires reimbursement for the amounts actually paid and from which the redeeming party benefits.
In view of our statute providing for the terms of redemption and our case law relating thereto we see no reason why similar equitable considerations for reimbursement should not be enforced when a sale on execution is vacated and set aside as void.
The plaintiff has received and accepted the $30,102.88 refunded to him by the clerk of the district court. The defendants received no benefits from such payment and should not be required to pay interest thereon. However, the plaintiff advanced the $8,868.91 which was paid on defendants’ indebtedness to the mortgagee bank. To that extent the defendants received the benefit of the payment and a corresponding saving in interest. The district court’s order properly included interest on this amount. Substantial justice and equity were accomplished between the parties.
The district court’s order is affirmed as to both the appeal and cross-appeal.
Fatzer, J., not participating.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order awarding the appellee-plaintiff an attorney’s fee pursuant to K. S. A. 1968 Supp., 40-256. The district court found the appellant-defendant refused without just cause or excuse to pay the full amount of the plaintiff’s loss under a group credit life insurance policy issued to J. I. Case Company. The policy insured eligible debtors in the amount of their debt on installment contracts due the Case Company.
The action on which the award was based was before this court in Koch, Administratrix v. Prudential Ins. Co., 202 Kan. 229, 447 P. 2d 825, and that opinion is incorporated herein by reference. The judgment establishing liability of the defendant became final on January 6, 1969, when the mandate of this court was spread of record in the district court.
On January 9, 1969, the plaintiff made a written request for the allowance of an attorney’s fee, which award was made by the district court on February 3, 1969. The record of the trial of this case on the merits contained the evidence upon which the district court awarded the attorney’s fee, and consisted of pleadings, admissions, exhibits and a stipulation. No oral testimony was offered at the trial on December 8, 1966, or at the hearing on February 3, 1969.
In seeking reversal, the defendant contends there was a bona fide factual dispute as to the age of the insured to be resolved upon conflicting evidence, rendering recovery under the terms of the policy questionable. If the insured was 66 years of age at the time the insurance became effective, there was no coverage. The defendant’s statement of insurance which was mailed to the insured reads:
“The insurance protection described in this statement of insurance does not apply to any indebtedness which originates on or after the debtor’s attainment of age sixty-six.”
Thus, the material issue o£ fact was whether the insured was born April 12, 1895, as contended by the defendant, or April 12, 1896, as contended by the plaintiff. As indicated, if the former, the policy afforded no coverage.
The issue on this appeal, unlike the former appeal, is not how old the insured was at the time the credit life insurance became effective, but whether there was a bona fide factual dispute as to his age. In other words, whether the defendant’s withholding of payment was reasonable under the known facts and circumstances when the claim was denied, so that it may not be said it refused without just cause or excuse to pay under the terms of the policy.
The defendant was furnished with a proof of loss shortly after the insured died, with his death certificate attached. The proof of loss showed the insured was not eligible for participation under the group insurance policy because of his age, that is, that he was born April 12, 1895, making him 66 years of age on the date the insurance became effective. Investigation revealed additional corroborating information, including decedent’s Army discharge record, and birth certificates of his son and his daughter. The defendant denied coverage on the basis of the proof of loss and the corroborating information. Thereafter, the policy holder, J. I. Case Company, filed a claim against the decedent’s estate for the balance due on its installment note. Subsequently, the plaintiff commenced an action in the district court asserting coverage under the policy.
In preparation for trial, the defendant developed further evidence of lack of coverage, among which was a document characterized by both the district court and this court on the prior appeal as "the most probative evidence” of the decedent’s age. That document was the marriage affidavit signed by the decedent under oath on November 14, 1921, before the probate judge of Rice County. The document, if believed, established the decedent was not eligible for insurance under the policy. In addition, Mrs. Koch, in a request for admission (K. S. A. 60-236), stated she believed her husband was 66 years of age at the time he purchased the tractor, but that she also knew the decedent believed himself to be 65 years of age at the time of said purchase.
The pertinent portion of K. S. A. 1968 Supp., 40-256 reads:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company ... if it appear from the evidence that such company . . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs . . .”
The plaintiff contends that where the evidence before the district court is conflicting on the controlling issue of fact, even though stipulated to by the parties, and the court renders judgment in favor of the insured and against the insurer on the merits of the litigation, the insured is entitled to recover an attorney’s fee under the statute. The cases of Frazier v. Royal Life & Cas. Ass’n, 158 Kan. 533, 148 P. 2d 503, and Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180, are cited and relied upon where there was conflicting evidence with respect to the propriety of the insurance company’s denial of liability. It was held that once liability under the policy was established, the allowance of an attorney’s fee followed as a matter of course. The cases are not helpful to the plaintiff. They were decided prior to the statute’s amendment in 1957. In Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937, it was said the phrase “without just cause or excuse” was added to the section by amendment in 1957, and that the language was clear and unambiguous.
Generally speaking, it is a question for the district court as the trier of the facts to determine whether an insurance company has refused to pay the full amount of an insured’s loss “without just cause or excuse” thereby subjecting itself to payment of an attorney’s fee under K. S. A. 1968 Supp., 40-256. Where, however, the controlling facts are based upon pleadings, admissions, exhibits and stipulations, the district court does not have any peculiar opportunity to evaluate the credibility of witnesses, and in such a situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and determine de novo what the facts admitted in evidence establish. (Koch, Administratrix v. Prudential Ins. Co., supra; Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219.)
It has been held that whether an attorney’s fees are to be allowed depends upon the facts and circumstances of each particular case. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937; Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 457 P. 2d 34.) Where the only issue between the parties is a factual dispute with respect to coverage under an insurance policy, and the insurer has refused to pay the full amount of the insured’s loss for such reason, we are of the opinion the phrase “without just cause or excuse” as used in K. S. A. 1968 Supp., 40-256, means a frivolous and unfounded denial of liability. However, if there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay “without just cause or excuse.” And whether there was any reasonable ground for contesting the claim depends upon circumstances existing when payment is withheld or liability is declined. It is not necessarily determined by the outcome of the ensuing litigation. (Wolf v. Mutual Benefit Health & Accident Association, supra.) The statutory penalty is not to be imposed merely for the reason that it turned out at the trial in the district court, there was, in reality, no reason for denial of liability. The question is, how did the matter appear before the trial as judged by a reasonable and prudent man seeking to determine the facts of the controversy which it was his duty in good faith to investigate.
In the instant case, the proof of loss showed on its face lack of coverage on the critical issue of the insured’s age. That fact alone would justify the defendant in good faith to rely upon the proof of loss and deny liability. Thereafter substantial evidence was discovered corroborating the defendant’s contention of lack of coverage — the sworn statement of both the insured (the marriage license affidavit) and his spouse (her answer on request for admissions), the insured’s Army discharge record, his death certificate, and the birth certificates of his children, all indicating he was too old to be covered by the policy.
Under the rule stated above, it is clear to us that reasonable men could not say the defendant’s denial of liability was patently without any reasonable foundation. Based upon the proof of loss, the series of evidentiary facts disclosed, and the statement in our opinion in the prior appeal that the district court “properly found there was a justifiiable issue of fact as to whether Koch had attained the age of 66 on October 31, 1961,” the date he purchased the tractor, we are of the opinion there existed reasonable conflict of facts which justified the denial of liability, and that the defense vigorously asserted thereafter of no coverage under the policy, was not an afterthought or a desperate last minute hope to avoid liability. We hold that reasonable minds could only conclude that, whether ultimately successful or not, the defense that the insured had no coverage under the policy was not frivolous, but had substantial support in the facts then known to the defendant. There was no lack of just cause or excuse.
The district court erred in entering its order allowing the plaintiff an attorney’s fee. That judgment, under the record before us, must be reversed.
It is so ordered.
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The opinion of the court was delivered by
Harman, C.:
Larry Green appeals from the judgment and sentence imposed as a result of his conviction by a jury of the offense of malicious destruction of property of a value of over fifty dollars (K. S. A. 21-1408).
At some time during the early morning hours of February 21, 1969, two holes were made in a large plate glass window on the west side of the Kansas Memorial Union building at the University of Kansas in Lawrence. The holes apparently were caused by bullets fired into the window. A light fixture behind the window and in line with one of the holes was damaged to the extent replacement was necessary. The window and the light fixture comprised the property appellant was charged with having destroyed. He was arrested and placed in custody on this charge March 8, 1969.
Appellant’s first point upon appeal is the trial court erroneously admitted into evidence over his objection a confession allegedly made by him. At trial an agent of the Federal Bureau of Investigation testified he had been on campus investigating the bombing of the R. O. T. C. building which occurred the same night the window and light were damaged; he interviewed appellant as to both of these events upon six separate occasions, March 4, 6, 9, twice on March 12, and on March 13, 1969; each time the agent talked to appellant the interview was with the permission of appellants retained attorney, Mr. Backus; the agent informed appellant each time of his right against self-incrimination and of his right to counsel; this information was supplied by the agent reading aloud to appellant a printed form encompassing the Miranda warning, and then having appellant read it aloud.
Each time appellant responded he understood his rights as explained and upon each occasion except March 6 he signed a written statement appended to the form as follows:
“WAIVER OF RIGHTS”
“I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”
Appellant made no admission of guilt in any of the interviews prior to March 12. On that date the agent talked with appellant from about 2:45 p. m. until about 4:21 p. m. at which time appellant stated he desired to talk with his lawyer; the agent telephoned Mr. Backus who arrived at the county jail with a Mr. Milan, an elementary school physical education consultant who had befriended appellant. Mr. Backus and Mr. Milan talked to appellant in the absence of the agent until about 6:25 p. m. Mr. Backus then advised the agent he could talk to appellant again and that appellant had made no admission about any matters under investigation; Mr. Backus and Mr. Milan left; at first appellant stated he did not want to talle further; the agent started to leave, then appellant said, “No, sit down a minute”; appellant then admitted he had shot the window of the Union building on February 21 with a .22 caliber rifle; he said he had obtained some mescaline the night before and later had stopped at a house where he smoked some “Vietnamese grass”; he then procured the rifle from an old Chevrolet parked on Oread street and between 2:00 and 3:00 o’clock in the morning he walked toward the Union building; he saw the light in the building and the mescaline he had taken made him feel “real funny” looking at the light and he just had to shoot it out; he fired from an area in which construction was being done, leaning his arm against some bricks for steadying purposes, aiming the rifle at the light through the window and shooting out the light; he stated he shot one time; the rifle belonged to a Mr. Pierce; on March 13 the agent interviewed appellant again and he again admitted firing a shot at the Union building window and furnished information as to narcotics.
At trial the court held a separate hearing outside the presence of the jury on the issue of the voluntary nature of appellant’s confession. At this hearing the agent testified, developing the facts already indicated. He stated appellant was not threatened or coerced in any way, no promises were made to him and his statements were voluntarily made. At the separate hearing Mr. Milan testified as well as appellant. Appellant specifically admitted he waived his rights every time he talked with the agent. He acknowledged he knew he didn’t have to talk to the agent. However, he denied he had ever admitted to the agent he had shot the window —instead he had told the agent he didn’t shoot it out. He stated the agent talked to him mostly about the R. O. T. C. building and appellant felt the pressure about that and the fact he was in jail and might go back to the hospital for examination.
Mr. Milan testified he was present March 9 when the F. B. I. agent interrogated appellant; the agent emphasized the seriousness of the offense against the military science building and indicated his concern appellant had been connected with it; in an effort to help appellant, to get him to face reality, the witness had urged appellant to tell the truth; he did not want appellant to get the blame for something he didn’t do; he thought appellant might have feared being charged with an offense against the military science building; he also thought appellant needed some psychiatric help in an effort to face reality.
Appellant seems to argue he was incapable of making a voluntary confession but this theory is not tenable under the record. Stress is placed on his questioning about the bombing of the R. O. T. C. building; however, appellant was never charged with that offense and, at the time he made the admission in question, he had been arrested and specifically charged with the offense against the Union building. Proper procedures were followed in every respect both as to the taking of appellant’s confession and its handling at trial. The trial court was warranted in concluding as it did that appellant’s admission was voluntarily made and no error appears from the receipt in evidence of that admission (State v. Kimmel, 202 Kan. 303, 448 P. 2d 19).
Appellant urges error in the admission into evidence of a .22 caliber shell casing and two live .22 caliber cartridges, contending the foundation testimony insufficiently identified them and accounted for their custody. As a result of immediate investigation, the spent shell casing and the two live cartridges were found on the ground outside the damaged window in the vicinity of Baumgartner Drive. These exhibits bore definite marks on them. The two live cartridges gave the appearance of having been jammed in a rifle. The markings on the spent casing were shown by a ballistics expert to have been made by the firing of a rifle found in appellant’s room, being a rifle loaned him by one Harold E. Pierce prior to February 18, 1969. Detailing the testimony would serve no useful purpose. We have examined it as to both identity of the challeged items and their custody between finding and time of trial and conclude the testimony provided ample foundation for receipt of the items in evidence.
Finally appellant challenges the sufficiency of the evidence to sustain a finding that the property destroyed was of a value of more than fifty dollars. His argument is this: The light fixture was shown to have been worth $38.71; a glass contractor testified that the salvage value of the window with only the top hole in it would be $4.74; the salvage value with the lower hole would be $5.25; appellant contends the only evidence before the trial court as to the number of shots he fired at the window was that contained in his admission — one shot; if he fired only one shot, someone else had to fire the other shot; there was no evidence appellant fired the first shot and it is reasonable to assume someone else fired the first shot; if appellant fired the second shot the property he destroyed would amount either to $43.96 or $43.45, being the value of the fight fixture ($38.71) plus the salvage value of either $5.25 or $4.74.
We are informed this ingenious argument was presented to the jury. Implicit in its rejection by the jury is the finding, despite the limited nature of appellant’s confession, that appellant in fact fired both shots into the window so as to inflict the damage charged. Value of the undamaged window was shown to be $60.00. The jury was instructed as to circumstantial evidence and the test in determining guilt. We think the evidence was such as to justify the jury in drawing the inference it did, and upon appellate review that finding must be sustained.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion o£ the court was delivered by
Schroeder, J.:
This is an action for malicious prosecution and false arrest. The matter was tried to a jury which returned a general verdict for the plaintiff in the amount of $10,000 actual damages and $5,837.50 punitive damages. Appeal has been duly perfected by the defendants.
The appellants assert ten points for a reversal of the judgment, many of which hinge upon a determination as to whether a full and truthful disclosure was made by the complaining witness to the county attorney’s office when the criminal charge was initiated.
The facts giving rise to this action are rather complex and the evidence reflects considerable dispute.
In skeleton form with oversimplification it may be preliminarily stated the plaintiff was charged criminally with concealing mortgaged property, extradited from Colorado, bound over at preliminary hearing, and went to trial in the district court of Sedgwick County, Kansas, under criminal statutes that were repealed several months prior to the filing of the complaint. At the close of the state’s evidence the plaintiff was discharged, and thereafter he filed this malicious prosecution and false arrest suit.
On the 22nd day of March, 1965, Tommy H. Thompson (plaintiffappellee) purchased from Honest John’s Furniture Store the following used items of merchandise: “2 Pc. Sect., 2 Occ. Chair, 3 Tables, 2 lamps, 1 Pole Lamp. Range O’Keefe & Merritt, ‘Refrig. Kelvinator’, 7 Pc. Dinette, Chest, Wringer Washer, 2 Pc. Br. Spg. & Matt., Childs Rocker.” The purchase was made on a conditional sales contract which discloses a cash price of $489.80; a down payment of $50.80; a principal and unpaid balance of $439; finance charges of $145.28; a time balance of $584.28; a time sale price of $635.08; and called for thirty-six monthly payments of $16.23 commencing May 1, 1965. The reverse side of the contract shows it was assigned without recourse to General Finance Company, Inc.
C. B. Pillsbury is the president, director and a stockholder of General Finance Company, Inc. Both were named parties defendant and are the appellants herein. The petition alleged Pillsbury was acting individually and as agent for General Finance.
On the 1st day of October, 1965, Mr. Thompson moved to Denver, Colorado, and on the 7th day of October, 1965, he notified General Finance he had moved to Denver. He left all of his furniture, in- eluding some which was not listed in the foregoing conditional sales contract, in Wichita at the home of his brother-in-law, Charles Beagle. Mrs. Beagle and Mrs. Thompson were sisters. In November, 1965, Mr. Beagle testified he sold part of the furniture, but Thompson continued to make payments on the contract until December 4, 1965, when the last payment was made on the furniture, at which time $470.67 was showing on General Finance’s records as the unpaid balance.
In January, 1966, Mr. Thompson returned to Wichita from Denver for one day for a civil trial which had no connection with this matter, and he saw the furniture in question at that time in the Beagles’ home, stating “Everything was there then.” According to Thompson Mrs. Beagle had offered to store everything for the Thompsons until they could return for it from Denver. Thompson returned to Denver without the furniture and did not again come to Wichita from Denver until August, 1966, when his preliminary hearing was set.
On the 17th day of February, 1966, Thompson declared voluntary bankruptcy in Denver and listed General Finance as one of his creditors.
On March 5, 1966, General Finance wrote the trustee in bankruptcy to determine Thompson’s intentions concerning the furniture and filed a copy of the proof of its claim in the bankruptcy court.
Thereafter General Finance received a notice of the first meeting of creditors in the plaintiff’s bankruptcy proceeding, listing plaintiff’s address as 2233 West 34th Avenue, Denver, and setting the creditors’ meeting for March 15, 1966, at 2:00 p. m. in Denver. General Finance sent no representative to this creditors’ meeting.
A letter dated March 5, 1966, from Pillsbury of General Finance to the plaintiff’s bankruptcy attorney in Denver requested him to advise General Finance if the plaintiff had claimed the furniture on the General Finance contract as exempt.
On the 22nd day of March, 1966, Pillsbury wrote the trustee in bankruptcy forwarding a complete questionnaire and a certified copy of the conditional sales contract, and asked the trustee when General Finance could take possession of the collateral described.
On the 25th day of March, 1966, the trustee in bankruptcy wrote General Finance stating that Thompson’s furniture was somewhere in Wichita, Kansas. The letter also advised General Finance how to go about getting leave of the court to foreclose on its collateral, and stated that if it had any questions to please feel free to make further inquiries.
By letter dated April 4, 1966, Pillsbury wrote the clerk of the bankruptcy court in Denver enclosing a check made payable to the proper payee requesting permission to foreclose.
Notice to creditors seeking leave to foreclose, dated April 11, 1966, was sent to General Finance by the Denver bankruptcy court, advising that the petition to foreclose had been referred to the trustee, and that “unless and until you receive a formal order from this office you do not have permission to foreclose.”
The trustee’s report and recommendation dated April 20, 1966, recommended the lien claimed by General Finance as valid against the trustee, and that there was no equity for the estate. It made no objection to the issuance of a foreclosure order.
The bankruptcy court issued an order granting General Finance leave to foreclose, dated April 21,1966, reciting the conditions under which the foreclosure was to be conducted. Among them it stated:
“3. Nothing in this order contained shall be construed to authorize or permit said creditor to assert any liability for a personal judgment or for costs against the bankrupt without the further written order of this Court first had and obtained.” (Emphasis added.)
James Holderman of General Finance wrote a letter to the trustee in bankruptcy dated May 5, 1966, stating in substance that General Finance had looked for the furniture covered by the conditional sales contract, but that Mr. Beagle claimed to have purchased a house full of furniture from Thompson when Thompson left for Denver in 1965; that Beagle could not recall specifically the items purchased; that he had a Kelvinator refrigerator and a sectional divan; and that General Finance could not accept these items to liquidate a $470 deficiency. The letter further recited that unless General Finance could make some arrangements with the plaintiff regarding the missing items, General Finance would file a petition objecting to the closing of the bankruptcy. In the letter General Finance requested plaintiff’s current address so it could attempt to work things out with him. The letter also enclosed a copy of the conditional sales contract and a copy of K. S. A. 58-318. A copy of this letter was also sent to Thompsons Denver attorney.
By letter dated May 12, 1966, the trustee acknowledged General Finance’s letter of May 5 and informed General Finance that the trustee represented all creditors and concluded: “Accordingly, after consulting with your own counsel you are at liberty to take whatever action you may deem advisable under the circumstances.”
Holderman of General Finance, by registered letter dated May 16,1966, addressed to Thompson in Denver, informed him that General Finance had been unable to locate the furniture in question; that the bankruptcy court had authorized General Finance to repossess the items; “and that unless the items are returned or satisfactory payment arrangements made with the finance company for Thompson to retain possession of the articles, General Finance would have to file a petition of objections to the closing of the bankruptcy.” (Emphasis added.) A copy of this letter was sent to Thompson’s Denver attorney.
By letter to General Finance, dated May 20, 1966, Thompson’s Denver attorney acknowledged receipt of General Finance’s letter of May 16 to Thompson and replied in the concluding two paragraphs as follows:
“I have talked to Mr. Thompson about the items which are listed on your conditional sales contract. He informs me that all of the items which you had listed were left in Wichita, Kansas, when she (sic) came to Colorado. None were removed from the State and none were sold to any other person.
“Please check again with Mr. Beagle in Wichita and I think that you will find that he has in his possession most of the items listed on your contract.”
All of the foregoing documentary evidence was in the file of General Finance, including a notice of final meeting of creditors in plaintiff’s bankruptcy estate dated October 23, 1966, setting the final meeting for November 14, 1966, in Denver, and was introduced as plaintiff’s Exhibit No. 1 in the lower court.
On the 14th day of June, 1966, a criminal complaint was filed in Wichita, Kansas, charging Thompson with selling, concealing or disposing of mortgaged property on the 21st day of April, 1966.
The nature of the complaint as above indicated was stipulated in the pretrial order, but it is to be noted Thompson’s petition in the instant action alleges he was charged “with concealing mortgaged property.” While the answer denied this allegation and alleged that Thompson was charged with “injuring, destroying, concealing, unlawful sale, or disposal of mortgaged property,” the instructions to the jury recited only that Thompson was charged “with concealing mortgaged property,” and no objection was made by counsel for the appellants to such instruction. Thus, it is evident the case was submitted to the jury on the theory Thompson had concealed mortgaged property, and it was upon this basis that the jury determined the matter insofar as the record discloses.
The complaint as originally prepared by Mr. Updegraff, the deputy county attorney in Sedgwick County, charged Thompson with violation of K. S. A. 58-318. The complaint was signed by Pillsbury but was subsequently amended charging a violation of K. S. A. 58-315b, which was prepared after Mr. Updegraff reviewed the statutes, without noting that the statutes had been repealed effective January 1, 1966. (L. 1965, ch. 342, §12.) For some unknown reason the information on which the trial was conducted reverted back to a charge under the mortgaged section, 58-318, instead of the conditional sales section, 58-315b.
In connection with the foregoing complaint C. B. Pillsbury of General Finance filed an affidavit for extradition proceedings in order to return Thompson to Sedgwick County for trial in the criminal action. The affidavit recited the charge against Thompson; that he was a fugitive from the justice of the state of Kansas; that the application was made in good faith for the punishment of crime and not for the purpose of collecting a debt or pecuniary mulct; that the affiant would not directly or indirectly use the same for any of said purposes;
“. . . and that this affiant has actual knowledge of the facts constituting the offense, which are as follows:
“That on the 21st day of April, 1966, and subsequent thereto, in the County of Sedgwick and State of Kansas, one Tommy H. Thompson did then and there unlawfully, feloniously, wilfully as vendee of personal property, to-wit: 2 pc. sectional; 2 occasional chairs, 3 tables, 2 lamps, 1 pole lamp, 1 Okeefe & Merritt range, 1 Kelvinator refrigerator, 7 pc. dinette, chest, 1 wringer washer, 2 pc. bedroom suite, springs and mattress, 1 child’s rocker, sell, dispose and conceal said property sold under a conditional sales contract with the intent to defraud the vendor, General Finance Company, Inc., upon which the vendor has a valid and subsistent lien in the amount of $470.67, good and lawful money of the United States of America; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Kansas. Section 58-315b of the 1949 General Statutes of Kansas.
“Affiant further states that he knows of his own knowledge that the defendant herein, Tommy H. Thompson, was present within the County of Sedgwick and State of Kansas at the time the offense set out occurred.
“Affiant further states that all of the above and foregoing statements are true and correct and are within the personal knowledge of this affiant, except the whereabouts of the said Tommy H. Thompson and he believes the above information as to his whereabouts to be true.”
On the 21st day of June, 1966, law enforcement officials appeared at Thompsons apartment in Denver, and in full view of his wife and neighbors manacled him in a set of handcuffs and leg irons. According to Thompsons testimony this was the first indication he had that something was wrong in Kansas concerning the furniture, other than the one letter from General Finance which he handed to his attorney, who had advised General Finance that the furniture was at the Beagles.
Thompson returned to Sedgwick County where the preliminary hearing was conducted August 5, 1966, in the court of common pleas of Sedgwick County, Kansas.
He was bound over to the district court of Sedgwick County for trial on the charge of selling, disposing or concealing mortgaged property under a conditional sales contract, where, upon trial at the end of the state’s evidence, Judge Howard C. Kline sustained Thompson’s motion for a discharge, ruling there was not sufficient evidence to submit the case to the jury. It is alleged in Thompson’s answer to the appellants’ cross petition that in discharging Thompson, after the close of the state’s evidence, Judge Kline said:
“The criminal court is not for the purpose of collecting or enforcing civil liability. Criminal courts are for the prosecution of a crime. This Court is of the opinion that in this particular case the finance company is using the criminal courts for the purpose of attempting to collect a civil debt, which this Court resents deeply. . . .”
In the trial of the instant action, however, the foregoing comments of Judge Kline did not get into the record as evidence.
After Thompson’s acquittal he filed this action on December 23, 1966.
The appellants contend, after they were authorized by the bankruptcy court in Denver to foreclose upon their security, they exhausted all feasible methods of locating the furniture in question, sought the advice of their corporate counsel who advised they consult the county attorney’s office, and that they made a full and truthful disclosure of all the facts and circumstances of their exhaustive search for the furniture in question to their corporate counsel and the county attorney.
The evidentiary facts, however, from the testimony of the various witnesses is quite conflicting.
Pillsbury testified they were unable to locate the furniture and had yet to locate it. But the evidence showed Pillsbury knew Thompson’s Denver attorney had advised that the furniture was at the Beagles; and that Holderman, an employee of General Finance, had located part of the furniture at the Beagles, which Pillsbury said was not worth the cost of replevin, and that he had not arrived at a decision as to whether or not to pick up the furniture.
Pillsbury testified he could not state of his own personal knowledge that Thompson had disposed of any of the furniture. Yet, he signed an affidavit that Thompson had on the 21st day of April, 1966, unlawfully, feloniously and wilfully sold, disposed of and concealed all of the furniture covered by the conditional sales contract with the intent to defraud General Finance, and that he had actual knowledge of the facts constituting the offense and the statements made in the affidavit were within his personal knowledge.
There is no evidence that Thompson was in Wichita, Kansas, between January and August, 1966.
Pillsbury also testified they did not pick up the remaining furniture at the Beagles because the Beagles would not surrender it voluntarily; that it would have been necessary for them to get a court order, and there really was not enough of the property left to warrant the cost of a replevin suit.
Holderman testified he did not work on the Thompson file until after General Finance had received notification from the bankruptcy court that it could foreclose on the furniture. This was the latter part of April, 1966. Thereafter, he went to the Beagles’ home on three occasions, and Mrs. Beagle informed him she had picked up Thompson’s furniture. He testified: “I saw these bunk beds and apparently everything they had picked up from the Thompson residence, or a number of items.” Holderman testified he had never seen the furniture listed in their installment contract and could not get a good description of it. It had no serial numbers. He stated he had not talked to Thompson before the trial, and admitted mailing a letter to the trustee in bankruptcy wherein he enclosed a copy of K. S. A. 58-318 and sent carbon copies to Mr. Thompson’s Denver attorney.
Holderman testified he was of the opinion General Finance could not recover the items listed in its contract and therefore wrote to the trustee in bankruptcy on May 5, 1966, informing the trustee that Beagle claimed to have purchased the furniture from Thompson and presently could account only for a Kelvinator refrigerator and a sectional couch, and a washing machine which had been stolen from his front yard.
Mr. Beagle’s testimony given at the preliminary hearing was read to the jury as part of the plaintiff’s case. Beagle testified he could not recall having the chest listed on the contract, but he did have all the rest of Thompsons furniture at his house; that part of the furniture was still at his house and he sold part of it. He said he had authority to sell the furniture because it was given to his wife. In the latter part of 1965 he sold three tables, a pole lamp, the range, the seven-piece dinette and the child’s rocker. The washer was sitting in front of his house and it disappeared. He testified he did not buy the furniture from the Thompsons, but told his wife to take it when the Thompsons wanted to leave it with them. He had loaned Thompson some money to go to Denver and Thompson has not paid it back. He said, “but since they gave me the furniture, I did not want the money back.”
Mr. Beagle testified he did not tell Holderman he could not take the furniture and understood that Holderman was going to send a truck out to get it. He said the mattress they had from the Thompsons got rained on and rotted, and the trash man hauled it away.
Cleta Beagle’s testimony given at the preliminary hearing was read to the jury, and she said the Thompsons came to their house and told her they wanted to give her the furniture. She said: “We later sold the three tables, the pole lamp, the range, dinette set and child’s rocker. We still have the stove, refrigerator, springs, chair, bed and dresser.” She further testified they did not give the Thompsons any money for the furniture, but they offered to buy the furniture and the Thompsons refused to sell it. She said: “So, I told them if they later needed the furniture, and I still had it, they could take it back. I did not know the furniture was mortgaged, nor did I know the Thompsons were making payments on it. I found out the furniture was mortgaged when the man came to my house a couple of months ago. I told the man he could take the furniture.”
Thompson testified no creditors appeared at his first hearing in bankruptcy, and he agreed that General Finance could pick up the furniture. He said he did not dispose of any of the furniture, and if it was disposed of Chuck and Cleta Beagle disposed of it without his authority or knowledge. At the time of his preliminary hearing in August, 1966, Thompson was at the Beagles’ home and testified he did not check the furniture piece by piece, but the garage was still full and the great majority was there to be readily seen by looking. He was aware the Beagles claimed some of the furniture was disposed of in November, 1965.
Pillsbury testified be consulted with his attorney, Otto J. Koerner, concerning the missing items of Thompson’s furniture at the Beagles, and said he was advised to talk with the county attorney’s office to get their view as to whether a criminal complaint was in order. His attorney and Holderman accompanied him to the county attorney’s office at which time, he says, they gave the county attorney all the facts they had on this case. He said: “We told the County Attorney about the entire file and what has been displayed here as Plaintiff’s Exhibit 1.” (Emphasis added.)
Martin Updegraff, the deputy county attorney of Sedgwick County, authorized the complaint based upon the facts told to him, but he testified it was up to them whether or not they wanted to sign the complaint. Updegraff could not remember any of the facts given to him at that time or any of the materials placed before him. He testified the date of the offense would have to be supplied by the complaining witness.
While Pillsbury went to great pains in his testimony to say that all the information he gave to his corporate counsel and the county attorney’s office was true, the evidence establishes that he knowingly signed a false affidavit.
The jury, after having been fully instructed (some instructions are challenged on appeal), returned a verdict in the plaintiff’s favor in the amount of $10,000 actual damages and $5,837.50 punitive damages.
The appellants first contend the essential elements of false arrest and false imprisonment were not established as a matter of law.
On this point they argue Thompson should have proved that the appellants directed or demanded his arrest in Denver. It is said all they did was to disclose all facts known by them to the county attorney’s office, and in reliance upon the recommendations of the county attorney Pillsbury signed the complaint. They contend from that moment on all matters, including the wording of the complaints themselves, were in the exclusive control of the county attorney and law enforcement officers.
The appellants say the sole basis of Thompson’s false arrest claim is that he was charged and arrested under a statute which had been repealed and therefore did not exist at the time. (Citing Holland v. Lutz, 194 Kan. 712, 401 P. 2d 1015.)
The rule heretofore announced by this court is that one seeking to recover for false arrest or false imprisonment must prove that he was unlawfully caused to be arrested by the defendants, and, though it is not necessary that the arrest was directly ordered by the defendants, it must appear that they either instigated it, assisted in the arrest, or by some means directed, countenanced or encouraged it. (Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P. 2d 1192.)
Here there is evidence the appellants instigated, assisted and countenanced Thompson’s arrest by not making a full and truthful disclosure of the facts to the county attorney. Pillsbury’s affidavit conflicts with his testimony. The affidavit states Thompson committed the offense on the 21st day of April, 1966, in Sedgwick County, Kansas. The record is clear Thompson was not in Sedgwick County on April 21, 1966. Pillsbury further stated in the affidavit every item listed on the conditional sales contract had been disposed of, concealed or sold by Thompson, when, in fact, Pillsbury had been advised that all items had been left in Kansas by Thompson when he moved to Colorado, and Pillsbury testified he could not state of his own knowledge that Thompson disposed of any of the property. It is apparent Pillsbury, acting on behalf of General Finance, signed a false affidavit, and the evidence warranted a finding by the jury that he gave incomplete information to the county attorney which culminated in the arrest of Thompson.
Holland v. Lutz, supra, upon which the appellants rely, is based upon facts which have no bearing on the point here asserted.
The appellants also assert Thompson attempts to claim as a basis for false arrest an allegation that the arrest and imprisonment were malicious or without probable cause. On this premise they argue his remedy would be for malicious prosecution and not false arrest. (Citing Holland v. Lutz, supra.)
In an action for false arrest or false imprisonment, all that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, and by words or acts which the one being restrained fears to disregard. It is universally held the action of false imprisonment always includes the element of an assault in the technical sense. (Comer v. Knowles, 17 Kan. 436; and Perry v. Kress & Co., 187 Kan. 537, 358 P. 2d 665.)
The wrong constituting false arrest or false imprisonment differs essentially from the wrong constituting malicious prosecution, although both of these wrongs may be united in one comprehensive and aggregate wrong. (Comer v. Knowles, supra.) Malice and wilfulness are not essential elements of false arrest or false imprisonment, and the motives of the defendant, whatever they may have been, are not material so far as a right of action is concerned and can never be material, except where something more than compensatory damages is sought. If exemplary damages are sought, proof of malice in making an arrest or imposing restraint is competent. (Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005; and Holland v. Lutz, supra.) If malice and wilfulness accompany a particular case involving false arrest or false imprisonment, it is because a portion of the special facts attributable to the case warrants an award of exemplary damages, but these special facts do not belong to the case as a portion of the general and essential facts of the case for which general damages may be awarded. (Comer v. Knowles, supra.)
Under our code practice where a party has a cause of action containing all the elements of both malicious prosecution and false arrest or false imprisonment, as these actions were understood at common law, he is not bound as he was at the common law to prosecute for the one or for the other, but he may prosecute for his whole cause of action in one proceeding. (Bauer v. Clay, 8 Kan. 580.)
The point is further discussed in Parli v. Reed, 30 Kan. 534, 2 Pac. 635, where Brewer, J., speaking for the court, said:
“. • • In one count a party may charge a wrongful imprisonment, and set out facts showing that it was procured by means of a void warrant, and through malice and without probable cause. And though the complaint and warrant are void, the plaintiff will not be estopped from showing that the prosecution was malicious and without probable cause. And this is eminently just. The defendant filed this complaint; the justice treated it as sufficient, and issued a process commanding the officer to arrest plaintiff. The officer thought the process good, and arrested him. Now, though it appears that the defendant acted maliciously, and with intent to harass and oppress plaintiff, can he avoid responsibility for the exemplary damages which his malice justly subjects him to, upon the claim that the complaint and warrant were in fact insufficient and void? Can he, when he induces and uses process to accomplish the arrest of a party, turn around and say the process is void and he is not responsible? The use of insufficient process does not make a prosecution bona fide, or any the less malicious. . . (p. 535.)
The same point is raised by the appellants regarding instructions given by the trial court. Instructions Nos. 7 and 8 followed PIK 14.20 on false arrest or false imprisonment and the comments thereunder on malice and wilfulness, which are not essential elements of false arrest or false imprisonment. The instructions were properly given and they followed the Kansas law.
It must be conceded the appellants’ corporate counsel, the county attorney’s office, the presiding magistrate at the preliminary hearing, and the district judge who heard the criminal action all erred in failing to recognize the statutes pursuant to which Thompson was arrested and prosecuted had been repealed several months prior to the filing of the criminal complaint. Rut this is not the theory upon which the instant action was tried. It was tried on the theory that the wrongful acts and half truths given by the appellants to the deputy county attorney caused him to authorize a complaint and to procure the issuance of a warrant for Thompson s arrest. Under these circumstances the trial court submitted the cause to tire jury to weigh the evidence and determine the facts.
The repeal of K. S. A. 58-318 and K. S. A. 58-315b effective on January 1, 1966 (See L. 1965, ch. 342, § 12), brought about by the enactment of the Uniform Commercial Code, was first discovered by counsel after the criminal prosecution and the discharge of Thompson. But in actions for malicious prosecution, the inquiiy as to the want or existence of probable cause is limited to the facts and circumstances which were apparent at the time the prosecution was commenced. (Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904.)
The appellants next contend the essential elements of Thompson’s malicious prosecution claim are lacking as a matter of law.
They argue at least five separate and independent defenses have been established to Thompson’s malicious prosecution claim, and urge that any one of the five was sufficient to require the trial court to have ruled in their favor as a matter of law. These five defenses are: (1) Reliance upon advice of private corporate counsel; (2) reliance upon advice of the county attorney; (3) reliance upon the order of the magistrate court binding Thompson over at the preliminary hearing; (4) reliance upon the trial court’s determination in the criminal action of probable cause and lack of malice as a defense; and (5) lack of probable cause as an essential element in a malicious prosecution suit.
Appellants attempt for the first time on appeal to assert the fact they received advice from private corporate counsel as a defense. This was not an issue at the trial and it cannot be asserted for the first time on appeal. The pretrial order specified:
“2. The remaining issues of fact to be determined are as follows:
“A. Was the action of the defendants in seeking and obtaining a complaint and warrant malicious?
“B. If the actions of the defendants were malicious, what damages, if any, were sustained by the plaintiff?
“C. Did the plaintiff sell, dispose of, or conceal the property, or any part thereof, listed on the conditional sales contract held by the defendants?
“D. If so, what balance is due to the defendants upon said contract?
“E. (added to pretrial order in pen) Was plaintiff falsely and wrongfully imprisoned?
“F. (added to pretrial order in pen) Was there probable cause to believe a crime was committed and a complaint to be signed?”
The pretrial order also recited:
“3. The remaining questions of law to be decided are as follows:
“A. Did the defendants have a right to rely upon the decision of the office of the County Attorney of Sedgwick County, Kansas to permit the filing of the complaint to relieve the defendants from any action alleging the defendants’ actions to be malicious?”
The pretrial order further provided that the trial of the action “shall be limited to the issues contained in this Order, except by-order of Court.”
It is apparent the appellants’ private corporate counsel and the county attorney both relied upon the facts related by the appellants. Their own file and Pillsbury’s affidavit would support a finding the appellants did not relate the true facts to the corporate counsel or to the county attorney. The appellants’ corporate counsel never testified or conducted an investigation. He advised the appellants only to see and consult with the county attorney.
To maintain an action for malicious prosecution the plaintiff must prove that the defendant instituted the proceeding of which complaint is made, that the defendant in so doing acted without probable cause and with malice, that the proceeding terminated in favor of the plaintiff, and that he sustained damages. The plaintiff must prove both malice and lack of probable cause, and unless both are proved, the plaintiff’s claim must fail. (Ahring v. White, 156 Kan. 60, 64, 131 P. 2d 699; and Walker v. Smay, 108 Kan. 496, 196 Pac. 231.)
The foregoing is substantially the instruction taken from PIK 14.30, which was given to the jury. The jury was also instructed on probable cause in accordance with PIK 14.31, and no objection was made to these instructions.
The parties stipulated in the pretrial order the original criminal action against Thompson was terminated in his favor.
The appellants cite us to Dick v. Truck Insurance Exchange, 386 F. 2d 145 (10th Cir. 1967), where “reliance upon counsel” was asserted as a defense in a malicious prosecution suit, and it was held where the alleged malicious prosecution was commenced on the recommendation of counsel, such fact established probable cause as a matter of law. In that case private counsel made an independent investigation and obtained the information upon which he suggested and advised the defendant to authorize him to commence legal proceedings alleging mental illness of the plaintiff. It is readily apparent the Dick case has no application to the facts here presented.
In support of the appellants’ defense that they relied upon the advice of the county attorney’s office, they cite Haines v. Railway Co., 108 Kan. 360, 195 Pac. 592, rehearing denied 108 Kan. 738, 196 Pac. 1079.
In Haines it was held in an action to recover damages for a malicious prosecution, a complete defense is made by proving that the complaining witness obtained all the available information concerning the commission of a crime, except such as might have been acquired from the suspected person, and truthfully placed all that information in the hands of the deputy county attorney who advised and directed that the prosecution be commenced.
The Haines case applies only where the complaining witness has truthfully laid before the county attorney all facts of which he has knowledge. (Buchanan v. Insurance Co., 108 Kan. 520, 523, 196 Pac. 249.) As already stated there is evidence from which the jury might find that the complaining witness, Pillsbury, did not truthfully disclose facts to the county attorney. His affidavit stating that Thompson had sold, disposed and concealed every item listed in the conditional sales contract, after his own files showed where the furniture had been left in Wichita and where it could have been picked up, precludes this court from ruling that probable cause was established as a matter of law under the Haines decision.
There is no evidence in the record to show the deputy county attorney recommended that Pillsbury sign the complaint; the only evidence in the record is that he authorized it. Mr. Updegraff testified it was up to them if they wanted to sign it.
Had the facts related to the county attorney’s office by the appel lants shown that some of the items of furniture were immediately recoverable, those items would not have been included in the complaint or made a part of the extradition affidavit.
On this point the appellants challenge instruction No. 14 given to the jury by the trial court. It is PIK instruction 14.33 and reads:
“The advice of the county attorney as to the institution of a criminal proceeding, sought and acted upon in good faith, is a complete defense for malicious prosecution, but this is only so when all the facts known to the defendant, and all the facts of which he could leam by reasonable effort,, have been fully and truthfully given to such official.” (Emphasis added.)
The appellants cite us to the Haines decision where the opinion for the court represented the view of only three members of the court. In their opinion the complaining witness was required to make a reasonable effort to ascertain all the facts. From this point the appellants seek to trace the rule or its variation through many Kansas cases.
It is unnecessary in this opinion to delve into the controversy asserted by the appellants to determine its ultimate resolution, because the appellants only objected to instruction No. 14 in the trial court on the ground there was no evidence given at the trial to support a finding that a full disclosure of all facts known to the prosecuting witness was not given to the county attorney’s office. By failing to assert the inclusion of the “reasonable effort” doctrine set forth in the instruction in their objection, they waived their right to question the soundness of instruction No. 14.
K. S. A. 60-251 makes provision concerning instructions to the jury. Subparagraph (b) provides:
“(b) When waived. No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
The foregoing is but a codification of the prior case law. (Clark v. Linley Motor Co., 126 Kan. 419, 268 Pac. 860; and Merrick v. Missouri-K.-T. Rld. Co., 141 Kan. 591, 42 P. 2d 950.)
The appellants, having failed to distinctly state the matter to which they now object, and the grounds of their present objection to instruction No. 14 in the trial court, may not under the above statute assign as error the giving of instruction No. 14. It therefore became the law of the case and is binding upon the appellants. It is not clearly erroneous.
Where the facts in a malicious prosecution action are in dispute, as here, questions such as malice, probable cause, or whether the evidence discloses a legal defense to the action, must be submitted to the jury under appropriate instructions defining the law applicable to the rights of the parties under all of the evidence of record. (Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904.)
The record presented herein discloses sufficient evidence from which a jury could find that all the facts known to the appellants, and all facts they could have learned by reasonable effort, had not fully and truthfully been given to the county attorney s office as required under instruction No<. 14, and the trial court did not err in submitting this matter to the jury.
The appellants contend binding Thompson over at the preliminary hearing is a complete defense on the ground that it establishes probable cause as a matter of law.
At a preliminary hearing the examining magistrate must find that an offense has been committed, and that there is probable cause to believe the defendants committed the crime. The question then arises, how much weight, as proof of probable cause, shall be attributed to such findings of the examining magistrate.
This point has previously been determined by an old line of cases, which the appellants concede must be overruled if they are to prevail on this point. These cases hold the finding of an examining magistrate at the preliminary hearing is only prima facie evidence of probable cause in an action for malicious prosecution brought by the defendant in a criminal action against the prosecuting witness. (Ross v. Hixon, 46 Kan. 550, 26 Pac. 955; Messinger v. Fulton, supra; and cases cited therein.) Since the finding of the examining magistrate is only prima facie, all that is necessary for the plaintiff to overcome such evidence is to overthrow it by a preponderance of the evidence.
The appellants overlook the purpose of the preliminary hearing in requesting this court to overrule the line of cases represented by Ross v. Hixon, supra. Under our procedure the preliminary hearing is not a critical stage in the criminal proceeding. (State v. Pittman, 199 Kan. 591, 595, 433 P. 2d 550.) It is not a trial in the usual and ordinary sense. The examining magistrate at a preliminary examination of an accused, who is charged with the commission of a felony, has no jurisdiction to arraign the accused or to accept a plea of guilty on the charge. (State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. denied 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143.) Furthermore, the accused is not required to present any evidence at the preliminary hearing. The preliminary hearing serves to give the person charged general information of the nature and character of the offense charged (State v. Robertson, 190 Kan. 771, 774, 378 P. 2d 37), and apprise the accused of the kind of evidence he will be required to meet on formal prosecution in the district court. (King v. McKnight, 120 Kan. 692, 695, 245 Pac. 105.) It is not necessary that there should be the same formality or the strict compliance with procedure and rules of evidence in a preliminary examination as upon the final trial of the accused. (McIntyre v. Sands, 128 Kan. 521, 523, 278 Pac. 761.)
In a preliminary hearing there is merely a finding to the effect that sufficient facts have been developed that justify a magistrate in sending the parties before a court competent to deal with the question of guilt or innocence. (Ross v. Hixon, supra.) Where the accused charged with a felony waives a preliminary hearing, the examining magistrate makes the same finding as if the preliminary hearing were fully conducted before him.
We adhere to our former decisions which hold that the binding over of an accused at a preliminary hearing is only prima facie evidence of probable cause, and not a complete defense to a malicious prosecution action.
The appellants contend the district court’s judicial determination of probable cause and lack of malice at the trial of the criminal action is a defense as a matter of law to a malicious prosecution action.
To support this argument the appellants rely upon K. S. A. 15-516. It provides in substance that if upon the trial of a defendant in a criminal action, it appears to the satisfaction of the district court that the prosecution was commenced without probable cause, and from malicious motives, the court shall impose the cost of prosecution upon the complaining witness.
Judge Howard C. Kline was called as a witness in this case and testified he did not tax or assess costs against General Finance or Pillsbury as complainants or prosecutors in the criminal action. It is therefore argued by the appellants Judge Kline made a judicial determination in the nature of a negative finding of fact that the prosecution was not commenced without probable cause, and was not commenced from malicious motives.
On the record here presented it is presumptive on the part of the appellants to say Judge Kline made a negative finding by failing to assess costs under K. S. A. 15-516. In the first place, chapter 15 of the Kansas Statutes Annotated applies only to cities of the third class. (K. S. A. 15-101.) Wichita, located in Sedgwick County, Kansas, where Thompson’s criminal action was heard, has a population exceeding 15,000 and is a city of the first class. (K. S. A. 1968 Supp. [now 1969 Supp.] 13-101.) In the second place, had counsel for Thompson been successful in getting into evidence the reasons given by Judge Kline when he discharged Thompson at the close of the state’s evidence in the criminal proceeding, substantiating the allegation made in Thompson’s pleading, it may have disclosed a positive finding of lack of probable cause and malicious motives.
Basically, the appellants are attributing a negative finding to the action of Judge Kline when he discharged Thompson at the close of the state’s evidence in the criminal proceeding for the failure of Judge Kline to follow the Kansas statutes. The applicable statute which the appellants should have cited to this court and to Judge Kline is K. S. A. 62-1902. In substance it provides the same as 15-516, supra, but it applies to the prosecution of Thompson herein. Thus, the appellants’ counsel, who were wrapped up in this case for more than three years when their brief was filed, have in their brief, by mistake, cited this court to a statute which is inapplicable. Under the circumstances we cannot attribute a negative finding to the action of Judge Kline. There is no indication he was ever cited to the proper statute.
A query may be posed. What would happen had Judge Kline been cited to the proper statute and assessed costs against the complaining witness? Would this establish a positive finding by a judicial officer after hearing the matter that the prosecution was commenced without probable cause and from malicious motives, and thereby preclude the defendants in the malicious prosecution action from defending on these issues? We think not.
The issues to be determined in a malicious prosecution action are framed by the pleadings and the proceedings in that action, where the parties concerned are all represented by independent counsel and the issues are resolved on the basis of the evidence and the law applicable to such action.
The appellants next contend whether a given set of facts consti tutes probable cause for a criminal prosecution is one of law to be determined by the trial court and is not a question for the jury. (Citing, Buchanan v. Insurance Co., 108 Kan. 520, 196 Pac. 249.)
In Buchanan the trial court left the question of what facts constituted probable cause entirely to the determination of the jury, and this was said to be error. In the opinion the court said:
“. . . Whether certain facts sought to be established exist, are matters of fact for a jury, but whether the facts do or do not constitute probable cause for insituting a prosecution is not a jury question, but strictly one of law for the decision of the court. . . .” (pp. 524, 525.)
Under this point the appellants also challenge the probable cause instruction given to the jury.
If, as the appellants contend, the trial court erred in failing to determine the issue of probable cause as a matter of law, it was because the trial court was led astray. The pretrial order, prepared by counsel for the appellants, did not list the probable cause issue as a question of law to be determined by the trial court. In the pretrial order it was specifically set forth as an issue of fact to be determined at the trial, and no objection was made to the giving of instruction No. 11 defining probable cause in accordance with PIK 14.31.
In a malicious prosecution action the determination of probable cause is only a question of law for the determination of the court when the facts are not in dispute, but, if the facts tending to establish the existence or want of existence of probable cause are in dispute, then it becomes the duty of the trial court to submit the question to the jury. (Barnes v. Danner, 169 Kan. 32, 216 P. 2d 804; and Messinger v. Fulton, 173 Kan. 851, 856, 252 P. 2d 904.)
The appellants pursue the point further, citing Rowe v. Glen Elder State Bank, 126 Kan. 291, 267 Pac. 998, where the court said:
“. . . Where the facts as to probable cause are in dispute, it is the function of the jury to find what facts exist, but it is the function of the court to determine and advise the jury what facts if proven will or will not constitute probable cause. This the court failed to do. A general instruction was given on the subject of probable cause, which left the jury to determine not only the existence of the facts but also whether the facts proven or found constituted probable cause. Under the authorities the latter is a question of law for the court to decide. . . .” (pp. 292, 293.)
In Glen Elder the trial court failed upon request to instruct the jury as to the particular facts found to exist which would or would not constitute probable cause. That was material to the court’s decision.
The record herein fails to disclose the appellants made a request for instructions to the jury as to the particular facts found to exist which would or would not constitute probable cause. Upon all the circumstances presented by the record herein, they cannot now be heard to complain by raising this point for the first time on appeal.
The conflicting facts heretofore noted as to the location of the furniture, whether it had been sold, concealed or disposed of by Thompson, and conflicting testimony as to the acts and conversations of various witnesses under the circumstances here presented warranted the trial court in placing the probable cause issue before the jury by instructions Nos. 11 and 12 (PIK 14.31 and 14.32), to which the appellants made no objections.
The appellants contend in the case at bar the plaintiff failed to establish malice as a matter of law; conversely, they argue, the lack of malice was established and the trial court should have so ruled.
Malice may be inferred where a person acts without probable cause in instituting a criminal proceeding against another. That is to say, want of probable cause may be evidence of malice. (Walker v. Smay, 108 Kan. 496, 196 Pac. 231.)
Without objection by the appellants the jury was instructed on want of probable cause and malice by instruction No. 12. (PIK 14.32.) This instruction advised the jury it could infer that a person who acted without probable cause acted with malice.
To support this point the appellants rely upon the proposition that probable cause defenses were established as a matter of law. For the reasons heretofore stated their position, as to probable cause defenses on which they rely, has been demonstrated to be erroneous.
The appellants contend there is no evidence at bar that they commenced any prosecution with a malicious motive or with a wanton disregard of Thompson’s rights. In support of this proposition they argue Piflsbury signed complaints authorized and issued by the county attorney’s office only and solely on reliance of the findings of his private corporate attorney and upon the recommendations of the county attorney’s office.
As previously stated, the appellants’ private corporate counsel only advised the appellants to consult with the county attorney, and the county attorney merely authorized a complaint to issue. No one had actually recommended that Pillsbury sign a complaint.
Without reiterating the conflicting testimony and evidence, the signing of a false affidavit by Pillsbury was sufficient for the jury to find there was ill will against Thompson on the part of the appellants.
Furthermore, before General Finance consulted its private corporate counsel, Holderman, an employee of General Finance, sent a letter dated May 5, 1966, to the trustee in bankruptcy enclosing a copy of K. S. A. 58-318, copies of which were sent to Thompsons Denver attorney. It tends to show the appellants knew what course of action they intended to pursue, and the nature of such action, without regard for the rights of Thompson, all before they consulted private corporate counsel or the county attorney.
A registered letter sent by Hoilderman of General Finance on May 16, 1966, addressed to Thompson in Denver, informed him that unless the items of furniture were returned or satisfactory payment arrangements made with the finance company for Thompson to retain possession of the furniture, General Finance would file a petition of objection to the closing of the bankruptcy. The jury was entitled to view this letter as an attempt by General Finance to collect money from Thompson contrary to orders given by the bankruptcy court, dated April 21, 1966, wherein General Finance was granted leave to foreclose.
The letters of General Finance in its file admitted as plaintiffs Exhibit No. 1 disclosed its knowledge of other remedies available, and coupled with the other evidence, warranted the jury in weighing the evidence to find that no just cause or excuse was indicated for pursuit of the criminal proceedings against Thompson.
Here the facts were in dispute, and the question of malice was properly submitted to the jury. (Messinger v. Fulton, supra.)
It is apparent the jury found there was malice because it returned an award for punitive damages, having been properly instructed relative thereto.
The appellants contend that if each and every one of the defenses heretofore discussed is not a complete and absolute defense in and of itself, then at least all of these defenses in combination must be ruled to establish a single, absolute defense to the suit at bar as a matter of law. Based upon what has heretofore been said this point has no merit.
The appellants’ contention that the trial court committed re versible error by the manner in which it instructed the jury has heretofore been treated by considering the various instructions challenged by the appellants on appeal, which were given to the jury.
Under this point the appellants also assert the trial court erred in failing to instruct at all on the defense of reliance on private counsel. As heretofore stated this point has been raised for the first time on appeal. No request was made by the appellants for an instruction on this point in the trial court, and the issue was not covered in the pretrial order.
The appellants contend the trial court erred in refusing to submit special questions to the jury as requested by the appellants in writing.
The appellants requested in writing that the trial court submit eighteen special questions to the jury pursuant to K. S. A. 60-249 (b). They recognize that this section of the statute grants to the trial court discretionary powers in the area of special questions. (Thompson v. Norman, 198 Kan. 436, 424 P. 2d 593.) But they argue a malicious prosecution and false arrest case peculiarly requires special findings on the part of the jury. They argue:
“There is no way at bar for anyone to determine whether the jury found in plaintiff’s favor on the false arrest claim or on the malicious prosecution claim, or on both. Nor, assuming the jury found for plaintiff on malicious prosecution, is there any way anyone can ascertain on what concrete facts the jury rested its decision as to the presence or absence of probable cause. It cannot be questioned that such was an important phase of the trial below. . . .”
On the instructions given it is clear the jury found the appellants guilty of malicious prosecution because they awarded punitive damages. Answers given by the jury to special questions requested on probable cause would not have produced concrete facts upon which the jury based its finding of probable cause. One special question requested simply asked the jury whether it found from the evidence that the defendants had probable cause to believe that an offense had been committed by the plaintiff. If a negative answer was given the jury was asked to explain. A similar question was posed on lack of probable cause and, if the jury answered in the affirmative, the jury was asked to explain. If these special questions had been submitted, the jury under the instructions given would probably have explained its answer in language similar to the instruction on probable cause.
The requested special questions indicate the appellants still re garded the general probable cause issue as a fact question for submission to the jury, when their request was submitted to the trial court.
An examination of the special questions requested discloses that some were confusing and inappropriate to the issues in the case. Others sought to examine the jury relative to issues that were not covered by the pretrial order, and some purport to be duplications.
In Thompson v. Norman, supra, this court held 60-249 (h), supra, to be substantially the same as Federal Rule No. 49 (b) and discretionary even though the questions relate to issues of fact raised by the pleadings or evidence.
Under the circumstances presented by this record, we cannot say the trial court abused the exercise of its power of discretion in refusing to submit the special questions requested to the jury.
The appellants next contend offering into evidence plaintiff’s Exhibits Nos. 3 and 4, a set of leg irons and a set of handcuffs, which were not listed in the pretrial order, had an inflammatory effect on the jury which could not be corrected by sustaining the appellants’ objections, and constituted reversible error.
These exhibits were offered in evidence on the ground they were similar to the handcuffs and leg irons used when Thompson was arrested in Denver by law enforcement officials. Without objection counsel for the appellants permitted Thompson, upon examination as a witness, to identify the leg irons as the type they put on him at the time of his arrest, and to testify that they required him to walk to the police car with them on. He was also permitted to identify the handcuffs as the type they used to handcuff him in Denver. He was then asked whether they took him downtown that way, and he answered in the affirmative. The offer of the exhibits in evidence followed, and counsel for the appellants objected on the ground: “There is no foundation laid that these are the ones. There is no way to cross-examine.” He further argued it was only an attempt to inflame the jury, that they were inadmissible in evidence, and that there was no showing defendants had any control over what was done in Denver. The trial court sustained the objection and nothing further appears in the record concerning the matter.
The appellants made no motion for a mistrial before the jury retired to deliberate, and have failed to make it affirmatively appear from the record presented herein they were substantially prejudiced by the offer of the exhibits. (K. S. A. 60-261; and K. S. A. 60-2105.) Having made no effort to rebut or discredit this testimony, the appellants were required to accept the evidence that Thompson was handcuffed and manacled in leg irons. If the jury was inflamed, it was by the testimony of Thompson which was never challenged, and not by the offer of the exhibits that were denied admission in evidence.
The only other point asserted by the appellants — that the trial court erred in refusing to permit the appellants to present any evidence on their cross petition, and in ruling their cross petition to be abandoned — has been abandoned by the appellants on appeal.
Finding no point asserted by the appellants on appeal sufficient to warrant a reversal of the judgment, the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Price, C. J.:
Defendants Fisher were the makers of a promissory note. Plaintiff Phillips signed the note as an accommodation maker. Defendants became in default. Plaintiff paid the balance due and brought this action to recover the amount so paid. Judgment was for plaintiff, and defendants have appealed.
From a very sketchy and incomplete record the following appears to be the background of the matter.
Defendants’ son was indebted to an Oklahoma bank on a note dated July 12, 1962, and secured by a mortgage on two automobiles owned by him. He made monthly payments on the note until he was killed on December 8, 1962, in a wreck involving one of the cars. Defendants made the monthly payments on the note on December 25,1962, and January 20,1963.
On April 10, 1963, the balance due on the note was $3,950.00. On that date defendants executed a new note to the bank for that amount. Plaintiff signed as an accommodation maker. Defendants took possession of the two cars in question — one of which was wrecked. Defendants made twelve monthly payments on the note —and then defaulted. On June 2,1964, plaintiff paid off the balance due in the amount of $2,376.40. , In March of 1965 plaintiff brought this action to recover the amount so paid by him.
The mater dragged along for several years, and in January 1969 summary judgment was entered for plaintiff in the amount sued for, together with interest.
In their appeal defendants raise a number of points — all of which have been examined and are found either to be completely without merit or else — in view of the vague record presented — incapable of meaningful and specific discussion. For example — plaintiff is referred to both as an “accommodation party” and as one who “guaranteed” payment of the note. It also is argued that he was not a “holder in due course.” The note is not set out in the record and so we have no way of knowing plaintiff’s precise status. Oral argument of the appeal was waived, thus affording no opportunity to inquire as to this or other questions. In both the amended answer and in a deposition, execution and delivery of the note were admitted. Defendants also admitted making monthly payments on the note. Their explanation for discontinuing payments appears to have been an after-thought. No reason has been advanced why plaintiff — who eventually paid off the balance on the note — should not be permitted to recover from defendants — as makers.
It always has been the rule that a presumption of validity attaches to a judgment of the district court until the contrary is shown. Error is never presumed, and when an appellant brings a case to this court the burden is upon him to make it affirmaively appear that the judgment below is erroneous and that his substantial rights have been prejudicially affected thereby. If he fails in sustaining such burden the judgment must be affirmd. See McCelland v. Barrett, 193 Kan. 203, 392 P. 2d 951, and the many decisions cited in Hatcher’s Kansas Digest, Appeal and Error, § 583 and West’s Kansas Digest, Appeal & Error, § 901.
Under the record in this case defendants have not sustained their burden of showing reversible error. The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Jesse Bolen, was convicted by a jury of forgery in the second degree (K. S. A. 21-608), uttering or passing a forged instrument (K. S. A. 21-609), and possession of a firearm after previously being convicted of a felony (K. S.A. 21-2611). Having had two prior robbery convictions in the state of California, defendant was sentenced on January 27, 1969, as a third offender (K. S. A. 21-107a) to three concurrent fifteen-year sentences in the state penitentiary.
On appeal, only two specifications of error are raised by court-appointed counsel.
The first contention is that the trial court erred in admitting into evidence a sales ticket for a .32 caliber Omega revolver that was obtained by police officers in the search of defendant’s automobile.
On September 5, 1968, defendant, using the name of “James Randolph,” endorsed an American Express money order and from the proceeds thereof purchased a .32 caliber Omega revolver at a pawn shop in Wichita. The clerk gave him a bill of sale for the gun, and with the weapon, the sales ticket, and some change from the sale, defendant departed the store. Subsequent observation by the clerk disclosed the money order had been raised from one dollar to eighty-one dollars.
Following defendants arrest, sworn testimony was presented to a magistrate, and a search warrant was obtained. The warrant authorized a search of defendant’s 1960 pink Cadillac for the revolver and nine American Express money orders (the serial numbers of all items being specifically listed). In the course of the search of the automobile, which took place in the presence of defendant and his attorney, the officers found the revolver, pieces of two money orders, and the sales ticket in question. No issue is raised as to the validity of the search warrant itself.
Defendant complains seizure of the sales ticket was illegal because it was not one of the items described in the search warrant and, therefore, it was inadmissible in evidence. The contention is devoid of merit.
Under our statute (K. S. A. 1968 Supp. 62-1829) a search warrant may be issued to search for and seize any property which constitutes or may be considered a part of the evidence, fruits or instrumentalities of a crime. The mere evidence rule, which was abandoned by the United States Supreme Court in Warden, Maryland Penitentiary v. Hayden, 387 U. S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642, has never been the law of this state. (State v. Jones, 202 Kan. 31, 446 P. 2d 851.)
While the warrant issued by the magistrate or judge must describe the property to be searched for and seized (K. S. A. 62-1830), the fact the officer executing the warrant seizes an unlisted item does not convert the search to one of a general exploratory nature within the prohibition of the fourth amendment to the United States Constitution or § 15 of the Bill of Rights of the Kansas Constitution against unreasonable searches and seizures. In State v. Yates, 202 Kan. 406, 449 P. 2d 575, we held that an officer, while conducting a legal search pursuant to a search warrant, may lawfully seize other stolen goods found on the premises but not mentioned in the warrant. The search, of course, must be directed in good faith toward the objects specified in the warrant; but if in the course of that search the officer discovers items not described that might have been seized in a search incident to a lawful arrest, such evidence may also be legally seized in the search pursuant to the warrant. (Harris v. United States, 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098; Warden, Maryland Penitentiary v. Hayden, supra; Gurleski v. United States, 405 F. 2d 253 [5th Cir. 1968], cert. denied, 395 U. S. 981, 23 L. Ed. 2d 769, 89 S. Ct. 2140; United States v. Robinson, 287 F. Supp. 245 [N. D. Ind. 1968].) Reasonable deviation from the letter and text of a search warrant, particularly where, as in this case, the evidence uncovered is directly related to the property described in the warrant, does not amount to a “fishing expedition” on the part of the officer, as defendant argues. The sales ticket for the pistol was lawfully seized, and it was properly admitted into evidence.
Defendant’s other contention, that while incarcerated in the state penitentiary he should have been provided with a copy of the trial transcript and court files, cannot be sustained. A similar argument was asserted and rejected in State v. Grant, 205 Kan. 220, 468 P. 2d 227. The record here discloses the trial court ordered a complete trial transcript be furnished defendant by delivering the same to his court-appointed counsel, who, in turn, was directed to file it with the clerk of the district court to become a part of the permanent records in the case. The transcript of proceedings was supplied to defendant’s counsel for the purpose of preparing this appeal, in full compliance with the provisions of K. S. A. 62-1304 (b). There is no showing whatever that defendant has suffered any prejudice as a result of his not having separate copies of the transcript and court files in his personal possession, when such records were made available to his counsel.
Nine other specifications of error have been enumerated by the defendant, pro se. We have examined each of them and find them to be so patently unfounded as not to justify discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in a garnishment proceeding wherein the appellants were seeking to recover from the appellee, The Farm Bureau Mutual Insurance Company, the amount of their judgments rendered against the defendant, Gary D. Nelson.
The trial court’s ruling in the garnishment proceeding was favorable to appellee. It was held that a restrictive endorsement attached to the policy issued by the appellee was valid and enforceable, exonerated the appellee of any liability and precluded appellants’ recovery.
The facts leading up to the present dispute will be briefly stated.
In 1964, Gary Nelson purchased a Ford automobile. Title to the Ford was initially held jointly by Gary and his father, Norman Nelson. Gary owned a Pontiac automobile which he traded for the Ford automobile and the insurance policy on the Pontiac automobile was transferred to the Ford automobile. This policy was subsequently cancelled on June 11, 1964. There was no insurance on the Ford automobile between June 11, and September, 1964. Prior to the cancellation of the insurance policy on the Ford automobile, the appellee, insurer, informed Norman Nelson that it could not insure the automobile with Gary driving.
Title to the Ford automobile was changed to Norman Nelson as sole owner and he applied to- appellee for insurance on the automobile on September 4,1964.
The Farm Bureau Mutual Insurance Company’s home office approved the issuance of a policy on the automobile subject to the restrictive endorsement mentioned in Norman Nelson’s application and loss history statement. The home office received the application and loss history statement on September 14, 1964. On September 15,1964, the company prepared the restrictive endorsement, countersigned it and returned it to Wichita for execution by Norman and Gary Nelson. Both Norman and Gary Nelson signed the endorsement.
The restrictive endorsement provided, in the pertinent part:
“In consideration of mutual promises made by and between the parties hereto, it is understood and agreed that the Company shall not be liable and no liability or obligation of any kind shall attach to the Company for losses or damage sustained by any person, firm or corporation whatsoever, while any automobile insured hereinunder is in the custody of, is in the control of, or is driven or operated by Gary Nelson.
“It is further understood and agreed the provisions of this endorsement shall apply until rescinded by written notice signed by a duly authorized officer or representative of the Company.”
The endorsement was explained to the Nelsons and both Norman and Gary Nelson understood from the time the application was made on September 4, 1964, that Gary was to be restricted from coverage when driving the car. On the evening before the accident here involved, Norman Nelson told Gary not to drive the car.
On April 27,1965, at approximately 1:00 o’clock A. M., Gary drove the Ford automobile into a steel utility pole. His passengers, Larry Avery, Luanne Clevenger and Gretchen C. Wells, were killed, and Larry E. Hudson received permanent injuries. The parents of the young men and women recovered substantial judgments against Gary Nelson and seek to satisfy their judgments in garnishment proceedings against Farm Bureau Mutual Insurance Company.
The judgment creditors of Gary Nelson have appealed from the judgment in favor of the garnishee.
Appellants first contend that the restricted endorsement violates the public policy as expressed in the motor vehicle safety responsibility act.
In the recent case of Miller v. State Farm Mutual Automobile Ins. Co., 204 Kan. 694, 466 P. 2d 336, under somewhat similar facts, we held:
“A driver exclusion endorsement attached to a motor vehicle liability insurance policy, pursuant to a driver exclusion agreement entered into by insured and insurer, does not violate provisions of the Motor Vehicle Safety Responsibility Act when such policy has not been certified to the Motor Vehicle Department as proof of financial responsibility pursuant to provisions of the Act.” (Syl. ¶ 7.)
Out of fairness to counsel for appellant, we should note that at the time the brief was filed the opinion in the Miller case had not been filed. Counsel now, with commendable frankness, concede that the case is controlling here. We, therefore, without further ado, incorporate hereby reference what was there said and make it a part of this opinion.
The appellants next contend that the restrictive endorsement heretofore set out is void because there was no consideration given for its issuance.
We cannot agree with this contention. The issuance of the policy to Norman Nelson was the consideration for the restrictive endorsement.
Farm Bureau Mutual Insurance Company would not have covered the Ford autombile without the endorsement restricting Gary from the coverage. In addition, Norman Nelson, the named insured, agreed to the endorsement in order to obtain some insurance coverage on the automobile. The application of September 4, 1964, and the loss history statement obtained at the same time as the application and which was signed by Norman Nelson, mentioned the restrictive endorsement and stated that he was willing to have Gary restricted from any policy to be issued on the 1964 Ford automobile. At the- time the application was taken, and prior thereto, Farm Bureau agents had explained to Norman Nelson that Gary would be restricted from the policy. The policy was issued with the restrictive endorsement on it so the endorsement was effective the same day as the policy.
The testimony of Norman Nelson taken by deposition would appear to be decisive of this question. The testimony is summarized in the record as follows:
“I understood the 1964 Ford would not be covered by insurance if Gary were driving it. At the time I made application for the policy on the 1964 Ford (September 4, 1964) I knew that Gary was to be restricted off coverage for driving the car. And Gary knew this too. One of the reasons the title on the 1964 Ford was transferred to my name only was to get insurance. Gary also knew there would be no insurance coverage on the auto if he drove it.
“There is no doubt that Gary signed the restrictive endorsement and that I signed the restrictive endorsement and that the endorsement has been explained by Farm Bureau. On the evening before the accident here involved, I had told Gary not to drive the auto.
“I agreed to sign the restrictive endorsement in order to have insurance coverage on the 1964 Ford.”
The appellants rely heavily on Wackerle v. Pacific Employers Insurance Company, 219 F. 2d 1, 52 A. L. R. 2d 814, cert. den. 349 U. S. 955, 99 L. Ed. 1279, 75 S. Ct. 884, and the Missouri case which the federal court followed — Rice v. Provident Life & Acc. Ins. Co., 231 Mo. App. 560, 102 S. W. 2d 147. The cases do not cover the factual situation which we have under consideration. In both cases the policies had been in existence for some time and the restrictive endorsements were made without any reduction in premium or other consideration. A brief quotation from the Wackerle case will demonstrate:
“Since the policy as originally written provided for coverage when the insured automobile was being driven by Donald Wymer [the insured’s son], this valuable right could not be taken away from the insured by mutual consent alone unsupported by consideration. . . .” (Emphasis supplied, p. 5.)
In the case under consideration the restrictive endorsement and the insurance policy were part of the same transaction and the restriction was agreed to in order to induce the issuance of the policy. (See Moordian v. Canal Insurance Company, 272 Ala. 373, 130 So. 2d 915.)
We are forced to conclude that there was adequate consideration for the issuance and acceptance of the policy and the restrictive endorsement thereon.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, John B. Tabor, commenced this action December 20, 1968, to recover damages sustained by his automobile in a collision which was allegedly caused by negligence on the part of the defendant, Harry E. Lederer.
On January 23, 1969, the defendant filed his answer denying negligence on his part, alleging contributory negligence on the part of plaintiff and further alleging that the plaintiff had released the defendant from any and all actions, claims and demands arising out of the accident. A copy of the release allegedly executed by the plaintiff, Tabor, was attached to and made a part of the defendant’s answer.
Five days after filing its answer the defendant filed a motion for judgment on the pleadings. One month later, and on February 28, 1969, the plaintiff filed a request for admission of facts and genuineness of documents. Attached to this request were copies of correspondence addressed and sent to the defendant’s insurance carrier, The Ohio Casualty Group, hereafter called Ohio, by or on behalf of the plaintiff’s insurance carrier, United Security Insurance Company, whom we shall refer to as United, and the replies which were sent by Ohio in response to the letters of United.
Objections to the plaintiff’s request for admissions were filed by the defendant on March 4, 1969. Neither the plaintiff’s request for admission of facts and genuineness of documents, nor the defendant’s objections filed thereto, have ever been ruled on by the trial court and, so far as we can tell from the record, they both are now hanging around in limbo.
Nonetheless, the trial court on March 7, 1969, heard arguments on the defendant’s motion for judgment on the pleadings. The record itself does not indicate whether the court was aware, at that time, of plaintiff’s request for admissions, but we are advised by plaintiff in his brief that during oral argument the plaintiff requested that the hearing be stayed until discovery could be completed as to the facts and circumstances surrounding execution of the purported release. Be that as it may, the trial court on March 18,1969, sustained defendant’s motion for judgment on the pleadings without ruling upon or even mentioning the plaintiff’s request for admissions.
Following the sustaining of defendant’s motion for judgment on the pleadings, the plaintiff filed a “motion for rehearing to allow plaintiff to further plead and to substitute proper party plaintiff.” Attached to this pleading as an exhibit was an amended petition with United substituted as party plaintiff, setting up its subrogation claim. This motion was overruled and the request to file an amended petition was denied by the court as of March 28, 1969. The present appeal was thereupon filed.
The first point raised on appeal is that the trial court acted prematurely in sustaining the defendant’s motion for judgment on the pleadings. K. S. A. 1969 Supp. 60-212 (c) provides that after the pleadings are closed any party may move for judgment on the pleadings; that if matters outside the pleadings are presented and not excluded by the court, the motion shall be treated as one for summary judgment and all parties shall be given reasonable opportunity to present all material made pertinent to the motion. A motion of this character, as we find from the text in 3 Barron & HoltzofE, § 1240, p. 180, “is based upon the ground that the moving party is entitled to a judgment on the face of the pleadings themselves.”
We are inclined to agree that the trial court was hasty in ruling on and sustaining the defendant’s motion for judgment on the pleadings. The answer set up, as a defense, the execution of a release, which is an affirmative defense of new matter. (41 Am. Jur., Pleading, § 159, pp. 403, 404; 45 Am. Jur., Release, § 40, pp. 703, 704.)
K. S. A. 60-208 (c) provides that in pleading to a preceding pleading, a party shall set forth affirmatively certain defenses which are expressly specified and “any other matter constituting an avoidance or affirmative defense.” (Emphasis supplied.) Having pleaded the execution of a release as a matter of affirmative defense, the defendant thereby assumed the burden of establishing it. (45 Am. Jur. Release, § 45, p. 706.)
In considering a motion for judgment on the pleadings by a defendant, the question is whether upon the admitted facts the plaintiff has stated a cause of action. (1A Barron & HoltzofE, § 359, p. 398.) It is obvious from the most casual view of the present petition, that plaintiff has alleged no release.
Nor may it be said that the defendant’s allegation of a release, contained in its. answer, stands undisputed or undenied. K. S. A. 298 (d) provides in pertinent part:
“. . . Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.”
As we refer back to K. S. A. 60-207, which sets out what pleadings are allowed, we find that a reply to an answer is not included in the permitted list except when ordered by the court.
Hence, we believe this case was improperly disposed of by dismissal through the medium of the defendant’s motion for judgment on the pleadings. As we understand the position taken by plaintiff, and by United in whose behalf the plaintiff was also acting, it is this: Ohio misled or lulled plaintiff and United into believing that negotiations were being conducted with plaintiff solely with respect to his claim for personal injuries, and that the claim for property damage, including United’s subrogation claim and plaintiff’s claim for his deductible, would be taken up at a later date; that a dispute thus existed as to what, if any, claims were intended to be released in whatever release may have been slyly obtained by Ohio.
Moreover, it is perfectly obvious that pretrial discovery had not been completed. The plaintiff’s request for admission of facts and genuineness of documents, filed February 28, remained still unanswered by the defendant, whose only response up to that time had been to interpose objections. When the trial court heard and sustained the defendant’s motion for judgment on the pleadings, the request for admissions was still pending and the defendant’s objections thereto had not been acted upon.
In Timmermeyer v. Brack, 196 Kan. 481, 412 P. 2d 984, this court considered a comparable situation and held:
“Summary judgment should not be entered if there remains a genuine issue of a material fact, nor where the opposing party is proceeding with due diligence with his pretrial discovery hut has not had an opportunity to complete it.” (Syl. ¶1.) (Emphasis supplied.)
The rule expressed in Timmermeyer has been threaded through our decisions with notable consistency. In Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, we said:
“Ordinarily a motion for summary judgment should not be granted so long as pretrial discovery remains unfinished. (Smith-Corona Marchant, Inc. v. American Photocopy Equip. Co., 217 F. Supp. 39 [S. D. N. Y. 1963].)” (p. 211.)
See, also, Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770.
Because of what has been said up to this point, we consider it unnecessary to ponder the second point set forth in plaintiff’s brief.
In conclusion, we hold that the trial court erred in sustaining the defendant’s motion for judgment on the pleadings. The judgment is reversed and the trial court directed to set the same aside and permit plaintiff to proceed with and complete discovery proceedings.
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The opinion of the court was delivered by
Herd, J.:
Michael A. Blackmore appealed his conviction of indecent liberties with a child, K.S.A. 1990 Supp. 21-3503, and his sentence of not less than 5 years nor more than 20 years, K.S.A. 21-4501. The Court of Appeals affirmed Blackmore’s conviction but found the sentence imposed by the Wyandotte County Board of Paroles was illegal and, therefore, void. State v. Blackmore, 15 Kan. App. 2d 539, 545, 811 P.2d 54 (1991). We granted the State’s petition for review.
Michael Blackmore dated and lived with J.K.B. from May or June of 1987 to April or May of 1988. About the time Blackmore began dating J.K.B., she left Jacob, her four-year-old son, with her mother because she was going through a period of instability. Jacob visited his mother two days a week and on weekends.
Jacob had behavior problems which prompted his grandmother to take him to the Wyandot Mental Health Center for treatment. Annette Inman, a mental health therapist at Wyandot Mental Health Center, saw Jacob 31 times between June 7, 1988, and March 1990. During this time, Jacob first told Inman that defendant “stabbed him in the butt with a knife.”
This statement and other statements by Jacob regarding things Blackmore had done to Jacob led to Blackmore being charged with one count of indecent liberties with a child, with the incident occurring between January 1, 1987, and June 31, 1988. Blackmore was convicted by a jury and sentenced to the maximum sentence of 5 to 20 years. The Board of Paroles also revoked Blackmore’s probation on his previous conviction of aggravated indecent so licitation of a child, Case No. 86CR0812. The sentences were ordered to run consecutively.
The first issue for appellate review is whether the trial court erred in overruling Blackmore’s motion for. an independent psychiatric examination of the complaining witness.
Blackmore filed a pretrial motion requesting an independent psychiatric examination of Jacob that the trial court denied. On appeal, Blackmore argues the trial court abused its discretion in denying his motion. Blackmore, however, has not provided us with the transcript of the relevant preliminary hearing in the record on appeal.
As the Court of Appeals correctly pointed out, “ ‘[a]n appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.’ ” State v. Gonzales, 245 Kan. 691, 699, 783 P.2d 1239 (1989) (quoting State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 [1981]). Thus, we hold this issue is without merit.
The second issue for our consideration is whether the trial court erred in admitting evidence of Blackmore’s prior conviction pursuant to K.S.A. 60-455.
Prior to trial the State filed a motion requesting permission to introduce evidence of Blackmore’s prior conviction at trial pursuant to K.S.A. 60-455. In Case No. 86CR0812, Blackmore pled no contest in 1987 to aggravated indecent solicitation of a child. That case involved Blackmore putting sucking-type bruise marks on the neck and upper thigh of a six-year-old girl. The girl was the daughter of Blackmore’s girlfriend.
K.S.A. 60-455 states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 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.”
Appellate review of a trial court’s decision regarding the admissibility of evidence of prior crimes pursuant to K.S.A. 60-455 is limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant evidence. State v. Nunn, 244 Kan. 207, 210-11, 768 P.2d 268 (1989). This court stated in Nunn that when determining whether to admit evidence of a prior crime, the trial court must “(1) determine it is relevant to prove one of the facts specified in the statute, (2) determine the fact is a disputed, material fact, and (3) balance the probative value of the prior crime or civil wrong evidence against its tendency to prejudice the jury.” 244 Kan. at 211.
Blackmore argues his prior conviction has no probative value in establishing identity in a later unrelated case. Blackmore denied committing the acts charged against him or having any knowledge of the incidents. He also asserts the evidence of his prior conviction is not relevant to the current case. Additionally, Blackmore contends that even if the evidence were relevant its probative value is outweighed by the risk of prejudice to him.
“Where a prior conviction is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the offense to raise a reasonable inference that the defendant committed both offenses. [Citations omitted. ] Similarity must be shown in order to establish relevancy. [Citation omitted.] It is not sufficient simply to show that the offenses were violations of the same or similar statutes; there should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. [Citations omitted.] However, the prior offenses need only be similar, not identical in nature. [Citation omitted.]” State v. Breazeale, 238 Kan. 714, 721, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986).
After reviewing the record, we find the trial court met the three requirements found in Nunn and, therefore, did not abuse its discretion.
The final issue to be considered is whether the sentence imposed upon Blackmore was illegal because it was pronounced by a member of the Wyandotte County Board of Paroles (Board).
Blackmore, in his direct appeal to the Court of Appeals, argued that imposition of sentence by the Board was an unlawful delegation of judicial authority and, thus, illegal. The Court of Appeals agreed. Blackmore, 15 Kan. App. 2d at 545. The State’s petition for review to this court raised this issue, arguing each member of the Board was a judge who had the authority to impose sentences. The State further contends one judge, not the Board, imposed the sentence and points out only one judge, in his capacity as a district court judge, signed the journal entry of judgment that imposed Blackmore’s sentence.
Blackmore did not request probation. Blackmore and his attorney, however, were notified of Blackmore’s sentencing hearing on a “District Court Probation Department” letterhead. The letter to Blackmore states in part: “You are to appear before the Board of Probation on Friday afternoon 6-22-90 at 1:30 p.m. for a hearing on your application for probation.” Moreover, the transcript of the sentencing hearing, entitled “Transcript of Proceedings of Parole Board Hearing,” shows the panel of three district court judges identified themselves as “the Board.” It is not disputed that Blackmore was sentenced while appearing before the Wyandotte County Board of Paroles.
The record, however, gives credence to the State’s argument, and we find that the Court of Appeals erred in holding Black-more’s sentence was illegal. The sentencing procedure was conducted by one judge. He pronounced sentence and signed the journal entry. Under Kansas statutes it is not required that the trial judge be the sentencing judge. See K.S.A. 22-3424. In State v. Sweetin, 134 Kan. 663, 670, 8 P.2d 397 (1932), this court held that the judge who tried the case need not be the judge who imposed the sentence. Thus, any judge of the judicial district is authorized to pronounce sentence on a person convicted of a crime in that district. The fact that the sentencing judge was sitting as a member of the County Board of Paroles at the same time as he pronounced sentence does not constitute a delegation of judicial authority to the Board. The individual judge to whom the case was assigned for sentencing is the person responsible for sentencing just as if he were sitting alone. Having the County Board of Paroles sitting at the same time facilitates the procedure since probation is so frequently requested by defendants at the time of sentencing. We suggest, however, that it would be better procedure to use district court stationery to notify defendants and counsel of the sentencing hearing.
The judgment of the district court is affirmed, and the judgment of the Court of Appeals is affirmed in part and reversed in part.
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The opinion of the court was delivered by
Six, J.:
This is a medical malpractice case. The action was filed by Evelyn Herbstreith against Jan de Bakker, M.D., and St. Francis Regional Medical Center (St. Francis). St. Francis counterclaimed for unpaid hospital bills.
The trial court granted summary judgment to St. Francis on Mrs. Herbstreith’s claim. The issues, in addition to the propriety of the favorable summary judgment ruling for St. Francis, arise from (1) evidentiary rulings relating to Dr. de Bakker’s medical practice, (2) considerations of the medical peer review privilege under K.S.A. 1990 Supp. 65-4915(b) and waiver of the privilege under K.S.A. 60-437, and (3) the directed verdict for St. Francis on its counterclaim.
Mrs. Herbstreith’s claim against St. Francis was based upon allegations of negligent failure to: (1) supervise Dr. de Bakker; and (2) limit or revoke his surgical privileges.
The jury found Dr. de Bakker had departed from the standard of care applicable to a surgeon, but that such departure did not cause Mrs. Herbstreith’s injuries. The trial court directed a verdict in favor of St. Francis on its hospital bill counterclaim.
Facts
Mrs. Herbstreith lived in Wichita, Kansas, from 1977 to mid-1986. She moved to her former home in Tennessee where she was treated and hospitalized in September 1986. Outpatient x-rays revealed cholelithiasis (presence of a gallstone) and diverticulosis (presence of diverticuli, “ballooning” or “out-pouching” of the colon).
Mrs. Herbstreith returned to Wichita and brought the Tennessee x-rays with her. Dr. de Bakker had been her family physician since 1982. She saw Dr. de Bakker on September 30, 1986, and provided him with the x-rays. He had performed various surgical procedures on her between 1982 and 1985. During the September 30 examination, Mrs. Herbstreith complained of: (1) abdominal pain primarily in the left upper quadrant; (2) diftuse epigastric (anterior walls of abdomen) pain; (3) nausea and vomiting; (4) fatty food intolerance; and (5) generally not feeling well.
Based on the Tennessee x-rays, her physical complaints, and her physical examination, Dr. de Bakker diagnosed: (1) a chronic infection of the gallbladder with gallstones and (2) diverticulosis and diverticulitis (inflamation and infection of the diverticuli). Dr. de Bakker testified that he did not order additional tests such as a C.T. scan or ultrasound because the x-rays from Tennessee were adequate.
Dr. de Bakker recommended that Mrs. Herbstreith be admitted to St. Francis for the removal of her gallbladder and for treatment of possible infectious disease of the colon. She was admitted September 30 for surgery on October 3, 1986.
Dr. de Bakker performed an exploratory laparotomy (exploration inside the abdomen). The colon had multiple pockets of diverticuli which were not acutely inflamed. A colon resection was not indicated. Dr. de Bakker also explored the abdominal organs and discovered a “softball-size” mass within the pancreas. (The pancreas is normally the size of a pear.) The mass had the appearance of a tumor. Dr. de Bakker took a wedge biopsy and approximately five needle biopsies of the pancreatic mass. The five needle biopsies were taken because of the difficulty in determining the tumor’s location within the mass. The biopsies were submitted for laboratory analysis while the surgical team waited. The immediate pathology report reflected subacute pancreatitis. Dr. de Bakker did not resect the pancreas because of the great lethal potential of such surgery and because he did not have surgical consent. According to Dr. de Bakker, the mortality rate of any form of pancreatic resection is 3 to 5 percent, and the complication rate of a pancreatic resection is 30 to 35 percent.
Following the biopsies, Dr. de Bakker removed the gallbladder. The pathology report confirmed chronic inflamation and infection of the gallbladder and the presence of gallstones.
Following the surgery, Dr. de Bakker recommended that Mrs. Herbstreith return to surgery to have the pancreatic mass resected because he was unable to assure her that the mass was not malignant. He recommended promptness for three reasons: (1) concern that adhesions would recur (Mrs. Herbstreith had adhesions from past surgery which, according to Dr. de Bakker, caused difficulty for the surgeon in distinguishing the peritoneum from the bowel); (2) timely removal of the potential malignant tumor; and (3) concern over the psychological well being of Mrs. Herbstreith (she knew she had a potential malignant tumor growing inside her).
The “in depth” pathologist’s report of October 6, 1986, on the pancreatic mass indicated Mrs. Herbstreith had a nonfunctioning islet cell tumor. Nonfunctioning islet cell tumors have a high rate of malignancy, 92 percent according to one study. The biopsy results were inconclusive. With an islet cell tumor it is difficult or impossible to determine through laboratory examinations whether the tumor is benign or malignant.
Dr. de Bakker evaluated Mrs. Herbstreith’s condition and concluded that she was a candidate for additional surgery. She underwent surgery on October 8, 1986, to resect the pancreatic tumor. The surgery progressed as anticipated.
Mrs. Herbstreith was discharged October 31, 1986. She was readmitted November 4, 1986, with acute abdominal pain. It was determined that she had a blockage in the bowel. (Dr. de Bakker used the term “bowel” interchangeably with the term “small intestine.”) Dr. de Bakker testified that three factors contributed to the blockage: (1) recurrence of diverticular disease of the colon with diverticulitis; (2) recurrence of intra-abdominal adhesions; and (3) leakage of pancreatic fluids.
Dr. de Bakker operated on Mrs. Herbstreith a third time. He found a 2- to 3-foot bundle of small intestine that was “twisted, turned, blackened, dead.” Dr. de Bakker resected approximately 3 to 4 feet of the small intestine and part of the colon. (The human body has approximately 20 feet of small intestine.) A temporary colostomy was also performed. Dr. de Bakker testified the colostomy procedure is necessary any time the colon is resected.
Mrs. Herbstreith was eventually discharged in December 1986. She had an open wound and an intestinal fistula which was draining. (Although not defined in the record, an intestinal fistula is a passage or tract leading from the bowel to the external surface. Stedman’s Medical Dictionary, pp. 534-35 [5th lawyer’s ed. 1982].)
Mrs. Herbstreith was readmitted to the hospital for observation in January 1987, to rule out intestinal obstructions. The hospitalization was uneventful. Her condition resolved and she was discharged four days later.
Dr. de Bakker continued to follow up with Mrs. Herbstreith in his office. At some point Mrs. Herbstreith stated that she wanted to return to Tennessee. On January 23, 1987, she still had the intestinal fistula. Dr. de Bakker tried to “shut this off” by utilizing a Foley catheter with no success. He told Mrs. Herbstreith she could return to Tennessee if she was careful concerning her condition and drainage. According to Mrs. Herbstreith, Dr. de Bakker told her that her stomach would or should heal itself.
Mrs. Herbstreith traveled to Peoria, Illinois. On January 28, 1987, she was treated for a small bowel fistula at Peoria’s St. Francis Medical Center. She later returned to Peoria’s St. Francis to have her colostomy closed.
Trial Court Rulings
In 1988, Mrs. Herbstreith filed a medical malpractice action against Dr. de Bakker, St. Francis, and two residents at St. Francis, alleging that carelessness and negligence in the initial and subsequent treatment of her gallbladder attack caused her pain, mental anguish, temporary and permanent disabilities, and medical, hospital and nursing expenses. The complaints against the residents were dismissed with prejudice by the court.
Following discovery, St. Francis filed a motion for summary judgment. In response, Mrs. Herbstreith sought to amend her petition to add a claim for gross and wanton negligence and punitive damages. She alleged that Dr. de Bakker had a habit of performing unnecessary surgery and that St. Francis knew of this habit. The trial court found that much of the evidence Mrs. Herbstreith relied upon was protected by the peer review privilege established by K.S.A. 1990 Supp. 65-4915. The trial court denied the motion, finding that Mrs. Herbstreith had not established that there was a probability she would prevail on a claim for punitive damages. K.S.A. 1990 Supp. 60-3703.
St. Francis then filed a second motion for summary judgment incorporating by reference its prior motion. St. Francis argued that Mrs. Herbstreith could not establish a causal connection between any of its alleged negligence and her injuries. First, St. Francis asserted that when Mrs. Herbstreith sought out Dr. de Bakker she made no request to be admitted to St. Francis. Because Dr. de Bakker had unrestricted surgical privileges at Wesley Medical Center and St. Joseph Hospital (both in Wichita), he could have admitted Mrs. Herbstreith into either of those two hospitals. Thus, Mrs. Herbstreith’s injuries would still have occurred absent St. Francis’ alleged negligence. Second, St. Francis asserted that Mrs. Herbstreith’s expert, Joel Grossman, M.D., should not be allowed to express his opinion as to St. Francis’ negligence because (1) Dr. Grossman was not qualified to testify as an expert as he lacked the necessary background and experience, and (2) there would bé no factual basis in evidence at trial to support Dr. Grossman’s opinions.
The trial court granted St. Francis’ motion for summary judgment. The trial court reasoned that no sufficient factual basis existed for Dr. Grossman to express an opinion. Dr. Grossman was expected to testify that St. Francis was negligent by not limiting, suspending or revoking Dr. de Bakker’s surgical privileges prior to Mrs. Herbstreith’s treatment.
The trial court noted in its journal entry on summary judgment that another judge, in ruling on Mrs. Herbstreith’s motion to amend, found that all evidence relating to Dr. de Bakker’s prior restrictions of hospital privileges was privileged. The only other evidence advanced by Mrs. Herbstreith was that five other lawsuits had been filed against Dr. de Bakker. St. Francis was a defendant in only two of those cases. The first claim against St. Francis did not arise until July 1986. The second case was filed 20 days before Mrs. Herbstreith’s hospital admission. Absent expert opinion testimony or some other way to prove her claims, the trial court concluded no genuine issue of material fact, as to St. Francis, was in controversy.
The Jury Trial
Mrs. Herbstreith’s remaining claims against Dr. de Bakker and St. Francis’ counterclaim were tried to a jury. Mrs. Herbstreith’s expert, Bruce Moorstein, M.D., of Oakland, California, testified that Dr. de Bakker departed from the standard of care of a surgeon in performing the initial surgery. According to Dr. Moor-stein: (1) there was an insufficient diagnostic workup and no evidence of diverticulitis and acute gallbladder disease; (2) Dr. de Bakker should have performed an ultrasound or a C.T. scan of the abdomen, which may have revealed the pancreatic mass; (3) the second surgery to resect the pancreatic mass was not indicated at that time; (4) there was an insufficient preoperative workup for the second surgery; and (5) there was no emergency reason for the second surgery which set up a series of potential risks to Mrs. Herbstreith.
Dr. Moorstein testified that Mrs. Herbstreith’s complications, necrosis (death of tissue caused by loss of blood supply), or infarction, of her small intestine and colon and the small bowel fistula, were directly related to and the result of the two decisions to operate. Dr. Moorstein reasoned that, if the pancreatic mass had been discovered preoperatively, the chances of complications would have been significantly less.
Dr. de Bakker’s expert witness, Dillis Hart, M.D., of Wichita, testified that Dr. de Bakker used good medical judgment in taking Mrs. Herbstreith to surgery on October 3, 1986. In Dr. Hart’s opinion, no additional diagnostic studies were indicated. Dr. Hart also opined that recommending the second surgery on October 8, 1986, was very good medical judgment.
The jury heard the opposing testimony of the two experts. The case against Dr. de Bakker was submitted to the jury on special questions. The jury returned its verdict as follows:
“VERDICT FORM
“1. Did Dr. de Bakker depart from the standard of care applicable to a surgeon in any of the particulars alleged by the plaintiff?
“Yes x No _
“Proceed to question 2 only if you answered question 1, yes.
“2. If you answered question 1 yes, did Dr. de Bakker’s departure from the standard of care cause injury to the plaintiff?
“Yes _ No _X_”
At the close of Mrs. Herbstreith’s case, the trial court granted St. Francis’ motion for a directed verdict on its counterclaim for unpaid medical bills plus interest.
The Peer Review Statute, K.S.A. 1990 Supp. 65-4915
At the hearing upon Mrs. Herbstreith’s motion to amend her petition and assert a claim for punitive damages, the trial court excluded certain evidence. The trial court held that the evidence excluded fell within the protection of K.S.A. 1990 Supp. 65-4915(b) and that St. Francis had an absolute privilege to preclude its admission.
The excluded evidence consisted of: (1) a letter from Dr. de Bakker to Sister Sylvia Egan, President and Chief Executive Officer of St. Francis (resigning his endoscopy privileges at St. Francis); (2) a letter from Sister Sylvia to Dr. de Bakker (informing him that a complaint had been received from the Medical Ex ecutive Committee [peer review committee] regarding his gastroscopy privileges and his right to a hearing); (3) a letter from Dr. de Bakker to Sister Sylvia stating that he did not challenge St. Francis and did not request a hearing; and (4) depositions of Dr. de Bakker in other civil cases filed against him (containing answers regarding prior restriction and supervision of privileges by St. Francis).
Mrs. Herbstreith argues that this evidence does not come within the peer review privilege and was erroneously excluded.
St. Francis asserts that if we affirm the jury verdict, the peer review privilege issue becomes moot as to St. Francis because the jury found that Dr. de Bakker’s departure from the standard of care did not cause Mrs. Herbstreith’s injuries. The only claim Mrs. Herbstreith asserted against St. Francis related to negligent failure to restrict, suspend, or revoke Dr. de Bakker’s surgical privileges. If Dr. de Bakker’s departure from the standard of care did not cause Mrs. Herbstreith’s injuries, there can be no causal connection between St. Francis’ alleged negligence and Mrs. Herbstreith’s injuries. This assertion has merit.
Dr. de Bakker does not address the applicability of the peer review statute. He states that the peer review privilege issue has been adequately discussed by St. Francis, the holder of the privilege. Dr. de Bakker argues that the excluded evidence relating to prior peer review is inadmissible against him regardless of the peer review privilege.
Mrs. Herbstreith states that the peer review evidence is admissible against Dr. de Bakker because it is relevant to his qualifications as a surgeon and to his credibility. Dr. de Bakker correctly points out that his qualifications as a surgeon were not in issue.
In the pretrial order, Mrs. Herbstreith advanced a series of contentions against Dr. de Bakker. None of the contentions related to his qualifications as a surgeon. Each contention was based on specific allegations of a departure from the standard of care in treating Mrs. Herbstreith. The pretrial order under K.S.A. 60-216 controls the course of the action unless modified to prevent manifest injustice. Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983). An issue or claim for relief that is not contained in the pretrial order should not be entertained by the trial court. See Kleibrink v. Missouri-Kansas-Texas Railroad Co., 224 Kan. 437, 442, 581 P.2d 372 (1978).
Prior Deposition Testimony
Mrs. Herbstreith asserts that two depositions of Dr. de Bakker taken in other civil cases against him should be admissible because they go to Dr. de Bakker’s credibility.
On September 8, 1986, Dr. de Bakker was deposed in Reynolds v. de Bakker (Sedgwick County District Court). In the Reynolds deposition, Dr. de Bakker testified that a medical procedure was questioned by the St. Francis surgical committee in 1968. His deposition revealed that in the early 1970s the surgical committee questioned his poor documentation of surgeries and discrepancies between his records and those of his residents. Dr. de Bakker admitted that on more than one occasion St. Francis’ peer review committee concluded that he had performed unnecessary surgery. In 1983, the surgical committee restricted Dr. de Bakker and required second opinions on his surgeries. Also in 1983, Dr. de Bakker was reminded by the peer review committee to expand his endoscopy documentation. Similar problems of poor documentation occurred in 1986. He resigned his endoscopy privileges before the peer review committee acted. After his resignation, the committee suspended his endoscopy privileges.
In 1987, Dr. de Bakker testified in Newton v. de Bakker (Sedgwick County District Court). He stated that in the 1970s, St. Francis restricted him from doing major elective surgery without second opinions. Following that testimony, he was asked: “Q. Are there any other occasions in any hospital where your privileges were either restricted or suspended? A. No.”
Dr. de Bakker did not disclose prior restrictions in Newton, which is contrary to his testimony in Reynolds. Mrs. Herbstreith contends that she should have been able to admit this prior deposition testimony to attack Dr. de Bakker’s credibility.
K.S.A. 60-422(d) provides that evidence of specific instances of a witness’ conduct, relevant only to proye a trait of character, is inadmissible as to the witness’ credibility. Although K.S.A. 60-422(c) allows a witness’ credibility to be attacked with evidence of traits of his or her character for honesty and veracity, such traits may be shown only by opinion or reputation evidence and not by specific instances of the witness’ conduct. State v. Aldrich, 232 Kan. 783, 783-84, 658 P.2d 1027, cert. denied 464 U.S. 819 (1983). The discrepancy in these two instances of testimony is evidence of specific instances of conduct and it is not admissible against Dr. de Bakker to attack his credibility.
Next Mrs. Herbstreith contends that the deposition evidence is admissible to impeach Dr. de Bakker as a prior inconsistent statement. However, she fails to identify a prior inconsistent statement made by Dr. de Bakker at trial.
Dr. de Bakker asserts that Mrs. Herbstreith attempted to introduce the deposition testimony hoping to challenge his character trait for skill and treatment of his patients by showing that his privileges had been restricted or suspended in the past. He correctly points out that evidence of specific instances of conduct, not constituting a conviction of a crime, is inadmissible to prove a trait of a person’s character. K.S.A. 60-447. Likewise, any evidence offered to prove a trait of character with respect to care or skill is inadmissible under K.S.A. 60-448 as tending to prove the quality of conduct on a specified occasion. Other courts have rejected evidence designed to show prior episodes of malpractice. Weil v. Seltzer, 873 F.2d 1453 (D.C. Cir. 1989); Jones v. Tranisi, 212 Neb. 843, 326 N.W.2d 190 (1982) (negligence in 1980 cannot be proved with evidence that one was negligent on some earlier occasion).
The peer review evidence which was excluded was inadmissible against Dr. de Bakker independent of the peer review privilege. Furthermore, none of the evidence related to causation. The jury found that Dr. de Bakker’s departure from the standard of care did not cause Mrs. Herbstreith’s injuries. If Dr. de Bakker’s negligence did not cause her injuries, the alleged negligence of St. Francis could not have done so. Consequently, we need not address the privilege issue of whether the excluded evidence was protected by K.S.A. 1990 Supp. 65-4915, the peer review privilege statute.
The Peoria Hospitalization
One of Mrs. Herbstreith’s experts, Dr. Moorstein, testified that she sustained an “enterocutaneous fistula or small bowel fistula.” Dr. Moorstein also testified that this complication was directly related to the prior surgery. When Dr. Moorstein was asked if he had an opinion whether Mrs. Herbstreith’s Peoria medical problems were related to the treatment in Wichita, Dr. de Rakker objected. He based his objection on the grounds that the Moor-stein opinion is based on information beyond that previously disclosed. The trial court sustained the objection.
Mrs. Herbstreith proffered Dr. Moorstein’s testimony outside the presence of the jury. Dr. Moorstein testified that he reviewed the admission history and physical, the discharge summary, the operative note from the January admission, and the pathology report. He noted that Mrs. Herbstreith was treated for a small bowel fistula. Dr. Moorstein gave his opinion that the Peoria treatment was related to the treatment in Wichita. Dr. Moorstein stated: “She had been treated for a small bowel fistula previously in Wichita. She had a worsening of her condition and was seen in Peoria, Illinois, for the same process.” On cross-examination, Dr. Moorstein was asked to read the following from his deposition with regard to what hospital records he had reviewed: “I believe, although I’m not going to — I can’t recall this accurately, I believe I looked at discharge summaries and admission histories and physicals from hospitalizations in Peoria.” At his deposition, Dr. Moor-stein did not disclose that he had reviewed the operative report or the pathology report.
The trial court sustained Dr. de Rakker’s objection to Dr. Moorstein’s opinion testimony, stating:
“[F]rom what I hear there’s really some question as to whether he wants to answer that question if it were put to him. And don’t misunderstand how I say that because in what I have just heard it’s pretty sketchy as to what he would have relied on for his information. You have had his opinion expressed on at least a half dozen occasions. I’m going to sustain the objection.”
Mrs. Herbstreith argues that the trial court erred in excluding Dr. Moorstein’s opinion, which would have laid the foundation to admit the Peoria hospital records and bills. She asserts that Dr. Moorstein clearly expressed his opinion. Mrs. Herbstreith contends that the trial judge’s observation that what Dr. Moor-stein would have relied upon was “pretty sketchy” goes to the credibility of the testimony, not its admissibility.
Dr. de Bakker argues that the trial court properly excluded the evidence on the basis of surprise. Dr. de Bakker relied upon Dr. Moorstein’s deposition testimony. Dr. Moorstein' stated in his deposition that although he could not recall accurately, he believed he reviewed “discharge summaries, admission histories, and physicals” from Peoria hospital records. Nothing in the deposition testimony disclosed to Dr. de Bakker that Dr. Moorstein would be offering expert testimony to lay a foundation for admission of such records and bills. Additionally, Dr. rde Bakker asserts that Dr. Moorstein’s proffered testimony relates only to damages, and the damages issue is irrelevant because the jury concluded that Dr. de Bakker’s departure from the standard of care did not cause Mrs. Herbstreith’s complications.
Dr. Moorstein testified that Mrs. Herbstreith suffered complications as a result of Dr. de Bakker’s inappropriate decisions to operate on October 3 and October 8, 1986. These complications were necrosis, or infarction, of the small intestine and colon and a small bowel fistula. Mrs. Herbstreith was hospitalized and treated for these complications in Wichita from November 4, 1986, to December 29, 1986, and from January 11, 1987, to January 15, 1987. This evidence was before the jury. The jury concluded that these complications were not caused by Dr. de Bakker’s breach of the standard of care.
Dr. Moorstein testified that the Peoria treatment was related to the treatment in Wichita, based on the fact that Mrs. Herbstreith had a fistula in Wichita and was seen in Peoria for a worsening of her condition. The jury found the prior Wichita fistula was not caused by Dr. de Bakker’s departure from the standard of medical care; consequently, a worsening of the fistula also would not be caused by a departure from the standard of care.
The evidence regarding hospitalization and medical treatment in Peoria relates only to damages. Based on the jury’s finding of no causation, there is no liability. Where the plaintiff in a medical malpractice action fails to convince the trier of fact that the defendant is liable, it becomes unnecessary for the trier of fact to resolve the issues of damages. Any error in the admission or exclusion of evidence relating to damages becomes immaterial. Wisker v. Hart, 244 Kan. 36, 47, 766 P.2d 168 (1988); Patterson v. Burt, 213 Kan. 463, Syl. ¶ 2, 516 P.2d 975 (1973). The Peoria hospital records and bills were properly excluded.
The St. Francis Counterclaim — Waiver of the Peer Review Privilege, K.S.A. 1990 Supp. 65-4915(b)
Dr. de Bakker testified that all hospital care provided, except routine bathing and bathroom assistance, was done pursuant to his order and that he took full responsibility for those orders. In Dr. de Bakker’s opinion, all the hospital care given to Mrs. Herbstreith at St. Francis was necessary to carry out his orders. Mrs. Herbstreith testified that she needed all the hospital care she received at St. Francis.
Mrs. Herbstreith argues that St. Francis waived the peer review privilege when it advanced a counterclaim supported by Dr. de Bakker’s testimony as an expert that the hospital care pursuant to his orders was necessary. Mrs. Herbstreith discusses the lawyer-client privilege, K.S.A. 60-426; the physician-patient privilege, K.S.A. 60-427; and the marital privilege, K.S.A. 60-428; and how they are waived.
St. Francis asserts: (1) the peer review privilege can be waived only as provided by statute; (2) neither K.S.A. 1990 Supp. 65-4915(b) nor any other statute provides for waiver under these facts; and (3) this court should not impose a common-law waiver.
K.S.A. 1990 Supp. 65-4915(b) provides when the privilege does not apply or is waived. That subsection begins: “Except as provided by K.S.A. 60-437 and amendments thereto and by subsections (c) and (d) . . . .” Subsections [c] and [d] do not apply to the case at bar.
K.S.A. 60-437 states:
“A person who would otherwise have a privilege to refuse to disclose or to prevent another from disclosing a specified matter has no such privilege with respect to that matter if the judge finds that such person or any other person while the holder of the privilege has (a) contracted with a party against whom the privilege is claimed that he or she would not claim the privilege or, (b) without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.”
St. Francis has neither contracted with Mrs. Herbstreith not to claim the privilege nor disclosed or consented to disclosure of privileged peer review material. Thus, K.S.A. 60-437 is not applicable. St. Francis has not waived the privilege.
Furthermore, the statutes cited by Mrs. Herbstreith relating to attorney-client, physician-patient, and marital privileges demonstrate that the legislature knows how to provide a waiver of privilege when the holder puts a claim for services rendered in issue. The legislature has not done so with the peer review privilege. If a claim for services waiver of the peer review privilege is to be imposed, the legislature must impose it.
The Directed Verdict
In ruling on a motion for a directed verdict, the trial court must resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions, the motion must be denied and the matter submitted to the jury. We apply the same rule on appeal. Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987).
After Mrs. Herbstreith rested her case, the trial court granted a motion for directed verdict on the St. Francis counterclaim for unpaid medical bills. The trial court stated:
“Since the earlier presentation of the motion for a directed verdict was made, the Court has been watching for something that would take this beyond the position it originally presented itself in, and that was that the plaintiff had not presented evidence; and, therefore, I’m going to sustain the Motion for Directed Verdict.”
Mrs. Herbstreith asserts that the trial court improperly placed the burden upon her to refute St. Francis’ claim.
In the pretrial order, the parties stipulated that the hospital charges were St. Francis’ usual and customary charges for the services rendered to Mrs. Herbstreith. Dr. de Bakker and Mrs. Herbstreith both testified that the hospital care was necessary. Dr. de Bakker took full responsibility for ordering that care. This was the only evidence regarding the St. Francis claim. St. Francis made a prima facie case. Mrs. Herbstreith offered no admissible evidence to the contrary. The trial court did not place the burden of proof on Mrs. Herbstreith to refute the claim until after the evidence relied on by St. Francis made a prima facie case. St. Francis’ evidence was uncontrpverted. Commercial Credit Corporation v. Harris, 212 Kan. 310, 313, 510 P.2d 1322 (1973).
The trial court did not err in granting St. Francis’ motion for a directed verdict.
Dr. de Bakker’s Office Records
Dr. de Bakker provided medical and surgical care for Mrs. Herbstreith from 1982 until she left Wichita after her discharge from the hospital in early 1987. Mrs. Herbstreith’s claims in the case at bar relate solely to the medical treatment beginning in September 1986. Prior to trial, Dr. de Bakker filed a motion in limine requesting that Mrs. Herbstreith be prevented from attempting to allege or imply fault or negligence in any of these earlier hospitalizations or surgeries.
At the hearing on the motion in limine, Dr. de Bakker argued that Mrs. Herbstreith’s claim should be tried on the facts of her case and not on collateral issues of alleged negligence in previous surgeries. Dr. de Bakker’s counsel agreed, however, that any earlier records that are relevant could go to the jury. The trial court decided it would rule on the records when offered at trial after objection.
In her opening statement, Mrs. Herbstreith went into detail about Dr. de Bakker’s prior treatment. She stated that in March 1984, Dr. de Bakker cut out a small portion of her colon and the radiological reports showed no evidence of diverticulitis. In January 1985, he performed a “coccygectomy for an allegedly broken tailbone.” There were additional comments presumably designed to allege that other prior surgeries were inappropriate. Dr. de Bakker objected.
Following opening statements, Mrs. Herbstreith offered all of her prior records. Dr. de Bakker objected to their carte blanche admission and asked the court to make an individualized determination as to relevancy. The court again ruled that anything predating the September 1986 treatment at issue in the instant action should be offered individually and the court would rule on it at that time. The trial court reasoned that this would prevent unnecessary or undue prejudice and would maintain a balance of fairness.
Dr. de Bakker testified that information from earlier visits played a part in his thinking when he considered and diagnosed Mrs. Herbstreith’s problems. Following this testimony, Mrs. Herbstreith attempted to introduce Dr. de Bakker’s entire office chart going back to 1982. The court took the matter under advisement.
At the close of her case, Mrs. Herbstreith again offered Dr. de Bakker’s office records in toto. The trial court again rejected the entire office record on the basis that no relevance had been shown. On the few occasions that Mrs. Herbstreith did segregate relevant records from Dr. de Bakker’s office chart, they were admitted into evidence.
An evidentiary ruling on relevancy ordinarily rests in the sound discretion of the trial court. Tucker v. Lower, 200 Kan. 1, 6, 434 P.2d 320 (1967). The trial court acted within its discretion. The trial court refused to admit the entire medical office chart and required Mrs. Herbstreith to demonstrate relevancy item by item. No error has been shown.
Discipline — The Kansas State Board of Healing Arts
On December 10, 1988, the Kansas State Board of Healing Arts (Board) entered an “Order of Emergency Limitation of License” restricting Dr. de Bakker’s privilege to perform gynecological surgery. The Board entered the order ex parte after reviewing 20 gynecological surgery patient charts. The Board found, in general: (1) the history and physical examinations were inadequate to justify surgery; (2) the diagnostic impressions were unrelated to any information provided in the history and physical; (3) 3 of the 20 cases had post-operative bleeding, which is an excessive rate; (4) the licensee had a poor understanding of anatomy; and (5) the pathology report frequently did not support the diagnosis.
On February 11, 1989, the emergency order was rescinded, and a consent order was entered into which provided: (1) Dr. de Bakker would not perform major gynecological surgeries; (2) he would have a licensed physician surgical assistant at all abdominal surgeries; and (3) he would obtain second opinions on all major surgeries.
Dr. de Bakker filed a motion in limine to exclude this evidence, arguing that character evidence for traits of care or skill is inadmissible. The trial court excluded the evidence, ruling that the instant lawsuit should be tried on the basis of whether Dr. de Bakker committed malpractice at the times claimed.
Mrs. Herbstreith asserts the 1989 discipline evidence was relevant and admissible to explore the credibility of Dr. de Bakker’s expert witness, Dr. Dillis Hart. Dr. de Bakker argues that the trial court excluded the evidence because it was prejudicial.
A trial judge has broad discretion to exclude relevant evidence where the judge finds its probative value is substantially outweighed by its prejudicial nature. Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, Syl. ¶ 11, 549 P.2d 1354 (1976). In the present case, it is unclear whether prejudice formed the trial court’s rationale for exclusion.
Nevertheless, the evidence was inadmissible as to the issue of credibility under K.S.A. 60-422. Evidence of specific instances of conduct relevant only to prove a trait of character is inadmissible. State v. Aldrich, 232 Kan. 783, 783-84, 658 P.2d 1027, cert. denied 464 U.S. 819 (1983).
The evidence regarding action taken by the Board two years after Mrs. Herbstreith’s treatment was properly excluded.
Cross-Examination of Mrs. Herbstreith
Mrs. Herbstreith complains that Dr. de Bakker was allowed to cross-examine her regarding her medical history as far back as 1965 while her counsel was not allowed to conduct redirect on the areas covered by Dr. de Bakker on cross-examination.
Prior to trial, Mrs. Herbstreith filed a motion in limine to exclude medical history regarding psychological treatment that she received between 1978 and the early 1980s. At the hearing on the motion, Dr. de Bakker argued that this medical history included complaints similar to these she now complains of and, consequently, it was relevant to her damages and her earnings history. The trial court ruled and counsel agreed that these impeaching facts were admissible, but reference to the psychological treatment should be avoided.
On direct examination, Mrs. Herbstreith testified that she still suffers from pain in her stomach, back, and legs, and from diar rhea and constipation. She also testified that she is too weak and tired to work.
On cross-examination, Dr. de Bakker went into Mrs. Herbstreith’s previous medical history to show that she had suffered from these same complaints as far back as 1965. Mrs. Herbstreith’s counsel did not object.
On redirect, Mrs. Herbstreith attempted to violate her own motion in limine by inquiring into psychological treatment. Dr. de Bakker objected. The trial court refused to allow her to violate the motion in limine.
The relevancy of testimony elicited by a party from a witness and the scope of both direct and cross-examination of that witness is subject to reasonable control by the trial court and rests in the discretion of the trial court. Kearney v. Kansas Public Service Co., 233 Kan. 492, 501, 665 P.2d 757 (1983).
The trial court did not abuse its discretion in limiting Mrs. Herbstreith’s redirect examination. The trial court attempted to apply its ruling on the motion in limine in an impartial manner.
Affirmed.
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The opinion of the court wTas delivered by
Martin, 0. J.
: It may be gleaned from the two recorcLs that the loan to the Vints was made by the Jarvis-0onklin Mortgage Trust Company ; that it sold the note and mortgage to Monk, the trust company thereafter acting as his agent for the collection of interest ; that a commission mortgage was also taken by the trust compauy at the time the loan was. made; that the Western Investment Company was organized as an auxiliary to the trust company in taking title to mortgaged lands bid in at judicial sales ; and that the trust company continued to act as agent for Monk even after the conveyance of the land by the sheriff.
The foreclosure was based upon the allegation that on July 1, 1890, two years’ interest remained unpaid. But the Vints claim that on May 29, 1890, they executed a promissory note for $221.80, secured by chattel mortgage, in settlement of all interest to July 1, 1890, which was afterward paid, but the trust company applied the proceeds toward the payment of the commission mortgage which was not wholly due; that soon after the commencement of the foreclosure suit they employed W. A. Phipps, an attorney of the Butler county district court, to represent and defend them, and to whom they communicated said defense as to the settlement of interest; that Phipps informed them that the land could not be sold until October, 1891, and they relied on his statement and never gave any further attention to the case until July 28, 1891, when they heard that the land had been sold by the sheriff, and that he had given a deed for the same. In extenuation of the gross neglect of their own interests for more than a year after they knew that a foreclosure suit had been instituted, they say that they were ignorant of judicial forms and procedure, that they relied upon their attorney, and that he entirely failed to advise them; but a sheriff’s sale will nat be set aside for negligence of the party attacking 4t, his agent or attorney. (Moore v. Pye, 10 Kan. 246; Welch v. Challen, 31 id. 696 ; Savings Bank v. Marsh, 31 id. 771, 774; Babcock v. Canfield, 36 id. 437.)
It is not alleged that any bidder was misled, or that the parties were in any way prejudiced by the fixing of the time of sale between 10 o’clock a. m. and 4 o’clock p. m., and as such notice was not void the sale cannot be set aside because a single specific hour was not named. (Northrop v. Cooper, 23 Kan. 432, 439.) It is averred in the petition that the sale was not advertised for the length of time or in the manner provided by law, but this can be treated only as an attempt to plead a conclusion of law as to the sale notice, which must be disregarded after confirmation. If the date of the commencement of the publication had been given, the court would then be able to deduce therefrom the proper conclusion of law as to whether the notice had been published for the required length of time or not.
A rule of court required the filing with and cancellation by the clerk of original instruments on which suits were brought before the rendering of judgment thereon, and it is averred that the note and mortgage in this case were not so filed. A court that makes a rule may, however, dispense with its enforcement in a particular case ; and for auglit that appears in the record proof may have been made that the instruments had been lost or destroyed, and this would certainly make out a case for disregarding the rule. In the absence of any such rule, the failure to produce or offer the instruments in evidence, where no issue has been raised, is not reversible error. (Reed v. Arnold, 10 Kan. 102; Case v. Edson, 40 id. 161.) Counsel for Monk say that they now have the note and mortgage, and are ready to file the same.
It appears that the land was worth $5,000. It was sold by the sheriff for $100. Of course this price was grossly inadequate ; but this court has never yet held that inadequacy of price alone is a sufficient ground for the setting aside of a sheriff’s sale, and in this case we can find no other ground to justify interference after confirmation and the execution of a deed. A plea is made for the defendants in error that the smallness of the bid was with the view of reducing sheriff’s fees to a minimum, and not to oppress the mortgagors by pursuing them upon the unsatisfied judgment, and they now offer to cancel the excess judgment to the amount of $3,000, which they are advised is the present value of the land. Unless we depart from a long line of decisions of this court, we cannot set aside the judgment, the sale, the confirmation, nor the deed, and if a case shall ever arise for doing so it will not be where the mortgagors have so grossly neglected their affairs and failed to' protect their own interests.
It will be ordered that Monk file the note and mortgage with the clerk of the district court for cancellation, that he cancel the excess judgment to the amount of $3,000, and that the judgment of the district court in each case be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: Many questions are presented by the record in this case, and ably argued by counsel on both sides. Some of them we answer with much difficulty, and without entire freedom from doubt. The questions will be considered in the order in which they are discussed in the brief for plaintiff in error.
I. It is objected that there is a defect of parties, that Hugo and Catherine Felitz are necessary parties to this action, and that no decree for a specific performance can be rendered without their presence. The title which the plaintiff sought to have conveyed to him passed from Felitz and wife to the water company. The contract .under which the plaintiff claims was on record at the time of the conveyance, and the water company acquired its title subject to the rights of Root and Campbell, and chai'ged with full notice of such rights. ' If the plaintiff is in equity entitled to a half interest in the land, the water company took its conveyance from Felitz and wife charged with that equity, and holds it only as a. trustee for his benefit. The rights of Felitz and wife cannot possibly be determined in this action, nor does the plaintiff seek to affect them in any way. He seeks merely to obtain a legal title which he alleges the defendant holds as his trustee. The case of A. T. & S. F. Rld. Co. v. Benton, 42 Kan. 698, decides that a subsequent purchaser holding the legal title is a necessary party to an action for specific performance, but does not hold that the vendor, after having conveyed away the title to a third person, is a necessary party. In the case of Gregg v. Hamilton, 12 Kan. 333, the vendor does not seem to have been regarded as a necessary party, and we now hold that he is not.
II. It is urged that the contract sued on is absolutely void if the premises were a homestead at the time of its execution; that Catherine Felitz having been adjudged insane prior to the execution of the contract, and there having been no subsequent adjudication that she had been restored to her reason, the statute makes the contract absolutely void, and that other proof of her restoration would be unavailing ; that the adjudication of insanity fixes the status of the person, and remains in full force as an adjudication until it is judicially determined that such person has been restored to reason. Section 34 of the act concerning lunatics and habitual drunkards provides :
“No contract of any person found to be of unsound mind or an habitual drunkard, as hereinbefore specified, which shall be made without the consent of his guardian, shall be valid or binding ; and such guarddian may sue for and recover any money or property which may have been sold or disposed of by his ward without his consent.”
It is said that this is an express statutory declaration rendering the contract absolutely void, and that the real estate of an insane#person can only be disT posed of in the manner pointed out by the statute, and that there can be no such.thing as a ratification of an absolutely void contract. There are two main purposes to be subserved by trials in the probate court of persons alleged to be insane. One is that they may be placed in an asylum for treatment of their disease ; the other, that they may be placed under guardianship, and their propertjr taken care of. .Section 5 of the act mentioned provides for a jury to try the question, and contains a form of verdict which seems to be framed mainly to meet the first purpose named, and contains nothing with reference to whether the person is capable of managing his or her affairs. There are, doubtless, cases where a person is diseased in mind, and needs medical treatment, yet is entirely capable of managing his business affairs, though a finding of insanity ordinarily implies incapacity to transact business. Whatever the reason therefor may have been in this case, there was no finding by the jury of incapacity on the part of Catherine Felite to manage her affairs, and no guardian was ever appointed for her person or estate by the probate court. Section 37 of this act makes provision for inquiring into the question of the restoration of a person of unsound mind or an habitual drunkard, and by the succeeding section it is provided that, if it be found that such person has been restored, he shall be discharged from care and custody, and his guardian shall immediately settle his accounts. The question presented, then, is, whether a person who has been adjudged insane and placed in an asylum for treatment, and has thereafter been discharged from the asylum be cause of her improved condition is conclusively presumed to continue insane, notwithstanding the fact that she has no guardiaif and is not under treatment for insanity, until a formal adjudication shall be had finding that she has been restored to her reason. After her discharge from the asylum, and after her restoration to reason, in fact, the only purposes such an adjudication could serve would be to discharge her guardian, if she had one, to restore her to the possession of her property, if she possessed any, and to remove her disability to enter into contracts. We think it would be extremely hazardous to hold that all contracts made by a person in fact sane and not under guardianship are void merely because of a prior adjudication of insanity, and a failure to have an adjudication of restoration to reason. Such a rule might lead to most unjust results. A person might be in fact entirely sane, and of extraordinary shrewdness in business affairs, being under no restraint, and having no guardian in charge of his property, it would certainly be wrong to allow him to enforce or avoid his contracts as he might see fit. But in- this case it is not Catherine Felitz who seeks to avoid her contract, nor is her guardian here suing for any property or money belonging to her. It is the water company that is seeking to avoid it. This it cannot do, unless the contract is absolutely void and incapable of ratification. If it is merely voidable at the election of Catherine Felitz herself, such voidability avails the plaintiff in error nothing. In the case of McCormick v. Littler, 85 Ill. 62, it Avas held that
‘'‘Although a person may have been adjudged insane, yet if no conservator has been appointed, and he is in the management of his business, and there is nothing about his appearance to indicate his incapacity to contract, if' he purchases an article at a fair and reason able price, necessary and useful in Ms business, the seller having no notice of Ms being adjudged insane, he will be liable to pay the price he agreed» to pay, and it will be error to enjoin a judgment on a note given for the price.”
In Elston v. Jasper, 45 Tex. 409, it was held that
“The deed of an insane person is not void, but voidable only, but such person whilst actually under legal and subsisting guardianship and in support of the guardian’s authority is conclusively presumed incompetent to contract, and his deed as against Ms guardian is absolutely void. If, however, as an actual fact the guardianship had been practically abandoned at the time of the sale, and the person who had been insane was, when the deed was executed, of sound mind, the contract, if fair, will be enforced. The burden of proving the restoration to reason and the termination or practical abandonment of the guardianship of one insane is upon Mm who seeks the enforcement of a contract against Mm who pleads insanity.” See, also, Motley v. Head, 43 Vt. 633; Searle v. Galbraith, 73 Ill. 269 ; McGinnis v. Commonwealth, 74 Pa. St. 245.
We are. of the opinion that the weight of authority is to the effect that the contract is not utterly void. The case of Redden v. Baker, 86 Ind. 191, it is true, seems to uphold the contention of the learned counsel for the plaintiff in error, as also that of Kiehne v. Wessell, 53 Mo. App. 667.
III. Lot 5, the property in controversy, was formerly an island in the Kaw river. In the suit brought by Root and Campbell, in the name of Catherine Felitz against the water company, it was sought to avoid the deeds executed in 1881 and 1882, on the ground that the island was the homestead of Felitz and wife, and that Mrs. Felitz, being insane at the time the deeds were executed, had never consented to its alienation. The island contained about 10 acres. The nineteenth finding of the court is as follows :
“That tñe premises in controversy are inclosed within the incorporated limits of the city of Topeka ; that the said premises have never been surveyed and platted into lots, blocks, streets, and alleys, and the evidence fails to show that the owner or proprietor of said premises ever consented in writing, or otherwise, to the city taking into the city such premises. ’ ’
If, at the time of the first conveyances to the water company, the land in controversy was included within the limits of an incorporated city, the homestead exemption would extend only over one acre of ground, and the conveyance would be valid as to the remaining nine acres, subject only to the right of the wife to one-half thereof after the death of her husband, in case she survived him. The trial court found that the whole island was Felitz’s homestead. It is contended that there is nothing in the record showing that the premises could not have been included within the limits of the city without a plat having been made out; that the fact that the exterior boundaries of the city extended entirely around this tract is sufficient to show that it is within the limits of the city. The extent of the homestead right of the owner of the land is not to be determined by the question whether the city extends entirely around the land or not, but by the fact that it is or is not a part of the city. In this case the island, like all the rest of the country round about, was originally without the limits of an incorporate city. It required affirmative action in the manner authorized by law to make it a part of a city. It appears that it never was platted into lots, and there is nothing to show that the owner ever consented that it should be taken into the city. The only evidence offered tending to show that it ever was made a part of the city is an ordinance passed by the city council, fixing the boundaries of the city, but at the time this ordinance was passed the council had no power to make it a part of the city without the consent of the owner, it never having been platted into' lots. (Armstrong v. City of Topeka, 36 Kan. 432.)
IY. It is claimed that such contracts only as might, at the time they were entered into, have been enforced specifically by either party against the other, can be specifically enforced after performance by one party. It is argued that this was a contract for the services of Root and Campbell, as attorneys ; that their agreement was to exercise their care and skill as lawyers in prosecuting a case in court; that in the very nature of things the contract could not be specifically enforced against them ; that, inasmuch as Felitz and wife could never have had a decree compelling Root and Campbell to perform their part of the contract, there was a lack of mutuality, and consequently no specific performance can be decreed in favor of the other party. We recognize the soundness of this contention to the extent that a decree requiring specific performance by the attorneys could not, consistently with established principles, be made, or properly enforced, if made. The doctrine that there must be mutuality in the contract, and that it must be capable of enforcement at the suit of either party at the time it is entered into, so broadly contended for by counsel for the plaintiff in error, and stated in equally broad terms in Fry on Specific Pei’formance, § 443, is subject to so many exceptions and such important qualifications that it is doubtful whether a court would ever be warranted in declaring the law so broadly. There are many contracts, originally unilat eral, capable of enforcement when accepted. Many-other contracts afford one party a remedy by an action for the recovery of money, either upon a specific promise to pay or in an action for damages, while the other party may be entitled to a specific performance ; still others, where the remedy of one party before any performance might be very inadequate, which are yet, after full performance on. one side, capable of specific enforcement against the other. For a discussion of the limitations upon the doctrine of mutuality see Pomeroy on the Specific Performance of Contracts, §§ 167, et seq. Upon reason, we are wholly unable to perceive any valid ground'for saying that a contract to convey lands, in consideration of personal services thereafter to be performed, is less binding and less capable of specific performance after the services are in fact rendered, than a contract for the conveyance of land in consideration of the payment of money. Personal services actually rendered are as good a consideration as money paid, and where the party seeking enforcement of the contract is no longer in a position to escape any part of his obligation, having fully performed it, any want of mutuality which may have attended the contract when entered into has passed away, and the power of the court is ample to compel a conveyance. The equity of the person who has done all he agreed to is as complete and full as it could possibly be in any case. This view is supported by sufficient authority, as well as by reason. In the case of Howard v. Throckmorton, 48 Cal. 482, it was held that
“Although, when an attorney contracts to perform legal services for a client in consideration of receiving a portion of the property about which the litigation is to be carried on, he cannot maintain an action for a specific performance while the contract remains un performed on Ms part, yet, if he can show a substantial performance on his part, he is as fully entitled to maintain such action as he would be if the agreement on his part had been for the payment of money.” See, also, Ballard v. Carr, 48 Cal. 74; King v. Gildersleeve, 79 id. 504 ; Schroeder v. Gewinder, 10 Nev. 355 ; Perkins v. Hadsell, 50 Ill. 216.
V. It is contended that this contract is not such an one as a court of equity will enforce; that it was unjust and unreasonable. The defendant offered to show that the services actually performed by Root and Campbell were worth only the sum of $300, while the court finds the value of the property, exclusive of improvements, to have been, in 1886, $15,000, and that the company had expended prior thereto $30,000 in improvements. It is not contended that the contract was void as being champertous. The trial court has found that the contract was fair and reasonable, and in the interest of Hugo Felitz and Catherine Pelitz. Can this court say, as a matter of law, that it was not so? It is contended by the defendant in error that Pelitz and wife had no other property whatever; no means to employ an attorney ; and that the undertaking on Root and Campbell’s part to prosecute an action against a strong corporation like the water company to final determination for one-half of the land, taking the riskfof receiving nothing in case they failed, and giving to Pelitz and wife one-half of the property if they succeeded, was altogether fair and reasonable. Defendant in error contends that the only means Felitz had with -which to employ counsel was his interest in this property, the title to which was apparently in the water company. It is said also that the water company is not in a position to test the reasonableness or unreasonableness of the contract. If at the time the contract was made the title to the land was in the water company, it was of course entirely indifferent to any contract that might be made between Felitz and wife and Root and Campbell. If, on the other hand, Felitz and wife owned the land in fact,-it would be difficult to find any ground on which it could be said that the water company might deny their right to make such terms as they saw fit for a sale of one-half or even of the whole of it. The fact that it might be easier for the water company to make terms with Felitz and wife than with another certainly could not affect the right of that other to obtain an interest in the property. As there is no contention that the contract is champe rtous, we are unable to perceive any ground on which the plaintiff in error can question its validity. Felitz and wife certainly had as good a right to contract to pay their attorneys in land for their services as to pay them in money. Having contracted to pay them in land, we perceive no ground on which we can say that, at the election of the water company, they shall be required to resort to an action to recover compensation only for the value of the services actually performed in money, and to take their chances of being able to collect even so much. Felitz and wife are no longer in a position to object to their recovery of lands the title to which they have conveyed to the water company, and the water company is in no position to require Root to abandon his contract and take something different from that which it calls for.
VI. Several objections are raised on the introduction of testimony. The testimony of J. W. Campbell, taken on a former trial of the case, as taken.down by the official stenographer, and by him transcribed, was read in evidence,-over the objection of the defendant-. It may be conceded that this evidence would not be admissible without proof that it had been taken down correctly and correctly transcribed. But the record before us seems to indicate that it was conceded that the testimony offered was the testimony given by Campbell on the former trial, and it was admitted that Campbell was dead. The testimony itself is as to matters concerning which there was sufficient other evidence, and the facts as to which he testified were substantially uncontroverted. The court rejected evidence as to the value of the services of. Root and Campbell. There was no error in this, as it was not an issue in the case. Nor do we perceive that the testimony with reference to the contents of the deposition of Catherine Felitz, under the circumstances, worked material prejudice to the defendant.
VII. Complaint is made of the finding 'by the court that the contract was fair and reasonable, and also that Root and Campbell performed all the conditions of the contract. The fairness and reasonableness of the contract are to be determined by the conditions as they existed at the time it was entered into. The parties doubtless contemplated litigation protracted through all the courts, and that the water company would not yield until it had exhausted every legal obstacle it could interpose. But the company saw fit to make a settlement before the case was even tried in the court in which it was commenced. By that settlement and the dismissal of the case in pursuance of it the litigation was brought to a final termination. There was nothing further that Root and Campbell could do in the prosecution of that or any other case to recover the land for Felitz and wife. They had conveyed it to the water company by a deed that could not be questioned. They had received payment, partly in money and partly by a lease of the land. The value of the services actually performed by them up to the date of this settlement affords no criterion by which to measure the reasonableness or unreasonableness of the contract as originally made. Up to that date they had done all they had contracted to do. They had convinced the water company that Felitz and wife had rights in the premises. The water company saw fit, not only to concede them a life lease of the property, worth, as the court finds, from $125 to $150 per year, but also to pay them an additional sum of $390. We cannot say that we are convinced that the contract was unjust or unreasonable, and it is clear to us that it was fully performed on the part of Root and Campbell.
VIII. One-further matter requires attention. Root had a right to no more than one-half the interest in the land which in equity and justice belonged to Felitz and wife. At the time Felitz and wife conveyed the property to the water company in 1881 and 1882, they received from the water company for the deeds then executed $1,150. It is inequitable that they should recover the land and still retain the money so paid them. It is also inequitable that Felitz and wife, or Root claiming under them, should recover lasting and valuable improvements which are actually beneficial to the property, placed there after the execution of the deeds with their knowledge. We think it equitable that Root should pay to the water company one-half of the ' consideration received for the original deeds, and that, in any division that may hereafter be made of the premises, the improvements placed thereon shall be allowed and set off to the water company, and that Root shall take one-half in value only of the lands exclusive of such improvements. The decree entered in the district court will be modified by requiring the plaintiff, Root, to pay to the defendant, within 60 days after entry of the corrected judgment, in accordance with the mandate of this court, the sum of $575, and also by providing that the interest conveyed under the deed directed by the decree shall be exclusive of lasting and valuable improvements placed there by the water company subsequent to October 5, 1881. In all other things the judgment will be affirmed.
Martin, C. J., concurring.
Johnston, J.
: The contract sought to be enforced in this action relates to the homestead of Felitz and wife, and, in order to be valid, must have had the joint consent of both. At the time the contract was made with Root and Campbell, Catherine Felitz had been duly adjudged to be insane, and there had been no adjudication that she had been restored to her right mind. In the act relating to lunatics and habitual drunkards, provision is made for an adjudication respecting the sanity of a person charged to be of unsound mind. It is also provided that, if a person once adjudged to be insane be in fact restored to his right mind, the matter may he inquired into in the same court wherein the adjudication of insanity was made, and, if such person has been restored to his right mind, a decree of restoration may be made and entered. In the same act, it is expressly provided that the contract of a person so adjudged to be insane shall be void. It is well settled that, where contracts of insane persons are declared void by statute, any contract or conveyance made after an adjudication of insanity and before an adjudication of restoration is absolutely void. In Indiana, under a statute similar to ours, it was held by the supreme court of that state that
“The contracts of a person duly adjudged insane are void. The disability of insanity once established by an adjudication under the statute continues, and is conclusive until the restoration of reason has been determined in the manner prescribed by the statute, and the, world must take notice of it. The adjudication has no less force before than after the appointment of a guardian, and is not affected by the discharge of the guardian upon a final settlement of his accounts.” ( Redden v. Baker, 86 Ind. 191.)
The question has been considered by the courts of Missouri, and the decisions, being based on statutes substantially like ours, are entitled to great weight. In fact it is said that our statute in regard to insane persons was borrowed from, Missouri, and the provision in the Missouri statute declaring the contracts of insane persons to be void is the same as that found in section 34 of our statute. In Rannalls v. Gerner, 80 Mo. 474, it was held that the deed of an insane person, after an adjudication of lunacy and before restoration, was absolutely void, although made with the assent of his guardian. In Kiehne v. Wessell, 53 Mo. App. 667, the effect of an adjudication of lunacy was considered, and in deciding the case the court said :
“The rule at common law is that insanity once proved to have existed is presumed to continue, unless it was accidental or temporary in its nature, as where it was occasioned by violence or disease. The rule under the statute makes this presumption conclusive in a case of an adjudication of lunacy, as was held by the supreme court in Rannalls v. Gerner, 80 Mo. 474. In that case, Sherwood, J., cites with approval Imhoff v. Whitmer, 31 Pa. St. 243, where it is said that, after inquisition, the fact of lunacy cannot be controverted by evidence of lucid intervals at the moment of contraction. So doing ' would leave tlie estates of these unfortunate classes about as much exposed as before proceedings had in regard to them. The inquisition and decree, standing of record, was intended for notice to all the world of the incapacity of the particular party to contract. It is the judgment of the law to this effect, and, as a consequence, his acts in regard to his property are absolutely void while the condition exists.'''
The court proceeded further, and held that, by force of the statutory provisions, an adjudication of lunacy, in the absence of a decree of restoration, is conclusive, and its effect on the contracts of insane persons cannot be overcome by proof that he has had a lucid interval, or that he has become capable of managing his own affairs. If we had no statute expressly declaring a contract invalid when made by one declared to be insane, the contract might be treated as voidable only, and, if made during a lucid interval, would be binding ; but under our statute such a contract is a mere nullity, and is wholly incapable of ratification. In no case to which my attention has been called has it been held under a statute like ours that a contract coming within its provisions can be rendered valid by showing that it was entered into during a lucid interval, and the authorities relied upon by the defendant in error, it seems to me, do not support the view contended for nor the conclusion that has been reached.
If the contract in question was valid, Root was still not entitled to the remedy of specific performance. A contract to be specifically enforced by the court must be mutual, and where, at the time it is made, it is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other. It is well settled that contracts calling for the exercise of peculiar skill, care, and attention, or of personal services of a professional and confidential character, or requiring peculiar ability or experience, cannot be specifically enforced. (Fry, Spec. Eerf. §440; Publishing Co. v. Telegraph Co., 83 Ala. 498; Bickford v. Davis, 11 Fed. Rep. 549 ; Ball Club v. Bennett, 14 id. 257 ; Duvall v. Myers, 2 Md. Ch. 401.)
It has been said that
“ Specific performance cannot be enforced in this instance for want of mutuality in the contract, so far as the remedy for its enforcement is concerned. The rule is fundamental that a contract will not be specifically enforced unless it is obligatory on both parties, nor unless both parties at the time it is executed have the right to resort to equity for its specific enforcement. And where a contract, when executed, is not specifically enforceable against one of the parties, he cannot, by subsequent performance of those conditions that could not be specifically enforced, put himself in a position to demand specific enforcement against the other party.” (Norris v. Fox, 45 Fed. Rep. 406, and cases cited.)
Another reason for denying to the defendant in error the remedy he seeks is that the contract is not fair and just, nor supported by any adequate consideration. It is found by the trial court that the company, when it purchased the property in 1881 and 1882, paid the full value of the same to Hugo and Catherine Felitz. Immediate possession was taken of the same, and valuable improvements made, costing at least $37,000. When Root and Campbell entered into the contract with Catherine Felitz they were acquainted with the fact that the company was in the occupancy of the premises, the character of the improvements made thereon, and the purposes for which they were used. At that time the value of the naked land was found to be $15,000. This value and the cost of the improvements bring the amount up to $52,000. The only value given by Root and Campbell for the conveyance of the land in question was the performance of services as attorneys. They filed a petition in court, and had made some preparation for the trial of the cause. A demurrer had been filed to their petition, but it had not been argued nor disposed of. The action was begun on March 2, 1886, and before any trial or final determination it was dismissed by Catherine Felitz. The company offered, and should have been permitted, to prove that the services rendered to Catherine Felitz were not worth to exceed $300. For this small consideration the plaintiff below asks the court of equity to use its extraordinary powers to take property from the plaintiff below of the value heretofore stated. If the title to the property had remained in Felitz and wife, and the plaintiff below had brought suit against them for the specific performance of the contract, would not the relief asked for have been regarded as inequitable and unjust because of the gross inadequacy of consideration and want of fairness in the contract? The company practically'stands in the shoes of Felitz and wife, and is entitled to the same consideration. As specific performance cannot be demanded as a matter of absolute right, but rests to a great extent in the sound judicial discretion of the court, I think that equitable considerations and the circumstances of this case do not justify the enforcement of this remedy. In the view of the majority of the court a strict enforcement of the contract is deemed to be inequitable, and hence the judgment has been materially modified. In my view, the defendant in error is entitled to full compensation for the services performed, and the property should be deemed to have been taken by the company subject to that claim, but under the circumstances he is not entitled to the kind of relief which he asks.
For these reasons I am unable to concur in the conclusion which my associates have reached.
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The opinion of the court was delivered by
Allen, J.
: The defendants, Carl Arnold and William Harvey, were convicted in the district court of Edwards county, on the 13th of November, 1894, of the crime of murder in the first degree. The court thereupon rendered judgment that they be conveyed by the sheriff of Edwards county to the penitentiary, and there imprisoned at hard labor until the governor should sign an order for their execution; that upon the signing of such order, and at such time as the governor should fix in the warrant, they should be taken from their cells to some place within the walls of the penitentiary, and should, at the time so fixed by the governor, and at said place, be hung by the neck until they were dead. In pursuance of said judgment the defendants were taken to the penitentiary, where they are still confined. This is an application by the county attorney of Edwards county to have the defendants brought before this court and a time fixed for their execution. It is alleged in the application that the governor has failed and refused to order the execution of the death-sentence, and it is claimed that it is the duty of this court, under sections 270 and 271 of the criminal code, to cause the defendants to be brought before it, and if no legal reason exists against the execution of the sentence, to issue a warrant commanding the execution and fixing a time when it shall be done.
Prior to 1872 the law provided that, whenever a convict should be sentenced to the punishment of death, the court should fix the day on which the sentence should be executed, not less than four nor more that eight weeks from the time of the sentence, and that it should be carried into effect by the sheriff of the county. In that year an act was passed amending the lawn Section 259 of the code of criminal procedure, as amended, reads : “ The punishment of death prescribed by law must be inflicted by hanging by the neck, at such time as the governor of the state for the time being may appoint, not less than one year from the time of conviction.” By other sections the governor is authorized to issue an order directed to the warden of the penitentiary, to be executed by him, for the purpose of having the death penalty inflicted; but it is expressly provided that no governor shall be compelled to issue any such order. The sections of the statute under which it is claimed the court has authority to cause the infliction of the death penalty were contained in the General Statutes of 1868, and were not expressly repealed by the act of 1872. They read as follows :
“Sec. 270. Whenever, for any reason, any convict sentenced to the punishment of death shall not have been executed pursuant to such sentence, and the same shall stand in full force, the supreme court, or the district court of the county in which the conviction was had, on the application of the prosecuting attorney, shall issue a writ of habeas corpus to bring such convict before the court; or, if he be at large, a warrant for his apprehension may be issued by such court, or any judge thereof.
‘‘ Sec. 271. Upon such convict being brought' before the court, they shall proceed to inquire into the facts, and if no legal reasons exist against the execution of such sentence, such court shall issue a warrant to the sheriff of the proper county, commanding him to do execution of such sentence at such time as shall be appointed therein, which shall be obeyed by the sheriff accordingly.”
The contention of the county attorney is, that after the expiration of one year, if the governor refuses to issue his warrant, the court may proceed to order execution’ of the sentence, and may ñx a time for carrying it into effect; that the other sections of the statute amended by the act of 1872 were expressly repealed, while sections 270 and 271 were allowed to stand; that the legislature evidently considered the whole subject, and intended to leave power in the court to carry the sentence into execution.
It would be a sufficient answer to the claim of the county attorney in this case to say that, by the very terms of the judgment of the district court of Edwards county, the defendants were directed to be confined in the penitentiary until such time as the governor should fix by his warrant for their execution. We are not willing, however, to rest our decision on the form of the judgment. We are clear' that, under the law as it now stands, the death penalty cannot be lawfully inflicted until the governor shall fix the time therefor, and issue his warrant in accordance with the act of 1872. It is probable that if the governor should' so fix a time for the execution of the sentence, and issue his warrant to the warden of the penitentiary for that purpose, and for any reason it should be impracticable for the warden to obey the warrant, owing to the escape of the prisoner, or other sufficient cause, proceedings might be had under these sections, and thus it may be that they still have some force, and were therefore allowed to remain unrepealed ; but we do not need, nor do we now undertake, to construe these sections farther than is necessary for the disposition of cases like this. Until the governor has appointed a day for the execution of the death-sentence, there is no ground for invoking the jurisdiction of this court in the case.
The application for the writ is denied.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: I. The defendant challenges the right of the governor to investigate any charge of official misconduct with a view to removal from office. He contends that such a power cannot be conferred upon the governor, nor, indeed, upon any other person, officer, or tribunal, but the courts. This would be an interesting question, if new, but it is not new. It received very full examination and consideration in the case of Lynch v. Chase, 55 Kan. 367, 40 Pac. Rep. 666. It was there held, Mr. Justice Johnston delivering the opinion of the court, that it is within the power of the legislature to provide a summary method of removing incompetent and unfaithful officers, and to that end it may confer authority upon executive officers ; and that while the proceeding to remove from office for cause involves the examination of facts and the exercise of judgment and discretion by the executive officer, his action is not judicial in the sense that it belongs exclusively to the courts. Many executive acts involve the exercise of judgment and discretion, including the power to hear and determine, and yet the acts and the power cannot be held to be judicial. In order properly to exercise an executive function it is often a requisite preliminary to hear evidence to guide and direct the judgment of the executive as to the course to pursue, and it is not necessary, under our constitution, to refer all such questions to the courts. Even where the tenure of an office is declared by law, but power is given to remove for cause or for official misconduct, all that seems necessary is due notice of the charge preferred, and a hearing thereon, with opportunity to the accused officer to be heard in his own defense. (Jacques v. Litle, 51 Kan. 300, 303 ; Lease v. Freeborn, 52 id. 750, 755 ; Eastman v. Householder, 54 id. 63, 67; Lynch v. Chase, supra, and cases cited.) We are entirely satisfied with the conclusion reached in the case first and last cited, and therefore need not further pursue this line of inquiry.
II. It is further contended that findings 1 and 2 do not show official misconduct, and that the charge referred to in finding 3 was not sustained by the evidence. As to findings 1 and 2, it is said that, by section 5 of said chapter 206, Laws of 1889, the commissioner is made the exclusive judge of the qualifications of the applicant for registration until the close of the books, and that any applicant who feels aggrieved by his decision may appeal to the board of supervisors, and upon this proposition is based an argument that no official misconduct can arise from the refusal of the commissioner to register any person. This argument is fallacious. Of course, it is the duty of the commissioner to decide in the first instance who is and who is not entitled to registration, and he should not be held responsible for any honest mistake of judg ment; but it is declared by the findings that registration was refused with the intent wilfully to deprive voters of their right when the defendant knew that they were legal voters in the wards or precincts in which they offered to register. It would be official misconduct for the commissioner to drive an applicant to the necessity of an appeal when he well knew that such applicant was entitled to register and to vote. An appeal is presumably given for the purpose of rectifying honest mistakes of the commissioner in doubtful cases as to the right of the applicant. Many persons entitled to exercise the right of suffrage might be deprived of it for want of understanding as to the method of taking an appeal, or for the want of time to prosecute it before the board of supervisors, which is not convened until after the close of the registration, and finally adjourns its session seven days before the election. Findings 1 and 2 plainly show official misconduct. Finding 3 shows corruption in office, which certainly is official misconduct. It is said in behalf of the defendant that the charge on which this finding is based was disproved, but we are bound by the findings of the governor. We have no evidence that the proceeding before him was not fairly conducted. The defendant was present personally and by counsel, and introduced evidence in his own behalf. This evidence is not before us, and we know nothing of the facts, except as found by the governor and from the statements of counsel in their arguments and briefs.
Complaint is made that the proceedings before the governor were irregular, in that copies of the newspaper clippings ought to have been attached to the copy of the charges served upon him, and that the affidavit of Kimball, of which he had no notice until after the first day’s proceedings, should not be con sidered as part of the charges preferred against him. The clippings, however, formed no real or substantial part of the charges, and the findings of the governor were not based thereon ; and it seems, from the admissions of counsel in their brief, that evidence was introduced by the defendant before the governor touching the charge made in the Kimball affidavit. In Lynch v. Chase, supra, it was said that
“In a summary proceeding for the removal of officers under the statute, the same formality and precision are not required as in a trial before a court, and the accused cannot claim the benefits, incidents and common-law rights pertaining to such a trial.”
There is nothing to indicate that the defendant was not given a fair opportunity to be heard in his own defense. The clippings were of no consequence, except to show that there was some dissatisfaction with the defendant's administration of the office; and as to the charge contained in the Kimball affidavit, the defendant had 12 days to meet it before the close of the hearing.
Judgment of ouster will be entered against the defendant, and the plaintiff placed in the possession of the office of commissioner of elections of the city of Topeka.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: I. The plaintiff in error contends that the court below erred in refusing to render judgment in his favor on the findings of the jury at the first trial, and in granting to the defendants in error a new trial notwithstanding said findings. It was the province of the court, however, upon the motion for a new trial, to consider whether the findings were supported by the evidence or not; and, if this question was determined in the negative, then it was its duty to set aside the findings and to award a new trial. This is so in every case tried before the court and a jury. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 3, 4, 12, 13, and cases cited ; Richolson v. Freeman, ante, p. 463 ; 43 Pac. Rep. 772.) And, when issues submitted to a jury are not such as to entitle the parties to a jury trial as a matter of right, the court may consider the answers as merely advisory, and may disregard any finding not supported by the evidence. (Franks v. Jones, 39 Kan. 236, 241; Moors v. Sanford, 2 Kan. App. — ; 41 Pac. Rep. 1064.) No doubt, the court considered that the findings were not supported by the evidence.
II. Another assignment of error is in the refusal of the court to admit in evidence the certified transcript of the case of Whiteside & Hutchinson v. Caldwell, commenced in the district court of Reno county, and removed to the circuit court of the United States for this district. Perhaps no error would have been committed by the admission of this transcript, although there was very little in it that could have had any bearing upon the issues in this case, and that which was relevant was sufficiently brought out in the oral examination of the witnesses. We have examined all the evidence introduced, and do not think that by its preponderance any fraud is proved against Brown & Kline. The most blameworthy circumstance on their part was the failure promptly to notify Caldwell of the bringing of suit against him. It is always the du*fcy of an attorney seasonably to advise Ms client of all steps taken wliich may affect Ms interests ; but it is to be considered that the suit in which Brown & Kline were first employed was ended, and before they took their judgment the Whiteside & Hutchinson litigation had been closed. From that time, at least, the relation of attorney and client had ceased, and Brown & Kline saw that no course was left to them to recover their fees but to levy on this land, or follow Caldwell to Michigan, and sue him there. A fee even of $5,000 for a suit respecting a quarter-section of land seems large; but, from the evidence, a great amount of labor ivas bestowed and considerable expense incurred in this litigation, for the land is worth a large sum; and when Brown & Kline were employed, it was considered immensely valuable.
Finding no material error in the record, the judgment will be affirmed.
All the Justices concurring.
Not yet reported.
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The opinion of the court was delivered by
Allen, J.
: The defendant is the register of deeds of Sumner county. He is charged with having neglected and refused to file with the county clerk a statement of the fees collected by him as register of deeds, as required by the fifth section of chapter 81 of the Laws of 1893. A motion was filed on behalf of the defendant to quash the information, on the ground that the statute referred to is unconstitutional, and that the facts set forth in the information do not constitute a public offense. The motion was sustained, the information quashed, and the state appeals. The tenth and twelfth sections of the act in question read as follows :
‘ ‘ Sec . 10. This act shall not affect the fees or salaries of the present county treasurer, countj^ clerk, county attorney, register of deeds, clerk of the district court, sheriff, or probate judge, but shall be in full force and effect as to county surveyor.”
“ Sec. 12. This act shall take effect and be in force from and after its publication in the official state paper.”
The contention on behalf of the defendant is, that the act takes effect at different times, and therefore, under the decision in the case of Comm’rs of Miami Co. v. Hiner, 54 Kan. 334, and other cases following it, is void. The act under consideration in that case did not by the provisions of its last section all become a law at one time. The last section of the act under consideration in this case provides that it shall become a law from the date of its publication in the official state paper. It was said in the opinion in the case of Comm’rs of Miami Co. v. Hiner:
“Acts are frequently passed in the body of which provision is made that they shall act upon certain classes and communities at different times, and upon the happening of certain contingencies, but there is a clear distinction between such acts and the one we are considering. In those cases the act goes into effect and becomes a law as an entirety, and if the act meets every contingency when it arises, and operates alike upon all that come within the scope of its authority, it is regarded as uniform in its operation, and is not to be deemed invalid merely because it does not become applicable to the classes, communities, or things at the same moment of time, or which may be subsequently governed by it.” See, also, Comm’rs of Cherokee Co. v. Chew, 44 Kan. 162.
Many cases may arise in which it will be best that different sections of a statute shall become actively operative at different times, and where the old ought to be kept in force until the new law may operate justly and beneficially. All matters of mere policy or propriety are to be determined by the legislature, not by the courts. Whatever our view may be as to the propriety of making changes in the compensation allowed to public officers at different times, the question of propriety is not for us to decide. By separate enactments the legislature would undoubtedly have the power to make changes in the compensation of these ctranty officials take place exactly as provided in section 10 of this act, by making the separate acts take effect and become operative at the expiration of the terms of office of the present incumbents. No valid reason exists why this may not be done by a single act. Chapter 91 of the Laws of 1893, which was under consideration in the case of Finnegan v. Sale, 54 Kan. 420, was open not only to the objection that it was attempted to make it take effect at different times, but part of the provisions in section 5 would have taken effect immediately and the rest at different times. The act we are now considering is not open to this ob jection. The fees and salaries of the respective officers are each fixed by separate sections of the statute complete in themselves. Section 5 of the act, making it the duty of the officers who are required to account for fees received to file a return thereof with the county clerk, by its terms only applies when the officers’ fees are regulated by the act. The section would have full force and operation from the time the act took effect, and no part of it would remain in abeyance. It would have been competent for the legislature, in connection with section 1, which fixes the compensation of the county treasurer, to have fixed a date from and after which the compensation should be such as is provided in this section, and so as to the compensation of other county officers fixed by the succeeding sections. No valid reason is apparent why the same end may not be accomplished by a single section, such as section 10 of this act is. The act became a law on publication, and actively operative as to the county surveyor. As to the other county' officers, it was also a law when published, but it did not change the compensation of the then incumbents of the county offices named, but did fix the compensation of their successors.
The judgment is reversed, with the direction to overrule the motion to quash the information. '
All the Justices concurring.
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The opinion of the court was delivered by
Foth, C:
The issue in this case is whether an insurance company refused to pay its policy holder’s loss without just cause or excuse, so as to render it liable for attorney fees under K. S. A. 40-256.
The claimed loss consisted of damage to the plaintiff’s pickup truck, medical expenses, and personal injuries, all incurred in a collision with an uninsured motorist. The claim was made under the uninsured motorist endorsement of plaintiffs automobile liability policy. At trial, on the issue of damages only, a jury awarded plaintiff judgment against the defendant insurance company for $7200. On post-trial motion the trial court found that the company’s previous abortive efforts to settle plaintiff’s claim amounted to a refusal to pay without just oause or excuse, and awarded plaintiff attorney fees totalling $4600. The company has appealed from that award.
Plaintiff’s claim for attorney fees was based on the company’s claimed indifference to his claim prior to his filing suit. After filing there were a number of offers and counter-offers, with plaintiff’s demands constantly escalating. Plaintiff does not rely on these negotiations. He recites them in his brief, but brushes them aside by observing, “The critical period, however, was the time prior to trial. The law is quite clear that it is the insurer’s activity or lack thereof prior to commencement of the action which determines whether or not a refusal to pay is without just cause or excuse.” (Emphasis added.)
In support of this position plaintiff cites Barnes v. Mid-Continent Casualty Co., 192 Kan. 401, 388 P. 2d 642, and Attebery v. M. F. A. Mutual Ins. Co., 191 Kan. 178, 380 P. 2d 327. In the first we said, “In order to secure full compensation for her damages, the plaintiff was conmpelled to bring this action.” (P. 405. Emphasis added.) In the second we said the allowance was proper “Where an insured was forced to file an action to recover for the loss of an automoble. . . .” (Syl. ¶ 1. Emphasis added.) While these statements fall short of a square holding in accord with plaintiff’s position, the implication is clearly there, and we are prepared to so hold at this time.
The statute speaks of a company which has “refused” to pay. This surely contemplates a demand which has been denied. During the time presuit negotiations are proceeding in good faith a company cannot be said to have “refused” to pay. Hence the precipitous filing of suit, before a company has had a reasonable opportunity to select its course, cannot form the basis of a claim for attorney fees. On the other hand, all the good faith and settlement offers in the world after suit is filed will not immunize a company from the consequences of an unjustified refusal to pay which made the suit necessary. This concept is borne out by the “proviso” of the statute, which forbids the allowance of attorney fees where the recovery is no more than any amount tendered “before the commencement of the action.”
The company doesn’t really quarrel with this proposition (although it does seek to demonstrate its good faith by pointing to extensive post-filing negotiations, including a $2750 offer which plaintiff’s counsel said he would recommend but which was not accepted.) Rather, its position is that before suit was filed it was lulled into inaction by plaintiff’s counsel — or, as appellant puts it in its brief, “It was plaintiff’s lawyers who led defendant down the primrose path of litigation. . . .”
Since the critical period is the time before suit, in order to evaluate the parties’ respective claims it is necessary to examine the events between June 23, 1969, the date of plaintiff’s injuries, and June 4, 1971, the date suit was filed. There is really not much to examine; all the activity took place in the three months between May 21, 1970, and August 28, 1970.
The first notice to the company of plaintiff’s injuries reflected in the record is a letter from plaintiff’s counsel to plaintiff’s insurance agent dated May 21, 1970, almost a year after die accident:
“Please be advised this firm represents Mr. Sloan in connection with injuries he and his son sustained in an auto accident June 23, 1969.
“The vehicle which [s]truck Mr. Sloan’s vehicle was uninsured at the time of the accident.
“As a consequence, we must now make claim against the Uninsured Motorist Coverage provided the Sloans in their policy of insurance which they carried with Employers Casualty Insurance Company.
“Please have a representative of that company contact this office as soon as possible so we might explore settlement possibilities.”
Plaintiff asserts in this court that the company had earlier actual notice of his injuries. This claim is apparently based on the fact that plaintiff did yard work for Robert Luckey’s real estate business, and after the accident was unable to do the same kind of work for him. Luckey was also the insurance agent who wrote plaintiff’s policy, and the person to whom the claim letter was written. If by this contention, plaintiff means to suggest that any time an insurance agent acquires knowledge of some injury to a policyholder it becomes the company’s duty to initiate an investigation and offer a settlement — without any claim being made — we reject the suggestion. We believe the insured has some duty to give notice to his company of his loss, and of the fact that he is making a claim under his policy, before the company is obligated to move. In this case we cannot convert whatever knowledge Luckey may have had of plaintiffs condition into a claim against the company under plaintiff s uninsured motorist coverage.
There is certainly no hint in the demand letter of any prior notice to either Luckey or the company, much less of any prior claim under the policy.
The claim was in due course referred through channels to Andy W. Ray, an agent for an adjusting firm in Wichita. Ray promptly made contact with plaintiff's counsel, and received a letter dated July 8, 1970, from David Egan, one of plaintiffs lawyers:
“Dear Mr. Ray:
Please be advised that I will be handling this matter for our client, Marcus Sloan.
As you may know, Mr. Sloan’s vehicle was struck from behind by a truck driven by Osa Patterson, a colored male, 2360 Bums, Wichita, Kansas. At the time of the accident Mr. Sloan was stopped for a red light on Washington at Central here in Wichita. Mr. Patterson has given us a statement advising the vehicle he was driving at the time was uninsured.
Mr. Sloan has incurred the following specials to date:
Dr. Reazin.................................................. $51.00
Wesley Hospital............................................. 26.25
Property Damage............................................ 52.56
Cab Fare................................................... 14.85
Total..................................................... $144.66
Enclosed are the itemized statements and bills we have in our file.
We would recommend a $1,500 settlement to Mr. Sloan but must advise this is our bottom dollar settlement demand. Please contact me at your convenience regarding this case.”
Matters stalled at this point, and on July 30, 1970, Ray filed a report with the company stating that his efforts to discuss settlement with Egan had been unavailing because Egan said some other associate in the office would be handling the claim. As of that date Ray was waiting to find out which lawyer he should talk to.
He was apparently still waiting when, on August 28, 1970, Egan wrote again, saying:
“Dear Mr. Ray:
After further consultation with our client and after reevaluating our file, we have come to the conclusion that Mr. Sloan has been damaged in excess of $1,500 which was the figure we had previously forwarded to you for settlement purposes. In short we are at this time withdrawing our offer to settle this case for $1,500 and will advise you at a later date as to the amount for which Mr. Sloan will settle.
Thank you for your attention to this matter.” (Emphasis added.)
The parties are agreed that this was the last contact between plaintiff and the company until, some nine months later, plaintiff filed suit. Plaintiff made no further demands, as counsel had indicated he would do, and the company made no further investigation or settlement overtures.
The real issue is, who had the burden of taking the initiative during those nine months?
Plaintiff says that the company had a duty to investigate his claim in good faith, citing such cases as Lord v. State Automobile & Casualty Underwriters, 208 Kan. 227, 491 P. 2d 917, and Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P. 2d 756. It did not do so. Further, he says he was forced to- file suit when he did, without further demand, because the statute of limitations on his claim against the uninsured tortfeasor would expire in less than three weeks. His contention is that it was incumbent on the company to initiate further settlement negotiations, despite what plaintiffs counsel had written.
The company counters by pointing out that it never “refused” to pay plaintiff’s claim. True, it didn’t jump at plaintiff’s first demand, but its efforts to even discuss it were frustrated by the uncertainty in the office of plaintiff’s counsel as to who was handling the case. Before there could be any discussion the offer was withdrawn, and it never had an opportunity to consider a second demand. An insurance company’s duty to investigate, under our cases, is to do so “before finally refusing to pay.” (Lord v. State Automobile and Casualty Underwriters, supra, at 234.) The company says it never had a claim presented which it could refuse.
As to its investigation, the company points out that during the nine months it waited for the promised new settlement figure die company knew, from police reports and Egan’s first letter: (1) that plaintiff had been struck in a rear-end collision; (2) that he claimed injury to his spine and pelvis; (3) that he had seen a doctor four times in the six weeks immediately following the accident, but not since; (4) that he was not hospitalized; (5) that his total medical bills were $77.25, mostly for X-rays; (6) that damage to his vehicle was $52.56; and (7) that his counsel’s first evaluation of his total claim was $1500. With this information at its disposal, it says, it was justified in putting this claim' “on the back burner” while awaiting the promised further word from plaintiff.
On balance, we think the company’s position has far the better of it. Plaintiff’s first demand letter was calculated to lead the company to a reasonable belief that this accident was a garden variety rear-ender. Insurance companies and personal injury lawyers evaluate such cases every day. There was nothing to indicate the plaintiff had any serious or permanent personal injury requiring special investigation. While counsel’s letter withdrawing his first offer had some ominous overtones, it contained what appeared to be an unconditional promise to make the next move. We think the company was entitled to rely on such a promise by counsel.
We are not impressed by plaintiff’s assertion that he was forced to file suit by the imminence of the bar of the statute of limitations. There is even some question whether the running of the statute on his tort claim would in fact have barred his contract action under the policy, but we need not decide that issue. The fact remains that when he filed suit, without notice, he still had nineteen days under the tort statute. It seems to us that was ample time to follow through on the promised second demand, by telephone or even by letter.
Had he done so and been rebuffed he could then have made a legitimate claim that the company “refused” to pay his loss. The issue then would have been whether the refusal was “without just cause or excuse.” That, in turn, would have required consideration of such factors as whether his demand was exorbitant, whether the company made a counter-offer, and if so whether it represented a reasonable, good-faith assessment of the claim. Since he did not make a demand which was refused, we are not called upon to determine the question of just cause or excuse.
In short, the burden of the initiative in this case was on plaintiff because he had, through counsel, voluntarily assumed that burden. In his letter of withdrawal he did not even solicit a counter-offer; he volunteered to move out himself. Having chosen that course, plaintiff cannot later complain because the company took him at his word.
By our holding in this case we do not mean to retreat from our position that an insurance company presented with a claim has a duty to make a good faith investigation before finally refusing to pay, or to suggest that dilatory tactics in processing a duly presented claim may not constitute a “refusal” to pay. Neither do we mean to depart from our usual standards of appellate re view. Whether there was a refusal to pay, and if so whether it was “without just cause or excuse,” are both questions of fact. They are to be determined in the first instance by the trial court, subject to review here as are other factual matters. What we do hold is that on the facts as they appear in this record there was no evidence that the defendant ever “refused” to pay plaintiff’s loss, in the sense that that word is used in the statute, because there was never any demand before it which could be refused.
It follows that it was error to make an allowance of attorney fees in this case, and the orders making such allowance are reversed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Foth, C.:
This is an automobile-truck collision case. Plaintiff Popejoy Construction Co. brought suit for the cost of repairs to its truck and for the loss of its use; defendant Leland Crist counterclaimed for his personal injuries and the destruction of his automobile. The jury, in answer to special questions, found the defendant automobile driver negligent in driving at an excessive speed, in excess of the posted speed limit; in failing to stop or turn aside and avoid the collision; and in failing to keep his vehicle under proper control. It found the truck driver to be free from any negligence. The result was a judgment in favor of the construction company for $3,310.05, the exact amount prayed for. The defendant appeals.
The collision occurred on U. S. highway 83 just north of Garden City, Kansas. The plaintiff construction company had been resurfacing the road for some two months prior to the accident. It maintained, throughout the 8 miles of the project, warning signs: and barricades which included 40 m. p. h. speed limit signs placed every 750 feet. On the morning of July 8, 1972, the work was 99% complete; all that remained to be done was some shouldering work, picking up trash, and the painting of the dashes and no passing zones down the center of the highway.
At approximately 9:10 a. m. on that morning Ernest Holt, plaintiffs employee, was driving a large tandem-axled dump truck north on the highway to pick up a high-loader to use in the dean-up work. He was accompanied by another employee, Virgil Lenz. At a point approximately 4.4 miles north of the dty limits of Garden City he commenced a left turn into a field on the west side of the road, where the high-loader was sitting. Before doing so he made a check of the traffic both in front and behind his truck and saw nothing. His turning radius was about 50 feet, and during the turn proper his attention was focused on a truck which was moving in the field, near the driveway he was about to enter. His turning speed was about 5 m. p. h. There was a small knoll to the north of the turn, which obstructed his view of oncoming traffic in a flat stretch beyond the knoll. He never did see defendant’s car until after the collision. Lenz, his passenger, testified that there were heat waves rising from the asphalt pavement and that he didn’t see defendant’s car until its nose dipped shortly before impact.
The truck had almost cleared the pavement when it was struck at the right rear axle by defendant’s southbound car. The impact moved the truck some sixteen feet to the south; it weighed 14,700 pounds empty. Its frame was twisted, several springs were broken, both tandem axles were tom loose, and the drive shaft was tom from the transmission.
Both plaintiffs and defendant’s reconstruction experts agreed that defendant’s car, after laying down 63 feet of skid marks, was going about 47 m. p. h. at the time of impact. Before braking plaintiffs expert put his speed at 89 to 99 m. p. h., defendant’s expert at 59 to 63 m. p. h.
Defendant himself testified on direct examination that he hqrl traveled for several miles through the 40 m. p. h. speed zone with his cruise control set at 70. He took it off cruise control as he approached the knoll and was going about 65 m. p. h. before braking, and 45 to 55 m.p. h. at the time of braking. On cross-examination he was confronted with a previous statement in which he said that he had been going 40 to 45 m. p. h. for the last half mil* before the collision. When pressed he adopted that estimate as being correct and asserted that “I don’t believe either one of your experts.”
On appeal defendant raises three points. The first is that he should have had a directed verdict on the contributory negligence of the truck driver. His argument is that the truck driver could and should have seen defendant’s car approaching, and should not have turned in front of him. Allied with this contention, and argued with it, is his claim that the evidence was insufficient to establish negligence on his part. His theory here is that his speed, his failure to stop or swerve, and his failure to control his car (all found by the jury) could none of them have been a proximate cause of the accident. Only the turning of the truck, he says, contributed to the accident.
Looking at the testimony, we conceive it entirely possible for the jury to have found that defendant’s car was hidden by the knoll or obscured by the heat waves when the truck started its turn, so that making the turn was not negligent. The jury could also have found that the arrival of defendant’s car over the knoll at a high rate of speed was the proximate cause of the accident, coupled with his failure to have the car under control so that he could stop or turn aside to avoid the collision. Thus negligence, contributory negligence and proximate cause were all questions on which the evidence was conflicting and on which reasonable minds might differ. They were therefore, under well established rules, questions for the jury. Sims v. Schrepel, 208 Kan. 527, 492 P. 2d 1312; Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272; Deemer v. Reichart, 195 Kan. 232, 404 P. 2d 174. 4 Hatcher’s Kansas Digest (Rev. Ed.), Negligence, §§ 71-75; 7A West’s Kansas Digest, Negligence, § 136 (25) & (26).
Appellant’s final point is that the court should not have instructed on the duty of a driver to “drive at an appropriate reduced speed when any special hazard exists by reason of weather or highway conditions.” He contends that there was no evidence of any special hazard which would justify giving the instruction.
Plaintiff, on the other hand, points to the testimony of Thomas B. Quinn, a state highway engineer acting as safety inspector for the project who checked the road two or three times on the day of the accident. His 6:50 a. m. tour of the route revealed that all warning signs, barricades, speed limit signs and flashers were in place. By 8:00 or 8:30 there were men scattered up and down the road picking up trash and doing shoulder work, and graders, a roller and dump trucks working on the shoulders. The pavement was not lined, and the no passing zone where the accident occurred had not yet been marked. From this we think the jury could have found that the “highway conditions” presented a “special hazard” which would bring the challenged instruction into play. Since the instruction was germane to the issue of defendant’s negligence and supported by some evidence it was properly given. Prior v. Best Cabs, Inc., 199 Kan. 77, 427 P. 2d 481.
This is basically a fact case in which the issues were properly submitted to and determined by the jury. There being competent evidence to support their verdict, it cannot be disturbed on appeal.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Harman, C.:
This is an action by creditors to “pierce the corporate veil” and establish personal liability of individuals for corporate debt.
Plaintiffs are two foreign corporations who furnished materials at different times to two Kansas corporations, Economotels, Inc., and Standard Ruildings, Inc., the indebtedness for which was evidenced by a promissory note and in the form of open account, totaling approximately $13,000. When the indebtedness was not paid plaintiffs brought suit upon it, naming as defendants the two Kansas corporations, a successor third corporation, Modern Structures, Inc., and two individuals, W. R. Poynter and his wife, Rosalee Poynter. The amount of the indebtedness is not in dispute. Recovery was sought against the Poynters on the theory the corporations were mere shams for their individual business enterprises and the alter ego of each, and hence each was liable for the corporate indebtedness.
Trial to the court resulted in judgment for plaintiffs against Poynter for the amount claimed and a denial of recovery against Mrs. Poynter. Poynter has appealed from the judgment holding him liable and plaintiffs have cross-appealed from the judgment exonerating Mrs. Poynter.
The story may best be told by quoting the trial court’s findings of fact and conclusions of law:
“FINDINGS OF FACT
“The Court finds from the evidence:
“1. Prior to December, 1963, W. R. Poynter became interested in the development of mobile motels and motel operations, and from then on through 1964 and 1965 caused surveys to be made and employees of his Ford dealership, Poynter Motors, Inc., to travel and incur expenses in connection with this interest in and development of the mobile motel conception, which were later written off in the tax year of 1967 by Poynter Motors, Inc., as bad debts owed by the parties to whom the monies were advanced; and there never was any expectation of their being repaid.
“2. Early in 1965, W. R. Poynter individually and doing business as Economotels, Inc., leased the south portion of Building No. 1415 of the Parsons Ordnance Plant for a term of five years beginning March 8, 1965, and ending March 7, 1970.
“3. On March 30, 1965, Articles of Incorporation for Economotels, Inc., were filed with the Secretary of State, State of Kansas. The affidavit of the treasurer showing $1,000.00 paid up capital was filed on April 21, 1965. W. R. Poynter was the only stockholder, and the directors were W. R. Poynter, Rosalee Poynter, and Corbin M. Shouse. The only director’s meeting, other than the organization one, was held on May 6, 1966. Its minutes show that the only business conducted was the re-election of W. R. Poynter as President and Treasurer, and the election of William K. Ong as Vice-President and Secretary for the ensuing year.
“4. On May 27, 1966, Articles of Incorporation for Standard Buildings, Inc., were filed with the Secretary of State, State of Kansas, showing the execution by the incorporators on May 17, 1966. The affidavit of the treasurer, executed June 14, 1966, by W. R. Poynter and William K. Ong, was filed on June 15, 1966, in the office of the Register of Deeds, Labette County, Kansas. Rosalee Poynter was the sole stockholder. W. R. Poynter, William K. Ong, and Rosalee Poynter were elected directors; and at the first directors’ meeting, W. R. Poynter was elected President. No further directors’ meetings were held.
“5. On December 12, 1966, Articles of Incorporation for Modern Structures, Inc., were filed with the Secretary of State, State of Kansas, by W. R. Poynter, William K. Ong, and M. A. Cook. The affidavit of the treasurer was signed by W. R. Poynter and William K. Ong and filed with the Register of Deeds of Labette County, Kansas, on February 20, 1967. Rosalee Poynter was the sole stockholder. The first stockholder’s meeting was held on February 24, 1967. W. R. Poynter acted as chairman and W. R. Poynter, Rosalee Poynter, and William K. Ong were elected directors. No further directors’ meetings were held after the organizational meeting.
“6. Economotels, Inc., took over the lease and operation of W. R. Poynter in Building No. 1415 of the Parsons Ordnance Plant and manufactured portable motel units. It commenced operation in June, 1965, and continued its manufacturing process into January of 1966, when it closed down its plant, but continued to pay salaries to officers until May of 1966, when it completely ceased all operation, at which time it owed $93,726.80 to unsecured creditors.
“7. Standard Buildings, Inc., commenced operations in the middle of May, 1966, in the space occupied by Economotels, Inc., in Building No. 1415, Parsons Ordnance Plant, and in August of 1966, expanded to cover an additional portion of the building. Its primary product was mobile classrooms, and it continued its operation until February of 1967, at which time it was indebted to unsecured creditors in the sum of $66,218.38.
“8. Modern Structures commenced business in February of 1967 in the space previously occupied by Standard Buildings, Inc., in Building No. 1415, Parsons Ordnance Plant, with its principal product as mobile classrooms, which were sold direct to school districts instead of through brokers. It ceased pro duction in October or November of 1967, and did no business other than liquidation after December of 1967.
“9. When Standard Buildings commenced business in Building No. 1415, Parsons Ordnance Plant, it took over the equipment, fixtures, and whatever supplies were on hand previously owned by Economotels, Inc., and used them in its business. There was no written agreement between Economotels and Standard Buildings, Inc., covering this transfer, or for the use of the fixtures or building. There was no formal sale of the assets of Economotels at a fixed price to Standard Buildings, Inc., but they were used by Standard Buildings, Inc.
“10. When Modern Structures commenced business in Building No. 1415, Parsons Ordnance Plant, it took over the equipment, fixtures, and whatever supplies were on hand previously owned and used by Economotels and Standard Buildings, Inc., and used them in its operation. There was no written agreement between Standard Buildings, Inc., and Modern Structures, Inc., covering the transfer or use of equipment, fixtures, supplies on hand, or the building. There was no formal sale of the assets of either Economotels, Inc., or Standard Buildings, Inc., at a fixed price to Modern Structures, Inc., but they were used by Modem Structures, Inc.
“11. The transfer of assets from Economotels to Standard Buildings, Inc., was effected by negotiations between W. R. Poynter and William K. Ong, President and director of Economotels, Inc., and W. R. Poynter and William K. Ong, President and director of Standard Buildings, Inc., without formal Board action.
“12. The transfer of assets from Standard Buildings, Inc., to Modem Structures, Inc., was effected by negotiations between W. R. Poynter and William K. Ong, as officers of Standard Buildings, Inc., and W. R. Poynter and William K. Ong, as officers of Modern Structures, Inc., without formal Board action.
“13. When Standard Buildings, Inc., took over the plant previously operated by Economotels, Inc., no provisions or arrangements were made to insure the payment of the unsecured creditors of Economotels, Inc.
“14. When Modem Structures, Inc., took over the plant previously operated by Standard Buildings, Inc., no provisions or arrangements were made to insure the payment of unsecured creditors of Standard Buildings, Inc.
“15. In January and February of 1968, equipment, tools, and materials, most of which were used successively by the three corporations, were sold for $5,112.00, and the money was turned over to Poynter Motors, Inc., of which W. R. Poynter was president and Rosalee Poynter sole stockholder, and was used to pay loans which were personally guaranteed by W. R. Poynter and Rosalee Poynter.
“16. During all periods of their corporate existence and operation herein, W. R. Poynter was President of Economotels, Inc., Econolodge, Inc., Standard Buildings, Inc., Modem Structures, Inc., Tower Bowl, Inc., Las-Ren, Inc., and Poynter Motors, Inc., and set the policies of and made all final decisions of said corporations.
“17. At all times during their existence herein, Rosalee Poynter was the sole and only stockholder of Standard Buildings, Inc., Modern Structures, Inc., and Poynter Motors, Inc. She was a director of Economotels, Inc., Standard Build ings, Inc., and Modern Structures, Inc.; that all management decisions affecting the corporations were made by W. R. Poynter after consultation with his employees; that although the Defendant, Rosalee Poyuter stated that whatever her husband W. R. Poynter, Defendant, did with respect to said corporations was all right with her, and she had very limited information concerning the operation of the corporations based upon informal family conversations with her husband; that although the Defendant Rosalee Poynter executed certain documents and signed checks, the decisions as to what documents were executed was made by her husband, Defendant W. R. Poynter; that upon the instruction and direction of her husband, W. R. Poynter, Rosalee Poynter’s activities were those of an automaton.
“18. On various occasions W. R. Poynter transferred funds from one corporation to the other, as money was needed by his various corporations, including Modem Structures, Inc., Economotels, Inc., Standard Buildings, Inc., Tower Bowl, Inc., and Poynter Motors, Inc., for the purpose of meeting financial emergencies.
“19. Upon the conclusion of business of Modern Structures, Inc., W. R. Poynter directed the sale and disposition of all assets without Board action, so that any cash realized from the sale of assets was applied to indebtedness for which he was personally responsible without regard to the unsecured creditors of any of said corporations.
“20. In the operation of the various corporations, W. R. Poynter permitted Mr. Ong to sign checks without authorization, knowing that they would not be honored until countersigned by himself or Mrs. Poynter.
“21. W. R. Poynter personally assumed liability for delinquent taxes to the Federal Department of Revenue for Economotels, Inc., Standard Buildings, Inc., and Modern Structures, Inc.
“22. W. R. Poynter disposed of the airplane originally purchased by Economotels, Inc., and used by Standard Buildings, Inc., and Modern Structures, Inc. The excess of the sales price over and above the mortgage was applied to indebtedness personally guaranteed by W. R. Poynter and Rosalee Poynter, thus keeping the proceeds of the sale beyond the reach of general creditors.
“23. No reports were made to the Small Business Administration of the change in use of the property from Economotels, Inc., to Standard Buildings, Inc., or of the changes in use of the property from Standard Buildings, Inc., to Modern Structures, Inc.
“24. The only annual report filed by any of the three corporations was filed by Economotels, Inc., showing the condition as of December 31, 1965, listing cash on hand of $42,604.12. This report was incorrect, as the bank statement for December 31, 1965, shows cash on deposit in the sum of $11.50.
“25. Economotels, Inc., was undercapitalized.
“26. Standard Buildings, Inc., was undercapitalized.
“27. Modern Structures, Inc., was undercapitalized.
“28. The corporations, Economotels, Inc., Standard Buildings, Inc., and Modern Structures, Inc., and Poynter Motors, Inc., were operated under the sole direction and control of W. R. Poynter, and were the ‘alter ego’ of W. R. Poynter, and used by him as vehicles to carry out the personal business ventures of the said W. R. Poynter. The individual Defendant, Rosalee Poynter did not treat the corporate property as her individual property.
“29. The Court finds the facts generally in favor of the Plaintiffs, Memphis Motel Furnishings, Inc., and Kilpatrick Brothers, Inc., in their respective causes of action, and against the Defendants, Economotels, Inc., Standard Buildings, Inc., Modern Structures, Inc., and W. R. Poynter.
“30. The Defendants, Economotels, Inc., Standard Buddings, Inc., Modern Structures, Inc., and W. R. Poynter, and each of them, are indebted to the Plaintiff, Memphis Motel Furnishings, Inc., in the sum of $1,848.88, plus interest at 6 per cent per annum from July 28, 1965.
“31. The Defendants, Standard Buildings, Inc., Modern Structures, Inc., W. R. Poynter, and each of them are indebted to the Plaintiff, Kilpatrick Bros., Inc., in ihe sum of $10,828.10, plus interest at the rate of 10 per cent per annum from August 1, 1967.
“CONCLUSIONS OF LAW
“1. In accordance with the facts heretofore found, the plaintiff, Memphis Motel Furnishings, Inc., is entitled to receive judgment against the Defendants, Economotels, Inc., Standard Buildings, Inc., Modern Structures, Inc., and W. R. Poynter, in the sum of $1,848.88, plus interest at 6 per cent per annum from July 28, 1965.
“2. In accordance with the facts heretofore found, the Plaintiff, Kilpatrick Bros., Inc., is entitled to receive judgment against the Defendants, Standard Buildings, Inc., Modem Structures, Inc., and W. R. Poynter, in the sum of $10,828.10, plus interest at 10 per cent per annum from August 1, 1967.
“3. The legal effect of the conduct of the Defendant, W. R. Poynter, in the operation of his various corporations so that he left creditors and holders of claims no resources to which they might look for the payment of their claims is in legal effect a fraud.
“4. The Court will subject transferees to liability for satisfaction of claims against a corporation whose assets are absorbed by succeeding corporations or by individual officers thereof acting on their own behalf and for their own benefit.
“5. The manner in which the various corporations operated by the Defendant, W. R. Poynter, were controlled and acted made them mere shams for the furtherance of the purpose of the individual defendant.
“6. The corporations, Economotels, Inc., Standard Buildings, Inc., and Modern Structures, Inc., were the ‘alter egos’ of the Defendant, W. R. Poynter.
“7. The evidence shows that Rosalee Poynter did not exercise any control over the corporations. The actions of Plaintiffs as against the Defendant, Rosalee Poynter, are dismissed, and said Defendant is discharged with her costs.
“8. The transfers to and from, and the operation of the various corporations by the Defendant, W. R. Poynter, in net result and legal effect render such conduct so fraudulent that he is personally liable for the satisfaction of the claims against the corporations he operated.”
Suit was never brought and judgment obtained against the corporations prior to the filing of the suit against the Poynters wherein they were named as co-defendants with the corporations. Appellant Poynter first contends he has no liability for debts of those corporations by reason of K. S. A. 17-4009, which provides:
“No suit shall be brought against any director or stockholder for any debt of a corporation of which he is such director or stockholder, until judgment be obtained therefor against such corporation and execution thereon returned unsatisfied, in whole or in part.”
Both the Poynters raised the issue at trial level by way of motion to dismiss. Appellant asserts the statute creates a condition precedent which must be performed, and performance so alleged in the petition, before a claim against him is good. He relies principally on our cases which hold that compliance with K. S. A. 12-105 is a condition precedent to a claim for relief against a city. K. S. A. 12-105 provides no action shall be maintained against a city on account of injury to person or property unless the person injured within three months thereafter files a written statement of the incident with the city clerk.
Appellees advance several reasons why failure to comply with 17-4009 should not bar this action. We need dwell upon only one aspect of the problem. The statute was first enacted in 1939 as a part of our general corporation code (Laws, 1939, Ch. 152, § 119). We are aware of only one case since then dealing with it. In Blair v. Mueller, 299 F. 2d 385, (10CA, 1962), the action was brought by creditors of a bankrupt Kansas corporation to impose personal liability upon a corporate director. The suit failed for reasons not pertinent here. However, the court did hold that the bankruptcy adjudication of the corporation relieved the creditors of the necessity of compliance with 17-4009 as a condition precedent to maintenance of the suit against the director.
The general rule on the subject is stated in 13A Fletcher, Cyclopedia Corporations, perm, ed., as follows:
“§ 6320. Judgment and execution against corporation — General rule.
“Subject to certain more or less well defined exceptions, judgment against the corporation and the return of an execution unsatisfied, are conditions precedent to enforcing the added liability of stockholders.
“If the liability is a primary one, creditors need not first exhaust their remedies against the corporation by recovering a judgment against it and issuing an execution thereon, or otherwise. Where the liability is a secondary one, the general rule is, unless otherwise provided by statute, that creditors cannot proceed against stockholders to enforce their liability until they have exhausted their legal remedy against the corporation by recovery of a judgment against it, and return of an execution wholly or partly unsatisfied, unless they show that this was impossible or would have been useless. . . .
“§ 6322. — Excuses for failure to obtain judgment or execution.
“It is generally held that the rule requiring the recovery of a judgment against the corporation and the return of an execution thereon unsatisfied before suing a stockholder does not apply when such steps are for any reason impossible, or when they would be useless, or where involving unnecessary delay and expense, as where there is only one stockholder. . . . [pp. 226-227] Nor, according to the weight of authority, does the rule apply where the corporation is otherwise shown to be insolvent, or is notoriously so. As the law does not require the doing of a useless thing, where it is shown that the corporation has no assets, creditors may proceed against the stockholders without bringing such preliminary action, even if the liability is secondary.” (pp. 228-230.)
Stocker v. Davidson, 74 Kan. 214, 86 Pac. 136, supports the foregoing. There the trustee in bankruptcy of an insolvent corporation brought suit against certain stockholders to enforce a statutory liability which was in the nature of a contractual obligation. Among other things the defendant stockholders asserted liability could be enforced against them only after judgment and unsatisfied execution against the corporation had been obtained. In rejecting that defense this court quoted approvingly the ancient maxim that the law does not require the doing of a vain thing.
In the case at bar, prior to the time the petitions were filed, appellees were advised in writing by Mr. William K. Ong of the financial condition of Economotels and Standard Buildings. Mr. Ong, an attorney, was an officer or director and a full time employee of the two corporations. He also acted as attorney for the Poynters at trial level in this litigation. In the letter to appellees Mr. Ong reviewed the financial losses sustained by the two companies. His summation was: “This whole thing has been an unfortunate and disastrous mess.” He concluded by saying, “In a nutshell, Morris, the company is defunct, and there is no hope of collecting a judgment. Several judgments have been taken and executions returned with no goods found’ endorsement. Most companies have gone ahead this far so that they can take their tax write-off.”
At trial the court judicially noticed that in the same court in four separate suits judgments had been entered against the three defendant corporations and in each of the suits executions had been issued and returned unsatisfied.
Under these circumstances, of which appellees were fully aware when they commenced these actions, preliminary suits against the insolvent corporations would have been useless and would only have added delay and expense.
We think that in enacting 17-4009 the legislature simply had in mind codification of the common law rules previously in vogue. The reason for the proviso, wherever found, is obvious — the creditor looking to the individual stockholder or director for recovery of corporate debt must first exhaust his remedy against the corporation and against corporate assets. But when the defunct nature of the corporation is fairly established and the futility of suit is apparent, then observance of the proviso serves no purpose and the extra expense and delay incident thereto can have no justification.
We hold that compliance with 17-4009 is unnecessary where it would be useless.
Appellant challenges the sufficiency of the evidence to support the trial court’s findings No. 25, 26, 27, and 28. Here the trial court found the three corporations were undercapitalized, that they were operated under appellant’s sole direction and control, were used by him as vehicles to carry out his personal business ventures and were his alter ego. Based on these and other findings, the trial court concluded appellant’s conduct in the operation of his various corporations so that creditors were left no resources was in legal effect a fraud; the court further concluded the corporations were mere shams for the furtherance of appellant’s individual purposes.
Appellant recognizes the well-established rule that undercapitalization may be a factor in a determination to disregard corporate entity (see anno. 63 A. L. R. 2d 1051) but contends the evidence fails to support the trial court’s findings. We cannot agree. A Parsons banker who did business with the Poynters testified on this point. He required the Poynters’ personal signatures when dealing with the corporations. Although he concluded their capitalization was adequate, he prescribed a formula for determining adequacy of corporate capitalization, stating it to be between two or three times the monthly overhead expenses. Appellees produced pertinent figures on the subject, which we need not repeat. It is sufficient to say that from the beginning none of the corporations enjoyed robust financial health, and measured by the formula given, capitalization was inadequate, and the finding to that effect was amply supported in the evidence. It is apparent from the trial court’s opinion that inadequate capitalization was only one circumstance given weight in the determination to disregard cor porate entity, and we are not called upon to decide whether it alone was sufficient to support the ultimate ruling.
Appellant also argues the evidence fails to support the alter ego finding of the court. First we should examine applicable law.
In 18 Am. Jur. 2d, Corporations, the following appears:
Ҥ 14. Disregarding corporate entity, generally.
“The doctrine that a corporation is a legal entity existing separate and apart from the persons composing it is a legal theory introduced for the purposes of convenience and to subserve the ends of justice. The concept cannot, therefore, be extended to a point beyond its reason and policy, and when invoked in support of an end subversive of this policy, will be disregarded by tire courts. Thus, in an appropriate case and in furtherance of tire ends of justice, a corporation and the individual or individuals owning all its stock and assets will be treated as identical.
“The principle of piercing the fiction of the corporate entity is, however, to be applied with great caution, and not precipitately. While corporate entities may be disregarded where they are made the implement for avoiding a clear legislative purpose, they will not be disregarded where those in control have deliberately adopted the corporate form in order to secure its advantages and where no violence to the legislative purpose is done by treating the corporate entity as a separate legal person. . . .
Ҥ 15. Particular applications of principle of disregarding corporate entity.
“Each case involving disregard of the corporate entity must rest upon its special facts. The corporate entity is generally disregarded where it is used as a cloak or cover for fraud or illegality, or to work an injustice, or where necessary to achieve equity. . . .
“. . . Where the corporate fiction is merely an alter ego or business conduit of an individual, it may be disregarded in the interest of securing a just determination of an action.” (pp. 559-562.)
In 1 Fletcher, Cyclopedia Corporations, perm, ed., this discussion appears:
“§ 41. Disregard of the corporate entity — In general.
“The corporation may be disregarded as a form or a ‘fiction’ and the ultimate party regarded in law and fact, when necessaiy to the justice of the case.
“. . . a corporation will be looked upon as a legal entity as a general rule, and until sufficient reason to the contrary appears; but, when fire notion of legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association of persons.
“§ 41.1. — Alter ego
“Another rule is that, when the corporation is the mere alter ego, or business conduit of a person, it may be disregarded. The theory of alter ego has been adopted by the courts in those cases where the idea of the corporate entity has been used as a subterfuge and to observe it would work an injustice. To establish the alter ego doctrine it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud." (pp. 166-175.)
Thus we see the doctrine of alter ego fastens liability on the individual who uses a corporation merely as an instrumentality to conduct his own personal business, such liability arising from fraud or injustice perpetrated not on the corporation but on third persons dealing with the corporation. Under it the court merely disregards corporate entity and holds the individual responsible for his acts knowingly and intentionally done in the name of the corporation (see 3 Words and Phrases, perm, ed., Alter Ego, p. 423, et seq.).
From the evidence we glean the following in support of the trial court’s findings. The buildings in which all three corporations conducted their business was initially leased by appellant as an individual from the federal government. This lease was never transferred or changed by him throughout the corporations’ tenure in the building. Corporate undercapitalization has already been mentioned. Appellant contributed what little capital there was. Apparently, as to one of the corporations, the capitalization consisted only of his promissory note. When each corporation ceased functioning, whatever assets it had on hand, including material and equipment, were transferred to the next successive corporation. All of them were engaged in building structures of the same general type. No consideration was paid for these transfers and no arrangement was made toward payment of unsecured creditors of the prior corporation. An airplane initially belonging to Economotels was thereafter used by Standard Buildings and Modern Structures and finally sold and the proceeds applied upon an S. B. A. loan which appellant had personally guaranteed. When Modern Structures ceased activities its remaining assets were sold and the proceeds turned over to Poynter Motors and used by it to pay on a bank loan personally guaranteed by appellant. He transferred funds back and forth at will between the various corporations, including Tower Bowl and Poynter Motors. This juggling of assets could scarcely have served the corporation whose funds were being diverted but would be strong indication appellant regarded all funds as his own. The rent for the building used by the three corporations was paid through Poynter Motors under some kind of vague arrangement made by him as president of Poynter Motors, Standard Buildings and Modern Structures. Appellant was an officer in all of the corporations in volved, set the policies and made all final decisions. He received varying amounts not in excess of $14,000 as salary each year. No board of directors’ meetings of the corporations were held. Corporate reporting was largely disregarded. In his testimony, although he had difficulty in remembering which corporate office he filled in each, he stated he was the policymaking person; he described Economotels as a "vehicle” corporation.
The foregoing amply supports the challenged findings and conclusions of the trial court concerning alter ego. Certainly appellant conducted business with such unity of interest and ownership that the separate personalities of the corporations and of himself as an individual no longer existed. And if the acts were treated as those of the corporations alone an inequitable result would follow. Appellant himself disregarded corporate entity and we think the trial court was justified in doing the same.
We turn now to the cross-appeal. Appellees assert the trial court erred in its findings absolving Rosalee Poynter of liability. They argue the findings made, that she did not exercise any control over the corporations and her activities were those of an automaton, were not supported by substantial evidence. This is hardly the approach to be taken on appellate review. The burden of proof on this factual issue was on appellees. Here, upon evidence which was not wholly undisputed and which was subject to different interpretation, the trial court found appellees had failed to sustain that burden. There was some evidence in the record tending to support a different finding but it is not our province to weigh and redetermine the matter anew. Although Mrs. Poynter owned all the stock in the last two corporations, this fact is not of itself sufficient to treat those corporations as her alter ego and disregard the corporate entity (18 Am. Jur. 2d, Corporations, § 13, p. 558; 1 Fletcher, Cyclopedia Corporations, perm, ed., § 41.3, pp. 189-190).
We have discussed the extent of control and domination of the corporations by Poynter. Mrs. Poynter’s role in their operation and management seems limited at most. In informal family discussions Poynter would mention business affairs in a general way and about half the time would explain to her what was happening; he would tell her what papers to sign and she signed; she had nothing to do with the active management of the business carried on by the three corporations; she worked in the bowling alley operated by Tower Bowl and drew no salary or dividends from the three corporations; the stock was placed in her name principally to avoid probate in case of her husband’s death. It appears Mrs. Poynter had very limited information on the corporate activities and participated not at all in their direction, which was under sole control of her husband. All this supports the trial court’s negative finding against cross-appellants in view of which it may not be set aside.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmen’s compensation case challenging an award of compensation to the claimant by reason of an occupational disease which involves the application of K. S. A. 44-5a04.
The claimant, William O. Linville, commenced employment with the respondent, Steel Fixture Manufacturing Company, on September 15, 1967. He was employed as a general laborer with duties in the assembly of cases manufactured by the plant, and in helping to crate completed assemblies for shipment. Druring his employment from September to December, 1967, a part of his responsibility, together with other employees, was to provide a “brushed” finish on stainless steel tubing and bronze tubing used for rollers in the front of roller shelving assemblies. This required the use of a sanding machine on the stainless steel tubing and the bronze tubing.
During the latter part of November the claimant developed redness on his hands and forearms, which gradually intensified into a rash and then developed into some small sores which became secondarily infected. As a result he was sent to Dr. Hubert L. Harris, a dermatologist in Topelca, Kansas, for treatment.
Dr. Harris diagnosed the difficulties which claimant was experiencing as contact dermatitis, and took him off work treating him for the contact allergy. The cause was attributed to the dust created by the sanding of stainless steel which had a high content of nickel.
The respondent paid total temporary compensation at the rate of $49 per week after December 19, 1967, when the claimant was first disabled by reason of the allergy, to the time of his re-employment on March 25, 1968.
Thereafter the claimant was able to carry on his work as a general laborer in the factory at the same wage upon the agreement of the claimant, the respondent and his treating physician. When the claimant was i-e-employed his contact dermatitis was controlled, but not cured. His hands and forearms were pink and tender but steadily improving. To avoid aggravating the claimant’s allergy he was no longer permitted to work at the sanding machine with stainless steel or bronze tubing, in accordance with the treating physician’s recommendation.
The claimant remained at his work until the 29th day of April, 1968, when he became ill with what appeared to be a bad cold. At this time the claimant’s hands were steadily improving and there was no recurrence of rash or blisters evidencing contact dermatitis. Dr. Harris during May, 1968, considered the claimant’s condition to be controlled but not well, and was about to release the claimant from therapy when he had a flare-up of the contact dermatitis. This flare-up occurred on or about May 31, 1968.
Dr. Harris testified that once before, during the claimant’s first absence from employment while he was treating him, he was about to release the claimant for work but the claimant experienced a flare-up of the contact dermatitis.
On June 3, 1968, Dr. Harris saw the claimant for the dermatitis condition which flared up on Memorial Day and treated him.
The claimant has not returned to work since that time. Dr. Harris kept him off work and treated him regularly until the 1st day of August, 1968. At that time his condition was described by Dr. Harris to be pretty good but he was not completely well, and he was not totally off medicine.
Dr. Harris testified:
“It has not been my experience that the body seems to break down after this contact dermatitis. I would not expect him to have any permanent effects from this at all but many things that would not have irritated it before you have this allergic dermatitis begin to irritate you. I think once a man has been through contact dermatitis then I don’t think that his kind of employment should be one that exposes him to strong chemicals. In other words, I wouldn’t like for him to go and be a painter or go out to Goodyear and work with rubber. He could, of course, be a truck driver or things like that.
“I think his prognosis is real good. When I saw Mr. Linville on the 21st of May he was in pretty fair shape, making an excellent recovery, and was still good. After that he had a major flare-up, before June 3rd, on May 31st in fact. I had seen him on April 23, April 30 and May 7, before May 21 and he was doing well. Fortunately, he has gotten by without any major complications.
“He looks like he is going to get a total recovery. I foresee this man being able to get back and doing full time work in the near future but you don’t like to put them out too soon, you see. I wouldn’t want him working with something that is a particularly active chemical. I would say that I can turn him loose in the next month or two from this first day of August, 1968, that’s just a guess. I don’t know anything about his lungs. One time he had a bad cold and I think I told him to see his private doctors for that.
“Q. And you would think that permanently he has an industrial disability rating?
“A. I would say that once he’s well of this, he should be well.”
At the hearing before the examiner on July 9, 1969, it was stipulated between the parties that the claimant was released by Dr. Harris from treatment for his dermatitis of the hands on December 6, 1968, three days before the original award was entered by the examiner. It was further stipulated that at the time of claimant’s release on December 6, 1968, the treating physician did not rate the claimant as having permanent partial disability as a result of the contact dermatitis of his hands.
On May 21, 1968, the claimant saw Dr. Andre Baude, a medical doctor and specialist in internal medicine and chest in Topeka, for his lung condition. He related the history of his contact dermatitis to Dr. Baude and the treatment by Dr. Harris. The claimant denied all illnesses but complained that for the past few weeks he had been somewhat short of breath and coughed. As a result of Dr. Baude’s examination on May 21, 1968, he diagnosed the claimant as having tuberculosis, emphysema and fibrosis. He recommended that the claimant be transferred to the chest clinic for treatment starting the next week. His diagnosis was that the tuberculosis was probably active. A chest X-ray was taken and showed tuberculosis moderately advanced and probably active.
The claimant was seen shortly before the 1st day of August, 1968, complaining of shortness of breath. The tuberculosis test received was positive. Dr. Baude said:
“. . . He should not work and did quit smoking. In regard to his availability to labor I believe this patient is totally disabled and will be for some time. I can not tell for how long it may be.
“It is my judgment that last September, 1967, when this man commenced to work that he was at that time suffering from some substantial lung problems. I would think that the difficulty with lungs, which I’ve identified as tuberculosis, existed as long ago as last September. The emphysema which I have described is visible on the xrays and appears very differently from the tuberculosis. The emphysema results from the fact that the lung has no elasticity and is not able to empty. The fibrosis is scar tissue and it would be mixed with the hardening and lack of elasticity.
“I would not associate the tuberculosis itself with his employment. It could make it worse but the tuberculosis, I would think, is a result of a long term difficulty.
“Mr. Linville never had a well lung system during his employment.
“I have no idea that there is any connection between the contact dermatitis that this man had and the problem that he has in his thoracic cavity. There’s no connection as far as I know.”
On December 9, 1968, the examiner found:
“It is found that the claimant has suffered under K. S.A. 44-5a01 and 44-5a02 a compensable occupational disease by reason of dermatitis, arising out of and in the course of his employment from and after December 18, 1967, until March 25, 1968, a period of 13.57 weeks for which he is entitled to temporary total disability. For the period of March 25, 1968, until April 29, 1968, the claimant had returned to work and was working full time. From April 29, 1968, until June 3rd, 1968, the claimant was off work for causes other than his dermatitis, but during this period of time he remained in the care and under the treatment of Dr. Harris for the dermatitis condition which was improving up until the latter part of May, when he suffered a flare-up of the dermatitis condition on his hands and was again placed under more intensive treatment by Dr. Harris. During the period December 18, 1967, to August 1, 1968, the claimant remained under the treatment for his dermatitis with Dr. Harris. From June 3, 1968, to August 1, 1968, the claimant has suffered another period of temporary total disability, a period of 8.29 weeks and that thereafter the claimant has suffered and continues to suffer 50% general bodily disability by reason of disablement for a compensable occupational disease from his capacity to perform his work in the last occupation in which he was exposed to the hazards of such disease. . . . While it is probably true in this case that the claimant, were it not for other physical disabling factors, could have returned to1 other work and would remain in other work at the present time iiregardless of his dermatitis, the fact remains that the claimant is not able to work at the present time and therefore claimant’s capacity to earn the same or higher wages than he did at the time of his disablement, by whomever employed from any trade or employment, is not relatable to the amount of compensation due in this matter because the claimant is not employable because of other causes. The fact still remains that the claimant is 50% disabled from his last occupation, in which he was injuriously exposed to the hazards of his occupational disease and the fact that he is not able to pursue other types of employment in which he would not be exposed to the conditions which brought on the occurrence of his occupational disease, cannot be used to deny him compensation at this time.
“It is further found that the respondent should pay the medical expenses incurred by the claimant for the treatment of his occupational disease of dermatitis, consisting of the bill of Dr. Harris and all pharmaceutical bills relating to prescriptions provided by Dr. Harris for the treatment of his dermatitis. The respondent should pay all future medical and hospital expenses related to his dermatitis until such time as he is released by Dr. Harris from treatment for dermatitis.
“It is further found that the claimant is suffering from tuberculosis and emphysema. Tuberculosis is a communicable disease and as such is not compensable under the Workmen’s Compensation Act, either as an occupational disease or as a personal injury by accident. Emphysema is not listed as a compensable occupational disease. It is found that the claimant has not borne the burden of proving that his emphysema was caused by personal injury by accident arising out of and in the course of his employment. Therefore compensation and medical expenses involved in the treatment of any and all lung conditions suffered by the claimant involving tuberculosis, fibrosis and emphysema are hereby denied.”
Accordingly, an award was entered for total temporary disability from December 18, 1967, until March 25, 1968, and from June 3, 1968, until August 1, 1968; for 50% permanent partial disability until the further order of the director, for a period not to exceed 415 weeks from the date of the accident; and for medical expenses and the cost of the deposition of Dr. Harris.
Upon review by the director on the 29th day of June, 1969, the director found the award of the examiner to be in accord with the laws of Kansas and affirmed the examiner’s award. On appeal the district court on the 23rd day of April, 1969, adopted the findings and award of the examiner, the order approving the same by the director of workmen’s compensation and entered judgment awarding compensation by adopting the findings and award of the director.
Appeal has been duly perfected by the respondent and its insurance carrier, and a cross appeal was taken by the claimant.
On the 10th day of December, 1969, the claimant’s cross appeal was dismissed under Rule No. 8 (c) of the Supreme Court (203 Kan. xxrx) for failure of the claimant (appellee) to file a brief as required by the court.
On April 6, 1970, one day prior to the argument of this case on appeal in the Supreme Court, the claimant filed a belated brief consisting of two typewritten pages. The case was argued on April 7, 1970, and on the 10th day of April, 1970, the claimant filed with the clerk a motion to reinstate his cross appeal, a motion to add and designate additional material to the record, and a brief in support of his motion to reinstate the cross appeal.
The claimant’s untimely motions to reinstate the cross appeal and add additional material to the record are denied.
The issue here presented is one of first impression. The examiner, the director and tire trial court all relied upon two recent cases decided by this court: Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 435 P. 2d 3; and Ochoa v. Swift & Co., 200 Kan. 478, 436 P. 2d 412. It was the opinion of the examiner and the director that the Knight case had changed the workmen’s compensation law in its application to occupational diseases.
The applicable sections of the workmen’s compensation act relative to disablement or death of an employee or workman resulting from an occupational disease were quoted and carefully analyzed in the Knight case. Without again reviewing these sections as undertaken therein, it will be assumed the reader has familiarized himself with these statutory sections. In Knight the workman who was disabled by reason of an occupational disease earned an average weekly wage of $92.09 for approximately 49 hours of work per week before the injury, and was able to earn and had earned after the injury the sum of $85.60 per week on an average of 49 hours per week. Compensation was allowed on the basis of the difference in his weekly earning capacity, and this was affirmed on appeal. In the opinion the court said:
“It would be unwise here to attempt to postulate general rules applicable to all categories of occupational disease cases and we undertake no such endeavor. However, as applied to the facts in the case at bar, and keeping in mind our workmen’s compensation statutes are to be construed as a single comprehensive act, we think the foregoing stautory recitation evinces certain legislative intent: Partial disability from occupational disease is compensable; such compensation is payable as provided in the existing workmen’s compensation act except as otherwise provided in the occupational disease aspect of the act; the term ‘disability’ when attributable to occupational disease is separately defined and it means the state of a workman being actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease; and finally, the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, by whomever employed, from any trade or employment, is relatable to the amount of compensation due, to the extent that the award therefor may be cancelled and the compensation ended.
“If the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, from any trade or employment, is relatable to the amount of compensation due, so that the award may be cancelled, then it logically follows that his capacity to earn wages from any trade or employment is relatable to the amount of compensation due, to the extent the award may be diminished accordingly. We believe K. S. A. 44-510 (3) (c) (24), as herein construed in connection with other provisions of Chapter 44, Article 5a, provides a practicable and a fair method for such computation.” (p. 209.)
A similar case was before the court in Ochoa v. Swift & Co., supra. There the claimant’s disability arose by reason of an occupational disease contracted on the job. He was 64 years of age, and the employer refused to reinstate the claimant because if he returned to his regular work his legs would “break out” and he would be forced to quit work again. A finding of 75% permanent partial disability by reason of the occupational disease was supported by substantial and satisfactory evidence and the award affirmed on appeal. There was no evidence the claimant was able to procure, perform and retain work of the same type and character as he was performing at the time he was afflicted.
The facts in the instant case do not fit the situation presented in either the Knight or the Ochoa cases.
Here the facts are that the claimant suffered contact dermatitis. This is a compensable occupational disease. (K. S. A. 44-5a02.) Dermatitis is defined in K. S. A. 44-5a02 7., as follows:
“7. Dermatitis, that is, inflammation or infection of the skin due to oils, cutting compounds or lubricants, dust, liquids, fumes, gases, vapors, or solids.”
The evidence in the instant case supports the finding that the claimant suffered contact dermatitis caused by sanding stainless steel rollers in the factory, after which he suffered temporary total disability for approximately three months, during which period temporary total compensation was paid and medical service provided. The claimant returned to work in tire same employment, for the same employer, at the same wages and continued to work for approximately one month without having a recurrence of his dermatitis. Thereafter the claimant stopped working by reason of a lung ailment during which time his contact dermatitis flared up and for which the treating physician continued to treat him until August 1, 1968. Although challenged by the appellants, the evidence is sufficient to support a finding that the claimant suffered temporary total disability from June 3, 1968, to August 1, 1968, attributable to the occupational disease.
The claimant stipulated that at the time of his release on December 6, 1968, the treating physician attending to his contact dermatitis did not rate the claimant as having permanent partial disability as a result thereof, and the examiner s finding adopted by the director and the trial court was that the claimant’s permanent disability was attributable to a lung condition — tuberculosis, emphysema and fibrosis — which was not related to his employment.
Under these circumstances an award based on a finding that the claimant has suffered and continues to suffer 50% general bodily disability by reason of disablement for a compensable occupational disease is erroneous.
K. S. A. 44-5a04 provides:
“Except as hereinafter otherwise provided in this act ‘disablement’ means the event of an employee or workman becoming actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which injuriously exposed to the hazards of such disease, and ‘disability’ means the state of being so incapacitated: . . .” (Emphasis added.)
Under the above statute compensation is allowed only if the incapacity is caused by the occupational disease. The statute does not apply when the cause of the incapacity to work is some outside or extraneous disablement.
If the award of 50% permanent partial disability were approved under the theory applied by the lower court, an award would have to be allowed under similar facts where the claimant suffered an automobile accident outside of his employment. The disablement from tuberculosis and emphysema was found to be the cause of the claimant’s incapacity for re-employment, or prevented him from seeking or obtaining other employment. On the facts in this case the occupational disease was not attributable to the cause of his unemployment.
There is no question on the record here presented the occupational disease from which the claimant suffered was such that he would still be employed by the respondent in work similar to that which he had at the time he contracted the disease, and at the same wages.
The judgment of the lower court is affirmed in all respects, except the allowance of 50% permanent partial disability, as to which it is reversed.
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The opinion of the court was delivered by
Price, C. J.:
Defendant, Larry L. Wheat, appeals from a conviction of grand larceny as defined by K. S. A. 21-533.
Essentially, only one question is raised — did the trial court err in refusing to give a requested instruction on entrapment?
In September, 1968, an Overland Park police officer, Lequire, became acquainted with defendant through a mutual friend while at a drive-in restaurant in Kansas City, Missouri. Defendant was unaware of Lequire’s true identity. During the conversation Le-quire learned from defendant that he was engaged in the business of “stripping cars” across the state line in Johnson county. Lequire reported this information to his superiors and was instructed to keep in contact with defendant in order to see what he could uncover.
On a night about ten days later Lequire revisited the restaurant. Defendant was there, and during the conversation told Lequire that he was going out to “fill orders” that night and that he had so many “orders to fill it would take him all night”. It was agreed that Lequire would accompany him, and the two started out for Johnson county in defendant’s car — defendant’s purpose being to “strip cars” so as to enable him to take care of his “unfilled orders”. They drove around for some time — during which defendant “inspected” several different cars, but apparently did not see anything that he wanted. Finally, after further prowling, defendant spotted a box in the rear seat of a car parked next to one he had been “inspecting” on foot. He reported this to Lequire — who had remained in defendent’s car, and told him that he was going to break in and steal the box. He instructed Lequire to start the engine so as to be prepared to drive off as soon as he heard defendant close the car trunk. Defendant stole the box, placed it in the trunk of his car, and the two drove off. A few blocks away defendant took over the driving and drove to his sister’s apartment where they opened the box. It contained some sterling silver and wedding presents — later identified by the owner, and valued at about $300.00. Defendant was not interested in the articles, and Lequire purchased them from him for five dollars and later turned them in to his superior officers. This prosecution for grand larceny followed.
Throughout the trial — at which defendant testified — he attempted to establish that although it was his intent to go to Johnson county to strip cars — once there, he had abandoned the idea, and was in fact lured back into committing larceny by the repeated urgings and solicitations of Lequire.
On the subject of entrapment the jury was instructed—
“In considering the defense of entrapment, the court advises you that the law does not tolerate a person, particularly a law enforcement officer, generating in the mind of a person who is innocent of any criminal purpose, the original intent to commit a crime thus entrapping such person into the commission of a crime which he would not have committed or even contemplated but for such inducement, and where a crime is committed as a consequence of such entrapment, no conviction may be had with a person so entrapped as his acts do not constitute a crime.
“When law enforcement officers are informed that a person intends to commit a crime, the law in the interests of law enforcement and the suppression of crime permits the officers to afford opportunity for the commission of the offense and to lend the apparent cooperation of themselves or of a third person for the purpose of detecting the offender. When such a practice is followed by peace officers, if the suspect himself originally and independently of the officers intends to commit the acts constituting a crime, and if in the pursuit of such intent he personally does every act necessary to constitute a crime on his part, his guilt of the crime thus committed by him is not affected by and he has no defense in the fact that when the acts are done by him an officer is present and provides the opportunity for the commission of the offense.
“In other words, a defendant can rely on the defense of entrapment when he is induced to commit a crime which he had no previous intention of committing, but cannot rely on the defense when he has a previous intention of committing a crime and is merely afforded the opportunity to complete the crime by the peace officer.”
Defendent concedes the instruction is a correct statement of the law, but contends that it did not go far enough and that the court erred in refusing to give the following requested instruction—
“ENTRAPMENT is the conception and planning of an offense by an officer (or officers) and the procurement of its commission by one who would not have perpetrated it, except for the trickery, persuasion, or fraud of the officer (or officers).
“The fact the defendant made the initial suggestion to commit an offense does not preclude the entrapment defense where the evidence shows that he thereafter abandoned his original scheme and was lured back into it by repeated solicitations of the entrapping officer.
“If the jury believes that the defendant was entrapped, it is your duty to return a verdict of not guilty.”
We agree that the instruction given correctly states the general rule relating to entrapment. We further agree there could be instances where the rule stated in defendant’s requested instruction would be applicable — provided, of course — the evidence shows an abandonment of the original scheme and that a defendant was in fact lured back into it by the repeated solicitations of the entrapping officer (21 Am. Jur. 2d, Criminal Law § 144, p. 214). But such is not this case. At their first meeting officer Lequire learned that defendant was in the business of stripping cars. At their second meeting defendant stated that he was going out that night to “fill his orders”. From the evidence the only “abandonment” was that instead of stealing car parts defendant stole the box from the interior of a car. Defendent went to Johnson county intending to commit larceny — and he did so. The intent originated in his mind — and there was no evidence of an abandonment of that intent. It was not error to deny the requested instruction.
The only other point raised by defendant relates to the application of the habitual criminal statute in imposition of sentence. In his brief and on oral argument, however, he concedes that the case of Perrin v. State, 198 Kan. 650, 426 P. 2d 39, syl. 2, decides the question adversely to his contention. We agree.
No error being shown — the judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
The constitutionality of an ordinance requiring the operator of a motorcycle or one riding as a passenger to wear a crash helmet is the subject of this appeal. The trial court upheld the conviction of the defendant on stipulated facts that the defendant did, on May 1, 1968, and on May 14, 1968, operate a motorcycle without headgear as required by the ordinance.
The ordinance provides:
“No person shall operate or ride as a passenger on a motorcycle or motor driven cycle unless he is wearing a crash helmet or other adequate protective headgear of a type authorized and approved by the State Highway Commission of the State of Kansas. . . .”
The ordinance became effective on July 14, 1967, and was enacted just after July 1, 1967, the effective date of a state statute (K. S. A. 1967 Supp. [now 1969 Supp.] 8-574b) worded in almost identical language to the ordinance.
The enactment of the ordinance in question was in keeping with the rule set forth in City of Kansas City v. Tipton, 193 Kan. 651, 396 P. 2d 350.
We shall treat the question here presented as one dealing with the state legislative enactment.
In reviewing questions of constitutionality courts are not to be concerned with the wisdom, expediency, necessity or desirability of a legislative enactment. The legislative history of these laws, in this state and others, demonstrates that they have dedicated proponents and equally dedicated opponents. The question before us is not what the legislature should do but what the legislature can do.
In Berman v. Parker, 348 U. S. 26, 99 L. Ed. 27, 75 S. Ct. 98 (1954), the United States Supreme Court said:
“. . . Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, . . .” (p. 32.)
In reviewing statutes such as these, the court begins with the proposition that all presumptions are in favor of their validity. {State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 77, 410 P. 2d 308; and Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128.) The court does not sit in judgment on the merits of such legislation. If the statute here challenged does not contravene significant constitutional or inherent rights of individuals, if the classification on which it is based is reasonable, if it is within the scope of the police powers of the state, if it is appropriately related to a proper purpose of such police power, the statute is not to be invalidated by the judicial arm of government.
It appears from the appellant’s brief that two basic challenges are made to the validity of the statute: (1) That it protects the motorcycle driver or rider only against himself and is therefore beyond the scope of the police powers of the state; and (2) that it transgresses constitutional or inherent rights of the appellant without corresponding benefit accruing to the general welfare of the public. Both contentions rest upon the appellant’s interpretation of the statute that it does no more than protect the cycle drivers and riders from the consequences of their own actions.
Can it be said that the statute in no way concerns or benefits other persons, particularly other users of the public highways?
Both the ordinance and the statute require protective headgear for motorcyclists. The very term “protective headgear” implies protection of the head of the wearer. It must be conceded the statute is intended primarily to diminish the severity of the accident upon the victim himself, but can it be said that such safety requirement does not affect or concern at all other users of the public highway?
It is an elementary rule of law that the right to operate a motor vehicle upon a public street or highway is not a natural or unrestrained right, but a privilege which is subject to reasonable regulation under the police power of the state in the interest of the public safety and welfare. (Lee v. State, 187 Kan. 566, 358 P. 2d 765.)
Statistics for the past few years indicate dramatically that there has been a tremendous increase in the number of motorcycles operated by American motorists. An analysis of the vehicle registration figures establishes that motorcycle registrations have increased 210 percent from 1961 to July, 1967, compared to an increase of only 26 percent for all motor vehicles during that time. (Motorcycle Facts, National Safety Council Statistics Division, July, 1967.)
While motorcycles equal only 2 percent of the registered motor vehicles in the United States, motorcycle accidents account for 3K percent of all motor vehicle fatalities. (Motorcycle Facts, supra.) On a vehicle-mile basis, a persons chances of being killed while riding a motorcycle are twenty times greater than those of a person riding in another type vehicle. (Dark, Your Youngster and the Motorcycle, Today’s Health, May, 1967, p. 21.)
In 1965 the number of persons killed per 100,000 registered motorcycles was two and one-half times that of the corresponding rate for all other motor vehicles. (The Insurance Advocate, August 12, 1967.)
Statistics relating to injuries per accident, comparing motorcycles to all vehicles, are equally grim. As a national average only 9 percent of motor vehicle accidents result in personal injury or death, the balance involving only property damage, while studies show that between 80 and 90 percent of all motorcycle accidents cause death or personal injury to the cyclist. (Motorcycle Facts, supra.)
The fact that motorcycle accidents produce a greater number of injuries than do other vehicle accidents is even more striking when one considers that other vehicles have generally greater passenger capacities and thus expose potentially more passengers to possible injury per accident than do motorcycles. (See, 9 For the Defense No. 1, January, 1968.)
The foregoing statistics emphasize that our public highways are not deserted these days, so it is apparent the legislature was not concerned with a solitary cyclist on a deserted country road losing control of his cycle. If the loss of cyclist control were to occur on a well traveled highway, anything that might cause the driver to lose control may well tragically affect another driver. If the loss of cyclist control occurs on a crowded freeway, with its fast moving traffic, the veering of a cyclist from his path of traffic may pile up a half dozen vehicles. The question that arises is whether the presence of a protective helmet would, in some cases and under some circumstances, make less likely the diverting of attention or loss of control of the cycle by its driver. It cannot be disputed that the driver of a motorcycle is somewhat more exposed to flying objects than someone operating an enclosed vehicle.
It does not tax the intellect to comprehend that loose stones and pebbles on the highway kicked up by the wheels of passing vehicles traveling at high speeds, or fallen objects such as windblown tree branches, against which the operator of a closed vehicle has some protection, could so affect the operator of a motorcycle as to cause him momentarily to lose control and thus become a menace to other users of the highway. (State v. Lombardi,_R. I._, 241 A. 2d 625 [1968].) Cyclists hit with hard-shelled flying beetles, bees or birds could possibly lose control of their cycles, causing damage and injuries to others. (People v. Bielmeyer, 54 Misc. 2d 466, 282 N. Y. S. 2d 797.)
A motorcycle is a comparatively light machine which is delicately balanced and operated. There are special conditions, situations or occurrences which could cause a driver to be propelled off the road or into the opposite lane causing damage to other vehicles or property or injuries to passengers or pedestrians.
Far more than with an automobile or a truck the very nature of a motorcycle requires that a rider be able to control his vehicle at every second. The successful and enjoyable operation of a motorcycle can only be had when there is a true “man-machine team.” The “two” are more truly “one” than with any other means of conveyance. This fact no doubt adds to the enjoyment, excitement and popularity of motorcycling. However, it also means the rider must always wear the recommended clothing and equipment for his protection, as well as for the protection of others. This the state has recognized and has a right to insist upon. (People v. Bielmeyer, supra.)
The Michigan Court of Appeals in Motorcycle Assn. v. State Police, 11 Mich. App. 351, 158 N. W. 2d 72, has termed the argument justifying the helmet law because it protects against flying objects a “strained effort to justify what is admittedly wholesome legislation” adding the suggestion that “If the purpose truly were to deflect flying objects, rather than to reduce cranial injuries, a windshield requirement imposed on the manufacturer would bear a reasonable relationship to the objective.” (pp. 356, 357.)
Even so, choosing between available alternatives in promoting highway safety is for the legislature, not for the courts. If requiring helmets is a protection against motorcycle drivers being hit and distracted by flying objects, such requirements need not be the only, or even the best way to accomplish the purpose of preventing such distraction to make it a proper exercise of the police power of the state.
Over and above the interest the state has in protecting other users of the highways from the dangers of involvement in an accident is the fact that other users of the highway have an interest in the seriousness of the consequences of accidents as well as in the frequency of mishaps. Promoting highway safety is not to be limited to the prevention of accidents alone. It can include efforts to reduce the serious consequences of such accidents. There is a great difference between a mashed fender and an accident causing permanent injuries or death — a difference to the victim, to other drivers involved in the accident, and to the community.
It is readily apparent that other motorists are affected by the consequences of an accident, and that is the test. Therefore, the police power of the state may be exercised to minimize the consequences of collisions and accidents as well as to decrease the number of collisions and accidents.
We conclude the requirement of protective headgear for the exposed operator of a motorcycle bears a real and substantial relationship to public safety generally on our public highways and streets.
Forty-one states now have helmet laws. (American Association of Administrators, Vol. 35, No. 3, p. 8, Motor Vehicle Law Review.) The vast majority of the states in which the constitutionality of the helmet law has been challenged have upheld it. A vigorous opinion to the contrary is Motorcycle Assn. v. State Police, supra.
The helmet law has been upheld as reasonable by the ruling courts in Louisiana, Massachusetts, North Carolina, North Dakota, Oregon, Rhode Island, Texas, Washington and Wisconsin. (Everhardt v. City of New Orleans, 253 La. 285, 217 So. 2d 400; Commonwealth v. Howie, 354 Mass. 769, 238 N. E. 2d 373, cert. denied 393 U. S. 999, 21 L. Ed. 2d 464, 89 S. Ct. 485; State v. Anderson, 275 N. C. 168, 166 S. E. 2d 49; State v. Odegaard, 165 N. W. 2d 677 [N. D. 1969]; State v. Fetterly,_Or. _, 456 P. 2d 996 [1969]; STATE v. Lombardi, supra; Ex Parte Smith, 441 S. W. 2d 544 [Tex. Crim 1969]; State v. Laitinen,_Wash. __, 459 P. 2d 789 [1969]; Bisenius v. Karns, 42 Wis. 2d 42, 165 N. W. 2d 377 [dismissed on appeal by U. S. Supreme Court for want of a substantial federal question in 395 U.S. 709, 23 L. Ed. 2d 655, 89 S. Ct. 2033; Contra, People v. Fries, 42 Ill. 2d 446, 250 N. E. 2d 149.)
It must be recognized there is a balancing test which occurs between the individual rights infringed and the benefits to the public welfare. In Bisenius v. Karns, supra, the court remarked that the right to be left alone does not include the right to do “one’s thing” on an expressway. The court said:
“. . . There is no place where any such right to be let alone would be less assertible than on a modern highway with cars, trucks, busses and cycles whizzing by at sixty or seventy miles an hour. When one ventures onto such a highway, he must be expected and required to conform to public safety regulations and controls, including some that would neither have been necessary nor reasonable in the era of horse-drawn vehicles.” (p. 55.)
While it must be recognized that the chances of causing injury to others by failure to wear protective headgear are not as great as those resulting from most conduct which is the subject of motor vehicle regulations, the danger does' exist and is a real one. The right to operate a motorcycle without protective headgear does not, in the scheme of things, loom very large when compared with the right of others to the protection from danger on our public streets and highways. We conclude the legislature in passing the questioned statute (and the ordinance adopted by the city of Wichita consistent therewith) has created no constitutional imbalance between the personal liberty of the individual and the interest of the state.
Once the court finds that a statute is within the area of the proper exercise of state police power, it is for the legislature to determine what regulations, restraints or prohibitions are reasonably required to protect the public safety, and only the abrogation of a basic and substantial liberty would justify judicial intervention to set aside the legislative enactment. The concept of public safety is an evolutionary, not a fixed or static proposition. The range of permissible public action in the area of highway transportation has been enlarged, not by the courts, but by the changes that have come in the field of private and public transportation. (Bisenius v. Karns, supra.)
The reasoning in the foregoing opinion is substantially that set forth in Bisenius v. Karns, supra, which we consider persuasive.
It lies within the power of the legislature to adopt reasonable measures for the promotion of safety upon public highways in the interest of motorcyclists and others who may use them. Here the act of the legislature and the ordinance in question, which was adopted pursuant thereto, bears a real and substantial relation to the public health and general welfare and is thus a valid exercise of the police power. The legislation is reasonable, it applies to all equally, and is directly related to highway safety. (Commonwealth v. Howie, supra.)
The judgment of the lower court is affirmed.
Fontron, J., dissents.
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The opinion of the court was delivered by
Fontron, J.:
The sole issue before us centers upon construction of the last will and testament of Berta Mae Truex.
Mrs. Truex died June 22, 1965, being survived by a son, Bennett C. Truex, and a daughter, Ruth Archer. So far as material to the question presented in this case, her will provided as follows:
‘1 hereby give, devise and bequeath my property as follows, to-wit: — Jointly to my son Bennett C. Truex and my daughter, Ruth Archer, all real property, which consists of Lots 12-14-16-18-20-22, Maple, now English Street, B. D. Allen’s Addition, Sedgwick County, Wichita, Kansas and all improvements thereon. All personal property to be divided as Ruth Archer and Bennett C. Truex shall mutually decide. In case of the death of my son, Bennett C. Truex before my daughter, Ruth Archer, all property, both real and personal, shall go to Ruth Archer, or in the case of the death of my daughter, Ruth Archer before my son, Bennett C. Truex, all property, both real and personal, shall go to Bennett C. Truex.”
Bennett Truex died some two years after the death of his mother, but before her estate had been fully probated. Bennett’s widow, Margaret, was appointed executrix of his estate and, on behalf of his estate, filed a petition to compel distribution to his estate of a one-half interest in the real property left by his mother. This petition was resisted by the testatrix’s daughter, Ruth Archer, who was appointed administratrix of her mother’s estate upon Bennett’s death. Both parties to this appeal have stipulated that Margaret’s petition may be treated, for purposes of this appeal, as a petition for the construction of the will of Berta Mae Truex.
The contentions of the respective parties are these: Ruth Archer maintains that the quoted portion of the will creates a joint tenancy with rights of survivorship between Bennett and herself and that she, as the surviving joint tenant, now has full title to her mother’s real estate. On the other hand, Margaret Truex, whom we have been given to understand is Bennett’s sole heir as well as his devisee, contends the will must be construed as creating merely a tenancy in common between Bennett and Ruth, with Bennett’s half interest in the property now being an asset of his estate.
Margaret’s position was rejected in probate court. She thereupon appealed to district court, which found that under the terms of Berta’s will a joint tenancy with right of survivorship was created between Bennett Truex and Ruth Archer, and that upon Bennett’s death the entire fee in the real estate became vested in Ruth. From this decision Margaret has appealed to this court.
In our opinion, the trial court was eminently correct in its construction of Mrs. Truex’s will. No principle of testamentary construction has been more consistently observed by this court throughout the long years of its existence, than this; that in the interpretation of the provisions set forth in the will of a decedent, the cardinal rule which must be followed is to ascertain first, if possible, the testator’s actual intention as expressed in the language of the will, itself. (See cases in 5 Hatcher’s Kansas Digest (Rev. Ed.) Wills, §§ 101-103 and 9B West’s Kansas Digest, Wills, § 439-440.)
The rule is aptly stated in In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689, in these words:
“When a court is called upon to determine the force and effect to be given the terms of a will, the cardinal rule of construction to which all other rules are subordinate is that the intention of the testator as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator. . . .” (p. 438.)
Examining the will of Mrs. Truex we experience no great difficulty in discovering what she intended to accomplish in the arrangement of her affairs. On oral argument the appellant advised us that Mrs. Truex herself prepared the will on a stationery form, filling in the blanks. Our perusal of the document tends to bear out that intelligence. Although the testatrix used no such magic words as “survivor” or “survivorship”, we are nonetheless constrained to say that for a layman, untrained in law and unfamiliar with the technical niceties of legal terminology, she expressed herself surprisingly well and, indeed, quite clearly, in directing the disposition of her property after death.
Despite the absence of incantation, the will, in specific terms, devises all real property jointly to her son, Bennett and her daughter, Ruth. The will then recites: (1) In case of Bennett’s death before Ruth’s, all property shall go to Ruth, and (2) in case of Ruth’s death, before that of Bennett’s, all property shall go to Bennett. This language appeals to us as being plain and unambiguous, requiring no tortured construction to uncover veiled or latent meanings.
There is considerable resemblance between the provisions of the instant will and that which was the subject of dispute in Householter v. Householter, 160 Kan. 614, 164 P. 2d 101. In four of the paragraphs found in the Householter will, specific tracts of real estate were devised to various members of the testator’s family either “jointly” or “to have jointly.” No occult or conflicting terminology was employed by Mr. Householter in drafting his will, and this court held that each of the four devises created a joint tenancy.
In our view the Householter decision is in accord with the general rule stated in 46 A. L. R. 2d Anno-., Will-Joint Tenancy-Presumption, § 5, p. 534:
“Except where the statute may in terms require an express declaration of joint tenancy and is rigidly construed in that regard ... it seems evident that a devise (and likewise, in some jurisdictions, a bequest) made in such terms or conjoined with such provisions as clearly to imply that the estate is to continue in the survivor of the designated persons will be held to create in them a joint tenancy.”
Cases found in support of this general proposition include Pierce v. Baker, 58 N. H. 531, where the testatrix willed all her property to her two daughters, or to the “longest liver of them.” This provision was held to create a joint tenancy in the two daughters with rights of survivorship.
Similarly, in Mundhenk v. Bierie, 81 Ind. App. 85, 135 N. E. 493, a devise of land to "two daughters jointly” was held to create, without further description, a joint tenancy and not a tenancy in common.
The heart of the argument presented by the appellant on behalf of Bennett’s estate, (and incidentally on her own behalf as well, for we were informed upon oral argument that neither Bennett nor Ruth have children), is that the will can be given two interpretations: (1) That Mrs. Truex intended the survivor of her two children to have the undivided fee in her property no matter when the first dealth occurred or, (2) that Mrs. Truex intended the survivor of her two children to have the entire fee only in case one of them predeceased her.
Since alternative interpretations of the will are possible, so runs the appellant’s argument, the language of the will is ambiguous; being ambiguous in its wording, the will does not clearly disclose that a joint tenancy was intended; hence a tenancy in common, only, was created, following the mandate of K. S. A. 58-501:
“Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created: . . .”
The foregoing argument would have merit were it not bottomed on the specious premise that the language of the will is logically susceptible to' both of the interpretations suggested by the appellant. We find nothing in Mrs. Truex’s plan for the devolution of her property to indicate an intention on her part that the surviving child should take the fee if, and only if, the other child preceded her in death. In our judgment the expressed intention is exactly otherwise. The questioned provision reads “In case of the death of my son, Bennett C. Truex before my daughter, Ruth Archer, all property . . . shall go to Ruth . . .” The connotation would be quite different had the provision been “In case of Bennett’s death before my own.” The distinction between the two phrases is fundamental.
We are familiar with the cases cited in the appellant’s brief, but find none of them at variance with the conclusion we have reached in this case. This court has always recognized the statutory fiat of K. S. A. 58-501, and our decisions reflect the principle that before a joint tenancy may be created, language must be found making clear such an intention. (Spark v. Brotan, 167 Kan. 159, 205 P. 2d 938; In re Estate of Swingle, 178 Kan. 529, 289 P. 2d 778.)
On the other hand we have not hesitated to uphold estates in joint tenancy where it was clearly established that the parties intended that an estate of such character be created, (Spresser a. Langmade, 199 Kan. 96, 427 P. 2d 478; In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443; Simonich, Executrix v. Wilt, 197 Kan. 417, 417 P. 2d 139), even though the talismanic words might be missing. (Householter v. Householter, supra; Edwards v. Ledford, 201 Kan. 518, 441 P. 2d 834.) It is the clearly expressed intention which must be held decisive in every case.
We find no error in the judgment of the court below and the same is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an action for damages for personal injuries sustained by plaintiff Virgil Huxol as a result of falling into a hole on the Fort Hays. Kansas State College campus. Plaintiff named as defendants a general contractor, E. L. Nickell, and a subcontractor, Al M. Rome, alleging negligence on the part of each. A jury trial resulted in a verdict for plaintiff against defendant Nickell for damages in the sum of $50,000. An answer to a special question absolved defendant Rome of negligence causing the fall. Nickell has appealed.
Plaintiff was a night watchman employed by the college for six years prior to his injury April 3, 1967. Defendant Nickell under state contract commenced construction of a power plant on the college campus in January, 1967. The power plant was located on the south edge of the campus directly south of a new library building. The library had been completed but on April 3, 1967, was not yet occupied. The area surrounding it had been cleared of debris, was level but had not been seeded. There were no sidewalks on the west side of the building. A large underground heat tunnel was to be constructed north from the power plant along the west side of the library and east from the power plant to the street. Excavation of the tunnel was being done by Rome, under subcontract with Nickell.
On April 3, 1967, Rome’s employees were excavating the main heat tunnel north from the power plant. This excavation was in a tennis court area and was between 100 and 200 feet south of the library. A large tunnel had already been dug eastward. There were wire barricades and warning lights on these excavations at night.
On the afternoon of April 3, 1967, a Rome employee received orders from Nickell’s foreman to jump ahead approximately 200 feet north at the main excavation and dig an isolated hole with a backhoe near the west side of the library, the purpose being to avoid damage to underground water lines which otherwise might result if the heavier caterpillar equipment used in the main excavation were employed. The Rome employee complied with this direction. He dug a hole twelve feet long, eight feet wide and between seven and eight feet deep. He moved the dirt taken out of the hole to a pile about fifty or seventy-five feet southwest of the hole. No dirt was piled either north or south of the hole. This employee left the area at 5:00 p. m. at which time there were no barricades, wires or lights erected around the hole. The área was one used by many students.
Plaintiff, who worked from 6:00 p. m. to 1:00 a. m., had been given a key to the new library and had checked it in his rounds for four nights prior to. April 3, 1967. His duties included checking the doors of the library, checking the windows from the outside to see they were locked and seeing that lights were turned off inside the building. The building had many windows. He was aware of the excavation going on south in the tennis court area. On April 3 he reported for work at 6:00 p. m. and made his first round during daylight hours. On this tour he checked the north front doors of the library, but did not go around the building and was not aware of the hole on the west side. About 10:10 that night he checked the north doors of the library, then started around the building using a two-cell flashlight to check the windows on the two floors. At the northwest corner of the building he shone his flashlight southward ahead of him to where an air-conditioner was located. The way was clear and he could see where he was going. The light showed the area was safe and plaintiff went ahead. He was not facing the building but was walking forward at an angle at a normal speed. It was dark but there was some light reflection from the building and he did not look at the ground again. He demonstrated how he proceeded south, walking, holding his flashlight and looking at the windows. He had gone seventy-five feet or so when he stepped into the hole. He testified that while at the corner of the building he had directed his flashlight “about to that hole” and the area looked clear and normal. He saw no barricades, wires, lights or piles of dirt around the hole. He had received no information concerning the hole and did not anticipate it would be there.
The next day Nickell’s foreman, at the suggestion of an inspector for the state architect, erected wire barricades with flags around the hole.
Nickell’s principal contention upon appeal is the trial court erred in overruling his motions for directed verdict made at the close of plaintiff’s evidence and at the close of all the evidence, for the reason the evidence established that plaintiff was guilty of contributory negligence as a matter of law. Generally, his argument is this: Plaintiff was aware construction was going on south of the library and that a tunnel was being dug north through the tennis courts; notwithstanding, he started southward in the darkness along the west side of the library after using his flashlight only once to inspect the area he was traversing, continuing to look toward the building, and he fell in the hole because he failed to use his flashlight to inspect ahead.
The general rules concerning contributory negligence have been stated by this court many times and need not be repeated.
Nickell cites and relies on cases in which it was held that a person falling into a hole or stairway in the darkness was guilty of contributory negligence as a matter of law. None parallel the factual situation here, the important difference being that the injured person in those cases was in an area off the beaten path either where he had no right to be or where his presence was not expected and with whose surroundings he was unfamiliar. In Fowler v. Mohl, 172 Kan. 423, 241 P. 2d 517, this court stated that one who fails to look for danger where there is no reason to apprehend it is not guilty of contributory negligence as a matter of law.
In Blankenship v. City of Caney, 149 Kan. 320, 87 P. 2d 625, plaintiff sued for damages sustained in a fall on a crosswalk in the defendant city. A portion of the crosswalk over a ditch was composed of planks and was narrower than the abutting brick portions of the crosswalk. The plank portion was not guarded by rails or barriers. A light previously maintained at night had been discontinued. On a dark, rainy night plaintiff missed her footing and fell into the ditch. She was familiar with the physical situation as it existed in the daytime but was not aware the boarded portion over the ditch was more narrow than the brick part leading up to it. This court held the issue of her contributory negligence was a fair question for the jury.
Gant v. Gas Service Co., 156 Kan. 685, 135 P. 2d 533, was an action for injuries sustained when plaintiff fell at night into an unlighted hole made by defendant. Plaintiff was walking home from church on her usual route when she walked by an alley and fell into the hole. She had seen men working in the street but not near the alley and she saw lanterns in the street that night. Defendant argued she had notice of a dangerous condition and was guilty of contributory negligence by not proceeding with proper caution. Again the question was held to be one for the jury.
Here plaintiff was making a routine tour in familiar ground where he had experienced no previous difficulty. He was aware of construction further south and east where the barricades and lights were, but there was nothing to alert him to the existence of the isolated hole. In fact the presence of warning signals in the area where he knew excavation was occurring may well have allayed apprehension as to every step of the way elsewhere. He did use his flashlight and look before proceeding south. A hole in bare earth is not, at night, the most readily discernible object under any circumstances. Plaintiff demonstrated the precise manner in which he proceeded along the side of the library. We do not have the benefit of that enactment as did the jury. At the least we think the evidence did not convict plaintiff of contributory negligence as a matter of law and the issue was properly one for jury determination.
Nickell complains the trial court, over his objection, erroneously received evidence that he erected barricades around the hole the day after Huxol fell. Nickell argues reception of this evidence was in violation of K. S. A. .60-451, which provides:
“When after the occurrence of an event remedial or precautionary measures are taken, which, if taken previously would have tended to make the event less likely to occur, evidence of such subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.”
It should be noted the statute prohibits only evidence of subsequent remedial repair offered to prove negligence or culpable conduct.
The record reveals the challenged evidence was neither offered nor received for that purpose.
Further background facts should be stated. As indicated, Huxol sued both Nickell and Rome, charging each with negligence. In their separate answers, among other things, each defendant disclaimed responsibility for Huzol’s injury, each charged the other defendant with negligence causing it and each filed a cross-claim against his co-defendant asking for judgment in the event plaintiff received judgment against the cross-claimant. Additionally, at pretrial conference all parties entered into a stipulation, which was received in evidence at trial, as follows:
“The power plant contract between defendant Nickell and the State of Kansas contained, in part, the following provisions:
“2-10 Barricades:
“(a) Furnish and maintain all necessary guard rails, barricades, canvasses, etc., as needed to protect the passers-by and buildings.
“3-6 Guard Bails, etc.:
“{a) Furnish and maintain necessary guard rails and barricades which shall be properly lighted at night.
“4-3 Guard Rails:
“(a) Furnish and maintain necessary guard rails and barricades which shall be properly lighted at night.”
Evidence may be incompetent for one purpose but entirely proper for another (29 Am. Jur., 2d, Evidence, §262, p. 310).
The trial court made the following statement concerning the evidence of subsequent remedial conduct:
“The evidence of the condition immediately after the accident and the erection of barricades on April 4, was admitted under the explanation shown in Kansas Code of Civil Procedures annotated by Spencer Gard in the annotation under K. S. A. 60-451, particularly the last paragraph on page 443, which is headed ‘Explanation of Changes in Kansas Law.’ And the evidence was admitted by the Court under all of the reasons set out in the paragraph beginning with the last paragraph on page 443 of Gard’s commentary. And to summarize on the following pages, No. 1, to show the conditions and circumstances existing at the time of the accident by introducing the circumstances observed the morning following the accident. Number 2, to show the responsibility for the erection of barricades, markers and lights since we have two defendants in this case. Number 3, since this case is to some extent an action on a contractual obligation for the benefit of third parties, for the erection of barricades, markers and lights around excavations at the construction site, it is admitted in evidence for that reason also.
“Now, then, it is not admitted into evidence for the purpose of proving negligence at the time of the accident. And if any counsel desires an instruction to that effect, please prepare such a requested instruction and the Court will consider it.”
Counsel for Nickell, when queried again about the matter, specifically stated he did not want an instruction given as to the limited scope of this evidence, as contemplated by K. S. A. 60-406.
The question is simply one of relevancy of the evidence as to other issues.
Evidence of subsequent remedial conduct is admissible to show the condition of the place or thing involved at the time of the accident (City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893), on the issue of whose responsibility it was to make repairs, and to show control of premises where control is a matter of dispute (Gard s Kansas Code of Civil Procedure, § 451; 2 Jones on Evidence, 5th ed., § 387; anno. 170 A. L. R. 7 and 64 A. L. R. 2d 1299). The latter aspect of the rule was stated in Tipton v. Street Railway Co., 89 Kan. 451, 132 Pac. 189, thus:
“Evidence of subsequent repairs and alterations is competent for the purpose of showing defendant’s control over the place where the injury was received.” (Syl. I 3.)
Here plaintiff was attempting not only to show the absence of a barricade on the premises at the time of his injury, he was seeking recovery from both Nickell and Rome, each of whom was disclaiming responsibility, and it was incumbent upon him to show such responsibility and control as he was able. Plaintiff was entitled to make this showing.
Nickell makes the further argument the evidence should not have been admitted because of a pretrial stipulation entered into by the parties. The stipulation relied upon was:
“Issue of liability between the defendants shall not be submitted to jury & shall be reserved for trial to the court with right of D’s to enter additional evidence on such issue after termination of jury trial.”
The narrow scope of the stipulation is apparent — it referred only to liability between the defendants upon their cross-claims and did not foreclose plaintiff from pursuing either or both defendants. The trial court did not err in admitting the evidence.
Nickell contends the trial court erred in permitting certain testimony to be elicited by Rome over NickelTs objection, relating to the terms of NickelTs contract with the state. A short answer to the complaint is that the testimony elicited did not go beyond the facts agreed to by the parties and offered in evidence pursuant to their pretrial stipulation. Also, Nickell as a witness in his own behalf testified on direct examination as to the same matters to which objection is now made. The trial court did refuse admission of the written contract itself into evidence when offered by Rome. It also specifically instructed the jury a subcontractor cannot by contract be relieved of his duty to exercise reasonable care. We should point out, however, we are not here concerned with any issue of contract relationship or of indemnity between Nickell and Rome.
Nickell complains an instruction to the jury respecting the duty of a pedestrian to exercise reasonable care failed to emphasize, as requested, that a higher degree of care was necessary in darkness or when light was dim. Jury instructions should be objective, impartial, and, as far as possible, general in nature so as to be adaptable to varying circumstances disclosed by the evidence. Instructions which are argumentative or slanted toward one side should be avoided. The matter of partisan emphasis and argument is thus left to the advocates, where it properly belongs. The instruction given was general in terms, the standard stated being the exercise of reasonable care “under the facts, conditions and circumstances then and there existing.” The complaint cannot be upheld.
Nickell also contends instruction No. 14 had the effect of exonerating plaintiff from any obligation to exercise reasonable care at the time of his injury. The record is far from clear that at trial level any such complaint was ever made. We have nonetheless examined the instruction but cannot ascribe to it the result stated. Instructions are to be construed together and are sufficient if, taken as a whole, they properly state the law. The jury was clearly and properly informed in the instructions of the defense of contributory negligence and of the law applicable thereto.
Nickell complains that plaintiff’s counsel in his closing argument wrongfully used a mathematical formula in presenting the matter of damages. In his petition plaintiff asked for damages in the sum of $75,000. His counsel requested that amount in the final argument, using a chart to display the damages sought. The jury verdict was a general one for $50,000. The jury argument was recorded by the court reporter and the chart has been reproduced for us as an exhibit, so we can follow step by step all that transpired. First of all, counsel stated the amount of plaintiff’s medical and hospital bills to date, $935.46, and he exhibited that figure on the chart. Counsel then referred to loss of wages as night watchman at the college during the time he was off work, which amounted to $648.00, and this figure was exhibited as the Fort Hays loss. Huxol also had had a part-time job at a motel, and counsel showed the loss of wages for this as $375.00. Next he listed the sum of $143.50 paid to a woman for cooking and housecleaning while he was totally disabled and also $29.50 paid to a boy for yard work. These out-of-pocket items were then shown to total $2,131.46.
Counsel next stated the evidence indicated the sum of $1,400.00 for future medical and hospital expense would be necessary. The basis in the evidence was that plaintiff had sustained a compressed lumbar vertebra as a result of his fall, had been hospitalized and put in a cast but had had a poor recovery with the vertebra slowly recompressing despite use of a back brace, had endured much pain, and further surgery to effect a spinal fusion was indicated. Counsel then stated that during the hospitalization period for this operation and the recuperation period of total disability there would be a loss of wages of $3,200.00, and he listed that figure. Counsel used a median period of time shown by the evidence in making this computation. He then added the three figures ($2,131.46, $1,400.00 and $3,200.00) and charted the result, $6,731.46. At this point counsel for Mr. Nickell objected, stating: “We make an objection to the form of the argument that Mr. Dreiling is making. It is improper.” The court overruled the objection. The foregoing was the only objection made and the summation continued.
Counsel referred to plaintiff's life expectancy of 22.2 years, his annual wages of $5,700, his permanent bodily disability rated by an orthopedic surgeon at 25% which he projected (mathematically correctly) to a figure of $31,635.00. Counsel did mention certain variables possible in this projection. He then added this figure to the $6,731.46 already referred to, making the sum of $38,366.46 shown on the chart. He then concluded his argument on the subject of damages, stating:
“Now, you say where do you feel he lost this $75,000.00. Well, we could have said his pain is worth millions, but we didn’t. You think about 22 years with a broken back with all the discomfort and the pain, and it isn’t going to get any better. You may have to fuse it, which means it is going to be solid, not like your normal back. We think the pain and suffering is the difference. It is surely worth thirty-six and a half thousand dollars over 22 years.”
Counsel then placed the final figure on the chart for pain and suffering in the sum of $36,633.54. Recapitulating, the last figures on the chart were:
$6,731.46
31,635.00
$38,366.46
36,633.54
The sum of the last two figures is $75,000, the amount sought by plaintiff.
As we have already indicated the only objection made to the argument came at the point where counsel totaled out-of-pocket or special damages to date and damages attributable to future hospitalization and surgery. These items were solidly supported by evidence and it is not contended otherwise. Complaint now is that the argument made thereafter was in violation of the rule announced in Caylor v. Atchison, T. & S. F. Rly. Co., 190 Kan. 261, 374 P. 2d 53. A complete answer to the objection now raised might well be it was not made when the argument was given, indicating satisfaction with the argument at that time. Many of our cases have held ’ that alleged improper argument may be waived by failure to object. However, considered on its merits, the objection now made is not well taken.
Generally, speaking, the thrust of Caylor was toward a mathematical formula technique by counsel using a blackboard in closing argument to project damages for future pain and suffering and permanent disability. This formula argument was proscribed, primarily on the basis it amounted to the attorney giving testimony in his closing argument which was not wholly reliable and was not otherwise present as evidence in the case. Emphasis in Caylor was directed against arguing future pain and suffering on a per diem basis at a fixed unit value; however, the court stated:
“In this jurisdiction there is no valid objection to counsel, in argument, telling the jury what, under the evidence, counsel considers a fair compensation for the injuries received. It is customary for counsel in argument to suggest a total monetary award for pain and suffering.” (pp. 263-264.)
This is exactly what plaintiff s counsel did in this case. The medical evidence revealed support for a substantial award for future pain and suffering. Likewise the evidence contained support for a substantial amount for permanent bodily disability, in line with the argument made, as already shown. Assuming timely objection, the argument simply did not fall within Caylor s proscription. There is no indication the amount was the result of passion and prejudice on the part of the jury and it must be approved.
Various other matters complained of, including denial of motion for new trial, have been examined but are without merit and require no discussion.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an action to construe a will insofar as it ■concerns the disposition of income earned following the death of the testatrix.
Louise A. Egy died on July 20, 1966. Her last will and testament was admitted to probate and the estate is now under administration.
The will contains the usual introductory clause relating to payment of debts and expenses of administration. It then provides for two specific bequests which are not important here. Life estates were then provided in language as follows:
“Fourth: All the rest, residue and remainder of my estate, of every kind and character, wheresoever situate, I give and bequeath to my brother, Charles W. Bessmer, and my sister, Florence Bessmer, share and share alike, for as long as they or either of them shall live, and the survivor shall have the full life estate; provided, however, that my said brother and sister shall have only the income from my said estate.”
The provision for disposition of the property after the life estate reads:
“fifth: subject to the life estate hereinabove devised in paragraph fourth hereof, I give, devise, and bequeath all property, of every kind and character, whether real, mixed or personal, and wheresoever situate and which I may own or in which I may have an interest at the time of my death as follows:”
Charitable bequests were made to certain charities including the appellant. Those named and the amounts are not material to this controversy.
The wfil then nominated an executor with power as follows:
“I hereby give and grant my personal representative full power and authority to control, manage, sell, pledge, lease for any purpose and for any length of time, or otherwise dispose of my estate and all or any part of my property for any purpose whatsoever, as he may see fit and without being required to obtain any order therefor from any probate or other Court, upon such terms, in such manner and at such times as to him seems most advantageous to the estate.”
Charles W. Bessmer, the brother of the decedent, was 87 years of age at the time of the death of the testatrix and he passed away on January 19, 1967, some six months following the death of the testatrix. Florence Bessmer, sister of the decedent, was 89 years of age at the time of the death of the testatrix and is still living.
All of the income from the estate received by the executor has been co-mingled in one common account with other assets and all payments made by the executor have been paid from this one common account. A $15,000 partial distribution has been paid to Florence Bessmer.
Most of die assets of the estate consist of personal property in the form of corporate stocks and bonds.
Florence Bessmer filed a petition in the probate court in which she claimed she was entitled to the income from the estate from the date of the death of the testatrix. She requested that the executor be directed to file a proper accounting of income and that he be directed to convert certain assets into cash for the purpose of making distribution of the income.
The petitioner based her claim on the provisions of the Revised Uniform Principal and Income Act, and further:
“Petitioner alleges that under the Will of the decedent herein and under the general substantive law of the State of Kansas, the general administration expenses in connection with the probating of the estate of said decedent including debts, funeral expenses, estate taxes, fees to the executor and his attorneys and court costs should be paid from the principal or corpus of said estate, and that Petitioner is entitled to the income from said corpus or principal from the date of death of said decedent.”
The Hertzler Research Foundation of Halstead, Kansas, filed a written defense to the petition in which it alleged:
“Fotjb. In the event the Court should find that the administration is subject to the application of the Revised Uniform Principal and Income Act of Kansas (K. S.A. 1967 Supp. 58-901 et seq.), then, for alternative defense, this respondent alleges:
“(1) The subject matter of said Act is not clearly expressed in its title in violation of Article 2, Section 16, of the Constitution of Kansas and inapplicable to the subject matter of this action; and,
“(2) the provisions of said Act are ambiguous, conflicting, and indefinite as to be incapable of application.
“Five. It is further alleged that, under the terms of the will of the decedent, the expenses of administration are to be first paid and income derived from the property during the course of administration is chargeable with such expense.”
The Bethel Deaconess Hospital Association, a legatee under the will of Charles W. Bessmer, adopted the contentions of the petitioner. The matter was transferred to the district court for trial.
The trial concluded that the Revised Uniform Principal and Income Act has application to the administration of the estate and that the act was not invalid for any of the reasons stated. It also concluded:
“Under the terms of the will of Louise A. Egy, deceased, the Act does provide that the income shall be paid to the life tenants from date of death.
“Under the terms of the will of Louise A. Egy, deceased, the expenses incurred in connection with the settlement of the Louise A. Egy estate, including debts, funeral expenses, estate taxes, interest and penalties concerning taxes, family allowances, fees of attorneys and personal representatives and court costs are to be paid from the principal of the estate and not from the income from the estate received by the executor as such terms ‘principal’ and ‘income’ are defined by said Act.
“Aside from the Revised Uniform Principal and Income Act, the general law of Kansas provides that the administration expenses noted in the previous sub-paragraph are to be paid from principal as distinguished from income, and further provides that a life-tenant is entitled to income from date of death.
“The will of Louise A. Egy, deceased, does not change alter or modify the general law of Kansas as set forth in the preceding subparagraph.”
The trial court further concluded:
“That the life estate of petitioner, Florence Bessmer, and of Charles W. Bessmer, now deceased, is validly created by the terms of the will of Louise A. Egy, deceased, that J. C. Suderman, executor of the estate of Louise A. Egy, deceased; is hereby directed to file a proper accounting reflecting the allocation of receipts and disbursements in said estate as against principal and income pursuant to the conclusions of law as hereinbefore set forth; that said executor convert sufficient items of principal in said estate into cash for the purpose of making distribution of income to said life tenants and thereupon to make such distribution of income as reflected by said accounting and to do all other things necessary to put into effect the decision of this Court as set forth herein.”
The Hertzler Research Foundation of Halstead, Kansas has appealed.
The appellant contends that the Revised Uniform Principal and Income Act (K. S. A. 1968 Supp. 58-901, et seq.) does not have application to the administration of the estate of Louise A. Egy because (1) the will empowered the executor to make disposition of the income, (2) the act applies only to trusts and (3) if the Act was meant to apply it is unconstitutional and void for the numerous reasons stated.
The appellant further contends:
“. . . [T]hat: First, the executor is granted power by the will to use his discretion in application of such income; Second, if he does not have such power, then the general law of Kansas vests in him the title to the personal property and the income earned therefrom is subject to administration of the estate and may be applied to payment of debts, specific bequests, and the balance distributed to the residuary estate as the will provides.”
The appellant makes some twelve separate contentions as to why the trial court erred in not applying the income accruing after the death of the testatrix to the payment of debts and administration expenses. We believe the issues can be reduced to two simple questions: (1) Does the will in question contain its own provisions for payment of debts and administrative expenses contrary to the rules set forth in the Revised Uniform Principal and Income Act and the general laws of Kansas? If not, (2) does the rule for payment of debts and expenses as provided by the Revised Uniform Principal and Income Act coincide with the general substantive law of the state?
K. S. A. 1969 Supp. 58-914 provides in part:
“Except as specifically provided in . . . the will . . . this act shall apply to any receipt or expense received or incurred . . .”
We have stated that “a rule to which all others must yield is that a testator’s intention will prevail if not contrary to settled rules of positive law or in violation of public policy.” (In re Estate of Works, 168 Kan. 539, 213 P. 2d 998. See, also In re Estate of Dees, 180 Kan. 772, 308 P. 2d 90.)
If the will does designate the funds from which the debts and expenses of administration are to be paid, the designation will be recognized. However, we cannot find any such designation or inference in the will. We find nothing in Paragraph Fourth which indicates any such designation. Appellant suggests:
“In Paragraph eighth of the will, the testatrix has gone to considerable lengths to assure her executor the full and complete management of her estate. While she did not specifically mention disposition of income, that authority must be incidental to the larger power for lack of such authority would be detrimental to the larger power granted and abrogate the interest of the testatrix. ..."
We would suggest that broad powers to manage an estate and collect income is one thing, the disposition of the income is quite another.
Executors are frequently given broad powers in the management of estates during the administration. This is quite important where the assets consist chiefly of stocks and bonds. However, it is rare, indeed, when the executor is given the power to designate the recipient of the testator’s bounty. We made this distinction in In re Estate of Cline, 170 Kan. 496, 503, 227 P. 2d 157, where we stated:
“The right of the executor or administrator to collect rents and earnings during the process of administration is one thing, the proper distribution thereof is another. The first pertains to possession of property during the process of administration, the second to its distribution to those entitled thereto. The statute [K. S. A. 59-1401] contemplates the possibility of such distribution prior to final settlement in that it provides ‘. . . or until delivered by order of the court to the heirs, devisees, and legatees.’ ”
We must conclude that the will does not designate the assets from which the debts and expenses are to be paid and we must, therefore, look to the statutory law or the general substantive law of this state for the answer.
The revised Uniform Principal and Income Act (K. S. A. 1969 Supp. 58-904a) provides:
“(a) Unless the will otherwise provides and subject to subsection (b), all expenses incurred in connection with the settlement of a decedent’s estate, including debts, funeral expenses, estate taxes, interest and penalties concerning taxes, family allowances, fees of attorneys and personal representatives, and court costs shall be charged against the principal of the estate.”
This would dispose of the controversy but for the appellant’s contention that the Act applies only to trusts created by wills and that the Act is otherwise unconstitutional for numerous reasons.
We next consider the trial court’s conclusion that the general law of Kansas provides that debts and administration expenses are to be paid from principal as distinguished from income, and further provides that a life tenant is entitled to income from the date of the death of the testatrix. If the conclusion is correct, we need not consider appellant’s claimed invalidity of the Revised Uniform Principal and Interest Act as the same result would be reached regardless.
We must approve the general rule as announced in 70 A. L. R. 637, which reads:
“The general rule that under a bequest of the residue of the testator’s estate, or some aliquot part thereof, in trust to pay the interest or turn over the income to a beneficiary for life, the corpus over to another after the beneficiary’s death, the life tenant is entitled to rents, issues, profit, or income, unless otherwise provided in the will itself, from the death of the testator, and the beneficiary is entitled to the use or income of the clear residue, as the same may ultimately be ascertained, from the death of the testator, has received strong support from a large number of courts; the necessary effect of the rule being that interest, profits, or income earned between the death of the testator and the conclusion of the settlement of tire estate do not go to swell the corpus of the trust fund, but go to the beneficiary of the income.”
In considering the application of income, it should matter not whether the property is placed in trust for the benefit of the life tenant or whether the life tenant is trusted with the preservation of the property for the benefit of the remaindermen.
The reason for the above rule is frequently declared to be that the life tenant ranks first in the consideration of the testator, and a contrary construction would take from the life tenant a portion of the income, add it to the corpus, and thus, at the expense of the life tenant, swell the estate of the remainderman, who, presumably, stands second to the life tenant in the consideration of the testator. The reason is particularly applicable in the case before us where the funeral expenses and expenses incurred in administration alone amounted to $46,592.64.
Kansas has a statute giving an executor or administrator the right to possession of all property of the decedent, except homestead and allowances to the surviving spouse and children, during the course of administration. It reads:
“ The executor or administrator shall have a right to the possession of all the property of the decedent, except the homestead and allowances to the surviving spouse and minor children. ... He shall pay the taxes and collect the rents and earnings thereon until the estate is settled or until delivered by order of the court to the heirs, devisees and legatees. . . .” (K. S. A. 59-1401. Emphasis supplied.)
In the case of In re Estate of Cline, supra, this court in dealing with income from the sale of gravel which accrued after the death of the testator, stated:
“Was appellee entitled to the proceeds from the sale of gravel mined and removed after decedent’s death from a part of the land devised to her? The inventory of the estate included no gravel belonging to decedent’s estate at the time of his death. It was stipulated the gravel was mined and removed after decedent’s death by the lessee under a lease made by decedent in his lifetime and that the executor had collected the royalties thereon in the sum of $534.83. The court ordered the executor to pay these royalties to appellee.
“Appellants argue these earnings were personal assets to the estate and were subject to the payment of decedent’s debts and costs of administration. . . .” (p. 503.)
It was held that the proceeds from the sale of sand was income belonging to appellee and not personal property which was subject to the payment of debts.
In Gossard v. Condon, 105 Kan. 714, 185 Pac. 1048, in considering the disposition of income where a bequest was made for maintenance and education, this court stated:
“. . . The gift is of a stated portion of the testator’s estate, with restriction on use and enjoyment. It is, however, expressly declared to be for maintenance and education; therefore, it bears interest from the date of the testator’s death, the inference from the declaration being that the testator intended the benefit should not be postponed. The common-law rule of convenience, and statutory rules of the same character, relating to the time for liquidation of debts and legacies and the commencement of interest on ordinary legacies, do not affect the allowance of interest on legacies for maintenance. . . .” (p. 715.)
We conclude that aside from the application of the Revised Uniform Principal and Income Act that the general substantive law of Kansas supports the proposition that the income from date of death of Louise A. Egy belongs to the life tenants and is not personal property to be used by the executor to discharge debts and expenses.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Kaul, J.:
In this action for damages for personal injuries plaintiff- appellant, Aubrey Tinsley Sade, appeals from a summary judgment rendered in favor of defendants-appellees.
Plaintiff was an employee of Dresser Engineering Company on July 24, 1965, when he suffered the injuries complained of while engaged, with fellow employees, in placing a “T” connection in a pipeline owned by Northern Natural Gas Company (hereafter referred to as Northern), employer of the four defendants-appellees.
The gist of plaintiff’s cause of action is set out in paragraphs II, III and IV of his petition which read as follows:
“II
“On the date above mentioned the valve on the pipeline of Northern Natural had been closed, preventing passage of gas through the line. With knowledge of the fact that Dresser’s employees, including Aubrey Tinsley Sade, were engaged in working on said gas line, one or more of the individual Defendants negligently activated the electric switch which controlled the pipeline valve, causing it to be opened for a short period of time, and permitting gas to be forced through said line at a high pressure into the area in which Aubrey Tinsley Sade was working. The gas exploded and a flash fire resulted, causing Aubrey Tinsley Sade permanent and painful injury, including severe bums from such exploding and burning gas.
“III
“That Defendants knew or should have known such an accident would occur if said electrical switch was activated, and as the employees in charge of the Northern Natural line and safety of said plant should have taken steps to prevent the unintended activation of said switch.
“IV
“As a direct result of the negligent acts and omissions of Defendants, Plaintiff, has been damaged in an amount in excess of $80,000.00.
“Wherefore, Plaintiff prays judgment against those of the individual Defendants who activated the said switch and whose omissions made it possible for said switch to be activated for the sum of $80,000.00 and for costs.”
The defendants answered alleging they were employees of Northern and that at the time they were engaged in the course and scope of their employment. The position taken by defendants in this litigation is set out in paragraph (5) of their answer which reads:
“These answering defendants further allege that on or about December 8, 1965, plaintiff compromised and settled his claim for personal injuries suffered as a result of the explosion described in his petition. That plaintiff received the sum of Seventeen Thousand Five Hundred Dollars ($17,500.00) from the said Northern Natural Gas Company and executed the ‘Compromise and Settlement Agreement’ attached hereto and made a part hereof by this reference. That said recovery for his injuries and execution of said instrument constitutes an unconditional release by plaintiff and bars any further recovery by plaintiff for injuries alleged in his petition.”
Pertinent portions of the Compromise and Settlement Agreement, signed by plaintiff and his wife, read:
“Whereas, the Undersigned possesses certain claims against Northern arising out of injuries sustained by the Undersigned on or about July 24, 1965, at Northern’s Tescott compressor station, for which the Undersigned claims Northern is legally liable, which liability is denied by Northern; and
“Whereas, the parties hereto have come to a mutual understanding and agreement respecting such claims and are desirous of effecting a compromise and settlement thereof.
“Now, therefore, in consideration of the payment herein provided for and of the mutual agreements herein expressed, the parties do hereby agree as follows:
“(1) The Undersigned hereby acknowledges receipt of Seventeen Thousand Five Hundred Dollars ($17,500.00), which sum is accepted, in addition to the other consideration herein provided for, in full settlement and satisfaction and for the full release and discharge (except as hereinafter provided) of all actions, claims and demands whatsoever that may now or hereafter exist against Northern on account of all injuries to the person of, and any damage to the property of, the Undersigned, the treatment thereof, and consequences flowing therefrom, as a result of the accident, casualty or event which occurred on or about the 24th day of July at or near Northern’s Tescott, Kansas compressor station.
“(2) Northern hereby covenants to protect, hold harmless and indemnify the Undersigned from and against any claims, demands, invoices, charges or statements against the Undersigned because of any payments heretofore or hereafter made under applicable Workmen’s Compensation Laws, or because of any payments heretofore made to or on behalf of the Undersigned by any other third party on account of or resulting from the accident described in paragraph (1).
“(3) The Undersigned warrants that no promise or inducement other than as herein contained has been offered by Northern and that this Agreement contains the entire contract between the parties and is executed without reliance upon any statement or representation by Northern, its employees, representatives, agents, or any physician, concerning the nature and extent of the Undersigned’s injuries and damages and liability therefor. This Agreement shall constitute a complete defense for all purposes as to the claims and demands released herein and may be offered in evidence thereof for such purpose in any action or proceeding of any kind or nature.”
Plaintiff filed a reply to defendants’ answer which, in pertinent part, reads as follows:
“Further replying the plaintiff admits the execution of the Compromise and Settlement Agreement attached to the Defendants Answer, but denies that the same has the legal effect of or was ever intended to -release, any parties other than Northern Natural Gas Company and that the individual Defendants in this case are still primarily responsible to the Plaintiff for their negligent acts notwithstanding Plaintiff’s setdement with their employer Northern Natural Gas Company.
“Wherefore, Plaintiff renews his prayer against the Defendants as set forth in his petition.”
Plaintiffs reply was filed on July 12, 1967. Apparently no further steps were taken in the litigation until May 17, 1968, when defendants filed a motion for summary judgment in which they alleged:
“. . . [T]hat plaintiff executed a Compromise and Settlement Agreement on the 8th day of December, 1965, providing for the full release of their employer, Northern Natural Gas Company, a Delaware corporation, from all actions, claims and demands whatsoever arising out of or flowing from the accident described in plaintiff’s petition. That the recovery by plaintiff of $17,500.00 paid to him by defendants’ employer for said release operated so as to release these defendants from liability and that plaintiff has no legal grounds upon which to maintain this action for damages.”
The motion for summary judgment was argued to the court on August 28, 1968. The court requested parties to furnish briefs and took the matter under advisement.
On December 10, 1968, the trial court filed a memorandum decision sustaining defendants’ motion for summary judgment.
In its decision the trial court treated the compromise and settlement agreement as a release and stated that Northern, as the master with respect to defendants, was liable, if at all, under the basic doctrine of respondeat superior when the release was given and that its liability, if any, was derivative and secondary, whereas the liability of defendants was primary and that it was necessary to determine if the basis of liability had any effect on the release as a defense to the action. The trial court then reviewed Kansas cases and other authorities relating to releases and “covenants not to sue” as applied to a joint tort-feasor relationship or that of principal and agent or master and servant that existed.
The trial court concluded:
“. . . [T]hat the release executed by the plaintiff to Northern released his cause of action against the defendants in the present case. There was but one wrong complained of by plaintiff, the negligence of Northern employees; the plaintiff is entitled to but one satisfaction for his injury, which he chose to recover by way of releasing Northern for an amount of $17,500; in doing so he extinguished a cause of action he, plaintiff, had against the present defendants].”
As we have indicated, defendants filed their motion for summary judgment on May 17,1968, which was argued to the court on August 28, 1968, when the court granted the parties twenty days in which to file opposing affidavits and briefs. On November 5,1968, plaintiff filed two affidavits. Defendants promptly filed a motion to strike alleging the affidavits were not timely filed and did not present any new facts or material relating to the sole question raised in plaintiff’s petition and reply which was the legal effect and operation of the settlement agreement. This motion was not heard or ruled on at the time. Thereafter, plaintiff filed his brief on December 3, 1968, and the court filed its memorandum decision on December 10, 1968. The court did not mention the affidavits or the motion to strike.
On December 12,1968, the trial court filed a supplemental memorandum decision in which it overruled defendants’ motion to strike the affidavits. The court noted the affidavits were filed out of time but ruled that “in order that the matter could be fully resolved, the court considered the affidavits.” The court found that the affidavits contained matters which did not relate to, nor control, the question of law raised by defendants’ motion for summary judgment.
Plaintiff’s first point on appeal concerns the affidavits referred to.
The first affidavit was subscribed and sworn to by plaintiff on September 27, 1968. In substance it recited that plaintiff was assured by representatives of Northern that the release only released Northern and would in no way affect any claim plaintiff would have against any other person or corporation and that the representation was made more than once. Plaintiff also stated in the affidavit that it was his understanding that the amount of money agreed to was not near the compensation he was entitled to but that he would be able to pursue further recourse against any other party that might be liable for his injuries.
The second affidavit was subscribed and sworn to by plaintiff on October 22, 1968. In this affidavit plaintiff recited in more detail his hospital expenses, financial reverses suffered as a result of his injuries, and the circumstances surrounding his signing of the release. He stated that on December 8, 1965, he went to his doctor’s office for a treatment and to have the dressings on his bums changed. While at the doctor’s office he was contacted by two representatives of Northern who wanted to talk to him about a settlement of his claim with Northern. The two representatives took plaintiff to the motel where they were staying, where they bought plaintiff several beers, and discussed the settlement. Plaintiff stated the representatives told him $100 a day for the time he was in the hospital would be a fair settlement; that he did not need an attorney; and that the release would only release Northern and not any other person. Plaintiff also stated that he would not have signed the release if the representatives had not told him that he was only releasing Northern.
For his first point on appeal, plaintiff asserts that the release was obtained by Northern by means of fraud and misrepresentation and that this contention is fully substantiated by his affidavits. Thus, a genuine issue of fact is raised which clearly ehminates the case as one subject to disposition by summary judgment.
In support of his position plaintiff cites many of our cases, including Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798; Supreme Petroleum, Inc. v. Briggs, 199 Kan. 669, 433 P. 2d 373; and Collins v. Meeker, 198 Kan. 390, 424 P. 2d 488, to the effect that before a motion for a summary judgment may be rendered it must be shown conclusively that there is no genuine issue as to material facts.
If, as plaintiff claims, fraud and misrepresentation by Northern in obtaining the release became an issue, as a result of plaintiff’s affidavits, then, of course, under the decisions cited the case was not subject to disposition by summary judgment.
Defendants claim the trial court erred in overruling their motion to strike the affidavits and in considering them because (1) the affidavits were filed out of time and (2) fraud was not alleged in any of the pleadings as required by K. S. A. 60-209 (b).
In its memorandum decision on defendants’ motion for summary judgment the trial court stated the question presented in these words:
“1. The question presented and determining is if the release executed between Northern Natural Gas Company, the defendant’s employer and the plaintiff, an employee of Dresser Engineering Company, has the legal effect of barring an action against the present defendants.”
As we have previously indicated, in its supplemental memorandum decision, the trial court ruled the matters contained in the affidavits do not relate to nor control the question of law raised in defendants’ motion for summary judgment. It appears the trial court’s reasoning was that, since fraud and misrepresentation had not been pleaded and no request to amend had been made by plaintiff, there were no issues in the case pertaining to fraud or misrepresentation; therefore the only question in the case was the legal effect of the release.
From our examination of the record, we believe the view adopted by the trial court was correct.
In their answer defendants pleaded the settlement agreement as a defense and attached a copy as an exhibit. In his reply to defendants’ answer plaintiff does not plead fraud and misrepresentation, but merely denied that the settlement agreement had the legal effect of releasing defendants and was not intended to release them.
As we have heretofore indicated, the reply was filed July 12, 1967; defendants’ motion for summary judgment was filed eleven months later, on May 15, 1968, and argued to the court on August 28, 1968. There is no showing in the record of any attempt by plaintiff to amend his pleadings to include fraud and misrepresentation at any time during the pleading stage or at oral argument on the motion for summary judgment. After this case was argued before this court, on May 5, 1970, plaintiff filed a reply brief in which he states fraud and misrepresentation were argued to the trial court, but he made no claim that he ever requested leave to amend his pleadings to include fraud and misrepresentation.
There is no showing in the record that fraud and misrepresentation were ever argued or presented to the trial court and no mention thereof was made in either its memorandum decision or supplement thereto. Except for what is indicated in the affidavits, the only mention of fraud and misrepresentation, that we have discovered in the record, is contained in the specification of points on appeal.
Provisions of the code of civil procedure relating to the pleading of special matters are found in K. S. A. 60-209, subsection (b), of which provides:
“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. . . .”
The statutory requirement of pleading the particulars of fraud is supported by many Kansas decisions. (See Gard, Kansas Code of Civil Procedure Annotated, § 60-209 [b], p. 39; 1 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, § 209.2, p. 552; and cases cited in Hatcher’s Kansas Digest [Rev. Ed.], Fraud & Deceit, § 34; and West’s Kansas Digest, Pleading, § 8 [15].)
In his reply to defendants’ answer plaintiff admits the execution of the settlement agreement, but denied “that the same has the legal effect of or was ever intended to release, any parties other than Northern. . . .” Given the most liberal interpretation such language cannot serve as a basis upon which to predicate a charge of fraud and misrepresentation. It is a familiar rule of law in this jurisdiction that specific facts constituting fraud must be set out. (McGill v. Kuhn, 186 Kan. 99, 348 P. 2d 811; Baker, Administrator v. Brial, 185 Kan. 322, 341 P. 2d 987; and Gorsage v. Steinmann-McCord & Co., 138 Kan. 400, 26 P. 2d 455.)
Fraud and misrepresentation were not pleaded; neither do we find any showing in the record that they were injected as issues by consent; nor can the belated affidavits be substituted for the absent allegations. In Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P. 2d 914, we held:
“An exhibit attached to a pleading cannot take the place of an allegation lacking in the pleading when such allegation is necessary to declare a legal claim of relief against an opposing party." (Syl. f 3.)
We believe the same principle is applicable to plaintiff’s attempt to use his affidavits to take the place of the allegations lacking in the instant pleadings.
The narrow issue was framed by the pleadings, and stated by the trial court, when submitted on motion for summary judgment. In this connection, in Meyer, Executor v. Benelli, 197 Kan. 98, 415 P. 2d 415, this court observed:
"... A party cannot escape summary judgment on the mere hope that something may develop at the trial, or by remaining silent and later claiming additional facts supporting a defense.” (p. 100.)
Probably the trial court would have permitted amendment by plaintiff if requested. We cannot speculate as to why plaintiff failed to ask leave to amend — whether by inadvertence or design.
Plaintiff cites the case of Ware v. State Farm Mutual Automobile Ins. Co., 181 Kan. 291, 311 P. 2d 316, wherein plaintiff Ware and his wife sued defendant Insurance Company for damages allegedly sustained by plaintiffs by reason of a release of a claim for damages for the wrongful death of their son. The Wares alleged the release was secured through fraud and misrepresentations of defendant’s agent. The Ware case was not an action for damages for injuries or wrongful death and is not germane to the instant case, except that the remedies of the defrauded party, where a release of a cause of action is procured by fraud, are set out as follows:
“. . . (1) he may return the consideration paid for the release, thereby rescinding the transaction; (2) he may sue for a rescission and offer to return the consideration; or (3) he may waive his right to rescind and sue to recover any damages suffered by reason of the fraud perpetrated upon him. . . .” (p. 296.)
None of the three remedies is sought by plaintiff in the instant case, nor is Northern, who would stand in the shoes of the defendant in Ware, made a party to the action.
Since there was no issue relating to fraud and misrepresentation framed by the pleadings or injected by consent of the parties, and no other issue of fact asserted by plaintiff, it follows that there was no issue of material fact before the trial court.
We trun then to the legal effect of the “Compromise and Settlement Agreement” — the controlling question in this lawsuit.
Defendants contend it clearly appears to be a release. Plaintiff, on the other hand, suggests it could as readily be construed as a covenant not to sue.
The distinction between a covenant not to sue and a release of one tort-feasor has been said to be somewhat nebulous and difficult to define with exactness and precision. (Western Spring Service Co. v. Andrews, 229 F. 2d 413 (10th Cir. 1956). The effect of either as to the releasee is exactly the same — either may be pleaded in bar of the cause of action to which it relates. Generally, factors to be considered in the determination are the terms of the instrument, the words used, the amount paid, the substance of the agreement and the intention of the parties as manifested by the instrument. (73 A. L. R. 2d, Anno. P. 420.)
In the recent case of Reynard v. Bradshaw, 196 Kan. 97, 409 P. 2d 1011, this court was called upon to determine the legal effect of an instrument entitled “Release of all Claims” in an action based upon tort liability arising out of an automobile collision. We said:
“. . . The legal effect of a document is not to be determined solely from its name although that may be taken into account. The first question, as it is in the construction of any written instrument, is, what was the intention of the parties? This is to be gleaned from the instrument itself and where that expresses the intent, the inquiry is ended. . . .” (p. 101.)
In applying Kansas law in the case of St. Paul Mercury Indemnity Co. v. United States, 201 F. 2d 57, (10th Cir. 1952), the United States Court of Appeals said:
“Moreover, under the law of Kansas, the effect of a release or discharge of one tort feasor with respect to the liability of another person is to be determined by the intention of the parties as manifest hy the instrument. . . .” (p. 61.) (Emphasis supplied.)
See also Milwaukee Ins. Co. v. Gas Service Co. 185 Kan. 604, 347 P. 2d 394; and Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692.
Looking at the instrument in question, within the framework of the guidelines stated in Reynard, we believe the language used clearly expresses the intention of the parties. The sum received was substantial and was accepted in full settlement and satisfaction and for the full release and discharge of all actions, claims and demands whatsoever that may now or hereafter exist against Northern on account of all injuries to the person of plaintiff. Such language clearly constitutes a release rather than a covenant not to sue.
While the release names no party other than Northern, neither does it expressly reserve any rights to plaintiff against these defendants or any other parties. In City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285, where a release of one partner expressly reserved the right to proceed against the other, the rule is stated in these words:
“. . . That rule is, that the intent of the parties to the release controls, and where the creditor or injured party expressly reserves the right to pursue the other wrongdoer, the release of one can not be set up as a defense by the other. The compromise or satisfaction is regarded as a covenant not to sue, instead of a technical release. . . .” (p. 647.)
The pleadings and the release in this case do not show whether the liability for which Northern was released was predicated on liability as a joint tort-feasor or as a master under the doctrine of respondeat superior. In fact as to Northern there are no allegations of liability or of any tortious act that is independent and concurrent with or successive to the wrongful act alleged to have been committed by one or more of these defendants.
We agree with the view adopted by the trial court that Northern’s liability could only stem from that of a master under the doctrine of respondeat superior, since the only wrong alleged was the negligence of defendants.
In determining the effect of the release in this case, we think the same result is compelled whether the status of Northern be that of a master or a joint tort-feasor, since there is only one wrongful act and no allegation of an independent concurrent or successive wrongful act by Northern.
Based on the simple reasoning that an injured person can have but one satisfaction for the same wrong, this court has long adhered to the familiar rule that an unconditional release by the injured party of one joint tort-feasor will release all.
A covenant not to sue was involved in the case of Jacobsen, v. Woerner, 149 Kan. 598, 89 P. 2d 24; however, rules pertaining to the effect of a release of a joint tort-feasor were extensively reviewed:
“It is well settled that an injured person can have but one satisfaction for the same wrong. (Meixell v. Kirkpatrick, 29 Kan. 679; Skaer v. Davidson, 123 Kan. 420, 256 Pac. 155; Keonn v. Young, 129 Kan. 563, 283 Pac. 511.)
“It is also an established rule that an unconditional release by the party injured of one joint tort-feasor will release all. (Westbrook v. Mize, 35 Kan. 299, 10 Pac. 881; Skaer v. Davidson, supra; Rasnic v. City of Wichita, 126 Kan. 98, 267 Pac. 21; Paris v. Crittenden, 142 Kan. 296, 46 P. 2d 633.)
“It is equally well established that a covenant not to sue one joint tort-feasor does not release other joint tort-feasors. (Eden v. Fletcher, 79 Kan. 139, 98 Pac. 784; City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285; Feighley v. Milling Co., 100 Kan. 430, 165 Pac. 276; Scott v. Fair Association, 102 Kan. 653, 171 Pac. 634.)” (p. 601.)
It should be kept in mind that according to the pleadings in the instant case, the injury was caused by one wrongeful act, rather than by alleged independent concurring or successive torts as in Milwaukee Ins. Co. v. Gas Service Co., supra, or where a wrongful act is not done jointly, but is the deed of one or the other and not of both persons from whom compensation is sought, as in Jukes v. North American Van Lines, Inc., supra.
The rule with respect to joint tort-feasors as it bears on the relationships of master and servant or principal and agent is discussed in Jacobson v. Parrill, 186 Kan. 467, 351 P. 2d 194, wherein it was said:
“. . . It has been held that under that doctrine the liability of the master to a third person for injuries inflicted by a servant in the course of his employment and within the scope of his authority, is derivative and secondary, while that of the servant is primary, and absent any delict of the master other than through the servant, the exoneration of the servant removed the foundation upon which to impute negligence to the master. (Citing cases.)
“While this court has held that a master may be jointly sued with the servant for a tort of the latter committed within the scope of his authority of employment (Dowell v. Railway Co., 83 Kan. 562, 112 P. 2d 136; Duensing v. Leamon, 152 Kan. 42, 102 P. [2d] 992; Rush v. Concrete Materials & Construction Co., 172 Kan. 70, 238 P. 2d 704; Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P. 2d 847), they are not joint tort-feasors in the sense that they are equal wrongdoers without right of contribution, for the master may recover from the servant the amount of loss caused to him by the tort, including any sum he has been required to pay a third person on account of it (Fenly v. Revell, 170 Kan. 705, 228 P. 2d 905); such payments made by the master, in the absence of fault on his part are, not made by him as a wrongdoer, but by reason of his obligation to answer for the act of the servant. . . .” (p. 473.)
In Jacobson it was held that satisfaction of a judgment rendered against a servant releases the derivative liability of the master. This holding was accepted as a precedent in Wilkerson v. Lawrence, 193 Kan. 92, 391 P. 2d 997, wherein a trial court’s judgment, that a principal was exonerated of liability for the wrongdoing of his agent by the plaintiff’s covenant not to sue the agent, was affirmed.
In Simpson v. Townsley, 283 F. 2d 743, (10 Cir. 1960); 92 A. L. R. 2d 526, the Kansas law was construed to be that an employer whose liability is predicated on the doctrine of respondeat superior is absolved by a contract by the injured person not to sue the employee.
In the Jacobson, Simpson and Wilkerson cases the release ran from the injured person to the servant or agent, whereas here the release is to the master. However, the reasoning used in those cases in absolving the master or principal from liability, by reason of the release of the servant or agent, is the same as that used in the great majority of cases from other jurisdictions which hold that in the absence of a specific statute a valid release of one of the parties to a master-servant relationship operates as a release to the other.
We find this statement in 35 Am. Jur., Master and Servant, § 535:
“According to the great weight of authority, where both master and servant are liable to a third party for a tort of the servant, a valid release of either master or servant from liability for the tort operates to release the other, . . .” (p. 963.)
Many other cases from other jurisdictions are found in 126 A. L. R., Anno. p. 1199, which is superseded by 92 A. L. R. 2d, Anno, p. 533, wherein the author states at page 537:
“Most of the cases decided in the absence of a specific statute support the view that a valid release of one of the parties to the master-servant or principal-agent relationship releases the other. . . .”
See also 76 C. J. S., Release, § 50 (b), pp. 688, 689.
We believe the trial court correctly determined the legal effect of the release and since the pleadings left no genuine issue of any material fact in controversy, summary judgment for the defendants was properly rendered.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.;
Plaintiffs-appellees are judgment creditors of Martin A. Landweher, defendant-appellee. Plantiffs’ judgments were recovered in five separate actions which were consolidated for trial. The negligence of defendant Landwehr while driving an automobile with the owner’s permission was determined to have been a proximate cause of a serious accident on April 28, 1962, at the intersection of U. S. Highway 54 and Airport Road west of Wichita.
The accident resulted in the deaths of plaintiffs’ deceased, who were passengers in an automobile owned and driven by Darrell D. Smith when the collision with the automobile driven by defendant Landwehr occurred.
Before the five actions involved in this appeal were tried, three related cases dealing with claims of Landwehr and his passenger, James D. Maples, against the estate of Smith, and a claim for the death of Smith, against Landwehr and Maples, were consolidated and tried by the same court. The court found both Smith and Landwehr guilty of negligence which was the proximate cause of the accident and recovery was denied in the actions, based on their claims against each other. As to Maples the court found that he was not engaged in a joint venture with Landwehr; that Landwehr’s negligence was not imputed to him; and that he was entitled to recovery from the estate of Smith.
The evidence adduced in the three related cases was stipulated to be identical with the evidence that would have been introduced in the instant cases. These five cases, in that posture, were then submitted on the record of the three related cases. The court determined that judgment should be granted in favor of all plaintiffs against defendant Landwehr on the issue of liability and reserved the question of damages for later determination.
Final judgments were entered on September 16, 1966, and damages awarded to plaintiff Stamps in the amount of $26,623.00; to plaintiff Radcliff $26,500.63; to plaintiff Burton $26,376.13; to plaintiff Phyllis Ann Lee $25,000.00, and to plaintiff Helen F. Lee $1,376.13.
The 1949 Ford automobile driven by defendant Landwehr at the time of the accident was owned by Earl J. Riley d/b/a Riley Motor Company, a used car dealer. Riley was insured under a policy issued by garnishee Alliance Mutual Casualty Company, referred to hereafter as Alliance.
At the time of the accident the 1949 Ford was being kept on a lot owned by Chet M. Tolson, d/b/a Chet’s Body & Paint Shop, under an arrangement with Riley. Tolson later became associated with one Harry Shoemaker and the business name was changed to “Chet’s Motor Company.” Tolson was insured by garnishee Employers Casualty Company, referred to hereafter as Employers.
In the late afternoon, preceding the night of the accident, Darrell Hollis, a salesman for Riley, gave Maples, a prospective purchaser, permission to take the car from Tolson’s Lot after affixing a Riley Motor Company dealer’s license plate. Maples took the automobile to his home and later picked up Landwehr who drove the automobile until the collision occurred.
Defendant Landwehr is the son of Martin J. and Florence Landwehr. Landwehr’s were insured under a “Combination Automobile Policy” issued to Martin J. Landwehr, d/b/a Landwehr Manufacturing Company by garnishee-appellant Consolidated Underwriters, hereafter referred to as Consolidated. The policy is the subject of this appeal and the central question is whether it should be reformed so as to afford liability coverage for defendant Martin A. Landwehr while driving the Riley automobile at the time of the accident. It is conceded the policy as issued did not afford this coverage.
The judgments entered on September 16, 1966, were not paid.
On March 15, 1967, affidavits for garnishment were filed by the respective plaintiffs against garnishee-appellant (Consolidated Underwriters); Employers Casualty Company and Alliance Mutual Casualty Company.
The respective garnishees answered and each denied any indebtedness to defendant Landwehr. The respective plaintiffs replied to the separate answers of garnishees, controverting the answers and alleging as to each garnishee that it did—
“. . . have in its possession, funds belonging to the defendant in the above styled case, or in the alternative, has funds by contract, expressed or implied, or arising by operation of law between the defendant and said Garnishee, or by reason of contract, express or implied, between Garnishee and some persons privy to the defendant, or by implied contract between parties privy or in fiduciary or parental relationship, has funds which should be paid to this replying plaintiff, in satisfaction of the judgment in favor of the plaintiff and against the defendant for and on behalf of said defendant.”
With issues thus joined, requests for admissions were filed by all parties and answered by respective responses.
After a pretrial conference an order was entered in which stipulations were set out, issues defined and witnesses identified. It was further ordered that the trial was to be limited to the issues contained in the pretrial order, except by order of the court.
The capacity of plaintiffs to seek reformation of the Consolidated policy was not challenged.
Either immediately prior to trial or in the early stages thereof, garnishee Alliance arrived at an agreed settlement with each of the five plaintiffs. The actions of plaintiffs Stamps, Radcliff and Burton against Alliance were dismissed with prejudice. An agreed settlement between Alliance and plaintiffs Helen F. Lee and Phyllis Ann Lee, a minor, was approved by the court and judgment was entered accordingly. At this point Alliance was dismissed from the case without objection on the part of any other parties to the litigation.
The trial proceeded on the claims of the five plaintiffs against garnishees Employers and Consolidated.
The trial court made extensive findings of fact and conclusions of law resolving all issues defined by the pretrial order.
With respect to the liability of garnishee Employers, the trial court found that Tolson and Shoemaker at the time of the accident had no proprietary interest in the 1949 Ford and that it was not an insured automobile within the terms of the Employers’ policy as to defendant Landwehr or his judgment creditors. No appeal was taken from this judgment.
Regarding the liability of Consolidated the trial court found that Landwehrs desired full liability coverage on Mr. and Mrs. Landwehr and each of their two sons, and that both Consolidated and its agent Kimple knew the type of insurance Landwehrs had requested; and that Consolidated knew that the policy issued did not provide the coverage requested. The trial court further found that defendant Martin A. Landwehr was operating the 1949 Ford, with the permission of the owner, at the time of the accident.
Judgment was entered holding that Consolidated was indebted to plaintiffs in the amount of the limits of the policy and Consolidated was ordered to pay the same to the judgment creditors of Martin A. Landwehr, the plaintiffs herein.
There appears to be little dispute in the facts concerning negotiations between Kimple and the Landwehrs, the taking of the application, the types of coverage available at Consolidated, which could have been issued on receipt of the application, and the coverage in the policy actually issued. The facts are established by the trial court in its findings. Those which we believe material to our discussion will be recited.
With reference to the application the trial court found:
“III
“Said policy was issued to cover four vehicles, three passenger and one commercial. All four were shown to be titled in Martin J. Landwehr on the application. Of these, one of the passenger automobiles was shown to be principally driven by Martin A. Landwehr, defendant, and another by Sidney Landwehr, another son of Martin J. Landwehr, who was married. The application also showed defendant Martin A. Landwehr and his brother Sidney as having their own cars. The commercial vehicle — a pickup truck — was being operated under a KCC permit, and the application showed that a KCC filing was required for coverage.”
As its findings IV, V and VI, the trial court adopted requested findings of Consolidated Nos. 6, 7 and 8, which read:
“IV
“[6] The garnishee Consolidated Underwriters had automobile insurance policies filed and approved with the officer of the Commissioner of Insurance in Topeka, Kansas, and which the garnishee Consolidated Underwriters was authorized to issue, including the policies entitled ‘Combination Automobile Policy’ (Plaintiffs’ Exhibit 3) and ‘Family Combination Automobile Policy’ (Plaintiffs’ Exhibit 6).
‘V
“[7] The Family Combination Automobile Policy of Consolidated Underwriters provided under the provisions of ‘Part I — Liability’ that the ‘person insured’ were ‘with respect to a non-owned automobile, (1) the named insured, (2) any relative, but only with respect to a private passenger automobile or trailer, provided the actual use thereof is with the permission of the owner.’
“VI
“[8] Garnishee Consolidated Underwriters Exhibit ‘A’ are the endorsements of Consolidated Underwriters on file and approved with the office of the Commissioner of Insurance on November 1, 1961, when its policy of insurance was issued to Martin J. Landwehr, D/B/A Landwehr Manufacturing Co.”
Other findings of importance to our decision are:
“VII
“Garnishee Consolidated Underwriters filings were selected on its part from a complete set of policies, endorsements, et cetera, which it purchased from the National Board of Casualty Underwriters. On November 1st, 1961, said Garnishee had not elected to file for approval by the Commissioner of Insurance any endorsement whereby the provisions of the ‘Combination Automobile Policy’ could be extended and made applicable to one other than the named insured or his spouse. Such an endorsement was available but Garnishee Consolidated Underwriters had chosen not to file it.
“X
“The policy issued was given a 2(c) rating — indicating a principal male driver, unmarried, under 25 years of age — which specifically referred to defendant Martin A. Landwehr. This amounted to the highest rating possible short of an assigned risk — and the maximum premium was charged.
“XI
“Separate policies could have been issued for each vehicle named in the application at no increase in premiums over the premium charged. Likewise, if the policy issued had named both defendant Martin A. Landwehr and his brother Sidney as named insureds, the premium charged would have been the same. However, it was not the policy of Garnishee Consolidated Underwriters to insure anyone not of legal age and not the holder of title.
“XII
“While it was out of the ordinary for Garnishee Consolidated underwriters to insure a family under tire type of policy issued, it was used because of the inclusion of the pickup truck requiring a KCC filing. Garnishee Consolidated Underwriters intentionally issued this type of policy rather than any other or combination of others.”
Finding XIII recites the conversations between Landwehrs and agent Kimple surrounding the talcing of the application.
Other pertinent findings read:
“XIV
“Kimple advised the senior Landwehr’s that they could obtain full coverage both for themselves and their sons, and specifically assured them that the boys would be covered while driving other vehicles. He prepared the application —sent it to Garnishee Consolidated Underwriters — and garnishee issued the policy of which Plaintiff’s Exhibit 3 is a copy. This policy did not provide full coverage for anyone but the named insured and spouse, and only Martin J. Landwehr was a named insured in the policy. Neither defendant Martin A. Landwehr nor his brother Sidney were named insureds, and neither was provided with full coverage, or coverage equivalent to that provided for the senior Landwehr’s.
“XV
“Premiums were billed to Kimple by garnishee. Kimple collected them from Martin J. Landwehr, and also provided Martin J. Landwehr with a breakdown of premiums so that the latter could collect the proportionate share from defendant Martin A. Landwehr and his brother Sidney.
“XVI
“Neither Garnishee Consolidated Underwriters from their home office, nor their local agent Kimple, ever advised the Landwehr’s that the policy that was issued provided substantially less coverage than the Landwehr’s had requested. Neither garnishee nor its agent ever advised the senior Landwehr’s or defendant Martin A. Landwehr or his brother, that the policy did not provide full coverage on the two sons. To the contrary, Kimple assured the senior Landwehr’s that ‘the boys were fully covered’ and even after young Martin’s accident advised the senior Landwehr’s ‘not to worry about it, that we have insurance for it.’
“XVII
Both Garnishee Consolidated Underwriters and its agent Kimple, knew the type of insurance coverage the Landwehr’s had requested, and knew likewise, that the policy issued did not provide that coverage. They also knew that the coverage requested was available on the insurance market, and would cost no more in premiums to the purchaser than the premiums charged for the policy issued.
“XVIII
“The Landwehr’s both parents and sons, did not know that the insurance policy issued did not provide full coverage on the sons as they had been assured it would and did until after the accident, and even then were first reassured by Kimple that the policy did provide coverage.”
The trial court announced conclusions as follows:
“I
“A soliciting agent of insurance is an agent of the company and not of the insured.
“II
“Agreements between such an agent and an applicant for insurance, as to what insurance coverage shall be applied for in the application are construed as agreements made between the applicant and the company. The knowledge of the agent is the knowledge of the company.
“Ill
“It is fraud for any insurance company — or reciprocal exchange — to accept an application for insurance coverage from a prospective purchaser who states explicitly the type of coverage sought, and then issue a policy providing substantially less coverage, without advising the applicant of the variance.
“IV
“Where a reciprocal insurance exchange deliberately issues a type of policy that will not provide the coverage sought by applicant without an endorsement, and where said reciprocal exchange well knew that they had elected not to file such an endorsement with the Commissioner of Insurance, they will, in the event of a loss, be estopped from asserting that the policy issued cannot be reformed to provide the full coverage applied for, by pleading that they did not have the proper filings with the Commissioner.
“V
“The intricacies and legal niceties involving reciprocal exchanges as compared to other types of insuring groups and companies are peculiar to the understanding of the management level in the insurance industry, and the general public is not chargeable with such knowledge.
“VI
“Where a reciprocal insurance exchange — through its soliciting agent— prepares an application for specific and identical insurance coverage for four members of a family, knowing their ages, marital status, and how their vehicles were owned and registered, and seeks the signature of only one adult member of said family (though the others are legally capable of contracting for insurance), and a policy is issued and premiums paid, said reciprocal exchange will in event of a loss be estopped from asserting that they do not insure anyone unless they are of legal age, a title owner, and have signed the power of attorney included in the application.
“VII
“The policy issued by Garnishee Consolidated Underwriters should be reformed to include defendant Martin A. Landwehr as a named insured.
“VIII
“Defendant Martin A. Landwehr was operating said vehicle with the permission of the owner at the time of the accident.
“IX
“Garnishee-defendant Consolidated Underwriters is legally obligated to pay to the judgment creditors of defendant Martin A. Landwehr the limits of its policy as reformed, in accordance with the terms and provisions thereof.
“Please prepare Journal Entries incorporating the Findings and Conclusions set forth herein, and entering judgment accordingly.”
Consolidated filed posttrial motions directed at the findings and conclusions and a motion for a new trial, which were overruled.
On appeal Consolidated attacks the judgments below in a number of specifications. With one exception all of the specifications of error revolve around the central issue whether the evidence adduced was sufficient to support the trial court’s judgment reforming the policy so as to provide liability coverage for Martin A. Landwehr.
The exception referred to concerns a specification that the trial court erred in refusing to determine the liability of Consolidated in relation to that of Alliance.
Consolidated is a reciprocal insurance exchange. Jerome Churchman, Vice President of Underwriting for Consolidated, was called as a witness by it and described a reciprocal insurance exchange as “a place where subscribers, also known as policyholders, exchange insurance protection, and coverage with each other under the management, administration and direction of an attorney-in-fact.” Churchman described Consolidated as an independent filer and for competitive purposes deviated from rates filed by the National Bureau of Casualty Underwriters with the Commissioner of Insurance. Churchman also stated that Consolidated was a “manual purchaser” which he defined as meaning it purchased only certain manual endorsements from the Bureau, which were then worked over and filed with the Commissioner. He testified:
“. . . The company made its decision as to which of these endorsements would be filed and which would not be filed. . . .”
Mr. Churchman’s testimony with respect to Consolidated’s procedure when the application was received in the home office will be discussed hereafter.
The application for the insurance in question was taken on October 18, 1961, by John Stanley Kimple, who described himself as a self-employed insurance salesman in Wichita.
Martin J. Landwehr was engaged in business as the Landwehr Manufacturing Company. The business was manufacturing ornamental iron. He had a pickup truck, a car, and two other cars in his name that belonged to his two sons. His son Martin (defendant) had a 1957 Chevrolet and Sidney a 1954 Chevrolet. He testified that he had insurance with another company in 1961, but when he received a renewal statement which he thought was a “little bit high,” he contacted Kimple who furnished an estimate. He further testified that he and Kimple discussed the ownership of the vehicles and that he told Kimple:
. I wanted the boys covered so when they was on the road they were covered from anything. I mean that’s the reason I carry insurance for them to be covered fully. This is what I told Mr. Kimple.”
Mrs. Florence Landwehr, mother of defendant (Martin A. Landwehr), testified that she was present when her husband and Kimple discussed insurance and “we told him that we wanted full liability-on the boys the same as ourselves.” She further testified:
“. . . Our boys worked for the folks out at the farm in the summertime. They did the wheat harvest and things, and I asked Stan if they would be covered while driving my folks’ vehicle and he said, ‘Yes, any vehicle that they’ll be driving they will be covered.’ ”
Kimple did not contradict any of the testimony of the Landwehrs. He testified that he filled out the application and may have signed it for Martin J. Landwehr. Kimple forwarded the application to Consolidated and the policy — when issued — was sent back to him.
Kimple further testified:
“The type of risk assigned for the purpose of rating and given to the vehicle driven by Mr. Landwehr was 2-C classification. It’s major driver, male driver under 25 and single. There is no rating that has a higher premium charge than 2-C on private passenger car. Martin Landwehr was the driver of the vehicle indicated on this policy as being the car rated under 2-C classification, a 1957 2-door sedan.
“The premiums that I computed were similar to those on the policy. The amount charged on that policy for a 2-C rating is the maximum amount that could have been charged under that rating. . . . Normally, when I write an application for insurance I usually discuss the type of coverage given and the general features given to the people. The type of policy issued in this case was a combination automobile policy. The combination automobile policy was used because there is a commercial unit on it. That policy is used basically so it can be filed with the Insurance Commissioner to cover a Kansas Commercial ruling. The reason that this was not written on the family policy or some other type of policy is because I requested the KCC filing. It’s not ordinary to insure a family on this kind of policy. The same rates would apply to a combination auto or tlie family auto.
“I believe that each one of these vehicles would have been written on a separate policy and each individual named as a named insured without any additional premium.
“I believe that Martin A. Landwehr, the son for the premium paid could have been made a named insured on either one of those policies without any additional premium charge. . . .”
Obviously, Kimple was fully informed as to the type of coverage desired, and it must be assumed he filled out an application upon which a policy affording the coverage intended would be issued. The fact that he intended to procure full coverage for the Landwehrs by the application is established, as found by the trial court, by the uncontradicted evidence that when notified of the accident, Kimple informed Landwehrs, “Don’t worry about it you got insurance for it.”
The findings concerning Kimple’s knowledge and the taking of the application are fully supported by the evidence. Consolidated, however, vigorously attacks the conclusions of the trial court in this regard. It asserts that an application and representations of a soliciting agent, who is not a general agent, do not make enforceable insurance contracts. It must be conceded the assertion is not without authoritative support by decisions from this and other jurisdictions.
Plaintiffs claim the question concerning agency was never seriously raised by Consolidated prior to its brief on appeal. Plaintiffs state in their brief:
“All parties agreed Kimple was the agent for the company and no issues were expanded otherwise during the pre-trial of the trial.”
It is evident from the record that neither party explored to any extent the scope of Kimple’s agency or his authority. From the brief testimony on the point it appears that Kimple was licensed with Consolidated and with a number of other insurers which probably establishes him as an independent agent or broker. Whether he had authority to negotiate for Consolidated is neither clearly established nor denied.
Ordinarily a broker or agent who is employed to procure insurance becomes the agent of the person for whom the insurance is procured. (43 Am. Jur. 2d, Insurance, § 149, p. 203; Rosedale Securities Co. v. Home Ins. Co., 120 Kan. 415, 243 Pac. 1023)
There are many exceptions to the rule, however, and the question cannot be answered absolutely, but depends upon the circumstances of the particular case. For some purposes and under certain circumstances, a broker may represent either the insured or insurer, or both. (43 Am. Jur. 2d, Insurance, § 149, p. 203)
An examination of the many cases in this jurisdiction dealing with the subject reveals that the nature of an agency, its scope and authority, and the question whether an agreement between agent or broker and the insured is enforceable against the insurer, are matters to be determined from tbe powers expressly or impliedly conferred by insurer in the light of other relevant facts and circumstances shown to exist in a particular case. (Vol. 3 Hatcher’s Kansas Digest [Rev. Ed.], Insurance, §§22, 23; and Vol. 6 West’s Kansas Digest, Insurance, §§73 to 78, incl.)
In view of the manner in which this case was tried below and presented on appeal, we shall pass over the question whether Kimple, as an agent, made a contract with Landwehr which was enforceable against Consolidated. The determination of that question is not required in view of our disposition of this appeal.
We believe the trial court’s findings that Consolidated knew the type of coverage desired, could have afforded such coverage by issuing separate policies, charged the maximum premium, and deliberately issued a policy affording substantially less coverage, are supported by substantial competent evidence and in turn justify the decision below.
Kimple testified the maximum premium was charged; that each vehicle could have been written on a separate policy, or a family combination automobile policy issued for the same premium charge. What Kimple would have done other than what he did in order to secure full family coverage is not shown. Apparently he didn’t know the effect of requesting a KCC filing.
The application does not explicitly show that full family coverage was desired, but, on the other hand, there is nothing to indicate anything less was applied for. Certainly, it clearly reflects that family coverage was desired, and if anything less than full coverage could not be or was not going to be issued for the premium charged, it was incumbent on Consolidated to make such fact known. As pointed out by the trial court in conclusion No. V the general public is not chargeable with knowledge of the legal niceties involved in the internal operations of a reciprocal exchange.
On this point we turn to the testimony of Churchman whose authority as a spokesman for Consolidated is not questioned.
Although at one point Churchman claims the proper policy for the application was issued, he also testified explicitly “We could have issued two different policies. We decided this when we received the application.” He further testified:
“. . . There was no endorsement which permitted a family automobile coverage to be given on this policy. There was such an endorsement available from the National Bureau of Casualty Underwriters. It was the company’s, choice not to have such an endorsement on file at that time.
“• • • In 1961, our company according to its state filing could have afforded protection to the son while driving non-owned automobiles by the issuance of a family automobile policy in the name of the father. . . .”
The import of Churchman’s testimony is that when the application was received, two different policies could have been issued, the decision was made not to do so but to issue only the combination automobile policy. Then, since by its further choice, no endorsement, though one was available from the Rureau, was on file full family coverage could not be given on this policy. Consolidated now seeks the shelter created by its own decision and choice. We agree with the trial court that under the facts and circumstances shown, Consolidated after accepting the application and then issuing a policy providing substantially less than full family coverage, without advising the applicant, is estopped from asserting that the policy cannot be reformed to provide the full coverage applied for.
After hearing the testimony of the witnesses, in particular that of Churchman, the trial court found that Consolidated intentionally issued the policy in question, rather than any other or combination of others which would have afforded the coverage applied for.
We think the evidence is sufficient to support the trial court’s finding that through Consolidated’s fault, the policy issued did not afford the coverage intended. Whether the fault was due to mistake or fraud, or a combination of both, reformation may be had. (Hammond v. Insurance Co., 100 Kan. 582, 165 Pac. 291)
The applicable rule is stated in 17 Couch on Insurance 2d, Reformation, § 66:21:
“Where the insurer deliberately issues a policy which differs from the one for which the insured made application, without having told the insured that the one applied for cannot be obtained or without specifying the differences between the requested policy and the issued policy, the insured is entitled to reformation to make the policy conform to the one ‘bargained’ for.” (p. 264.)
The general rules applicable to reformation of insurance policies are applicable to automobile liability policies.
The author of an annotation on the subject appearing in 1 A. L. R. 3d says:
“. . . No case has been found holding or even intimating that these general rules do not fully apply to a reformation of an automobile liability policy by adding to or substituting for the named insured the person intended to be insured.” (p. 887.)
In this jurisdiction an insurance policy is reformed where through fraud or mistake the policy issued does not afford the coverage intended. (Insurance Co. v. Darrin, 80 Kan 578, 103 Pac. 87; Forristal v. Security Ins. Co., 136 Kan. 73, 12 P. 2d 790; Dietrich v. Retailers Fire Ins. Co., 137 Kan. 533, 21 P. 2d 900; and Gilbert v. Mutual Benefit Health & Acc. Assn., 172 Kan. 586, 241 P. 2d 768)
It is the duty of an insurer to write a policy in accordance with the application or agreement for insurance and an insured who receives a policy may assume that the insurer has discharged its duty. (Kansas Amusement Co. v. Maryland Casualty Co., 122 Kan. 800 253 Pac. 405; and Pfiester v. Insurance Co., 85 Kan. 97, 116 Pac. 245.)
In the early case of Insurance Co. v. Darrin, supra, the question was presented and the court held:
“It is the duty of a fire-insurance company which accepts a signed application for insurance, written on a blank furnished by the company which provides that it shall be the basis on which insurance is to be effected, to write the policy in accordance with the application.
“The recipient of a policy issued in response to an application of the character described may assume that the company has discharged its duty and has written the policy on the basis of the application, and he is not obliged to read the policy to see if it conforms to the application.
“If through inadvertence, mistake or design such policy be written on a basis different from that contained in the application, it may be reformed to correspond with the application.” (¶¶ 1, 3 and 5)
Consolidated argues the policy was issued in accord with the application, yet it is admitted that either the “family combination” or the “combination automobile policy” or both could have been issued. Kimple, knowing the coverage agreed upon and intending to procure it, made the application on a form provided by Consolidated. There is no showing that it was not completed in all essentials. Churchman testifies that as an agent he would have asked for two policies, yet he admits two could have been issued on the application as made, but it was decided to issue the “combination automobile” simply because a KCC filing was requested. If the application form provided by Consolidated was inadequate it was the fault of Consolidated not that of Kimple or Landwehrs.
Consolidated complains that the trial court reformed the policy in a way that could not be done by including defendant Martin A. Landwehr as a named insured because it had no endorsement on file that could be added to the policy issued that would have extended the same coverage to all of the named drivers in the policy. Here again, Churchman admits that such an endorsement was available in the National Bureau Manual, but Consolidated had not chosen to file it. For reasons previously stated, we find no error in the trial court’s holding in this regard.
One other point requires brief attention.
After the trial was completed, the court requested the submission of requested findings and conclusions. Consolidated submitted findings and conclusions that would have established that according to the provisions of its policy, even though reformed to cover Martin A. Landwehr while driving a non-owned automobile, it would only afford liability in excess of other valid and collectible insurance. In other words, as applied to this case, Consolidated claimed it was obligated only in the amount that the total liability established exceeded the valid and collectible insurance under the Alliance policy. Consolidated asserts that in this case its policy contained an “excess insurance” clause with respect to a “non-owned automobile” whereas Alliance had the owner’s policy containing a “pro rata” clause and thus under our holding in Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P. 2d 931, it was obligated only for the liability exceeding the Alliance coverage.
The issue was raised by Consolidated on a posttrial motion when the trial court announced the requested findings were not considered or ruled on because the matter raised had not been pleaded, tried or raised at any point during the trial, nor was it included in the issues formulated in the pretrial order. The trial court also pointed out that no objection was lodged when Alliance was dismissed from the action and that neither Alliance nor Consolidated had submitted any evidence on the point. Under the circumstances shown we find no error.
Orders entered at pretrial conference have the full force of other orders of the court and control the subsequent course of the action unless modified at the trial to prevent manifest injustice. (Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; and Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912) Here the issue was not presented on timely application when Alliance was dismissed from the action, neither was there any attempt made to have the pretrial order modified during the trial, nor was there evidence presented and the issue tried by consent as in Thompson v. Aetna Life Ins. Co., 201 Kan. 296, 440 P. 2d 548.
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This action was instituted by Carl Jensen (appellant) against Grace Jensen ( appellee), his former wife, to recover money he allegedly lent her following their divorce in March 1963.
Pursuant to the decree of divorce Carl paid Grace $3,000 in $150 monthly installments, the last payment being made in November 1964. In the succeeding months Carl continued to pay Grace various sums each month until he had paid a total of $2,765, which he now seeks to recover. At trial Carl testified the money was advanced with the understanding it was a loan which would be repaid when Grace sold her house, and he ceased making payments because he could no longer afford them. Grace admitted she received the money after telling Carl she neeeded it, but stoutly denied it was ever regarded as a loan, or that there was any understanding to that effect.
After hearing the testimony of both parties, the district court found Carl had failed to sustain the burden of proving the monies were “delivered to the defendant as a loan, and not as a gift,” as contended by Grace. Judgment was entered for Grace, Carl’s various post-trial motions were overruled, and this appeal followed.
The case was tried October 25, 1967, nearly five months after it was filed. Defendant did not appear at the trial. At the conclusion of plaintiff’s evidence Grace’s attorney told the court her doctor advised him Grace was emotionally disturbed and should not appear as a witness, but it would be satisfactory for her to be deposed. Her attorney also suggested that since Grace had not been able to be present when Carl testified, Carl should not be present during the taking of Grace’s deposition. Carl’s attorney made the observation he thought Carl had a right to be present, but made no specific objection on that ground, nor did he pursue the matter further, other than to say he reserved the right to introduce rebuttal testimony. In fact, after the deposition was taken, Carl’s attorney registered no objection to the court’s accepting the deposition as Grace’s testimony in the case. No rebuttal evidence was offered, and the case was submitted solely on the parties’ testimony.
Carl’s complaint on appeal, that the court erred in directing the case to proceed to trial when Grace was unable, or refused, to appear, cannot be sustained. There is nothing in the record showing a timely objection, nor did Carl request a continuance of the trial.
Likewise, Carl is in no position to complain because he was not permitted to be present during the taking of Grace’s deposition. Any objection he may have had, no matter how well-founded, was effectively waived when the deposition was later introduced and Carl’s counsel agreed it could be accepted into evidence as Grace’s testimony. (See K. S. A. 60-230 [h] [Am. L. 1970], 60-226 [e] and 60-232 [c].) The contemporaneous objection rule (K. S. A. 60-404) requires a specific and timely objection be made to the admission of evidence in order for the question of its admissibility to be considered on appeal. (Baker v. State, 204 Kan. 607, 464 P. 2d 212; In re Estate of Carlson, 201 Kan. 635, 433 P. 2d 339; Grohusky v. Atlas Assurance Co., 195 Kan. 626, 408 P. 2d 697.)
Moreover, there is no showing that the action of the trial court in either of the foregoing respects resulted in Carl’s substantial rights being prejudicially affected. (K. S. A. 60-261 and 60-2105.) Carl’s attorney was accorded, and exercised, his right to cross-examine Grace when she was deposed, and he was also given the opportunity to present rebuttal evidence if he so desired.
Carl further claims the court erred in holding he had the burden of proving the money paid to Grace was a loan, and contends there was no substantial evidence to support the court’s finding that it was not a loan transaction. We cannot agree.
Ordinarily, there is no presumption that money paid by one person to another was paid as a loan. In actions for money lent, as in other actions, plaintiff has the burden of proving every disputed fact that constitutes an element of his right to recover (Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52; Prince v. Burger, 227 Md. 351, 176 A. 2d 870; see, Midland Oil and Royalty Company v. Schuler, [N. D.], 126 N. W. 2d. 149; 58 C. J. S., Money Lent § 7a and b), and he is not relieved of proving the transaction was a loan simply because the defendant alleges it was a gift (Authement v. Naquin, [La. Appeals], 26 So. 2d 224). The burden of proof is not to be confused with the burden of going forward with the evidence. The burden of proof is always upon the party asserting an affirmative of an issue and remains with him throughout the trial. Even though it may be incumbent upon the other party to proceed with the introduction of evidence at some stage of the proceedings, the burden of going forward with the evidence does not change the burden of proving a disputed issue. (Bowen, Administrator v. Hathaway, 202 Kan. 107, 110, 446 P. 2d 723, and cases cited therein.)
In the instant case the burden of proving whether or not there was a loan transaction, as alleged by Carl, rested on and remained with him throughout the trial.
Although there was sharp conflict in the evidence, the district court found that Carl failed to sustain the burden of proof. This was tantamount to a finding that the money paid to Grace was not in the nature of a loan. There was substantial, competent evidence in the record to support such finding and conclusion.
The trier of facts has the responsibility of weighing tire evidence and determining what testimony will be believed. We, as an appellate court, are concerned only with evidence which supports the trial court’s finding, not with that tending to establish a finding to the contrary. As long as the record discloses substantial, competent evidence to support the findings of the trial court, they are binding and conclusive on appeal. (Cersovsky v. Cersovsky, 201 Kan. 463, 441 P. 2d 829; In re Estate of Pyke, 199 Kan. 1, 427 P. 2d 67; Sullivan v. Sullivan, 196 Kan. 705, 413 P. 2d 988.) Moreover, the finding here that this was not a loan transaction constituted a negative finding of fact, which will not be set aside by nullifying the trial court’s disbelief of evidence that is limited in quantity, or its weight and credibility is questionable. (King v. Robbins, 201 Kan. 748, 443 P. 2d 308; In re Estate of Carlson, supra.)
Other points raised are found to be without merit.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
In this appeal and cross-appeal we are called upon to review the district court’s construction of an antenuptial agreement and the application thereof to the estate of Lucile Hanson Taylor, deceased, who entered into the agreement with Ernest C. Taylor on November 23, 1955. They were married the following day.
Mrs. Taylor died on February 1, 1966. She left a will, dated February 22, 1962, in which the appellants and cross-appellees, her four children by a previous marriage, were designated legatees and devisees. Mr. Taylor did not consent to the will.
No challenge is made as to the validity of the antenuptial contract or the will.
For the sake of convenience and brevity, Mr. and Mrs. Taylor will be referred to hereafter as Ernest and Lucile.
In contemplation of their marriage Ernest and Lucile entered into the contract for the declared purpose of agreeing to their respective rights in each other’s property after a full disclosure by each. The property of each was set out, and it was agreed that all of the property belonging to each party before the marriage should remain forever in their respective personal estates and would include all earnings or income which might accrue or stem in any manner from the respective properties. The parties agreed that each would sign with the other all documents which might be necessary in case either decided to mortgage, lease or convey any of his or her respective property.
Ernest agreed to assume from his own personal estate the necessary expenses for the support and maintenance of Lucile and he set out certain of his property which would be received and inherited by Lucile in case he should predecease her. It was further agreed that in the event Lucile should predecease Ernest all of the property which she brought to the marriage, and owned by her at the time of her death, should go to her children or as she should direct by will.
It was recited that nothing in the agreement should be construed as a bar to either party giving any of his or her property to the other party by will or otherwise.
What the term “property” as used in the contract would include was set out as follows:
“It is agreed that the term ‘property’ used herein does and shall include all the property set out herein and any other property real, personal or mixed, acquired by exchange of such property or purchase from funds now on hand, and any investment or reinvestment of same, as well as as accruals, increase in value together with improvements and betterments, rents, royalties, profits and dividends arising therefore.”
This paragraph was followed by the provision which gave rise to the litigation before us. It reads as follows:
“It is further agreed that this agreement shall have no application to any property acquired by these parties during their marital relationship as a result of their joint and mutual efforts.”
The question squarely presented is whether the property, both real and personal, owned by Lucile at the time of her death and shown to have been acquired by the parties during their marital relationship, was excluded from the application of the provisions of the antenuptial agreement by reason of the provision just quoted.
After Lucile’s death her will was filed for probate in the probate court of Geary County. Lee Hornbalcer, who was nominated as executor in the will, was appointed by the probate court. He filed an inventory and appraisement on June 28, 1966, which disclosed all the property owned by Lucile or in which she held an interest at the time of her death.
In due course, Ernest filed his election to take under the law rather than under the will.
The real property inventoried consisted of six parcels of real estate in or near Junction City. It was scheduled and described as follows:
Item No. 1. House, 411 West 10th, Junction City, owned by Mr. and Mrs. Taylor as tenants in common.
Item No. 2. House, 1227 Westside, Junction City, owned by Mrs. Taylor.
Item No. 3. House, 1306 North Washington, Junction City, owned by Mr. and Mrs. Taylor as joint tenants with right of survivorship.
Item No. 4. House, 701 South Webster, Junction City, owned by Mr. and Mrs. Taylor as tenants in common.
Item No. 5. Business property, 1118-20 North Washington, Junction City, owned by Mr. and Mrs. Taylor as tenants in common.
Item No. 6. A tract of 3,726 acres and a 2-story house thereon, known as the Higgs Farm, owned by Mrs. Taylor.
The inventory included a substantial amount of furniture and household goods, consisting of a wide assortment of glassware, cutlery, furniture and miscellaneous items, requiring over ten pages of the record for the listing thereof. The furniture and household goods, including a 1965 Plymouth automobile, were appraised at $41,584.00. Many of the miscellaneous items were described as antiques by several witnesses.
The executor filed a petition in the probate court asking that the will and antenuptial agreement be construed; that the court enter an order for distribution of the real and personal property of the decendent in accordance with the terms of the antenuptial agreement and of the will of decedent; and further that the court make such order as is necessary and proper upon the petition filed by Ernest for homestead and statutory allowances.
The executors petition was transferred to the district court of Geary County by and with the consent of all interested parties.
A pretrial conference was had at which the parties stipulated to most of the facts, which have been recited, and defined the issues to be determined by the district court.
The appellants filed a pleading in the district court in which they claimed that all of the personal property scheduled in the inventory as furniture and household goods were acquired by the use of the sole and separate funds of decendent and that such personal property was not of the nature and character of property subject to any homestead or statutory allowance claims of a surviving spouse and that according to the terms of the antenuptial agreement such property was the sole and separate property of decedent and should pass in accordance with the provisions of decendent’s will.
With respect to the real property scheduled in the inventory appellants claimed a one-half interest in Item No. 1; the full interest in Item No. 2; an undivided one-half interest in Item No. 4; an undivided one-half interest in Item No. 5, and the full interest in Item No. 6; that such interests were acquired by decedent through the use and reinvestment of her sole and separate property and funds; that in accordance with the provisions of the antenuptial agreement the interests claimed in real property were the sole and separate property of decedent at her death; and that title thereto passed in accordance with the applicable provisions of decedent’s will.
Ernest also filed a pleading in which he alleged that none of the property listed in the inventory was acquired by funds owned by decedent prior to their marriage, with the exception of a small amount of household furnishings and goods at 914M North Washington. He alleged that each of the real properties, described in the inventory, was acquired by his own funds or from funds accumulated by the parties subsequent to the marriage.
With respect to Item No. 3, the house at 1306 North Washington, Ernest asked that it be set over to him as the surviving joint tenant. As to the other five parcels of real estate, Ernest claimed that as the surviving spouse, having elected to take under the law, he was. entitled to one-half of the interest owned by Lucile in each of the properties. At the trial both parties submitted parol testimony and documentary evidence relating to the acquisition of the real properties.
The trial court, by memorandum decision, generaly ruled that all of the property inventoried was acquired subsequent to the marriage of the parties by their joint and mutual efforts and was. not controlled by the antenuptial agreement.
Findings of the court pertinent to this appeal are as follows:
“(6) That said agreement is applicable only to the property held by the individual parties at the time of the making of the said agreement, and is not controlling as to the property acquired after marriage, unless' there was a tracing of funds to the after-acquired property. The court relies upon the following statement found in the Antenuptial Agreement. ‘It is further agreed that this agreement shall have no application to any property acquired by these parties during their marital relationship as a result of their joint and mutual efforts/
“(7) That there was no evidence presented showing any tracing of funds from property set forth in the Antenuptial Agreement to any property inventoried in the estate.
“(8) That the use of the phrase ‘as a result of their joint and mutual efforts' is legalese and is used merely to differentiate from property, real or personal, acquired after the marriage from funds of the parties held at the time of the Antenuptial Agreement or acquired by the reinvestment of funds secured by the sale of property held at the time of the said agreement.
“(9) That all the following real property was purchased or contracted for subsequent to the marriage. The title as shown is by stipulation of the parties:
(The court lists the real properties showing the tide to each as stipulated by the parties.)
“(10) That the exhibits admitted incorporated herein by reference and the manner in which the property is titled represented an attempt by the parties to keep their interests equal in the property acquired after the marriage.
“(11) The court considered the notation on Exhibit 1 dated 15 June 1959, and the subsequent deed, Exhibit 2, to the same property, dated 5 April 1963.
“(12) The court, based upon the above findings, finds that the Antenuptial Agreement does not exclude Ernest C. Taylor, spouse of the deceased, from his rights of inheritance as the husband as provided for under the laws of the State of Kansas, as to all property, real and personal, owned by the decedent at the date of her death, the same being specifically set forth in the inventory made a part of this decision, the exception being personal furniture described in the Antenuptial Agreement as being located at 914K North Washington Street, Junction City, Kansas, and owned at the time of said agreement by the decedent.
“(13) The court, based upon its finding No. (12), and the fact that Ernest C. Taylor, husband of the decedent at the time of her death, did not approve or agree to the admitted will, finds that the election of surviving spouse to take under the law, and the order to file the same of record, are sufficient to entitle Ernest C. Taylor to a one-half interest in tire property, both real and personal, held by the decedent at the time of her death, subject to the exception noted in (12) above.
“(14) The court finds that the devisees and legatees under the will shall take according to the will, subject to the finding made in (13) above.”
The court further found that no homestead had been established by the parties and, therefore, Ernest was not entitled to homestead rights in any of the real properties.
At the time of Lucile’s death, she and Ernest were living in a residence known as 339 West 8th Street, Junction City, in which Lucile held a life estate. The record title to this property was in Ebby Halliday Acers, daughter of Lucile.
In finding No. 20 the court found that Ernest was entitled to the statutory allowances of personal property accorded a spouse under the laws of Kansas.
Two days after filing the memorandum, the court, apparently on its own motion, changed finding No. 20 entering an order as follows:
“Paragraph (20) under ‘Findings of Fact and Conclusions of Law’ should be changed to read as follows:
“(20) The court finds that Ernest C. Taylor is entitled to the statutory allowances for personal property, the same being wearing appaz'el, furnitui’e, household goods, utensils necessary for the operation of the household, located at 339 West Eighth Street, Junction City, Kansas, and the sum of $750 for other personal property at its appraised value, equal to said sum.”
The appellants attacked the trial court’s decision by a posttrial motion which was overruled in all respects except as to finding No. 20 dealing with the statutory allowances.
The trial court clarified the intended effect of finding No. 20 by the following rulings:
“(4) It was, and is, this Court’s intention by paragraph 20 to set over to Ernest Taylor those properties located at 339 West Eighth Street necessary for the operation and the proper functioning of a home.
“(5) Because of the uniqueness of the other items contained in said property, the same being antiques collected by the deceased, and in many instances being of more than one kind, i. e., several sets of dishes, several china cabinets and/or breakfronts, the Court does not believe this property falls within the purview of the statutory allowances.
“(6) To be more specific, the Court intends that Mr. Taylor have as his own and separate property one set of living room furniture, one set each of bedroom furniture and of dining room furniture, sufficient china to eat from, and any other item not specifically enumerated which is necessary for the operation of his household.”
In their posttrial motion, appellants concede the trial court’s rulings were correct as to the three tracts of real estate, which we have shown as Items Nos. 1, 2 and 3. Thus, we are concerned on appeal with only the three remaining parcels of real estate and the personal property inventoried as household goods and effects.
An application for a stay of judgment was granted, conditioned on appellants filing a supersedeas bond in the amount of $20,000.00. It was further ordered that Ernest might retain possession of the spouse’s allowance made by the court if he posted a $7,000.00 bond, conditioned that, if ordered, he return the property awarded to him as spouse’s allowance in as good condition as when taken. With respect to the bond required of Ernest the court further ruled:
“It is further by the court ordered that Ernest C. Taylor shall post a bond herein in the amount of $7,000.00 protecting the respondents other than Ernest C. Taylor, conditioned that he will deliver such property awarded to him as his ‘spouse’s’ in as good condition as it now is, if such return is ordered by the Supreme Court of the State of Kansas in the appeal now pending. It is further by the court ordered that if the decision of the District Court with respect to the spouse’s allowance is affirmed or decided favorably to respondent, Ernest C. Taylor, upon the appeal to the Supreme Court, then the other respondents shall be liable for the cost and expenses of obtaining said bond and Ernest C. Taylor shall be entitled to all damages and expenses recoverable by law under a supersedeas bond.”
On appeal, appellants challenge the trial court’s judgment in awarding Ernest one-half of Lucile’s interest in the three parcels of real estate, in setting off a spouse’s allowance to Ernest, and in awarding him one-half of the remaining personal property. Appellants also appeal from the court’s order concerning the conditions pertaining to the $7,000.00 bond which Ernest was required to post.
Ernest has cross-appealed from the award of his statutory allowance. He claims that he was entitled to all of the inventoried items as a statutory allowance of household goods and effects to a surviving spouse.
With respect to the real estate appellants argue the trial court failed to give effect to certain recitations in deeds conveying the three parcels involved.
The house at 701 South Webster, to which we have referred as Item No. 4, was acquired in 1957. Title was taken by Ernest and Lucile as tenants in common. On June 15, 1959, Ernest conveyed to Lucile by warranty deed. In the deed it was recited:
“. . . Grantor renounces and disclaims any right of inheritance in and to the property. It is the intent and purpose of this instrument that the described property be and become the sole and separate property of grantee.”
On April 6, 1963, by warranty deed it was reconveyed to Ernest and Lucile, the deed reciting:
“This is a deed from wife to her husband and herself to place the ownership of the subject property in the grantors as tenants in common and in order to properly reflect the ownership of the property. There is no consideration other than as above stated.”
The business property, previously referred to as Item No. 5, was acquired by Ernest on May 13, 1960. On November 7, 1960, he conveyed an undivided one-half interest to Lucile. This later deed contained the following recitation:
“This a deed from husband to wife of an undivided one-half interest in and to the described property. The property was purchased by the parties in May, 1960, and through inadvertance the title was taken in the name of the grantee. The parties are each contributing to the purchase price and the intent and purpose of this deed is to reflect the facts and to show the parties as tenants in common as to the property, each owning an undivided one-half interest.”
The Higgs Farm, to which we have referred as Item No. 6, was acquired on March 1, 1961, and title taken in Ernest and Lucile as tenants in common. On March 3, 1965, Ernest conveyed to Lucile by warranty deed which contained the recitation:
“(Conveyance to effect division of property, no Monetary value involved)”
Appellants contend the recitations in the deeds brought about an ambiguity necessitating the consideration of circumstances attending and surrounding the execution of said deeds in order to determine what was meant by the parties. They also contend that since Ernest and Lucile had executed an antenuptial agreement, creating the idea of separate and individual estates, the recitals of the deeds were intended to carry forward that idea and the recitations, that the conveyances were to effect a division of property or were to properly reflect ownership, were inserted to show that the parties were truly dividing assets between themselves and were doing so to the exclusion of the other party.
The trial court found to the contrary, basing its decision on the undisputed facts established by the documentary evidence, that all of the real property was acquired subsequent to the marriage and, on the further ground, that there was no evidence tracing any funds derived from the property of Lucile set forth in the agreement into the inventoried property. The court concluded the contract did not apply to any of the inventoried property and, therefore, Ernest’s right to inheritance was not barred.
The trial court found that the recitations in the deeds indicated an attempt by the parties to keep their interest equal in property acquired after marriage, but that in so doing they did not exclude the right of inheritance of a party as surviving spouse in such after acquired property.
We agree with the reasoning of the trial court.
It is a familiar rule in this jurisdiction that when antenuptial contracts are fairly and understanding^ made, are just and equitable in their provisions, and are free from fraud, deceit and overreaching, they are valid and enforceable and are to be liberally inteipreted so as to carry out the intention of the makers. (In re Estate of Johnson, 170 Kan. 308, 224 P. 2d 1032; Vol. 5A West’s Kansas Digest, Husband and Wife, § 29[9]; Vols. 1-3 Hatcher’s Kansas Digest, Rev. Ed. Perm. Supp., Husband and Wife, § 26.)
It clearly appears from the language of the instant contract that the parties intended to preserve their interests in their respective properties owned by each at the time of their marriage. They carefully agreed that the term “property” as used would include any other property “acquired by exchange of such property or purchase from funds now on hand, and any investment or reinvestment of same, as well as accruals, increase in value together with improvements and betterments, rents, royalties, profits and dividends arising therefore.”
It is equally clear that the parties intended to exclude from the provisions of the contract any property acquired during the marriage by means other than the use of funds from the sale, exchange, or increments stemming from the property owned previous to the marriage. In other words, property acquired by means independent of any property or funds previously held by either party would be subject to inheritance by the survivor.
Doubt suggested by appellants as to the meaning of the phrase “as a result of their joint and mutual efforts” must be resolved in favor of the surviving spouse. The right to inherit will not be cut off by a strained interpretation of language used in a ante-nuptial contract. (In re Estate of Johnson, supra.)
In the absence of any evidence tracing the funds used to acquire the property in question, it must be said that it was acquired by the parties jointly during their marriage. The meaning of the phrase “acquired by the parties jointly during their marriage” was considered in Forrey v. Forrey, 167 Kan. 77, 204 P. 2d 725, wherein it was said that jointly acquired property included all property acquired during a marriage, excluding only that previously owned or acquired by funds in the hands of a party prior to the marriage.
To give the effect to the contract and deed recitations proposed by appellants would result in barring Ernest’s right of inheritance in the after acquired property.
While a surviving spouse may bar or limit his or her right of inheritance by an antenuptial contract the intent to do so must clearly appear. The right to inherit is a statutory right and favored by the law. Before an antenuptial contract will be construed to cut off such right the intended result must clearly and unmistakably appear from an examination of the language used, and no stained interpretation of language will be permitted to strip a surviving spouse of his or her inheritable interest in the property of the deceased spouse. (In re Estate of Johnson, supra; In re Estate of Place, 166 Kan. 528, 203 P. 2d 132; In re Estate of Troemper, 160 Kan. 464, 163 P. 2d 379; Bemarkt v. Prouty, 132 Kan. 228, 294 Pac. 890; McVicar v. McVicar, 128 Kan. 394, 278 Pac. 36.)
The same principles are applicable to the statutory allowance of a surviving spouse. In the case of In re Estate of Place, supra, it was held:
“In order that an antenuptial contract be construed as a waiver by a widow of her right to a statutory allowance from her deceased husband’s estate, such waiver must clearly appear from the contract or be clearly deducible therefrom.” (Syl. § 4.)
With respect to the real and personal property involved in this appeal we hold, under the evidence presented, that the rights of Ernest, as surviving spouse, to his statutory allowance and to inherit was not barred by the terms of the antenuptial contract or by the recitations set out in the several deeds referred to.
Concerning the items of personal property, appellants argue the evidence established that decedent purchased virtually all of the items inventoried under the caption “Furniture and Household Goods.” They say the evidence shows that such items were in fact acquired by the separate funds given to Lucile by her daughter, Ebby, one of the appellants, and thus the provisions of the contract would apply so as to bar Ernest’s rights to inherit and to his statutory allowance.
Appellants offered the testimony of Ebby who testified that her mother collected the items with the intention of opening an antique shop. Ebby further testified that she furnished the money for the purchase of most of the antiques. Her testimony was supported to some extent by the testimony of Evelyn Britt, a Junction City antique dealer. None of the testimony was supported by any documentary evidence such as cancelled checks or money order receipts.
Ernest testified that he purchased some of the items himself; that all were purchased from joint funds; that the items were kept all over the house, some located in each room; and that he had a personal interest in them. He testified that of all the items listed only one bed, one dresser, one chest of drawers, and, perhaps, a radio had been owned by Lucile prior to their marriage.
Personal property was included in the trial court’s findings, that all of the property involved was acquired subsequent to the marriage and that there was no tracing of funds. In view of Ernest’s testimony and the failure of appellants to show any tracing of funds other than by parol testimony, unsupported by documentary evidence, the findings of the trial court cannot be disturbed. The point is resolved by the familiar rule that findings of fact made by a trial court, supported by competent evidence, will not be disturbed on appeal. (Bowen, Administrator v. Hathaway, 202 Kan. 107, 446 P. 2d 723; Atkinson v. Herington Cattle Co. Inc., 200 Kan. 298, 436 P. 2d 816; Martin v. Martin, 200 Kan. 60, 434 P. 2d 833.)
Lastly, appellants complain of the burden put on them by the conditions imposed by the trial court in connection with the supersedeas bond required of Ernest on request of appellants with their motion for stay of judgment.
Conditions to be prescribed for the security of the adverse party when judgment is stayed are within the discretion of the trial court. (K. S. A. 60-262 [&])
Here the trial court allowed Ernest what were found to be his household furnishings and effects under K. S. A. 59-403 (now 1969 Supp.), but then on the request of appellants he was required to post bond before he could retain and use the furnishings allowed to him. Under such circumstances the imposition of the conditions on appellants in connection with the bond did not amount to an abuse of discretion.
We turn next to the cross-appeal wherein Ernest claims he was entitled to all of the household items as the statutory allowance of a surviving spouse under the provisions of 59-403, supra.
First, appellants claim Ernest forfeited his right to cross-appeal since he took possession of the items awarded to him under the amendments to finding No. 20 and thus acquiesced in the judgment. In view of our disposition of the cross-appeal it is unnecessary to dwell at length on this question. It will suffice to say that, under the circumstances shown to exist, we do not believe the action of Ernest in retaining the household furnishings awarded to him is conduct so inconsistent as to work an estoppel of his right to appeal. (James v. Amrine, 157 Kan. 397, 140 P. 2d 362.)
Turning to the merits of the cross-appeal, in short Ernest claims the trial court attempted to rewrite provisions for a spouse’s allowance under 59-403, supra, by limiting his allowance to those items specified in the amendments to finding No. 20.
The items involved here, in order to be included in a spouse’s allowance, must fall into the category of “furniture and household goods, utensils and implements used in the home,” (emphasis supplied), set out in 59-403 (1).
There was evidence offered by appellants that most of the items were not used in the home because (1) they were not functional or adaptable to household use and (2) because of their character as antiques and their exceptional value they would not be used in a home.
The trial court found the items, other than those allowed to Ernest, to be unique in character, were collected by Lucile as antiques, and further to consist, in some instances, of many duplications of the same item such as several sets of dishes. The court concluded that this kind of property did not fall within the purview of the statutory allowances.
As heretofore noted, the testimony of Ernest was contrary to that of appellants’ witnesses. Thus, an issue of fact was presented to be determined by the trial court.
We believe the determination arrived at by the trial court was equitable and supported by competent evidence. There was evidence that the items were acquired for a purpose other than for household use. From the number and nature of the articles enumerated, it is obvious they could not all be utilized in household use. We do not intend to say that everyday household use is necessary to establish an article as a household utensil within the purview of the statute, but we believe there is evidence here to justify the distinction made by the trial court.
Generally speaking, a surviving spouse’s right to allowances is favored under the law and statutes dealing with the subject are entitled to liberal construction. (31 Am. Jur. 2d, Executors and Administrators, § 324, pp. 161, 162; Breen v. Davies, 94 Kan. 474, 146 Pac. 1147.) The rule stated, however, does not require a trier of facts to accept per se and irrefutably the evidence of a surviving spouse and reject entirely and without consideration the evidence of one opposing the claim of such surviving spouse.
In his cross-appeal brief, Ernest cites the case of Lupton v. Merchants Nat’l Bank, 140 Kan. 615, 38 P. 2d 125, wherein the court held a library consisting of expensive and unusual books to be a family library. “Family library” is singularly enumerated as one of the items to be set off under the provisions of 59-403 (1), supra. The question here is whether the articles described as antiques fall in the broader category of household goods and utensils used in the home. In view of appellants’ evidence as to the character of the articles in question and that they were acquired and owned for a purpose other than household use, the issue was properly submitted to the trier of facts.
From what has been said it therefore follows that all orders and judgment appealed from the trial court should be and they are hereby affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This action was initiated by the plaintiff, Isis Foods, Inc., to recover the balance owing for the sale of goods and merchandise by plaintiff to various Tastee Freez stores for which the defendant, Mo-Kan Enterprises, Inc., held the franchise. For the sake of brevity, the parties will hereafter be referred to as Isis and Mo-Kan.
Mo-Kan admitted the amount of Isis’ claim, but by way of counterclaim sought to recover commissions from Isis on the sale of ice cream mix, goods and merchandise supplied by Isis to fran chise stores operated by Mo-Kan. After trial without a jury, the district court found for Isis on its claim for $2,062.69 and for Mo-Kan on its counterclaim for $2,994.42, and rendered judgment accordingly. Isis has appealed from only that part of the judgment in favor of Mo-Kan on its counterclaim.
The principal question before us is whether the trial court’s findings that Isis agreed to pay sales commissions, as alleged, to Mo-Kan is supported by substantial, competent evidence.
Isis was a supplier of various food items and other merchandise for restaurants and businesses in Kansas and Missouri. Mo-Kan was the owner and holder of a franchise for numerous independently owned Tastee Freez stores throughout Kansas and the western one-third of Missouri in which food, soft ice cream and the like were sold. During the fall of 1965 representatives of the two companies met on several occasions for the purpose of establishing a commissary system by which Isis would supply the various Tastee Freez stores in the franchise area with such merchandise as ice cream mix, french fries, plastic spoons, and other related items.
An agreement was finally reached by the parties January 27, 1966, at a conference held in Chicago in the office of Bernard Spira, vice president of the Harlee Company (the parent company of the Tastee Freez Industries). The conference was attended by Mr. Spira, Bernard Barash, executive vice president and treasurer of Isis, and Thomas M. Warner, vice president of Mo-Kan.
The evidence concerning the payment of any commissions to Mo-Kan for merchandise sold by Isis to the Tastee Freez stores was sharply conflicting. The district court found that at the Chicago conference Mr. Spira explained that the usual commission paid in a commissary operation of this type was five per cent on all merchandise sold, other than ice cream mix, and that Mr. Barash, on behalf of Isis, said that would be satisfactory. The court found from all the evidence there was a definite understanding between the parties, prior to the conclusion of the Chicago conference, that Isis was to pay Mo-Kan a five per cent commission, which agreement, though not reduced to a formal written contract, was never changed or repudiated during the parties’ subsequent dealings. The district court also found that a discussion took place in Chicago whereby Isis would pay Mo-Kan forty-two and one-half cents per gallon for ice cream mix furnished by Isis to the franchise stores, but because of delivery difficulties encountered when the operation got under way, an ultimate price of forty-one cents per gallon was finally agreed upon by the parties.
No useful purpose would be served by our setting out the conflicting evidence; neither do we deem it necessary to engage in a dissertation on the law of contracts, either express or implied. The task of resolving the conflicts in the evidence was for the trier of the facts, not this court. Our only concern is whether there was substantial, competent evidence to support the trial court’s findings. If so, they will not be set aside on appellate review. (Hindman v. Shepard, 205 Kan. 207, 468 P. 2d 103; Cersovsky v. Cersovsky, 201 Kan. 463, 441 P. 2d 829; cases cited in 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§507, 508.)
An examination of the record discloses there was substantial, competent evidence to support the trial court’s findings that the parties agreed Isis was to pay commissions of forty-one cents per gallon on all sales of ice cream mix and five per cent on gross sales of other merchandise. The court properly entered judgment for Mo-Kan on its counterclaim.
One other matter deserves brief mention. Isis complains that the trial court erred in denying its motion for an order compelling Mo-Kan to pay travel expenses for counsel’s attendance at the taking of Mr. Spira’s deposition in Chicago. The deposition was taken by Mo-Kan and introduced at trial as part of the evidence in support of its counterclaim.
When notice is given for the taking of a deposition outside the state, and at a considerable distance from the place where the case is to be tried, K. S. A. 60-230 (b) authorizes the trial court, in its discretion, to require the party taking the deposition to pay travel expenses of the opposite party and of his attorney. The federal counterpart to our rule is found in Rule 30 (b) of the Federal Rules of Civil Procedure, although in less specific detail. These rules were formulated to protect deponents and parties from possible abuse of the discovery process. Whether or not a protective order should be granted depends upon the peculiar equities of the case. (See, Anno. 70 A.L.R. 2d 685.)
Ordinarily, the trial court is vested with broad powers of discretion in making such orders with respect to the allowance of costs and expenses in the taking of depositions as it deems necessary to protect the party or witness from undue financial hardship. Before a ruling of the lower court will be disturbed on appeal, the appellant must show there was a manifest abuse of discretion. We find nothing in the record to indicate that Isis has met that burden.
Other points have been raised but are found to be unmeritorious.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontbon, J.:
This appeal stems from an action to recover for injuries received when the plaintiff suffered a fall on the defendants’ front porch resulting in a fractured ankle. Summary judgment was entered in favor of the defendants on the ground that the plaintiff was a mere licensee at the time of her injury.
The sole question presented on appeal is whether the trial court was correct in entering summary judgment on the premise that the status of Mrs. Weil, the plaintiff, was that of a licensee, since the plaintiff concedes there is no evidence of willful, gross or wanton negligence on the part of the defendants.
A somewhat detailed recital of the facts is required. On the afternoon of November 2, 1965, the plaintiff stopped at the Smith residence for the purpose, according to her own testimony, of picking up some eggs. After a bit of womanly conversation, she inquired if Mrs. Smith had any eggs that day. Receiving a negative response, Mrs. Weil shortly thereafter took her leave. As she proceeded through the door leading to the porch, she stepped on a mat on the porch floor which slipped and gave way, causing Mrs. Weil to fall and break her ankle.
According to the deposition of Mrs. Weil which was before the court, together with the deposition of Mrs. Smith, she had been getting fresh eggs from Mrs. Smith for about a year or so, as and when she needed them, during which time either she or members of her family had gone to the Smith house some twenty-four times for such purpose; that these trips were not made on a regular or weekly basis, but just when the plaintiff was out of eggs; this arrangement originated through a niece of Mrs. Smith, who was getting eggs from her aunt; that she, Mrs. Weil, paid Mrs. Smith thirty-five cents a dozen for the eggs she received; on November 2, the date of the fall, Mrs. Smith had not called her to come and get eggs but she went to the Smith house for that purpose and didn’t think she would have stopped there if she hadn’t needed eggs that day; that she was stopping after eggs if Mrs. Smith had any.
To some extent Mrs. Smith’s deposition coincided with that of Mrs. Weil. Mrs. Smith’s testimony was that a family friend brought the eggs to her house as a favor to a widowed farm lady and that she paid thirty-five cents a dozen for them; that her family, her daughters, nieces and sister usually took most of the eggs at the same price she paid and sometimes there would be extra ones that Mrs. Weil would get, sometimes from her niece, Mrs. Lessline, a neighbor of Mrs. Weil, and some five or six times from Mrs. Smith herself; that she never called Mrs. Weil to come and get eggs and did not do so on the day in question; that basically, the eggs were for members of her family but sometimes she would get over supplied when they went on vacation, or when her farm lady would send more eggs than they really wanted; on the day of the accident she and Mrs. Weil talked awhile before the latter asked about eggs and was advised there were none; they talked a few minutes longer and plaintiff then left, with the remark that she was going to pick up her daughter and go on to Fort Riley; that Mrs. Weil was at her house between fifteen and twenty minutes.
Both women agreed they were on friendly terms, occasionally going to bingo parties together and visiting each others premises when asked; Mrs. Smith said she presumed she was a social friend of the plaintiff.
It is against this background that we are called upon to determine the soundness of the summary judgment entered by the trial court in favor of the defendants.
The principles governing the duty owed by an owner or occupant of land to a licensee or social guest on the one hand, and to a business or public invitee on the other, have frequently been considered by this court and have become well established in this jurisdiction. In general, the duty owed to a licensee is much less onerous than that due an invitee. As to the former, liability is predicated only on conduct equivalent to wilfullness or wantonness; as to the latter, the basis of liability of simple negligence alone. (Morris v. Atchison, T. & S. F. Rly. Co., 198 Kan. 147, 422 P. 2d 920.)
Definitions of “licensee” and “invitee”, which we deem still to be sound, may also be found within the covers of our reports but, as is so often the case, vexing problems continue to arise with respect to the application of those principles under the facts of specific situations.
Before proceeding further it would be well to point out that the term “invitee” is used in this opinion in the context of what we have often denoted a “business invitee.”
It may be helpful to refer at this point to what has been said in previous cases. In Graham, v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750, by way of distinguishing the terms licensee and invitee we employed this language:
“A licensee is defined in 65 C. J. S. Negligence § 32a, p. 481 as follows: “ ‘. . . [A]s a general rule, a person is a “licensee,” as that term is used in the law of negligence, where his entry or use of the premises is permitted, expressly or impliedly, by the owner or person in control thereof, or by operation of law, so that he is not a trespasser . . .’
“An invitee is also defined in 65 C. J. S. Negligence § 43 (1), p. 508 where it is stated:
“ ‘Broadly stated, an invitee is a person who enters on the premises of another in answer to an express or implied invitation. The term “invitee” is more fully defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage . . (pp. 362, 363.)
Speaking further in the Graham case the court went on to say:
“It may be generally stated that an invitation may be implied if there is some relationship inuring to the benefit of both the injured party and that of the occupier of the premises. (Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438.)” (p. 563.)
In a more recent case relating to the same topic, Smith v. Board of Education, 204 Kan. 580, 464 P. 2d 571, we referred to the opinion in Graham and further quoted from 65 C. J. S. (1966 Ed.), Negligence, § 63 (41), p. 716, as follows:
“ ‘Many cases define an invitee as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Whether a person entering the premises of another is an invitee depends on the purpose or the nature of business which brings him on the premises. If the purpose of the entry or visit is one of common interest or mutual advantage, the visitor is considered an invitee.
“ ‘One entering premises on invitation does not enjoy the status of invitee unless the entry is made in connection with the business or purposes of the owner. Only a person who goes on the land for the purpose of carrying on a transaction for the benefit of both parties or the benefit of the owner can attain the status of invitee. To establish an inviter-invitee relationship, there must be some real or supposed mutuality of interest in the subject to which the visitor’s business or purpose relates. If the invitation is purely for the benefit, convenience, or pleasure of the one invited, he is a licensee, . . .’” (pp. 586, 587.)
In many instances, if not, indeed, in most, it can be said that status of a visitor may be determined as a matter of law. For example, we have not hesitated to say that one who enters a retail store for the purpose of making a purchase therein is a business invitee. (Little v. Butner, 186 Kan. 75, 348 P. 2d 1022; Marietta v. Springer, 193 Kan. 266, 392 P. 2d 858.) On the other hand, we have been consistent in holding that one who makes a social visit, even by express invitation, is merely a social guest and does not come within the category of either a business or a public invitee. (Ralls v. Caliendo, 198 Kan. 84, 422 P. 2d 862; Duckers v. Lynch, 204 Kan. 649, 465 P. 2d 945.)
There are however, situations where the line between social and business visitors may not be drawn so clearly; where the benefit to the landowner or the mutuality of interest and ‘advantage to both invitor and invitee may not be so obvious or patent. Occasions may arise when the evidence, and the reasonable inferences to be drawn therefrom, may reasonably admit of more than one conclusion, and where such be the case, the matter is one of fact for submission to a jury — or to the court where it is acting as the trier of the facts. In Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, we said:
“Courts should be careful not to encroach upon the province of jurors when the facts, although undisputed are such that the minds of candid persons may draw differing inferences and arrive at opposing conclusions. . . .” (p. 483.)
Examples are not lacking in this area — either in Kansas or in other jurisdictions. In Weaver v. Laundon, 186 Kan. 551, 352 P. 2d 412, one of the questions submitted on appeal was whether the plaintiff was a business invitee as to that part of the defendants’ premises where the accident occurred. Briefly, the facts were these: Plaintiff and her husband had taken a few turkeys to the defendants’ place of business to be killed, dressed and placed in plastic bags. Upon returning for the birds at the time they were promised, the couple found the turkeys had not been bagged, and that the employees responsible for bagging them had left. They thereupon obtained some bags from the office and proceeded to the “killing room” to bag the birds themselves, and there the plaintiff fell and injured herself.
In reversing the trial court’s order which sustained a demurrer to the plaintiff’s evidence, this court said there was evidence from which a jury could find that the plaintiff was a business invitee on the premises of the defendants at the time and place where she fell.
In Augsburger v. Singer, 103 Ill. App. 2d 12, 242 N. E. 2d 436, it was held that the evidence raised a jury question as to whether the plaintiff, who was injured while helping the defendants dismantle a carnival display, was a volunteer or whether he was an invitee.
To similar effect, the California court, in Cain v. Friend, 171 C. A. 2d 806, 341 P. 2d 753, said that whether one is an invitee or a licensee (it being contended that the plaintiff was merely a social visitor or guest) is a question of fact where the evidence is conflicting.
The facts in a recent Colorado case, Husser v. School Dist., 159 Colo. 590, 413 P. 2d 906, posed the question of whether a florist who had delivered a floral display to the high school auditorium and insisted on placing it on the stage instead of in the foyer, was an invitee at the time and place of his injury. In the course of its holding that a jury question was presented, the court said:
“An owner’s duty of care varies according to the relationship he bears to the person on his premises. Where the latter’s status is equivocal by reason of conflicting evidence and the legitimate inferences which may be drawn therefrom, it becomes the duty of the jury to determine whether he is an invitee or a licensee. . . .” (p. 593.)
“In the case of a licensee, the advantage is unilateral; he goes upon the premises for his own convenience or to advance his own interest, pursuant to the permission or consent of the owner. . . .” (pp. 594, 595.)
“An invitee is one who comes upon the premises of another to transact business in which the parties are mutually interested. . . .” (p. 594.)
In Schwartz v. Eisen, 267 N. Y. S. 2d 541, 25 A. D. 2d 555, the plaintiff wife testified at the trial that on the day of her injury she had gone shopping for the defendant at the defendant’s request; that she entered the defendant’s premises to deliver her purchases and, while leaving, stepped on a loose brick which gave way causing her to fall. The New York court held such testimony was sufficient to raise a question of fact as to whether the plaintiff was a social visitor or a business invitee and her case should not have been dismissed at the close of her evidence.
See, also, Patania v. Silverstone, 3 Ariz. App. 424, 415 P. 2d 139; Mozert v. Noeding, 76 N. M. 396, 415 P. 2d 364.
The evidence is sparse in this case as to what, if any, benefit accrued to Mrs. Smith from the arrangement under which Mrs. Weil purchased her excess eggs. However, we are unable to say, as a legal proposition, that differing conclusions might not reasonably be drawn from the testimony. Although the evidence stands undisputed that the price paid by Mrs. Weil was identical with that paid by Mrs. Smith to her supplier, the circumstances are such that an inference of mutual benefit and advantage to both women might reasonably be justified. It is at least arguable that each lady derived an advantage which to her was beneficial, as they jointly pursued a plan whereby Mrs. Weil received fresh eggs at a reasonable price and Mrs. Smith disposed of her surplus eggs.
As we have indicated before, a financial benefit to an owner or tenant of land is not an essential factor in the creation of an invitee status, as such a status is contrasted with that of a licensee. The case of Rollins v. Marengo, 354 Mass. 765, 238 N. E. 2d 372 is illustrative. In that case the plaintiff, who was to act as the godmother of the defendants’ two-week old child at its christening, was injured in a fall on an outside step at defendants’ home while carrying the infant. Her purpose in being at defendants’ home was to act as godmother and take the child to church, since the mother was going to stay home. The case was submited to the jury which found the defendants were liable to the plaintiff, not as a social visitor but as an invitee.
In a memorandum filed by the trial court in the instant case the court pointed out, that on the day in question, Mrs. Smith had no excess eggs for disposal. Although this may have saddened Mrs. Weil, this factor would not play a decisive role in the determination of her status. Actual receipt of benefits from a visit is not essential to a visitors’ status as an invitee, and a person may be a business invitee even though the landowner ultimately receives no tangible benefits from the transaction. (65 C. J. S., Negligence, §63 (43)b, p.725.)
Nor do we consider as conclusive on the question of Mrs. Weil’s status, the fact that Mrs. Smith derived no financial profit from the sale of eggs to Mrs. Weil, if there were other benefits or advantages flowing to Mrs. Smith from the mutual course of their dealing.
In the brief filed by the defendants it is inferred that the purchase of eggs was not the real purpose behind Mrs. Weil’s visit. In this connection the defendants emphasize the social friendship existing between the two women, together with the length of time and the range of subjects covered by their conversation both before and after the subject of eggs came up.
The significance which attends the underlying purpose of a visit made to the premises of another is emphasized in the language found in Lemon v. Busey, 204 Kan. 119, 461 P. 2d 145. In that case, speaking through Justice Schroeder, the court said:
“The fact that someone is invited to visit does not make him a public invitee. The purpose of his visit determines his status. . . .” (p. 123.)
We believe the same holds true when the issue to be determined is whether the status of one who is on another’s land is that of a licensee or a business invitee, or where a distinction has to be made between a purely social visit and one bringing mutual benefit to both host and guest. When the question to be resolved concerns the status of one who has entered upon another’s premises by express or implied invitation, the issue is to be determined in the context of the reason for the visit. And where there is honest doubt as to the purpose of the visit, the issue is for the jury to decide.
Even though the plaintiff said, by way of her deposition, that the object of her visit was to pick up eggs, and she thought she would not have stopped had she not needed them, her primary purpose in visiting the Smith residence was not as clear cut or definitive as might be desired. Under all the prevailing circumstances of this case we believe the issue should have been left to the jury.
The judgment of the court below is reversed with directions to set aside and vacate the summaiy judgment entered in favor of the defendants and to proceed with trial of the action in a manner consistent with the views here expressed.
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The opinion of the court was delivered by
Kaul, J.:
This action arises out of a rear end automobile collision on October 14, 1965, at the intersection of West Tenth Street and Topeka Boulevard in Topeka. Plaintiff, Mary Irene Nelson, was a passenger and riding in the front seat of a vehicle driven by her sister, Donna Baker. Plaintiff brings this appeal from a judgment rendered against her upon an adverse jury verdict.
The Baker vehicle was traveling in a westerly direction on Tenth Street at a speed of twenty to twenty-five miles per hour. As the vehicle approached the intersection, at a distance of about two car lengths, the driver noticed the light turn yellow. Mrs. Baker admitted that she stopped quickly and that her two children, who were riding in the back seat, were thrown on the floor of the vehicle. Thereafter, the automobile driven by defendant, Benjamine E. Hardesty, collided with the rear of the Baker car.
Hardesty testified that the traffic light was still yellow when the vehicles collided and that moving traffic, both to the left and right of the Baker vehicle, proceeded on through the intersection.
Plaintiff testified that she noticed pain immediately after the accident and was taken to the office of her family physician, Dr. Harry Bowen, where she was examined and given conservative treatment. Dr. Bowen transferred plaintiff to Dr. Harry G. Kroll, an orthopedic surgeon, who examined plaintiff on October 20, 1965, six days after the accident. Dr. Kroll testified that x-rays revealed no evidence of bone injury or significant joint incongruence. He put plaintiff on a program of physical therapy and released her on January 17, 1966. She returned to Dr. Kroll’s office on February 21, 1966, and complained of soreness in her lower back. Plaintiff was seen by Dr. Kroll once or twice a month until October 24, 1966. In the meantime she had returned to Dr. Bowen and had also seen Dr. Richard C. Tozer, a neurosurgeon.
The evidence developed that plaintiff had undergone treatment for back and neck pains since 1961. During 1961 and 62 she had been examined and treated by Drs. Bowen, Kroll and Tozer.
Following the accident, and after she had been released by Dr. Kroll, she was referred by Dr. Bowen to Dr. John Lynch, an orthopedic surgeon. Dr. Lynch examined plaintiff on November 16, 1966, He testified plaintiff complained of pain in her back, right shoulder, lower back and right hip, which she related to an automobile accident which occurred on October 14, 1965, a year prior to his examination. She told Dr. Lynch that she had seen Dr. Kroll and Dr. Bowen, but did not, at that time, give the doctor her medical history prior to the accident. Dr. Lynch concluded his testimony with the opinion that plaintiff’s problems originated long before the accident and that she would probably have some problems in the future unrelated to any accident.
Neither Dr. Kroll nor Dr. Bowen was able to affirmatively relate, with medical certainty, that plaintiff’s complaints were related to the automobile accident.
The record is silent as to when this action was filed. There were two pretrial conferences, one on June 26, 1967, and the other on September 29, 1967. The cause was tried to a jury on October 9, 1967, and a verdict in favor of defendant was returned. After plaintiff’s motion for a new trial was overruled she perfected this appeal.
On appeal plaintiff urges that a new trial should have been granted because the jury was prejudiced by the misconduct of defendant’s counsel; that the verdict was influenced by the passion and prejudice of the jury; and that some of the jurors were guilty of misconduct.
In her brief, plaintiff first contends she should be granted a new trial because the jury was prejudiced by two incidents of alleged misconduct by defendant’s counsel during his final argument to the jury.
Closing arguments were not recorded. The matter was presented to the trial court on motion for a new trial by the testimony of plaintiff’s counsel.
The first incident concerns a statement of defendant’s counsel with reference to Dr. Lynch’s testimony. In Lynch’s testimony it was developed that at the time of his examination of plaintiff he was not informed of her past medical history and in fact did not know of her prior condition until his deposition was taken two or three months before the trial. Plaintiff’s counsel, in testifying on this point on the motion for a new trial, said that defendant’s counsel told the jury that he believed plaintiff’s counsel had told Mrs. Nelson not to give Dr. Lynch her medical history. At this point, according to plaintiff’s counsel, he objected and the court sustained the objection. Defendant’s counsel, who also testified, gave a somewhat different version of this incident.
The other incident concerns a statement made by defendant’s counsel relating to the presence of plaintiff’s children during the trial.
The trial court made findings of fact on the evidence submitted at the motion for a new trial in which it described the incidents and ruled as follows:
“I
“Defendant’s counsel suggested in his closing argument the possibility that plaintiff might have been advised by her attorney not to inform Dr. Lynch of her past medical history at the time of her examined by Dr. Lynch. Plaintiff’s counsel objected. The Court sustained the objection on the ground that the argument assumes facts not in evidence. The Court had previously instructed the jury in Instruction 23 to disregard utterances of counsel that had no basis in fact, and at the close of die final arguments the Court again instructed the jury not to consider in their deliberations in the jury room any statements of counsel which were objected to when said objection was sustained by the Court.
“II
“Defendant’s counsel also stated in substance that plaintiff’s children had been present during the trial and that this fact should not cause the jury to be swayed by sympathy for the plaintiff. Defendant’s counsel further stated that the defendant also had a wife and four children who might be affected by the outcome of the trial and that the jury should not permit sympathy for either party to enter into their deliberations. The Court sustained the objection and instructed the jury to disregard the aforesaid statement of defendant’s counsel.”
There was evidence that plaintiff failed to give her medical history to Dr. Lynch, but the attempt to infer unethical conduct on the part of plaintiffs counsel in this regard was certainly beyond the bounds of propriety and exceeded the latitude ordinarily permitted in closing arguments. However, the court sustained plaintiffs objection and properly instructed the jury. There is no suggestion here that defendant’s counsel pursued the subject after the objection was sustained as occurred in Walker v. Holiday Lanes, 196 Kan. 513, 413 P. 2d 63.
The trial court was at the scene and in a much better position than this court to determine whether the verdict was influenced by the alleged misconduct.
We have repeatedly said that it rests in the sound discretion of the trial court to determine from all the circumstances whether misconduct may have influenced the jury. Ordinarily the trial court’s conclusion in such matters will not be disturbed unless, under all the circumstances, it is plainly in error.
The rules referred to are stated, and earlier cases reviewed, in Collins v. City Cab Co., 192 Kan. 394, 388 P. 2d 597. To restate here what was thoroughly covered in Collins would only be repetitious.
In the instant case the findings quoted indicate the conscientious approach to the question and the careful consideration given by the trial court. We would not be justified in disturbing the order denying the motion for a new trial on either of the asserted incidents of misconduct of counsel.
Plaintiff next complains of misconduct of the juiy. This matter was not raised until plaintiff’s motion for a new trial. It was described by the court in its findings as follows:
“III
“On the morning of October 12, 1967, at 9:00 a. m. the Court and counsel conferred in chambers on a question of law in the instant case. Several mem bers of the jury who were seated in the jury box talked and whispered about the damages to the parties’ vehicles with reference to two enlarged photographs, one of the plaintiff’s vehicle, the other of the defendant’s vehicle. Plaintiff was seated at the counsel table and overheard part of this conversation. The plaintiff did not inform her attorney of said conversation of the jurors when he returned to the courtroom. The plaintiff did so inform her counsel after closing arguments while the jury was in deliberation. The first notice the Court had of the alleged misconduct of the jury was the filing of the motion for new trial after return of the verdict and adjournment of the trial.”
The trial court ruled that the asserted conduct on the part of the members of the jury was not such as to show prejudice of plaintiff’s substantial rights and, furthermore, was waived by plaintiff’s failure to notify the court at the time of the occurrence.
We believe the trial court’s ruling to be entirely correct.
When a party or his counsel has knowledge of an act or a statement of a juror or an occurrence in which a juror is involved that might amount to misconduct and fails to bring it to the attention of the court or to request remedial action until after the rendition of a verdict, the failure operates as a waiver of the occurrence or act as a ground for a new trial. (39 Am. Jur., New Trial, § 71, p. 86; 62 A. L. R. 2d, Anno. p. 298, § 7, p. 309.)
The refusal or denial of a motion for a new trial for alleged misconduct of the jury is generally within the discretion of the trial court and, unless it appears that this discretion has been abused, refusal to grant a new trial will not be disturbed. (Logwood v. Martens, 183 Kan. 534, 331 P. 2d 553; and Pulkrabek v. Lampe, 179 Kan. 204, 293 P. 2d 998, 54 A. L. R. 2d 732.)
A police officer who investigated the accident was permitted to use a blackboard to explain and illustrate his testimony. He drew a rough diagram which the trial court in its findings described as a “reasonably fair and accurate representation of the intersection in question.” Plaintiff’s objection to the use of the blackboard was overruled. The trial court reconsidered the matter on motion for a new trial and found the use of the blackboard in no way prejudicial to the plaintiff or misleading to the jury. The blackboard diagram was not offered in evidence.
Maps, diagrams or drawings, if shown to be reasonably accurate are used in everyday practice in courts and are acceptable in aiding a jury to visualize objects and scenes relevant to the action. (29 Am. Jur. 2d, Evidence, § 802, p. 886.)
The trial judge saw and heard all that transpired, including reactions, if any, of the jury and reached the conclusion that the verdict was not the result of passion or prejudice and that plaintiffs rights were not prejudicially affected by anything occurring at the trial.
We have examined all of the points presented on appeal and find no reason to disturb the judgment below.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Plaintiffs-appellants issued a policy of “Aircraft Hull and Liability” insurance on an aircraft which defendant-appellee had purchased from Yingling Aircraft, Inc., on April 8, 1965. In order to finance the purchase of the aircraft, defendant gave Yingling a conditional sales contract and promissory note.
The policy of insurance, together with a breach of warranty endorsement for the protection of Yingling, was purchased by defendant from Don Flower Associates, Inc., an agent of plaintiffs.
On June 21, 1965, the aircraft crashed and was destroyed, except for salvage in the amount of $1,100.00.
Defendant failed to make a payment due Yingling on August 15, 1965, following which Yingling made demand on plaintiffs for the balance due on the conditional sales contract and promissory note. Thereafter plaintiffs paid Yingling $7,085.40, the balance due and received from Yingling an assignment of the promissory note. Plaintiffs also took possession of the damaged aircraft and salvaged it for $1,100.00.
Thereafter, on March 10, 1967, plaintiffs, as assignees of the promissory note, filed this action thereon against defendant for the balance due, which they had paid to Yingling. Plaintiffs also claimed interest and delinquency charges on the future installments, as provided for by the terms of the note.
Defendant answered alleging that plaintiffs were obligated to pay Yingling under the policy of insurance and that the payment made was in full satisfaction of defendant’s obligation to Yingling and, therefore, Yingling held no rights against defendant which could be assigned by plaintiffs.
Defendant also filed a counterclaim against plaintiffs in which he alleged that his aircraft had been destroyed; that it was insured by plaintiffs for its value for the benefit of Yingling and defendant as then interests might appear. Defendant further alleged that he had demanded that plaintiffs pay his indebtedness to Yingling and. the balance of the value of the aircraft to him, but that plaintiffs had without reason refused to do so.
The policy of insurance, together with all endorsements, was incorporated by reference in defendant’s counterclaim. Defendant prayed that plaintiffs take nothing by their cause of action and that he have judgment on his counterclaim against plaintiffs in the amount of $10,000.00.
In their answer to defendant’s counterclaim, plaintiffs admitted the aircraft was insured, but alleged that it was not insured against the loss (in this case) under any one of the exclusions of the policy.
Following plaintiffs’ answer to defendant’s counterclaim, defendant submitted interrogatories to plaintiffs, which were filed on September 27, 1967. Defendant served additional interrogatories upon plaintiffs on October 12, 1967. On December 4, 1967, the case was placed upon the nonjury trial docket by the administrative judge of the district court.
On December 14, 1967, plaintiffs having failed to answer interrogatories served upon them, defendant filed a motion asking for an order compelling plaintiffs to complete discovery by answering the interrogatories. Plaintiffs filed their answer to the interrogatories last mentioned on December 29, 1967. The case was then set for trial on February 23, 1968. Apparently, the trial was postponed at the request of plaintiffs’ counsel and a pretrial conference was had, at the conclusion of which the case was reset for trial on April 5, 1968. Plaintiffs’ attorneys requested a continuance which was overruled and the case was tried to the court.
At the conclusion of the trial, the court found that the destruction of the aircraft did not fall within policy exclusions, as claimed by plaintiffs; that the aircraft was covered by the policy; and that at the time of its destruction the value of the aircraft was $8,000. The court found that plaintiffs were entitled to judgment on the promissory note, and that defendant was entitled to judgment on his counterclaim. The court then offset plaintiffs’ judgment on the promissory note, against defendant’s judgment on his counterclaim, and calculated the sums as follows:
“9. The defendant is entitled to receive credit for the rebated unearned interest in the sum of $1,183.35.
“10. Plaintiffs are entitled to judgment in the sum of $5,986.40, and defendant is entitled to judgment in the sum of $8,000.00.
“11. Judgment of the defendant in the sum of $8,000.00 should be offset by plaintiffs’ judgment in the sum of $5,985.40.
“12. Judgment should be entered in favor of the defendant and against the plaintiffs in the sum of $2,014.60, together with interest thereon at the rate of six percent (6%) per annum from the date this Journal Entry is filed.”
Plaintiffs’ motion for a new trial was overruled and they perfected this appeal.
The principal grounds for reversal urged by plaintiffs concern alleged abuse of discretion by the trial court in denying plaintiffs’ request for a continuance and various rulings excluding evidence which are claimed to be erroneous.
Plaintiffs first assert the trial court abused its discretion in deny ing them a continuance of the trial set for April 5, 1968, on the grounds that plaintiffs were unable to obtain material evidence prior to the trial.
In their brief on appeal, plaintiffs’ counsel recite a chronology of events which they claim show that substantial justice was denied by the trial court’s action.
They claim that plaintiffs’ counsel, at the time of filing the action, was misled by correspondence with the trial court. This series of events is described in their brief as follows:
“Plaintiffs’ counsel, shortly after filing the instant action, wrote a letter to the Clerk of the Court of Sedgwick County requesting certain information regarding trial dates; this request was answered by the Honorable William C. Kandt, Judge of Division No. 1, which letter advised counsel that trial would normally commence some two or three months after a pre-trial conference. Counsel then, in reliance upon such letter and the rules of the 18th Judicial District which were sent him, concluded, rightly or wrongly, that he would be notified of a pre-trial setting and that the questions presented by Defendant’s answer (which he did not think pertinent to the Plaintiffs’ cause of action) would be determined as a matter of law, whether they would be allowed as a defense to Plaintiffs’ action. Counsel then concluded that he would, after pre-trial, have two months minimum time within which to obtain and marshal evidence on behalf of the Plaintiffs. The rules relating to the 18th Judicial District were changed on July 1st, 1967, and all cases in the Sedgwick County District Court became subject to central assignment. Without any notice to Plaintiffs’ counsel of the change of the rules, the case was set for trial on February 23, 1968 by the assignment judge for the 18th Judicial District. Approximately one week’s notice of the trial was given to Plaintiffs’ counsel by Defendant’s counsel. However, the court, at the time of the appearance by Plaintiffs’ counsel on February 23, 1968, evidently recognizing the impossibility of the situation of the short notice of trial, held a pre-trial conference; the conclusion of the pre-trial conference resulted in an order directing the case for trial on April 5, 1968, approximately six weeks later. . . .”
We first observe that we see no possibility of prejudice stemming from the change in local rules of the district court on July 1, 1967, more than seven months prior to the first trial setting on February 23, 1968.
Plaintiffs’ counsel claim that after the pretrial conference, a diligent effort was made to obtain necessary evidence but that they were unsuccessful even though an interval of six weeks elapsed between the pretrial conference on February 23 and the trial on April 5.
Plaintiffs’ counsel further state that on April 4, at 11 p. m., Mr. Covell called Mr. Frank McMaster, a member of the Wichita Bar, and engaged him as co-counsel for plaintiffs.
Mr. McMaster states that prior to 9 a. m., the morning of April 5, by telephone he requested from both the assigned trial judge and the administrative judge of the district court a continuance in order that he, McMaster, might procure instruments necessary to support plaintiffs’ motion for continuance.
Plaintiffs strenuously argue that under the circumstances recited, the trial court’s refusal to grant a continuance was an abuse of discretion which resulted in a denial of justice to plaintiffs. Plaintiffs’ counsel emphatically assert that given a continuance, plaintiffs would have been able to produce substantial competent evidence showing the .destruction of the aircraft to have been under circumstances excluded by the terms of the policy that would have foreclosed the possibility of a judgment such as that rendered by the trial court on the evidence admitted. On the other hand, defendant’s counsel claims just as emphatically that the evidence of plaintiffs, which was later set forth in posttrial affidavits, even though produced, would still not establish a defense to defendant’s counterclaim on the policy of insurance.
In any event, we are not confronted with an issue as to the force and effect of plaintiffs’ evidence or whether plaintiffs could have produced it. The issue before us is whether the trial court’s refusal to grant a continuance, under the attending circumstances, on April 5, 1968, the date of trial, amounted to an abuse of discretion which entitles plaintiffs to a new trial.
The assignment of cases for trial and continuance thereof are governed by K. S. A. 60-240. Subsection (h) authorizes the granting of a continuance for good cause shown at any stage of the proceedings. Subsection (c) deals with an affidavit in support of a motion for continuance. It provides that the court need not entertain a motion for continuance based on the absence of a material witness unless supported by an affidavit setting forth certain essentials required by the statute, including a statement of the witness’s expected testimony; the basis of such expectation, and also the efforts which have been made to procure the attendance of the witness or to take his deposition. The same requirements are specified with necessary changes, “when the motion is grounded on the want of any material document, thing or other evidence.”
The foregoing language of subsection (c) is substantially the same as the former statute (G. S. 1949, 60-2934) which made mandatory the filing of an affidavit in support of a motion for continuance. In enacting subsection (c) an additional sentence was added:
“. . . In all cases, the grant or denial of a continuance shall be discretionary whether the foregoing provisions have been complied with or not.”
The effect of the additional sentence is that in the absence of a supporting affidavit a court need not entertain a motion for a continuance, but may do so in its discretion and if a motion is supported by an affidavit the granting or denial of the motion remains discretionary in the court, all of which is generally in harmony with the long-standing case law of this state. (Scott v. Keyse, 200 Kan. 625, 438 P. 2d 112; State v. Zimmer, 198 Kan. 479, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298; Konitz v. Board of County Commissioners, 180 Kan. 230, 303 P. 2d 180.)
In the instant case none of the motions or requests, made to the assigned trial judge or to the administrative judge, was supported by an affidavit. On the morning of the trial, plaintiffs’ attorneys did attempt to orally state what the expected testimony of the absent witnesses would be but a showing of due diligence in the efforts made to procure their attendance or depositions was decidedly lacking. The latter is also an essential requirement of 60-240 (c).
The record shows the issues in this case were essentially framed when defendant filed his answer and counterclaim on April 14, 1967, almost a year prior to the trial date. Plaintiffs filed their answer to defendant’s counterclaim on May 1, 1967. During the period, August 3, 1967, to December 29, 1967, two sets of interrogatories were served on plaintiffs and answered by them. The case was first set for trial on February 23, 1968. However, the trial was continued and a pretrial conference was held which extended over a period of one-half day. The pretrial order reflected a comprehensive hearing at which all issues were defined and discussed. On February 23, 1968, a trial day was set for April 5, 1968, which gave plaintiffs an additional six weeks to prepare for trial.
On September 27, 1967, in their answer to defendant’s interrogatories, plaintiffs clearly indicated they knew the name and address of Arch V. Doughty, Sheriff of East Feliciana Parish, Louisiana, who was an eyewitness to the aircraft crash and took part in the investigation.
Under the facts and circumstances related it cannot be said that the denial of a continuance amounted to an abuse of discretion.
Plaintiffs further complain of the trial court’s refusal on the day of the trial to permit them to proffer and make a record of the material evidence which was missing. Under the plain language of 60-240 (c) the trial court need not entertain any motion for continuance unless supported by an affidavit meeting the requirements of the statute.
Plaintiffs next contend the trial court should have continued the case at their request at the close of defendant’s evidence. Plaintiffs cite the case of Roberts v. Sinkey, 136 Kan. 292, 15 P. 2d 427, in support of their contention.
In the Roberts case the defendant’s serious illness precluded him from attending the trial. This court held that since there was nothing to discredit or discount the statements made under oath by the defendant’s wife, his attorney and his physician it amounted to an abuse of discretion to deny the motion for continuance, at least for enough time to permit the taking of defendant’s deposition. Obviously, the case is clearly distinguishable from the case at bar.
In view of what has already been said concerning the pleadings, interrogatories and pretrial conference, there was nothing in defendant’s evidence which came as a surprise to plaintiffs. For the same reasons related in connection with plaintiffs’ first claim of error, we are unable to find abuse of discretion by the trial court in its ruling at this stage of the trial.
Plaintiffs next contend the trial court erred when it refused to admit certain documentary evidence offered by plaintiffs.
Consideration of this point requires a brief résumé of the trial proceedings as presented in the record.
Following the court’s denial of their motion for a continuance, plaintiffs submitted into evidence the conditional sales contract, the promissory note and their check to Yingling. Next in the record we find this statement:
“Thereafter, Mr. Covell, as counsel for the plaintiff, did rest the Plaintiff’s case on the exhibits that had been introduced and the findings and stipulations heretofore entered by the Court in a pre-trial conference. Counsel for the defendant then made his opening statement to the Court.”
Defendant then proceeded to make an opening statement and submit evidence. Defendant’s evidence consisted of his testimony and the insurance policy. Defendant testified that he paid $8,350 for his aircraft and in his opinion it was of the value of $8,000 when destroyed; that he purchased the insurance from Don Flower Associates, Inc.; that they were notified of the aircraft loss; and that he had not been paid the value of his aircraft by plaintiffs.
On cross-examination defendant testified that he had no personal knowledge of the aircraft crash; that Don Flower, or one of his associates, had advised him that the insurance company was refusing to pay for the loss; that he had received a letter from the insurer to the effect that the aircraft was being operated “in a situation that excluded it from insurance coverage, something to that extent,” but that nothing was specified in the letter as to' “what manner it was being operated contrary to.” When handed the sheriff’s report, defendant testified that it looked like a report he had received at one time. Admission of the sheriff’s report was objected to “as a hearsay document out of court, unsworn statement by a third party.” The objection was sustained.
Defendant further testified that papers which were on the aircraft concerning registration, weight and balance data were not in his possession and that he believed they were removed from the aircraft by the insurance company. He testified that he had an “Owner’s Manual,” but it was not carried on the aircraft. Objection was made and sustained to the introduction of the “Owner’s Manual” on the ground that it was immaterial. Plaintiffs then attempted to have defendant identify a number of the Exhibits, including those in the form of a multi-page document which appears to be a Federal Aviation Accident Report. Objections to the admission of the documents were sustained on the ground that the subject matter was beyond scope of direct-examination. The court commented:
“I think you have material for rebuttal. This is cross examination. The objection is sustained at this point.*’
Following cross-examination of defendant, plaintiffs asked the court to take judicial notice of the Federal Air Regulations to which defendant’s counsel objected:
“In respect to the FAA Regulations — Exhibit 3 says that if that airplane was operated in violation of FAA Regulations the coverage is excluded, but the burden is upon the insurance company to prove it by facts to bring it within the exclusion. And until they prove any facts as to what happened, I don’t see the materiality of the FAA Regulations. It clutters the record.”
The court sustained defendant’s objection.
Plaintiffs offered no rebuttal evidence but again offered the sheriff’s report.
In short, the competent evidence received by the court did not establish any facts surrounding the aircraft crash or related circumstances, other than that it was totally destroyed except for salvage.
The evidence which plaintiffs claim was erroneously excluded consisted of plaintiffs’ Exhibits numbered 4 through 31, inclusive, and Exhibit 33. The Exhibits are described and their admissibility urged by plaintiffs as follows:
“These Exhibits were copies of the Federal Aviation Agency reports made in the ordinary course of business both as to matters surrounding the accident and as to collateral matters which had previously been promulgated with regard to the particular type of aircraft, which had a relation to the incident out of which the aircraft loss arose. An examination of the proffered documents would disclose that the parties responsible for the making of such documents had no ‘chips in the game.’ The information that was contained in such documents were made by the parties whose signatures were ascribed to them in the ordinary course of business and would be available for admission under the provisions of K. S. A. 60-460. Such statute contains the exceptions to the hearsay rule. Under such exceptions the Exhibits would be admissible under sub-sections (d) — Contemporaneous statements and statements admissible on a grounds of necessity generally; (g) — Admissions by parties; (m) — Business entries and the like; and (o) — Content of official record. Since the Appellants are limited on the length of their brief by the rules of this court, counsel will not attempt to delineate in detail each particular Exhibit and why same could be admitted under the exceptions. Appellants do wish to call to the attention of this court the fact that Exhibit 8 was the statement of the pilot of the aircraft and it appears he was unavailable as a witness at the time of trial and his testimony or statement would certainly be pertinent; Exhibit 4 was the statement of the Sheriff who arrived at the scene and talked to the pilot; Exhibit 17 which was the report made in the ordinary course of business by FAA Investigator Nolden and further, that all of such records would be contents of the official record of the Federal Aviation Agency.”
Many of the Exhibits referred to are portions of a report of the accident made by Federal Aviation Agency Investigators. Examination of the documents discloses that they closely resemble a police report of an investigation of a traffic accident and, therefore, for the same reasons are inadmissible to prove the truth of the statements and conclusions contained therein.
In McGrath v. Mance, 194 Kan. 640, 400 P. 2d 1013, it was held:
“A police report of an accident investigation which contains statements of a hearsay character and conclusions on the part of the officer preparing the report, is not admissible as substantive evidence.” (Syl. f 1.)
See, also, State v. Taylor, 198 Kan. 290, 424 P. 2d 612; State v. Foster, 198 Kan. 52, 422 P. 2d 964; and Letcher v. Derricott, 191 Kan. 596, 383 P. 2d 533.
In their brief plaintiffs cited generally the exceptions to the hearsay rule set out in K. S. A. 60-460 (d), (g), (m) and (o), as supporting the admissibility of the evidence in question. Plaintiffs do not relate specific subsections to particular documents.
Subsection (d) covers contemporaneous statements and statements admissible on the ground of necessity generally. Plaintiffs mention Exhibit 8, a statement of the aircraft pilot, and Exhibit 4, the sheriff’s statement, as falling within the purview of subsection (d). The trouble is that there is no evidence establishing how or under what circumstances the statements were made, nor is the unavailability of the witnesses established. None of the conditions required by subsection (d), to make contemporaneous statements admissible, is shown to have been met.
With respect to the admissibility of any of the Exhibits, as business entries under subsection (m), there is no evidence in the record to identify the Exhibits or qualify them as business records within the requirements of subsection (m). Foundation facts were not established. (State v. Foster, 198 Kan. 52, 422 P. 2d 964; and Gard, Kansas Code of Civil Procedure Annotated, § 60-460 [m], p. 482.)
Regarding the admissibility of the Exhibits as contents of official records under subsection (o), admissibility is made subject to K. S. A. 60-461 which requires delivery to each adverse party a reasonable time before trial, unless the judge finds that such adverse party has not been unfairly surprised. Admissibility of a document under subsection (o) is further qualified by the necessity of meeting the requirements of authentication prescribed in K. S. A. 60-465. As we have previously indicated, none of the Exhibits was served on defendant’s attorney prior to trial, nor were the requirements of authentication complied with.
In summary, none of the Exhibits mentioned was delivered to defendant’s attorney before March 20, 1968, as directed by the pretrial order (or before trial); none was authenticated in compliance with the requirements of K. S. A. 60-464 and 60-465; and those claimed to be official records were not sent to opposing counsel as required by K. S. A. 60-461.
The trial proceedings show the Exhibits were offered during the cross-examination of defendant who testified he had no personal knowledge of the aircraft crash. Moreover, as shown by the trial record, most of the cross-examination of defendant concerning the documents was beyond the scope of direct-examination and subject to objection on that ground.
Under the circumstances related it cannot be said the trial court abused its discretion in refusing to admit the Exhibits into evidence.
Plaintiffs contend the trial court erred in not taking judicial notice of the regulations published by the Federal Aviation Agency. In our discussion of this subject we shall refer to the Federal Aviation Agency as FAA and the Regulations as FAR.
Plaintiffs urge the importance of the regulations because of their connection with certain exclusions contained in the policy of insurance in which plaintiffs seek to avoid liability, particularly exclusionary provisions 1 (c), which provides that the policy does not apply if the loss occurs when the aircraft is in flight in violation of any applicable aircraft operations limitations, and 2 (b), if piloted by a pilot not properly certified, and 2 (c), if the aircraft’s Airworthiness Certificate is not in full force and effect.
Without conceding that the FAR are entitled to judicial notice, defendant maintains that in any event the evidence does not establish that the operation of the aircraft fell within an exclusion of the policy and, therefore, it is immaterial whether the trial court took judicial notice of FAR.
Plaintiffs claim that 1 (c) was violated in that regulations require the presence of an “Owner’s Manual” in the craft. Defendant answers that the pertinent regulation FAR 91.31 (b) requires the presence of an FAA approved “aircraft flight manual for that aircraft of placards, listings, instrument markings, or any combination thereof, containing each operating limitation prescribed for that aircraft by the Administrator,” the regulation then specifies nine items which should be included. Defendant says he was only asked about an “Owner’s Manual” on cross-examination and not the items specified in the regulation. In any event there was no competent evidence before the trial court showing precisely what was or was not aboard the aircraft.
With respect to other violations of 1 (c) pertaining to weight of the loaded aircraft and of gasoline used asserted by plaintiffs, defendant points out there was no evidence properly submitted or received by the court which established either claim. There was some inconclusive evidence touching upon these matters shown in the investigation report proffered but not admitted.
In regard to plaintiffs’ claim of a violation of 2 (c), defendant explains in his brief that the Airworthiness Certificate of the aircraft was in full force and effect and present in the aircraft, or it could not have been abstracted (as it was) in plaintiffs’ Exhibit 15, a part of the FAA report.
Plaintiffs claim the pilot was not properly certified as required by 2 (b). Defendant correctly states that there was no evidence to support such claim and further that under the pertinent FAR the pilot’s medical certificate, on which plaintiffs base their claims, did not expire until June 30, 1965, nine days after the crash. The controversy between the parties on this point demonstrates the necessity of determining what regulations are applicable and effective on the date of the crash. Plaintiffs claim the pilot’s medical certificate was issued on June 10, 1964, and expired twelve months later on June 10, 1965. Defendant cites FAR § 61.43, shown as amended April 3, 1965, and found in Vol. 1A, CCH, Aviation Law Reporter, p. 2991, which shows expiration of the medical certificate to be twelve months after the month in which it is issued and as applied in this case, June 30, 1965.
Plaintiffs cite authority to the effect that a state court should take judicial notice of FAR. (8 Am. Jur. 2d, Aviation, § 116, p. 746.)
Defendant points out on the other hand that our statute (K. S. A. 60-409), does not list federal agency publications or even regulations as a subject for judicial notice. Defendant further points out that the trial court and defendant were furnished no information with respect to said regulations as required by 60-409. On this point we do not believe that either the trial court or defendant should have been surprised by the appearance of the regulations during the course of the trial since the question, whether the aircraft was operating in violation of the FAR when the crash occurred, was identified as an issue in the pretrial order.
Even though this court has held a departmental regulation of the Federal Government is not subject to judicial notice but must be pleaded by quoting its language or stating the substance of its provisions (Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692) in view of the references made in the pretrial order, we do not say in this case that the regulations would not have been subject to judicial notice if they had been properly identified and authenticated when presented to the court. It was pointed out, and not disputed, that the FAR are subject to frequent amendments and that the regulations, shown in the record here, contain some amendments which were not in effect when the crash occurred.
Since there is no showing by certificate or otherwise as to what the effective regulations were at the time of the aircraft crash, we cannot say the refusal to take judicial notice of the regulations amounted to prejudicial error. Moreover, as we have previously indicated, the surrounding facts and related circumstances pertaining to the aircraft crash were not established by plaintiffs’ evidence, thus the FAR were immaterial as the trial court ruled.
The Kansas law is clear that when 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. (Southards v. Central Plains Ins. Co., 201 Kan. 499, 441 P. 2d 808; Smith v. Allied Mutual Casualty Co., 184 Kan. 814, 339 P. 2d 19; and Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571.)
Without discussing in further detail the evidence before the court, it will suffice to say that an examination of the record discloses that plaintiffs failed to prove that the casualty occurred within any policy exclusion.
Plaintiffs claim defendant failed to file proof of loss within sixty days after the aircraft crashed, as required by the provisions of the insurance policy.
In their answers to interrogatories plaintiffs admit that the letter was sent to defendant, dated July 29, 1965, in which liability on the policy was denied. Defendant also testified that he notified Don Flower Associates, Inc., agent of plaintiffs, of the destruction of the aircraft. In its letter to defendant denying liability no mention was made of plaintiffs’ failure to make verified proof of loss within sixty days as one of the grounds for denying liability. When this ground for denying liability was waived then it was not good thereafter, either in the trial court or in this court. Where an insurer bases its refusal to pay a loss upon a forfeiture or failure to comply with particular condition it cannot thereafter maintain a defense based upon another condition not referred to in such refusal to pay and of which it then had knowledge. (Reser v. Southern Kansas Mutual Ins. Co., 150 Kan. 58, 91 P. 2d 25; Winchel v. National Fire Ins. Co., 129 Kan. 225, 282 Pac. 571; and Insurance Co. v. Ferguson, 78 Kan. 791, 98 Pac. 231.)
Plaintiffs claim they were entitled to interest subsequent to the date of the aircraft loss which should have been added to their judgment prior to the setoff of defendant’s judgment imposed by the court. Plaintiffs were only assignees of the promissory note, not holders in due course. They were liable to defendant on the policy of insurance for the loss of his aircraft in excess of the amount paid Yingling. Under such circumstances, plaintiffs have never actually been owed any money by defendant, although their obligation to defendant was reduced by the amount paid to Yingling.
The trial court did not err in refusing to credit plaintiffs with unearned interest.
Two further matters mentioned in plaintiffs’ brief require brief attention. Plaintiffs claim a breach of the provision of the conditional sales contract prohibiting leasing of the aircraft without prior written consent of the seller. There is no prohibition in the policy against leasing the aircraft. Plaintiffs also complain that the trial court did not consider a deductible provision of the policy for loss sustained to the aircraft while taxiing or in flight.
No findings or rulings were made by the trial court concerning either matter for the simple reason that the record discloses no mention of either was made in the pleadings, in the pretrial conference or in plaintiffs’ motion for a new trial. Since these questions were not presented to the trial court they cannot be considered by this court on appeal.
Where it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court this court will not consider it on review. (Schneider v. Washington National Ins. Co., 200 Kan. 380, 437 P. 2d 798; Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215; and Holton v. Holton, 172 Kan. 681, 243 P. 2d 222.)
The plaintiffs having failed to affirmatively show that the trial court abused its discretion or committed reversible error, the judgment is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Kansas Department of Social and Rehabilitation Services (SRS) appeals the district court’s affirmance of the Kansas Public Employee Relations Board (PERB) order that SRS supply the National Association of Government Employees (Union) with employees’ home addresses. SRS claims the trial court erred: (1) in applying an improper scope of review to the PERB order; (2) in finding that SRS could not refuse to comply with the PERB order under the provisions of the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., and Department of Administration regulation K.A.R. 1-13-la; and (3) in subjecting SRS to the penalities of K.S.A. 21-3914, which prohibits use of information derived from public records for commercial use.
The facts are uncontroverted. Parsons State Hospital and Training Center (Hospital) is a public agency. The Union is the local employee organization certified as the exclusive representative for all employees holding permanent, probationary, conditional, part-time, and intermittent appointments with the Hospital.
The Union requested the names and addresses of all persons in the bargaining unit in order to communicate with them on matters of representation. The Hospital provided the names but refused to provide the home addresses. The Union filed a complaint with PERB, alleging SRS and the Hospital committed a prohibited practice by denying the rights accompanying certification or formal recognition.
After a hearing examiner ordered SRS and the Hospital to release the employees’ addresses to the Union, SRS and the Hospital appealed the order to PERB. At the Board hearing, the Union claimed that SRS’s refusal to provide the addresses of the employees in the bargaining unit was a denial of the rights to which it was entitled. SRS argued (1) the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq., does not require it to provide the recognized employee organization with home addresses, and (2) KORA and K.A.R. 1-13-la prohibit it from releasing the employees’ home addresses.
The Board held that although KORA provides the employer with discretion to disclose the information, the employees have no reasonable expectation that their home addresses would not be disclosed to their bargaining unit. The Board adopted the recommendation of the hearing examiner and ordered the Hospital to provide the names and home addresses of each person in the bargaining unit to the Union within 30 days. In accordance with K.S.A. 45-220(c), PERB’s order conditioned release of home addresses on the Union’s certification that the Union would not use the list or make the list available to another who might use the information to sell property or services for commercial gain. SRS appealed to the district court of Shawnee County.
The district court found that, under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., the burden of proving the invalidity of PERB’s action is upon the party asserting invalidity and the court is limited in granting relief. K.S.A. 77-621. The district court noted that “ ‘[i]n reviewing questions of law, the trial court may substitute its judgment for that of the agency, although ordinarily the court will give great deference to the agency’s interpretation of the law.’ Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 101, [689 P.2d 787] (1984).” The district court ordered the Hospital to provide the Union with the names and home addresses of all persons in the bargaining unit when the Union certified that it would not improperly use the employees’ addresses. SRS again appealed.
SRS argues PERB has neither statutory authority to supplement or interpret KORA nor the expertise to interpret Department of Administration regulations. It argues interpretations of only those regulations which are within an agency’s area of expertise are entitled to deference by the court; therefore, PERB’s interpretations of KORA and K.A.R. 1-13-la are beyond PERB’s expertise and the district court erred by giving deference to PERB’s inter pretations. SRS contends the trial court applied an incorrect scope of review. We agree.
The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. Further, if there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. If, however, the reviewing court finds that the administrative body’s interpretation is erroneous as a matter of law, the court should take corrective steps. The determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts. See Kansas Bd. of Regents v. Pittsburg State University Chap. of K-NEA, 233 Kan. 801, 809-10, 667 P.2d 306 (1983).
PERB is not statutorily charged with the responsibility of enforcing KORA; therefore, its interpretation of KORA is not entitled to judicial deference. The interpretation of KORA is a question of law and it is our function to interpret the Act to give it the intended effect. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990). The administrative interpretation of KORA is given consideration and effect, but the final construction of the Act rests with the courts. See National Gypsum Co. v. Kansas Employment Security Bd. of Review, 244 Kan. 678, 682, 772 P.2d 786 (1989).
Normally, the scope of judicial review of an administrative board’s findings of fact and conclusions of law is governed by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions. K.S.A. 77-601 et seq. The Act for Judicial Review and Civil Enforcement of Agency Actions, however, does not apply to agency actions governed by the provisions of KORA. K.S.A. 77-603(c)(6). KORA provides the district court of the county where the records are located with jurisdiction to enforce the Act. K.S.A. 1990 Supp. 45-222. Any action to enforce the Act in the court is determined de novo.
The trial court erred in giving deference to PERB’s interpretation of KORA and in not determining the matter de novo, but this error does not require reversal.
SRS next contends the trial court erred in finding SRS could not refuse, under KORA and K.A.R. 1-13-la, to provide the home addresses of the employees to the Union.
Pertinent language in K.A.R. 1-13-la provides:
“(b) Except as otherwise provided in this regulation, information contained in each state employee’s official personnel file shall not be open to public inspection.
“(c) Upon inquiry of any individual, the division of personnel services, or personnel in the state agency where an employee is employed, may disclose the following information concerning an employee:
“(1) Confirmation that an individual is employed by the state;
“(2) name of employing state agency;
“(3) current title and job position;
“(4) current or prior rates of pay;
“(5) length of employment with the state;
“(6) length of time the employee has served in the employee’s current job position; and
“(7) letters of commendation.”
SRS apparently argues that the regulation does not expressly authorize disclosure of home addresses; therefore, the regulation prohibits disclosure.
KORA is an affirmative act requiring disclosure of public records unless the request places an unreasonable burden on the agency or, if the request is repetitive in nature, is intended to disrupt the agency’s function. K.S.A. 45-216 and K.S.A. 45-218(e).
KORA designates 35 categories of records that public agencies “shall not be required to disclose.” K.S.A. 45-221(a). K.S.A. 45-221 does not prohibit disclosure but makes the decision to release the information discretionary with the custodian of the records.
SRS relies on two exceptions enumerated in KORA. K.S.A. 45-221 provides:
“(a) Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
“(4) Personnel records, performance ratings, or individually identifiable records pertaining to employees or applicants for employment except that this exemption shall not apply to the names, positions, salaries and length of service of officers and employees of public agencies once they are employed as such.
“(30) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” (Emphasis added.)
Statutory words are presumed to have been and should be treated as consciously chosen and, with understanding of the ordinary and common meaning, intentionally used with the legislature having meant what it said. Kansas Ass’n of Public Employees v. Public Employee Relations Bd., 13 Kan. App. 2d 657, 661-62, 778 P.2d 377 (1989). SRS argues that if there is any ambiguity in the plain language of K.S.A. 45-221(a)(4), the legislative history clearly establishes that the legislature intended unconditionally to exempt public employee personnel files from disclosure.
The original version of KORA exempted “[personnel records and performance ratings, except that this exemption shall not apply to the names, positions, salaries, and lengths of service of officers and employees of public agencies.” 1983 H.B. No. 2327. SRS contends the legislature, in expanding the language of (a)(4) to include “or individually identifiable records pertaining to employees or applicants for employment,” intended that any information pertaining to an applicant or an employee that is individually identifiable is exempted from disclosure. SRS contends that, because the plain language of K.S.A. 45-221(a)(4) expressly requires only the name, position, salary, and length of service of officers and employees of the public agency to be disclosed to the public, the employee’s address is not to be disclosed.
PEERA recognizes the State has a basic obligation to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. The purpose of the Act is to obligate public agencies, public employees, and their representatives to enter into discussions with affirmative willingness to resolve grievances and disputes relating to conditions of employment, acting within the framework of law. It is also the purpose of this Act to promote the improvement of employer-employee relations within the various public agencies of the State and its political subdivisions by providing a uniform basis for recognizing the right of public employees to join or to refrain from joining organizations of their own choice and be represented by such organizations in their employment relations and dealings with public agencies.
PERB argues that its order carries out the purposes of PEERA authorized by K.S.A. 75-4321, which cannot be achieved without good communication between employees and the organizations elected to represent them. PERB states the purpose of collective bargaining is better served when the public employer discloses the employee’s home address because: (1) it allows an employee organization to communicate with employees without disrupting the workplace; (2) communication is effected without interference from management to preserve the backstage nature of communication between the organization and the employees in the unit; (3) it improves communication with workers who do not have a regular worksite or whose locations are spread over a large geographical area; and (4) it allows communication with all of the employees in the bargaining unit, even those who are without a phone, who live in a different city, or who cannot be easily located. In addition, PEERA also requires that PERB have access to home addresses of the employees for verification of showing of interest in cards and petitions, investigation of prohibited practice complaints, and mailing of ballots for representation elections.
PERB asserts that SRS cannot use K.S.A. 45-221(a)(4) or (30) of KORA to circumvent the public policy of PEERA and PERB’s order to disclose. PERB argues that its order to provide the addresses is one “otherwise required by law” under K.S.A. 45-221(a). PERB cites other jurisdictions that have interpreted the word “law” to include an administrative regulation issued pursuant to a statute. See Goodman v. Superior Court in & for Maricopa, 136 Ariz. 201, 203, 665 P.2d 83 (1983); Van Gordon v. Ore. State Bd. of Dental Examiners, 63 Or. App. 561, 666 P.2d 276 (1983); Valley St. Bank, et al. v. Farmers St. Bank, 87 S.D. 614, 620, 213 N.W. 2d 459 (1965).
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practical, to reconcile different provisions so as to make them consistent, harmonious, and sensible. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
The Kansas Open Meetings Act, K.S.A. 75-4317 et seq., and KORA were passed by the legislature to insure public confidence in government by increasing the access of the public to government and its decision-making processes. This increases the accountability of governmental bodies and deters official misconduct. The public policy stated in KORA is that all records are “open for inspection by any person unless otherwise provided by this act.” K.S.A. 45-216(a). The burden of proving that an item is exempt from disclosure is on the agency not disclosing. K.S.A. 45-218.
KORA does not allow an agency unregulated discretionary power to refuse to release information sought by the public. The stated policy of KORA is that all public records are to be open to the public for inspection unless otherwise provided in the Act. As used in KORA “public” means “of or belonging to the people at large.” “Public inspection” refers to the right of the public to inspect governmental records when there is a laudable object to accomplish or a real and actual interest in obtaining the information. Neither PERR nor the Union are subject to the limitations of KORA when acting under the government sanctioned activities of PEERA. The trial court did not err in finding that SRS could not refuse, under KORA and Department of Administration regulation K.A.R. 1-13-la, to comply with the PERR order to disclose the home addresses.
Finally, SRS claims the district court erred when it failed to determine whether the Union’s access to public employees’ addresses will subject SRS to possible criminal prosecution for violation of K.S.A. 21-3914, which provides:
“(a) No person shall knowingly sell, give or receive, for the purpose of selling or offering for sale any property or service to persons listed therein, any list of names and addresses contained in or derived from public records except:
“(4) to the extent otherwise authorized by law.
“(b) Violation of this section is a class C misdemeanor.”
The trial court ordered the Union to execute a certification that it would not use the names for commercial purposes. This is consistent with K.S.A. 45-220(c) in that an agency may require a person or an entity requesting information under KORA to provide written certification that its reason for obtaining the names is not for commercial purposes.
SRS claims a certification is not adequate protection against the Union’s possible misuse of home addresses to solicit the sales of ancillary services commonly provided by employee unions. We find no merit in this contention. Even if the Union uses the information for a commercial purpose, SRS would not be subject to the criminal penalty of K.S.A. 21-3914 because the disclosure was required by law.
Affirmed.
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Per Curiam,:
Mary Catherine Jackson, respondent, contests the findings and recommendations of a disciplinary hearing panel that she be suspended from the practice of law for two years for violating Disciplinary Rule 6-101(A)(3) (1990 Kan. Ct. R. Annot. 188); Model Rules of Professional Conduct (MRPC) 1.3 (1990 Kan. Ct. R. Annot. 219), 1.4(a) and (b) (1990 Kan. Ct. R. Annot. 220), and 8.4(c) and (g) (1990 Kan. Ct. R. Annot. 290); and Supreme Court Rule 207 (1990 Kan. Ct. R. Annot. 141), by neglecting a legal matter, failing to keep a client informed, misrepresenting the status of a case to a client, and failing to cooperate with the disciplinary administrator. The panel also recommended that respondent’s readmission to the practice of law after suspension be conditioned on proof there are no malpractice claims, either pending or unsatisfied, against her and upon a plan submitted by her providing specific details for the supervision of her legal practice. The formal complaint originally contained two counts. Count I was dismissed by the hearing panel. The disciplinary administrator does not contest that dismissal.
Count II arose out of an automobile accident which occurred on January 23, 1985, and injuries sustained by the complainant, Carolyn Griffin Clark, in that accident. The complainant retained the respondent to represent her in a personal injury action within one week after the accident. Jackson had an oral fee agreement with Clark that Jackson was to receive one-third of the total recovery.
Jackson filed suit on behalf of the client, Case No. 86-C-16-94, in the District Court of Wyandotte County, Kansas, in early 1986. The client’s deposition was taken on July 2, 1987 by the defendant in the personal injury case. Sometime after the client’s deposition had been taken, Jackson notified her the case would be settled by the first part of 1988. After this conversation, the client made numerous unsuccessful attempts to obtain information from Jackson about the status of her case. The client never received any written correspondence from Jackson as to the status of her case after July 2, 1987. The last time the client talked to Jackson, Jackson told her that she had not been able to get the case set on the court docket.
On February 6, 1989, the disciplinary administrator received Carolyn Griffin Clark’s complaint that there had been no action in her case since the deposition of July 1987 and that the respondent had failed to inform her of the status of the case. Roger W. McLean was assigned to investigate the complaint.
On March 14, 1989, McLean wrote Jackson and requested a detailed written response to the complainant’s allegations by March 31, 1989. On April 24, 1989, McLean wrote Jackson that he had received no response to his March 14 letter and asked for a response by May 31, 1989. Also on April 24, Jackson sent a letter to McLean in response to his March 14 letter. The two letters crossed in the mail. Jackson failed to address the status of complainant’s personal injury claim.
During a phone conversation on May 2, 1989, Jackson told McLean the case was filed in Division 8 of the Wyandotte County District Court. McLean wrote the respondent on May 31, 1989, stating that, contrary to what Jackson had told him over the phone on May 2, the court clerk was unable to find a case in which Jackson’s client was the plaintiff. McLean again requested that Jackson let him know the status of complainant’s case. McLean received no response from Jackson.
On October 26, 1989, McLean wrote Jackson and gave her until November 1, 1989, to answer his request. On October 31, 1989, Jackson wrote McLean requesting until November 3, 1989, to inquire of the district court regarding the matter, stating “[A]t which time I will hand-deliver a detailed response to your office.” No such response was forthcoming. McLean waited until November 20, 1989, for a response. Because of Jackson’s failure to respond, McLean notified the disciplinary administrator.
At the disciplinary hearing on July 19, 1990, Jackson admitted that she did not respond promptly to most of the inquiries from the investigator and that prior to May 4, 1988, the district court had granted summary judgment to the defendant in the personal injury case. Jackson attributed most of the problem with her handling of the case to confusion resulting from her attempt to add another defendant to her client’s case. Her delay in responding to the investigator was caused by the time required to care for an ill child. At the hearing, Jackson did not know if the client’s case was still pending in the district court or closed. Jackson testified that she had no legal malpractice insurance.
The hearing panel found respondent had violated the following:
DR 6-101(A)(3): A lawyer shall not neglect a legal matter entrusted to him or her.
MRPC 1.3: A lawyer shall act with reasonable diligence and promptness in representing a client.
MRPC 1.4(a): A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
MRPC 1.4(b): A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
MRPC 8.4(c): It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
MRPC 8.4(g): It is professional misconduct for a lawyer to engage in any other conduct that adversely affects the lawyer’s fitness to practice law.
The panel also found respondent had violated Supreme Court Rule 207, which requires members of the state bar to assist and communicate to the disciplinary administrator any information he or she may have affecting investigations conducted by the disciplinary administrator.
Jackson contests from the findings and recommendations of the disciplinary hearing panel, claiming that (1) the findings of fact are not supported by the record; (2) she has been prejudiced as a result of references in the hearing panel report to post-hearing telephone conversations and events; and (3) the panel’s recom mendation of a two-year suspension is unduly harsh under the circumstances of this case.
Jackson first contends that the record is devoid of clear and convincing evidence or authority for the panel’s findings.
We disagree. The report of a hearing panel of the Board for Discipline of Attorneys, while advisory only, will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply supported by the evidence, where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. In re Matney, 241 Kan. 783, Syl. ¶ 8, 740 P.2d 598 (1987).
The evidence is uncontroverted that the automobile accident occurred on January 23, 1985. The personal injury case was filed by Jackson. Jackson’s client’s deposition was taken in 1987. Jackson told her client that the case would be settled by early 1988. Jackson admitted the last document she filed in the case was a notice of appeal filed on May 4, 1988. At the time of the disciplinary hearing, Jackson was not able to give the panel any definitive answer as to the status of the personal injury action. (Jackson failed to inform her client the district court had granted the defendant’s motion for summary judgment prior to May 4, 1988.)
This alone is ample evidence to sustain the panel’s findings. Respondent’s contention is without merit.
Jackson next asserts she has been prejudiced by inclusion in the panel hearing report of statements or recitals not sworn to and not part of the record. Jackson does not identify with specificity to which portions of the panel hearing report she refers. She does, however, refer to the recitation in the panel report that she was permitted to file additional documentation after the hearing.
At the close of her testimony, Jackson requested permission to submit additional information to the hearing panel. The panel granted Jackson an additional ten days to submit any exhibits she felt relevant. The conversations and events to which Jackson objects occurred only because the panel agreed to consider additional submissions by respondent. Jackson’s claim that she was prejudiced by the inclusion of the statements in the record is totally without merit.
Jackson’s final claim is that the panel’s recommendation of a two-year suspension is unduly harsh under the circumstances of this case. Jackson cites personal circumstances as the reason for her delay in responding to the investigator. Jackson notes she had had no prior disciplinary action taken against her and a two-year suspension generally is reserved for persons who have had prior instances of discipline, or numerous violations. Jackson cites no authority for her assertions.
In view of respondent’s handling of the personal injury claim in this case and her actions during the investigation of this disciplinary complaint, we can understand why the panel recommended a two-year suspension. The respondent not only failed her client, she was not candid with the investigator, the hearing panel, or this court. However, a majority of this court believes that a two-year suspension would be harsh and that the respondent should be disciplined by public censure.
It Is Therefore By The Court Ordered that Mary Catherine Jackson is hereby disciplined by this court by public censure and she is hereby ordered to forthwith pay the cost of this proceeding.
It Is Further Ordered that this Order of Public Censure be published in the official Kansas Reports.
By order of this court this 12th day of July, 1991.
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The opinion of the court was delivered by
Lockett, J.:
The plaintiff, Ramon Guillan, brought an action for injuries he received when the automobile he was driving collided with an automobile driven by the defendant, Melba Watts. When plaintiff discovered the defendant was underinsured, he notified his insurance carrier, Allstate Insurance Company. Plaintiff also notified his insurer after the defendant offered to settle her liability for her policy limits. Plaintiffs insurer intervened but did not substitute payment within 60 days, waiving its subrogation rights against the defendant under K.S.A. 1990 Supp. 40-284(f). The district court allowed the defendant to confess judgment for $105,000 but ruled the defendant’s confession of judgment was not binding on plaintiffs insurer.
Because the defendant’s confession of judgment was not binding on the plaintiffs insurer, it was necessary to apportion fault between the parties. The matter was tried to a jury. The jury found each party 50% at fault and no damages were awarded. The plaintiff appealed, claiming that the district court improperly (1) allowed Allstate to intervene in the action, (2) found Allstate was not bound by Watts’ confession of judgment, and (3) failed to instruct the jury that it was unlawful to drive faster than 35 mph at the location of the collision. Plaintiff also claimed that K.S.A. 8-1545(a)(2), upon which one of the jury instructions was based, is unconstitutionally vague and indefinite. The Court of Appeals found the trial court (1) properly allowed Allstate to intervene in the action, (2) correctly determined Allstate was not bound by Watts’ confession of judgment, and (3) committed reversible error in failing to instruct the jury that it was unlawful to drive faster than 35 mph at the location of the collision. The Court of Appeals also determined that K.S.A. 8-1545(a)(2) is not unconstitutionally vague and indefinite. 15 Kan. App. 2d 405, 808 P.2d 889 (1991). Guillan and Allstate both petitioned for review. Both petitions were granted. Néither petition seeks review of the Court of Appeals’ affirmance of Allstate’s being allowed to intervene.
Guillan first contends both courts erred in ruling Allstate was not bound by Watts’ confession of judgment. Guillan’s claim required the Court of Appeals to interpret K.S.A. 1990 Supp. 40-284(b), which provides:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” (Emphasis added.)
The issue is, after the plaintiff’s insurer intervened in the action, was the confession of judgment by the underinsured tortfeasor sufficient to obligate the intervening insurer to pay the under- insured motorist benefit to its insured or is the injured insured required to judicially establish the underinsured tortfeasor’s liability before the insured can recover that benefit from his insurer?
When analyzing this question, the Court of Appeals relied on our prior cases which discuss uninsured motorist coverage and noted in those cases this court has construed the phrase “legally entitled to recover as damages” (K.S.A. 1990 Supp. 40-284[a]) to mean that the insured must establish the fault of the uninsured motorist as a prerequisite to recovery from the uninsured motorist insurance carrier. Patrons Mutual Ins. Ass’n v. Norwood, 231 Kan. 709, 713, 647 P.2d 1335 (1982); Winner v. Ratzlaff, 211 Kan. 59, 64, 505 P.2d 606 (1973).
We have stated that, in a direct action against the insurer, a joint action against the insurer and the tortfeasor, or an action against the tortfeasor alone, the insured has the burden of proving the tortfeasor is uninsured and is legally liable for the damage and proving the amount of this liability. Winner, 211 Kan. at 64-65. The Winner court held that the uninsured motorist statute, 40-284, was not intended to impose absolute liability without regard to fault. Rather, the statute was intended to provide compensation only after the liability of the uninsured motorist has been established. Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 785, 457 P.2d 34 (1969). After review of the uninsured motorist cases, the Court of Appeals concluded the same must be true in an underinsured motorist case.
The Court of Appeals observed that, as a general rule, a judgment entered by consent or agreement is conclusive only on the parties to the agreement and is not binding upon other parties even if such other parties would be bound by the judgment had it been entered as a result of a trial. It noted that in Kansas the general rule has been applied in comparative negligence cases in a variety of contexts by this court, and it has consistently been found one tortfeasor cannot, by settlement, bind nonsettling tortfeasors without their consent. See, e.g., Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 192, 643 P.2d 158 (“[A] settling defendant has no claim to settle but his own.”), aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982). The Court of Appeals reasoned, although the present case does not involve settlement in a mul tiple tortfeasor context, the analogy to the general rule is persuasive.
In reaching this decision, the Court of Appeals relied on two of our prior cases which dealt with the legislature’s adoption of K.S.A. 1990 Supp. 60-258a: Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988), and Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988). That statute imposes individual liability for damages based on the proportionate fault of all parties to the occurrence that gives rise to the injuries and damages, even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault. In adopting comparative negligence, the intent of the legislature was to fully and finally litigate in a single action all causes of actions and claims for damages arising out of any act of negligence, but it was never the legislature’s intent or the intent of the courts to place form over substance and preclude a plaintiff from proceeding against a tortfeasor when there has been no judicial determination of comparative fault.
In Mathis v. TG&Y, 242 Kan. 789, the plaintiff filed successive suits arising out of the same event, naming different defendants in each petition. The plaintiff then settled with the defendants in one suit and the action was dismissed with prejudice. The issue was whether a dismissal with prejudice in one case precludes a trial in the other action. It was held the dismissal did not qualify as a “judicial determination of comparative fault” precluding a trial on the merits against different defendants based on the same occurrence. 242 Kan. at 794.
In Childs v. Williams, 243 Kan. 441, the minor plaintiff settled with one defendant. Because K.S.A. 38-102 allows a minor to disavow a contract within a reasonable time after reaching majority, settlement was reduced to judgment with court approval to make the settlement binding. Later, plaintiff filed this action against another defendant. The issue presented was whether the judgment previously obtained precluded a trial on the merits in the second action. The defendant attempted to distinguish Mathis, arguing the court played a substantive role in evaluating the settlement and reducing it to judgment, whereas Mathis dealt only with dismissal by the court. This court was not persuaded and concluded “each plaintiff must be allowed a trial judicially determining comparative fault, regardless of whether the plaintiff had the opportunity to do so earlier in one action.” 243 Kan. at 443. Implicitly, the court held a judgment rendered to insure a minor did not later disavow a settlement contract was not a judicial determination of comparative fault precluding a trial on the merits.
The Court of Appeals noted in each case there was a settlement agreed to by less than all of the actors, which required court approval only because of the posture of the case. In neither Mathis nor Childs was the plaintiff required to establish liability on the part of the consenting tortfeasor to obtain the judgment and in neither case was a determination of comparative fault made as a result of a trial.
The Court of Appeals then discussed Guillan’s contention that a confession of judgment by Watts bars further litigation of the matter. It observed that to do what Guillan requests would contravene the established right of the parties to a judicial determination of fault. It concluded that Watts’ confession of judgment in this action is fundamentally indistinguishable from the judgment in Childs.
The Court of Appeals reasoned the central issue resolved in Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985), was the effect of prior case law regarding uninsured motorist coverage on the relatively new underinsured motorist statute, rather than the effect of a settlement between the plaintiff and the primary tortfeasor on the rights of the underinsured motorist insurance carrier. It determined that Guillan’s reliance on one statement in Haas was not persuasive and his position on the matter was not a correct statement of the law. It found the confession of judgment in the present case insufficient to satisfy Guillan’s burden of proving he “is legally entitled” under 40-284(b) to recover as damages the underinsured motorist benefit from his insurer. It ruled that the trial court did not err in finding Allstate was not bound by the confession of judgment. See Ramsey v. Chism, 249 Kan. 299, 817 P.2d 198 (1991), filed subsequent to the Court of Appeals opinion in this case, where we determined that the insured cannot require the insurer to be a party in the action and recognized the possibility of multiple litigation.
After reaching its decision, the Court of Appeals stated:
“It is unfortunate the court in Haas chose to state the insurer ‘is bound by any judgment obtained in the action’ without first defining ‘any judgment.’ 236 Kan. at 683. However, within the context of that case, the statement is accurate. Haas arose out of the following set of facts: Haas filed suit against Freeman, and Horace Mann Insurance Company was joined as a party defendant. The insurance company was dismissed by the trial court on its motion, but the court ruled the insurance company would be bound by any judgment rendered. Haas appealed that ruling, arguing he had a right to include the insurance company in the action. The Supreme Court disagreed, finding, in an underinsured motorist action, the insurer may intervene or not at its own peril. The court assumed there would be a judicial determination of fault in these situations and that there would always be an ‘active opposing party and his insurer’ forcing such a determination. 236 Kan. at 682.” 15 Kan. App. 2d at 411-12.
Three federal courts have reached the opposite conclusion when the insurer refused to intervene in the action. In Horace Mann Ins. Co. v. Ammerman, 630 F. Supp. 114 (D. Kan. 1986), a declaratory judgment action, the plaintiff, Horace Mann Ins. Co. (Horace Mann), had issued an automobile insurance policy to Lee Dean Ammerman. The policy included underinsured motorist coverage with policy limits of $250,000 per person or $500,000 per occurrence. On November 17, 1983, Mr. Ammerman was in a fatal two-car accident. The driver of the other car, Robinette Chadwick, was insured through the Allstate Insurance Company. Her auto liability insurance policy limit was $50,000.
On March 29, 1984, defendant Gloria Ammerman (Ammerman’s widow) signed a release. In accordance with the terms of the release, Allstate Insurance Company paid to defendants the $50,000 provided for in Mrs. Chadwick’s insurance policy. On February 11, 1985, defendants filed suit in the District Court of Johnson County, Kansas, against Mrs. Chadwick, alleging that her negligence caused the death of Mr. Ammerman. Mrs. Chadwick confessed judgment in that action. On March 20, 1985, the state court entered judgment in favor of defendants and against Mrs. Chadwick in the amount of $200,000. Although properly notified of that state court proceeding, Horace Mann chose not to intervene.
Horace Mann then filed a declaratory judgment action in the federal district court, claiming that the release executed by Mrs. Ammerman without its written consent violated the terms of Mr. Ammerman’s underinsured motorist policy; therefore the policy was void. Defendants counterclaimed, requesting the $200,0000 due them under that policy — the difference between the $250,000 per person policy limit and the $50,000 already received from Allstate Insurance Company. The defendants argued that the relief plaintiff sought was foreclosed by the insurer’s failure to intervene in the state court action against Mrs. Chadwick filed by those insured under plaintiffs policy. As authority for this argument, defendants cited our decision in Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985). The federal district court found especially pertinent our language in Haas:
“ ‘We reiterate our previous conclusions in Winner [v. Ratzlaff, 211 Kan. 59, 505 P.2d 606 (1973),] that all issues in a lawsuit should be tried in one trial. Multiplicity of suits does not promote substantial justice. Thus, the issues in cases involving uninsured motorists and underinsured motorists should be tried in one lawsuit.’ 236 Kan. at 682, 693 P.2d at 1203.” 630 F. Supp. at 116-17.
The federal district court noted, contrary to the implication of defendants’ argument, Haas did not establish a rule of mandatory intervention in a case such as this. 630 F. Supp. at 117.
The federal district court observed that Horace Mann had exercised its right not to intervene in the state court action. By electing not to intervene, Horace Mann was bound by the state court’s subsequent determination that defendants had suffered damages of $200,000 and that Mrs. Chadwick was liable therefor. It then noted, however, the question at issue in the declaratory judgment action, i.e., whether plaintiff is liable to defendants, was not even addressed in the state court action.
The federal court observed that the “Kansas public policy requiring compensation to innocent persons injured by the tortious conduct of an [underinsured] motorist would be violated if an insurer were allowed to refuse payment on an underinsured motorist policy even after its insured had established the liability of the underinsured motorist.” 630 F. Supp. at 119. It noted that is the result plaintiff sought. The federal district court determined that the underinsured motorist insurer was not required to intervene in the insured’s action against a third party in state court and its failure to do so did not establish its liability to the insured, but, by electing not to do so, it became bound by the state court’s determination as to the amount of damages suffered by the insured.
National Farmers Union Ins. Co. v. Novak, 85-2148-S (D. Kan. May 7, 1986), was a case in which Robert G. Pearson was killed and Robert Christopher Pearson, Joseph A. Miller, and Johnny J. Novak sustained serious, permanent, and disabling injuries as the result of a collision that occurred on September 8, 1984. The negligent driver was underinsured. Midwestern Indemnity, which insured the defendant vehicle owner, had a provision in its policy which stated:
“We will pay damages for bodily injury which an insured person is legally entitled to recover from the owner or operator of an underinsured motor vehicle. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the underinsured motor vehicle.
“We will pay under this coverage only after the limits of liability under any applicable bodily injury liability bonds or policies have been exhausted by payment of judgments or settlements.” Slip op. at 4.
An action was filed in the federal district court. After Midwestern was made a party to the action, it elected to withdraw. The court approved a journal entry allocating damages to the heirs of Robert G. Pearson in the amount of $2,000,000; to Robert Christopher Pearson, $40,000; to Johnny J. Novak, $80,000, and to Joseph A. Miller, $80,000. The journal entry indicated that the total disbursement of all interpleaded funds resulted in partial satisfaction of their respective claims.
The defendants filed their motions for summary judgment, claiming unsatisfied underinsured damages. The federal district court cited Haas v. Freeman and stated:
“The Haas case clarifies that a litigant’s underinsured motorist insurance carrier need not be a named party to the action in order to be bound by any judgment obtained therein. Notice of the action pursuant to the terms of the policy is all that is required for the carrier to be bound by ‘any judgment.’
“Midwestern argues that Haas is inapplicable here because it pertains to a situation where judgment was obtained by trial. In the instant case, the claimants reached a settlement determined by the court, therefore Midwestern argues it is not a judgment which is judicially settled.” Slip op. at 5.
The court did not agree that Haas was distinguishable solely because the case at bar involved a settlement agreement. It noted that Midwestern was aware of the pendency of the action, yet elected to withdraw. It stated that the judgment in the case was no less a judgment because a trial by jury or by court did not occur. In a hearing, evidence was presented by the parties with respect to their damages, and the court specifically approved such damages. Because of the status of the case, there would have been no benefit gained by proceeding to trial on what would essentially amount to uncontested claims.
In Pearson v. Midwestern Indemnity Company, Nos. 86-2021 and 85-2148-S (10th Cir. April 5, 1988), Midwestern Indemnity Company appealed the federal district court’s summary judgment in National Farmers Union, which concluded appellant was bound by the terms of the settlement agreement entered into by its insured.
Midwestern argued the issue of damages was not judicially determined or actually litigated, and therefore, the agreement was not binding. The 10th Circuit observed that the district court’s execution of the journal entry on February 24, 1986, indicated its approval of the parties’ resolution of the various claims, including the designation of the insured’s damages. The circuit court noted it is well established that a judgment entered based on a settlement agreement is a judgment on the merits, citing Brooks v. Barbour Energy Corp., 804 F.2d 1144, 1146 (10th Cir. 1986). Slip op. at 6.
The circuit court noted that from the beginning Midwestern had been given proper notice of the lawsuit and had full knowledge of the nature of the proceedings. In fact, Midwestern participated in the actual settlement negotiations by defending Johnny Novak on one of the cross-claims. Instead of intervening to contest the damages issue, Midwestern withdrew from the case until after the issues of liability and damages were resolved through settlement and approved by the court. The circuit court determined Midwestern’s failure to act, when given the opportunity, precluded it from now demanding a second opportunity to contest the damages issue. It found that, based on these facts, and pursuant to Haas, Midwestern was bound by the district court’s order of February 24, 1986, and the determination of damages stated therein. Slip op. at 6-7.
As a general rule, multiple litigation is never desirable, and there is a public interest economically in avoiding it whenever possible. In an action involving an underinsured motorist, if the insured invokes the underinsured motorist clause of his automobile insurance policy and notifies his insurance carrier in the manner prescribed in the insurance policy, the insurer has the election to intervene in the action. If the insurer elects to intervene, it becomes a named party to the action. Haas, 236 Kan. at 682-83. However, if the tortfeasor subsequently agrees to confess judgment after the insurer has intervened, the confession or agreement is conclusive only as to the parties to the agreement and is not binding upon the insurer even though the insurer would have been bound by the judgment had it been obtained as a result of the trial. See Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., 26 Ariz. App. 204, 206-07, 547 P.2d 56 (1976). See, e.g., Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 192, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982).
Here, when Guillan discovered that Watts was underinsured, Guillan notified his insurance company. Guillan’s insurance carrier, Allstate, elected to intervene and became a named party to the action. Watts was allowed to confess judgment in favor of Guillan. Allstate, a party to the action, was not bound by the agreement between the insured and the tortfeasor. Under these facts there must be a trial to apportion the fault between Guillan and Watts to determine if Guillan’s damages exceed the limits of Watts’ automobile liability insurance limits.
We disagree with the Court of Appeals’ further statement that in all underinsured motorist actions there must be a judicial determination of fault between the parties in order to bind the insurance carrier. A judgment entered based on a settlement agreement is a judgment on the merits. Brooks v. Barbour Energy Corp., 804 F.2d at 1146. Once notified of an action, if the insurance carrier elects not to intervene, the insurance carrier is bound by a judgment obtained in the action.
The Kansas public policy, that all issues in a lawsuit should be tried in one trial and that compensation to innocent persons injured by the negligent conduct of an underinsured motorist is required would be violated if an insurer that refused to intervene in the action was allowed to refuse payment on an underinsured motorist policy after its insured had established the liability of the underinsured motorist whether by a trial of that issue or a proper confession of judgment in the action. Once the insured has notified his insurer and the insurer elects not to intervene and become a party to the action, the insurer is bound by the judgment, whether the judgment is by trial or based on a proper settlement agreement between the parties to the action and approved by the court.
The next issue is whether the trial court erred in not instructing the jury that it was unlawful to drive faster than 35 mph at the location of the collision. 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, 88-89, 727 P.2d 450 (1986). In a case involving a vehicle, the trial court has a duty to instruct the jury on the applicable traffic statutes. A party is entitled to an instruction explaining its theory of the case where there is evidence to support it. However, refusing to give an instruction is not error when its substance is adequately covered in other instructions. A court should not by its instructions unduly emphasize one aspect of a case. Schallenberger v. Rudd, 244 Kan. 230, 232, 767 P.2d 841 (1989).
Two experts testified that Watts’ car was traveling between 40 and 45 mph at the time of the accident. The speed limit was 35 mph. Part of Guillan’s theory was that Watts was negligent- by exceeding the speed limit.
Guillan requested that PIK Civ. 2d 8.01 concerning violation of law as negligence and PIK Civ. 2d 8.12 concerning speed limits be given. The trial court gave PIK Civ. 2d 8.01 and PIK Civ. 2d 8.12(a). PIK Civ. 2d 8.12(a) states: “The laws of Kansas provide that no person shall drive a vehicle at a speed greater than is reasonable under the conditions and hazards then exist ing.” Guillan objected to the court not giving PIK Civ. 2d 8.12(b), which states: “At the time and place and with the vehicle involved in this case, any speed in excess of [35] miles per hour was unlawful.” The trial court declined to give this instruction, stating it was a matter of common knowledge.
We agree with the Court of Appeals that there was evidence to support Guillan’s negligence per se argument and that the court should have given the instruction. The instructions given did not adequately cover this theory. Here, the instructions read as a whole do not fairly instruct the jury on the law governing the case. In addition, because this is a close case, the potential prejudice to Guillan is increased. In this case, the jury split fault evenly at 50 percent. An instruction that any speed in excess of 35 mph was unlawful would strengthen Guillan’s case and increase the likelihood of a verdict in Guillan’s favor.
The Court of Appeals could not conclude the trial court’s failure to give the instruction was harmless error. We agree.
Guillan’s last contention is that K.S.A. 8-1545(a)(2) is unconstitutionally vague and indefinite.
An appellate court adheres to the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. Federal Land Bank of Wichita v. Bott, 240 Kan. 624, 628-29, 732 P.2d 710 (1987).
In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. State v. Robinson, 239 Kan. 269, 273, 718 P.2d 1313 (1986). K.S.A. 8-1545(a)(2) is not void for vagueness.
The trial court gave a PIK Civ. 2d 8.22 instruction. That instruction is based on K.S.A. 8-1545(a)(2), which states:
“Left turns. The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle. Whenever practicable a left turn at an intersection shall be made to the left of the center of the intersection, and any left turn shall be made so as to leave the intersection or other location in the extreme left-hand lane lawfully available to traffic moving in the same direction as such vehicle on the roadway being entered.”
The Court of Appeals noted this language is taken from Uniform Vehicle Code § ll-601(b) and is intended to facilitate the use of an intersection by left-turning cars coming from opposite directions and to provide a practical turning course for both large and small vehicles. It observed that although the statute is not well written, it does give fair warning to those subject to it. The statute directs drivers from which lane to begin the turn and from which lane to exit the intersection. The Court of Appeals stated the statute also directs drivers to turn left of the center of the intersection when practicable. The Court of Appeals found although the statute requires the driver to determine when it is practicable this does not render the statute unconstitutionally vague. We agree.
The decision of the Court of Appeals affirming in part and reversing in part the decision of the district court is affirmed as modified, and the case is remanded for a new trial.
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On December 6, 1985, respondent Christopher P. Christian was disciplined by indefinite suspension. In re Christian, 238 Kan. 451, 709 P.2d 987 (1985). On April 19, 1989, respondent filed a petition with this court for reinstatement to the practice of law in Kansas, pursuant to Rule 219 (1990 Kan. Ct. R. Annot. 157). On April 12, 1991, this court ordered that respondent be reinstated conditioned upon his taking and passing the MultiState Professional Responsibility Examination and upon his continuing therapy with Dr. Stephen Sowards until released by Dr. Sowards. In re Christian, 248 Kan. 504, 810 P.2d 276 (1991).
The Clerk of the Appellate Courts has verified that the respondent has taken and passed the Multi-State Professional Responsibility Examination. Respondent is continuing his therapy with Dr. Sowards.
The court therefore finds that respondent has fully complied with the order of reinstatement entered by this court on April 12, 1991, and should be reinstated to the practice of law in Kansas.
It is therefore ordered that Christopher P. Christian be and he is hereby reinstated to the practice of law in the State of Kansas, conditioned upon his continuing therapy with Dr. Stephen Sowards until released by Dr.. Sowards. The Clerk of the Appellate Courts is directed to enter his name upon the roll of attorneys licensed to practice law in the State of Kansas.
It is further ordered that this order shall be published in the official Kansas Reports.
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The opinion of the court was delivered by
Six, J.:
This is a premises liability case. In addition to the premises liability issue, we shall consider: (1) the relationship of damages awarded for personal injury and the evidence, or lack thereof, supporting the award; (2) scope of employment; (3) proximate and intervening cause; and (4) the concept of the law of the case.
The appeal arises from a jury verdict in the personal injury action of Preston Miller (appellee/cross-appellant) against Zep Manufacturing Company (Zep) (cross-appellant/cross-appellee) and Strickland Thorup Construction Company (Strickland) (appellant/ cross-appellee). The jury returned a verdict of $30,750 for future medical expenses and lost wages, finding Miller 49% negligent, Zep 6% negligent, and Strickland 45% negligent.
Strickland appeals on the issues of liability and damages. Miller cross-appeals the jury’s failure to award damages for past medical expenses and for pain and suffering. Zep cross-appeals the trial court’s ruling that its employee, Harold Mallín, was acting within the scope of his employment at the time of the alleged negligent acts.
The appeal was transferred to this court. Our jurisdiction is under K.S.A. 20-3018(c).
We reverse and remand for a new trial.
On July -27, 1990, the Court of Appeals rendered its unpublished opinion in Miller v. Steel Benders, Inc., No. 64,485 (Miller I). The Court of Appeals found that the issue of whether Steel-benders, Inc. (Steelbenders) reserved control of the premises was a factual question precluding summary judgment. However, the Court of Appeals affirmed the trial court’s ruling granting summary judgment to Steelbenders, reasoning that the pit was open and obvious and Steelbenders was under no duty to remove known and obvious dangers. Additionally, the Court of Appeals reasoned that Mallin’s act of removing the flags was an independent intervening act relieving Steelbenders of liability.
While Miller I was pending, Strickland appealed the trial result in the case at bar. Miller and Zep cross-appealed. None of the parties in Miller I petitioned for review. The time for such a petition has expired.
Facts
On January 23, 1987, Miller sustained injuries when he fell into a concrete pit located in an industrial building being constructed by Strickland for Steelbenders on property owned by J&R Land Company (J&R) in Lenexa, Kansas. Steelbenders was J&R’s tenant. Strickland’s construction contract was with J&R; however, the building was being constructed to Steelbenders’ specifications.
At Steelbenders’ request, Strickland constructed a “slitter pit” or “looping pit,” with concrete walls and floor, approximately 6 feet wide, 10-12 feet long, and 10-15 feet deep. The pit was built, as recommended by the manufacturer, to accommodate a slitter machine. At the time of Miller’s fall, the machine had not been installed.
Harold Mallín was a sales representative of Zep. Zep sells chemicals and janitorial products to commercial industry. Steel- benders asked Mallín for a quote on labor and materials to seal the concrete floor of the building. Steelbenders wanted a finished job. Mallín normally only sold the chemicals and supplies; however, he quoted the job with labor and materials. He has quoted and provided labor and materials, on occasion in the past, in carrying out his duties for Zep.
Miller was employed as an environmental services instructor. In this position, he taught handicapped and mentally retarded persons custodial and housekeeping skills. Miller was a customer of Mallin’s. Previously, Miller had supplied labor through Mallín for Mallin’s customers. Mallín contacted Miller regarding the Steelbenders job and Miller agreed to perform the labor necessary to seal the floors.
At the time of his fall, Miller’s eyesight was between 20/100 and 20/200. His eyesight is not correctable by glasses. Miller testified that he could see the pit and that his vision impairment did not prevent him from seeing it.
Dean Huggins was employed by Strickland as the job superintendent for the Steelbenders building. Huggins testified that a temporary certificate of occupancy on the building had been issued by the City of Lenexa on December 31, 1986. Strickland was allowed by the city to turn over occupancy of the building to Steelbenders after receiving the temporary certificate of occupancy. However, the keys to the building were not made available to Steelbenders. Strickland allowed Steelbenders limited access during the day to store items in one end of the building. Strickland did not allow Steelbenders access to the slitter pit area because of the potential hazard of the open pit. Huggins testified further that Strickland was responsible for the building until it was completed. The building was completed in June 1987, at which time possession was turned over to Steelbenders. Until that time, Strickland had possession of the building.
Bill Haight was employed by Steelbenders as operations manager in January 1987. He had arranged with Mallín to have the concrete floors sealed on January 23, 1987. Haight testified that the building was not assigned to Steelbenders until the middle of 1987. On the evening in question, he borrowed the key to the building from Huggins to have the floor sealed in preparation for the arrival of some heavy equipment. Huggins reluctantly gave Haight the key. According to Haight, Huggins was concerned that someone would have the key to the building the entire weekend. (January 23, 1987, was a Friday and Miller would need to work over the weekend:) Huggins testified that he was opposed to giving Haight the key because the concrete floor had not cured long enough to be sealed and because he was afraid the building might be unlocked over the weekend when he was not there:
Miller arrived at the Steelbenders building around 4:00 or 4:30 p.m. on January 23, 1987. Miller brought Larry Lott with him to help seal the floors. Miller and Lott waited for Mallin, who arrived a few minutes later. When Mallin arrived, the three men entered the warehouse. Shortly after arriving, Miller, Mallin, and Haight made a “walk-through” of the job. Miller testified that they walked over to the pit and it was mentioned that it would be a “horrible thing” if someone would fall in the pit.
In December 1986, a few weeks before Miller’s fall, the pit was temporarily covered with plywood for 10 days to 2 weeks. Strickland covered the pit so no one would accidentally fall in. In addition, the pit was surrounded by ropes with flags attached. The cover was removed because it was not strong enough to support much weight. There were a couple of forklifts that were used near the pit, and Strickland was concerned that the cover would collapse if one of the forklifts drove over it. Strickland did not consider using metal plating to cover the pit.
The testimony of Miller, Mallin, Huggins, and Haight differed regarding the condition of the pit on January 23, 1987. Miller testified that there were green and yellow flags attached to ropes going through some beams that were in the immediate area but not directly around the pit. (The ropes with flags will be referred to as flags, as the flags were permanently attached to the ropes.) There were no flags around the pit itself. Mallin testified that there were two rows of bright-colored flags wrapped around beams which made a square around the pit. According to Mallin there was nothing else around the pit. Lott testified that there were yellow flags strung around the beams some distance away from the pit. There were no flags or 2 X 4’s immediately around the pit itself.
Huggins testified that there were two rows of flags wrapped around beams a distance away from the pit — one strand waist high and one strand knee high. In addition, there was a wooden barricade with a railing constructed of 2 X 4’s right around the pit. Haight testified that there were two barriers around the pit. The outer barrier consisted of the two tier flags wrapped around the beams. The inner barrier consisted of 2 X 4’s stuck in around the pit with flags wrapped around the 2 X 4’s. He did not recall a structure with railing constructed of 2 X 4’s.
Miller testified that the flags had to be taken down to move equipment and to seal the cement floor between the pit and the flags. Although Miller was unsure who took down the flags, he stated that he did not take down the flags.
Mallín testified at trial that the flags were down when he left. He did not remember if he assisted in removing the flags. In a pretrial deposition, Mallín testified, “[W]e removed them.” Upon further questioning at trial, Mallín stated that he “probably did” participate in removing the flags. He did not remember Miller or Lott removing the flags. Haight testified that he did not move or make arrangements to have the flags moved.
Sealing the concrete floor is a multi-step process. First, the floor is swept. Second, a neutralizer is applied with mops. The floor is then hosed down and squeegeed. Third, an etching acid is applied with mops, and the floor is hosed down and squeegeed to remove the acid. The concrete floor is allowed to dry for approximately 12 hours. Finally, the sealant is applied with applicators.
On January 23, 1987, Miller and Lott had intended to perform the first three steps. They had planned to return later to apply the sealant after the concrete floor had dried. They were sealing one-half of the building on the weekend of January 23-25 and intended to seal the other half the following weekend.
Miller fell into the pit at approximately 10:00 p.m. while he was hosing down the acid. Miller stated that he was spraying the floor, constantly backing up, and all of a sudden he stepped off into the pit and sustained injury. On cross-examination, Miller admitted that he could have hosed down the floor while walking forward as well as walking backwards.
At trial Miller presented the expert testimony of Denzell Ekey, a safety consultant. Ekey visited the Steelbenders building in September 1989. At the time of his inspection, the slitter machine was installed around the pit. Ekey measured the distance of the pit from the beams which the flags allegedly had been wrapped around in January 1987. Ekey testified that at the closest point of the rectangle of flags, the pit was 12 feet away. Ekey discussed various safety standards including ANSI (American National Safety Institute), OSHA (Occupational Safety and Health Act), and the City of Lenexa Municipal Code which adopted the Uniform Building Code. The ANSI standards are commonly used in the construction industry and are incorporated into OSHA regulations. Ekey stated that under these three similar safety standards the pit would be defined as a floor opening. These standards provide that when a floor opening is not covered, it must be attended or protected by a guardrail on all sides. Based on deposition testimony of witnesses and his inspection of the Steelbenders building, Ekey stated his opinion that the pit area did not comply with the safety standards at the time of Miller’s fall because the pit was not protected by a guardrail or a cover.
Trial Court Rulings
Miller filed suit against Strickland, Zep, and Steelbenders. Prior to trial, the court granted summary judgment to Steelbenders, holding that Steelbenders had no duty to do anything with respect to the pit. The trial court reasoned that Strickland as general contractor had the duty to keep the site in a safe condition. The trial court also ruled as to defendants Zep and Strickland that the pit was an open and obvious condition as a matter of law. In addition to the duty to warn of the danger (which is not necessary when danger is open and obvious), the trial court held that Strickland had a duty to keep the Steelbenders building in a reasonably safe condition on January 23, 1987, precluding summary judgment for Strickland. As to Zep, the trial court ruled that whether Mallín’s act of taking down the flags contributed to Miller’s injury is a fact question to be decided by a jury, precluding summary judgment for Zep. The summary judgment granted to Steelbenders was certified as a final judgment for purposes of appeal. Miller appealed.
While Miller’s appeal of the summary judgment for Steelbenders was pending, the matter came on for trial between plaintiff Miller and defendants Zep and Strickland.
After the close of evidence, 2fep moved the trial court to determine whether Miller wás¡ a statutory employee of. Zep under the laws of Kansas or Missouri. Zep argued that Miller was not. In response, Strickland moved the court for a. determination that Miller was an employee of Zep, requesting that Zep beliismissed. The trial court ruled as a matter of law that Miller was an independent contractor at the timé of his injuries. The. independent contractor ruling is not challenged on appeal.
The trial court was concerned because the jury failed to award Miller uncontroverted damages for medical expenses up to the date of trial. The trial court submitted the following special question to the jury, which was returned as follows: “Does the amount of your verdict in paragraph 3(B)(b) include any amount of past medical expenses? Yes _ No X
The trial court accepted and entered a total verdict of $30,750, which was reduced pursuant to K.S.A. 1990 Supp. 60-258a by Miller’s 49% fault. Judgment was entered for Miller against Zep in the amount of $1,845 and against Strickland in the amount of $13,837.50. ’
Strickland — Its Duty to Maintain the Building
Strickland argues that the trial court erred in denying its motion for summary judgment and its motion for a directed verdict because it had no duty to maintain the Steelbenders building in a reasonably safe condition for the following reasons: (A) Strickland was not the possessor of the building on January 23, 1987; (B) Miller was not an invitee of Strickland; and (C) Strickland owed no duty to'Miller because the pit was a known and obvious danger of which Miller was warned.
Miller’s claim alleged that Stricklánd failed to keep the premises in a reasonably safe condition. To hold a defendant'liable for failure to keep premises in a reasonably safe condition, the defendant must be the owner, occupier,' or possessor of the premises. Summers v. Montgomery Elevator Co., 243 Kan. 393, 400, 757 P.2d 1255 (1988); Hall v. Quivira Square Development Co., 9 Kan. App. 2d 243, 244, 675 P.2d 931, rev. denied 235 Kan. 1041 (1984).
Restatement (Second) of Torts § 328E (1964) defines a “possessor of land,” in part, as: one who is in occupation of the land with the intent to control it. In determining the liability of a possessor of land, we have applied the occupation with intent to control principle. Summers, 243 Kan. at 400; Hall, 9 Kan. App. 2d at 244.
Strickland argues that it may not be held liable because it relinquished control of the Steelbenders building on January 23, 1987. Strickland asserts that once Huggins turned the key over to Haight, Steelbenders had absolute control over the building.
Miller counters that the testimony of Huggins established that Strickland was in control of the building on January 23, 1987. Strickland maintained access to the building and restricted access to the pit area. Miller also asserts that the fact Strickland constructed the barriers around the pit is evidence of Strickland’s intent to control the area. See Huxol v. Nickell, 205 Kan. 718, 724, 473 P.2d 90 (1970). Zep joins in Miller’s argument.
Miller and Zep are correct. Huggins testified that Strickland exercised control over the building and restricted access to the pit area. He further testified that Strickland was responsible for the building until it was completed in June 1987. After giving the key to Haight, Huggins testified that he returned to the building, replaced the flags, and instructed the workers to keep the flags up. Although this testimony is controverted, it suggests Strickland’s intent to control the premises after the key was given to Haight.
In premises liability cases, the duty of care owed by the possessor to the injured party depends, generally, upon the status of the party entering the premises. Britt v. Allen County Community Jr. College, 230 Kan. 502, 503-04, 638 P.2d 914 (1982), overruled on other grounds Bowers v. Ottenad, 240 Kan. 208, 729 P.2d 1103 (1986).
Strickland asserts that Miller was not an invitee as to Strickland, but merely a licensee. Strickland was not a party to the transaction between the Steelbenders/Zep/Mallin group and Miller. Miller’s services were for the sole benefit of Steelbenders. As a licensee, Strickland only owed a duty to refrain from willfully or wantonly injuring Miller. Miller has made no claim Strickland’s actions constituted willful or wanton conduct.
Miller contends that Strickland had contracted to complete the entire building. Miller’s services were a benefit to Strickland because he was aiding Strickland in completing its contract with Steelbenders. Thus, Miller was a business invitee of Strickland.
Zep reasons that various contractors on a construction project, as invitees, owe a duty of ordinary care to each other even if they are providing services for another party. Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 453 P.2d 486 (1969).
We held in Hendrix that two independent contractors who work on the same premises owe a duty of exercising ordinary care to each other. 203 Kan. at 148-49. Hendrix controls this issue. Strickland was the general contractor constructing the building for Steelbenders. Although Strickland’s contract was with the landowner, J&R, it is undisputed that the building was being constructed for Steelbenders. Strickland was a business invitee of Steelbenders. Miller was on the premises performing services for Steelbenders. Miller was a business invitee of Steelbenders. Strickland owed Miller a duty to exercise ordinary care.
Strickland argues that it had no duty to warn or protect Miller against the known and obvious danger of the open pit.
Miller counters that a premises owner or occupier must render the premises reasonably safe regardless of whether the danger is obvious. Scales v. St. Louis-San Francisco Ry. Co., 2 Kan. App. 2d 491, 582 P.2d 300, rev. denied 225 Kan. 845 (1978). Thus, the issue was properly submitted to the jury to determine if this duty was breached under the evidence presented. Zep concurs in Miller’s argument.
Generally, a possessor of land is under no duty to remove known and obvious dangers. Balagna v. Shawnee County, 233 Kan. 1068, 1083, 668 P.2d 157 (1983). However, the possessor may be under an affirmative duty to minimize the risk if there is reason to expect an invitee will be distracted, so that he or she will not discover what is obvious, will forget what has been discovered, or will fail to protect against the danger. Scales v. St. Louis-San Francisco Ry. Co., 2 Kan. App. 2d at 498. See Restatement (Second) of Torts § 343A comment f, 220 (1964); and Prosser and Keeton on Torts § 61, 425-27 (5th ed. 1984).
In the case at bar, the trial court ruled as a matter of law that the pit was open and obvious and that Miller was fully aware of it. Miller does not contest this 'finding, which is supported by his own testimony. Thus, Strickland had no duty to protect against the pit unless Strickland had reason to suspect that Miller would be distracted and forget to protect himself from the dangerous condition of the open pit. Relying on Scales, Miller contends that Strickland was subject to this affirmative duty to minimize the risk.
In Scales, the plaintiff was injured while working near two openings above an auger in a shaft running from a spur track to a grain elevator. Plaintiff was sweeping spilled rice into one opening when he “slipped” into the other opening. 2 Kan. App. 2d at 495. Defendant contended it had discharged its duty by warning plaintiff of the obvious danger. Relying on Restatement (Second) of Torts § 343A, the Court of Appeals held that defendant was subject to this “stricter duty” to diminish the risk. 2 Kan. App. 2d at 498. The Court of Appeals stated: “Appellee worked under conditions where the slightest slip could bring injury. Under such conditions, even a reasonably careful, non-negligent person could be injured.” 2 Kan. App. 2d at 498.
Strickland asserts that the “stricter duty” discussed in Scales does not apply in the present case. First, Miller was informed of the pit’s danger and made an intelligent choice that entering the premises justified the risk. Section 343A comment e, 219. Second, the facts of this case do not present circumstances where the “slightest slip” could bring about injury. Miller’s accident occurred because he was backing up and not paying attention to the pit.
In support of this argument, Strickland relies on the Court of Appeals’ reasoning in Miller I. The Court of Appeals held that Steelbenders was not under the “stricter duty” to diminish the risk. The Court of Appeals observed that no evidence in the record suggested Steelbenders had reason to believe Miller would be distracted and forget the pit was there. Additionally, the Court of Appeals concluded that a reasonably careful, non-negligent person could easily have avoided injury under the facts developed in the record.
Miller argues that the reasoning in Miller I applies only to the record developed before trial with regard to Steelbenders. We agree. Under the record developed at trial with regard to Strickland, the testimony of Huggins establishes that Strickland did anticipate Miller’s fall, giving rise to the stricter duty in Scales.
Huggins testified at trial that, in addition to the flags, the pit was temporarily covered a few weeks before the accident. Strickland covered the pit so no one would accidentally walk, step, or fall into the pit. Strickland restricted access to the pit area because of concerns that the open pit presented a hazard, in spite of the flags. This testimony is evidence that Strickland anticipated a worker could be distracted and forget the pit was there or fail to protect himself or herself from the danger of the pit.
Miller testified at trial that the concrete between the flags and the edge of the pit had to be sealed. The sealing process involved applying chemicals and water to the concrete floor right up to the edge of the pit. Thus, awamess of the flags may not have prevented his fall.
Ekey, Miller’s safety consultant, testified that work place safety standards (ANSI, OSHA, and the Lenexa Uniform Building Code) required the pit to be protected with either a cover or guardrails. Thus, industry standards require additional safeguards in spite of the obviousness of the danger or of a warning.
Although the question is a close one, we feel the evidence was sufficient to go to the jury on the imposition of the stricter duty to affirmatively diminish the risk. The jury found that such duty was breached in spite of the obviousness of the pit, the warning given to Miller, the flags, and Miller’s own inattentiveness.
The Jury Verdict
The jury returned an itemized verdict finding Miller’s damages to be $30,000 for future medical expenses and $750 for wage loss to date. The jury found Miller had sustained no damages for pain and suffering, disability and accompanying mental anguish, or medical expenses sustained to date.
Strickland asserts that the jury’s award of $30,000 for future medical expenses is not supported by the evidence. According to Strickland, plaintiffs treating physician, Dr. Porubsky, testified that there is a 50% chance Miller will need future shoulder surgery costing $10,000, and a 90% chance Miller will need future wrist surgery costing $7,500. Thus, according to Strickland, the most the jury could award for future medical expenses was $17,500, and hence, the jury’s award must be vacated.
Miller asserts that the amount awarded by the jury which exceeds $17,500 is not so great as to show prejudice on the part of the jury. The jury’s award showed a willingness to provide for unexpected or increased cost. Miller contends the jury’s award for future medical expenses is supported by substantial competent evidence and should not be disturbed.
Zep adopts the position taken by Strickland. Zep asserts that the specific issue of future medical expenses should be remanded for a second trial on this narrow issue but that the remainder of the jury’s verdict should not be disturbed.
We note that Dr. Porubsky testified that his charges would be $1,200 for the wrist surgery and $2,500 for the shoulder surgery in addition to the estimate of $17,500 in other expenses. Thus, the total estimate for future medical expenses would be $21,200.
The jury’s verdict of $30,000 for future medical expenses is not supported by the evidence. See Morris v. Francisco, 238 Kan. 71, Syl. ¶ 3, 708 P.2d 498 (1985).
Miller cross-appeals the jury’s failure to award damages for past medical expenses and for pain and suffering. Miller requests a new trial as to damages only.
Strickland does not dispute Miller’s argument. Strickland asserts that the jury’s verdict was improperly based on passion, prejudice, and a failure to follow the jury instructions. Strickland contends the jury improperly considered the issue of liability with damages. However, Strickland opposes a new trial on the issues of damages only, arguing that the issue of liability and damages are closely related.
Zep contends that although the jury’s verdict is technically incorrect, the verdict, considered in a lump sum, provides adequate damages for Miller. As an alternative to a new trial, Zep suggests that the verdict may be upheld because it is reasonable and was simply mischaracterized by the jury.
At trial, Miller testified that he incurred medical bills totaling $10,352.63. Following Dr. Porubsky’s testimony, the uncontroverted bills were admitted.
Miller further testified that he had suffered pain and continues to suffer pain in his wrist, shoulder, neck, and back.
In Germann v. Blatchford, 246 Kan. 532, 792 P.2d 1059 (1990), we restated the rules to be applied in considering a claim for inadequate damages. A jury award limited to medical expenses that includes nothing for pain and suffering shown by uncontradicted evidence disregards the jury instruction and is contrary to the evidence, and a new trial is required. 246 Kan. at 538-39 (quoting Timmerman v. Schroeder, 203 Kan. 397, 399-400, 454 P.2d 522 [1969]).
In the case at bar, the jury’s award is contrary to the evidence. The jury failed to award damages for uncontroverted past medical expenses and for pain and suffering. A new trial is required.
Should the new trial be limited to damages as Miller urges or should the new trial be on all issues as urged by Strickland? In instruction No. 12, the trial court instructed the jury, in part, to set forth the full amount of damage sustained and not to make any reduction attributable to fault. This instruction suggests that damages should be determined independent of fault. See PIK Civ. 2d 20.02 and K.S.A. 1990 Supp. 60-258a.
Strickland asserts that following the verdict, several jurors indicated that they had strong feelings that Miller’s negligence was greater than 50% but agreed to compromise in violation of the instructions when considering the issue of damages. This allegation is not supported by the record. When the trial court released the jurors the judge told them that they could stay and talk with the attorneys. However, the trial judge ordered that any contact with the jurors other than that day must be by court order. Strickland filed a motion for leave to contact jurors alleging that the jurors improperly considered the issues of fault and damages together. Strickland asserted it needed this juror inquiry to support its motion for a new trial. The trial judge denied the motion, observing that he was present during the discussion with the jury.
Strickland alleges that the jury, in violation of the instructions, considered damages with liability. Some of the jurors, it is alleged, agreed to find Miller less than 50% negligent if damages were kept low. This involves the mental processes of the jury. Any evidence on this issue would not have been received. K.S.A. 60- 441. Recause the trial judge was present when the jury was questioned, he knew what the jurors told Strickland’s counsel. He apparently found no suspicion of misconduct.
A new trial on the issue of damages only should not be granted when there appears a strong suspicion that inadequate damages were awarded as a compromise on the issue of liability. Lutz v. Peine, 209 Kan. 559, 564, 498 P.2d 60 (1972); Timmerman, 203 Kan. at 401; Scheuler v. Aamco Transmissions, Inc., 1 Kan. App. 2d 525, 531, 571 P.2d 48 (1977); and Johnson v. Meade, 1 Kan. App. 2d 254, 261, 563 P.2d 522 (1977). To raise any strong suspicion that a verdict awarding inadequate damages was a result of compromise involving the issues of liability and damages, there must be a genuine conflict in the evidence on the issue of liability. Timmerman, 203 Kan. at 401.
In Lutz, Scheuler, and Johnson, new trials were ordered on the issue of damages only. In both Lutz and Johnson, the defendant was liable as a matter of law. Thus, liability was not an issue. Scheuler involved the breach of a written warranty. Liability was not dependent on the jury finding defendant had breached a standard of ordinary care. The issue of liability in these cases was distinct from the issue of damages.
Due to our disposition, we do not reach the issue of the propriety of the trial court’s participation in and imposition of post-trial restrictions on juror inquiry.
We note, however, our Rule 169 (1990 Kan. Ct. R. Annot. 122), which mandates the giving in substance of the following upon completion of a jury trial:
“Upon completion of the jury trial and before discharge of the jury, the court shall give the substance of the following instruction:
“You have now completed your duties as jurors in this case and are discharged with the thanks of the court. The question may arise whether you may discuss this case with the lawyers who presented it to you. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. It is proper for the attorneys to discuss the case with you and you may talk with them, but you need not. If you talk to them you may tell them as much or as little as you like about your deliberations or the facts that influenced your decision. If an attorney persists in discussing the case over your objections, or becomes critical of your service either before or after any discussion has begun, please report it to me.”
There was a genuine conflict in the evidence on the issue of liability. The facts indicate that the failure to award damages for past medical expenses and for pain and suffering may have been a compromise on the liability issue. The case is remanded for a new trial on all issues.
The Alleged Fault of Zep
Zep moved for a directed verdict, alleging that Miller did not prove that Mallín was acting as an agent for Zep on the' evening of January 23, 1987. The trial judge denied the motion on two grounds. First, he noted that Steelbenders wanted a complete job — chemicals and labor. Mallín oversaw the labor and prepared and submitted bills to Steelbenders for both materials and labor. Mallín had provided labor on prior occasions and Zep was aware of that. The trial court stated: “[I]t’s just a way that they’re doing business as far as I’m concerned.” The trial court concluded there was evidence Mallín was acting as an agent for Zep. Second, the trial court noted the issue was not set out as a fact issue in the pretrial order (the pretrial order is not in the record).
Zep then moved to amend the contentions to conform to the evidence. The trial court denied the motion to amend, reasoning if Zep was allowed to amend, the trial court would have to allow Miller to reopen his case.
Zep cross-appeals, arguing that there was no evidence that Mallín was acting within the scope of his employment when he removed the flags. Zep contends that Mallin’s capacity as a sales representative did not include providing labor to apply the products. Any involvement Mallín had with Miller was separate from his representation of Zep.
The scope of employment/employee-employer test is described in Hollinger v. Stormont Hosp. & Training School for Nurses, 2 Kan. App. 2d 302, 311, 578 P.2d 1121, rev. denied 225 Kan. 844 (1978).
Mallín quoted a price for both product and labor on one form. Mallín had done that before, with Steelbenders and with other customers. The plant manager, Mallin’s boss, knew Mallín was making such a bid. Steelbenders’ purchase order made out to Zep included both chemicals and labor. Mallín stated that Steel-benders was looking to him to get the job done. Neither Mallín nor Zep received a fee from the labor charges. Mallín testified that he depends on customers being happy. Miller testified that he used Zep chemicals and supplies to seal the floor. Haight testified that he knew Zep was not providing labor.
The above facts indicate that when Mallín removed the flags, he was acting with a view toward furtherance of Zep’s business. See Hollinger, 2 Kan. App. 2d at 311. The trial court did not err in instructing the jury that Mallín was acting within the scope of his employment.
Removal of the Flags — Proximate Cause
Strickland argues that, as a matter of law, Mallin’s act of taking down the warning flags cannot be the proximate cause of Miller’s injuries. Miller was aware the flags were down and voluntarily elected to continue work. Zep does not brief this issue other than stating it adopts Strickland’s argument.
Miller relies in part on the reasoning in Miller 1 which held that Mallin’s act was the proximate cause of Miller’s injuries. Miller does not suggest that the ruling of Miller I be used to hold Strickland free from negligence. Miller asserts that the record developed at trial establishes that the actions of both Strickland and Zep were the proximate cause of Miller’s injuries.
Miller stepped off into the pit while walking backwards. If the flags had not been removed, Miller may have realized he was close to the pit, and his injury may not have occurred. Mallín did foresee the injury. Upon arrival at the Steelbenders’ building, Miller, Mallín, and Haight observed the pit and discussed the possibility of falling in. The jury must have found that Mallin’s act caused Miller’s injuries. Normally, proximate cause is a jury question. St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043 (1989); Sly v. Board of Education, 213 Kan. 415, 424, 516 P.2d 895 (1973).
Intervening Cause
Strickland asserts that even if it had a duty to Miller, Mallin’s act of removing the flags was an intervening cause relieving Strickland of liability. Strickland relies on the reasoning in Miller 1. Miller I held that Mallin’s act of removing the flags was an independent intervening act which relieved Steelbenders of liabil ity. Miller contends that it was controverted whether Strickland employees did or did not assist in removing the flags.
Zep argues that Mallin’s act cannot be found to be an intervening act of negligence to preclude an assessment of fault against Strickland for two reasons. First, the safety expert testified that the flags were inadequate. Had proper guards been placed on or around the pit, Miller would not have been injured. Second, Huggins testified that he returned at 9:00 or 9:30 on January 23, 1987, and replaced the flags. Mallín left at 6:30 and did not return. Even if Mallín did remove the flags, they were replaced before Miller fell at 10:00. Zep contends that the issue of Strickland’s fault was properly submitted to the jury.
The rule that the causal connection between an actor’s negligence and an injury is broken by an independent intervening cause so that the actor is not liable is subject to qualification. If the intervening cause is foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. Sly v. Board of Education, 213 Kan. at 424.
The factual disputes argued by the parties are for the jury to resolve. Mallin’s act of removing the flags might reasonably have been foreseen. The trial court did not err in submitting the issue of Strickland’s failure to maintain reasonably safe premises to the jury.
Next, Strickland argues that Miller’s own act of backing into the pit area despite its open and obvious condition-was an independent intervening cause.
Strickland did foresee this type of intervening act. This is evidenced by the covering of the pit in December 1986. Huggins testified that the pit was covered because Strickland was afraid someone would walk, step, or fall into the pit. Additionally, Strickland put up the flags and restricted access to the pit area by Steelbenders employees.
Because Miller’s act of falling in the pit was or might reasonably have been foreseen, Strickland is not relieved of liability as a matter of law.
The Law of the Case — Miller I
Strickland filed a motion for summary disposition with the Court of Appeals, asserting that Miller I was the law of the case and controlled this appeal. Miller and Zep opposed the motion. The Court of Appeals denied the motion with leave to reassert it in the appeal on the merits.
Strickland asserts that Miller I is the law of the case for purposes of this appeal. Strickland reasons the duties owed Miller by Steelbenders mirror the duties owed Miller by Strickland. Strickland contends it is relieved of liability on the same grounds that Steelbenders was relieved of liability in Miller I. Miller I ruled that first, Mallin’s act of removing the flags was an independent, intervening act and second, Steelbenders had no duty with respect to the pit because it was an open and obvious danger. The stricter duty in Scales was held not to apply.
Miller argues that neither the law of the case nor the principle of res judicata apply. First, the defendants are not the same nor are they in privity with Steelbenders, the defendant in Miller I. Second, the facts presented are not substantially the same as the facts presented in Miller I. Zep concurs with Miller’s argument.
When a second appeal is brought to the appellate courts in the same case, the first decision is the settled law of the case on all questions involved and decided in the first appeal and reconsideration will not be given to such questions. Bartlett v. Davis Corporation, 219 Kan. 148, 153, 547 P.2d 800 (1976). This law of the case rule applies where the evidence in the second trial, or second appeal, is substantially the same as in the first appeal. Dyson v. Bux, 92 Kan. 154, 157, 139 Pac. 1159 (1914); State of Kansas v. Occidental Life Ins. Co., 95 F.2d 935, 936 (10th Cir. 1938).
Miller I was a review of the trial court’s grant of summary judgment to Steelbenders.
The evidence is different in this appeal. Miller testified that he needed to seal the concrete between the flags and the pit. He specifically testified that if he was inside the flagged area working, the accident could still have happened. This presented a fact issue for the jury. Furthermore, Miller I did not discuss whether it was foreseeable that the flags would be removed. We do not know if the record on appeal in Miller I included the fact that the cement floor beyond the flags needed to be sealed. This fact makes the removing of the flags foreseeable. In addition, Miller I does not discuss the safety standards. At trial, in the case at bar, Ekey testified that safety standards required a cover or guardrails and that the flags did not comply with safety standards.
These facts preclude applying Miller I as the law of this case.
Strickland has not briefed the res judicata argument. Issues not briefed are deemed abandoned on appeal. Bazine State Bank v. Pawnee Prod. Serv. Inc., 245 Kan. 490, 495, 781 P.2d 1077 (1989).
Reversed and remanded for a new trial.
Abbott, J., not participating.
Terry L. Bullock, District Judge, assigned.
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The opinion of the court was delivered by
McFarland, J.:
Defendant Angela Fisher entered pleas of guilty to possession of marijuana (K.S.A. 1990 Supp. 65-4127b[a]) and possession of cocaine (K.S.A. 1990 Supp. 65-4127a). On the marijuana conviction, a class A misdemeanor, she received the maximum sentence of one year in the county jail. On the cocaine conviction, a class C felony, she received the minimum sentence, 3 to 10 years. The sentences are to run concurrently.
On appeal, defendant contends:
1. The district court abused its discretion in failing to consider the statutory factors set forth in K.S.A. 21-4606, and the sentencing policy set forth in K.S.A. 21-4601.
2. The sentence imposed on the cocaine conviction was the result of the district court’s partiality, prejudice, and vindictiveness.
The Court of Appeals affirmed the judgment in an unpublished opinion filed April 5, 1991. The matter is before us on a petition for review.
The sentences imposed herein were within the statutory limits. When a sentence is within the statutory limits, it will not be disturbed on appeal unless it is shown that the trial court abused its discretion or that the sentence was the result of partiality, prejudice, oppression, or corrupt motive. State v. Heywood, 245 Kan. 615, 617-18, 783 P.2d 890 (1989).
K.S.A. 21-4601 sets forth general policy considerations relative to sentencing as follows:
“This article shall be libérally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
K.S.A. 21-4606 sets forth detailed court sentencing factors to be followed by the sentencing court when determining the term of imprisonment:
“(1) In sentencing a person to prison, the court, having regard to the nature and circumstances of the crime and the history, character and condition of the defendant, shall fix the lowest minimum term which, in the opinion of said court, is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.
“(2) The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
(a) The defendant’s history of prior criminal activity;
(b) The extent of the harm caused by the defendant’s criminal conduct;
(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
(d) The degree of the defendant’s provocation;
(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
Here, defendant received the minimum sentence of imprisonment authorized for a class C felony. It should be noted that is not an offense to which the presumptive probation statute (K.S.A. 1990 Supp. 21-4606a) applies.
In sentencing the defendant, the district court stated:
“THE COURT: From the information furnished to the Court in the presentence investigation discloses that the defendant was convicted of theft in Erie, Pennsylvania, and received two years probation. It also discloses that in June, of ‘85, the defendant was convicted of theft in Caruthersville, Missouri, and she was given probation upon being extradited to Nebraska. On September the 10th, of‘85, defendant was convicted of theft and received a one year sentence. In February the 10th, of ‘86, defendant was again convicted of theft and received one year. In May of this year — of ‘89, the battery, simple battery occurred here in Sedgwick County, defendant was given 30 days and fined $150.00. There’s always victims in theft cases, people whose property is taken sustains a loss. Of course, this case is not a theft case.
“Possession of cocaine is a serious offense. Of course, the possession of marijuana is unlawful but it’s a misdemeanor. The Court can find no extenuating circumstances in this case. In Case No. 89 CR 1466 the Court is — will sentence the defendant to a minimum term of three years and a maximum term of 10 years. And in Case No. 89 CR 1736 the Court will sentence the defendant to one year in the Sedgwick County jail. It’s the further order of the Court that the defendant will be taken into custody by the sheriff of Sedgwick County and by him delivered to the custody of the Secretary of Corrections to serve these two sentences, which will run concurrently. The Court will retain jurisdiction over this case, request that the Secretary of Corrections send the defendant to the State Reception and Diagnostic Center and will review that report when it comes back.”
When the sentence exceeds the statutory minimum, it is the better practice for the sentencing court to place on the record a detailed statement of the facts and factors it considered. State v. Bennett, 240 Kan. 575, 578, 731 P.2d 284 (1987). However, the failure to place on the record such a detailed statement does not necessarily indicate an abuse of discretion, and each case is to be considered separately on its facts. 240 Kan. at 578.
The above-quoted comments of the district court demonstrate no abuse of discretion or legal basis for disturbing the sentences imposed herein. The problem lies in what was said immediately thereafter, to-wit:
“MR. SYLVESTER [defense counsel]: Is that the final order of the Court?
“THE COURT: That’s the final order of the Court today. The defendant will remain in the courtroom until such time as one of the officers come up and get her. This Court does not grant parole on convictions of cocaine, first offense or any other." (Emphasis supplied.)
K.S.A. 21-4606 by its express language applies only to the determination of the length of imprisonment — not to whether imprisonment, as opposed to probation, should be granted. K.S.A. 21-4601, however, applies across the board to all dispositions and states “persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities.” The criteria set forth in K.S.A. 21-4606 may be considered as being indicative of the matters intended to be considered under K.S.A. 21-4601.
The defendant argues that the district court’s closing remark demonstrates it sentenced her to prison solely because possession of cocaine was the offense of which she was convicted, and no consideration was given to her individual situation. This, defendant contends, establishes partiality, prejudice, or corrupt motive and is contrary to statute.
The State counters that the district court’s complained-of comment occurred after sentencing had been completed, was surplusage, and should not relate back to the court’s comments made prior to the imposition of sentence. Further, the State argues that because the court used the term “parole” rather than “probation” it was referring to some future event in the case. One of the difficulties with this latter argument is that the district court has no power to grant parole to persons it has sentenced to the custody of the Secretary of Corrections. We must conclude the district court meant probation rather than the term used, parole.
The district court’s comment can certainly be interpreted to mean the conviction of a cocaine offense means an automatic sentence of imprisonment regardless of any other factors present. Thus, the district court did not use discretion in denying the requested probation, as probation could never be considered as an option to imprisonment. This is contrary to the policy set forth in K.S.A. 21-4601.
As we held in State v. Reeves, 232 Kan. 143, Syl. ¶ 3, 652 P.2d 713 (1982):
“When it is shown that the trial court failed completely to follow the mandates of K.S.A. 21-4601 and K.S.A. 21-4606 in sentencing a defendant, the court has abused its discretion and the sentence imposed must be set aside and the case remanded for the purpose of resentencing in accordance with the proper statutory procedure.”
We conclude the sentences imposed herein must be set aside and the case remanded for resentencing under a different judge.
The judgment of the Court of Appeals is reversed. The judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion.
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Per Curiam:
This is an original proceeding in discipline filed by the disciplinary administrator against Patrick E. McKenna, of Kingman, Kansas, an attorney duly admitted to the practice of law in Kansas. A hearing panel of the Kansas Board for Discipline of Attorneys unanimously found a violation of Model Rules of Professional Conduct 8.4(d) and (g), Supreme Court Rule 226 (1990 Kan. Ct. R. Annot. 290), in that respondent’s conduct was prejudicial to the administration of justice and adversely reflects on his fitness to practice law.
The facts as stipulated to by the parties were accepted by the panel and are included within the panel’s report. No exceptions to the report were filed. Briefly summarized, the facts are that a search warrant was executed at respondent’s residence based upon the belief that marijuana plants were being cultivated on respondent’s property. Marijuana, drug paraphernalia, and a vial containing cocaine residue were seized pursuant to the search warrant. Eighty growing marijuana plants were also seized. Subsequent investigation revealed that the plants were not growing on property owned by respondent. Respondent was charged with possession of marijuana with the intent to sell, possession of drug paraphernalia, possession of marijuana, possession of cocaine, and unlawful use of weapons. The district court ruled that the evidence seized from respondent’s home was inadmissible. This ruling applied only to evidence seized inside respondent’s residence. Respondent denied knowledge of the existence of the growing marijuana plants, and a statement was obtained from an individual admitting responsibility for planting and growing the marijuana and that the respondent had no knowledge of the growing marijuana.
The respondent, pursuant to a plea agreement, agreed to plead guilty to one count of possession of marijuana, a class A misdemeanor. He was fined $250, and all additional charges were dismissed. Respondent admits to using marijuana, occasionally using cocaine, and having a substance abuse problem. As part of the stipulation, the disciplinary administrator recommended that respondent be disciplined by public censure and suggested that respondent be required to perform pro bono legal services, submit to random drug tests, and attend Narcotics Anonymous meetings. The panel accepted the written stipulation of the parties and made the following recommendations:
“The Respondent has never been previously disciplined. There are many testimonial letters as to the Respondent’s good character which were introduced at the hearing on behalf of the Respondent.
“It is the recommendation of this Panel that the Respondent, Patrick E. McKenna, should be disciplined by Public Censure pursuant to Rule 203(a)(3) [1990 Kan. Ct. R. Annot. 137], The Panel further recommends that the Respondent be required to perform fifty (50) hours of pro bono legal services, or included within said fifty hours, hours of service in assistance of persons involved in substance abuse problems, at his option. The Panel further recommends that the Respondent be required to submit to random drug tests in the year following the imposition of discipline and that the Respondent attend Narcotics Anonymous meetings on a regular basis.”
We adopt the panel’s findings. However, after careful review of the record, we conclude that the imposition of discipline against respondent should be suspended and that he should be placed on probation for a period of one year.
It Is Therefore Ordered that the imposition of discipline against Patrick E. McKenna be and it is hereby suspended, and respondent is placed on probation for a period of one year on the following conditions: (1) that he perform 50 hours of pro bono legal services, (2) that he not possess or use any controlled substance, as defined in K.S.A. 1990 Supp. 65-4101(e), (3) that he submit to random drug tests, at his expense, and (4) that he attend Narcotics Anonymous meetings on a regular basis. The disciplinary administrator shall approve the pro bono legal services to be performed and verify respondent’s compliance with this order.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue 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 shall be published in the Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Abbott, J.:
William Gauger brought what amounts to an inverse condemnation action against the State of Kansas. Gauger claims title to a strip of land 100 feet in width and 2,673 feet in length, comprising 6.13 acres, which is bounded on three sides (100 feet abuts a public road) by land owned by the State of Kansas and used by the Kansas State Penitentiary (KSP).
The parties filed cross-motions for summary judgment. The district court granted the State’s motion, finding that Gauger had no interest in the land to be taken. Gauger appeals.
For purposes of this appeal, the parties agree on the following facts, except as noted:
The strip of land in question is in the southeast quarter of section 19, township 9 south, range 23 east, which, at one time, was owned by Henry T. Green.
The west half (50 feet by 2,673 feet) of the disputed strip was deeded “for railroad right of way” by Green to the Union Pacific Railway Company on May 20, 1885. The Green heirs also quit-claimed their interest in the west half of the strip to the Union Pacific on December 12, 1887.
On August 15, 1978, the Union Pacific filed in the office of the Register of Deeds of Leavenworth County a statement of abandonment of this 100-foot strip.
The east portion of the strip was condemned by the Leavenworth and Olathe Railway Company on January 20, 1887. The parties agree that Kansas City, Northwestern Railroad Company acquired this interest from the Leavenworth and Olathe Railway Company.
The rest of section 19 was deeded by the Greens to KSP on April 10, 1903, “except that part thereof occupied as railroad right of way.” At the time of this transfer, the Union Pacific and Kansas City, Northwestern railroads were occupying their rights-of-way.
Kansas City, Northwestern Railroad Company went into bankruptcy in the 1940s. The register of deeds’ records show that Kansas City, Northwestern’s land (the east strip) was conveyed, pursuant to a tax sale, by sheriffs deed on June 19, 1943, to E. J. Cowling.
E. J. Cowling, by quitclaim, deeded his interest in the east strip to William Gauger on September 30, 1980. Gauger redeemed the property from the Leavenworth County Treasurer by paying all charges for back taxes and obtained a certificate of redemption.
Gauger claims an interest in and to Union Pacific’s 100-foot strip because the Union Pacific abandoned its right-of-way by disclaimer. He further claims the property reverted to adjoining landowners — 50 feet to KSP and 50 feet to Cowling.
In granting the defendants’ motion for summary judgment, the trial court said:
“From the above-noted facts, the Court makes the following conclusions:
“1. Kansas has long held that a railroad’s acquisition of land for right-of-way purposes through condemnation vests the railroad with only an easement. The holder of the fee-title may use and occupy the property for any purpose that does not interfere with the railroad’s use of the property. Miller v. St. Louis, Southwestern Railway Company, 239 Kan. 198 [, Syl. ¶ 1, 718 P.2d 610] (1986).
“2. When land is acquired for railway purposes it is immaterial whether the railway company acquired by right-of-way deed or other conveyance, or by condemnation. If or when it ceases to be used for railway purposes, or if such use never materialized, the land concerned returns to its prior status as an integral part of the freehold to which it belonged prior to its subjection to use for railway purposes. Abercrombie v. Simmons, 71 Kan. 538 [, 81 Pac. 208] (1905); Barker v. Lashbrook, 128 Kan. 595 [, 279 Pac. 12] (1929); Danielson v. Woestemeyer, 131 Kan. 796 [, 293 Pac. 507] (1930).
“3. Land acquired for a right-of-way for a railroad or other public purposes continues to be the property of its fee-title owner. Its acquisition and use for the public purpose subjects it to a servitude which may and commonly does deprive the owner of the fee of all beneficial use of it. But if or when the purposes which related to the acquisition have been terminated the burden of servitude is lifted from the land and the owner of the basic fee returns to full dominion. Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789 [, 89 P.2d 838] (1939).
“4. Exceptions to the above-noted rules recognized in Danielson v. Woestemeyer, 131 Kan. 796 (1930), and Nott v. Beightel, 155 Kan. 94 [, 122 P.2d 747] (1942), are distinguishable from the facts of the present case.
“5. Whether an abandonment has occurred is a question of intent. To constitute abandonment of a railroad right-of-way there must be a uniting of intent to renounce all interest in the right-of-way with a clear and unmistakable act to carry out that intent. Miller v. St. Louis, Southwestern Railway Company, 239 Kan. 198, Syl. ¶ 2 (1986); Martell v. Stewart, 6 Kan. App. 2d 387, Syl. ¶ 2 [, 628 P.2d 1069] (1981). The parties to this action apparently are in agreement that the rights-of-way in question have been abandoned. There appears no dispute between them on this issue. However, whether an abandonment of the rights-of-way in question has occurred is not material to disposition of this case. The controversy between the parties relates to their respective claims to an interest in the property, not its use.
“6. Plaintiffs claim to the Kansas City Northwestern Railroad right-of-way (50 feet by 2,673 feet) is derivative of a sheriffs deed to that property to his predecessor in title. The sheriffs deed was granted as a result of tax foreclosure proceedings.
“7. Plaintiffs claim to one-half of the Union Pacific Railroad right-of-way (50 feet by 2,673 feet) is dependent on the strength of his claim to the Kansas City Northwestern Railroad right-of-way because plaintiff claims one-half of the Union Pacific right-of-way by reversion to his adjoining property, the Kansas City Northwestern right-of-way.
“8. Ordinarily, a sheriffs deed as a result of a tax foreclosure for sale vests in the purchaser a fee simple title. However, this title is subject to valid easements of record in use and covenants running with the land. Given the Court’s earlier conclusions that the nature of the interest acquired in the right-of-way is an easement which reverts to the servient estate upon abandonment leads to the conclusion that plaintiff did not acquire an interest in the Kansas City Northwestern right-of-way which would support his claim of inverse condemnation. This conclusion is further supported by the long standing and important policy expressed in Abercrombie of disallowing long strips of land acquired for railroad rights-of-way to be severed from the surrounding land and conveyed. It would be inconsistent to adopt a rule which would provide that a railroad cannot abandon its use of the right-of-way and sell off the land voluntarily, but provide that if the railroad involuntarily surrenders the right-of-way through tax foreclosure that süch tract may be freely conveyed and severed from the surrounding land.
“CONCLUSION
“1. Plaintiff does not have a protected interest in the Kansas City Northwestern Railroad right-of-way which could be subject of a ‘taking’ and support a claim for inverse condemnation.
“2. Since plaintiffs claim to an interest in the Union Pacific Railroad right-of-way is derivative of his interest in the Kansas City Northwestern right-of-way, he likewise does not have an interest in the Union Pacific right-of-way which could be subject of a ‘taking’ and support a claim for inverse condemnation.
“3. Judgment is entered in favor of the defendant.”
Plaintiff first argues that the trial court erred in holding that he has no interest in the property.
Here, it is essentially undisputed that the Kansas City, Northwestern Railroad acquired land for right-of-way purposes through condemnation. In the most recent case on point, this court stated, “A railroad’s acquisition of land for right-of-way purposes through condemnation vests the railroad with only an easement.” Miller v. St. Louis, Southwestern Ry. Co., 239 Kan. 198, Syl. ¶ 1, 718 P.2d 610 (1986).
In Pratt v. Griese, 196 Kan. 182, Syl. ¶ 1, 409 P.2d 777 (1966), this court said, “An easement for a railroad right of way is limited by the use for which the easement is acquired, and when that use is abandoned the easement is terminated and the property reverts to the owner of the servient estate.”
Green transferred only a right-of-way to the railway. The initial question is who became the owner of the servient estate. Plaintiff argues that, when Green deeded the land to KSP, Green excepted the land lying under the railroad right-of-way by virtue of the language in the deed “except that part thereof occupied as railroad right of way.”
In Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208 (1905), this court considered whether a railroad can convey land to a third party it acquired as railroad right-of-way. This court reasoned as follows:
“The statutes recognize that land for a right of way may be acquired by purchase as well as by compulsory proceedings. When so purchased for that purpose does the railroad company hold a higher or better right than where it is acquired by virtue of eminent domain? May a railroad company purchase a strip of land extending a great distance through the country and over many farms, abandon the enterprise, and then sell the strip to those who will put it to a wholly different use — one that might be both obnoxious and menacing to the adjoining owners? Where an absolute and unqualified fee-simple title is acquired by a railroad company it may of course, in the absence of express or implied restrictions, be conveyed to another. After stating this rule Judge Elliott remarks:
‘But where there is an implied restriction, as is often the case in regard to the right of way, or the like, of a railroad company, the grant does not ordinarily vest a fee in the company, but vests such an estate, usually an easement, as is requisite to effect the purpose for which the property is required. Where the grant is of “surplus real estate,” as it is often called, that is of real estate not forming part of the railroad or its appendages, a deed effective to vest a fee in a natural person will vest that estate in a railroad company.’ (2 Ell. Rail. § 400.)
“Whatever its name, the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned.
“. . . The conclusion is that the plaintiff acquired no interest in these lands by the attempted conveyance by the railroad company to him, and, therefore, that the judgment of the district court is affirmed.” 71 Kan. at 542-47.
In Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 273 Pac. 661 (1929), this court construed deeds containing the expressions “less railroad right of way” and “excepting railroad right of way” and held the deeds conveyed the grantors’ interest in the right-of-way tract and title vested in the owners of the tract at the time the right-of-way was abandoned.
The same result was reached concerning land in the same Kansas town (Oxford) and on the same right-of-way in Roxana Petroleum Corporation v. Sutter, 28 F.2d 159 (8th Cir. 1928).
In Barker v. Lashbrook, 128 Kan. 595, 279 Pac. 12 (1929), this court dealt with the issue of who owned an abandoned railroad right-of-way as between the grantor of a deed that transferred 120 acres “less . . . 3.81 acres taken by the Kansas City, Wyandotte & Northwestern Railway” and the then-present owners of the 120-acre tract.
This court, in holding title to be in the then-present owners, said:
“A reservation is always construed more strictly than a grant (18 C.J. 344), and it is difficult to conclude that businesslike people, able to own, sell and buy land, could reasonably have had in mind at the time of the sale and purchase the leaving of a long, narrow strip of land through the 120-acre tract that was to remain the absolute property of the grantor in the happening of a very possible contingency. In [Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 Pac. 913 (1925),] this is spoken of as being so absurd and unreasonable as even to be against public policy.
‘The deed was to be interpreted most favorably to the grantee. The probability that the grantor would purposely deprive his grantee of the benefit of the servient soil, and reserve what in the great majority of instances would be of no use to the grantor, was always slight. Experience revealed that separate ownership of long, narrow strips of land distinct from the territory adjoining on each side was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.’ (p. 204.)
“The following is from the opinion of Justice Taft on this question, as found in Paine v. Consumers’ Forwarding & Storage Co., 71 Fed. 626, 632:
‘The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modem decisions are even more radical in this regard than the older cases.’
“We conclude that the exception made in the deed here in question is not such as to make it expressly appe^r- that a less estate than that which the grantor had was intended to be .conyeyed to the grantee. On the contrary, the langu¿ge employed is that \ybich is usually and ordinarily used to express the fact that a dominant estate to a certain portion of the land was already in another.
“The judgment is reversed and cause is remanded with directions to render judgment for the defendants.” 128 Kan. at 598-99. ■
The rüle is thus clear and of long standing that when the owner of real éstate conveys land abutting on a railroad right-of-wáy, and the owner (grantor) owns the servient estate of the railroad right-of-way and the railroad the dominant estate for right-of-way purposes, the grantor passes to the grantee the servient estate, unless the intention not to do so is clearly indicated.
Here, Green transferred the quarter section to the State of Kansas by warranty deed “except that part thereof occupied as railroad right of way.” The deed does not clearly indicate an intention not to transfer the servient estate. It merely points out to the grantee State of Kansas that a railroad right-of-way exists and the State takes the property subject to it. Obviously, the State would not knowingly purchase land for a state prison, knowing that if the right-of-way should be abandoned, some unknown party would own a strip of land 100 feet wide and 2,673 feet long running through the prison grounds. We conclude, as a matter of law, that the deed conveys the servient estate to the State of Kansas.
Once the servient estate passed to the State of Kansas, it could not be lost by adverse possession or a tax sale. Rights cannot be acquired in public lands by adverse possession or any statute of limitation. Wood v. M. K & T. Railway Co., 11 Kan. 323, 348 (1873); Janes v. Wilkinson, 2 Kan. App. 361, 42 Pac. 735 (1895). Federal or state agencies and instrumentalities are immune from taxation by each other; thus, a county cannot tax the State of Kansas or sell the State’s property at a tax sale and thereby vest title in a purchaser. Cf. Devine v. City of Seward, 174 Kan. 734, 737, 258 P.2d 302 (1953); State, ex rel., v. Akers, 92 Kan. 169, 205-06, 140 Pac. 637 (1914). For a general discussion of the subject, see Thomson v. Pacific Railroad, 76 U.S. (9 Wall.) 579, 19 L. Ed. 792 (1869); Boeing Airplane Co. v. Commission of Revenue and Taxation, 153 Kan. 712, 113 P.2d 110 (1941); and 3 Am. Jur. 2d, Adverse Possession § 268.
The doctrine of caveat empitor applies to a purchaser at a tax sale (Isenhart v. Powers, 135 Kan. 111, 9 P.2d 988 [1932]) and, of course, those who take title through a tax sale purchase are subject to knowledge of that rule. Thus, the purchaser at the tax sale took title subject to the State of Kansas’ servient estate and with knowledge that the statute of limitations and adverse possession cannot cause the State to lose title to real estate. One who buys at a tax sale buys only the interest of the owner. Russell County v. Mahoney, 69 Kan. 661, 77 Pac. 692 (1904). For the foregoing reasons, K.S.A. 58-2263 does not save the plaintiff.
The trial court did not err in holding title to the disputed tract to be in the State of Kansas.
Affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Gary McDaniel appeals from the trial court’s denial of his post-appeal motion to modify his sentence. McDaniel contends (1) he is entitled to bring this appeal and (2) the trial court abused its discretion in failing to modify his sentence.
In 1986, McDaniel was convicted of five counts of rape, five counts of aggravated burglary, four counts of aggravated kidnapping, and two counts of aggravated criminal sodomy. There were five victims and the crimes occurred over an eight and one-half month period. The trial court sentenced McDaniel to a controlling term of 4 consecutive life sentences, to be followed by a term of not less than 15 nor more than 40 years. Sentence was imposed under the Habitual Criminal Act, K.S.A. 1987 Supp. 21-4504, because of a prior felony conviction. The trial court found that a firearm was used in nine of the counts and that the mandatory minimum sentence required by K.S.A. 1987 Supp. 21-4618 applied to the sentences for those counts.
McDaniel filed a motion to modify his sentence after this court affirmed his convictions in case No. 59,821, an unpublished opinion filed February 19, 1988. Without appointing counsel to represent the defendant, the trial court, on the basis of an adverse report from the State Reception and Diagnostic Center (SRDC) and the “Court’s memory of evidence,” summarily denied McDaniel’s motion to modify his sentence.
On November 15, 1989, McDaniel filed a pro se notice of appeal from his convictions, sentences, and “[a]ll rulings made by the Court during the course of the trial and all pretrial rulings made by the Court adverse to the Defendant.” On March 14, 1990, long after the 130-day time limit for filing an appeal, McDaniel, through the appellate defender, filed a supplemental notice of appeal as to all of the adverse rulings of the trial court, including the court’s denial of his motion to modify sentence.
Due to the apparent untimeliness of the notice of appeal, we issued an order to show cause why McDaniel’s appeal should not be dismissed for lack of jurisdiction. In response to the show cause order, McDaniel alleged that he was not advised by the district court or his retained attorney of his right to appeal from the denial of his motion to modify sentence.
The case was remanded to the trial court for a determination of whether McDaniel was informed of his right to appeal from the denial of his post-appeal motion to modify sentence, whether he was furnished an attorney to perfect such an appeal, or whether he was furnished an attorney for that purpose who failed to perfect the appeal. Remand was entered pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
The district court held two hearings. At the first hearing on July 5, 1990, McDaniel’s trial attorney, Charles O’Hara, stated he did not have any recollection of telling anyone that McDaniel could appeal the trial court’s refusal to modify his sentence. O’Hara said he did not remember if he told anyone; he just could not remember.
The district court noted there was no need to furnish an attorney to perfect an appeal because McDaniel already had retained counsel. The trial judge asserted that it was irrelevant whether McDaniel knew of his right to appeal because the outcome of such an appeal would not alter the court’s ruling on the motion to modify. The trial court found there was no necessity for perfecting a meritless appeal from the denial of the post-appeal motion to modify sentence.
On July 10, 1990, the trial court reversed its findings sua sponte and appointed local counsel to represent McDaniel to determine whether further hearing was needed. At the second hearing, on October 10, 1990, the only evidence presented were affidavits of McDaniel and O’Hara, who had represented McDaniel during the trial, his direct appeal, and on the motion to modify McDaniel’s sentence.
Charles O’Hara stated in his affidavit that he did not have any recollection of informing McDaniel of his right to appeal the denial of the motion to modify the sentence. McDaniel, in his affidavit, stated his attorney had not informed him of the right to appeal the denial of his motion to modify sentence and he would have timely appealed if he had known of his right to appeal.
After the hearing, the court stated in its order, “In the court’s opinion the affidavit of Gary McDaniel is false. Based on the kind of attorney Charles O’Hara is, Mr. O’Hara would have discussed the right to appeal from the denial of a post-appeal motion to modify sentence in the normal course of representing the defendant. Despite Mr. O’Hara’s modesty as reflected in his affidavit, the defendant knew of his right to appeal. If Mr. O’Hara had, in fact, failed to do something he would have simply stated so. ” The court found McDaniel was informed of his right to appeal the sentence.
In State v. Ortiz, 230 Kan. 733, we noted that this court has only such appellate jurisdiction as is provided by law. Jurisdiction to entertain an appeal is conferred by statute pursuant to article 3, § 3 of the Constitution of Kansas, and when the record discloses a lack of jurisdiction it is the duty of this court to dismiss the appeal.
The filing of a timely notice of appeal is jurisdictional. If the appeal is not filed within the 130-day period fixed by statute, K.S.A. 22-3608 and K.S.A. 1990 Supp. 21-4603, it must be dismissed. We noted an exception to the time limit for filing an appeal has been recognized in the interest of fundamental fairness where a defendant was not informed of the right to appeal or was not furnished an attorney to perfect the appeal and/or was furnished an attorney for that purpose who failed to perfect and complete an appeal. State v. Ortiz, Syl. ¶¶ 1, 2, and 3.
McDaniel asserts there was no evidence to show he was informed of his right to appeal the district court’s denial of his motion to modify sentence. McDaniel claims in the absence of any evidence which demonstrates that he was advised of his right to pursue such an appeal by either his trial attorney or the trial court, he is entitled to pursue an appeal, and this court has jurisdiction to hear the appeal. The State argues the trial court found substantial competent evidence upon which to base its determination that O’Hara had informed McDaniel of his right to appeal. The State contends that, on the basis of O’Hara’s affidavit, which did not expressly state that McDaniel was not informed of his right to appeal, as well as O’Hara’s previous actions in this case, the court was correct in its assumption that it was reasonable to infer that McDaniel was informed of his right to appeal from the denial of his motion to modify sentence.
When a defendant claims he was not informed of his right to appeal, our review is limited to determining whether the district court’s finding that the defendant was informed of his right to appeal is supported by competent evidence when that evidence is weighed in a manner most favorable to supporting the trial court’s determination.
Here, the district court determined that Mr. O’Hara had informed McDaniel of his right to appeal the trial court’s refusal to modify the sentence based on Mr. O’Hara’s reputation as an experienced defense counsel. It is improper for a district court to take judicial notice of the reputation of a particular individual. Weigand v. Union Nat’l Bank of Wichita, 227 Kan. 747, 755, 610 P.2d 572 (1980). Other than the trial court’s taking judicial notice of Mr. O’Hara’s reputation as an attorney, our review of the record indicates there is no evidence that McDaniel was informed of his right to appeal the denial of his motion to modify his sentence.
The district court erred when it based its determination that the defendant had been informed of his right to appeal its refusal to modify his sentence solely on the fact the defendant had an experienced defense counsel. Under these facts, even though McDaniel’s appeal is out of time, we are required to entertain the appeal as an exception to the general rule that the filing of a timely notice of appeal is jurisdictional. Ortiz, 230 Kan. 733, Syl. ¶ 3.
Did the trial court err when refusing to modify McDaniel’s sentence? McDaniel states he must serve more than 75 years before he will be eligible for parole. Because he was 31 years old at the time he was sentenced, he will be approximately 106, years old before he is eligible for parole. The trial court’s sentence and refusal to modify that sentence ensure that McDaniel will spend the rest of his life in prison. McDaniel contends, based on his background and the information contained in the SRDC report, the court’s refusal to modify his sentence constitutes an abuse of discretion.
McDaniel points out that he had been employed for a number of years. He is married, has children, and has maintained close ties with his family and friends. He states that he does not have an alcohol or drug abuse problem. McDaniel states that he has never previously been charged with or convicted of a sexual offense. He had a prior juvenile adjudication for joyriding and an adult criminal conviction for robbery and burglary for which he was placed on probation. McDaniel notes that the SRDC report neither explains why an individual who has been a productive member of society with no history of sexual offenses would suddenly, at age 31, engage in such conduct, nor does the report indicate such conduct is likely to recur. McDaniel argues that the SRDC report does not justify the sentencing judge’s finding that he is a hopelessly dangerous sex offender who must be incarcerated for the rest of his life.
The State contends the trial court first considered the evidence presented at trial, the presentence investigation (PSI) report, and the victim impact statements and then applied K.S.A. 21-4601 and K.S.A. 21-4606 when determining the length of McDaniel’s sentence. The State notes that the sentence imposed by the trial court is within the statutory limits. The State argues, based on the facts, the court did not abuse its discretion in sentencing McDaniel.
K.S.A. 21-4601 provides that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies and that dangerous offenders shall be correctively treated in custody for long terms as needed. K.S.A. 21-4601 contemplates that the sentencing court shall give consideration not only to the individual characteristics, circumstances, needs, and potentialities of an individual defendant, but also to the needs of public safety and the protection of the general public. State ex rel. Stephan v. Clark, 243 Kan. 561, Syl. ¶ 5, 759 P.2d 119 (1988).
K.S.A. 21-4606(2) lists the criteria to be considered by the court in fixing a minimum term of imprisonment:
“(a) The defendant’s history of prior criminal activity;
“(b) The extent of the harm caused by the defendant’s criminal conduct; “(c) Whether the defendant intended that his criminal conduct would cause or threaten serious harm;
“(d) The degree of the defendant’s provocation;
“(e) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(f) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
“(g) Whether the defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.”
At sentencirg, the trial court stated:
“The seriousness of this case involving as many victims and as much shock and trauma and pain as they suffered call's for the application of sentence which exacts a separate penalty for each victim. . . .
“The reason that these sentences are consecutive is because of the harm done to five different people.
“The reason the counts are all concurrent with respect to violence done to each individual is not only because of the fact that the indignities were suffered upon one occasion, but because of the fact that consecutive life sentences have been imposed. It would simply be numbers that were meaningless to make additional years added to all of these sentences, and the purpose of the law is to make a sentence which comports with what occurred.
“Following the criteria in 21-4606, that is the degree of harm, the lack of justification, these appear to be appropriate sentences.
“The defendant is ordered to pay the costs of this action, if and when the defendant is considered for parole by the State Parole Board. It will be their obligation to determine how, if in any way, the victims could be compensated for the very substantial loss of personal feeling of safety and damage to their identities. I can’t measure that. I have tried to measure it by the length of the sentence.”
“A sentence imposed will not be disturbed on appeal if it is within the limits prescribed by law and the realm of trial court discretion and not a result of partiality, prejudice, oppression, or corrupt motive.” State v. Gibson, 246 Kan. 298, Syl. ¶ 4, 787 P.2d 1176 (1990). See State v. Trotter, 245 Kan. 657, Syl. ¶ 8, 783 P.2d 1271 (1989). “The fact that the minimum sentence imposed by a trial court exceeds the life expectancy of the defendant has never been grounds, per se, for a finding that the sentence is oppressive or constitutes an abuse of discretion. ” State v. Nunn, 247 Kan. 576, 580, 802 P.2d 547 (1990).
McDaniel fails to show any partiality, prejudice, oppression, corrupt motive, or any abuse of discretion by the trial court when imposing the sentence.
Reversed in part and affirmed in part.
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The opinion of the court was delivered by
Abbott, J.:
The City of Kansas City, Kansas, (the City) appeals from a jury award ($9,000) to James and Rosalie Van Horn in an eminent domain proceeding. Our jurisdiction arises from K.S.A. 26-504, which allows direct appeals to the Supreme Court from any final order in an eminent domain proceeding.
The City’s appeal in this case involves testimony concerning 99th Street becoming a 4-lane road and the effect this testimony has on the value of the remainder.
The Van Horns own and reside at 2214 North 99th Street in Kansas City, Kansas. Their lot is 100 feet wide by 263 feet deep and is located on the west side of 99th Street between Parallel Parkway and Leavenworth Road. The 100-foot width fronts 99th Street.
Prior to the taking, the right-of-way for 99th Street was 60 feet wide, extending 30 feet east and west of the centerline. In this case, the City took a permanent 10-foot right-of-way easement along the front of the Van Horns’ property. The City also took an additional 15-foot temporary construction easement next to the 10-foot permanent right-of-way easement. This appeal concerns only the permanent easement.
Prior to this action, 99th Street was a 2-lane asphalt roadway without curbs. The area was not serviced by a sewer system. The only construction in front of the Van Horns’ house consisted of installing a sewer line within the 10-foot permanent easement.
Most of the road work undertaken as a part of the construction project commenced immediately after the taking took place on 98th and 99th Streets. The road work occurred south of the Van Homs’ property, primarily between State Avenue and Parallel Parkway. Road improvements to 99th Street were undertaken north of Parallel Parkway in the immediate vicinity of the 99th Street/Parallel Parkway intersection. The road work ceased several hundred feet to the south of the Van Horns’ property, and no actual road improvements were to be undertaken immediately on 99th Street in front of and surrounding the Van Homs’ property at this time.
The first through streets east of Interstate 435 are 98th and 99th Streets between State Avenue and Leavenworth Road. The City’s Master Road Plan, dating back to at least 1984, projects this portion of 98th and 99th Streets eventually to be improved to a 4-lane roadway.
The Van Horns appealed the City’s award of $700. Prior to trial, the City filed a motion in limine to prevent the Van Horns’ experts from including proposed road improvements in their testimony. The City argued that because no road construction definitely was planned, the Van Horns should not be compensated for any potential future change in road width. The trial court denied the motion.
At trial, the city engineer testified that he believed 99th Street eventually will be improved to some type of 4-lane roadway, but he was unable to say when. If 99th Street is widened to a 4-lane roadway, additional land would have to be condemned. A Class “C” thoroughfare requires an 80-foot right of way — an additional 10 feet could be acquired on the east side of 99th Street (the other side of the street).
During trial, the Van Horns elicited testimony from the appraisers that threat of future expansion would affect the value of the property because potential buyers would not want to live on a 4-lane street. The jury awarded the Van Horns a total of $9,000. This appeal followed.
The City bases its argument on the following language from a recent case, Hudson v. City of Shawnee, 246 Kan. 395, 790 P.2d 933 (1990): “The general rule is that enhancement or depressing of value due to anticipated improvements by the project for which condemnation is sought is excluded in determining fair market value.” 246 Kan. at 406, citing 4,Nichols on Eminent Domain § 12.3151 (3d ed. rev. 1985).
This court has considered the impact of the improvement on the remainder of the landowners’ interest without any discussion of the rule suggested by the City in numerous cases. For a recent example, see Ryan v. Kansas Power & Light Co., 249. Kan. 1, 815 P.2d 528 (1991).
Generally, the rule discussed in Hudson applies if an entire piece of property is taken and then only to the value of the property before the taking. This rule prevents consideration of any increase or decrease in value resulting from the announce ment of a project that will affect the property actually taken. Nichols explains:
“It rarely happens that proceedings for the condemnation of and for public use are instituted without months, years, and in some instances, decades of time spent in preliminary discussion and in the making of tentative plans. These discussions and plans are usually known to owners and other persons interested in land in the vicinity of the proposed improvement, and are matters of common talk in the neighborhood. . . .
“The general rule is that any enhancement in value that is brought about in anticipation of, and by reason of, a proposed improvement, is to be excluded in determining the market value of the land.” 4 Nichols on Eminent Domain § 12 B.I7 [1] (3d ed. rev. 1990).
Nichols adds:
“If the exact location of the improvement is known from the outset, the property that will serve as the site of the improvement will not be subject to any rise or fall in values. This is so because the property is bound to be taken if the improvement is in fact constructed, and, therefore, it can neither suffer from, nor enjoy, the effects of the existence of the improvement in its neighborhood. Consequently, it is well settled that in such cases the effect of the proposed improvement upon the neighborhood must be ignored in valuing the land.” 4 Nichols, § 12 B.17 [2].
Nichols refers only to the value of the property before the taking. In Kansas, the measure of damages for taking an entire tract is “the value of the property or interest at the time of the taking.” K.S.A. 26-513(b). Suppose that an entire tract of land is to be taken for a roadway. The market price of the land is based on what a landowner can expect to derive from the land. If there is a roadway on the land, a landowner could find no productive use for the property and no one would pay anything for it. The value of this land, then, would be zero. Without the Hudson rule, the public agency taking the land could argue the land’s value is zero because of the announcement of the taking; therefore, the public agency would not have to pay for the land.
A partial taking.is different. K.S.A. 26-513(c) provides:
“If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after the taking.”
In a partial taking scenario, the Hudson rule prevents the public agency from arguing that the announcement of the project low ered the value of the property before the taking. Without the Hudson rule, the value of the remainder after the taking would be equal to the value of the whole prior to, and in anticipation of, the taking.
The rule announced in Hudson and Nichols was codified in Unif. Eminent Domain Code § 1005, 13 U.L.A. 91 (1986), and, although it has not been adopted in Kansas, the code árid its comments reenforce this analysis. Section 1005 provides:
“(a) The fair market value of the property taken, or of the entire property if there is a partial taking, does not include an increase or decrease in value before the date of valuation that is caused by (1) the proposed improvement or project for which the property is taken; (2) the reasonable likelihood that the property would be acquired for that improvement or project; or (3) the condemnation action in which the property is taken.”
The comment to this section explains:
“Section 1005 requires' changes in value (i.e., ‘blight’ or ‘enhancement’) caused by the project or by the imminence or pendency of the condemnation action to be excluded from consideration for purposes of establishing the fair market value of the property taken. See United States v. Miller (1943) 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 336. . . .
“This section applies to the determination of the ‘amount of compensation’ for the property taken. It thus affects not only the market value of the property taken, but also the determination of the ‘before’ value of the entire property in partial taking cases. See Section 1002(b). While compensation is intended to reflect the impact of the project or improvement upon market estimates of the value of the remainder in partial taking cases (see Section 1006), the base value of the original parcel with which the ‘after value of the remainder is to be compared, should be unaffected by condemnation-caused blight or enhancement." (Emphasis added.)
In Ryan v. Kansas Power & Light Co., 249 Kan. at 7, this court held admissible testimony concerning fear of high voltage power lines in the marketplace. This court stated, in holding such testimony admissible:
“The sole objective of a condemnation case is to compensate the landowner for actual damages suffered. Damages which are speculative, conjectural, or remote are not to be considered for compensation. However, any loss of market value proven with a reasonable degree of probability should be compensable, regardless of its source. [Citation omitted].” 249 Kan. at 9.
If decreased market value because of overhead power lines is relevant, then certainly decreased market value because of increased traffic flow is relevant.
The City also argues that the Van Horns should not be compensated for decreased market value because the road project is not definite; thus, the trial court erred in allowing testimony because it was speculative, conjectural, and remote. In Hudson, the City of Shawnee condemned a temporary construction easement that gave the city the right to block the access roads to a service station. The petition did not limit the length of time the access roads could be blocked, except to limit the duration of the temporary easement. This court held that the city had taken the right to block all access for the lull duration of the temporary easement) despite the city’s protestations that it did not intend to do so. 246 Kan. at 402.
In so holding, the Hudson court correctly applied a well-recognized rule of eminent domain — the landowner is compensated for what actually is taken. In Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 76, 334 P.2d 315 (1959), the court quoted from Annot., 7 A.L.R.2d 366 with approval:
“ ‘A condemner cannot avail of what may aptly be termed a “conditional” condemnation, but must take whatever rights are sought to be appropriated absolutely, paying in full therefor, regardless of future intentions; the rights acquired, and not the intended use of those rights, is the measure of the landowner’s compensation.”
Here, the City had the option of condemning a sewer easement or a road right-of-way, and it elected the latter. The City cannot now complain that it must pay for what it took or that testimony was introduced concerning the. purpose of the taking and its intended future use.
The trial court did not err in admitting evidence of decreased market value because of the City’s condemnation of the right-of-way easement.
Affirmed.
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The opinion of the court was delivered by
Johnston, J.
: The compensation of a county treasurer is determined by the number of inhabitants in the county for which he is elected, and as Leavenworth county has a population of over 25,000, the treasurer of that county is entitled to a salary of $4,000. This is the extreme limit of compensation that he can claim or retain for any official responsibility which he may assume, and for every official duty which he may perform. It is, as the statute says, “ In full for all services rendered by said treasurer or his deputies,” and he is required to report to the board of county commissioners all fees which he may receive for official services performed at the request of others, and the amount of them is to be deducted from the salary allowed. (Gen. Stat. 1889., ¶ ¶ 1716, 1717.) In another section it is made a felony for the treasurer to use or permit others to use “any public money coming into his possession or under his control from any source whatever by virtue of his official position.” (Gen. Stat. 1889, ¶ 1715.) It is within the power of the legislature to fix the compensation of public officers for official service, and to make it unlawful for county treasurers to receive or retain any other or greater reward from any source whatever for the performance of such services. The statutory provisions relating to such officers in effect preclude the treasurer from receiving any compensation or from taking or retaining any reward other than is expressly allowed as salary. The payment to and the retention by a public officer of any private reward, or any compensation other than as expressly provided by law, is contrary to public policy, subversive of good morals, and inconsistent with the pure administration of a public trust. The condemnation moneys were deposited with Spratley as county treasurer, and under the statute it was his official duty to hold and distribute them. We are very clear, therefore, that he is in no sense entitled to take or retain any additional compensation for the discharge of that duty.
Can the county recover the interest on the condem-- • nation moneys that were placed by him in the public depositories ? It is insisted on behalf of Spratley that no one other than the owners of these moneys can rightfully claim the interest which accrues on the samé, and that they are not public moneys within the meaning of the statute governing deposits. It provides that the
“treasurer shall deposit daily all public money in some responsible bank, to be designated by the board of county commissioners, in the name of such treasurer as such officer, which bank shall pay such interest on average balances as may be agreed upon by the board of county commissioners ; and such bank shall credit the same monthly to the account of said treasurer ; and before making such deposits, the said board shall take from such bank a good and sufficient bond, in a sum equal to the largest approximate amount that may be deposited at any one time, conditioned that such deposit shall be promptly paid on the check or draft of the treasurer of said county; and such bank shall, on the first Monday of each month, file with the county clerk a statement of the amount of money on hand during the previous month, and the amount of interest accrued thereon to said date.” (Gen. Stat. 1889, ¶1716.)
It is true, as contended, that the funds deposited do not belong to the public. If the condemnation proceedings are regular, the money deposited belongs to the railroad company until the right of way passes to the company. If no appeal is taken from the award of the condemnation commissioners, the right of way passes to the railroad company, and the right to the money passes to the landowner. (Blackshire v. A. T. & S. F. Rld. Co., 13 Kan. 514; C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 id. 453.) It does not appear that appeals were taken by any of the landowners, and if none were taken until the time for appeals expired, the deposits became the property of the landowners. Although-the condemnation money was not owned by the public, it nevertheless was public money within the meaning of the statute requiring "the placing of funds in the public depositories. It is money paid as the law requires in a public proceeding to secure the accomplishment of a public purpose. It is placed in the custody of a public officer, who keeps the same at the public expense. It is obtained in the exercise of the sovereign power of eminent domain, ■which can only be used for public purposes. The sovereign power being delegated to the railroad company makes it a public agency to secure the building of a highway to carry out a public use. An important and essential step in this public proceeding is the payment or deposit of condemnation money, and the legislature, which has full power in the premises, has provided that the amounts awarded as compensation to landowners by the public tribunal provided for that pur■pose shall be deposited with the county treasurer. He holds it as a public ‘officer rather than as the agent of the railroad companies or the landowners. The awards deposited are not loaned to the county, nor does the county become responsible to the owners of those funds for either principal or interest. Neither the railroad companies nor the landowners are entitled to claim from the treasurer any more than the amounts deposited. There is no privity between those owning the fund and the county which would entitle them to anything for the use of the money, no more than the owners of redemption money could claim interest for the use of money paid to redeem land from a sale for taxes. If the treasurer should fail to pay the money upon demand to one entitled to it, a liability for interest might arise against him, but so long as the money remains in the county treasury unclaimed no interest can rightfully be demanded by the owner. His only concern is that the money deposited shall be safely kept and properly distributed. The facilities for the safe-keeping of the money are provided by the county and at its expense. The county board designates the bank in which the money shall be placed, fixes the rate of interest which shall be paid on the average balances that may be deposited, and the bond of the depository is taken by and in the name of the county commissioners. The public depository is a part of the financial system of the county, the main purpose of which is the protection and safety of the funds placed in the hands of the county treasurer as the law provides. The payment of interest is only an incident to the transaction, and as the county bears all the burden and cost of providing the facilities for the safe keeping of the money, it justified the legislature in authorizing the collection of interest upon the funds placed in the depository. Interest can only be collected where it is specifically authorized by law. There is no statutory provision authorizing the collection of the interest agreed to be paid by a public depository upon condemnation monóy, redemption money, nor of any other public money lawfully remaining in the county treasury. The statute does provide, however, that the county may'arrange for the deposit of all such money in some responsible bank, and may agree with the bank upon the interest which shall be paid, and from the language employed we think the legislature clearly contemplated that the interest accruing on such funds should belong to the county.
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
Schroeder, J.:
This is an appeal in a garnishment action wherein the plaintiff recovered a judgment against an insurance carrier for that portion of the plaintiff’s judgment in excess of policy limits.
Beverly J. Rector (plaintiff-appellee) recovered a judgment for $12,500 against Charles B. Husted (defendant-appellee). Husted’s insurer, St. Paul Insurance Companies (appellant) defended the case under the obligations of its policy. After the jury returned its verdict for plaintiff, an order of garnishment was issued against the insurer. The insurer answered that it was holding $9,624.65 for the defendant. On October 11, 1971, the plaintiff was paid $9,624.65 as partial satisfaction of the judgment against the defendant. The plaintiff took exception to the garnishee’s answer and a garnishment hearing was held in the district court of Shawnee County, Kansas, on the issue of whether or not the garnishee-insurer was negligent or acted in bad faith in defending its insured under its policy. The trial court determined the garnishee-insurer had been both negligent and acted in bad faith in conducting the defense, and entered judgment against it for the entire amount of the judgment. Appeal has been duly perfected by the gamisheeinsurer.
The facts giving rise to this proceeding are disclosed by depositions, exhibits and stipulations set forth in the record.
On November 14, 1968, Beverly J. Rector, a legal secretary 32 years of age, was driving to work on Fifth Street which is a one way through street. At the intersection of Fifth Street and Buchanan her automobile was struck by a vehicle driven by Charles B. Husted, who was traveling south on Buchanan. Husted had failed to stop at the designated stop sign at Fifth and Buchanan. The plaintiff’s vehicle was spun half-way around, and she sustained a bump on her forehead. She got out of the car unassisted and walked across the street to telephone her place of employment. She then went back to the accident scene and remained for about 30 minutes before continuing on her way to work. She did not think she was injured except for the bump on her head, but later in the day her neck and back began hurting. She remained on the job all day.
The plaintiff has experienced pain in her lower back since the accident. Prior to the accident she never had any back trouble and had led a physically active life. As a result of her back discomfort she has curtailed many of her activities. She continues to feel pain when she performs household tasks like ironing, washing, and going up and down the stairs. When her back begins to hurt she takes pain pills, and soaks her back when that is possible.
She did not lose any wages as a result of the accident, and reported for work every day. She would try to take some time to rest in the afternoons.
On May 29, 1969, the plaintiff was in her automobile when it was struck from the rear by another vehicle. She denied being injured in this accident, and did not advise her doctors of it. In reporting the accident to the motor vehicle department she listed damage to her car as $400 and injuries as “unknown”.
The plaintiff following her first accident consulted with two doctors concerning her condition.
Dr. Joyce, an orthopedic surgeon from Topeka, Kansas, saw the plaintiff from June 27, 1969, to July 28, 1971. Throughout this period of time the plaintiff continually complained to him of discomfort in her lower back region, though she did state on one occasion that she felt she was improving.
Dr. Joyce testified that X-rays did not reveal any injury to the lumbosacral area, but that ligamentis injuries to the lower back are difficult to see on an X-ray.
Dr. Joyce’s diagnosis of the plaintiff was that she suffered a minimal permanent partial disability relative to the lower back. He explained that with a minimal type of disability a person experiences discomfort in the lower back at the end of a day in which she has done a lot of stooping or bending. The doctor used the term permanent to mean that the plaintiff will be faced with some discomfort in her back the rest of her life, not necessarily 24 hours a day, but only after doing a lot of stooping or bending.
Dr. Pusitz is a physician practicing in Topeka, Kansas, and specializing in orthopedic surgery. Dr. Pusitz examined the plaintiff on numerous occasions from November 20, 1968, until April 24, 1969. His initial examination disclosed a tenderness over her cervical spine and marked tenderness over both upper trapezii (two large muscles on each side of and extending all the way down the spine). His specific diagnosis was that the plaintiff has a sprain of the cervical spine, fibrositis of both upper trapezii with trigger points and a sacroiliac strain. In his opinion, the plaintiffs condition was the result of the November 1968, accident. His diagnosis was based on objective signs of injury rather than plaintiffs subjective complaints.
Dr. Pusitz placed the plaintiff in physiotherapy and muscle education sessions. He last examined her on April 24, 1969, and discharged her at that time with marked improvement; however, she still had certain disability which he described as permanent.
Dr. John Lynch, an orthopedic surgeon practicing in Topeka, Kansas, examined the plaintiff on April 21, 1971, at the appellant’s request. He testified he could not find any objective signs of permanent disability to plaintiffs back. No abnormalities relating to the lower spine were detected by either X-rays or a neurological examination. He stated that the plaintiff had symptoms related to low back strain which in his experience was not unusual despite the absence of objective findings. He concluded plaintiff’s condition was relatively minor and expected the symptoms to be resolved.
On cross-examination the doctor stated he did not mean by his testimony that the plaintiff did not suffer injury from the November, 1968, accident, and that her symptoms were consistent with injuries which could have occurred in an automobile accident. Also, it was his opinion the plaintiff was cooperative, straight forward and not malingering or overstating her claim.
The parties stipulated to the testimony of two witnesses: Myron L. Listrom, the attorney retained by the appellant to do the trial work, and Larry P. Schell, formerly a claims representative for the appellant who handled the plaintiff’s claim.
The stipulation recites that if Listrom were called to testify he would have testified as follows:
“a. That he advised the Defendant during the course of the trial that Plaintiff would settle the case for $6,000.00 but that neither the Garnishee (insurer) nor Myron L. Listrom, their attorney, thought the case was worth that much. The Defendant made no response.
“b. That during the course of the trial, Myron L. Listrom discussed again with the Defendant that he, the Defendant, would be liable for any verdict in excess of $10,000.00 and the Defendant acknowledged that he was aware of this because of the letter he received from Myron L. Listrom bearing the date of September 2, 1970.
“c. [Letter dated September 2, 1970, from Listrom to Husted explaining that Listrom would represent the insurance company and Husted in the suit up to the $10,000.00 coverage, and that Husted would be personally liable for any amount exceeding $10,000.00 and suggesting Husted might want to retain counsel of his own.]
“d. [Husted’s reply indicating he understood Listrom’s letter and would not retain his own counsel.]
“e. That at no time during the pendency of the litigation, nor during the course of the trial was the Defendant ever notified that the Garnishee (insurer) could be liable for a verdict in excess of the policy limits for negligence in handling the case or for failure to exercise good faith in the handling of the defense of the case, nor was that subject ever discussed with defendant.”
Essentially, Schell’s testimony was that at one time he offered plaintiff’s attorney $3,000 to settle the case (in. addition to any medical or property damage), and that plaintiff’s attorney replied that he could not and would not discuss a settlement with anyone other than the attorney of record for the insurance carrier, Myron Listrom.
A deposition was taken from Raymond O. Zweifel, the claims manager for the appellant. Zweifel had primary responsibility for the disposition of plaintiff’s claim from the time it was made through the trial proceedings.
He related that after an investigation into the November, 1968, acoident he determined Husted was liable for the damages because he negligently failed to stop at the stop sign. It was never the insurance company’s position that they could escape liability. The controversy between the parties was the amount of damages caused by the accident.
The plaintiff’s attorney forwarded all medical bills, drug bills, and reports of Dr. Pusitz and Dr. Joyce to the appellant. The appellant paid the medical and drug bills as they were received. The parties stipulated that plaintiff’s medical expense totaled $655.72. The appellant also paid appellee $382.50 as the fair market value of her automobile, since it was a total loss as a result of the collision.
Appellant employed an investigator to follow the claimant and keep track of her activities. Despite the fact that he followed her for quite a long time he was unable to find any information suitable as evidence.
Mr. Zweifel testified that originally the reserve established for this case was $2,500 for bodily injury and $400 on property damage. On October 27, 1969, the bodily injury reserve was increased to $5,000. It was thereafter raised to $7,500. It was within his discretion to settle the case up to the $7,500 limit. The only explanation made by Zweifel concerning why the reserve was ultimately set at $7,500 is not particularly enlightening. He stated he did not establish that amount of reserve because he thought the claimant was entitled to it, but on the basis of what the insurance company might pay.
Sometime after the $7,500 reserve limit was established, the appellant learned the plaintiff had been involved in a rear-end accident subsequent to the November 14, 1968, collision. Zweifel felt this fact mitigated plaintiff’s claim for damages, and testified company policy prevented him from reducing the $7,500 reserve limit after learning about the second collision.
When the appellant went to trial its theory of defense was that they would surprise the plaintiff with the second automobile accident, information obtained from the investigation, and the fact that Dr. Lynch would testify there were no objective indications of a back disorder in the plaintiff.
Also contained in Zweifel’s file concerning the case was the first suit report from Myron L. Listrom, their attorney. The following questions and answers are contained in that report.
# # # # *
“9. What do you believe its [plaintiff’s case] settlement value is now? $9,000.00
“10. Can it be settled now at that figure? probably
“11. Do you believe we should settle? no Why? amount claimed is excessive
“12. What do you recommend in settlement at the present time? $3,000.00 at most
“13. What reserve do you recommend we carry? $5,000.00
“14. What are our chances of winning the trial? _Fair __Good xx Poor
“15. In the event this case was tried and lost what do you believe the probable range of the verdict would be? $3,000.00 — $4,000.00 at most
“16. If tried, what would be the approximate cost of defense? $750.00-$1,000.00
“17. Any further recommendations or comments recommend examination of Plaintiff by a neutral physician”
Mr. Zweifel’s file concerning appellee’s claim indicated tire claims adjustor had made a $1,000 settlement offer to appellee’s attorney prior to the filing of the suit. Mr. Zweifel stated he was aware of the fact that no offer had been made at any time to plaintiff’s attorney by the appellant’s attorney, so that there was no offer outstanding to be accepted by the plaintiff.
The parties stipulated:
“ ‘Through the time the verdict came in at no time was there ever an offer made to settle the case for any amount of money by the defendant to the plaintiff although there was a conversation at one stage that the plaintiff offered to take $6,000.00 on the record and the defendants’ attorney stated that if plaintiff was interested he would see if he could get $3,000.00 authority.’
“ ‘The plaintiff, by her attorney, advised defendant on the record during the trial that they were going to look to the garnishee for any part of the verdict in excess of $10,000.00.’”
Mr. Zweifel testified he and Listrom jointly discussed the plaintiff’s $6,000 settlement offer and decided not to accept it. The following testimony was given by Zweifel regarding that decision:
“Q. And you elected to take your chances with the jury?
“A. Right, sir.
“Q. Is that a fair statement?
“A. That’s a fair statement. Yes, sir.”
Mr. Zweifel further testified he was aware of the appellant’s obligation to its insured to use ordinary care in the handling of the loss and to protect the insured’s interests as well as the company’s. He thought he gave equal consideration to the interests of both the company and the insured.
Mr. Zweifel had authority at every stage of the proceeding to settle the plaintiff’s case for any amount up to the reserve limit. When Mr. Zweifel made the decision not to offer to settle the case, and to refuse plaintiff’s offer, he was aware of all the information in his file; that the jury’s verdict for the plaintiff would include medical expenses, damages for pain and suffering, mental anguish, permanent disability; and that the jury would take into consideration plaintiff’s 44½ years life expectancy.
Trial was to the court and the journal entry recites the following:
“The Court makes the following findings of fact:
“1. Plaintiff offered to accept $6,000.00 and made this offer on the record during the trial. St. Paul failed to act or respond by way of any counter offer.
“2. Defendant’s insurer was aware that he was at fault for running a stop sign. It was fully informed as to the nature of plaintiff’s injuries, treatment and medical expenses incurred.
“3. The original reserve for bodily injury was set at $2,500.00 by St. Paul, and eventually it was increased to $7,500.00 on a coverage limit of $10,000.00. St. Paul was aware that plaintiff was claiming permanent injuries and medical evidence supported this.
“4. Defendant admitted liability in the trial. St. Paul agreed that liability should be admitted. The investigation by St. Paul showed no contributory negligence on plaintiff’s part.
“5. Defendant’s and St. Paul’s counsel, Mr. Listrom, submitted an attorney’s first suit report (Defendant’s exhibit 2) and to the questions 9-14, the following answers were provided.
[Same as previously quoted]
“6. The only bona fide offer made by St. Paul was $1,000.00. An offer was made by Larry P. Schell, claims representative for St. Paul, to plaintiff’s counsel after suit was filed in the amount of $3,000.00 in addition to medicals and property damage. Since Mr. Listrom appeared as counsel of record for the defendant (and garnishee) Mr. Fisher would not discuss the matter with the representative. At no time has defendant’s counsel made any offer of this amount.
“7. The defendant was informed by Mr. Listrom of his obligation and risk in the event of an excess judgment and further informed defendant of the plaintiff’s offer to settle for $6,000.00.
“The Court makes the following conclusions of law:
“1. The insurer, St. Paul breached its duty to exercise good faith when it refused to discuss the compromise offer other than the only bona fide offer of $1,000.00.
“2. The insurer had a duty to the insured to make a reasonable attempt to settle the case. A refusal to consider any offer other than the $1,000.00 was negligent and in bad faith.
“3. The fact that the insurer makes the insured aware of the risk involved in the event of an excess and informs the insured of the offer made by the plaintiff does not negate the responsibility of the insured to make a good faith attempt to settle the case within the policy limits.
“4. In this case the insurer anticipated that the verdict could be as high as $7,500.00 judging upon its reserve and the opinion of counsel in his first report indicated a claim worth in excess of the $1,000.00 offer made.
“It is therefore considered, ordered, adjudged and decreed, by the court, that judgment is entered in favor of the plaintiff against the garnishee, St. Paul Insurance Companies, for the total amount of the judgment, the sum of $12,500.00 and costs less a credit for the amount previously paid in a sum of $10,000.00.”
Though the insurance policy is not included in the record, we are told it was a standard-type liability policy reserving to the insurer the right to make an investigation and settlement of any claim or suit as it deemed expedient. Under such a policy, the insurer is obligated to defend any action against the insured.
This court has had occasion previously to consider the duty of an insurer in defending and settling claims against its insured. (Anderson v. Surety Co., 107 Kan. 375, 191 Pac. 583; 21 A. L. R. 761; Bennett v. Conrady, 180 Kan. 485, 305 P. 2d 823; Bollinger v. Nuss, 202 Kan. 326, 449 P. 2d 502.) In Bolinger, supra, the court thoroughly examined this area of the law. The applicable rules will be reiterated in this opinion; however, for a more comprehensive discussion the reader is referred to Bollinger, supra, and the authorities cited therein. Both parties agree the law set forth in Bollinger controls the decision herein. They disagree on the application of the law to the facts.
It is universally recognized that the insurer owes a duty to its insured when considering a settlement or compromise of a claim against the insured. (See, Ann. 40 A. L. R. 2d 168.) Traditionally, two theories, the “negligence theory” and the “good faith theory”, have been utilized by courts to define the insurer s scope of liability. It is clear in Kansas an insurer, in defending and settling claims against its insured, owes a duty to the insured not only to act in good faith but also to act without negligence.
The focal point from which a decision on the facts in a case such as this must be made is well stated in Bollinger v. Nuss, supra, as follows:
“The provisions of the policy requiring the insurer to defend also encompass the negotiation of any settlement prior to trial. When a claim is made against the insured for an amount in excess of the policy coverage, the insurer’s obligation to defend creates a conflict of interests on its part. On the one hand, its interests lie in minimizing the amount to be paid; on the other, the insured’s interests, which the insurer is supposedly defending, He in keeping recovery within pohcy limits, so that he wiH suffer no personal financial loss. The conflict becomes particularly acute where there is an offer of settlement approximating policy limits. The insured’s desire to avoid the risk of a large judgment by settling within the limits of the pohcy, regardless of the merits of the claim, would compel him, were he in charge of settlement negotiations, to accept the offer. The insurer’s interests, on the other hand, are prompted by its own evaluation of the liability aspects of the Htigation and a desire not to expose itself to payments which do not adequately reflect the dangers that might be involved in pursuing the case to trial. When the settlement offer approaches policy limits, the insurer has a great deal less to risk from going to trial than does the insured, because the extent of its potential Hability is fixed.” (p. 336.)
In speaking of the foregoing conflict of interest the court said in Bennett v. Conrady, supra:
“. . . Because of the aforementioned conflict of interest where an insurer defends the action or settles the claims against its insured, there is a mutual fiduciary relationship between the parties equal to that of a principal and agent relationship whereby each owes the other the duty to exercise reasonable care in conducting the defense or settlement. . . .” (p. 490.)
The court recognized in Bollinger that the dichotomy developed in the early cases, depending on whether the insurer’s obligation was measured by good faith or due care, has tended to dissipate. It was recognized in both Bennett v. Conrady, supra, and in the Bollinger case that the two tests have tended to coalesce.
The obligation of the insurer under circumstances here presented is spelled out more particularly in the Bollinger case in the following language:
“Notwithstanding that the typical liability insurance policy completely subordinates the insured’s interests to those of the insurer by a clause giving the insurer full settlement rights, the insurer has a duty to consider the interests of the insured in all settlement negotiations. Whether the conduct of the insurer is measured by good faith or ordinary care, the real question is the degree of consideration which an insurer must give to those interests of the insured which conflict with its own. Although the decisions run the gamut from the extreme, that the insurer is entitled to regard its own interests as paramount, to the opposite, that the insured’s interest must be given priority (Anno. 40 A. L. R. 2d 168 § 5), we are inclined to the view that the insurer may properly give consideration to its own interests, but it must also give at least equal consideration to the interests of the insured.” (p. 336.)
This rule of equal consideration means the claim should be evaluated by the insurer without looking to the policy limits and as though it alone would be responsible for the payment of any judgment rendered on the claim. (Bollinger, supra, p. 337.)
As noted in Bollinger, supra, the insurer’s conduct must not be viewed through hindsight, but rather as the case fairly appeared to the insurer and its authorized agents and attorneys during the time the case was under construction. It is stated in Bollinger, supra:
“. . . Something more than mere error of judgment is necessary to constitute bad faith. The company cannot be required to predict with exactitude the results of a trial; nor does the company act in bad faith where it honestly believes, and has cause to believe, that any probable liability will be less than policy limits. . . .” (p. 341.)
The primary contention of the appellant in the points assigned for review is that the trial court erred in finding that the appellant “had breached its duty to exercise good faith when it refused to discuss the compromise offer of plaintiff made at the trial or to make any counter offer other than the bona fide offer of $1,000”, and “was negligent and acted in bad faith in refusing to consider any offer other than the $1,000.”
Whether an insurer in defending a claim or in refusing an offer of settlement within policy limits was negligent or acted in bad faith is a question for the trier of fact in each case (Bollinger v. Nuss, supra, and authorities cited therein). Where an insurance company acts honestly and in good faith upon adequate information, it should not be held liable because it failed to prophesy the result.
The appellant argues that while it has admitted liability, the ex tent of the plaintiff’s injuries were not so clear. It is on this point that the appellant takes issue with the trial court’s finding that it was negligent and acted in bad faith toward its insured. The appellant argues the plaintiff was never hospitalized and never lost a day of work. She went to two orthopedic doctors and incurred medical expense of $486.67 to the date of filing suit in August 1970. In addition she had spent a total of $169.45 for prescriptions. This was the total of the plaintiff’s “out of pocket” expenses from the date of the accident, November 14, 1968, to the date of trial. She did not see a doctor until six days after the accident. She was subsequently involved in a rear-end accident on May 29, 1969, causing an estimated $400 damages to her automobile. She indicated her injuries as “unknown”. She did not report this accident to either of her doctors. Her two doctors testified that she had some permanent partial disability to the back, but only one of them could find objective signs of these injuries, Dr. M. E. Pusitz. The appellant had the plaintiff examined by Dr. John Lynch who could find no permanent injury to plaintiff.
Under these circumstances the appellant contends it was not negligent and did not act in bad faith because it wanted the jury to determine the extent and character of plaintiff’s injuries.
The appellant further argues that the plaintiff was willing to settle for $6,000 after all of the plaintiff’s evidence was presented; and that if this is all counsel for plaintiff thought his case was worth, the risk taken by going to the jury did not indicate bad faith on its part. This settlement offer it is argued was well within the policy limits. So actually the appellant was gambling $4,000 (the remainder of the coverage) against $2,500 (the amount of excess verdict) risk to the insured. Looking at it in this light it is argued the appellant had more to lose.
The nature of the case makes it clear that it was unquestionably worth more than $1,000, the amount of appellants only bona fide offer. The case involved admitted liability of the insured. There is also the testimony of two orthopedic surgeons that plaintiff has a permanent disability. While appellant’s doctor found no objective signs of permanent injury, he was equivocal as to plaintiff’s injuries. It was stipulated plaintiff had 44& years of life expectancy. It is equally plain that appellant, through its authorized agents and representatives valued the case in excess of their $1,000 settlement offer. This is indicated by: (1) The first suit report dated August 28, 1970, by the appellant’s trial attorney which reflects that he believed the settlement value of plaintiff’s claim at that time was $9,000; however, he believed that amount was excessive and recommended a settlement at that time of $3,000 at the most. He recommended a reserve (which we understand to mean the amount allocated by the insurance company for a particular claim) should be $5,000, and approximated the cost of defense in event the case was tried at $750 to $1,000; (2) Sometime in November of 1969 appellant’s claims manager established a reserve for plaintiff’s claim at $7,500; and (3) It also appears that appellant’s claims representative at one time offered to settle the claim for $3,000, though plaintiffs attorney refused to negotiate because there was an attorney of record for the appellant and the insured at that time.
There is no evidence in the record to justify any significant revaluation of plaintiffs claim due to the second accident. The rear-end collision occurred some six months subsequent to the accident with the insured. Plaintiff testified she was not injured in it and her accident report corroborates this. The doctors did not testify to any change in plaintiff’s condition around the time of her second accident.
We think the foregoing evidence is sufficient to sustain the court’s finding that the appellant breached its duty to exercise good faith and due care in refusing to negotiate with plaintiff for a settlement beyond their only bona fide offer of $1,000. The mutual fiduciary relationship of the insurer and the insured imposes a duty upon the insurer to make reasonable efforts to negotiate a settlement of a claim against the insured. The appellant, whose agents were oognizant of the evidence in this case, did not give fair consideration to the insured’s position when they elected to take their chances with the jury without reasonably attempting to negotiate a settlement.
This is not to say the appellant was required under the circumstances to settle this claim for $6,000; rather, we believe it was incumbent upon the appellant, with a claim involving admitted liability and permanent disability, to make a good faith attempt at negotiating a settlement. By taking a chance with the jury the appellant was exposing the insured to potential personal liability for an amount well above the policy limits. The action filed by the plaintiff sought damages in the amount of $25,000. Fair and equal consideration of the insured’s vulnerable position demands that reasonable attempts be made to protect him from such exposure. While the appellant in this case responded to the plaintiffs claim by setting aside $7,500 in its reserve for bodily injury ($2,500 within the policy limits), it was impossible to predict with any accuracy the results of a trial, and for this very reason the insurer should have made reasonable efforts to keep the case from consideration of the jury.
Under all of the facts and circumstances presented by the record in this case we think the trial court was justified in construing the appellant’s one bona fide offer of $1,000 to settle the case as insufficient to fulfill its duty to the insured.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
In April, 1973, Mr. and Mrs. Dalton (Jack and Beverly), were divorced each from the other. As part of the decree, Mrs. Dalton, the plaintiff herein, was granted custody of the two younger Dalton boys, Stephen Sean, bom March 17, 1966, and David Brian, born May 24, 1970, while Mr. Dalton, the defendant, was awarded custody of the older son, Jeffrey Scott, bom January 23, 1960. Mr. Dalton desires to have custody of Stephen and David, also, and he has appealed from the order placing them with their mother.
The sole issue on appeal is whether the trial court abused its discretion in granting custody of Stephen and David to Mrs. Dalton. To get at this issue it will be necessary to sketch a somewhat unsavory background.
Mrs. Dalton was 35 years of age at the time of the divorce; Mr. Dalton was 39. They were married in Wichita, February 6, 1959. Beverly had been previously married and divorced. She had one son by the first marriage; his custody was awarded to his father. When the Dalton marriage broke up, Jack was the assistant manager of a Kansas City retail store and Beverly operated a beauty shop in the home. Neither party complains of the property division arranged by the court, or the amount set for child support. At oral argument this court was advised that both parties have remarried.
It is obvious from the record that the union was not smooth during the past few years of its existence, but that incompatibility was a frequent visitor in the Dalton home. We shall not, however, probe into the troubled details of the separation except as to matters which in our opinion appear pertinent to the issue of custody.
In the summer of 1971, Mrs. Dalton struck at the very heart of the marriage by entering into a liaison with a young neighbor lad, barely fifteen years of age and without prior sexual experience. The relationship, unknown to Mr. Dalton, extended over a period of several months. Details concerning the inception of the illicit love affair differ somewhat but it cannot be questioned that relations were had a good many times, usually in the Dalton home when Jeff would be sent to the store and the bedroom door would be barricaded against intrusion by the younger children; that on one occasion after dark had fallen police officers found the lovers in a compromising position, picked them up and took them both to the station; that Mrs. Dalton became pregnant by the young boy friend and, on March 2, 1972, underwent a therapeutic abortion. The youthful paramour testified that relations continued even after that, but Mrs. Dalton denied this. In answering interrogatories prior to trial Mrs. Dalton declined to say, on the ground of self-incrimination, whether she had had sexual relations with anyone else after her marriage to Jack and before filing for divorce on October 3, 1972. At the trial, however, she denied other extramarital activity during that period.
There can also be no doubt — in fact, Beverly conceded as much— that she commenced having sexual relations with a twenty-year old youth soon after filing for divorce and that the new young man spent quite a bit of time at her house after Jack was compelled to leave in response to an ex parte order. On oral argument we were told by Jack’s counsel that her present husband is a different twenty-year old male.
In oral remarks made at the time of entering its custody order, the trial court said:
“The Court finds that there has been conduct on the part of the plaintiff which has been generally, candidly admitted, the conduct being inappropriate. Perhaps bizarre. Perhaps immoral. And certainly indiscrete [sic]. . . .”
Accompanying the evidence of Beverly’s deviate behavior is testimony coming from neighbors, undenied in the record, that the two younger boys often played in the street unsupervised, and unknown to Beverly, and that they roamed the neighborhood without their mother knowing their whereabouts; that motorists had to stop their cars and remove the boys from the street; that Beverly used vulgar and profane language directed toward Jeff and in front of the younger boys; that three-year old David had not been toilet trained (although Jack was attempting it) and that he appeared in neighborhood yards shoeless and clothed only in diaper and shirt during cold weather; that Beverly was antagonistic toward Jeffrey, who in one neighbor’s opinion, needed a mother’s love and counsel; that Beverly had three times attempted, or simulated, suicide efforts —to only once on the part of Jack — and that she had been advised, to no avail, to seek psychiatric help; that she spent several nights each week at the neighbors’ after Jack got home, returning anywhere from ten o’clock to one or two a. m.
It is against this highly unusual and unique background that we are asked to say that the trial court abused its discretion in awarding the custody of Stephen and David to their mother.
Certain rules with respect to child custody are firmly settled in our law. Where the issue is between the parents of a child the primary question for determination is what best serves the interests and welfare of the child, and all other questions are subordinate to that. (Collins v. Collins, 177 Kan. 50, 53, 276 P. 2d 321; Gardner v. Gardner, 192 Kan. 529, 533, 389 P. 2d 746; Adkison v. Adkison, 206 Kan. 125, 476 P. 2d 216; Moudy v. Moudy, 211 Kan. 213, 505 P. 2d 764.) We have also been consistent in asserting that the trial court is in the most advantageous position to judge how the interests of a child may best be served and that its judgment in such regard will not be overturned in the absence of an abuse of judicial discretion. (Hazelwood v. Hazelwood, 190 Kan. 493, 376 P. 2d 815; Gardner v. Gardner, supra; Kimbell v. Kimbell, 190 Kan. 488, 490, 376 P. 2d 881.) However, in Gardner v. Gardner, supra, p. 532, it is also written: “. . . where an abuse is affirmatively show in the record, the court has not hesitated to reverse, modify or otherwise change the order of a trial court. (Lindbloom v. Lindbloom, 177 Kan. 286, 279 P. 2d 243; Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946; Jackson v. Jackson, supra [181 Kan. 1, 309 P. 2d 705].)” Our latest decision in a long line of cases exemplifying the principles stated above is St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206, an action in which we reversed an order of the trial court which had awarded custody of two small children to their father.
Without further belaboring the sordid background of this case, with its errant sexual behavior on the part of the mother, coupled with a general inattentiveness toward what we believe are normal parental responsibilities, we have reached the conclusion that on the record as it stands the trial court abused its discretion in awarding Mrs. Dalton the custody of two young sons of impressionable age.
We have not come to this conclusion lightly, for this court has always recognized the value of maternal love and care where children of tender years are concerned. (In re Bort, Petitioner, &c., 25 Kan. 308.) In Bierce v. Hanson, 171 Kan. 422, 427, 233 P. 2d 520, we said that a mother, absent a finding of unfitness, ordinarily is entitled to the custody of a child of tender years. So great has been our respect for maternal guidance of the young, so deep our regard for a mother’s love and affection, that we have gone to the length of saying, in St. Clair v. St. Clair, supra:
“It is an elementary rule in this state that if children are of tender age they almost of necessity must be entrusted to their mother’s care, without weighing unduly what may be some possible shortcomings in her character or conduct. (Janney v. Janney, 159 Kan. 230, 154 P. 2d 131 and Adkison v. Adkison, 206 Kan. 125, 476 P. 2d 216.) ” (p. 479.)
Use of the word “almost” appearing in the quotation is not to be overlooked, even though the trial court may well have done so in this case as it entered the custody order. In oral remarks, to which we have already referred, the trial court said:
“. . . Most recently the Supreme Court of Kansas in the St. Clair case, said that if children are of tender age, they almost of necessity must be entrusted to their mother’s care without weighing unduly what may be some possible shortcoming in the mother’s character or conduct.”
Almost, but not quite of necessity, is custody of small children to be placed with the mother. Judicial discretion must still be exercised by the trial court and on appeal this court must remain the arbiter of whether discretion has been abused.
The St. Clair case is to be interpreted in the context of its factual setting. Our holding to the effect that judicial discretion had been abused in that case was primarily predicated on the reliance which the court had placed on testimony given by certain witnesses as to the wife’s conduct during a period of mental illness and its rejection of the testimony of the same witnesses concerning the improvement in her mental health after undergoing psychiatric treatment. Such, however, is not the situation we have here. Mrs. Dalton refrained from seeking psychiatric help recommended by her doctor. There is no “before and after” testimony in this case.
Moreover, the St. Clair case is distinguishable on another ground. Mrs. St. Clair was shown to have had warmth and mother love for both her children. No lack of maternal affection was disclosed on her part. In authoring the opinion, Mr. Justice Schroeder had this to say:
“The record presently under consideration is replete with evidence disclosing the warmth of the mother and her love for her children. . . .” (p. 493.)
In contrast, Mrs. Dalton told neighbors she hated Jeff; that she was just not a homebody, and the kids just tied her down. There was evidence she swore at Jeff and used profanity at times when referring to her offspring. Her failure to keep track of the younger boys indicates an indifference to their welfare. On most week nights, after Jack got home, she left her family and took off for the neighbors’ where she stayed until late hours. On the other hand the Daltons’ backdoor neighbor spoke of seeing Jack play in the yard with the youngsters many times after coming home from work, while she never saw Reverly do so. Mr. Dalton frequently brought inexpensive toys home to the boys and never distinguished between them in dispensing small gifts. There is testimony by neighbors from which it may be gleaned that Jack did a good deal of cooking, of staying with the children at night, of changing diapers and otherwise taking care of parental responsibilities and normal household chores. In State ex rel. Watts v. Watts, _ Misc. _, 350 N. Y. S. 2d 285, the New York court said:
“Studies of maternal deprivation have shown that the essential experience for the child is that of mothering — the warmth, consistency and continuity of the relationship rather than the sex of the individual who is performing the mothering function. . . .” (p. 290.)
It appears to this court that Mr. Dalton performed many of the functions customarily undertaken by the maternal member of a household.
We have not overlooked authorities cited by the plaintiff. In general, they reaffirm the rules which have ordinarily been applied throughout this jurisdiction to a custody decree. For example: In Janney v. Janney, 159 Kan. 230, 154 P. 2d 131, we upheld an order changing custody of a twelve-year old boy from his mother to his father; in Adkison v. Adkison, supra, we held it was an abuse of discretion for the court to take a five-months old girl from her mother and place her with the father, and we remanded the matter for rehearing before a different judge; and in Greene v. Greene, 201 Kan. 701, 704, 443 P. 2d 263, we reaffirmed the “best interest” rule as we upheld a custody award to the mother. Further analysis of oases found in plaintiff’s brief would not, in our opinion, prove productive. They are neither factually in point, nor do they announce new legal principles.
For reasons set forth in this opinion, the case is reversed and remanded with directions to set aside the order granting custody of Stephen and David Dalton to their mother, Reverly Ruth Dalton, and to enter an order awarding their custody to the father, Wilbur Jack Dalton, subject to such reasonable provisions for visitation as the court may deem just and proper.
It is so ordered.
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Per Curiam:
This is a proceeding in contempt in which the respondent, an attorney-at-law, is charged with willful disobedience of an order of this court suspending him from the practice of law. That suspension was for a period of six months from and after November 4, 1972. State v. Schumacher, 210 Kan. 377, 502 P. 2d 748.
After the accusation in this proceeding was filed the court appointed the Honorable Fred N. Six, of Lawrence, as its commissioner to receive evidence and make a report of his recommended findings of fact and conclusions of law. His report was filed on December 3, 1973, together with the transcript of 752 pages and the original exhibits.
As his response to the commissioner s report respondent has filed a document signed by him and his counsel in which he states:
“1. That he will not take exception, to the Commissioner’s Findings of Fact.
“2. That with respect to the Commissioner’s Conclusions of Law and Recommendations, he submits himself to the mercy of the Court.”
On oral argument respondent reaffirmed this position, suggesting only that his conduct was the result of ignorance rather than of a willful intent to violate this court’s order. The commissioner’s findings and conclusions are as follows:
1. Respondent was suspended from the practice of law for a period of six months, from and after November 4, 1972, by order of the Supreme Court of the State of Kansas as’ reported in 210 Kan. 377 (1972).
2. Respondent was fully aware of the period of this suspension.
The following findings relate to the period of suspension.
3. (a) L. J. Grant [a Topeka attorney] entered into an informal agreement with the Respondent to represent before the courts those clients who had retained the Respondent.
(b) During the period of suspension in 1972, L. J. Grant depended on Respondent’s secretary [June Shipley] to inform Grant as to when cases he was handling from Respondent would come up.
(c) L. J. Grant, an attorney at law, had an office in his home at 1257 Garfield, Topeka, Kansas. Grant did not office with Respondent. Grant was admitted to practice in 1939. Except for the first year of practice his office has been in his home. He didn’t have enough money so he had to keep his office in his home. Grant’s home-office had no professional sign outside. Grant did not employ a secretary. He had handled his own secretarial work for the past several years.
(d) L. J. Grant did not pay June Shipley during the period of suspension for her secretarial services.
(e) Grant had a phone at his home-office. However, during the period of suspension client calls were made to Respondent’s law office. Respondent’s secretary, June Shipley, would call L. J. Grant and he would call the client or meet the client at Respondent’s office which was open daily. The same procedure was followed by June Shipley when a new client walked into Respondent’s office.
(f) Grant did not use any other attorneys’ stationery. If June Shipley was out of his stationery, she was to type his name on blank stationery.
(g) Grant did not feel that the fees paid for the cases he was working on, that Respondent was helping him with, should be any concern of his, either as to amount or method of payment.
(h) Grant signed a lot of papers that were just brought up for his signature.
(i) Grant liked to talk to Respondent before Grant talked to the clients, to be filled in on what Respondent thought the facts were.
4. Grant and the Respondent never entered into a formal agreement for the use of the Respondent’s office, nor arranged for the payment of any rent or expenses for any use that L. J. Grant may have had of Respondent’s office. Respondent’s office was used by Respondent and Grant to confer with each other on the facts and information relating to Respondent’s cases handled by Grant.
5. Grant never entered into a formal employment agreement with June Shipley, Respondent’s secretary, for the period of Respondent’s suspension.
6. All files of Respondent’s cases remained in Respondent’s office. Case files of clients worked on by L. J. Grant remained in Respondent’s office. L. J. Grant did not keep any files at his home-office.
7. June Shipley remained in the employ of Respondent throughout his suspension. A reciprocal working arrangement was in existence prior to November 4, 1972. A working arrangement was continued during the period of suspension.
8. Respondent kept his office open to the general public during normal working horns throughout the period of his suspension.
9. Respondents office was easily recognizable to the general public by an exterior sign which identified Respondent as an attorney qualified to practice law in- Kansas. The exterior sign was not removed, but was displayed throughout the entire period of Respondent’s suspension. There were no other attorneys’ names on the outside of Respondent’s office.
10. During the suspension period, Respondent was present on occasions in the various courts of Shawnee County, always remaining behind the bar. He conversed with clients and witnesses associated with cases Grant represented before the courts, and who had retained Grant as a result of his informal association with the Respondent. The Respondent personally served various pleadings and other legal papers to the court clerks and opposing counsel.
11. On occasions during the suspension, Respondent offered advice and provided information to L. J. Grant during the course of courtroom proceedings with reference to various cases which the Respondent had transferred to Grant.
12. During the period of suspension, new cases were referred to Grant which became available because of the representation to the general public that Respondent’s office gave.
13. Grant did not determine the fees to be charged to such clients for services rendered. Grant did not bill any clients. He was not paid directly by clients, but, rather, received payments from Respondent, either in cash or by personal check. In the Tommer case Grant told the clients to send the fee to Respondent’s office and Grant would pick up his money there.
14. Grant handled approximately fifty cases which are related to his association with Respondent. Several of these cases were not pending at the time of Respondent’s suspension, but became available during the period of suspension because Respondent’s office was open.
15. (a) As a condition for accepting Respondent’s cases, Grant required the Respondent to agree to assist him. Grant told Respondent:
“In view of the fact that I wasn’t able to get around and run these errands and do these outside stuff, I said, ‘It’s hard enough job for me to take care of just your court appearances,’ and I said, ‘You’ll have to do the rest of it or else you’ll have to get somebody else to do it. I can’t run these errands, and I can’t do this and build up this and that and the other for you. You’ll have to do that yourself,’ and he understood that thoroughly, and that’s why he got busy.”
(b) Grant did not confer with Respondent or clients in Grant’s home-office but in Respondent’s office.
(c) Grant did not prepare any of the pleadings in the 10th circuit matter. He knew nothing about the case.
(d) Grant didn’t read one-half the papers brought to him to sign by June Shipley. Shipley would say “Here is one to sign” and Grant would sign them and let them go.
(e) June Shipley never prepared a pleading without someone dictating it to her, except for a form such as a notice of appeal.
16. Respondent retained all prepaid fees advanced by clients prior to his period of suspension. Instead of returning unearned fees to his clients as required by the rules of this court, 205 Kan. Ixxxii, [DR 2-110 (A) (3)]. Respondent subsequently paid part or all of such sums to L. J. Gx'ant for services rendered by him. Grant did not know what the clients had paid Respondent, nor did he ask Respondent.
17. Grant and Respondent discussed the circumstances surrounding their association with reference to Respondent’s suspension and potential ramifications of Respondent’s participation in cases transferred to Grant.
18. During the period of suspension, June Shipley continued to prepare a brief written by Respondent for a case pending at the 10th Circuit Court of Appeals. This matter was not entrusted to another attorney during the period of suspension, but was advanced under the control, and through the efforts, of Respondent and his employee, June Shipley.
19. In the Matter of Bobby Lends: (a) Lewis employed Respondent prior to the suspension.
(b) Respondent never informed Lewis or his uncle, Lyle Clark, with whom Lewis lived, of his suspension nor advised either Lewis or Clark to retain other coxxnsel until the day of the trial, March 6, 1973.
(c) The Respondent kept his office open and permitted his employee, June Shipley, to prepare correspondence concerning legal matters in- the Lewis case which was subsequently sent through the mails to the court, to other counsel, and to Bobby Lewis. Exhibit No. 3 (letter to Gerald Skor, attorney at law, December 6, 1972) was prepared by Respondent’s employee [June Shipley], and Lewis came to the office of Respondent to sign it. Exhibit No. 7 (Letter to Bobbie Lewis, April 19, 1973, on legal stationery of Respondent). This occurred during the period of Respondent’s suspension.
(d) Lewis first met L. J. Grant on the date of trial, March 6, 1973, and until this time was not aware of any other counsel except Respondent.
(e) Respondent’s employee [June Shipley] prepared Lewis Exhibit No. 8. (Letter to Judge Hazlett, February 28, 1973).
(†) The documents making up Lewis Exhibit No. 6 were mailed, during the period of suspension, in an envelope bearing Respondent’s name and return address which contained the description, “Attorney at Law.”
(g) Respondent, in a telephone conversation with opposing counsel, E. Soule, indicated that another attorney would be taking over the case, but nevertheless continued to discuss matters of a legal nature with Soule concerning the disposition of the matter. See Lewis Exhibit 9. (Letter from Edward B. Soule to Respondent, December 14, 1972).
(h) During the trial on March 6, 1973, Respondent was present in the courtroom behind the bar. During the course of the proceeding, Respondent passed at least two notes to L. J. Grant. At least one of those notes contained relevant facts to assist Grant in the prosecution of the trial. Respondent brought information to Grant relative to the case, which Grant felt, he (Grant) needed to know.
(i) Grant did not dictate or prepare any pleadings.
(/) Grant did not read the Journal Entry of Judgment. (Exhibit 6) He just signed it without reading it.
20. In the Matter of Smith v. Harrison: (a) Respondent was the attorney for Smith at litigation prior to the period of his suspension.
(b) Judge E. N. Vickers, prior to November 4, 1972, directed the parties to submit briefs on various points of law relevant to the proceeding.
(c) Respondent’s brief was not timely made and Judge E. N. Vickers, after November 4, 1972, again directed Respondent to submit the required brief. Judge Vickers was aware that Respondent had been suspended.
(d) Respondent had not at that time arranged for other counsel to assume the responsibility for representing this client.
(e) Respondent prepared this brief during the period of his suspension and filed it on January 15, 1973.
(/) Respondent did not, thereafter, arrange for other counsel and, nearly two months later, approved a Journal Entry of Judgment on March 13,1973, while he was still suspended. (Resp. Exhibit D.)
(g) Respondent approached opposing counsel, Harold Doherty, on an occasion in January, 1973, concerning an appeal and settlement of the matter. Respondent also inquired about payment of a medical claim arising out of the controversy and stated that if payment was not forthcoming, further legal action would be undertaken.
(h) Notice of appeal was filed on March 2, 1973, and was served on Harold Doherty personally by the Respondent. The notice of appeal bore the signature of L. J. Grant. Mr. Doherty had had no conversation or communication from Grant in regard to the case prior to this time.
(i) Grant did not prepare Exhibit 16 (Statement of Points), Exhibit 15 (Motion for Stenographic Record), or Exhibit 17 (Designation of Contents of Record on Appeal — Resp. Ex. F is same as Ex. 17).
(/) Respondent prepared Exhibit 16 and Exhibit 17 (F). No one else but Respondent was working on case. Grant did not work on the case.
(k) Grant signed Exhibits 15, 16 and Exhibit 17 (F).
(Z) Grant did not take any of the file to his office. He never examined the file. The file remained in Respondent’s office.
(m) Exhibits 15, 16 and 17 were prepared in Respondent’s office.
(n) A transcript of the trial record was ordered. Respondent signed a check on his office trust account for $80.00. $17.00 or $18.00 was returned to Grant by Art Halleran [the court reporter]. Grant gave this money to Respondent.
(o) Respondent prepared the record on appeal at Grant’s request. Respondent was not paid by Grant for this work. Grant told Respondent he would have to do “. . . the leg work, and any writing that we have to do . . . because I can’t.”
21. In the Matter of Archie Lemert: (a) Respondent approached Shawnee District Attorney, D. Morrison, in December, 1972, in the hall of the Shawnee County Courthouse, and discussed what could be done with the charges against Lemert in exchange for full restitution.
(b) Grant subsequently inquired into substantially the same matter on December 29, 1972.
(c) Both Respondent and Grant were' present when Lemert entered a plea on December 29, 1972.
(cl) Both Respondent and Grant were present at the sentencing on January 19, 1973.
(e) In March of 1973, Respondent had a brief conversation with D. Morrison concerning what, if anything, could be done about Lemert s sentence.
22. In the Matter of Tommer: A $500.00 retainer was sent by clients to the office of Respondent. Only $200.00 of the retainer was received by Grant, and the remainder was retained by Respondent and used for office expenses.
COMMISSIONER’S CONCLUSIONS OF LAW
The Commissioner concludes, beyond a reasonable doubt, that the Respondent, Elmer J. Schumacher, is: (1) guilty of willful disobedience of the order of this court to forebear in the practice of law; (2) is in contempt of his suspension order and (3) is guilty beyond a reasonable doubt of the contempts charged in the accusations in the following violations.
1. By keeping his office open to the general public at 1409 W. 15th Street, Topeka, Kansas, Respondent represented that he was capable of transacting legal matters. Such activity constitutes the practice of law.
2. By permitting his sign to remain visible to the general public, Respondent held himself out to the public as capable of transacting legal matters. Such activity constitutes the practice of law.
3. By permitting legal matters to be transmitted under his letterhead or with his return address, Respondent represented to the general public that he was capable of transacting legal matters. Such activity constitutes the practice of law.
4. Respondent’s continuing association in the Bobby Lewis matter constitutes the practice of law.
5. Respondent’s continuing association with Smith v. Harrison constitutes the practice of law.
6. Respondent’s activity in the matter of Archie Lemert constitutes the praotice of law.
Our examination of the record reveals ample support for the findings and conclusions of the commissioner, and they are adopted by tire court. As to the legal effect of respondent’s conduct the commissioner filed the following memorandum opinion:
I. What is the Practice of LawP
Although it may sometimes be articulated more simply, one definition has gained widespread acceptance, and has been adopted by this Court:
A general definition of the term frequently quoted with approval is given in Eley v. Miller, 7 Ind. App. 529, 34 N. E. 836, as follows:
“As the term is generally understood, the practice of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court.” State, ex rel., v. Perkins, 138 Kan. 899, 907, 908, 28 P. 2d 765 (1934).
The court, in Perkins, also pointed out that [o]ne who confers with clients, advises them as to their legal rights, and then takes the business to an attorney and arranges with him to look after it in court is engaged in the practice of law.” 138 Kan. at 908. The quotation from the Eley case has been adopted as the general rule in 7 C. J. S., Attorney and Client, § 3g (1937).
A more recent source defines the practice of law as “the rendition of services requiring the knowledge and application of legal principles and technique to serve the interests of another with his consent.” R. J. Edwards, Inc. v. Hert, 504 P. 2d 407, 416 (Okla., 1972).
It is clearly the prerogative of the Supreme Court to define the practices of law:
It is unnecessary here to explore the limits of judicial power conferred by [Article 3, Sec. 1, of the Kansas Constitution], but suffice it to say that the practice of law is so intimately con nected and bound up with the exercise of judicial power in the administration of justice that the right to regulate the practice naturally and logically belongs to the judicial department of the government. (In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283, 275 N.W. 265, 114 A. L. R. 151.) Included in that power is the supreme court’s inherent right to prescribe conditions for admission to the Bar, to define, supervise, regulate and control the practice of law, whether in or out of court, and this is so notwithstanding acts of the legislature in the exercise of its police power to protect the public interest and welfare. (Martin v. Davis, 187 Kan. 473, 478-479, 357 P. 2d 782 (1960).
See, In re Hanson, 134 Kan. 165, 170, 5 P. 2d 1088 (1931); State v. Rose, 74 Kan. 260, 85 Pac. 803 (1906); and State v. Blase, 208 Kan. 969, 494 P. 2d 1224 (1972).
II. What is the Status of a Suspended AttorneyP
7 Am. Jur. 2d, Attorneys at Law, §69(1963) states that “[attorneys who are under suspicion are required to comply with the terms of the decree suspending them in such a manner that there will be no ground for suspension on the part of the bar or the public that the decree of the court is not being exactly observed in its letter and spirit.” Although the text quotation articulates the rule in the language of In re Lizotte, 32 R. I. 386, 79 A. 960 (1911), an even earlier case, In re Byrnes, 97 Minn. 534, 105 N. W. 965 (1906), describes the status of a suspended attorney this way:
Respondent still holds his office as an attorney and is subject to the jurisdiction of the court. His former suspension operates simply to deprive him temporarily of the right to practice his profession.
Byrnes is consistent with the dictionary approach taken in In re Oliver, 97 Utah 1, 89 P. 2d 229, 233 (1939): “ ‘Suspension’ is the temporary forced withdrawal from the exercise of office, powers, prerogatives, or privileges as a member. Webster’s Dictionary.” Just as every lawyer should avoid even the appearance of professional impropriety, a suspended attorney should avoid the appearance of failure to comply with the court’s order. The Nebraska Supreme Court has suggested that this means he must refrain from the things which he did as an attorney even though he might legally do them as a layman:
It seems clear to us that the doing of such work is within the province of a lawyer to do. It is properly identified as the practice of law, whether or not it might under some circumstances be properly performed by others not admitted to the bar. An order of suspension deprives the suspended lawyer from performing any service recognized as the practice of law. ... A suspended lawyer will not be heard to say that services recognized as within the practice of law were performed in some other capacity when he is called to account. State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 649, 111 N. W. 2d 543 (1961).
An example of what is apparently exemplary behavior on the part of a suspended attorney is found in In re Stoldt, 37 N. J. 364, 366, 181 A. 2d 364 (1962):
The proof likewise reveals that immediately upon suspension, Stoldt withdrew from the office where he had been engaged in the practice of law with his son, and removed all evidence that he was an active member of the profession, or in any way associated with his son at that address or elsewhere. Since the date of the order of this court, his son has occupied the office exclusively and Stoldt has never entered it. Moreover, he notified all his clients that he was no longer engaged in the practice of law. There is no proof that since March 20, 1961, he has acted in any way in the professional capacity of a member of the bar. (Emphasis added.)
III. Does the Failure to Remove his Name From his Letterheads and Outside his Office, Place a Suspended Attorney in ContemptP
Yes. “The use of the terms ‘lawyer,’ ‘attorney at law,’ ‘counselor,’ on letterheads or elsewhere by one unauthorized to practice law is not justified.” State, ex rel., v. Perkins, 138 Kan. 899, 908, 28 P. 2d 765 (1934).
In Lizotte, supra, “it appeared that the respondent, after the decree of suspension, retained the sign upon his office door, reading ‘M. L. Lizotte, Attorney at Law. . . .’” He also “used and sent through the mails stationery and envelopes bearing the same printed heading as that used by him before his suspension, in which heading he is styled as an attorney at law.” He took ‘Iris clients to attorneys occupying neighboring offices and turned such matters over to said attorneys, with the purpose, as it clearly appears, that such proceedings in court should be kept alive until the end of the term of his suspension.” 32 R. I. at 387. The court said that its purpose was “not to be nullified by an approval of such reasoning. It will not permit its disciplinary orders to be evaded, nor will it allow its officer to publicly disregard its decree by such a subterfuge.” 32 R. I. at 388.
State ex rel Patton, Atty. Gen. v. Marron, 22 N. M. 632, 167 Pac. 9 (1917), is also in point. In Manon, the record presented two questions. The first was whether, after a suspension by the New Mexico Supreme Court, it was contempt for an attorney to hold himself out as an attorney at law by keeping open an office and displaying a window sign on the window of his office describing him as an attorney. It was also concerned with whether using the mails and sending through the mails stationery indicating that the sender was an attorney, or allowing ones name to be published in a telephone directory as an attorney, was contempt. The court determined that it was:
It must be apparent to any fair-minded person that the holding of himself out as an attorney at law, by means of the keeping open of the same law office, the displaying of the same signs upon the windows and at the entrance thereof, the use of the same stationery and the sending of the same through the mails, the permitting of his name to be published in a telephone and in a city directory, by an attorney, exactly the same as he had done before the order of suspension from practice necessarily brings him into direct antagonism of the order. So far as the public are concerned, the invitation to visit the office and consult the attorney remains unchanged, and the order of the court, if known to them, would be seen of no avail. To the other members of the bar, who necessarily know of the order, his conduot inevitably must be regarded as a reflection upon the dignity and authority of the court making the order. 32 N. M. at 638.
See In re Phillips, 64 Mont. 492, 493, 210 Pac. 89 (1922). An original proceeding in contempt against one who had not been admitted to practice in which part of the acts cited were representations “by signs on his office building, and by the designation after his name in the telephone directory as ‘attorney.’ ”
The Colorado Supreme Court, in People v. Humbert, 86 Colo. 426, 282 Pac. 263 (1929), found a disbarred attorney who had allowed his name to continue in print in local legal and telephone directories with the designation “lawyer” or “attorney” in contempt and sentenced him to 30 days in jail. Although there was a statute, governing the activities of disbarred attorneys, the court was doubtful that this added anything to prior law. It was said that “[i]n the absence of statute, it would seem clear that one who falsely represents himself as an officer of this court thereby committed a contempt of the court.” 86 Colo. at 427.
There was something of a different twist in Butterfield, supra. Instead of leaving his sign alone, or removing it, Butterfield removed some of the letters from the words ‘law,” “office,” and “attorney,” leaving the words “a Office” and “torn.” The court noted that while it did not say that this action was a violation of the suspension order, it indicated the intent and state of mind of the respondent.
The Washington Supreme Court has held that a suspended attorney who failed, e. g., to change his listing in the telephone direotory and to advise a prospective client that he was not authorized to practice law, violated the order of suspension. In re Hawkins, 81 Wash. 2d 504, 503 P. 2d 95 (1972). Washington had a statute forbidding disbarred or suspended attorneys to hold themselves out as entitled to practice law. It also provided that it (the statute) did not affect the power of the courts to punish as for contempt. The Washington court said that the statute made it clear “that holding oneself out as entitled to practice law constitutes contempt of court of an order of suspension.” Id. at 506.
Even more recently, the Florida Supreme Court has held the use of misleading professional cards to be an unauthorized practice of law:
The unauthorized practice consisted of her distribution and use of business cards bearing these words: “Independent Bar Association of Massachusetts, Lucille E. Moran, Attorney at Law. . . .” The Bar’s position is that the card falsely represents and suggests that she is an attorney licensed to practice in this state. We agree. Respondent is resident in Florida; she appears to hold herself out for business here; she advertises that her specialty is tax defense work and that she is an attorney at law. The logical inference is that Florida permits her to practice. The Florida Bar v. Moran, 273 So. 2d 390 (Fla. 1973).
IV. Is it a Sufficient Defense for Respondent to Claim Lack of Intent or That the Act Done Could Have Been Done Lawfully by One Who Had Never Been Admitted to the Bar?
As a general rule, the answer is no. 17 C. J. S., Contempt, § 42 (1963), summarizes the rule as follows:
. . . [A]s a general rule a disclaimer or disavowal of a contumacious intention or design to embarrass the due administration of justice is not a valid defense to a charge of contempt, especially where the facts constituting the contempt are admitted, or where a contempt is clearly apparent from the circumstances surrounding the commission of the act. Thus it it ordinarily is not a valid defense to a charge of contempt that the intentions of the alleged contemnor are good; or that he did not intend to violate the decree of order on which the charge is based, provided the terms of tire decree or order are clear and unambiguous; or that he acted in good faith.
Notwithstanding a denial of contumacious intention ordinarily is not a good defense to a charge of contempt, it will be considered in mitigation of punishment, or in extenuation of, or sometimes even as purging, the contempt.
The obvious reason for this rule, is that if it were otherwise, no one could ever be convioted of, or held in, contempt. One would always be able to claim a lack of intent or, in the alternative, good faith, in avoidance of the contempt citation.
Another argument frequently made is that the acts done could have been done by a non-lawyer without incurring liability for contempt. This defense has also been unsuccessful. Most cases recognize that law clerks are employed in tasks which approach the skill and technical levels one expects from their employers. It is difficult to say where the line of demarcation lies as to where the clerk’s work begins and where it ends. At the very least, the relationship should be one in which the clerk’s work product merges with, or becomes, that of the attorney. Ferris v. Snively, 172 Wash. 167, 176-178, 19 P. 2d 942 (Wash., 1933).
In Crawford v. State Bar, 54 Cal. 2d 659, 355 P. 2d 490, 7 Cal. Rptr. 746 (1960), the respondent’s father, after his disbarment, remained in the same office he had previously occupied, kept his same secretary, and continued to practice as a tax: consultant. While his name was no longer used as an attorney and he did not appear in court, he did confer directly with clients with respect to the preparation of deeds and birth certificates, probate matters, escrows and real estate deals, mining claims, and the dissolution of a partnership. He also referred his tax clients to the petitioner for other legal advice. Petitioner and his father continued to divide the profits of their business equally. The court said:
Although Howard’s services might lawfully have been performed by title companies, insurance companies, brokers, and other laymen, it does not follow that when they are rendered by an attorney, or in his office, they do not involve the practice of law. People call on lawyers for services that might otherwise be obtained from laymen because they expect and are entitled to legal counsel. Attorneys must conform to professional standards in whatever capacity they are acting in a particular matter. ... It is immaterial that most of the persons dealing with him knew that Howard had been disbarred. 54 Cal. 2d at 667-8.
The court noted that there was California precedent for the argument that a disbarred attorney could do research, write briefs, and draft pleadings without engaging in the practice of law (In re McKelvey, 82 Cal. App. 426, 255 Pac. 834), but decided that in the present case the disbarred attorney did not act under the petitioner’s supervision. Instead, the disbarred attorney acted independently of the petitioner both in regard to matters involving legal advice and “to matters that can be characterized as such because performed in a law office.” 54 Cal. 2d at 668. The court concluded that “individual acts as such, however, are not necessarily determinative. A consideration of the entire pattern of conduct is necessary.” 54 Cal. 2nd at 669.
It is also clear that some actions which may be taken with impunity by persons who have never been admitted to the practice of law, will be found in contempt if undertaken by a suspended or disbarred attorney. An early case, involving an attempt to negotiate the release of a prisoner by a disbarred attorney is illustrative. When he failed to succeed, he returned the fee paid him by the prisoner’s wife, but he was nevertheless held to be in contempt.
The question is, whether the services undertaken and performed by Duncan constituted the praotice of law. It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. [The practice of law is generally-defined as embracing] all aotion taken for [clients] in matters connected with the law. . . .
Under these definitions, there can be no doubt that Duncan engaged in the practice of law. . . . [I]t is expressly alleged in Duncan’s return that the contract with Nita Saunders was that the convict, Jim Saunders, when released, should pay him: back by labor for “his money and trouble.” This can only mean that Duncan contracted to render the service of interviewing the magistrate or other officers having the matter in charge and make such a statement or showing him that the convict would be released on payment of the fine. ... It does not affect the character of the service that possibly all this might have been done by Nita Saunders, herself. ... In re Duncan, 83 So. C. 186, 189-90, 65 S. E. 210 (1909).
Similarly, In re Bodkin, 21 Ill. 2d 458, 173 N. E. 2d 440 (1961), dealt with the situation of a suspended attorney who completed negotiations to settle an insurance claim after his period of suspension had begun. Although Bodkin claimed that he was not practicing law, because the insurance company had admitted liability and his actions were merely those of an adjuster aiding in determining the amount of the settlement, the court found his action to be in contempt:
Representing a claimant in a personal injuiy suit requires die determination of the questions of liability and damages and is practicing law. Respondent was retained as an attorney and paid attorney’s fees. Negotiations extended into the period of suspension and the question of the seriousness of the injury and the amount to be paid in damages was in doubt during this period. The answer alleged that negotiations were not closed until January, 1959, because Miss Kubal did not respond to medical treatment as quickly as had been anticipated. Respondent in testifying as to this matter said Miss Kubal was a “bleeder.” It is obvious that settling a case, under these circumstances, required legal skill. It is mere sham of one who has taken the attorney’s oath to contend that the acts during suspension were clerical, administrative, and ministerial only. 21 Ill. 2d at 462-3.
The court determined that while there were no previous Illinois cases in which a lawyer under suspension had been further dis oiplined because of practicing law while suspended, the situation was one which merited its following the rule that a disbarred attorney, practicing law after disbarment, was in contempt. “Without citation, it would seem to be reasonable and just that a lawyer under suspension may be further disciplined for practicing law during the period of suspension.” 21 Ill. 2d at 463.
V. Is it a Defense to an Allegation of Contempt that a Lower Court Judge Ordered Respondent to Take an Action Placing Him in Contempt?
Although no recent cases have been found, it would appear that the order of a district court judge cannot supersede the order of the state supreme court. However, in the instant case the testimony of the Honorable E. Newton Vickers, Senior Judge, District Court, Shawnee County, Kansas, concerning his request to Respondent in the Smith case has been considered in mitigation. In Danford v. Superior Court, 49 Cal. App. 303, 193 Pac. 272 (1920), a lower court had disbarred the attorney and sought to reinstate him. However, the lower court did not have the authority to do so, and the attorney was found to be in contempt. A case which is perhaps closer on point is In re White, 54 Mont. 476, 171 Pac. 759 (1918). In White, the attorney general asked for a contempt citation because the respondent had been appearing in the state’s lower courts without having been admitted to praotice by the supreme court. The respondent pleaded, in avoidance, that he had obtained permission of the presiding judge prior to appearing in the district court cases.
The respondent assumes that permission granted him by Judge Thompson to practice until he should be regularly admitted by order of this corut ought to absolve him entirely from the charge of contempt, and hence that he should not be subject to punishment. . . . While, therefore, the error into which Judge Thompson fell in granting respondent temporary permission to practice may be taken in palliation of the offense, it cannot be alleged as an excuse. It was respondent’s duty to ascertain what his rights were; especially so as he was assuming to act as an officer of the law and thus to possess the qualifications necessary to protect and enforce rights of such persons as would entrust him with them. 54 Mont. 478-9. (Emphasis supplied.)
As seems to be the general rule in these cases, the referee found indications of the fact that respondent held himself out to the public as capable of practicing law, e. g., “on letterheads used by him in his correspondence and by a sign displayed in front of his office. . . .” 54 Mont. 477.
CONCLUSION
Respondent’s counsel seemingly admits that the preparation of the brief for Judge Vickers and the signing of the Journal Entry in Smith v. Harrison are the practice of law. While the fact that Respondent was requested to prepare the brief and submit it should be taken in mitigation of the penalty with reference to this aspect of the contempt, it was the duty of the Respondent to ascertain his rights and comply with the order of the Supreme Court. In any event, nearly two months transpired after submission of the brief and Respondent had adequate time at that point to withdraw and allow other counsel to enter the case. Judge Vickers’ testimony further indicates that while he expected compliance with his order to submit a brief, he did not feel that he had also ordered Respondent to approve the Journal Entry. The preparation of legal instruments by which legal rights are secured is clearly the practice of law.
It is undisputed that Respondent’s office remained open and that he did nothing to obscure the sign which identified it as a law office and him as qualified to practice law. One who holds himself out to the public as capable of practicing law, when he is not, is in contempt of the supreme court regardless of whether he has ever been admitted to the bar. Certainly one who has been suspended from practice must take at least the same measures as one who has not been admitted in avoiding the appearance of disobedience of the court’s order.
It is further undisputed that legal business was transmitted and prepared on letterhead stationery identifying Respondent as an attorney and giving the impression to the public that he was capable of transacting legal business. This behavior would be contempt whether he had been suspended, disbarred, or never admitted to practice.
Discussions involving the legal rights of parties involved in litigation (Lewis, Smith, and Lemert) are clearly the practice of law and the fact that tire same discussions might have been undertaken by laymen does not purge the contempt.
The law seems clear. Respondent’s conduct constituted the practice of law in contempt of this court’s order. The proper disposition of the case presents more difficulty. The applicable statute is K. S. A. 1973 Supp. 7-111:
“An attomey-at-law may be disbarred or disciplined by the supreme court, for any of the following causes arising after his admission to practice in this state: 1. For willful disobedience of an order of court requiring him to do or forbear an act connected with or in the course of his profession.”
There is thus clear statutory authority for imposing discipline for violation of our order of suspension.
Discipline, including permanent suspension or disbarment, may be imposed for contempt of court. In re Hanson., 134 Kan. 165, 5 P. 2d 1088; In re Hanson., 99 Kan. 23, 160 Pac. 1411. Continued practice during suspension has been considered grounds for disbarment. State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 111 N. W. 2d 543; Matter of Dangler, 205 App. Div. 94, 199 N. Y. S. 306; In re Hosford, 62 S. D. 374, 252 N. W. 843 (1934). In the Butterfield and Hosford cases the court was influenced in its final disposition, in part, by the attorney’s conduct leading to the original suspension.
In Hosford, the respondent attorney urged that the court should confine its consideration to the present record, without regard to the matters contained in the original proceeding. The court rejected that suggestion, noting that it was required to exercise continuing jurisdiction over the conduct of all attorneys. In assessing the present fitness of an attorney to practice law “and to properly discharge its admitted function, both as to the individual charged and to the public, the court should have all of the rehable information available to it through legitimate channels, and should carefully consider all of such information in conjunction with all of the cricumstances of the situation.” (Id., 62 S. D. at 385, 252 N. W. at 848.) The court went on to say:
“It obviously follows that an act by a suspended or disciplined attorney, not of itself deemed sufficient to invoke the disbarment power, might give rise to modification of the judgment drastically, on complaint or on the court’s own motion. Likewise the conduct of accused or the development of additional facts might give rise to modification of a suspension order, either favorably or unfavorably to accused.” (Id., 62 S. D. at 385, 252 N. W. at 848.)
The same concept of continuing jurisdiction is reflected in our Rule No. 208 (205 Kan. lxiv) authorizing a disbarred or suspended attorney to apply for reinstatement or for a modification of the order suspending him. An action for contempt of court based on a violation of an injunction (which, in essence, is what our order of suspension was) is ‘not a separate independent action but is a part of the original injunction suit.” (State, ex rel., v. Bissing, 210 Kan. 389, 502 P. 2d 630, Syl. ¶4. See also, Frey v. Willey, 161 Kan. 196, 166 P. 2d 659, Syl. ¶ 2.) We therefore have no hesitancy in considering the record in the original disciplinary proceeding to determine the sanctions to be imposed here.
In this case the conduct leading to respondent’s suspension is chronicled in State v. Schumacher, supra, and need not be repeated here. The violations of the Code of Professional Responsibility were several and serious. This court imposed the limited suspension recommended by the board of law examiners with expressed reluotance, finding, “although more severe discipline might be justified, the recommendations of the State Board of Law Examiners should be accepted.” (210 Kan. at 382.)
It was hoped that the discipline originally imposed would have a salutary, prophylactic effect. It apparently did not. The record now before the court discloses a conscious and deliberate plan to evade the fair import of this court’s order of suspension. Respondent’s first step after his suspension was to attempt to secure a six months’ continuance in all of his pending cases. The obvious purpose was to retain the cases, the clients, and the fees. When this ploy was unsuccessful he entered into the arrangement with Grant, who obviously became what is colloquially termed a “front man.” The only act respondent refrained from doing as a lawyer was making a formal appearance in court; i. e., he stayed behind the rail; in all other respects he continued to' function just as he had before the suspension.
Respondent asserts that he believed in good faith that maintaining an office where he was held out to be an attorney using a letterhead describing himself as an attorney, counseling clients as to legal matters, negotiating with opposing counsel about pending litigation, and fixing and collecting fees for services rendered by his associate, did not constitute the practice of law. If so, in the opinion of the court such a belief demonstrates as much as anything his present unfitness to practice law.
Our commissioner recommended an additional suspension of six months; our experience in this case leads us to conclude that such an order would be inadequate. It is the opinion of the court that as a result of the conduct of respondent during his suspension, in blatant disregard of this court’s order, together with his earlier conduct demonstrating a total lack of comprehension of the standards of conduct expected of an attorney, he should be suspended indefinitely.
In view of the financial hardship upon respondent and his family which will unfortunately but unavoidably accompany this result, costs in this proceeding will not be assessed against him.
It is so ordered.
Owsley, J., not participating.
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The opinion o£ the court was delivered by
Owsley, J.:
W. G. Wiebe, garnishee, appeals from an order sustaining a garnishment against him in the sum of $7,538.57 in favor of plaintiffs, Harry and Vernice McClintock. Plaintiffs are judgment creditors of defendant John McCall, in a suit against McCall, Wiebe, and Robert L. Groth for reimbursement of the sale price paid for diseased cattle. The order from which Wiebe appeals was issued in aid of execution on the judgment against McCall.
In July, 1967, plaintiffs purchased 121 calves from Wiebe for a total of $11,780. Some of the calves died soon after purchase. Others were sick and required treatment. Plaintiffs filed suit against Wiebe for their loss and learned through his discovery deposition that the calves had been sold to him in Missouri by Groth and McCall. Plaintiffs filed their amended petition on July 27, 1970, to include Groth and McCall as defendants. McCall, a resident of Missouri, was personally served in Missouri pursuant to K. S. A. 60-308 (b), (now K.S.A. 1973 Supp. 60-308 [b]) but did not appear. Judgment against McCall only was taken by default on October 23, 1970. Plaintiffs had reason to believe Wiebe, a Kansas resident, owed money to McCall for other cattle purchased from him. On May 13, 1971, an order of garnishment in aid of execution was served on Wiebe.
Upon receipt of notice of the garnishment action in aid of execution, McCall appeared specially and moved the court to vacate the judgment against him for lack of jurisdiction and dismiss the garnishment. These motions were overruled on February 15, 1972, and McCall filed a timely notice of appeal. On May 2, 1972, McCall died. Two motions for additional time to file his appeal were granted by the trial court, but on October 5, 1972, pursuant to plaintiffs’ motion, the trial court dismissed McCall’s appeal.
Garnishee Wiebe defended against the garnishment order by affidavit that he was indebted to McCall Stock Farms, Elkland, Missouri, a partnership, and was not indebted to John McCall personally. After McCall’s appeal was dismissed, Wiebe also attacked the original judgment against McCall contending it was void for lack of jurisdiction. The court overruled on both grounds and entered its final order sustaining the garnishment against Wiebe on November 10, 1972. It is from that order this appeal is taken.
On appeal, Wiebe asserts the trial court erred in overruling his motion and again attacks the original judgment against McCall for lack of jurisdiction. The detailed review of the facts and circumstances of this litigation has been included to make clear the defense of lack of jurisdiction is closed to Wiebe. Wiebe amended his pleadings to adopt this defense after McCall’s appeal on the issue was dismissed. The trial corut’s ruling, right or wrong, is res judicata on the issue of jurisdiction. K.S.A. 60-720 (cl) will not be construed to permit a garnishee to raise a defense which has been unsuccessfully asserted previously by the judgment debtor in the principal action.
The other defense raised by Wiebe, that he holds no funds of John McCall but only those o£ McCall Stock Farms, a partnership, is a question of fact and was not answered by the trial court’s opinion. The court found instead that Wiebe was estopped to deny he was indebted to McCall. The trial court held such denial was estopped because it changed Wiebe’s testimony from that given in his discovery deposition in the principal action and relied upon by plaintiffs to their detriment.
The trial court’s finding of estoppel is not correct procedurally because it was not pleaded by plaintiffs in reply to Wiebe’s answer. (Star Leasing Corp. v. Elliott, 194 Kan. 206, 398 P. 2d 566.) K. S. A. 60-208 (c) lists estoppel as an affirmative defense which must be specially pleaded. Since it was not, Wiebe had no notice the court would espouse the doctrine until the court published its findings of fact. At that time, Wiebe, in his motion for amendments and additional findings and for amendment of judgment, urged the court to cancel the finding of estoppel and to substitute in its place the following finding:
“The discovery deposition of the garnishee taken on July 16, 1970, which refers in point of time to transactions occurring in 1967 does not prevent the garnishee from denying that he was indebted to John McCall individually on May 13, 1971.”
The record, therefore, does not support the plaintiffs’ assertion that Wiebe is challenging the finding of estoppel for the first time on appeal and has waived any objection to it.
We cannot accept the trial court’s estoppel theory for the second reason that it is not applicable to these facts. On the basis of Wiebe’s deposition statement in the principal action, that he bought the cattle from McCall, plaintiffs concededly amended their pleadings to include McCall as an individual defendant. Not until default judgment was taken against McCall, and Wiebe became garnishee, did Wiebe disclose by later affidavit that McCall acted at all times as a member of a partnership.
The general theory of judicial estoppel or estoppel by oath, asserted by plaintiffs, is that a party is bound by his judicial declarations and may not contradict them in a subsequent action involving the same parties if one party has changed position in reliance on such declarations (28 Am. Jur. 2d Estoppel and Waiver, §71, p. 700). We have no quarrel with this general theory, but deny its applicability to this case. Wiebe did not actually change the testimony contained in his earlier deposition by statements in his later affidavit. He merely added facts concerning McCall’s role as a partner.
Despite our disapproval of the judgment based on estoppel we conclude we must affirm the outcome of the trial court’s decision in finding for the plaintiffs. If the trial court’s judgment is correct for any reason, it will not be disturbed on appeal. (Tripp v. The Reliable Life Insurance Co., 210 Kan. 33, 499 P. 2d 1155; Alliance Mutual Cas. Co. v. Hartford Accident & Indemnity Co., 210 Kan. 769, 504 P. 2d 161.)
All the evidence in the garnishment action is documentary. Under these circumstances this court has a duty to decide for itself what the facts establish. (Watson v. Dickey Clay Mfg. Co., 202 Kan. 366, 450 P. 2d 10.) In his affidavit of October 20, 1971, admitted into evidence in defense of the garnishment action, Wiebe states:
“. . . I do not deal with the parties on an individual basis, but deal with the partnership. I have been purchasing cattle from the McCall’s partnership since 1964 or 1965, and all of my checks which I made to pay for the cattle which I purchased from them are payable to McCall’s Stock Farm.
“During June and July of 1967, I purchased approximately 10 loads of calves from McCall’s Stock Farm. . . .”
The affidavit of McCall, dated October 15, 1971, admitted into evidence in defense of the garnishment action, makes clear that at all times he acted for the partnership and not as an individual:
“C. The partnership has operated several years and, all cattle and livestock operations with which he has been connected have been conducted through the partnership and he has not operated as an individual in the sale of any livestock at any time within a period beginning two years prior to July 29, 1967, or any time thereafter.”
K. S. A. 16-104 provides for suit against partnerships in the following language:
“In all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one or more of those who are so liable.”
In his amended answer dated May 29, 1971, Wiebe admits that at the time of service of the order of garnishment he was and is indebted to McCall Stock Farms in the sum of $12,632.12. Wiebe asserts in defense the general rule that a creditor of an individual partner may not look to the partnership assets in satisfaction of his demand. (State v. Williams, 196 Kan. 274, 411 P. 2d 591.) This rule is not applicable to these circumstances.
By admission of the parties, plaintiffs’ cause of action and the judgment arose out of the partnership business. The judgment against McCall, therefore, is an obligation of the partnership. By admission of Wiebe, the funds in his hands are partnership funds. The general rule for garnishment of partnership funds for partnership debts is set out in 6 Am. Jur. 2d Attachment and Garnishment, § 186, p. 694, as follows:
“Undoubtedly, partnership property is liable to attachment or garnishment in an action on a partnership liability. The rule is as applicable to nonresident as to resident partnerships. Also, the rule is applicable regardless of whether or not such action runs against the entire firm or against only a portion of its members. . . .”
The Uniform Partnership Act (K. S. A. 1973 Supp. 56-301, et seq.) was not in effect at the time this litigation began, but the provisions therein for joint and several liability of the partners for partnership obligations (K. S. A. 1973 Supp. 56-315) support this decision.
Wiebe raises one other point on appeal. Copies of two port of entry certificates showing two truckloads of cattle were shipped from McCall to Wiebe on May 13 and 14, 1971, were admitted into evidence over garnishee’s objection. Whether they were rightly or wrongly admitted is of no significance since nothing contained therein is necessary to our conclusion.
For the foregoing reasons, we conclude the partnership funds in the hands of Wiebe are liable for satisfaction of the judgment against McCall which arose out of and in the course of his transaction of partnership business.
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Owsley, J.:
William R. Wallace, owner of the record title to the real property involved in this action, died on November 22, 1916, a resident of the State of Oregon. His will was admitted to probate and record in Lane County, Kansas, on June 28, 1919. He was survived by his wife, Della, who died in 1966, and twelve children, eleven of whom survive and are the appellants and plaintiffs in this action. They claim title to the property as remaindermen under the will of William R. Wallace.
Della, who subsequently married Henry Schweitzer, became indebted to the third party defendant, Healy Cooperative Elevator Company. Healy, through attachment and execution, acquired title to the subject property in 1939. In 1943, Healy conveyed the property by general warranty deed to the defendants, C. H. Magie and Lourena Magie, who remain in possession.
We must first decide the interest in the property devised to Della Wallace by the will of William R. Wallace. If we decide she acquired a fee title in the property in line with the holding of the trial court this case should be affirmed and title quieted in the Magies. If we conclude Della acquired only a life estate, the trial court’s judgment cannot be affirmed unless we find the Magies have acquired title by open, exclusive and continuous possession either under a claim knowingly adverse or under a belief of ownership for a period of fifteen years. (K. S. A. 60-503.)
The case was submitted to the trial court on the pleadings and a stipulation of facts. The following parts of the stipulation are pertinent to this appeal:
“4. William R. Wallace died testate on November 22, 1916, in Gilliam County, Oregon, leaving as his heirs-at-law, his children, the plaintiffs herein, Harry Lester Wallace, his son, now deceased, and Della Wallace, his widow, who subsequently married Henry Schweitzer.
“5. William R. Wallace left a last will and testament which was admitted to probate in tire Probate Court of Lane County, Kansas, on June 28, 1919, a true copy of which is attached hereto and made a part hereof, having been marked ‘Joint Exhibit 1’.
“7. In Case No. 2785, ‘The Healy Cooperative Elevator Company, Plaintiff, vs. Della Schweitzer and Henry Schweitzer’, District Court of Lane Comity, Kansas, the plaintiff, The Healy Cooperative Elevator Company, obtained an in rem judgment against the defendants, Della Schweitzer and Henry Schweitzer, and that the aforesaid real estate was duly and lawfully attached and sold to satisfy said judgment to The Healy Cooperative Elevator Company, the third-party defendant herein, pursuant to an order of sale dated December 12, 1938, for sum of $869.85; which sale was duly made by the Sheriff of Lane County, Kansas, on January 16, 1939, and confirmed by the court on January 23, 1939.
“9. No redemption was made within the 18-month period allowed by the court in said Case No. 2785, and a Sheriff’s deed was duly executed under date of July 17, 1940, filed for record July 22, 1940, and recorded in Book 30, page 590, office of the Register of Deeds, Lane County, Kansas, a copy of which deed is attached hereto, and made a part hereof, having been marked ‘Joint Exhibit 2’.
“10. C. H. Magie and Lourena Magie, defendants and third-party plaintiffs herein, are the successors in title to the aforesaid real estate, and hold title to the same by virtue of one certain general warranty deed, dated March 3, 1943, filed for record May 25, 1943, and recorded in Book 31, page 206, office of the Register of Deeds of Lane County, Kansas, a copy of which deed is attached hereto and made a part hereof, having been marked ‘Joint Exhibit 3’.
“11. The consideration paid for said real estate by C. H. Magie and Lourena Magie to The Healy Cooperative Elevator Company was $1,250.00.
“14. On March 25, 1944, C. H. Magie and Lourena Magie granted a perpetual easement and right-of-way to the Kansas-Nebraska Natural Gas Company, Inc. for the purpose of constructing, installing, maintaining, renewing, replacing and operating pipelines and appurtenances thereto for the transportation of gas, gasoline, oil, petroleum products and other fluids or any thereof, and telegraph and telephone lines in connection with such pipelines in, under, upon and through said real estate. This instrument was filed for record May 11, 1944, and recorded in Misc. Record 13, page 573, office of the Register of Deeds of Lane County, Kansas.
“15. On March 24, 1949, C. H. Magie and Lourena Magie granted a real estate mortgage covering this said real estate to the Kellogg Sales Company to secure payment of a promissory note for $9,000.00, with interest thereon at the rate of 4% per annum, and due and payable December 31, 1949. This instrument was filed for record April 4, 1949, and recorded in Mortgage Record 32, page 218, Office of the Register of Deeds of Lane County, Kansas. A mortgage registration fee of $22.50 was paid. On January 18, 1950, said mortgage was released of record.
“16. On March 29, 1951, C. H. Magie and Lourena Magie granted an oil and gas lease to J. E. Beymer on this said real estate for a primary term of 10 years from that date. The lease contained the usual ⅛th royalty provision and for annual delay rentals of $1.00 per acre. It was filed of record April 4, 1951, and recorded in Misc. Record 15, page 463, office of the Register of Deeds, Lane County, Kansas.
“17. On November 8, 1954, C. H. Magie and Lourena Magie granted an 011 and gas lease to Joe E. Denham on this said real estate for a primary term of 10 years. The lease contained the usual Jétli royalty provision and for annual delay rentals of $1.00 per acre. It was filed of record December 1, 1954, and recorded in Misc. Record 21, page 17, office of the Register of Deeds, Lane County, Kansas. On December 8, 1958, said oil and gas lease was released of record.
“18. On July 31, 1962, C. H. Magie and Lourena Magie granted an oil and gas lease to the Clayton Oil Company, Denver, Colorado, on the aforementioned real estate for a primary term of 10 years. The lease contains the usual isth royalty provision and for annual delay rental of $1.00 per acre. It was filed of record October 11, 1962, and recorded in Misc. Record 25, page 203, office of the Register of Deeds, Lane County, Kansas. Delay rentals were never paid and lease terminated.
“19. During the year 1946, the defendants, C. H. and Lourena Magie sold the house located on the aforesaid real estate for the sum of $250.00.
“20. During die year 1965, the defendants, C. H. and Lourena Magie sold rock taken from the aforesaid real estate to Lane County, Kansas, for the sum of $338.00.
“25. The defendants, C. H. Magie and Lourena Magie, have made improvements on the aforesaid real estate in the total amount of $750.00.
“26. The defendants, C. H. Magie and Lourena Magie, have been in open, continuous and exclusive possession of the aforesaid real estate from March 3, 1943, until plaintiffs filed their petition in this court on August 13, 1971.”
Joint Exhibit 1, being the last will and testament of William R. Wallace, reads as follows:
“I, WilHam Wallace, being of sound mind, made this my last will and testament:
“I give, bequeath, and devise my estate and property, to my beloved wife, Della Wallace, as follows:
“The Southwest Quarter (¼) of Sec. 18, Township 16, Range 29 West sixth (6th) P.M.
.‘Southeast Quarter (¼) of Sec. 13, Township 16, Range 30, West of the Sixth (6th) P.M. Ave.
Northeast Quarter (¼) of Sec. 13, Township 16, South of range 30, West of the Sixth Principal Meridian all in Lane County, Kansas.
“I bequeath to my eldest son Harry Lester Wallace the amount of One Dollar,
“I bequeath to my second son Charles Agustus Wallace the amount of One Dollar,
“I bequeath to my eldest daughter Mary Christine Wallace the amount of One Dollar,
“I appoint Harry Lester Wallace, my oldest son, as guardian for the minor children and minor heirs, without bonds.
“The minor children and minor heirs are as follows.
“Edith Catherine Wallace Lucas (married) age 19. Margaret Alice Wallace, age 17.
“Sadie Morris Wallace age 14. Carrie Goldina Wallace 12. Robert William Wallace age 11.
“Glen Elder Wallace Age 8. Ruth May Wallace age 7. Vernon D. Wallace age 5.
“Vera Agnes Wallace age 2.
“Said Della Wallace is to have and to hold said property in her own right and name during her natural life, then said property to be divided equally amoung [sic] said heirs as she sees fit.
“Its further provided that this property can be exchanged or sold by the joint consent of my beloved wife, Della Wallace and our son, Harry Lester Wallace.
“In Witness Whereof, I, the above-named testator, have hereunto set my hand and seal, this 20th day of November in the year of our Lord 1916.
“/s/ William R. Wallace (Seal)”
As stated, the trial court found the will created a fee title in Della Wallace. The basic rule of construction applicable to wills is found in In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689. We stated:
“. . . In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. . . .” (p.438.)
Although the will is not expertly drawn and there are provisions thereof which might be considered ambiguous, we find no ambiguity in connection with the issue we must decide. Applying the foregoing rule of construction we have no hesitancy in concluding the will created a life estate in Della Wallace with a power of disposition. Many cases could be cited from which an analogy could be drawn in support of this position. Nothing would be added to the law of this state to do so, but reference is made to an article entitled “Expressions of Intent to Create Fees, Life Estates and Powers of Disposition in Kansas,” by William R. Scott, 3 Washburn Law Journal 5. On page 7 thereof, the author sets forth samples of limitations which have been construed to create a life estate despite prior language which, if considered alone, might be broad enough to create a fee. In this will, after devising the property to Della Wallace, the testator limited the estate by providing she was to hold the property in her own name and right during her natural life and then divide it among the named heirs as she saw fit. He also provided for the right to sell the property with consent of a son. Both of these provisions are contrary to an intention to devise a fee title.
Defendant Healy proceeded to attach and sell the land as though Della Wallace (Schweitzer) owned a fee title. K. S. A. 60-2416 provides that an attaching creditor acquires only the interest of its debtor in the property attached. (Also, see Howard v. Howard, 149 Kan. 223, 86 P. 2d 510.) Since we have determined Della Wallace (Schweitzer) owned only a life estate in the property, a life estate is all Healy could acquire, so limiting the interest conveyed to C. H. Magie and Lourena Magie. The Magies, however, claim they and their predecessors in interest have been in open, exclusive and continuous possession of the real estate for more fifteen years under claim of title and belief of ownership. The effectiveness of their claim involves a construction of K. S. A. 60-503.
K. S. A. 60-503, which amended G. S. 1949, 60-304 Fourth, became effective January 1, 1964, and we first considered its effect in Stark v. Stanhope, 206 Kan. 428, 480 P. 2d 72. This case pointed out that the former statute required the possession to be notorious and hostile while the new statute eliminated the element of hostility as essential to adverse possession. The case also recognized that in lieu of an adverse holding the claim may be based on “belief of ownership.” The ramifications created by this phrase were not at issue in Stark, but our confrontation therewith was inevitable and emerged in Armstrong v. Cities Service Gas Co., 210 Kan. 298, 502 P. 2d 672. We will not restate the facts in Armstrong in view of their complexity and their availability in our reports; however, reference will be made to them in connection with the original rules of law developed therein. One of the primary problems in Armstrong was to harmonize the “belief of ownership” concept with K. S. A. 58-2222, which charges the owner of land with constructive notice of facts disclosed by public records. We concluded constructive notice did not prevent a possessor of land from claiming in good faith under “belief of ownership.” It was recognized that if the rule were otherwise the concept of “belief of ownership” would be obliterated. If an owner was charged with searching the records and found a defect, he no longer could claim under a “belief of ownership,” but would be required to hold by adverse possession. If he searched and found no defects in his title, he would have no need to assert “belief of ownership.” We held that the concept of possession under “belief of ownership” could not be judicially nullified.
In Armstrong, the remaindermen had knowledge of the existence of the easements for more than fifteen years prior to the filing of the action. We held a cause of action accrued in the remaindermen on discovery of the easements and the action was barred. The foundation for the conclusion is found in K. S. A. 60-507, which provides:
“No action shall be maintained for the recovery of real property or for the determination of any adverse claim or interest therein, . . . after fifteen (15) years from the time the cause of action accrued.”
In the instant case there are no facts relating to knowledge in the remaindermen as to the use of the property by those in possession. K. S. A. 60-503 is directed to a justified state of mind in the possessor of the property. If the possessor satisfies the provisions of the statute, ownership may be confirmed without regal'd to facts known to the remaindermen.
Since open, continuous and exclusive possession is stipulated (see No. 26 above) the remaining issue in this case is whether the Magies had a good faith belief of ownership and whether under the facts and circumstances such a belief was justified. The record reveals the Magies purchased the subject property in 1943 and received a general warranty deed conveying a fee title without exceptions. The price is questioned by plaintiffs as being more in line with the value of a life estate therein, but no evidence was introduced to support this contention. The Magies were in open, continuous and exclusive possession of the property from 1943 to 1971 when this action was filed. Through the years, Magies engaged in the following acts:
1. In 1944, Magies granted a perpetual easement and right-of-way to Kansas-Nebraska Natural Gas Company, Inc., which conveyance was filed of record May 11, 1944.
2. In 1946, Magies sold the house located on the real estate.
3. In 1949, Magies granted a real estate mortgage on the premises to Kellogg Sales Company, which mortgage was filed of record April 4,1949.
4. In 1951, 1954, and 1962 Magies granted oil and gas leases on the premises, which leases were filed of record on April 4, 1951, December 1, 1954, and October 11, 1962, respectively.
5. In 1965, Magies sold rock taken from the premises.
6. Magies made improvements on the property at a cost of $750.00.
The manner in which Magies purchased the property, and the facts and circumstances following the purchase, justified their right to a continuous and uninterrupted belief they owned the whole of title to the property.
We agree with the results of the trial court’s judgment, but for a different reason. In City of Wichita v. Boles, 156 Kan. 619, 135 P. 2d 542, we held:
“If the trial court renders a correct judgment under the facts and the law, the judgment will not be disturbed merely because wrong reasons are given for its rendition.” (Syl. ¶ 2.)
The cited case is also authority for the rule that when the facts are stipulated an appellate court can determine what is shown by the facts as readily and as fully as the trial court. We are required under these circumstances to affirm the judgment of the trial court.
Affirmed.
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Per Curiam:
After the case at bar had been reviewed in this court and the judgment of the trial court affirmed, plaintiffs filed a motion in the lower court for a new trial on the ground of newly discovered evidence. The motion was denied and plaintiffs perfected the instant appeal.
Our decision on the first appeal is Armstrong v. Cities Service Gas Co., 210 Kan. 298, 502 P. 2d 672. It was held that the defendants had become the owners of certain easements and a “meter regulator” lease, by adverse possession under a belief of ownership for more than fifteen years as against the remaindermen (plaintiffs), although the easements and the lease were initially acquired from the life tenant only. The lease required a rental payment of $10.00 per year to keep it alive. These payments were made to the life tenant during his lifetime.
After the Supreme Court mandate came down quieting the title in the appellants, but subject to the easements and the lease, the Cities Service Company sent a draft for the lease rental due payable to appellants, thus acknowledging their title under the mandate.
It is this draft which appellants rely on as newly discovered evidence in support of their motion for a new trial.
We hold that the motion for a new trial was properly denied for two reasons:
First, that the draft acknowledging the title of the appellants was dated December 27, 1972, after the decision of this court on November 4, 1972, and is in no sense an indication of knowledge which would undermine the claim of belief of ownership prior to December 5, 1968, when appellees were first apprised of appellants’ title. The giving of the draft is entirely consistent with the claim of appellees and with the mandate of this court. The evidence is irrelevant.
Second, that the draft upon which appellants rely as newly discovered evidence did not exist when the case was tried. To constitute “newly discovered evidence” the evidence would obviously have to have been subject to discovery for use at the trial. Cases cannot be reopened to receive postjudgment admissions, even if relevant, absent a valid claim of perjury or fraud in procurement.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Foth, C.:
In this divorce action we are concerned primarily with the division of property ordered by the trial court. The plaintiff wife was granted a divorce on the grounds of incompatibility on October 4, 1972. Further hearings were held on the property aspect of the suit, and on January 29, 1973, the court entered its order: of a net marital estate of $176,707.86 the court awarded the husband $143,581.61 and the wife. $33,126.25. She appeals.
The parties were married in 1936, when she was nineteen and he twenty. Neither brought any property to the marriage, but they set up housekeeping at the edge of Assaria, Kansas in a house belonging to Kenneth’s parents. It was located on 76M acres which over the years formed the core of his farming operation. Some seventeen years later, in 1953, the senior Almquists deeded the property to their son; the parties continued to reside there for almost twenty years more. During the marriage the Almquists raised four children, who by 1972 were all grown, married, and living away from the family home.
At the time of the divorce Kenneth Almquist was 57 years old, Eileen 55. He, in addition to farming, had for some time held a federal civil service job at Schilling Manor, near Salina. He did maintenance work, specializing in electrical wiring, and earned around $9,000 a year. She had helped with the farm work, and in recent years had tried her hand at a series of unskilled jobs, earning at most $1.00 per hour. Her current venture was in the real estate business, where she was a licensed salesperson with a Salina agency. She supplemented her uncertain income from this source by cooking evening meals for a Salina family and noon meals for a Salina doctor. Her culinary skills brought in $39 a week; her real estate activities had grossed $50 in the sixty days before trial.
Mrs. Almquist nevertheless declined alimony, saying “I think I can make a go of it in my real estate. I’m going to try if I can. I would just as soon have this considered anyway into the property settlement.”
The property division, with agreed values, went like this:
To Kenneth Almquist:
Corporate stock............................ $3,250.00
Cattle, farm machinery, crops................ 45,650.00
Car, cash, guns ............................ 1,328.00
Life insurance, retirement fund............... 6,356.00
- 56,584.00
The home place............................ 45,500.00
Interest in mothers estate................... 70,349.00
-115,849.00
172,433.00
Less, judgment to Eileen..............................(28,250.00)
144,183.00
To Eileen Almquist:
158.25 Corporate stock...........
1.501.00 Cattle ...................
3.217.00 Car, cash, household goods .
- 4,876.25
....... 28,250.00 Plus, judgment from Kenneth
33,126.25
In addition, Kenneth was ordered to pay the family debts of $601.29 and $1,395.00 to apply on her attorney fees (he had paid $200 in a prior abortive proceeding). Of the “equalizing” judgment of $28,250, he was to pay $1,250 at once to defray her cost of moving from the family home and to “assist her in making adjustments occasioned by the move.” The $27,000 balance was to be paid $15,000 on March 31, 1973, and $4,000 annually on March 31st thereafter until paid in full.
The record reflects no articulated reasons behind the trial court’s decision, but we may glean some of the judge’s thinking by examining the result he reached. The wife was awarded five cows, three calves and three shares of A. T. & T. stock, all purchased by her from her own earnings. She also received her savings account, her life insurance, one of the parties’ two cars, and the household goods. The husband was awarded the property incidental to his farming operations, his insurance, his retirement fund, his guns. He, too, received a car, and corporate stock which had originated in gifts from his parents. Thus each received, by and large, the items having some personal attachment or which he or she was accustomed to using.
The key items omitted in the foregoing summary are the home place and Kenneth’s inheritance, having a total value of $115,849. Apart from these two items Kenneth received $56,584 in jointly accumulated property, against which he was to pay $28,250, or just about one-half, in cash. If this were all, Mrs. Almquist would obviously have little ground for complaint.
This, of course, is not all. Mrs. Almquist’s chief complaint goes to the fact that in making the property division the trial court apparently first set aside to her husband the home place and his interest in his mothers estate, and apportioned only the balance. In so doing, she says, the trial court abused its discretion.
The rules applicable to our review in such a oase are easy to state but difficult to apply. “The district court is vested with wide discretion in adjusting the financial obligations of the parties in a divorce action and its exercise of that discretion will not be disturbed on appeal in the absence of a showing of clear abuse.” (Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, Syl. ¶ 1.) One seeking to establish an abuse of discretion assumes a heavy burden, for “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.” (Id., p. 562.) On the other hand, “The discretion vested in the trial court must be exercised in whole-hearted good faith and be guided by the statutes, not by the court’s private opinion of what the statute ought to be. Where the exercise of discretion is arbitrary and not judicial, and the judgment is inequitable, it will be set aside.” (St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206, Syl. ¶ 6.)
The governing statute, referred to in St. Clair, is K. S. A. 60-1610 (b) (as amended):
“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.”
We commented on the changes in our divorce law wrought by the 1963 enactment of that statute in Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478:
“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.)
No change was effected as to the husband’s individual property. It is subject to division under the new law as it was under the old. The trial court, then, was not required to set aside to the husband his separate property before dividing the marital estate. The question remains, was it proper to do so? Put another way, was it proper for the court to give the weight it obviously did to the source of these two assets?
Under the pre-1963 law the source of marital property was one of several factors to be considered, i. e., the court should take into consideration “the conduct of the parties, the needs of the wife, the earning capacity of the husband, the amount of the property owned by the parties and how and when it was acquired.” (Mann v. Mann, 136 Kan. 331, 335, 15 P. 2d 478. Emphasis added. See also, Walno v. Walno, 164 Kan. 620, 192 P. 2d 165.) The new law made no substantial change in these factors which should influence the exercise of tire trial court’s discretion. In dividing property and fixing alimony under the new law we have said it should still take into account “the ages of the parties, the duration of the marriage, the property owned by the parties [and] their future earning capacities.” (Zeller v. Zeller, supra, 195 Kan. at 460) and also “the time, source and manner of acquisition of property, and family ties and obligations.” (Saint v. Saint, 196 Kan. 330, 335, 411 P. 2d 683. Emphasis added.)
Applying these factors to the case at bar, we first find that Kenneth Almquist’s interest in his mother’s estate came into being when she died on May 3, 1971. Her estate was still being administered when the divorce hearings were held. Considering not only the source of this asset but the time it was acquired, we cannot say that it should necessarily have been subject to division.
The home place, however, presents a different picture. The parties had made their home there for 36 years. Eileen Almquist went there as a teen-aged bride, and leaves there as a matron in late middle age. They raised their children to maturity there. The actual deed to Kenneth from his parents was almost 20 years old. This property, as we see it, was part and parcel of the family assets, regardless of its source.
Mrs. Almquist, it will be recalled, did not ask for alimony. Rather, she said, she would prefer the court to take the entire marital picture into account in making the division of property.
The relationship between alimony and property division under our present code has presented troublesome questions to the bench and bar of this state. Frequently tax considerations have induced the parties to fix outsized alimony payments which are intended to compensate the wife for an otherwise inadequate share of the property. We have recognized that parties have a right to make such an agreement, but have held that they are bound to the legal consequences of the device they have chosen. Thus “alimony” payments are terminable on remarriage, even where intended to equalize property. Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994; Beck v. Beck, 208 Kan. 148, 490 P. 2d 628. They cannot be converted into a property division by an order nunc pro tunc. Wallace v. Wallace, 214 Kan. 344, 520 P. 2d 1221.
On the other hand, we have approved property divisions where the wife was awarded the lion s share “in lieu of alimony.” Lavery v. Lavery, 208 Kan. 603, 492 P. 2d 1311; Wofford v. Wofford, 214 Kan. 450, 520 P. 2d 1278. In the latter case what appeared to be a hopelessly lopsided division in favor of the wife was found to be balanced by the omission of any award of alimony. The case also involved support of three minor children, and the trial court had observed that “In a case such as this, a decision as to any one of these issues cannot be made intelligently without regard to the others.” This court approved that approach, characterizing it as “appraising the . . . economic position of this family from all angles.”
We do not mean to suggest that the line between alimony and property division drawn in Drummond and Beck should be blurred. We do think that neither can be fixed by itself, without giving appropriate consideration to the other. Mrs. Almquist was entitled to expect from the court that appropriate weight be given to all the factors mentioned in such cases as Zeller and Saint, and also to the lack of alimony. While she was optimistic about her prospects of self-support, her after-tax earnings from all sources for the first nine months of 1972 were only about $200 per month. About half of that came from her real estate work, and the balance from her cooking. Without the homestead to reside in, merely housing herself in Salina will make serious inroads into her income. It seems apparent that in order to survive she will be required to dip into her share of the property. This factor should, we think, have weighed more heavily in the balancing of the parties’ overall financial position.
As to the home place, its source was but one factor to be considered, and in this court’s opinion a minor one. The trial court, on the other hand, apparently believed that its “manner of acquisition” was the sole and controlling factor. In this we believe it erred. Mrs. Almquist was entitled to an equitable portion of all property which might fairly be deemed part of the family estate. This would include, under the facts in this case, the family home. Any other result would, in our opinion, fall short of the statutory demand that the property settlement be “just and reasonable.”
We are not inclined to disturb the allocation of the property itself to the husband, but believe that an additional $20,000 should be added to the equalizing judgment in favor of the wife.
We have examined the other contentions made by Mrs. Almquist and find them to be without merit. Whether the award for moving expenses should be over and above the balance of the property settlement goes merely to the total amount she should be awarded, and is covered by what has previously been said. The same goes for the award for attorney fees. The trial court’s award was “to apply on the attorney fees claimed” by her attorney. It did not purport to represent the reasonable value of counsel’s services. The amount was doubtless considered in conjunction with the total amount of the property settlement, and we cannot say it represents an abuse of discretion.
Finally, Mr. Almquist suggests in his brief that this appeal should be dismissed because the appellant’s designation of the record was not timely filed. A motion on these grounds was made to the court below, which overruled it. Implicit in this action was a finding that appellant had not abandoned her appeal and that her delinquency was due to excusable neglect. (Rule No. 6 (p), 211 Kan. xxix.) Appellee also filed a motion in this court, based on the same grounds, which was denied on October 15, 1973, with no leave to renew on the merits being granted. Nothing is presented in the brief to cause us to alter our previous conclusion.
The judgment is reversed as to the money judgment in favor of the plaintiff wife, and the case is remanded to the district court with directions to render a judgment in her favor in the amount of $48,250. Such judgment shall be payable over a period not to exceed ten years on terms to be determined by the trial court, after hearing if necessary, such terms to be no less advantageous to plaintiff than those of the original judgment. In all other respects the judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Foth, C.:
This action was originally brought as a mechanic’s lien foreclosure. By some process of apparent acquiescence and tacit understanding on the part of both court and litigants, it was tried as an action for wages under an oral employment contract. The trial court rendered an accounting, charging defendants with plaintiff’s wages for 73 weeks and a number of advances made by plaintiff on their behalf, and crediting them with various payments made to or for plaintiff by them and others. It struck a net balance in plaintiff’s favor of $8,657.40 and rendered judgment for that amount. Defendants have appealed, contending primarily that plaintiff had, through disloyalty and gross misconduct, forfeited his claim to unpaid compensation.
Plaintiff S. Mike Bessman is the cousin of defendant David S. Bessman and the nephew of David’s mother, the defendant Iris S. Bessman. In the summer of 1970 he was living in Las Vegas, Nevada, when he was approached by cousin David with an offer of employment. David and his mother Iris, who lived in Detroit, Michigan, owned a hotel in El Dorado, Kansas, known as the El Dorado Arms. They needed a manager, and offered the job to Mike. After some negotiation Mike accepted, and assumed his duties in El Dorado on August 21, 1970. Although there is some dispute over the terms of payment, the parties agree that Mike’s salary was to be $250 per week.
As part of his duties as manager Mike was to oversee a general refurbishing of the hotel with a view to refinancing and possibly selling it. Soon after assuming those duties Mike embarked on a course of dealing with various contractors, suppliers, and one tenant, designed, among other objectives, to put cash in his pocket. The essential elements of these transactions were admitted by him either in answer to interrogatories or from the witness stand. He also admitted that his role in these transactions was never imparted by him to his employers. Five of these are relied on as invoking the “faithless servant” doctrine, and we shall describe them in chronological order.
1. Lasting Interiors. This firm did redecorating work on the hotel, the exact nature of which does not appear in the record. In the course of this litigation it was granted judgment and foreclosure of a mechanic’s lien in the amount of $1,989.20, plus a personal judgment against David and Iris Bessman for $299.04. In addition, it was apparently paid an undisclosed amount of money as work progressed. Mike Bessman, the plaintiff, gave the following answer to an interrogatory concerning this firm:
“Your plaintiff did make purchases on behalf of the hotel with funds of the El Dorado Arms from Earl Forgey of Lasting Interiors, and commissions were paid to your plaintiff in the amount of $800.00. The dates of these payments varied from October 16, 1970, up to and including September 16, 1971, and the plaintiff further states that the defendants were given credit for these commissions by a reduction of sums due and owing the plaintiff by the defendants, and those sums were disposed of by your plaintiff as his own just as he would have disposed of any other sums received on account of salaries or draws from the defendants.”
This answer is typical of the answers to other interrogatories. The amounts Mike secretly received were characterized by him as “commissions,” and they were pocketed by him as part of his salary. He was perfectly willing to give his employers credit for them, at least when the chips were down.
2. Lewis and West. This firm was the general contractor doing work on the hotel from October through December, 1970. During this time they employed Mike ostensibly to serve as timekeeper on the job and to run errands for them. They also employed a personal friend of Mike’s, one Bonnie Brown, to do “accounting and auditing.”
Between November 10, 1970, and January 26, 1971, four checks totalling $2,400 were drawn by Lewis and West, payable to “D. Michaels.” It was agreed by the parties that this was a pseudonym for Mike Bessman. These checks were all endorsed by Mike, and he agrees he received cash for them. At least one of them was cashed for him by Oakley Andrews, the Lewis and West agent in charge of the job and the person who signed the checks. Checks to Ms. Brown totalled $850, and were payable to “B. Brown.”
Andrews, the man who could best tell the Lewis and West version of the transaction, left that firm in August of 1972, and was apparently unavailable at the time of trial. An officer of the firm, who had filed a $22,438.89 lien on their behalf, testified that the firm files contained no subcontracts in the name of either “D. Michaels” or “B. Brown,” nor were there any time records submitted by Mike or accounting records from Ms. Brown.
3. Culligan Water Conditioning. On January 22, 1971, Mike purchased an ice machine from this firm with $1,554.27 of hotel funds. He received a cash rebate of $300 which he pocketed and treated as salary.
4. Reznick’s Appliance Center. In June, 1971, Mike bought six or eight air conditioning units from this firm with an undisclosed amount of the hotel’s money. He received a cash “commission” from the firm of $398.65, which he likewise pocketed as salary.
5. Lillian Strouse. This lady served as bookkeeper for the hotel, and was a tenant as well. On August 10, 1971, she paid Mike $1,000, representing ten months’ rent in advance less a 10% discount (although he gave her a receipt showing her rent was paid through August, 1972.) Mike kept the $1,000 and applied it on his salary. It was this transaction which brought about the end of Mike’s employment. Mrs. Strouse told David Bessman about it on January 16, 1972, and he fired Mike the same day. The other transactions were discovered later.
Mike, it will be seen, regarded his personal acceptance of undisclosed “commissions,” rebates and advance rentals as a form of self help, justified by the slow pay of his salary. (There was some dispute as to whether he was to be paid unconditionally, or only out of available profits; in any event payments to him from hotel funds amounted to only $7,455.) David and Iris, on the other hand, characterize them as “kickbacks” or peculations. They contend that the trial court erred in not applying the faithless servant doctrine to declare that he had forfeited all right to compensation during the period of his faithlessness.
In his brief Mike makes no direct response to that contention. He seeks to avoid the application of the doctrine by urging first, that “fraud” wasn’t properly pleaded, and second, that the trial court refused to brand his actions as “misconduct.” We shall examine these contentions first.
As previously noted, the petition alleged a contract to refurbish the property, and prayed for foreclosure of a mechanic’s lien. The responsive pleading was in two parts, consisting of an answer and counterclaim. The answer amounted to a general denial. The counterclaim alleged an employment contract; that plaintiff had incurred expenses beyond his authority, resulting in liens for which he should be personally liable; and that he had received secret rebates and advance rentals without defendant’s knowledge or authority. The prayer was for actual and punitive damages.
At the pre-trial conference various mechanics’ hens: were disposed of, but the record reveals no effort to define the issues to be tried in the main suit. Somewhere along the line plaintiff’s claim to a lien appears to have been abandoned. The judgment that was ultimately rendered foreclosed the first mortgage on the hotel as a first lien, and various mechanics’ hens subordinate to the mortgage. Plaintiff, however, was awarded only a personal judgment, sharing in priority with other unsecured creditors.
The question is whether defendants’ pleading is sufficient to raise the issue of plaintiff’s alleged wrongdoing as a defense to his claim for wages. Plaintiff says that the defense is one which amounts to fraud, and as such must be pleaded as an affirmative defense in the answer; assertion of the fraud in the counterclaim is insufficient.
Defendants, on the other hand, say that their counterclaim was sufficient to put plaintiff on notice that his conduct was an issue in the case. They point to K. S.A. 60-208 (c), which provides:
“In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of hmitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.” (Emphasis added.)
That statute is clear authority for characterizing defendants’ pleading according to the facts alleged, regardless of the label placed on its individual parts by the pleader. It alleged facts amounting to fraud on plaintiff’s part, and put him on notice that fraud would be an issue in the case. We therefore hold that if plaintiff’s conduct alleged in the counterclaim could have been designated as a defense, it is proper to “treat the pleading as if there had been a proper designation.” Whether it amounted to a legal defense we shall consider shortly.
The second aspect of Mike’s plea of confession and avoidance rests on the trial court’s reluctance to put the brand of misconduct on his actions. At the conclusion of the trial the court totaled up the debits and credits, prefacing its decision with, “All right. Let’s get out our pencils.” In a lengthy discourse from the bench the court first either allowed or disallowed each of Mike’s claims. It allowed a number of items over which there is no present dispute, including employment tax liability, a bank loan made to Mike personally for the benefit of the hotel, telephone bills, cash ad vanees and the like. It also allowed the salary claim in full (including $1,400 for operating the hotel’s restaurant under a separate, later agreement). This is the contested issue.
As offsets the court allowed to David and Iris: the salary payments made; the $800 rebates from Lasting Interiors; the $300 rebate from Culligan; the $398.65 rebate from Reznick; the $1,000 advance rental from Mrs. Strouse; $360 in car payments; and cash advances of $310 for the expense of moving from Las Vegas to El Dorado. As to the Lewis and West transaction the court observed:
“. . . Now, going over into this — whatever arrangements, deals, or it was Lewis and West Concrete Company. I don’t care what it was and I don’t particularly want to argue about it, but that is the way the cookie is going to crumble. In that regard the total money he received as D. Michaels — I think he obviously received it and probably an employee of the bank there — I don’t know who it was — but the $2,400 payment and the $450 payments of checks to B. Brown will be allowed as a credit against the account — allowed for whatever that figure comes up where I think it is the right figure and as I have indicated before, gentlemen, if you disagree with it, you know your way to Topeka.”
At this point counsel for the defendants specifically asked for a conclusion as to “misconduct.” The court replied:
“Frankly, I think there was some conflict of interest in here. I don’t know that it was misconduct and I don’t want to label it as such now, but I don’t think whatever arrangements were made between Lewis and West — I can only surmise on the Court’s part what arrangements came about by the employment of Mike Bessman at the El Dorado Arms or whatever it was, I am sure tha[t] Mr. Mike Bessman would not have received the subcontract had he not been employed there and I think — and I have given credit back to David Bessman in that regard. Obviously, everything wasn’t above board one way or the other. The paying of D. Michaels should waive [sic] the flag at all of us. I think to some extent that’s probably one reason why the Court included the payments made to B. Brown as a credit.”
It is on the basis of these comments by the trial court that Mike now urges that he was acquitted of “misconduct” by the trial court. Such a finding he says, is conclusive in this court on appeal.
We do not read tíre trial court’s finding in quite the same way. First of all, it seems to us that the trial court was speaking only to tihe Lewis and West transaction. That was the thrust of the quoted remarks. Secondly, under the approach taken below it did not matter whether Mike’s role be given the label of “misconduct” or merely, as it was, “conflict of interest.” Under either label the result was to hold him accountable not only for the money paid to him but also that paid to Ms. Brown. (Mike, we note, took no cross-appeal from this or any other part of the judgment.) The result reached below on this facet of the case can hardly be deemed an approval of his conduct.
In addition, the facts surrounding all of the transactions are admitted, and speak for themselves. The pattern they reveal is one of an agent secretly dealing in his principals’ affairs for his own profit. . In the transactions with Lasting Interiors, Culligan and Reznick there was no pretense of personal services rendered to the vendors in return for the rebates received; in the hands of a public official awarding similar contracts the rebates would be called bribes. When he pocketed Mrs. Strause’s $1,000 advance rent belonging to his employers, he did that which, when done by bank tellers, has traditionally been called embezzlement.
There remains the question of whether plaintiffs conduct, by whatever name it is called, was such as to require the forfeiture of all or any part of his compensation. Defendants rely on die general rule stated in 56 C. J. S., Master and Servant, § 105:
“A breach of the contract of employment other than by quitting the service may prevent a recovery of any wages thereunder, or of wages for the remainder of the term, as where the employee is guilty of gross misconduct, or misconduct substantially affecting the contract of employment, in the course of his employment, or has practiced intentional fraud on his employer, or has proved disloyal to him in a manner substantially affecting the contract of employment, or has assaulted his employer, or has falsified his accounts, or has stolen or embezzled the money of his employer, or committed other criminal offenses, although not immediately injurious to the person or property of the employer.”
The history of this rule, at least as applied in New York, was recounted in Herman v. Branch Motor Express, 67 Misc. 2d 444, 445-6, 323 N. Y. S. 2d 794:
“To begin with the earliest, in Turner v. Kuowenhoven (100 N. Y. 115, 120), the Court of Appeals stated that ‘flagrant acts of dishonesty or crime which seriously affect the master’s interest, continued during the service, might well be regarded as a bar to the recovery of wages, although the amount received and fraudulently appropriated might be far less than the amount fixed by the contract.’ (Italics supplied.)
“In Abramson v. Dry Goods Refolding Co. (166 N. Y. S. 771, 773, Lehmen, I., the Appellate Term spoke as follows: ‘where . . . the employer alleges facts sufficient to show dishonesty and disloyalty on the part of his employee which permeates the employee’s service in its most material and substantial part, the employer cannot recover the agreed compensation; for he has failed essentially to give stipulated consideration for the agreed compensation, and is asking for pay for his own wrongdoing.’
“The word permeate’ is used in Abramson to describe a default so massive that, for all practical purposes, the master has received no services from the servant. Because it has a temporal overtone, the word might also refer to dishonesty contemporaneous with the services for which the servant seeks payment. . . .
“In Johnson v. Quayle & Son Corp. (236 App. Div. 351, 352) the Appellate Division pointed out that, while normally an employee retains drawings in excess of commissions earned, ‘the rule is different, however, when during the time the drawing account was operative the employee has been guilty of such a breach of the agreement as to disqualify him from earning the advances. In such a case there is an implied duty to repay such advances.’ (Italics supplied.)
“In Defler Corp. v. Kleeman (19 A D 2d 396, affd. 19 N Y 2d 694), the decision upon which defendant primarily relies, the employees’ dishonesty consisted in a conspiracy to exploit confidential information obtained by them while in plaintiff’s service. The conspiracy became overt on May 14, 1958, when the defendants organized a firm called Carchem Products Corporation. With respect to plaintiff’s demand for reimbursement of compensation paid to defendants, the Appellate Division directed that plaintiff recover for the period ‘subsequent to May 14, 1958, the date on which the certificate of incorporation of Carchem was executed.’ (P. 404.) Implicitly, then, the Appellate Division limited the extent of the taint to the time of the employees’ dishonesty.
“And most recently, in Tepfer & Sons v. Zschaler (25 A D 2d 786, 787), the Appellate Division held that an employer might recover wages paid dishonest employees ‘during the period when, still employed by plaintiff, they were engaged’ in disloyalty. (Italics supplied.)”
In the Herman case the employee was a truck driver with fourteen years of apparently flawless service; on the last day he stole several thousand dollars worth of cargo from his employer. The court, in the light of the summary quoted above, observed that “a careful reading of the precedents demonstrates that the bar to a faithless servant’s recovery applies only to the period of his faithlessness.” (Id., 67 Misc. 2d at 445.) Since such period in that case was only the last day of employment, the employee was not barred from recovering accrued back pay. (A set-off for the employer’s loss would have been allowed if asked for.)
Illinois applies a similar rule. In Steinmetz v. Kern., 375 Ill. 616, 32 N. E. 2d 151, the plaintiff, a widow unable to read English, had employed the defendant to manage an apartment house inherited from her late husband. In the throes of the depression the mortgage on the apartment house was foreclosed. Defendant, with plaintiff’s money, had purchased some of the mortgage bonds. Later he redeemed the property from the foreclosure sale and took tide in the name of a nominee. At plaintiff’s suit a constructive trust was imposed on the property, but the trial court also allowed defendant as an off-set compensation for his services in rescuing the building from the foreclosure sale. The Supreme Court of Illinois held this was error, noting:
. . An agent is entitled to compensation only on a due and faithful performance of all his duties to his principal. (Hafner v. Herron, 165 Ill. 242.) In the application of this rule it makes no difference whether the result of the agent’s conduct is injurious to the principal or not, as the misconduct of the agent affects the contract from considerations of public policy rather than of injury to the principal. (Sidway v. American Mortgage Co. 222 Ill. 270.) Under the facts disclosed by the record, the appellant [defendant] was not entitled to compensation.” (Id., 375 Ill. at 621.)
The temporal aspect of the rule is pointed out in the early case of Peterson v. Mayer., 46 Minn. 468, 49 N. W. 245, 13 L. R. A. 72, relied on by the New York courts in fashioning that state’s rule. The plaintiff in that case was employed on a month-to-month basis, and worked for defendant for seven and one-half months when he was fired for embezzling. In his suit for wages, on the state of the record, the allegations of the answer were taken as true that such conduct had gone on regularly during each and every month of his employment. The court pointed out that the implied condition of faithful and honest service is just as much a condition of an employment contract as any express condition, observing:
“. . . Indeed, if there is any case of non-performance of an entire contract which should prevent a recovery, it is where a servant has been habitually embezzling his master’s money which came into his hands in the course of his employment; for, in such cases, not only is the breach the result of positive dishonesty, but it goes to the very root of the subjectmatter of the contract of service. To allow the dishonest servant to recover the value of his services, less what the master can show by direct and positive proof (often impossible) he had stolen, would neither subserve the ends of justice nor tend to promote common honesty.” (P. 470.)
That the rule is not a rigid one was also pointed out, when the court went on to say:
“Of course, substantial, and not exact, performance, accompanied with good faith, is all the law requires in the case of any contract to entitle a party to recover on it. Although a plaintiff be not absolutely free from fault or omission in every particular, the court will not turn him away if he has in good faith made substantial performance, but will enforce his rights on the one hand, and preserve the rights of the defendant on the other, by permitting a recoupment. . . . Neither is the rule which we have applied to the present case to be extended so far as to forfeit wages already earned on a contract already fully performed and at an end. For example, in this case, had the plaintiff faithfully and honestly served the defendant during all of the first seven months, his wages for which were fully earned, they would not be forfeited by a breach of the contract for the eighth month. But in the present case, according to the answer, the plaintiff, whose duties included the constant and daily receipt of defendant’s moneys, failed to perform his contract for any month, having wilfully and dishonestly violated it in a most substantial and essential matter. Hence he never earned his wages for any of the months he was in defendant’s service.” (Ibid.)
As to the universal application of the rule we find the following in Hey, Recr., v. Cummer., 89 Ohio App. 104, 97 N. E. 2d 702, a case involving a real estate agent’s right to commissions for an extensive course of dealing in numerous tracts, in the course of which he had made secret profits:
“The first paragraph of the syllabus of Lamdin v. Broadway Surface Adv. Corp., supra, covering the same subject, is as follows:
“ ‘An agent or employee of another is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties. Not only must he account to his principal for secret profits but he also forfeits his right to compensation for services rendered by him if he proves disloyal.’
“To the same effect are the cases of Perry v. Engel, 296 Ill., 549, 130 N. E., 340; W. E. Deegans Coal Co. v. Hedrick, 91 W. Va., 377, 113 S. E., 262; Little v. Phipps, 208 Mass., 331, 94 N. E., 260, 34 L. R. A. (N. S.), 1046; Quinn v. Phipps, 93 Fla. 805, 113 So., 419, 54 A. L. R., 1173; Sutherland v. Guthrey, 86 W. Va., 208, 103 S. E., 298. The rule stated in these cases seems to be a well established principle of law supported by courts and text writers and we have not been cited to nor do we find any authorities contra.” (89 Ohio App. at 141.)
The parties cite us no Kansas oases, perhaps because we have not heretofore dealt with an agency relationship with the on-going characteristics of the ordinary employment contract. We nevertheless have a substantial body of law dealing with the right of the faithless servant to compensation for his services. Our earliest case, Sumner v. Reicheniker, 9 Kan. 320 (1872), is in general accord with the Minnesota court’s declarations in Peterson v. Mayer., supra. Sumner sued his agent Reicheniker for balances due under a contract whereby the defendant was employed to sell sewing machines on a commission basis; the defendant made a claim for commissions earned. On rebuttal the plaintiff offered evidence, which was rejected, to show that the agent-defendant had improperly retained moneys of his principal and had not been a faithful and energetic agent. The court held that the rejection of this testimony was error. Speaking through Mr. Justice Brewer the court said:
“. . . An agent’s right to commissions is not absolute. It depends on the manner of performing his duties. It probably would not be forfeited by a simple lack of energy. But it might be by an improper retention of his principal’s funds, or by acts of unfaithfulness to his trust. True, not every slight omission of duty will work a forfeiture; nor are we able to indicate beforehand, in this case, how grievous must have been the omission to deprive the agent of compensation. We cannot even conjecture whether any dereliction of duty can be shown. It is enough to say that the plaintiff had a right to show it if he could, and that he sought to do so and was refused.” (9 Kan. at 323.)
The court went on to quote with approval Story’s Agency, § 331:
“. . . In the next place the agent is entitled to his commissions only upon a due and faithful performance of all the duties of his agency in regard to his principal. ... If, therefore, the agent does not perform his appropriate duties, or if he is guilty of gross negligence, or gross misconduct, or gross unskillfulness in the business of his agency, he will not only become liable to his principal for any damages which he may sustain thereby, but he will also forfeit all his commissions. Slight negligence or slight omissions of duty will not indeed ordinarily be visited with such serious consequences, although if any loss has occurred thereby to the principal it will be followed by a proportionate diminution of the commissions.” (Ibid.)
The principle was quickly applied to a court-appointed fiduciary in Dryfoos v. Cullinan, Adm’r., 17 Kan. 452 (1877). There, Dryfoos failed to account as administrator of a decedent’s estate and was removed. When he and the sureties on his bond were sued they attempted to set up his statutory commission as a set-off. The court cited Sumner v. Reicheniker, supra, for the proposition that ‘When a person is unfaithful to a trust confided in him, and compels the parties interested therein to resort to litigation to protect their rights, he forfeits his right to compensation for his services.” (17 Kan. at 454.) As to the claimed right under the statute the court said:
“. . . The section relied upon to give Dryfoos compensation was evidently intended to recompense an executor or administrator who performed beneficial services to an estate, or, in other words, who complied with the provisions of law regulating the discharge of his duties. To allow the six per centum claimed, as a valid reduction from the moneys wrongfully detained by Dryfoos, after his removal from his trust, would distort the evident object of the law. The compensation provided, is for the services of executors and administrators; and to construe the section as contended for by the counsel of plaintiffs in error would make such compensation equally applicable for the payment of intentional or willful neglect of duty, as for services actually performed.” (Ibid.)
The principle has been consistently followed in this state. “The relation existing between a principal and agent is a fiduciary one demanding conditions of trust and confidence which require of the agent the same obligation o£ individual service and loyalty as is imposed upon a trustee in favor of his beneficiary.” (Merchant v. Foreman, 182 Kan. 550, 322 P. 2d 740, Syl. ¶2.) We have repeatedly held that an agent who realizes a secret profit through his dealings on behalf of his principal not only must disgorge the profit but forfeits the compensation he would otherwise have earned. Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Deter v. Jackson, 76 Kan. 568, 92 Pac. 546; Krhut v. Phares, 80 Kan. 515, 103 Pac. 117; Frowe v. McPheeters, 122 Kan. 420, 251 Pac. 1105; Doty v. Morrow, 143 Kan. 395, 54 P. 2d 940; Bradrick v. Woodward, 148 Kan. 784, 84 P. 2d 885.
Likewise, a court-appointed fiduciary may be deprived of compensation for the commingling of funds and inadequately accounting for them (In re Estate of Jones, 174 Kan. 506, 257 P. 2d 116), or for appropriating money of the estate (In re Simmons Estate, 136 Kan. 789, 18 P. 2d 117), or for self-dealing for his own profit (Vincent v. Werner, 140 Kan. 599, 38 P. 2d 687). In the last case the executor was not only surcharged for the profits he derived, but the court went on to hold:
“An unfaithful executor or trustee is not entitled to compensation for his services, and where, as a result of litigation over the final accounts of an executor, it is held that he was unfaithful in his management of the estate his accounts should be surcharged with the amounts paid him as compensation from the time he first became executor.” (Syl. ¶ 5. Emphasis added.)
The rules enunciated in all the foregoing cases are recognized by the American Law Institute in its restatement of both the law of trusts and that of agency. In the former, Restatement (Second) of Trusts, § 243 states:
“If the trustee commits a breach of trust, the court may in its discretion deny him all compensation or allow him a reduced compensation or allow him full compensation.”
The authors’ explanatory comments indicate:
“. . . In the exercise of the court’s discretion the following factors are considered: (1) whether the trustee acted in good faith or not; (2) whether the breach of trust was intentional or negligent or without fault; (3) whether the breach of trust related to the management of the whole trust or related only to a part of the trust property; (4) whether or not the breach of trust occasioned any loss and whether if there has been a loss it has been made good by the trustee; (5) whether the trustee’s services were of value to the trust.”
“. . . If the trustee repudiates the trust or misappropriates the trust property or if he intentionally or negligently mismanages the whole trust, he will ordinarily be allowed no compensation.” (Ibid.)
In its work on agency the institute states:
“An agent is entitled to no compensation for conduct which is disobedient or which is a breach of his duty of loyalty; if such conduct constitutes a wilful and deliberate breach of his contract of service, he is not entitled to compensation even for properly performed services for which no compensation is apportioned.” (Restatement [Second] of Agency, §469. Emphasis added.)
The authors’ comments once again elucidate:
“An agent is entitled to no compensation for a service which constitutes a violation of his duties of obedience. See § 385. This is true even though the disobedience results in no substantial harm to the principal’s interests and even though the agent believes that he is justified in so acting.”
“A serious violation of a duty of loyalty or seriously disobedient conduct is a wilful and deliberate breach of the contract of service by the agent, and, in accordance with the rule stated in Section 456, the agent thereby loses his right to obtain compensation for prior services, compensation for which has not been apportioned.”
“If the principal, in ignorance of the agent’s faulty conduct, pays to the agent compensation or indemnity to which he is not entitled, the principal can maintain an action to recover the amount.” (Ibid. Emphasis added.)
The emphasized language, referring to services for which no compensation has been “apportioned,” is in line with the New York and Minnesota cases discussed above. Thus a minor breach of duty, affecting only a single transaction, will not result in loss of compensation attributable and “apportioned” to other transactions properly carried out. On a temporal basis, a defalcation in one month will not necessarily cause a forfeiture of compensation for other months when services are performed in an unexceptionable manner. This is the concept denoted by the New York rule that the faithlessness must “permeate” the service to cause a total loss of compensation, and of the restaters’ criteria for exercising judicial discretion in allowing or denying compensation to a trustee.
Our research has revealed only one case in which this: court has applied this qualification of the general rule of forfeiture, and that is Hubbard v. Irrigating Co., 53 Kan. 637, 36 Pac. 1053. There, one Lord, a deceased banker, had been engaged to sell $10,000 worth of the irrigating company’s bonds, for which he was to receive a $1,200 commission. He in fact sold $19,000 worth, which was beyond his authority, and also failed to remit any of the proceeds. In an action against his administrator the company recovered its $19,000, less previous advances, by way of an implied trust imposed on Lord’s estate. The trial court refused to allow any compensation for selling the extra $9,000 worth of bonds, but did allow the administrator an offset of $1,200 for Lord’s services in selling the first $10,000 worth. On appeal this court said:
“. . . It is urged that, having violated his trust, he has forfeited all right to compensation. The sale of $10,000 of the bonds was authorized, however. It was only when that sum was exceeded that he acted beyond his authority, and the court has allowed him no compensation for the excess. In an equitable action, such as this is, we should be loathe to disturb the judgment of the trial court in refusing to enforce a forfeiture of compensation because of a misappropriation, where the effect of a reversal would be not to deprive Lord himself of the allowance, but to deprive his other creditors of it.” (Id., 53 Kan. at 653.)
There was thus an apportionment of the unfaithful agent’s compensation, on equitable grounds, with compensation being allowed for that part of the agent’s conduct which was proper and which was severable from his unauthorized acts. The estate was insolvent and the court was obviously concerned about the rights of Lord’s other creditors. Had he been alive to reap the fruits himself the result, it was hinted, might have been different.
In applying these principles to the case at bar, we must start with the proposition that Mike Bessman was, undeniably, a “faithless servant” within the doctrine set forth in the foregoing authorities. There cannot be even a colorable claim of good faith on his part. He cannot, then, claim the full compensation which would have been due him had he performed with the fidelity expected of a trusted agent and employee.
We must then seek to ascertain the “period of his faithlessness.” (Herman v. Branch Motor Express, supra.) We find from his sworn answer to interrogatories, quoted above, that he received rebates from Lasting Interiors at various dates, which he could or would not specify, “from October 16, 1970, up to and including September 16, 1971.” Examination of the other defalcations reveals that they all fell within this period of time: Lewis and West, November, 1970, to January, 1971; Culligan, January, 1971; Reznick’s, June, 1971; and Mrs. Strouse, August, 1971. There is no evidence in the record of any misconduct either before or after that period. We concluded from the undisputed record that the period of faithlessness was that period which plaintiff has admitted. While there may have been lapses into righteousness during that period, we cannot cut it any finer.
We therefore hold that plaintiff was not entitled to his salary for the forty-eight week period beginning October 16, 1970, and ending September 16, 1971. At $250 per week, the judgment below overpaid him by $12,000. The judgment is reversed and the oase is remanded with directions to enter an appropriate judgment on the account taken, disallowing the $12,000 compensation specified above.
APPROVED BY THE COURT.
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Per Curiam:
The appeal is from a judgment upholding the action of the city of Mission in denying a petition to rezone a tract of land at the southeast comer of U. S. Highway 50 and Lamar Street in the city of Mission, Kansas. The tract lies in an area which is zoned and developed for residence use.
Appellants seek to have the zoning changed for their tract to office building use so that they could build an office building thereon. Residential owners intervened and offered evidence in opposition.
It appears from the record that the appellant Thurman had an option to buy the land for $200,000, subject to getting the zoning changed, and after a first petition for such change was denied in 1968, he later bought the land anyway for $150,000. This appeal results from the denial of this later and second application, initiated by Mr. Thurman.
The trial court found that “the determination of the Governing Body of the City of Mission in denying rezoning for the use contemplated was not arbitrary, capricious or unreasonable.” We are asked to reverse that finding and direct the rezoning because the denial of it (1) amounts to a confiscation of appellants’ property, (2) denies appellants the economical use of their property without any reasonable basis in fact or law, and (3) is based on political considerations rather than reasoned community planning.
A careful reading of the record persuades us that there is no basis for the intervention of this court by substituting its appraisal of the merits of the zoning claims for that of the governing body and the lower court.
The crux of the appellants’ claim is that the residential zoning does not allow development of their property for the highest and best use, and that development for residential use is financially unrealistic. The record leaves this last proposition in some doubt except as it is related to speculative land values dependent on some type of zoning use other than the residential use for which the area has been zoned.
Even if it were to be conceded that the highest and best use for this property is for an office building, the fact remains that if zoning determinations were to depend on this factor alone, the very purpose of zoning would be nullified and spot zoning would be the order of the day.
Likewise there is nothing in the record from which it must be concluded that the zoning involved here is predicated solely on political considerations. At most it appears that the wishes: of neighboring landowners may have been taken into account. Cf. Waterstradt v. Board of Commissioners, 203 Kan. 317, 454 P. 2d 445, Syl. ¶ 4.
We agree with the trial court that the record does not show that the action denying the zoning application was arbitrary, capricious, or unreasonable. The controlling principles as announced in Paul v. City of Manhattan, 212 Kan. 381, 511 P. 2d 244 are applicable.
The judgment is affirmed.
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Per Curiam:
This is an appeal from an order denying the appellant’s counterclaim in an action to collect the deficiency balance remaining on a promissory note.
On July 26, 1971, the appellant, F. C. Brungardt, executed a promissory note for $29,150.58 payable to the appellee, Union National Bank of Wichita. The indebtedness was secured by a security agreement pledging 15,850 shares of International Plastics, Inc., stock. There was one renewal represented by a new note dated October 26, 1971, retaining the original security.
On January 14, 1972, ten days prior to the maturity date, the appellant was notified by letter that the loan had reached an unsatisfactory margin position and that renewal at maturity would require a $9,000 reduction in principal and payment of accrued interest. In a reply the appellant requested the loan be renewed for the full amount, and indicated that he would try to sell the stock for less than $3.00 per share, the value which he initially placed on it. The bank denied the request, and on January 25, 1972, notified appellant that he must pay $9,000 to reduce the principal or upon default the stock would be sold. No payment was made.
On February 18, 1972, after the note was in default, appellant was notified the appellee would proceed with a piecemeal sale of the stock at l/sths ($1,875) or above. This is the letter upon which the appellant bases his counterclaim. The brokerage firm of B. C. Christopher & Company was unable to sell the stock at the price of $1,875, and the certificates were returned by the broker to the bank. The stock was then given to the brokerage firm of Mick, Stack and Smartt and sold for $1.70 per share. The pro ceeds were applied to tire indebtedness, leaving a deficit balance of $1,653.45, plus accrued interest.
The bank sued to collect the deficiency. The appellant confessed judgment on the petition, but counterclaimed that the appellee’s letter of February 18, 1972, formed a contract to sell the stock at llths per share, which would have extinguished the principal and most of the accrued interest.
The district court found there was no agreement modifying the terms of the security transaction and denied relief to the appellant on his counterclaim. The sole point on appeal is whether the district court erred in finding the correspondence did not reflect an enforceable agreement.
Neither the promissory note nor the security agreement contained any restrictions on the sale of the collateral upon default. The district court found the bank’s last letter was merely a notice to the appellant of its intention to sell the stock to liquidate the debt. The only legal limitation on the bank was that the collateral be disposed of in a commercially reasonable manner. (K. S. A. 84-9-504 [3].) The propriety of the bank’s action is not challenged.
The district court was correct. There was no meeting of the minds to support the claim of a contract for the sale of the stock at a specified amount. (Fast v. Kahan, 206 Kan. 682, 481 P. 2d 958.) Even if the bank’s letter constituted a declaration on its part to sell the stock for no less than $1,875 per share, it was entirely unilateral and not supported by a consideration.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff-appellant, Alfred Thompson, for injunctive relief and to recover damages from the defendants-appellees, Joyce Thompson Kite, Donald Kite, her husband, and Charles W. Davidson, her father. All of the defendants are residents of the state of Missouri. This action was the result of continuing problems of child support and rights of visitation which developed out of a divorce case in Ruchanan county, Missouri. The essential facts are not really in dispute and are as follows: On February 24, 1958, Joyce Thompson, now Joyce Thompson Kite, was granted a divorce from Alfred Thompson. At that time Joyce was with child but the circuit court made no order providing for the custody or support of the unborn child. On February 4, 1959, following the birth of Regina Thompson, the Missouri court modified its original divorce decree, granting custody of the child to the mother and ordered the father to pay support at the rate of $12 per week. No visitation order was made at that time. Thereafter Alfred fell in arrears on his child support. On May 9,1960, Joyce filed an action under the Uniform Reciprocal Enforcement of Support Act in the circuit court of Buchanan county, Missouri, as initiating court. That court certified that case to the district court of Atchison county as responding court where the case was docketed on May 18, 1960. We will refer to that action as the reciprocal action. On May 29, 1960, Joyce and Alfred appeared in the reciprocal action and by agreement Alfred was ordered to pay the amount of $10 per week as support for Regina. The case then lay dormant until a motion to show cause was filed by the mother on February 17, 1970. On July 24, 1970, it was determined that the back child support had been paid into court by Alfred and it was ordered disbursed to the mother. Further delinquencies in child support payments occurred and on October 5, 1970, Joyce filed another motion to determine arrearages and to increase child support. The parties attempted to settle their differences and entered into an agreement which was incorporated in the judgment of the court entered on November 24, 1970. That judgment approved the agreement of the parties and ordered that Alfred pay $15 a week as child support and include the minor child as a beneficiary in his present medical and hospitalization insurance. The decree further provided that Alfred should have certain visitation privileges. The next activity in the case was on July 9, 1971, when Joyce filed another motion to show cause. After various continuances, on January 24, 1972, an order was entered amending visitation rights and dismissing the citation to show cause on the basis that Alfred had again become current on child support payments. In the fall of 1972 Joyce apparently concluded that the child support order was inadequate. She filed a motion in the original divorce case in Buchanan county, Missouri, to modify the decree by increasing child support. Alfred obviously resented the filing of that motion. On September 15, 1972, he filed an independent action for injunctive relief and for damages which is presently before the court. On October 18, 1972, the circuit court of Buchanan county entered its order in the original divorce case increasing child support payments to $25 per week and providing that Alfred should have rights of visitation with the minor child at all reasonable times to be exercised in the home of Joyce and her present husband, Donald Kite, in Kansas City, Missouri.
In his petition for injunctive relief and damages, Alfred Thompson as plaintiff alleged that in October of 1970 he and Joyce Thompson Kite entered into an agreement that the child support should be raised from $10 to $15 per week and that he should be afforded rights of visitation at specified periods. He alleged that at the time of the making of the agreement Joyce had no intention of allowing plaintiff reasonable rights of visitation and that she had violated the same. Plaintiff further alleged that the agreement had been confirmed and ratified in the reciprocal proceedings by the court’s order entered November 24, 1970. Plaintiff requested the court to issue an injunction restraining Joyce from proceeding further in the circuit court of Buchanan county, Missouri, on her motion to alter child support or his rights to visitation. Count two of the petition alleged breach of the contract to provide visitation rights and sought damages of $1,000 actual and $8,000 punitive damages. In count three of the petition the plaintiff, Alfred Thompson, sought to recover damages against Joyce Thompson Kite, Donald Kite, her husband and Charles W. Davidson, her father, claiming they had conspired to harass the plaintiff and to prevent him from exercising his right to visitation. The damages sought were $1,000 actual and $8,000 punitive damages. In response to the petition each of the three defendants filed a motion to dismiss the action for want of jurisdiction. The district court sustained each of the motions to dismiss and the plaintiff Alfred Thompson has appealed to this court.
The parties agree that all of tire defendants are residents of the state of Missouri. The plaintiff claims, however, that because defendant Joyce Thompson Kite appeared in the reciprocal proceeding in Atchison county and made an agreement for visitation and child support, she thereby submitted herself to the jurisdiction of the district court of Atchison county; that in her failure to abide by this arrangement Joyce Thompson Kite has committed a tort which makes her and her alleged co-conspirators amenable to the jurisdiction of that court under the long-arm statute, K. S. A. 1972 Supp. 60-308.
All of the defendants maintain that the district court of Atchison county has no jurisdiction whatsoever over the defendants since all of them are residents of the state of Missouri and that the action is barred under the specific provisions of K. S. A. 1972 Supp. 23-481. This section is a part of the Kansas Uniform Reciprocal Enforcement of Support Act and provides as follows:
“23-481. Effect of participation in proceeding. Participation in any proceeding under this act does not confer jurisdiction upon any court over any of the parties thereto in any other proceeding.”
The defendants take the position that the statute is clear and unequivocal and that it bars an independent action of the type involved in this case.
The district court dismissed the action for want of jurisdiction on the basis of K. S. A. 1972 Supp. 23-481. We believe that the trial court was correct in its decision. The purposes of the Uniform Reciprocal Enforcement of Support Act are to improve and extend by reciprocal legislation the enforcement of duties of support. (K. S. A. 1972 Supp. 23-451.) The goal sought by this legislation was to provide a prompt, expeditious way of enforcing the duty to support minor children without getting the parties involved in other complex, collateral issues. In proceedings under the act, the laws of Kansas as the responding state are to be applied. (Wheeler v. Wheeler, 196 Kan. 697, 414 P. 2d 1.) The act specifically declares that the remedies therein provided are in addition to and not in substitution for any other remedies. (K. S. A. 1972 Supp. 23-453.) The trial court which originally granted the divorce, wherever it might be located, retains a continuing jurisdiction to proceed to solve the problems of the divorced parties as they might arise. The responding court in the reciprocal action cannot decline or refuse to accept jurisdiction on the ground that there is another action between the same parties covering the same subject matter pending in some other jurisdiction. (K. S. A. 1972 Supp. 23-461 [b].)
We believe that the purpose of K. S. A. 1972 Supp. 23-481 was to enable parties to participate freely in reciprocal proceedings without exposing themselves to the danger of submitting to the jurisdiction of the responding court in other independent proceedings involving collateral matters. In the case now before us all of the defendants are residents of tire state of Missouri. The minor child of the parties is a resident of the state of Missouri. All of the plaintiff’s complaints arose out of Joyce Thompson Kite’s participation in the reciprocal proceedings in the district court of Atchison county. We think it clear that the purpose of K. S. A. 1972 Supp. 23-481 was to preclude collateral litigation in the responding court of the type involved in this case. This independent action must fail for want of jurisdiction under the provisions of 23-481.
The judgment of tire district court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Robert L. Bell was tried by a jury and convicted of the unlawful possession of a pistol after having been previously convicted of burglary. (K. S. A. 21-2611) He was sentenced to the penitentiary for a term of not less than fifteen (15) years under the provisions of K. S. A. 21-107a (the habitual criminal statute). Various specifications of error have been raised on this appeal.
The information originally filed in the district court charged defendant with the unlawful possession of a certain pistol after “having been previously convicted of grand larceny, forgery, and burglary.” A conviction of forgery is not one of those crimes specified in K. S. A. 21-2611 (the firearms statute) which makes possession of a pistol unlawful. The state on motion was permitted to strike the word “forgery” from the information prior to arraignment.
The defendant claims error because of this deletion and contends if the forgery conviction had remained in the information it would have been used as an element of the crime charged and could not have been used to invoke the habitual criminal statute. In support of this contention he cites State v. Ware, 201 Kan. 563, 442 P. 2d 9.
The crime of forgery cannot be used as an element of the crime charged. It is not one of those crimes listed in K. S. A. 21-2611. It was mere surplusage in the information. In addition the deletion occurred prior to arraignment. An information may be amended in a matter of substance or form without leave of court at any time before the defendant pleads. (K. S. A. 62-808) It was not error to permit this amendment.
After arraignment and before trial the words “grand larceny” were also deleted from the information and defendant asserts the same claim of error with respect thereto.
This deletion occurred after the trial court had questioned the parties as to the advisability of having more than one such crime set forth in the information. The court stated:
“. . . I think we have a problem here, at least the Court on its own motion feels there is a problem, that if there is sufficient evidence and there is no dispute that the defendant had been convicted of at least one felony within the purview of the Statutes, then I think the Court would consider not admitting any subsequent or other felonies because the only reason the jury can hear about prior convictions is because it is an element of the crime charged. . . . [A]t least I would feel to be prejudicial to the defendant for the State to prove more than one felony. In other words, to show to the jury that this man has had more than one felony, therefore he should be punished regardless of the offense involved. . . .”
The state then advised court and counsel that if defendant would admit and stipulate to the burglary conviction the grand larceny conviction could be struck from the information. The attorneys agreed to this procedure and the court specifically questioned the defendant, Bell, about the matter. In response to the court’s questions Bell stated he understood what was proposed and indicated this was agreeable to him. He stated he understood this would mean he was admitting that he had been previously convicted of burglary as indicated by the journal entry before the court and that the grand larceny charge would be deleted from the information. The grand larceny conviction was deleted from the information. The trial was held thereafter and defendant was convicted.
When the defendant and his attorney consent to amendment of the information after arraignment but before trial defendant cannot complain of the amendment on appeal. (State v. Ward, 198 Kan. 61, 65, 422 P. 2d 961; State v. Allen, 163 Kan. 374, 183 P. 2d 458.) The original information was valid on its face. The court had jurisdiction of the offense and the defendant. A deletion of surplus words from an information does not substantially change the nature of the charge when there is sufficient matter alleged to indicate the crime and the person charged. (See K. S. A. 62-1011 Sixth.)
The defendant next contends that the habitual criminal statute (K. S. A. 21-107a) may not be used to enhance the penalty provided for the unlawful possession of a pistol by K. S. A. 21-2611. This argument is based upon what the defendant says is the apparent intention of the legislature to make the possession of a pistol a felony punishable by imprisonment not to exceed five years when conviction is subsequent to convictions for one or all of the offenses enumerated in the firearms statute.
Although the latter statute was passed some twenty-eight years after the habitual criminal statute we cannot agree with defendant’s contention. It is not apparent to us that the legislature intended partial repeal of the habitual criminal statute when it passed the firearms statute. Repeal by implication is not favored in this state. (McCall v. Goode, 168 Kan. 361, 212 P. 2d 209; State v. Ricks, 173 Kan. 660, 662, 250 P. 2d 773.) Somewhat similar arguments have been rejected in State v. O’Connor, 186 Kan. 718, 720, 353 P. 2d 214 and in State v. Wood, 190 Kan. 778, 792, 378 P. 2d 536. The case annotations appearing under K. S. A. 1969 Supp. 21-2611 list many cases decided by this court where convictions under the firearms statute have been upheld and the enhanced penalty provided by K. S. A. 21-107a has been approved. This contention of the defendant is without merit.
The defendant was first notified of the state’s intention to invoke the habitual criminal statute on February 14. This was just prior to the court’s order overruling the motion for a new trial. The sentencing proceedings were held on February 19 and 20. The defendant argues this did not afford him sufficient time and it denied him due process of law under the United States Constitution. He does not point out why he needed more than five days which intervened to prepare his defense against these prior felony convictions.
The purpose of requiring notice to the defendant on invoking the habitual criminal statute is to afford defendant ample time to prepare his defense. When there is nothing in the record on appeal to show prejudice five days are sufficient and reasonable notice to the defendant. (State v. Cruitt, 200 Kan. 372, 379, 436 P. 2d 870.) A period of four days has been found ample to prepare such a defense. (State v. Peterson, 198 Kan. 239, 241, 424 P. 2d 552.)
Defendant further contends he was denied due process and equal protection of the laws because the notice was not served upon him until after he had filed a motion for new trial. He argues it was then too late to include the error in his motion for new trial and present it to the trial court.
Such argument might have merit if the procedure followed by the state precluded defendant from raising the question of error on appeal. However, under Rule No. 17 of the Rules of the Supreme Court (203 Kan. xxxiv) trial errors may be specified for review in a criminal appeal regardless of whether a motion for a new trial has been filed. It is no longer necessary to specify the order overruling a motion for new trial in the specifications of error to obtain a review of trial errors in a criminal appeal. The defendant was not denied due process or equal protection of the laws.
Defendant specifies error because the trial court overruled his motion to suppress a pistol from the evidence admitted at the trial. A summary of facts surrounding his arrest is necessary to determine this question.
A search warrant had been issued and was to be executed for a residence located at 2300 Adams Street, Topeka, Kansas. Officer DeMore was a member of the search warrant party and was stationed near the premises as a “stake-out” to notify others in the party when any person entered the premises. The defendant and a female companion drove up to the premises in a Mustang automobile. Officer DeMore immediately drove to where defendant had parked. Both the officer and the defendant got out of their automobiles. Officer DeMore held up his identification and said, “police officer”. The defendant was out of his car and he withdrew from his pocket what appeared to the officer to be a pistol. Officer DeMore drew his weapon and ordered defendant to drop the pistol. Defendant leaned back and dropped the pistol in the back seat of the Mustang automobile. The door of this automobile was open, the interior light was on and the gun was visible to the officer. Officer DeMore retrieved the gun from the back seat of the car. Defendant’s female companion remained seated in the front seat of the car throughout the incident.
The motion to suppress the pistol was based upon defendant’s contention the seizure of the pistol from the car without a search warrant was unreasonable and not incident to a lawful arrest.
We conclude that the pistol was properly retrieved from the automobile and admitted in evidence against the defendant. The officer had reasonable grounds to believe the defendant was dangerous when defendant drew the pistol from his pocket and dropped it in the back seat of the automobile occupied by his female companion. It was reasonable and necessary for the protection of the officer and others to take swift measures to recover the pistol from the automobile and neutralize the threat of harm which it posed. The officer restricted his seizure to the pistol and such seizure was reasonable under the Fourth Amendment to the Constitution of the United States and under Section 15 of the Bill of Rights of the Constitution of the state of Kansas. (Terry v. Ohio, 392 US 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; State v. Wood, supra.)
In State v. Robinson, 203 Kan. 304, 307, 454 P. 2d 527 and State v. Blood, 190 Kan. 812, 378 P. 2d 548, the state and federal cases relating to search and seizure from an automobile are examined. We find no rule of law set forth in these cases, or in the cases cited by defendant, which prevent the seizure of the pistol under the circumstances of this case. The seizure was both reasonable and necessary under the exigencies. Seizure was dictated by the facts known to the officer in order to neutralize the threat of harm inherent in the situation. Since the pistol was legally seized it was admissible in evidence and defendant’s motion to suppress was properly overruled.
Defendant’s final contention is that the previous convictions for forgery and for child desertion obtained May 19, 1953, and for grand larceny obtained on May 3, 1947, were not two separate and distinct felonies for the purpose of enhancing sentence under K. S. A. 21-107a.
It should be noted that the conviction used as an element of the principal crime was burglary. The record indicates the charge of grand larceny on which conviction was obtained May 3, 1947, arose at a different time and out of different circumstances from the burglary charge.
In State v. Ricks, supra, it was held the increased punishment for a second and third conviction of a felony, provided by the habitual criminal statute, is imposed as a disciplinary measure for those whom previous conviction and punishment have failed to reform. (See also State v. Woodman, 127 Kan. 166, 171, 272 Pac. 132.)
In State v. Felton, 194 Kan. 501, 506, 399 P. 2d 817, it was held a prior conviction used to enhance the penalty under the habitual criminal statute must precede the commission of the principal offense.
In State v. Ware, supra, it was stated a previous conviction relied on as a necessary element and ingredient in order to constitute the offense under the firearms statute may not be used and relied on to invoke the habitual criminal statute.
In State v. Murray, 200 Kan. 526, 530, 437 P. 2d 816, where two convictions grew out of the same act and were prosecuted in the same information, it was held only one of them could subsequently be utilized as a previous conviction within the purview of the habitual criminal statute.
See also 24 A. L. R. 2d 1262 where cases from other jurisdictions involving two or more convictions on the same day or term of corut are discussed.
Under the rules laid down in Ricks, Felton, Ware and Murray the record before us shows two prior convictions at two separate times growing out of two separate acts. The first conviction was for grand larceny on May 3, 1947; the second conviction was for forgery and for child desertion on May 19, 1953. The record before us does not disclose the date of the prior conviction for burglary which was relied on as a necessary ingredient in order to constitute the offense under the firearms statute. However, it does appear this prior conviction for burglary arose at a different time and out of different circumstances from the other prior convictions.
The penalty imposed under the habitual criminal statute for a third conviction was proper in this case and defendant’s sentence to the penitentiary for a term of not less than fifteen years is valid.
The judgment is affirmed.
13 — 205 Kan.
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The opinion of die court was delivered by
Fontron, J.:
This is an action by lessees to recover damages for breach of a farm lease. Recovery was denied and the plaintiff lessees have appealed. A cross appeal has been filed by the defendant lessors.
On December 1, 1961, a farm lease was executed between the defendant lessors, Walter Bacon and Theresa Bacon, and the plaintiff lessees, Don Rockey and Elaine Rockey, in which the Bacons leased to the Rockeys some 124 acres of farm land in Butler County, Kansas, for a term of five years commencing March 1, 1962. The acreage consisted of approximately 50 acres of wheat land, 34 acres for spring crops, and 40 acres planted to alfalfa.
Apparently the Bacons and the Rockeys remained on amicable terms until the middle of 1964, when the Bacons terminated the lease because of alleged breaches and immediately re-took possession of the land. The date of the take-over was approximately May 25 of that year.
Suit was filed by the plaintiffs December 4,1964, seeking damages of $5,640. In their cross-petition the defendants ask damages on their part amounting to $1,240. Trial was had to the court which made three findings: (1) That no substantial breach of the lease occurred which would warrant termination; (2) that plaintiffs’ loss of profits were not established with reasonable certainty, the evidence in regard thereto being too speculative or problematical; (3) that plaintiffs failed to mitigate their loss.
The court wound up by denying relief to all parties, and by dividing the costs between them, while the parties themselves wound up by appealing.
We shall initiate our discussion of the appellate issues by turning first to the Bacons’ complaint that the trial court erred in holding there was no breach of the lease sufficient to justify its termination. This contention must be rejected in view of our oft-declared rule that findings which are supported by substantial competent evidence will not be set aside on appeal. (See 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 507.)
Although the Bacons complain of certain farming practices on the part of Mr. Rockey resulting, so they assert, in low crop yields, there is substantial evidence from other farmers in the area that Mr. Rockey, who cultivates extensive acreage, engaged in farming practices which were in substantial accord with practices generally followed in the community. The two specific instances at which the lessors point accusing fingers are miniscule at best, and hardly merit their description here. At any rate it is not the function of this court to weigh conflicting evidence on appeal; that obligation belongs to the trial court. (1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 508.)
A much more serious question inheres in the claims of error advanced by the plaintiffs. They challenge two of the trial court’s findings: (1) That their losses were not established with reasonable certainty, and (2) that they had failed to mitigate their damages.
As to the first point, the plaintiffs contend the trial court applied too harsh and rigorous a standard in concluding that the evidence of anticipated profits was too speculative and problematical to establish damage with reasonable certainty. We are obliged to concur in this view.
The general rule with respect to the recovery of loss of profits resulting from the breach of a lease by the lessor is stated in 49 Am. Jur. 2d, Landlord and Tenant, § 351, pp. 363, 364, in these words:
“While there are eases in which the right to recover lost profits as an element of damages for breach of a covenant for quiet enjoyment has been denied, the rule followed by most of the courts, in accord with general principles permitting recovery of profits lost as a result of a breach of contract when such profits can be ascertained with reasonable certainty and their loss reasonably be supposed to have been within the contemplation of the parties at the making of the contract, is that lost profits may be recovered by a tenant for an eviction by the landlord when they may be ascertained with reasonable certainty and they may reasonably be contemplated as a probable result of the breach, or, in other words, when the profits are the object of the contract and so understood by the parties. . . .”
This rule has been followed in Kansas. (See O’Neal v. Bainbridge, 94 Kan. 518, 146 Pac. 1165; Avery v. City of Lyons, 183 Kan. 611, 331 P. 2d 906, and cases cited therein.)
In Stewart v. Murphy, 95 Kan. 421, 148 Pac. 609, the rule was specifically applied to a case involving the breach of a farm lease. The defendant lessor in that action had leased an 80 acre farm to the plaintiff lessee, but was unable to deliver possession of the land because a former tenant held over. The lessee filed suit to recover loss of prospective profits and, at the trial, was permitted to introduce evidence concerning a crop of hay grown on the land the previous year and the amount of oats that might have been raised on the place during the year covered by his lease. In affirming the lower court’s action in refusing to strike this evidence, this court held:
“Loss of profits, when they can be ascertained, is a proper measure of damages where by tire act of a lessor the tenant is deprived of the use and occupation of the premises covered by the lease. (Syl. ¶ 3.)
A similar principle is embodied in Hoge v. Norton, 22 Kan. 374, where a herd of cattle was taken and held for some time under an order of attachment. The attachment was later dissolved. In an action to recover damages for wrongful attachment, the owner claimed, and was permitted to introduce evidence to establish, that because of inferior range and water at the location where the cattle were kept, they failed to gain weight as they otherwise would. In upholding a verdict in favor of the cattle owner, the court observed:
“. . . Of course, absolute certainty is not attainable, as in casting up the figures of an account; but nevertheless there are certain laws of feeding and growth, well understood among cattle-men, and whose results work out with sufficient certainty for business calculations and judicial investigations. . . . It seems clear that the owner is damaged, that the damages may be determined to a reasonable certainty, and that the wrongdoer is bound to make good the damages.” (p. 380.)
Our decisions in this area of damages accord with the generally accepted view found annotated in 104 A. L. R. 161-164 and 88 A. L. R. 2d 1041-1042. Among the several authorities set out therein, the following will suffice to put the rule in clear perspective:
In 3 Thompson on Real Property, § 1135, pp. 519, 520, we find this language:
“. . . It may be assumed in judicial proceedings that the results of profits, if they are reasonable, definite, and certain, arising from the use of real estate, afford a proper basis for fixing a rental value.”
Cited in support of the Thompson text, is Chew v. Lucas, 15 Ind. App. 595, 43 N. E. 235, the syllabus in which recites:
“In an action by a lessee of farm land against his lessor, for a breach of contract thereof, evidence of the average yield of the various crops contemplated, the cost of their production and putting same on the market, together with the market value of such crops, when harvested, is competent to show the measure of damages of such breach of contract, where the rent is to be paid by a share of the crop.”
The Supreme Court of Tennessee expressed similar views in Fuqua v. Madewell, 25 Tenn. App. 140, 153 S. W. 2d 133:
“Under leases of farm lands the lessee is entitled to recover the loss of any profits he might reasonably have made from the demised premises as damages for a failure to receive possession. . . .” (p. 143.)
A case with like. overtones came before the Supreme Court of our sister state of Colorado in Carlson v. Bain, 116 Colo. 526, 182 P. 2d 909. The action was one seeking damages for defendant’s failure to deliver possession of ranch property leased to the plaintiff. In upholding a verdict awarding special damages based on loss of net earnings and profits which the plaintiff allegedly would have realized by operating the ranch property, the Colorado court stated:
“. . . The true rule for determining the special damages here is the difference between the rent reserved and the value of the crop and other probable income less the necessary expense in cultivating, planting, harvesting and marketing the crop, and less any expense incurred in producing other income in any other activity in contemplation of the parties.” (pp. 532, 533.)
Applying the rationale of the foregoing cases to the evidence of record in this lawsuit, we believe it must be said there was substantial evidence of a loss of future profits which cannot be branded as either speculative or conjectural in a legal sense. The Rockeys had retained possession of the Racon land under their lease for slightly more than two years, during which time they had raised two crops of wheat and maize and had harvested more than two years’ cuttings of alfalfa. They had thus established a basis of past performance from which to predicate reasonable future profits.
From figures presented by Mr. Rockey, which were not contradicted by the defendants, his operation of the Racon farm from March 1, 1962, to May 25, 1964, was profitable. He testified in detail concerning the annual yield of hay, maize and wheat, and the prices he had received therefor. These figures were substantially corroborated, in addition to being undisputed.
The testimony of Mr. Rockey with respect to the expense involved in mowing, baling and barning the alfalfa hay was not controverted in any way by the defendants or their witnesses. Moreover, his figures regarding the cost of sowing, harvesting and marketing wheat and maize, were not only uncontradicted but were supported by other evidence as well.
In arriving at the amount of damages asserted, Mr. Rockey projected the profits of his past two years of operation into the three years still left on his lease. The figures he used in making the computation were precise as to yields, as to costs of production and marketing, and as to prices received.
In the early case of States v. Durkin, 65 Kan. 101, 68 Pac. 1091, this court held:
“Before one may recover damages for loss of profits to an established general business, occasioned by the wrongful acts of another, it must be made to appear that the business had been in successful operation for such period of time as to give it permanency and recognition, and that it was earning a profit which may reasonably be ascertained or approximated.” (Syl.)
We have adhered to this position on subsequent occasions. (See McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Master Sales Company v. Sytsma, 114 Kan. 120, 122, 217 Pac. 291; Sullivan v. Sproule, 176 Kan. 274, 279, 269 P. 2d 1015.)
The evidence in the instant action meets the test laid down in the States decision. Here, the proof discloses a successful farming operation conducted for a sufficient period of time to provide a basis of permanency from which future profits may reasonably be computed. In our opinion, the court erred in concluding that the evidence was too conjectural to permit allowance of damages for loss of profits.
In addition to finding that the plaintiffs’ damages were speculative and conjectural, the trial court found also that the plaintiffs failed to mitigate their damages. This finding is challenged by the Rockeys, and we believe properly so.
There is nothing in the record to indicate that mitigation of damages was ever made an issue in this case. Mitigation was not pleaded by the Bacons as a defense, nor do we find anything in the record which bears in any way upon that issue.
In this jurisdiction, mitigation of damages is an affirmative defense, the establishment of which devolves upon the party asserting it. In Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255, this subject was examined and the court said:
“Defendants contend the court erred in overruling their motion for judgment notwithstanding the verdict, and predicate their argument on the theory that plaintiff must not only show the amount of damages suffered as a result of the breach, but must further show that such damages could not have been prevented or mitigated. Such is not the general rule of law. Mitigation of damages is a matter of affirmative defense and the burden of proof is upon the party who seeks to establish it. (Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597.)” (p. 58.)
See, also, Miller v. Kruggel, 165 Kan. 435, 438, 195 P. 2d 597; Anderson v. Rexroad, 180 Kan. 505, 306 P. 2d 137.
The record is entirely bare of any showing that the defendants asserted mitigation in defense of the plaintiffs’ claim. Even had such a defense been interposed, the record discloses no evidence which would have sustained it. Under such circumstances, the trial court’s finding that the plaintiffs failed to mitigate their losses cannot stand.
The judgment of the court below is affirmed as to the cross appeal and reversed as to the appeal, and this cause is remanded with directions to the trial court to compute the plaintiffs’ damages from the evidence of record in accordance with the views herein expressed.
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The opinion of the court was delivered by
Kaul, J.:
The Missouri Pacific Railroad Company-appellee (hereafter referred to as Missouri Pacific or applicant) filed an application with the State Corporation Commission-Appellant (hereafter referred to as the commission) to establish twenty mobile agency routes in Kansas for the purpose of serving customers along its various lines. The effect of the proposed mobile agency routes would be to transfer 110 of Missouri Pacific’s agency stations in Kansas into a service system comprising twenty mobile routes served by twenty mobile agents. The system would also include twelve base station agencies. The 110 stations involved in the transition includes thirty-six single agencies and seventy-four dualized (and, in one instance, trialized) agencies. A single agency station is served by one full-time station agent. A dualized agency is two stations served by one agent.
Generally the application proposed to substitute for the present agency services, a traveling agent furnished with a motorized van or, in the case of two routes, a station wagon equipped with a two-way radio and agency office equipment. It was proposed that the traveling or mobile agent would call upon shippers in the communities previously served by station agencies along the various routes. The mobile agency routes generally would follow highways paralleling railroad lines; however, the exact routes to be traveled by the mobile agents were not established. Each route would have a base station from which the mobile agent would start on his route. Each base station would have an Enterprise telephone number which shippers could call at Missouri Pacific’s expense.
The application alleged that the handling of shippers’ and consignees’ “less-than-carload business” by Missouri Pacific “over-the-road trucks and by local draymen” will continue in the same manner as is done at the present time.
The application also alleged that shippers located at previously closed stations on the routes of mobile agents would be called upon at their requests and that they could also call base stations to transact railroad business.
The application further alleged that the business of Missouri Pacific at the single station agencies did not require or justify an agent at each station for eight hours a day, nor did the business at the dualized and trialized stations justify the services of an agent as presently maintained; that public convenience and necessity did not require the continued maintenance of the present services at the stations in question; that the establishment and maintenance of the mobile agencies would result in a saving of approximately $348,000.00 each year; and that economical and efficient management required that the application be granted.
After the application was filed, the commission appointed Perry L. Owsley as Examiner to hear the evidence and submit recommended findings and conclusions.
On the application of their attorneys, several communities and some shippers on the various routes were permitted to intervene. The first hearing on the application was held in Topeka on March 5-6, 1968. In the ensuing weeks twelve more hearings, at twelve different localities over the state, were had before the Examiner. The hearings were concluded on June 19, 1968.
The Examiner filed his report in which he summarized the evidence of applicant and protestants and submitted extensive recommended findings of fact and conclusions of law. He recommended that the application be denied.
On September 10, 1968, the commission entered its order in which it generally adopted the findings and recommendations of the Examiner and ordered that the application be denied. By its order the commission retained jurisdiction of the matter for the purpose of entering such further orders as it might deem necessary.
Thereafter, Missouri Pacific filed an application for rehearing and reconsideration. On January 29, 1969, the commission filed its order on the application for rehearing. In short the commission found that all of the conclusions of law contained in its previous order were fully supported by the evidence and were affirmed. However, the commision on its own motion found that a rehearing should be granted as to Routes Nos. 1, 2, 3, 5, 15 and 16 in view of the fact that no witnesses appeared in opposition to those proposed mobile routes. As a part of this order, the commission determined that under the provisions of K. S. A; 66-112 hearings should be held at all of the stations involved in the six routes concerned. In all other respects the application for rehearing was denied.
Following the commissions order on rehearing Missouri Pacific filed an application for review pursuant to the provisions of K. S. A. 66-118c in the district court of Osborne County. In its application for review applicant alleged that the commissions order of September 10, 1968, and order on rehearing of January 29, 1969, “inso far as they apply to said proposed Routes Nos. 4, 7, 14 and 20, are unlawful, unreasonable, arbitrary, improper, unfair and unjust and that the same should be vacated and set aside.”
The commission first attacked the application for review in the district court by a motion to dismiss, which was overruled.
The application for review was submitted on briefs and oral arguments; and, on June 23, 1969, the district court made findings of fact and conclusions of law. In brief, the court found, after reviewing the evidence, that public convenience and necessity does not require the continuance of the present service being rendered by Missouri Pacific at any of the stations located on the four routes involved and that public convenience and necessity would be served by the establishment and maintenance of mobile agency services on the routes as requested by Missouri Pacific.
The court found that the testimony of the witnesses appearing in protest to the establishment of the four mobile agency routes showed at most only some possible inconvenience to individual patrons of applicant, and failed to show that public convenience and necessity required that mobile agency service should not be established at the stations located on each of the four routes involved.
The court further found that the continued maintenance of single or dualized agents at the stations of the four routes, in lieu of service by mobile agents and base stations as proposed by applicant, constituted economic waste which applicant should be allowed to eliminate.
The court concluded that the application of Missouri Pacific involved herein is not one relating to the discontinuance of the services of a railway agent or the closing of a railroad station and, therefore, the provisions of K. S. A. 66-112 had no application to the proceedings. The court further concluded that the commission’s orders, as applied to the four routes involved, were arbitrary and unreasonable and should be vacated and set aside. Thereafter, the commission perfected this appeal.
We are first confronted with the commission’s assertions that the merits of the controversy are not properly before us and cannot be resolved in this appeal. The commission supports its position with two propositions:
1. The application for rehearing did not comply with the provisions of K. S. A. 66-118b, nor with the requirements of the commission’s Rules of Practice and Procedure (K. A. R. 82-1-235 [b] and [c]), thus applicant was not entitled to judicial review of the order on rehearing and, therefore, the trial court erred in denying the commission’s motion to dismiss.
2. Since a rehearing was granted as to six routes; and further since community hearings required by 66-112 had not been held, the judgment of the trial court was premature.
Turning to the commission’s first point, obviously the application for rehearing did not comply to the letter with the provisions of 66-118b, nor the requirements of Rule 82-1-235 (b) and (c).
K. S. A. 66-118b provides that an application for rehearing shall set forth specifically the ground or grounds on which the applicant considers the order attacked to be unlawful or unreasonable. Rule 82-1-235, pertaining to rehearings, requires specific and adequate detail in the application in subsection (b) and in subsection (c) requires references when relevant to page numbers and exhibits in the transcript, if one is available. Applicant concedes a transcript was available and that the requirements of the applicable rules were not complied with. In then' brief, counsel state that compliance with the rules, within the ten days allotted by the statute, would have been a physical impossibility in this case, in view of the “16 inch thick transcript.”
Although we have repeatedly emphasized the importance of the need for the commission to adhere to its own rules (Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572; Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660), we believe, in the instant case, it is estopped from raising an objection on such ground at this juncture of the litigation. At the commencement of the proceedings, on the application for rehearing, the failure of applicant to comply with the rules was called to the commission’s attention by its staff counsel. No ruling was made and the commission proceeded to hear the application, thus waiving any deficiencies or omissions in the application for rehearing.
Turning to the second proposition advanced by the commission wherein it contends the district court’s review was premature because a rehearing was granted as to six routes; and further, that with regard to the four routes involved herein community hearings required by K. S. A. 66-112 had not been held.
We fail to see how the fact that a rehearing was granted as to the six other routes affects the litigation concerning the four routes involved herein. However, the assertion made concerning the application of 66-112 raises a more serious question.
The provisions of 66-112 are mandatory and if applicable to the service change proposed by applicant they could not be waived by either the commission or a court.
The provisions of 66-112, which require our examination, read as follows:
“Whenever notice shall be required by the provisions of this act to be given any common carrier or public utility governed by the provisions of this act, and the complainant, or either of them, thirty days’ written or printed notice of the time and place when and where such investigation or hearing will be had shall be given, such notice to be served by mailing a copy thereof to the public utility or common carrier and complainant: Provided. That all hearings relating to the discontinance of the services of a railway agent or the closing of a railroad station shall he held in the community affected; . . .” (Emphasis supplied.)
The commission contends that the proposal of applicant would result in the closing of its stations and the discontinuance of the services of a railroad agent as the term is understood. The commission further argues that the trial court’s ruling, that 66-112 has no application to the proceedings, constitutes judicial intervention in further and future proceedings conducted by the commission.
Applicant counters the commisison’s contentions with a twofold argument. It first claims 66-112 has no applicability whatsoever to a proceeding such as this. This assertion is based on the proposition that the first portion of the act limits the application thereof exclusively to those proceedings where notice to a common carrier or public utility is required by provisions of the Public Utility Act; it then reasons that, since this proceeding stems from an application filed by applicant, no part of 66-112 is applicable. We find no merit in this argument. The first portion of the act deals with the form and service of notice when required. The proviso relating to discontinuance of services, with which we are concerned, deals with hearings and includes all hearings relating to discontinuance of agency services or closing of stations, regardless of how or by whom proceedings were initiated.
With respect to these proceedings the applicability of 66-112 depends on whether the present proposal seeks a discontinuance of agency services or the closing of stations within the contemplation of those terms as used in the act.
In findings made as part of an order, entered on March 27, 1968, following the initial hearing, the commission ruled that further evidence should be heard before a determination could be made as to whether the application sought the closing of a railroad station within tire legal meaning of the term.
After hearing all of the evidence, Examiner Owsley determined that 66-112 applied and that a hearing must be held in every community where a station building now exists. The commission, adopted the recommendation of the Examiner and entered its conclusion of law to that effect.
On review, the district court overruled the commissions order and concluded that the application did not relate to the discontinuance of the services of a railway agent or in the closing of a railroad station and thus 66-112 had no application.
The application on its face and the evidence submitted at the various hearings show that although agency services will be substantially altered and limited time-wise, they will not be discontinued. With respect to discontinuance of agency services within the meaning of the proviso, we believe what was said on the subject in Community of Woodston v. State Corporation Comm., 186 Kan. 747, 353 P. 2d 206, resolves the issue here. Woodston dealt with a proposal to transform single agency stations into dualized agencies. With reference to applicability of 66-112 we said:
“. . . With respect to the hearing of a complaint G. S. 1959 Supp., 66-112 contains directions to the commission to hold all hearings relating to the discontinuance of service of a railway agency in the community affected. Here, the very purpose of the application was to keep all the 30 station agencies in operation and not discontinue them, and the order did not discontinue service of a station agency within the meaning of the statute.” (p. 755.)
We turn then to the companion question whether the application relates to the closing of a station. On this point we also agree with the view adopted by the trial court. We believe the term “railroad station” has a broader meaning than that apparently attributed to it by the commission. In the discussion found in the case of In re Brenner, 151 Kan. 788, 100 P. 2d 688, this court clearly indicated that the concept of a railroad station is broader than that of a mere depot building.
The evidence discloses that the station building would remain for railroad use as storage facility for coopering supplies, grain car doors, etc. True, the traditional business functions of a station agency would no longer be performed in the station building but by the mobile agent in his van or station wagon. However, appli cant claims the services offered would be substantially equivalent to the previous services performed (whether they meet the requirements of convenience and necessity is another question). Trains will stop as before and freight will be loaded and unloaded.
We believe the term “railroad station” as used in the act contemplates a point on the railroad line where the business of receiving and discharging freight or passenger service is conducted, and the conduct of this business within the confines of a particular building, is not indispensable to constitute the place a station.
Authority for the view which we have adopted may be found in the following cases from other jurisdictions. Daniel v. Doyle, 135 Ark. 547, 204 S. W. 210; Foster v. Railroad, 112 Mo. App. 67, 87 S. W. 57; McGuire v. Railroad, 113 Mo. App. 79, 87 S. W. 564; Smithwick v. Illinois Cent. R. Co., (Miss.) 32 So. 2d 862.
If 66-112, supra, is applied to these proceedings, in line with the reasoning of the commission and the application is, nevertheless, finally approved, an inconsistent situation would result. The application of 66-112 to a proceeding, is based on the premise that if the applicant is successful, agency services are discontinued and the station is closed and, therefore, the termination of whatever railroad services remain would not require a 66-112 hearing. We do not hesitate to say that even though 66-112 hearings are not required in order to establish mobile agencies, their termination, if and when sought, would clearly require hearings in each community as contemplated in 66-112.
In other words, we hold the application of 66-112 is not mandatory in proceedings wherein the establishment of mobile agency routes is sought. We are not saying the commission is not authorized to schedule hearings in any or all communities in which a hearing is deemed necessary, regardless of 66-112 and the applicant concedes this general authority of the commission.
We find no error in the trial corut’s order overruling the commission’s motion to dismiss.
This leads to our examination of the merits of the issues raised on appeal, the overall question being whether the district court was justified under the evidence in reversing the order of the commission. •
Meaningful discussion requires a brief description of the four mobile agency routes involved and a summary of the evidence pertaining to each.
Mobile Route No. 4 starts at Concordia, the base station, and extends generally eastward 82 miles. It will service stations at Clyde, Clifton, Palmer, Linn, Greenleaf, Barnes, Waterville and Blue Rapids. The mobile agent will travel the route in one direction one day and return on the next. All of the stations on Route 4 are dualized at present. Five protestants appeared at the hearing which was held at Blue Rapids.
Mobile Route No. 7 commences at Downs, the base station, and extends generally westward 44 miles through Osborne, Alton, Woodston and Stockton. The mobile agent will make a round trip over the route on Monday, Wednesday and Friday of each week. The stations on Route 7 are dualized. Only one protestant appeared at the hearing on this route. Plowever, he was a substantial shipper. He operated grain elevators at Stockton and Woodston and shipped 212 carloads of grain in 1967.
Mobile Route No. 14 commences at Wichita, the base station, and extends in a northwestward direction 138 miles through King-man, Turón, Stafford, Hudson and Radium. Stafford and Hudson are dualized, the other stations are presently single agencies. The mobile agent will travel the route one day and return the next. Three witnesses testified in protest to this proposed route. All were substantial shippers originating from 192 to 295 outbound carloads a year.
Mobile Route No. 20 starts at Coffeyville, the base station and eastern terminal, it extends in a northwesterly direction 120 miles through Caney, Sedan, Cedar Vale, Dexter, Winfield and Belle Plaine. At present Belle Plaine and Winfield are single agency stations, the others are dualized. The mobile agent will travel the route one day and return the next. Five protestants appeared at the hearing on this route.
Eighty witnesses testified at the various hearings conducted during these proceedings. Fifteen testified as protestants relating to the four mobile routes involved.
The evidence of the applicant concerning the operations under the proposal was generally uniform as to each of the twenty proposed routes. Likewise, the testimony of protestants expressing their fears and complaints was quite similar with respect to each of the different routes.
We have examined the entire voluminous record, directing our particular attention to the testimony of protestants and that of the applicant concerning the four routes involved.
The protestants for the most part were shippers using the lines involved. With respect to the four routes, with which we are concerned, the majority were either grain elevator operators, farm implement or fertilizer dealers. Their freight business was substantial. Generally, the protestants testified that the innovation of the proposed plan of applicant would hinder and handicap their business operations in that they would be expected to prepare their own bills of lading and in some instances allow loads of grain to move without signed bills of lading; to seal their own cars; to unload cars, which in the case of damaged merchandise would have to be accomplished without the benefit of verification of damage by an agent and thus be placed at the mercy of the railroad insofar as shortages and damage claims are concerned; that they would be delayed in obtaining incoming freight and paying the charges therefor unless they were on the credit list, approved by applicant; and generally that agency service would be available only at the convenience of the railroad and not at their own.
Some grain dealers testified a mobile agent would not be available to sign bills of lading when needed which was important in their business because they needed a signed bill of lading in order to secure a sight draft, and if not available on the day a car was shipped they might have to borrow money to pay customers; also some stated it was necessary to mail a signed bill of lading on the day a car was shipped in order to protect against price changes of grain. Some would not allow a car of grain to move without a signed bill of lading which could delay shipments for one or two days, depending on train schedules.
Most protestants complained because a time schedule had not been established for the mobile agent and they would not know when to expect him. Some testified that the nature of their particular business caused them to be away a part of the time and they could not meet a mobile agent at a given time each day even if the time of the agent’s visit were known.
Other witnesses testified that it would be quite inconvenient to contact a base station agent by telephone where, because of their location, it was necessary to place long distance calls through several different telephone exchanges.
A number of the shippers claimed that the mobile agent, under the proposed schedules, would not have time enough to cover his route and give individual customers sufficient time to conduct necessary business.
The principal evidence of the applicant was presented in the form of testimony by Mr. G. M. Holzman, general manager of the western district, of Missouri Pacific, and by Mr. C. W. Watley who, at the time the application was filed, was district superintendent of stations of the western district. Mr. Watley was chairman of the three-man committee that evolved the Mobile Agency Plan proposed in the application.
Generally, applicant’s witnesses contended that all services presently available to shippers would be afforded after the mobile agency system was put into operation.
During the course of the hearings, when it was ascertained that some shippers would not move a loaded car without a signed bill of lading, General Manager Holzman testified that an effort was made to ascertain the feasibility of obtaining persons at the various stations who would be authorized to sign bills of lading for applicant. He further testified that four such persons had been contacted and agreed to perform such service. None of the four resided at stations on the routes here involved.
It was admitted by applicant’s witnesses that a test run had never been made on any of the four routes involved and that the actual time necessaiy to conduct business with shippers at each station was an estimate.
In its order the commission reviewed extensively the testimony submitted by protestants and that submitted by the applicant. Findings were made generally in accordance with the testimony of protestants.
Findings, which we believe of particular importance, are as follows:
“4. That local agents at agency stations now provide services to shippers during hours when the depot is closed which mobile agents will not be able to provide.
“5. Local agents conduct the business of the railroad at the convenience of the shippers and under mobile agency plan business of the railroad will be conducted at tíre convenience of the railroad.
“6. That many shippers will not be available for transacting railroad business when the mobile agent calls at their places of business to conduct railroad business.
“7. That the services of a local agent in ordering cars, notifying in advance ■of arrival of cars, inspecting cars with shippers, handling correct spotting of cars, tracing cars and obtaining rates would be better than these same services by a mobile agent or by telephone between shipper and base station.
“8. That shippers are entitled to have a Bill of Lading signed by an agent of the railroad on the same day a car is loaded and ready to be moved and that it would be inconvenient to the shippers to be required to wait until a mobile agent called on them in order to have a Bill of Lading signed.
“9. That the testimony of the railroad to the effect a railroad agent would be available to sign bills of lading when needed by the shipper is speculative and limited.
“14. That the time allotted to the mobile agent to conduct the railroad’s business on some of the routes is insufficient. That the hours of service by a mobile agent to customers of the railroad would be much less than the hours of service of a local agent.
“16. That much of the testimony of the railroad as to more efficient service under the mobile agency plan is speculative.”
In its order denying the application for rehearing, the commission generally reaffirmed findings and conclusions made in the original order, with the exception that on its own motion a rehearing was granted as to the six routes which we have previously mentioned. The commission declared that its original findings and conclusions were fully supported by the evidence and the law.
In conclusion No. 5 of its order on rehearing the commission frames the underlying issue in this controversy and resolves it as follows:
“Although by its findings of fact No. 2 this Commission found that the applicant would make a monetary savings in operating expenses by the establishment of Mobile Agencies in Kansas, the Commission finds as a matter of law that the amount of said savings under the evidence is 'speculative and viewing applicant’s evidence in its most favorable light neither warrants nor justifies a finding that the continued operation and maintenance of the agencies here involved as presently maintained would require an unjustifiable expenditure of money by the applicant or constitute waste or impose an unlawful and/or undue burden upon applicant when viewed in the light of public convenience and necessity and the duty of the applicant to furnish reasonably efficient and sufficient service.”
The findings of the trial court on review consisted largely of a recitation of the evidence generally in accordance with what we have related. The court did not point out any instances where the commission failed to consider evidence of the applicant or, on the other hand, where any evidence of protestants was overvalued. Neither did the court point out any evidence improperly considered by the commission nor did it specify any particular finding of fact that was not supported by evidence. In sum and substance, the trial court considered the same evidence but arrived at ultimate facts and conclusions in sharp conflict with those reached by the commission.
The trial court put emphasis on testimony of the applicant’s officials to the effect that all services now rendered could and would be rendered by the mobile agents when they called on the patrons each day, and in addition patrons could obtain essentially all of the services now rendered to them by the single and dualized agents by telephoning the base station agent. There was, as we have pointed out, considerable testimony of protestants to the contrary upon which the commission based its findings Nos. 4 to 16, inclusive.
The trial court specifically found in its finding No. 13 "that applicant’s mobile agents can perform the services required at all of the stations upon the various routes within the times provided therefore.” The finding squarely contradicts the commission’s finding No. 14. The only explanation by the trial court is that the highway speed of the mobile agent would exceed the thirty miles an hour, allotted by applicant’s estimate, thus making more time available for patrons’ business. The trial court indicated uncertainty in this regard by finding that the applicant would make changes if time provided was insufficient. The commission’s finding is supported by the testimony of several substantial shippers that the time allotted for the transaction of customers’ business was clearly inadequate.
With respect to bills of lading, the trial court found that some shippers would not permit a loaded car to move without a signed bill of lading and that other shippers desired one signed as soon as possible in order to secure a sight draft to meet immediate financial obligations. The trial court then avoided the issue by finding that applicant would have no difficulty in finding agents to sign bills of lading, although there was no evidence that any such agents had been secured or contacted on any of the four routes involved here. On the other hand, the commission found that prospects of having an agent available for such purpose was speculative and limited.
Without further comparison of the findings of the trial court with those of the commission, it may be said that, in their respective capacities, they arrived at divergent conclusions from the same evidence with no ostensible explanation of the disparity appearing in the record.
This leads to an examination of the function and scope of judicial review and the rules governing the application thereof in testing the reasonableness of an order of the commission.
Judicial review of a commission’s order is authorized by K. S. A. 66-118c and the nature and scope thereof is spelled out in K. S. A. 66-118d, which in pertinent part reads:
“. . . Said proceedings for review shall be for the purpose of having the lawfulness or unreasonableness of the original order or decision or the order of decision on rehearing inquired into and determined, and the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable.
We have disposed of the only suggestion of unlawfulness which was the commission’s own assertion that compliance with 66-112, supra, was necessary as a matter of law. Therefore, we are confronted only with the question whether the conclusion of unreasonableness is justified by the record.
The meaning of the term “unreasonable” as used in the statute has been considered in numerous opinions of this court dealing with commission orders. Early decisions dealing with the subject are collected and discussed in the case of Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985, wherein many synonyms for the term “unreasonable” are listed by Justice Dawson who then presents a framework for judicial review in this language:
“. . . It is only when such determination is so wide of the mark as to be outside the realm of fair debate that the courts may nullify it. The same regard should be given to the informed conclusions of fact made by the public service commission. Where its findings of fact are based upon substantial evidence and the other matters shown by the record with which that tribunal is authorized to deal, a court is not justified in setting its orders aside because the record shows that a different order or decision than the one made by the commission could fairly have been based thereon. Indeed, there are narrow limits to the authority which the legislature could confer on the court to deal with the sort of powers which may properly be vested in an official board like the commission.” (p. 662.)
The guidelines laid down by Justice Dawson for judicial testing of the reasonableness of an order of the commission have been recognized in many later cases. The language used by Justice Dawson was closely followed by Justice Schroeder speaking for the court in Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., 182 Kan. 603, 322 P. 2d 715:
“It may be said that an order of the Commission is unreasonable if under all the circumstances it is unfair, unwise and unjust. This question must be determined by the trier of the facts. It is only when such determination by the trier of the facts finds the order so wide of the mark as to be outside the realm of fair debate that the courts may nullify it. The same regard should be given to the informed conclusions of fact made by the Commission. . . .” (p. 611.)
Our most recent pronouncement is found in Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660, wherein after a comprehensive summarization of cases, pertinent statutes and rules of the commission, Justice Fatzer speaking for the court said:
“The proceding on judicial review is not a trial, as that term is used in tire code of civil procedure. The proceeding is tried before the commission in its entirety where the commission hears the witnesses and takes all the evidence. (K. S. A. 66-118d.) The review by the district court is solely upon the record made before the commission ‘for the purpose of having the lawfulness and reasonableness of the original order or decision or the order or decision on rehearing inquired into and determined/ and ‘the district court hearing said cause shall have the power to vacate or set aside such order or decision on the ground that such order or decision is unlawful or unreasonable/ But ‘[n]o court of this state shall have power to set aside, modify or vacate any order or decision of the commission, except as herein provided.’ (emphasis supplied).
“As indicated, the end result of judicial review is to determine whether the commission’s order is lawful or reasonable. In making such review, the district court is required to search the record to ascertain whether there is substantial evidence to support the basic findings of fact of the commission, and it is not authorized to substitute its judgment for findings of the commission if the matter is within the realm of fair debate. . . .” (pp. 233, 234.)
The responsibility of this court in reviewing district court judgments in such cases is set out in Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515, in these words:
“The district court in reviewing an order of the Commission acts in an appellate capacity.
“This court, on appeal from the district court in such cases, is reviewing the propriety of the decision of an inferior appellate tribunal. The legislature has not defined the limits or responsibility of this court on appeal. However, its responsibility is apparent. It must review the record for the purpose of determining whether the district court observed the requirements and restrictions placed upon it by statute. (Thompson v. Commerce Com., 1 Ill. 2d 350, 115 N. E. 2d 622.)
“The statute providing for proceedings on appeal from an order of the Commission is a directive to the district court as to the nature and extent of its review, and on appeal to the Supreme Court it must determine whether the district court has properly determined the matters to which its powers and duties extend. (Birmingham Electric Co. v. Alabama Pul. Serv. Com’n., 254 Ala. 140, 47 So. 2d 455.)” (p. 49.)
The above discussed principles and rules govern the functions of the trial court on review and this court on appeal, keeping them in mind, we shall consider some additional principles established by this court which we believe particularly applicable to these proceedings.
This is the first appearance before this court of a proceeding in which a railway carrier seeks authority to serve its freight customers by mobile agencies. Applicant makes no claim that it is sustaining losses at the stations involved, it candidly declares that its application is based upon its desire to eliminate unnecessary expense while continuing to render adequate service to the public. Our reading of the record reveals that much can be said in favor of applicant’s efforts to perfect a more economical and efficient system for affording agency services. This court has recognized the principle that it is the function of the commission to aid in the elimination of unnecessary expenditures, not to prepetuate them, and to require maintenance of operations where need for service no longer exists, constitutes economic waste which the commission was created to eliminate. Where the commission has ignored this principle or faffed to weigh costs against loss of public benefits or insisted on continuance of services in the absence of public need, the abuse of regulatory authority has been consistently embed by judicial intervention. (Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., supra; Cities Service Gas. Co. v. State Corporation Commission, supra; Missouri Pacific Rld. Co. v. State Corporation Commission, 192 Kan. 575, 389 P. 2d 813.
Where a railroad sought to discontinue an agency station in Missouri-Kansas-Texas Rld. Co. v. City of Savonburg, 186 Kan. 120, 348 P. 2d 1015, we employed a test expressed in these terms:
. . In determining the question where an absolutely necessary service is not involved, an important test is whether the public good derived from maintenance of the agency station outweighs the expense to the railroad of continuing such agency. In other words, whether the economic waste, if any, caused by the operation of the agency outweighs the the benefits and convenience to the public. . . .” (p. 127.)
See, also, Atchison, T. & S. F. Rly Co. v. State Corporation Comm., 182. 603, 322 P. 2d 715.
The findings and conclusions of the commission and the trial comt reveal that each employed, in substance, the test referred to above.
The commission weighed the savings which might be accomplished by applicant against public convenience and necessity and the duty of applicant to furnish reasonably efficient and sufficient service (K. S. A. 66-107) and found the balance adverse to applicant.
The trial court on the other hand concluded the economic gain of applicant would outweigh the loss of benefits and convenience to the public, resulting from mobilized agencies.
Boded down to simple terms, the ultimate question is whether the issue should be resolved by regulatory or judicial determination. The answer must be that where the reasonableness of a commission order is a matter in the realm of fair debate, the court should not substitute its judgment for that of the commission. (Southwestern Bell Tel. Co. v. State Corporation Commission, supra; Atchison, T. & S. F. Rly Co. v. State Corporation Comm., supra; Southern Kansas Stage Lines Co. v. Public Service Comm., supra.)
There was testimony by substantial shippers on each of the four routes involved to the effect that their shipping operations would be seriously inconvenienced and, in some cases concerning the signing of bills of lading, financial hardship would result. The freight business furnished applicant by the shippers on these four routes raises their need and convenience far above the convenience of an individual doing a limited business as in the case of Missouri Pacific Rld. Co. v. State Corporation Commission, 192 Kan. 575, 389 P. 2d 813.
We believe the trial court understood and performed its function in searching the record and measuring the commissions findings against the evidence from which they were deduced in testing the reasonableness of the commissions order. But it is only when the commission s order is found to be so wide of the mark as to be outside the realm of fair debate that courts may nullify it. (Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., supra.)
We think the rule stated is clearly applicable to the issue developed in this case and it compels our conclusion that the commission’s order must be sustained.
The judgment of the district court is reversed with instructions to reinstate the commission’s order, except that portion dealing with K. S. A. 66-112.
Schroeder, J., dissenting: In my opinion the trial court properly found the action of the State Corporation Commission, denying the Missouri Pacific Railroad Company’s application to substitute service by mobile agency routes for services presently afforded by single and dualized station agencies, was arbitrary and unreasonable.
On appeal to this court the commission contended the proposal of the railroad company would result in the closing of its stations and the discontinuance of the services of a railroad agent as that term is understood. The trial court concluded the application of the railroad company involved herein “is not one relating to the discontinuance of the services of a railway agent or the closing of a railroad station.” (p. 613.) On this point the court in its opinion affirms the trial court.
It must, therefore, be assumed the findings made by the commission were all premised upon the assumption the proposal of the railroad company would result in the closing of its stations and the discontinuance of the services of a railroad agent at the stations involved.
Obviously, under these circumstances, the court in its opinion has had a difficult time walking the tight rope to the other side— affirming the trial court on the point above mentioned, but reversing as to its finding of arbitrary and unreasonable conduct on the part of the commission. Among other things, the court in its opinion resorts to a discussion of negative evidence. For example, it says, “Applicant makes no claim that it is sustaining losses at the stations involved.” (p. 625.) Actually, the railroad company claims it will be saving approximately $348,000 each year, and that the economical and efficient management of the railroad requires that its application be granted.
Governmental agencies sometimes forget that under our form of government economic activity is conducted under the free enterprise system. This simply means that after all of the expenses are paid, the business must continue to operate on the meager profits remaining.
This court has recognized it is the function of the State Corporation Commission to aid in the elimination of the unnecessary expenditures, not to perpetuate them; and to require maintenance of operations where need for service no longer exists constitutes economic waste which the commission was created to eliminate. Where the commission has ignored this principle or failed to weigh costs against loss of public benefits, or insisted upon continuance of services in the absence of public need, the abuse of regulatory authority has been consistently curbed by judicial intervention. (Atchison, T. & S. F. Rly. Co. v. State Corporation Comm., 182 Kan. 603, 322 P. 2d 715.)
The findings of the commission upon which this court places reliance are all based upon the refusal of the commission to attribute good faith to the railroad company’s proposals. Giving full faith to these proposals, the railroad agent’s services are as close to the shipper as his telephone. He will have an agent available to sign bills of lading at the point of shipment. Under the railroad’s proposal the need to have bills of lading signed immediately for the shipper upon a consignment of goods would be met by designating a local banker or other businessman to be the agent of the railroad for this purpose.
The commission, by finding many of the proposals made by the railroad company to be speculative, is simply refusing to attribute good faith to its proposals. If such findings were sufficient to uphold the commission’s action, the railroad would be forced to the expense of investing in its mobile agency units; it would be required to make binding arrangements at local shipping points for limited agency services; and it would have to conduct a trial run for a period of time to demonstrate the soundness of its proposals. Obviously, in the interest of economics, this was not done by the railroad. It first sought the approval of the commission before making such changes, as it should do.
If the commission is permitted to grant or deny a proposal to eliminate waste in the operation of a railroad simply upon a determination of the applicant’s good faith in submitting the proposal, there is no need to hear those who protest the proposal. In my opinion the commission is required, absent evidence to the contrary, to attribute good faith to a proposal such as the one presently under consideration. Otherwise it could lawfully exercise arbitrary power.
In the event the proposal were to be granted by the commission and deficiencies or problems were experienced, the commission has the power to direct corrective measures. So it may fairly be said the shield of speculation behind which the commission seeks refuge is little more than an attempt to cover its arbitrary and unreasonable action.
Here the trial court found, and properly on the record, that the commission arbitrarily and unreasonably denied the railroad the right to eliminate economic waste in the operation of its railroad, in a situation where this court found, upon the record, that granting the proposal would not result in the discontinuance of the services of a railway agent or the closing of a railroad station.
The court in its opinion places considerable weight upon the testimony given by shippers who testified in protest; this, of course, to bolster its inconsistent position. Obviously, those who have protested the proposal of the railroad company are doing so without any experience whatever in the shipment of their goods under the proposal suggested. Their testimony at best under these circumstances is purely speculative.
Reviewing this case beginning with the proceedings before the commission, the action taken by the trial court, and the opinion written for the court, it is readily apparent the whole case is based upon a finding by the commission that the applicant’s proposal to create mobile agency routes would result in the closing of the railway company’s stations at the points in question and the discontinuance of the services of a railroad agent. When this finding was exposed by the trial court as erroneous, and affirmed by this court on appeal, the whole basis for the commission’s action collapsed.
It is respectfully submitted the judgment of the lower court should be affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, Philip L. Ronnau, obtained a default judgment against defendant Caravan International Corporation (Caravan), and then obtained an order of garnishment directed to the appellee, Insurance Company of North America (INA), which denied indebtedness or liability to Caravan. The garnishment proceedings involved the construction of an indemnity policy issued by INA in favor of Caravan and styled Blanket Honesty Bond No. S-345794, and two claims by appellant under that policy. Following trial by the district court, it made findings of fact and conclusions of law, and entered judgment discharging INA, as garnishee. This appeal followed. We affirm.
The facts are undisputed. On December 3, 1965, the appellant commenced the action against Caravan and one John T. Doyle, former president of Caravan. The petition was drawn in two counts: Count I sought damages against Caravan for breach of contract, and Count II sought compensatory and punitive damages against Caravan and Doyle for fraudulent representations allegedly made by Doyle and other employees of Caravan. On or about December 10, 1965, INA received a copy of the petition from the appellant.
On June 8, 1966, the district court entered default judgment against Caravan and in favor of appellant on Count I in the amount of $101,874.22 with interest, and on Count II in the amount of $32,019.22 compensatory and $25,000 punitive damages, together with interest. The costs were taxed to Caravan. The judgment was entered pursuant to K. S. A. 60-237 (b) (2) (III), as a sanction against Caravan for its failure to produce documents as a part of discovery.
On September 26, 1966, the appellant forwarded INA a copy of the journal entry of judgment entered against Caravan and in favor of the appellant, and demanded payment of the judgment rendered on Count II of the petition from INA under the indemnity bond. INA refused to satisfy the judgment.
In this case, the pleadings, the findings and conclusions of the district court, a summary of the evidence, and the judgment are all properly incorporated in the record, and, in addition thereto, a statement is contained of so much of the proceedings as is necessary to present the errors complained of. The parties’ pleadings framed the issues. As indicated, INA’s verified answer, as garnishee, denied indebtedness or liability to Caravan. The appellant’s reply alleged INA was obligated and indebted to Caravan on the basis alleged in Claims One and Two of the reply.
Claim One was based on the judgment rendered against Caravan and in favor of the appellant in the amount of $57,019.22 (compensatory and punitive damages) together with interest, based upon the tortious conduct of officers, agents and employees of Caravan as alleged in Count II of the petition, which appellant asserted to be within the coverage of the Blanket Honesty Bond indemnifying Caravan against,
“. . . any loss of money or other property, belonging to the Insured, or in which the Insured has a pecuniary interest, or for which the Insured is legally liable, or held by the Insured in any capacity whether the Insured is legally liable therefor or not, through any fraudulent or dishonest act or acts committed by any of the Employees . . . acting alone or in collusion with others . . . which the Insured shall sustain and discover as provided in Section . . .”
The bond further provided that upon knowledge or discovery of loss under the bond, the insured shall:
“(a) give notice thereof as soon as practicable to the Underwriter or any of its authorized agents, and (h) file detailed proof of loss, duly sworn to, with the Underwriter within four months after the discovery of loss.”
It further provided:
“No action shall lie against the Underwriter unless as a condition precedent thereto, there shall have been full compliance with all the terms of this bond, nor until ninety days after the required proofs of loss have been filed with the Underwriter . . .”
Claim Two was based upon an unliquidated claim and proof of loss which Caravan made under the Blanket Honesty Bond in July, 1965. The claim and proof of loss was in the total sum of $16,394.06 for loss of money or property belonging to the insured, or in which the insured had a pecuniary interest, or which was in the possession of the insured, and alleged that Doyle misappropriated corporate funds to his personal use in the amount of $4,782.96, and that the sum of $11,611.10 was incurred by Caravan for rent and salaries through Doyle’s acts in expending corporate funds contrary to specific instructions of, and without the knowledge of, its Board of Directors.
With respect to Claim One, the district court concluded the bond issued to Caravan by INA did not insure Caravan against liability to third parties and imposed no obligation upon INA to indemnify creditors of Caravan, such as the appellant; that the bond was not a third party beneficiary contract, nor a contract of insurance against liability; that the purpose and intent of the bond was to indemnify Caravan against direct losses of money or property through employee dishonesty — not to insure Caravan against liability to third parties; that Caravan had not sustained a direct loss of money or property by reason of appellant’s judgment, and that the judgment was not a loss to Caravan within the coverage of the bond.
The court further found that, assuming the appellant’s judgment was a loss to Caravan within the coverage of the bond, which it did not so conclude, INA’s obligation to Caravan was dependent upon compliance with the bond requirements that it give notice of such loss to INA as soon as practical and file sworn detailed proof of the loss, and that the lack of proof that such requirements were met, or waived by INA, negated its obligation to Caravan on the bond.
We note here the appellant introduced no evidence that Caravan took any steps toward making any claim against INA on the bond by reason of appellant’s judgment.
Concerning Claim Two, the district court found and concluded that, among other things, Caravan’s claim against INA was unliquidated, and the amount payable to Caravan under the bond, if any, was not measurable by the terms of the bond; that Caravan’s claim against INA was not subject to garnishment, and could not become so until such time as INA’s liability or indebtedness to Caravan was established and determined as between the parties to the bond; that appellant, as a judgment creditor of Caravan, had no standing in the garnishment proceedings to litigate Caravan’s claim against INA on the Blanket Honesty Bond; that Caravans proof of loss on the claim form was admissible only to' prove compliance with policy terms regarding notice and proof of loss — it was not admissible as evidence in the case generally and had no probative value to establish loss, and, further, that item 5 of the Claim (for rent and salaries) was not a claim for loss within the coverage of the Blanket Honesty Bond, since the bond did not insure Caravan against the exercise of poor business judgment or extravagance in incurring business expense. Concluding, the district court held that appellants evidence did not establish a loss sustained by Caravan within the coverage of the Blanket Honesty Bond, and discharged INA from all liability to the appellant.
Again, we here note that following INA’s denial of Caravan’s claim and proof of loss on August 27, 1965, Caravan took no further action on the claim.
The only question upon the record before us is, what judgment should be given upon the law and the facts as found by the district court. We shall set forth the appellant’s contentions with respect to Claims One and Two and discuss the correctness of the district court’s conclusions in their respective order.
The appellant maintains that, in support of Claim One, the focal point of this issue is the fact the Blanket Honesty Bond is, at least in part, a policy of liability insurance, which insures against liability of Caravan to third persons, including himself. He contends that one policy of insurance may indemnify against both direct loss and against liability. He asserts the policy indemnifies or insures against four conditions, and that the third coverage — loss of money or other property for which the insured is legally liable — in consequence of fraudulent and dishonest acts of Caravan’s employees, indemnifies against both direct loss and against liability. He argues that INA, as garnishee under the policy, agreed to insure Caravan for any loss of money or other property for which it was “legally liable”; that Caravan sustained a loss by the fraudulent conduct of its employees, and legal liability therefor was established by the judgment below in favor of appellant; that to hold otherwise would be to eliminate the words “for which the Insured is legally liable” from the policy, which cannot be done; that the words are clear and unmistakable and are to be construed in their natural and ordinary meaning; that no other provisions of the policy control their meaning, and the indemnity being against liabilty under the third coverage of the policy, INA became liable to appellant upon determination of Caravan’s liability tO' him by reason of the judgment rendered on Count II of the petition.
We cannot agree with appellant’s construction of the bond. The insuring clause and other pertinent provisions of the bond have been set forth. In clear and unambiguous terms, INA agreed to indemnify Caravan against loss of money or other property caused by “fraudulent or dishonest” acts of its employees. The category of insurance contracts into which the Blanket Honesty Bond falls is termed fidelity guaranty insurance. A fidelity bond is an indemnity insurance contract whereby one for consideration agrees to indemnify the insured against loss arising from the want of integrity, fidelity or honesty of employees or other persons holding positions of trust. Such a contract is considered to be one on which the insurer is liable only in the event of a loss sustained by the insured. It is direct insurance procured by him in favor of himself, as contrasted with bonds running to’ the benefit of members of the public harmed by the misconduct of the covered individual, which bonds are third-party beneficiary contracts. (13 Couch on Insurance 2d, §§ 446:1,446:2.)
For the insurer to be liable to its insured on a contract of employee fidelity insurance, the insured must sustain an actual loss of the nature insured against. The rule is stated in 13 Couch, op. cit., supra, § 46:219, p. 253, as follows:
“The contract of fidelity insurance is a contract against loss. It is a contract of indemnity on which the insurer is liable only in the event of loss sustained by the obligee in consequence of conduct of the nature specified in the contract. It has been held that there can be no recovery on a fidelity bond in the absence of loss or damage to the insured, and lack of any pecuniary loss by the obligee from the wrongful acts constitutes a good defense, since in such case no recovery can be had.”
See, also, 35 Am. Jur., 2d, Fidelity Bonds and Insurance, § 39, p. 530; 41 Am. Jur., 2d, Indemnity, § 29, p. 720.
As indicated, the appellant maintains the Blanket Honesty Bond insured against the liability of Caravan to third persons, and that INA became obligated on the bond to Caravan when it became liable to the appellant by reason of his judgment. Legal liability of the named insured to a third party does not, however, create a legal liability of INA to third parties under the bond. The claim of the third party appellant is not against INA, but against Caravan for failure to pay the judgment. Since contracting parties are presumed to act for themselves, an intent to benefit a third person should be clearly expressed in the contract. (American Empire Ins. Co. of S.D. v. Fidelity & Dep. Co. of MD., 408 F. 2d 72, 77.)
Manifestly, it would not seem from the nature of a fidelity bond that uninsured third parties should be allowed to recover. Nowhere in the language of the bond do we find that INA assumed an obligation to respond to liability of Caravan to third persons, such as the appellant here. The obligation expressed is to indemnify Caravan against loss of money or other property of a described class. The obligation of the bond runs to Caravan, to respond to actual loss it sustains, not the loss of third persons. Under no reasonable construction of the bond can it be said to insure against Caravan s liability to third persons, nor can it be considered to be a third-party beneficiary contract. It was a contract designed solely for the benefit of the formal parties thereto, insuring against loss to Caravan of the described money or property due to the fraudulent or dishonest acts of its employees.
We are of the firm opinion that INA’s contract meant exactly what it said, that is, it insured Caravan only against the defalcations of its employees. The protection of the bond was for the protection of Caravan alone. It was in the nature of a personal insurance contract. The appellant was not a party to the contract, was not named or referred to therein, and had no legal rights thereunder. In short, INA’s liability does not arise until Caravan has sustained a proven loss.
A similar question was presented in Carter v. Insurance Co., 76 Kan. 275, 91 Pac. 178, and this court said:
“The liability of the insurance company- under the policy must be measured by its terms. It will be observed that the contract of the insurance company was with the bridge company, and not with the employees. The contract was indemnity against loss from liability, and not insurance against liability. In its general features it provided for making good the loss suffered by the assured, or rather for reimbursing it to the extent of its loss. Until the assured had met with a loss there was no occasion to pay indemnity — no reason to reimburse until something had been paid by the assured . . .” (1. c. 277, 278.)
There is a well-recognized difference between contracts of indemnity against loss and contracts of indemnity against liability. In the former, the insurance company does not become liable until the insured has suffered a proven loss, whereas in the latter, the obligation of the insurance company becomes fixed when the liability attaches to the insured. (Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918; Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276.) In the latter case we used the following language:
“. . . The distinction, as generally stated, between liability insurance’ and ‘indemnity insurance’ is simply that in tire former the coverage attaches when the liability attaches, while in the latter no action lies against the insurer until an actual loss in the discharge of the liability has been sustained by the insured . . .” (1. c. 735.)
The bond upon which the appellant is attempting to recover is a personal insurance contract running between INA and Caravan, which indemnifies only the insured. As we have seen, the terms of such a bond are not broken until the insured — Caravan—has sustained an actual loss. No loss of money or property was sustained by Caravan as a result of the judgment, and INA was under no obligation to the appellant.
The appellant’s reliance upon Alberts v. American Casualty Company of Reading, 88 Cal. App. 2d 891, 200 P. 2d 37, is misplaced. That was an action brought by the owner of a hotel to recover from its insurer under an employee fidelity bond insuring against loss of money belonging to the insured, or in which the insured had a pecuniary interest, or for which the insured was legally liable, or held by the insured in any capacity whether the insured was legally liable therefor or not. The hotel manager disappeared with hotel receipts and with a sum of money belonging to a guest, which was in the hotel’s custody for safe keeping. The guest sued the plaintiff for the money deposited, which suit was pending at the time the plaintiff commenced his action against the insurer. The guest was made a party defendant in the plaintiff’s action. He answered, and prayed for and was granted judgment against the plaintiff, and upon payment thereof, he was enjoined from prosecuting his pending action. The court allowed recovery by the plaintiff for both sums, which clearly were losses to the insured within the coverage of the bond — money belonging to the insured (receipts), and money for which the insured was “legally liable,” or held by the insured in any capacity whether the insured was legally liable therefor or not (guest’s money in hotel’s custody). On the facts of Alberts, which involved loss of money taken from the possession of the insured by a dishonest employee, the case is clearly not authority for appellant’s position the bond in question insures against liability to a third person as a result of fraud perpetrated by the insured’s employee against such third person.
The district court did not err in concluding the bond issued to Caravan by INA did not insure Caravan against liability to third parties, and imposed no obligation upon the insurer to indemnify Caravan’s creditors.
Claim Two of appellant involves the right of a judgment creditor to subject to garnishment an unliquidated claim of the judgment debtor against its insurer, which arose out of alleged tortious conduct of the debtor’s employees.
The district court found Caravan’s claim made on the Bond in July, 1965, was denied by INA, and following denial, was not further pursued by Caravan. The appellant concedes that under the exemption to garnishment set forth in K. S. A. 60-724 ( 2), the claim in question would not be subject to garnishment if it were unliquidated, and did not arise under contract. No extended discussion of the point is required. The district court found the claim was unliquidated, and we are of the opinion it did not arise out of contract within the meaning of 60-724 ( 2). The claim was based upon alleged tortious acts of Doyle in misappropriating corporate funds to his personal use, and for rents and salaries. The court correctly found there was no coverage under the bond for loss with respect to rent and salaries. The part of the claim dealing with misappropriation of corporate funds was tortious. It was held in Lewis v. Barnett, 139 Kan. 821, 33 P. 2d 331, 93 A. L. R. 1082, that a defendant’s claim against a garnishee must be liquidated to be reached by the defendant’s creditors. In order for a garnishee to be subject to a judgment, the indebtedness which he may owe the defendant on a claim not arising out of contract must be liquidated as to amount. Tort claims are liquidated only by judgment or settlement. (Gard, Kansas Code of Civil Procedure, Attachment and Garnishment, § 60-724, p. 606.) The unliquidated claim was clearly not subject to garnishment, and the district court did not err in concluding that Caravan s claim against INA was not subject to garnishment. (Reed v. Ziegler, 175 Kan. 635, 265 P. 2d 855.)
Other points have been raised and briefed by the parties, but in view of conclusions heretofore announced, it is unnecessary to discuss and decide them.
We have carefully examined the record and find no error. The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Abbott, J.:
This is a subrogation case wherein the employer and its insurance carrier are seeking to recover workers compensation benefits paid to an injured worker for injuries caused by a third-party tortfeasor. The third party settled with the injured employee. This appeal involves whether the employer and its insurance carrier are entitled to recover part of the settlement as subrogation for workers compensation payments made to the injured worker.
Bettis Asphalt and Construction, Inc., (Bettis) is the employer, and National Indemnity Company (National) is Bettis’ insurance carrier. The injured employee is Harold L. McGranahan, and the negligent third party is Donald W. McGough, who was acting in the scope of his employment as a truck driver for Umthun Trucking Company (Umthun).
On July 6, 1984, McGranahan was sitting in the driver s seat of a parked pickup truck when it was struck by an Umthun truck driven by McGough. At the time of the accident, McGranahan was working and on the job for Bettis. McGranahan suffered injuries to his right knee. He filed a workers compensation claim and received benefits totaling $12,616.29 that included $3,178 in temporary total compensation, $3,104.99 in medical expenses, and $6,330.30 for permanent partial disability.
McGranahan sued McGough and Umthun. The trial court allowed Bettis and National to intervene pursuant to K.S.A. 1990 Supp. 44-504(b).
On November 9, 1988, McGranahan, McGough, and Umthun entered into a stipulation and confession of judgment, providing:
“1. That an automobile accident occurred between plaintiff and defendant McGough on July 6, 1984, on the east Turnpike loop of 1-70 in Topeka, Shawnee County, Kansas.
“2. That at the time of the accident, plaintiff was parked on the side of the road performing duties in the course of his employment with Bettis Asphalt and Construction Company, Inc.
"3. At the time of the accident, defendant McGough was operating a semi-tractor trailer during the course and scope of his employment with Umthun Trucking Company, and struck plaintiffs parked vehicle causing injury to plaintiff and causing plaintiffs vehicle to be a total loss.
“4. Plaintiff s left elbow and right knee sustained injury as a result of the collision. The injury to plaintiffs left elbow resolved in the few months following the accident.
“5. Plaintiff underwent arthroscopic surgery on January 10, 1985, and was found to have synovitis and debris on the medial aspect of the joint. Further, a large chondral defect on the lateral portion of the medial femoral condyle, approximately I to IV2 cm. in diameter, directly in the weight bearing line, was observed. Multiple small drill holes were placed in the area in an attempt to revascularize. Plaintiff was diagnosed as having post-traumatic degenerative changes in the knee. The natural history of post-traumatic degenerative changes in the knee are progressive and plaintiff was not expected to regain lull extension nor to have a normal gait based upon the post-traumatic arthritis of the knee.
“6. Plaintiff was caused to incur medical bills in the amount of $3,104.99, and lost wages in the amount of $9,245.60.
“7. Plaintiffs wife, Liz McGranahan has been caused to incur loss of service as a result of the injury to plaintiffs knee in that plaintiff is unable to complete the yard work and maintenance work of the home and auto mobiles as he did prior to the accident. This loss of service for Liz Mc-Granahan will continue indefinitely into the future.
“8. Plaintiff has been caused to incur past and future pain and suffering in relation to the pain in his right knee that has been present since the date of the accident. Plaintiff also suffers from his knee giving away on occasion and walking with a limp. The pain in the right knee will continue indefinitely into the future.
“During the course of the litigation, defendant through a witness of the accident, asserted comparative fault on the plaintiff contending that plaintiff s vehicle was improperly parked into the roadway causing a hazardous condition to exist. Further, defendant contended that plaintiffs degenerative changes in his right knee preexisted the accident and were not caused in whole or in part by the accident.
“Plaintiff contended that plaintiff would be caused to incur future additional medical expenses related to his right knee condition including office evaluations, analgesics, nonsteroidal anti-inflammatory medications, and injections of the joint.
“Based on the above stipulations defendant seeks to confess judgment as follows; past and future pain and suffering, for plaintiff, Harold McGranahan $6,000.00; past and future loss of service for Liz McGranahan, $3,000.00 and $1,000.00 for reasonable and necessary medical expenses related to plaintiffs injury for a total of $10,000.00.
“Plaintiff and defendants advise the Court that they are willing to stipulate to these facts in order to provide a basis for the Court to enter judgment against defendants in favor of plaintiff.
“The parties stipulate that any such judgment shall merge all of plaintiffs claims that were raised or could have been raised herein into said judgment, and the parties agree that any such judgment merging all such claims, shall be treated by the parties as a conclusive and final disposition of all plaintiffs claims.”
McGranahan, McGough, and Umthun presented the stipulation and confession of judgment to the trial court for approval. At the hearing, McGranahan’s counsel stated:
“There will be, I am sure, a side issue to this, and that will be [counsel for intervenors] will be claiming that we will owe the entire judgment to the intervenor for a workmen’s comp subrogation. It will be our contention that we do not owe them the subrogation based on the itemization of the judgment. The facts simply are this, are that the intervenor had an approximate $12,000 lien in this case; based on the facts developed through discovery I was very concerned that I couldn’t even get a $12,000 judgment and that if I went ahead and did and got it all in medical and wages then I would have to end up doing all the work for the work comp carrier and my plaintiff would be sitting there holding the bag. So, we have stipulated to facts which I think are reasonable, under the circumstances, based upon the stipulations, and that way the work comp . arrier can’t force the plaintiff to take the position he didn’t want to take, but I think that will probably be briefed following this judgment.”
Bettis and National objected to. the trial court’s approval of the stipulation, arguing that the purpose of the stipulation was to circumvent the subrogation statute. Counsel for intervenors pointed out that although McGranahan had received over $9,000 in compensation for lost wages, the stipulation provided no recovery for lost wages.
The trial court found that based on the stipulated facts, the judgment was fair, just, and equitable. The trial court entered judgment pursuant to the stipulation and confession of judgment.
The trial court allowed Bettis and National to recover the $1,000 in medical expenses less attorney fees of one-third. The trial court held that the settlement of $6,000 for pain and suffering and $3,000 for past and future loss of services to McGranahan’s wife were not subject to subrogation. The trial court relied on the following statement in Houston v. Kansas Highway Patrol, 238 Kan. 192, 196, 708 P.2d 533 (1985): “Had the settlement documents clearly stated a certain amount was specifically for these personal noncompensable losses and had such amount been supportable in fact (as opposed to an effort to circumvent the operation of the statute), a much stronger argument in support of claimant’s position could have been made.” The trial court found that this judgment stated a certain amount for noncompensable losses that were supportable in fact.
Bettis and National appealed. In McGranahan v. McGough, 15 Kan. App. 2d 24, 802 P.2d 593 (1990), the Court of Appeals reversed the trial court’s decision denying subrogation by Bettis and National for the awards for pain and suffering and for loss of services. The Court of Appeals stated:
“To allow plaintiffs and defendants to specify a particular element of personal injury damage in their settlement so as to defeat subrogation of that award to the employer who has compensated the employee for that personal injury defeats the intent of K.S.A. 1989 Supp. 44-504. We believe that all elements of personal injury damages, including medical expenses, lost wages, disability compensation, pain and suffering, and loss of services, should be subject to subrogation.” 15 Kan. App. 2d at 29-30.
Judge Brazil concurred with subrogating damages awarded for pain and suffering, but dissented to subrogating damages awarded for loss of services. Judge Brazil reasoned that in an action for loss of services, the worker is seeking damages not recoverable under the act. Because the employer has paid nothing to the injured worker for loss of services, any recovery for loss of services should not be subject to subrogation. 15 Kan. App. 2d at 31.
This court granted McGranahan’s petition for review.
The issue raised is one of statutory construction, i.e., what did the legislature intend when it adopted K.S.A. 1990 Supp. 44-504(b) and, specifically, when it used the words “compensation and medical aid provided by the employer”?
That statute provides that the employer can recover workers compensation and pursue a remedy against a negligent third party subject to the subrogation rights of the employer. Subsection 504(b) reads:
“In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against such recovery and the employer may intervene in any action to protect and enforce such lien.” (Emphasis supplied.)
The amicus curiae brief suggests that K.S.A. 1990 Supp. 44-504(f) is significant. That subsection defines “compensation and medical aid” as follows:
“As used in this section, ‘compensation and medical aid’ includes all payments of medical compensation, disability compensation, death compensation, including payments under K.S.A. 44-570 and amendments thereto, and any other payments made or provided pursuant to the workers compensation act.” (Emphasis supplied.)
As we read the italicized portion of 504(f), it appears to modify “any other payments” and thus not to apply to the rest of the paragraph. We deem this of no significance to the issue before us. The issue is whether the employer (its insurance carrier in this case) is reimbursed first out of any recovery or whether a judgment or settlement can be structured so that the injured employee can recover for losses not paid by the employer or its insurance carrier, even though this results in the employer not being reimbursed fully for workers compensation benefits paid to the employee.
The rules of statutory construction are well established. In State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987), this court stated:
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.”
The question in the case at bar concerns the extent of an employer’s subrogation rights. “The extent and nature of the subrogation rights of an employer under the workmen’s compensation statute are matters for legislative determination.” Negley v. Massey Ferguson, Inc., 229 Kan. 465, Syl. ¶ 1, 625 P.2d 472 (1981).
We have said many times the workers compensation act is complete in itself and we do not look outside the act for guidance. See Hunter v. General Motors Corporation, 202 Kan. 166, 172, 446 P.2d 838 (1968); Leslie v. Reynolds, 179 Kan. 422, 427, 295 P.2d 1076 (1956); Denton v. Sunflower Electric Co-op, 12 Kan. App. 2d 262, 269, 740 P.2d 98 (1987), aff'd 242 Kan. 430, 748 P.2d 420 (1988).
The language of K.S.A. 1990 Supp. 44-504(b) explicitly states the employer is allowed to subrogate to the extent the employer has paid compensation and medical aid. This indicates a recovery that is not compensable under workers compensation is not subject to subrogation. Subrogation is not allowed because the award does not duplicate the compensation and medical aid provided, by the employer. Subrogation is permitted to prevent double recovery by the employee. This interpretation is consistent with a 1990 Court of Appeals case, Lemery v. Buffalo Airways, Inc., 14 Kan. App. 2d 301, 307-08, 789 P.2d 1176, rev. denied 246 Kan. 767 (1990): “By adopting K.S.A. 1989 Supp. 44-504, the legislature has attempted to achieve two things: (1) to preserve an injured worker’s cause of action against third-party tortfeasors and (2) to prevent a double recovery by the employee from both the workers compensation fund and a third-party tortfeasor.” See also Kelly, Survey of Kansas Law: Workers’ Compensation, 27 Kan. L. Rev. 377, 389 (1979) (“Double recovery has been pre vented by providing that in the event of recovery by the worker, the employer is subrogated to the amount of compensation payments made to the date of recovery . . . .”).
The Court of Appeals stated that “all elements of personal injury damages, including medical expenses, lost wages, disability compensation, pain and suffering, and loss of services, should be subject to subrogation.” 15 Kan. App. 2d at 30. If the legislature’s intent in enacting K.S.A. 1990 Supp. 44-504 is, at least in part, to prevent double recovery by the employee, then the Court of Appeals’ decision goes beyond preventing double recovery. Not all personal injury claims are compensable under workers compensation.
The Court of Appeals determined that
“[g]iven the history of 44-504, there is no question the legislature intended awards for personal injury to be subject to subrogation in situations similar to the one at bar. Pain and suffering damages are traditionally a portion of damages recoverable in personal injury actions. Indeed, Kansas courts have recognized this in considering subrogation rights in workers compensation cases. See, e.g., Negley v. Massey Ferguson, Inc., 229 Kan. at 468 (in event employee recovers, employer is subrogated to extent of compensation paid by employer); Houk v. Arrow Drilling Co., 201 Kan. at 91-92 (employer has lien of first proceeds from worker’s tort action); Moeser v. Shunk, 116 Kan. 247, 252, 226 Pac. 784 (1924) (elements of damage include pain and suffering as well as financial loss.)” McGranahan, 15 Kan. App. 2d at 27-28.
Historically, workers compensation does not compensate directly an employee for pain and suffering. In Welden v. Edgar Zinc Co., 129 Kan. 422, 283 Pac. 618 (1930), an employee was injured and received full compensation. The employee returned to work for the same employer,' performed work of the same nature, and received the same wages. The employee brought an action for additional compensation because performing this work caused him pain and discomfort.
“The fact that he did this work with some discomfort and pain might have been an element of recovery in an ordinary action to recover damages for negligence. The compensation law is a marked departure from the theory of actions based on the wrongs or negligence of employers. It is based on the theory of taxing the industry for the loss sustained by accidental injury to a workman while employed in such industry, and compensation is to be paid regardless of the negligence of the employer or even the fault of the workman. The theory is that the compensation is to be measured not as damages for pain and suffering, but for the loss sustained by the incapacity of the workman resulting from the accidental injury. . . . The industry is not to be taxed for accidental injuries beyond the workmen’s loss of earning capacity measured as the statute provides.
“An allowance for pain and suffering would be something in the nature of damages for the negligence or wrong of the defendant, which is inconsistent with the substituted remedy of compensation.” 129 Kan. at 423-25.
Workers compensation does, however, compensate for pain and suffering if it interferes with the ability to perform labor. In Trowbridge v. Wilson & Co., 102 Kan. 521, 170 Pac. 816 (1918), the plaintiff alleged that the pain induced by her injury prevented her from working. In upholding the plaintiff s claim, the Supreme Court stated:
“If pain brought about by an injury causes inability to labor, that pain is within the provisions of the workmen’s compensation act, just the same as though some part of the body had been otherwise impaired to such an extent as to render the person unable to perform labor. Compensation for loss of wages, or for loss of ability to earn wages, although that loss may be caused by pain, is not the same as damages for the pain. The former comes within the workmen’s compensation act; the latter does not.” 102 Kan. at 523.
We have little difficulty in concluding that pain and suffering is such an integral part of determining work disability that any recovery for pain and suffering is subject to the subrogation rights of an employer pursuant to K.S.A. 1990 Supp. 44-504. The Court of Appeals did not err in so holding. This result follows the majority view. See 2A Larson, The Law of Workmen’s Compensation § 74.35, 14-542 to -543 (1990) (“[I]t is quite clear . . . that the prevailing rule in the United States refuses to place an employee’s third-party recovery outside the reach of the employer’s lien on the ground that some or all of it was accounted for by damages for pain and suffering.”).
There is no majority trend regarding the subrogation of loss of services awards.
“As to the question whether the carrier’s lien extends to damages earmarked for loss of consortium, Michigan, Minnesota, and Wisconsin have held that it does not. Illinois has held that it does, and Indiana has done the same when the allocation to consortium was a transparent device to defeat the carrier’s rights. The Wisconsin court also cautioned that vigilance was necessary to prevent use of the consortium device to circumvent the carrier’s lien.” 2A Larson, § 74.36, 14-549 to -550.
If there is no third party to sue, the exclusive remedy of workers compensation bars an action for loss of services against the employer. Fritzson v. City of Manhattan, 215 Kan. 810, 813, 528 P.2d 1193 (1974).
It does not follow that because a claim is barred against an employer by a specific statute of the workers compensation act, a spouse of the injured worker cannot recover damages, which are not a part of the workers compensation payment, from a negligent third party free and clear of the employer’s statutory right of subrogation for compensation and medical aid provided by that employer.
Loss of services to a spouse is similar to damage to personal property in that both are not items of compensation considered in making a workers compensation award. In the absence of legislative intent that they should be considered as “compensation and medical aid provided by the employer,” we conclude that the legislature intended to limit the employer’s subrogation rights under K.S.A. 1990 Supp. 44-504 to those items of damages that the employer compensated the employee pursuant to the workers compensation act. This result ensures that there will be no double recovery by the employee and that the employee and those privy will retain their right to damages for injuries negligently inflicted that are not compensable under the workers compensation act.
Both parties make much of the fact that the legislature amended some sections of the workers compensation act and failed to amend other sections, arguing that the amendments and the failure to amend are favorable to both positions. The fact that the legislature did not directly respond to the dicta in Houston v. Kansas Highway Patrol, 238 Kan. 192, 708 P.2d 533 (1985), sheds no light on legislative intent. The legislature could have decided the dicta was of no import and concluded the court was stating that the employer received its money first from any recovery for an injury compensable under workers compensation. Alternatively, the legislature could have interpreted the opinion to mean that in the future, if a recovery was structured properly and supported by substantial competent evidence, the employer had no subrogation interest in payments or items awarded the injured worker that were not considered in making the workers compensation award.
The right of action for loss of services is governed by K.S.A. 23-205, which provides, in part:
“Where, through the wrong of another, a married person shall sustain personal injuries causing the loss or impairment of his or her ability to perform services, the right of action to recover damages for such loss or impairment shall vest solely in such person, and any recovery therefor, so far as it is based upon the loss of impairment of his or her ability to perform services in the household and in the discharge of his or her domestic duties, shall be for the benefit of such person’s spouse so far as he or she shall be entitled thereto.”
Workers compensation laws are designed to compensate workers for their injuries. If the alleged element of damages is loss of services, the injured party is not the worker, but his or her spouse. In contrast, K.S.A. 23-205 states such an action vests solely in the injured party, but any recovery shall be for the benefit of his or her spouse. As noted above, if there is no third-party tortfeasor, a worker cannot sue an employer for loss of services because such action is barred by the exclusive remedy of workers compensation under K.S.A. 1990 Supp. 44-501(b). Fritzson v. City of Manhattan, 215 Kan. 810. There is no similar bar, however, when a worker sues a third party under the provisions of K.S.A. 1990 Supp. 44-504.
A worker’s spouse is not compensated when the worker is injured. If an injured worker brings an action against a negligent third party for loss of services under K.S.A. 1990 Supp. 44-504 and K.S.A. 23-205, the worker is seeking damages not recoverable under the workers compensation act. Because the employer has paid nothing to the injured worker for loss of services, any recovery as a result of a loss of services action against a negligent third party is not subject to subrogation.
The dicta in Houston, 238 Kan. at 196, that “[h]ad the settlement documents clearly stated a certain amount was specifically for these personal noncompensable losses and had such amount been supportable in fact (as opposed to an effort to circumvent the operation of the statute), a much stronger argument in support of claimant’s position could have been made,” is stating that a finding must be supported by substantial competent evidence. Here, the record before us contains stipulations and records supporting the trial court’s conclusion that the injured worker and negligent third party made a “fair, just, and equitable” settlement. A question of causation and of comparative fault justified a settlement. While the evidence of loss of services is rather skimpy, we were not furnished a record of the hearing to determine the employer’s right to subrogate. We have reason to doubt that any evidence was presented, but have no way to ascertain whether any concessions were made, etc. It does not appear the employer attempted to introduce any evidence showing that the spouse did not suffer a loss in the amount claimed and stipulated to or that the parties acted in bad faith in an effort to circumvent the employer’s right of subrogation. The employer had a duty in this case to furnish a record showing the trial court erred in finding the settlement (judgment) was “fair, just, and equitable.”
We affirm the trial court’s determination that the award of $3,000 for past and future loss of services for the worker’s spouse is not subject to subrogation, and we reverse the Court of Appeals’ determination that it was. We reverse the trial court’s determination that the award of $6,000 for past and future pain and suffering is not subject to subrogation by the employer and affirm the Court of Appeals determination that it is subject to subrogation. We remand to the trial court to award attorney fees to the employee’s attorney for recovering the $6,000 for the employer’s insurance carrier.
Six, J., not participating.
Mershon, Jerry L., District Judge assigned.
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The opinion of the court was delivered by
Six, J.:
This is a contract case involving the interpretation of the newly acquired vehicle clause of an automobile insurance policy. The dispute is between two insurance companies, each with its differing view of our holding in Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P.2d 157 (1970).
Jurisdiction is under our grant of the Farm Bureau Mutual Insurance Company, Inc., (FBM) petition for review of a divided judgment of the Court of Appeals, Northern Assur. Co. of Amer ica v. Farm Bur. Mut. Ins. Co., 15 Kan. App. 2d 455, 808 P.2d 911 (1991).
Northern Assurance Company of America (Northern) appeals from an order of the trial court denying Northern’s claim for pro rata contribution from FBM based on the newly acquired vehicle coverage clause in policies FBM issued to Theodore and Laura Carlson (the Carlsons).
The issue is whether Bramlett controls, placing responsibility for coverage entirely on Northern or whether Bramlett is to be distinguished, requiring FBM coverage and pro rata payment.
Facts
The parties stipulated to the facts.
On April 6, 7, and 8, 1988, FBM insured three vehicles jointly owned by the Carlsons. FBM also insured a 1978 Ford jointly owned by Laura and her daughter. FBM insured all vehicles owned by the Carlsons on April 6, 1988. Each of the four FBM policies provided the named insured with the $25,000 statutory minimum of liability coverage.
On April 7, 1988, Laura notified FBM that the Carlsons were purchasing another car and inquired whether there would be 30 days’ coverage for the new car with FBM.
Laura was not satisfied with the FBM answer regarding coverage. On April 7, 1988, the day the Carlsons purchásed their new car, a 1983 Pontiac Parisienne, they contracted with Northern for insurance on the Pontiac. A binder was issued listing Theodore Carlson as the named insured and describing the 1983 Pontiac as the vehicle.
Within 30 days of the purchase, FBM had notice of the acquisition of the Pontiac. FBM forwarded no notice, demand, or statement to the Carlsons indicating a requirement of an additional premium. The Carlsons paid no additional premium to FBM for the Pontiac.
On April 7 and 8, 1988, a contract for insurance affording liability coverage to Theodore in the amount of $100,000 was in effect with Northern. The vehicle described in the contract was the Pontiac.
Northern’s policy provides the following: “If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits.”
On April 8, 1988, while operating the Pontiac, Theodore was involved in an automobile-motorcycle accident. The cyclist sustained fatal injuries. Northern and FBM were notified and conducted investigations with respect to the accident.
Northern made a demand on FBM to participate in the settlement or defense of any claims arising out of the injuries and death of the cyclist. FBM refused.
Northern filed this action based on the FBM policies, alleging entitlement to pro rata contribution from FBM. FBM denied coverage, contending that the Pontiac was no longer a newly acquired vehicle at the time of the accident. Under the FBM polices, the Pontiac was insured by Northern and, consequently, was an insured vehicle under the Northern policy.
The Trial Court’s Ruling
The trial court reasoned in granting judgment for FBM that the purpose of the newly acquired vehicle clause in the FBM policies was to “provide temporary coverage until some specific arrangement was made.” The Carlsons’ purchase of the Northern policy constituted a specific arrangement; thus, coverage under the FBM policies was terminated. The trial court concluded that Bramlett controlled.
Northern’s Contentions
Northern contends the FBM policies provided coverage for the Pontiac. According to Northern, there is no language in the FBM policies that would suggest to an insured that purchase of additional coverage from another company would terminate coverage under FBM’s newly acquired vehicle clause. Northern reasons that FBM is obligated to pay 50 percent of Northern’s settlement costs and expenses.
Northern argues that: (1) the FBM policies unambiguously provided coverage for the Pontiac at the instant it was purchased; (2) nothing in the FBM policy language prevents the insured from obtaining other coverage; (3) the policy language must be interpreted from the viewpoint of a reasonable insured; and (4) under the reasonable insured construction, once coverage has attached under the newly acquired vehicle clause, the insured would expect FBM coverage to continue for at least 30 days, regardless of whether the insured purchased additional or different coverage.
FBM’s Contentions
FBM contends the purpose of the newly acquired vehicle clause in the FBM policy was to provide coverage until the Carlsons obtained specific coverage on the Pontiac.
FBM reasons that Northern’s interpretation of the FBM policy language overlooks the intentions of the parties. FBM asserts that the parties only intended FBM to provide coverage until the Carlsons purchased other coverage on the Pontiac. FBM identifies three signs of the Carlsons’ intent not to insure with FBM: (1) The Carlsons’ obtaining coverage from Northern demonstrates their intent to insure the Pontiac with Northern alone; (2) no premium payments were made to FBM for coverage on the Pontiac; and (3) Theodore notified the police officer investigating the accident that Commercial Union, a/k/a Northern, was the liability carrier for the Pontiac.
Standard of Review
Our standard of review is de novo. The case is submitted on stipulated facts and documentary evidence, and we are not bound by the trial court’s construction of the FBM policy. We may construe the insurance contract and determine its legal effect. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987).
The FBM Policy Language
Each of the FBM policies insures the vehicle described in the policy declarations as well as “any additional vehicle of which you [the named insured] acquire ownership or lease during the policy period if we [FBM] insured all vehicles which you own or lease. You must, however, notify us within 30 days of its acquisition and pay any additional premium required.”
“You” as defined in the FBM policies means “the policyholder named in the declarations and spouse if living in the same household.” If the Pontiac is a newly acquired vehicle, as the Court of Appeals determined, FBM must provide coverage.
In Mah v. United States Fire Ins. Co., 218 Kan. 583, 586-87, 545 P.2d 366 (1976), we stated the rules of construction for in surance policies. The application of the Mah rules of construction leads us to conclude that the FBM newly acquired coverage clause is offered as a convenience to the insured. A purpose of the clause is to broaden the coverage available in order to provide protection at the earliest possible time needed by the insured. 12 Couch on Insurance 2d § 45.184 (rev. ed. 1981). Where specific insurance is purchased and a separate policy is issued on an undescribed vehicle, the vehicle is no longer a newly acquired vehicle under the old policy. 12 Couch on Insurance 2d § 45.192 (rev. ed. 1981); 6B Appleman, Insurance Law and Practice § 4293 (Buckley ed. 1979); Annot., 39 A.L.R.4th 229.
We have previously reviewed a similar issue in Bramlett. In Bramlett, we cited 7 Blashfield, Automobile Law and Practice § 316.3 (3d ed. 1966), as authority for the proposition that “[o]nce specific insurance is purchased and the automobile becomes described in the policy, it is no longer a ‘newly-acquired automobile’ but is a ‘described automobile’ and the terms and provisions under the ‘automatic insurance’ . . . clause are no longer applicable.” ’ ” 205 Kan. at 130.
The Court of Appeals, in reversing the trial court in the case at bar, reasoned:
“Under the plain language of the FBM policies at issue in this case, there is coverage for the Carlsons’ Pontiac. Therefore, FBM’s arguments regarding the intent of the parties are irrelevant. . . .
“To adopt FBM’s construction of the policy language would be to read into the policy words which do not there appear. FBM could have easily added an additional condition under the newly acquired coverage clause stating something to the effect that ‘coverage under this provision terminates once coverage attaches to the newly acquired vehicle under a binder or policy issued by this or any other insurer.’ ” 15 Kan. App. 2d at 462.
Bramlett was distinguished by the Court of Appeals and, consequently, was held not to control the case at bar. Three factual distinctions between Bramlett and the case at bar were noted: (1) the time of the accident; (2) the purchase of the new policy from a different carrier; and (3) the absence of what was characterized as anti-stacking language in the FBM policy. The Bramlett distinctions were described by the Court of Appeals:
“In this case, unlike Bramlett, the accident occurred during the time in which any coverage provided under the newly acquired vehicle clause would have been in effect (i.e., within 30 days of the acquisition of the vehicle). Here, the accident occurred the day after the Carlsons purchased the new vehicle and notified FBM of the acquisition. In Bramlett, the accident occurred three months after the new vehicle was acquired and separately insured through State Farm under a different policy. 205 Kan. at 129.
“Also, in Bramlett, the insured purchased specific coverage from State Farm, the same insurer that provided the newly acquired vehicle coverage. Arguably, the purchase of specific coverage through the same insurer supports a presumption that the insured intended to have coverage under the specific policy rather than under the newly acquired coverage clause. Furthermore, the newly acquired vehicle provision in Bramlett contained the following language: “ *If more than one policy issued by the company could be applied to such automobile the named insured shall elect which policy shall apply.’ ” 205 Kan. at 130. No such anti-stacking language appears in the FBM policies.” 15 Kan. App. 2d at 461.
Bramlett, a 1970 opinion, controls.
We agree with the rationale expressed by the dissent in the Court of Appeals’ opinion:
“Unlike the majority, I cannot distinguish Bramlett v. State Farm Mutual Ins. Co., 205 Kan. 128, 468 P.2d 157 (1970). To me, it is insignificant that the accident occurred within 30 days of the acquisition of the Pontiac; it is equally insignificant that the Carlsons purchased insurance coverage with a company other than Farm Bureau.
“What is significant to me is the undisputed fact that, for whatever reason, the Carlsons did obtain specific insurance coverage on the Pontiac. The teaching of Bramlett is clear:
‘The purpose of the “automatic insurance clause” or “newly acquired automobile clause” in an automobile policy is to provide insurance coverage when an owned automobile is not described in a policy. When specific insurance is purchased and a separate policy is issued on the automobile it becomes an automobile described in a new policy and it is no longer a “newly acquired automobile.” At that time the terms and provisions of the “automatic insurance clause” or “newly acquired automobile clause” are no longer applicable to the automobile.’ 205 Kan. at 132. (Emphasis added.)
“Bramlett simply places no significance on when or with whom the specific insurance coverage is acquired. In the present case, when the Carlsons purchased specific insurance coverage for the Pontiac, coverage under the terms and provisions of the ‘newly acquired vehicle clauses’ of the Farm Bureau policies terminated and is, therefore, no longer applicable to the Pontiac.” 15 Kan. App. 2d at 464 (Elliott, J., dissenting).
We reverse the Court of Appeals and affirm the trial court.
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The opinion of the court was delivered by
Holmes, C.J.:
Arthur K. Sharpies, plaintiff in a medical malpractice action, appeals from separate orders of the district court granting summary judgment to the defendants Warren E. Roberts, M.D., and Urology Associates of Topeka, P.A. (Urology Associates). The district court found there was insufficient evidence to establish causation between the alleged negligence of Dr. Roberts and the injury or damage plaintiff alleged. The court also found that the action against Urology Associates was precluded by K.S.A. 1990 Supp. 40-3403(h), a section of the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. (the Act). The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c). We affirm the district court.
On May 1, 1984, plaintiff began seeing defendant, Dr. Roberts, a general practitioner, for treatment of a urinary tract infection. Dr. Roberts conducted urine tests which revealed 1+ red blood cells in plaintiffs urine and prescribed a broad spectrum antibiotic. The dates of the tests, the type of testing, and the frequency of antibiotic treatment are not disclosed in the record on appeal. Dr. Roberts apparently continued conservative treatment until April 1985 when tests disclosed 2 + red blood cells in plaintiffs urine. At that time, Dr. Roberts ordered an intravenous pyelogram which revealed the presence of a large staghorn calculus (kidney stone) in. plain tiffs left kidney. The x-rays and pyelogram also disclosed that there was renal function in both kidneys despite the existence of the large kidney stone.
Upon learning of these results Dr. Roberts referred plaintiff to Dr. Walter Mau, a urologist who was a member of the defendant Urology Associates. Dr. Mau treated plaintiff from April 1985 until March 17, 1986, primarily with antibiotics. During this period, Dr. Mau discussed with plaintiff the possibility of surgery to remove the kidney stone by means of a kidney split operation. For various reasons the surgery was never performed and on April 11, 1986, plaintiff began seeing Dr. Iloreta. According to Dr. Iloreta’s medical records, a renal scan was performed on plaintiff on April 29, 1986, which revealed the left kidney was no longer functioning, and on May 23, 1986, Dr. Iloreta determined that a nephrectomy to remove the left kidney was necessary. The operation was performed June 26, 1986.
This action was filed against both defendants on June 20, 1988. The petition named the wrong person as plaintiff, and an amended petition naming the correct plaintiff was filed July 1, 1988. Plaintiff made no independent claims of negligence against Urology Associates, seeking recovery only on the theory of vicarious liability for the alleged negligence of Dr. Mau. Dr. Mau died prior to the time this suit was filed and apparently no attempt was made by plaintiff to assert a claim against Dr. Mau’s estate.
Motions for summary judgment were filed by the defendants. The motion of Urology Associates was sustained on the basis that K.S.A. 1990 Supp. 40-3403(h) precluded any recovery from the corporation for the negligent acts of Dr. Mau. Following discovery, the motion of Dr. Roberts was sustained because plaintiffs expert could not testify that the ultimate loss of the plaintiffs kidney was caused by the delay of Dr. Roberts in diagnosing and treating plaintiffs illness. Additional facts will be stated as necessary in discussing the issues on appeal.
The first issue on appeal applies only to the action against Urology Associates. The issue is framed as being whether K.S.A. 1990 Supp. 40-3403(h) is unconstitutional as violating Sections 1 and 2 of the Bill of Rights of the Kansas Constitution. However, plaintiff additionally argues that the statute does not factually apply to this case.
K.S.A. 1990 Supp. 40-3403(h), enacted in 1986, abrogates the vicarious liability of a health care provider under certain circumstances; stating:
“A health care provider who is qualified for coverage under the fund shall have no vicarious liability or responsibility for any injury or death arising out of the rendering of or the failure to render professional services inside or outside this state by any other health care provider who is also qualified for coverage under the fund. The provisions of this subsection shall apply to all claims filed on or after the effective date of this act.”
As previously stated, plaintiff makes no independent claim of negligence against Urology Associates and seeks recovery only upon the theory of vicarious liability for the actions of Dr. Mau.
Section 2 of the Kansas Bill of Rights provides:
“Political power; privileges. All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body; and this power shall be exercised by no other tribunal or agency.”
Plaintiff apparently contends 40-3403(h) is unconstitutional under this provision of the Kansas Bill of Rights because the statute gives “special class treatment to the medical profession.” Plaintiffs argument, however, has no merit because this court has repeatedly construed Section 2 as applying solely to political privileges, not to the personal or property rights of an individual. See Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 354, 789 P.2d 541 (1990), and cases cited therein.
Section 1 of the Kansas Bill of Rights, the counterpart to the equal protection clause of the United States Constitution, provides:
“Equal Rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness.”
The issue whether 40-3403(h) violates Section 1 of the Kansas Bill of Rights was recently decided in Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991). In Bair, we found the statute constitutional and that determination governs the plaintiffs arguments here. K.S.A. 1990 Supp. 40-3403(h) does not violate Section 1 or Section 2 of the Kansas Bill of Rights.
Though not framed as a separate issue, plaintiff also contends that 40-3403(h) does not apply to the facts of this case because coverage by the health care stabilization fund (fund) for the alleged negligence of Dr. Mau ceased to exist upon Dr. Mau’s death. While it is true that the statute only eliminates the vicarious liability of the employer health care provider for the negligent acts of an employee health care provider when both are “qualified for coverage under the. fund,” the problem with plaintiffs argument is that it erroneously assumes Dr. Mau no longer had fund coverage following his death.
K.S.A. 1990 Supp. 40-3403(c)(3) provides that “the fund shall be liable to pay . . . any amount due from a judgment or settlement against a resident inactive health care provider.” An inactive health care provider is defined in K.S.A. 1990 Supp. 40-3401(g) as a person who had basic coverage under the Act but does not have such coverage at the time a claim is made for personal injury or death “solely because such person is no longer engaged in rendering professional service as a health care provider.” Assuming Dr. Mau’s coverage was not renewed because of his death, he falls within the definition of an inactive health care provider and has fund coverage under 40-3403(c)(3).
That fund coverage is provided for deceased health care providers when claims are made after the provider’s death is supported by K.S.A. 1990 Supp. 40-3403(m). That statute requires that certain inactive health care providers must have complied with the mandatory insurance requirements of K.S.A. 1990 Supp. 40-3402 for a certain number of years as a condition to fund liability but excepts from this requirement “any health care provider which becomes inactive through death or retirement.” (Emphasis added.)
K.S.A. 40-3412(a) requires an action for personal injury or death based upon malpractice to be brought against the health care provider or inactive health care provider, there being no right of action directly against the fund. K.S.A. 40-3411(a) provides for an action to be brought in a court of appropriate jurisdiction “where the claim is against an inactive health care provider covered by the fund who does not have liability insurance in effect which is applicable to the claim and the claimant and commissioner cannot agree upon a settlement.”
We conclude that plaintiffs remedy was to bring his action against the estate of Dr. Mau, as provided by the probate code (K.S.A. 59-2238; K.S.A. 1990 Supp. 59-2239) and the Act, not against Dr. Mau’s employer. K.S.A. 1990 Supp. 40-3403(h) is applicable to this case and the court did not err in granting summary judgment to the defendant Urology Associates.
The second issue is whether the trial court erred in granting Dr. Roberts’ summary judgment motion based upon its finding there was a lack of expert medical testimony to support causation. In resolving this issue, we are governed by well-established rules which were thoroughly summarized in Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 756 P.2d 416 (1988), as follows:
“Although the question of whether a defendant’s actions proximately caused a plaintiffs injury is normally a question of fact for the jury, where the facts of a case are susceptible to only one conclusion, the question is one of law and may be properly subject to summary judgment. Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). Summary judgment is governed by K.S.A. 1987 Supp. 60-256, which provides in pertinent part:
‘(c) .... The judgment sought shall be rendered forthwith 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 and that the moving party is entitled to a judgment as a matter of law.’
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Lessley v. Hardage, 240 Kan. 72, 73-74, 727 P.2d 440 (1986). The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. Willard v. City of Kansas City, 235 Kan. 655, Syl. ¶ 2, 681 P.2d 1067 (1984); Mays v. Ciba-Geigy Corp., 233 Kan. 38, Syl. ¶ 5, 661 P.2d 348 (1983). If factual issues do exist, they must be material to the case to preclude summary judgment. Busch v. City of Augusta, 9 Kan. App. 2d 119, 123, 674 P.2d 1054 (1983).
“Summary judgment is seldom proper in negligence cases. Phillips v. Carson, 240 Kan. 462, 472, 731 P.2d 820 (1987). On the other hand, the appellees do not, in order to prevail in their summary judgment motions, need to prove they were not negligent or that their actions did not cause Jessica’s cerebral palsy [the injury]. In Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the United States Supreme Court analyzed Rule 56(c) of the Federal Rules of Civil Procedure, which language is adopted verbatim in K.S.A. 1987 Supp. 60-256(c). The United States Supreme Court held there can be no genuine issue as to any material fact when the plaintiffs offer no proof concerning an essential element of their case. The Court stated:
‘One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses and we think it should be interpreted in a way that allows it to accomplish this purpose.’ 477 U.S. at 323-24.
“Negligence is never presumed, and may not be inferred merely from a lack of success or an adverse result from treatment. Tatro v. Lueken, 212 Kan. 606, 611, 512 P.2d 529 (1973). The plaintiff in a medical malpractice case bears the burden of showing not only the doctor’s negligence, but that the negligence caused the injury. See Funke v. Fieldman, 212 Kan. 524, 535, 512 P.2d 539 (1973). Except where the lack of reasonable care or the existence of proximate cause is apparent to the average layman from common knowledge or experience, expert testimony is required in medical malpractice cases to establish the accepted standard of care and to prove causation. Webb. v. Lungstrum, 223 Kan. 487, 490, 575 P.2d 22 (1978); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 48-51, 510 P.2d 190 (1973). Expert witnesses must confine their opinions to matters in issue which are certain or probable and not testify as to mere possibilities. Nunez v. Wilson, 211 Kan. 443, Syl. ¶ 1, 507 P.2d 329 (1973).” 243 Kan. at 306-08.
The claims of negligence asserted by plaintiff against Dr. Roberts are (1) failure to perform the necessary tests which would have revealed the existence of the staghorn calculus at an earlier date, and (2) failure to refer plaintiff to a urologist sooner than April 1985, which also would have resulted in an earlier discovery of the massive kidney stone. As a result of these delays, plaintiff asserts his general physical condition deteriorated and he ultimately lost the kidney which, absent the delays, might have been saved.
Our decision in this case hinges upon the deposition testimony of plaintiffs expert, Dr. Howard Simon, a urologist with appar ently impeccable credentials. In its statement of uncontroverted facts, the trial court found, inter alia:
“On the issue of causation, Dr. Simon made several interesting observations. These included his opinions that: the size of a kidney stone does not necessarily correlate to the amount of damage it will do to the kidney; plaintiffs kidney stone had probably existed for years; there was no change in the size of plaintiffs kidney stone or in the cortex of plaintiffs kidney between April, 1985 and January, 1986; in April, 1985, plaintiffs kidney was functioning reasonably; there is no way to tell whether the stone was smaller in May, 1984 than it was in April, 1985; there is no way to tell whether earlier surgery (i.e., in May, 1984 or April, 1985) would have avoided the need for a ‘kidney split’ operation, which can cause severe damage to the kidney; there is no way to tell whether earlier surgery (i.e., in May, 1984 or April, 1985) would have saved plaintiffs kidney. The most Dr. Simon could say was that it was ‘possible’ a kidney split wouldn’t have been required in April, 1984 (though he admitted that by May, 1985, a kidney split was probably plaintiffs only option); and that earlier surgery on plaintiff ‘wouldn’t [have] hurt.’ ”
The trial court then concluded:
“1. In his deposition, Dr. Howard Simon testified that, in his opinion, the defendant, Dr. Roberts, departed from the standard of care as perceived by Dr. Simon in failing to diagnose the existence of the staghorn calculus in plaintiffs kidney, failing to order appropriate tests which would have revealed the existence of the staghorn calculus and failing to refer the plaintiff to a qualified urologist who presumably would have arrived at an earlier diagnosis.
“2. Viewing the testimony of Dr. Simon in the most favorable light, as the Court is required to do when considering a Motion for Summary Judgment, Dr. Simon did not express an opinion that the claimed departure from the standard of care upon the part of the defendant, Dr. Roberts, caused or contributed to the damages suffered by the plaintiff which were the ultimate loss of plaintiffs kidney. The absence of expert testimony to support plaintiff s claim that he suffered damages by reason of the negligence of the defendant Roberts is fatal to the plaintiffs case. The absence of expert testimony on the issue of causation requires that the defendant’s Motion for Summary Judgment be sustained.
“The rationale for the Court’s decision is that the deposition testimony of the plaintiffs sole expert witness, Dr.- Howard Simon, reflects that Dr. Simon, although he was not familiar with the standard of care for family practitioners, was of the opinion that the defendant, Dr. Roberts, departed from the standard of care by failing to perform additional tests to determine the cause of blood in the plaintiffs urine and failing to refer plaintiff to a urologist promptly. The difficulty with Dr. Simon’s testimony is that nowhere in his deposition did he affirmatively state that the claimed departures from the standard of care upon the part of Dr. Roberts in any way contributed to plaintiffs condition or the ultimate loss of plaintiffs kidney by reason of the existence of a staghorn calculus.
“At pages 30 and 31 of his deposition, Dr. Simon testified that there appears to have been no change in the size of the stone in plaintiffs kidney between April of 1985 and January of 1986. At page 37, Dr. Simon testified that he had no way of knowing how long the kidney stone had been present or its rate of growth. At page 59, Dr. Simon testified that in May, 1985, when Dr. Mau first saw the plaintiff, there was adequate and reasonable' kidney function and that it was reasonable for Dr. Mau to continue to follow the patient at that time without immediately performing surgery. At page 69, Dr. Simon testified that he could not come to a firm conclusion as to whether, if Dr. Mau had done a kidney split procedure when he first saw the plaintiff, it would have made a difference. Dr. Simon could not come to a firm conclusion as to whether, if plaintiff s condition had been diagnosed a year earlier than when Dr. Mau saw it, it would have made any difference.
“Summarizing Dr. Simon’s deposition in its entirety, it may be fairly said that he was of the opinion that the claimed departures from the standard of care upon the part of the defendant, Dr. Roberts, could have contributed to the size of plaintiff s kidney stone and the ultimate loss of his kidney, however, he cannot testify with any degree of medical certainty that it did in fact do so. Without expert testimony as to the issue of causation, the case is not legally submissible to the trier of fact. Juhnke v. Evangelical Lutheran Good Samaritan Society, 6 Kan. App. 2d 744, 634 P.2d 1132 (1981); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 51, 510 P.2d 190 (1973).
“For the foregoing reasons, it is the judgment of the Court that the Motion for Summary Judgment filed by the defendant, Dr. Warren E. Roberts, is sustained and judgment is entered in favor of the defendant.”
While plaintiff attempts to establish the necessary element of causation by pointing to certain isolated statements in Dr. Simon’s testimony, a careful reading of the entire deposition convinces us that the trial court’s summary of the testimony was accurate.
A claim of medical malpractice is based on actionable negligence and requires the same elements of proof as required in any negligence action. In Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), the court reviewed at some length the principles applicable to negligence actions and various facets of medical malpractice and held:
“Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence.” Syl. ¶ 1.
The causal connection referred to in Durflinger is often equated with the term proximate cause, which has been defined in the following language:
“Proximate cause of an injury is that cause which ‘in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.’ Wilcheck v. Doonan Truck & Equipment, Inc., 220 Kan. 230, 235, 552 P.2d 938 (1976).” St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043 (1989).
The plaintiff bears the burden of proving the necessary causation and normally in medical malpractice cases, this court has described the duty in general terms, merely stating there must be a causal connection between the negligent act and the injury or that the act caused or contributed to the injury. Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. at 307; Lucas v. Pearce, 223 Kan. 749, 750, 576 P.2d 670 (1978); Yeates v. Harms, 194 Kan. 675, 677, 401 P.2d 659 (1965). In Allman v. Holleman, 233 Kan. 781, 667 P.2d 296 (1983), a medical malpractice action, we held:
“A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which the claim is made.” Syl. ¶ 4.
“A negligent act is the proximate cause of an injury only when the injury is the natural and probable consequence of the wrongful act.” Syl. ¶ 5.
In the instant case, plaintiff contends that the district court erred in finding no evidence of causation by focusing only on the loss of plaintiffs kidney when plaintiff s allegations were that Dr. Roberts’ failure to perform appropriate tests or refer plaintiff to a urologist resulted in plaintiffs general physical deterioration and loss of his left kidney. Dr. Roberts, on the other hand, asserts summary judgment was proper because plaintiff has failed to establish that earlier diagnosis and treatment of his kidney stone would have resulted in a more favorable outcome, specifically, that plaintiffs kidney could have been saved. Additionally, Dr. Roberts asserts that there is no showing that the alleged deterioration in plaintiffs general physical condition would have been altered by an earlier diagnosis or referral.
In order to sustain his burden of proof on the issue of negligence, the plaintiff must ordinarily present testimony by a qual ified medical expert who must offer his opinion that the involved defendant either did not possess the requisite degree of learning and skill or failed to use reasonable care and diligence in applying such learning and skill to the treatment of the patient. Crowley v. O’Neil, 4 Kan. App. 2d 491, 494, 609 P.2d 198, rev. denied 228 Kan. 806 (1980). The rule requiring expert medical testimony in medical malpractice actions applies not only to the issue of negligence, but also to the issue of causation. Expert medical testimony is ordinarily required to establish a causal connection between the plaintiffs injuries and the defendant’s negligence. Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 50-51, 510 P.2d 190 (1973); Yeates v. Harms, 193 Kan. 320, 333, 393 P.2d 982 (1964), modified on rehearing 194 Kan. 675, 401 P.2d 659 (1965).
In Nunez v. Wilson, 211 Kan. 443, 507 P.2d 329 (1973), the court discussed at length the requirements for establishing a claim of medical malpractice based upon expert testimony. In doing so, the court held:
“Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible. However, no particular words of art are necessary to express the degree of proof required, and it is sufficient if the expert’s words can be interpreted to show reasonable probability.” Syl. ¶ 1.
“The expressions ‘probably,’ ‘more likely than not,’ and others of similar import are proper qualifications for a medical expert’s opinion testimony if, taken as a whole, the testimony reflects an honest expression of professional opinion as to reasonable medical probabilities.” Syl. ¶ 2.
Plaintiff does not contend that expert testimony is not required in this case but asserts that when Dr. Simon’s testimony is considered under the rules applicable to summary judgment, sufficient causation has been established to raise a question of fact for the jury to decide. However, a careful review of Dr. Simon’s deposition, which covers 85 pages, and supporting documents fails to support the plaintiff’s contentions.
Nowhere in the testimony did Dr. Simon state that the plaintiff s injury and damage were proximately caused by the delay in diagnosis of the staghorn calculus or the delay in referring plaintiff to a urologist. It is true that Dr. Simon was of the opinion that Dr. Roberts had departed from the acceptable standard of care, but he could not say with any degree of probability or certainty that the departure caused or contributed to the plaintiffs injury and damage. :
The most that can be said of Dr. Simon’s testimony is that he was of the opinion that the kidney stone produced infection and thus caused damage to plaintiffs kidney. However, this testimony is insufficient to establish that the delay in testing or referral probably caused or contributed to plaintiffs deterioration in physical condition or the loss of his kidney. The best Dr. Simon could state was that it was possible some injury might have been avoided if the kidney stone had been discovered sooner but that he could not come to any “firm conclusion” either way. Dr. Simon’s testimony falls far short of the degree of medical probability or certainty required to support the necessary element of causation. Without expert testimony that the alleged negligence of Dr. Roberts was the proximate cause of the plaintiffs injury, the trial court was correct in granting summary judgment.
Plaintiff also asserts that the trial court was in error in granting summary judgment because discovery had not been completed. However, neither in the trial court nor in this court has plaintiff made any attempt to indicate what additional discovery was required or what it might disclose. Without more, the simple statement that discovery is incomplete does not warrant reversing the trial court.
We conclude that there was no error in the trial court’s determination that plaintiff failed to provide evidence of causation necessary to maintain his action against Dr. Roberts and that the granting of summary judgment to both defendants was correct.
The judgment is affirmed.
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On July 14, 1989, this court placed respondent on probation for a period of one year with specific conditions of supervision, and appointed James E. (Jeb) Benfer III, Chairman of the Topeka Bar Association Impaired Lawyers Assistance Committee, to supervise respondent during his probation, pursuant to Supreme Court Rule 206 (1990 Kan. Ct. R. Annot. 141). In re Pendergast, 245 Kan. 312, 776 P.2d 1202 (1989).
On October 23, 1990, this court extended respondent’s probation on an unsupervised basis for a period of one year, pursuant to Supreme Court Rule 203 (1990 Kan. Ct. R. Annot. 137). In re Pendergast, 247 Kan. 322, 799 P.2d 474 (1990).
This court finds that the disciplinary administrator has filed a second report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
It is therefore ordered that respondent is discharged from probation and from any further obligations in this matter and that this proceeding is closed.
It Is further ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Herd, J.:
After careful consideration of this case we adopt and affirm the decision of the Court of Appeals at 15 Kan. App. 2d 264, 807 P.2d 162 (1991).
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The opinion of the court was delivered by
McFarland, J.:
Provident Life & Accident Insurance Company (Provident) appeals a jury verdict awarding Arlene Evans the proceeds of a $300,000 accidental death policy issued by Provident insuring Dr. Grant Evans, husband of Arlene. Provident also appeals from the award of attorney fees. Arlene Evans cross-appeals from the amount of attorney fees awarded, the interest rate applied to the award, and the question of whether she should have been allowed to discover Provident’s attorney fee costs.
Dr. Evans practiced in the medical specialty of obstetrics/gynecology for many years prior to his retirement in 1986. His retirement resulted from numerous health problems. On April 11, 1987, he received fatal bums in the bathroom of his hospital room in the psychiatric unit of Wesley Medical Center, Wichita. He was 65 years old and was being treated for major depression with melancholia.
Arlene Evans made claim under the policy. Provident denied the claim on the basis the death was the result of an intentionally self-inflicted injury, a suicide, and, accordingly, was not within the coverage afforded by the policy. This action was filed, and the jury found the death was accidental. The Court of Appeals affirmed the district court on all issues except the post-judgment interest question. Evans v. Provident Life & Accident Ins. Co., 15 Kan. App. 2d 97, 803 P.2d 1033 (1990). This case is before us on petition for review. Additional facts will be stated as pertinent to particular issues.
JURISDICTION
For her first issue, cross-appellant Evans contends this court lacks jurisdiction to hear Provident’s appeal.
The journal entry of judgment in the case was entered on April 21, 1989, corrected by an order nunc pro tunc entered on May 8, 1989, and the order denying Provident’s motion for judgment notwithstanding the verdict was entered on July 7, 1989. The journal entry determining the award of attorney fees to Evans was not entered until November 28, 1989. Provident filed its notice of appeal on December 27, 1989. The notice of appeal was within the 30-day limit set forth by K.S.A. 1990 Supp. 60- 2103(a) if the “entry of the judgment” is determined to be November 28, 1989.
On March 23, 1990, we filed our opinion in Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990), wherein we held:
“A final decision under K.S.A. 1989 Supp. 60-2102(a)(4), for appeal purposes, is a decision on the merits which does not require resolution of a motion or request for attorney fees before filing a timely notice of appeal.” Syl. ¶ 1.
“Under the facts of the case, the entry of judgment by the district court was a final decision appealable as of right under K.S.A. 1989 Supp. 60-2102(a)(4) regardless of any unresolved question of attorney fees. Following Budinich v. Becton Dickinson & Co., 486 U.S. 196, 100 L. Ed. 2d 178, 108 S. Ct. 1717 (1988).” Syl. ¶ 2.
“A K.S.A. 40-256 motion or request for attorney fees is not a part of the merits of the underlying action, even though alleged in the petition, because attorney fees are not part of the compensation for a plaintiffs injury. Attorney fees traditionally have been regarded by the legislature as costs awarded to the prevailing party.” Syl. ¶ 3.
Under the Snodgrass rule, Provident’s notice of appeal should have been taken within 30 days of July 7, 1989. However, Snodgrass constituted a departure from our prior rulings and was not filed until several months after Provident’s time for appeal would have expired. We believe the retroactive application of Snodgrass to bar the appeal herein would be unfair and inappropriate.
We conclude Provident’s notice of appeal was timely under the rules then existing and that this court has jurisdiction in this appeal.
For its first three issues, Provident challenges certain jury instructions. These issues are interrelated and must be considered in context with each other. The claimed instructional errors concern:
1. failure to place the burden of establishing accidental death upon claimant, Arlene Evans;
2. giving improper instructions on the presumption against suicide; and
3. failure to instruct the jury on Provident’s mental infirmity defense.
BURDEN OF PROOF
The policy in question provided coverage .for accidental death. Death by suicide or intentionally self-inflicted injury was excluded. Accordingly, in addition to'the requirements of proof on án ordinary life insurance policy, claimant had tó prove the accidental cause of death. .
The Court of Appeals adequately disposed of this. issue as follows:
“Provident claims that the trial court’s instructions erroneously placed the burden of proof on it. Instruction No. 9 set forth the burden of proof:
“ ‘Plaintiff claims that on April 11, 1987, the insured, Grant E. Evans, suffered accidental bodily injury resulting in the loss of his life as provided in the group policy issued by defendant.
“ ‘Plaintiff has the burden to prove that her claim is more probably true than not true.
“ ‘Defendant claims that Grant E. Evans died as the result of suicide or intentionally self-inflicted injury.
“ ‘Defendant has the burden to prove that its claims are more probably true than not true.’
“Provident notes in its brief that one of the ‘limitations and exclusions’ included in the policy denies coverage for suicide or intentionally self-inflicted injuries. Provident argues at some length in its brief, using quotations from treatises on insurance, a Tenth Circuit case from 1963, and a line of cases from New York decided in the 1930’s, that Evans was required to , prove that Dr. Evans’ death wa$ not suicide. Provident overlooks more recent Kansas case law that is clearly applicable.
“ ‘When an insurer seeks to avoid liability on the ground that the accident or injury for which -compensation is demanded is covered by some specific exception to the general terms of the policy, the burden of proof rests upon the insurer to prove the facts which bring the case within such specified exception.’ Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, Syl. ¶ 4, 522 P.2d 401 (1974).
“In Alliance Life Ins. Co. v. Ulysses Volunteer Firemans Relief Assn., 215 Kan. 937, 529 P.2d 171 (1974), the court considered a case in which a decedent was killed in an aircraft owned by a flying club of which he was a member. The decedent was covered by an insurance policy which excluded “ ‘[ijnjuries sustained by the Insured while piloting or serving as a crew member of an airplane.’ ” 215 Kan. at 943. Both men aboard the plane were killed and there was no way to tell who was piloting the plane at the time it crashed. 215 Kan. at 943. In reversing the trial court’s judgment for the defendant insurance company, the appellate court said: ‘An insurance company seeking to avoid liability under an exclusionary clause in its policy for a loss which is otherwise covered has - the burden of proving that the loss falls within the exclusion.’ 215 Kan. 937, Syl. ¶ 10.
“Evans also relies on Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 122 P.2d 763 (1942), in which the decedent was found on the floor with a fractured skull and the accidental death policy excluded death due to injuries intentionally inflicted by the insured or others. In reversing judgment for the insurance company, the court said: ‘In such a case as described, where the proof shows death of the insured by unexplained, violent and external means, a prima facie showing is made that the injuries were accidental.’ 155 Kan. 74, Syl. ¶ 4.
“The trial court correctly instructed the-jury on the burdens of proof to be carried by Provident and by Evans. Evans had to prove that there was an accidental bodily injury resulting in death if she were to recover, and Provident was required to prove suicide or self-inflicted injury if it were to prevail.” Evans v. Provident Life & Accident Ins. Co., 15 Kan. App. 2d at 100-02.
PRESUMPTION AGAINST SUICIDE
Plaintiffs proposed instructions included three on the presumption against suicide. Provident’s proposed instruction contained no reference to the presumption. Both sides objected to instruction No. 14 given by the court, which is as follows: “If you are unable to decide whether the cause of death was accident or suicide, your verdict must be that the cause of death was by accident.”
PIK Civ. 2d 2.72 states:
“Because of the instincts of self-preservation and love of life which are characteristic of the normal person, it is presumed that ........ died as a result of accidental causes (natural causes) rather than as a result of attempted suicide. This presumption may be overcome if you are persuaded by the evidence that ....... intended to take his own life.”
Provident contends that instruction No. 14 negated plaintiffs burden of proof on accidental death and permitted plaintiff to win by default.
The presumption against suicide is based on the nearly universal human characteristics of love of life and fear of death. 29 Am. Jur. 2d, Evidence § 217. In 29 Am. Jur. 2d, Evidence §§ 217, 219, the general rule on the presumption against suicide is stated as follows:
“In cases where the cause of death is in issue but there is nothing to show how death was caused, there is a negative presumption against suicide and an affirmative presumption of death by accidental means. In other words, all other things being equal, it is to be presumed when' a person is found dead, that he did not die by his own hand. This rule finds frequent application in actions upon insurance policies where there is doubt whether the death of the insured was caused by accident or by suicide.”
“The presumption against suicide is a rule of law which permits, and according to some courts requires, the, conclusion, in the event of an unexplained death by violent injury, that the death was not suicidal, until credible evidence of self-destruction is offered. It is a strong presumption which should not be displaced by slight contrary proof, and can be overcome by circumstantial evidence only if it is of such quality and weight as to negative every reasonable inference of death by accident.”
Another learned treatise describes the rule as follows:
“As a general rule, the presumption is that a death was accidental, not suicidal, where the cause was either accident or suicide and there is no evidence explaining the cause. Even self-inflicted death is presumed to have been accidental rather than suicidal. On the other hand it has been held that the presumption against suicide does not carry with it the presumption that the death was accidental, although the presumption against suicide is so strong that unless the evidence negatives every reasonable inference of death by accident, a finding of death by accident will be justified.” 31A C.J.S., Evidence § 135, p. 286.
Kansas adopted the presumption against suicide rule of law as early as 1896. In Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996 (1896), the issue was whether the insured had taken an overdose of opium to sleep or to commit suicide. Suicide would deny insurance under insured’s insurance policy. Plaintiff administrator of the decedent’s estate contended the overdose was accidental and meant to induce sleep. Defendant insurer contended decedent committed suicide. We affirmed the jury verdict in favor of the plaintiff, holding: “Where the evidence as to the death being accidental or suicidal is so nearly balanced as to leave the question in doubt, the presumption is in favor of the theory of accidental death.” 56 Kan. 765, Syl. ¶ 2.
We have consistently adhered to that rule of law. See, e.g., Hawkins v. New York Life Ins. Co., 176 Kan. 24, 38, 269 P.2d 389 (1954); Broyles v. Order of United Commercial Travelers, 155 Kan. 74, 77, 122 P.2d 763 (1942); Muzenich v. Grand Carniolian Slovenian Catholic Union, 154 Kan. 537, 539-40, 119 P.2d 504 (1941); O’Brien v. Insurance Co., 109 Kan. 138, 141, 197 Pac. 1100 (1921); McCoy v. Insurance Co., 104 Kan. 571, 577, 179 Pac. 969 (1919).
In Broyles v. Order of United Commercial Travelers, 155 Kan. 74, the deceased was found on the floor of his place of business with a fractured skull. How the injury occurred was unknown. Accident, suicide, and murder were all possibilities. Claim was made on an accidental death policy. The trial court sustained the defendant’s demurrer and plaintiff appealed therefrom. This court reversed the trial court and, in so doing, extensively discussed burden of proof in relation to the presumption against suicide. This court stated:
“The burden was on the plaintiff to prove that the insured met his death as the result of bodily injuries effected solely through external, violent and accidental means, occasioned by the accident alone and independent of all other causes, and of that burden we shall treat later.
“On the other hand, the burden of proof was on the defendant to prove its exemption from liability because the death may have resulted from murder or from injuries intentionally inflicted by others. (See Lamb v. Liberty Life Ins. Co., 129 Kan. 234, 282 Pac. 699, and cases cited.) It was therefore not incumbent on the plaintiff to prove the death was not caused by one or more of specific things covered by the exemption provisions of the policy.
“Insofar as plaintiffs proof is concerned, certain presumptions applicable are to be noted. First, there is a presumption that no sane person commits suicide. See Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996, 35 L.R.A. 258; Railroad Co. v. Hill, 57 Kan. 139, 45 Pac. 581; 22 C.J. 94. Second, the presumption as to the cause of decedent’s death is against murder. (Warner v. U. S. Mutual Acc. Assoc., 8 Utah 431, 32 Pac. 696; Travellers’ Insurance Co. v. McConkey, 127 U.S. 661, 32 L. Ed. 308, 8 S. Ct. 1360; Lampkin v. Travelers’ Ins. Co., 11 Colo. App. 249, 52 Pac. 1040.)
“Passing for the moment the question whether the injuries caused the death, we shall consider whether they were effected solely by external, violent and accidental means. There can be no doubt the proof was ample they were external and violent. Did plaintiff prove they were accidental? The general rule, as stated in 29 Am. Jur. 1082 (Insurance, § 1443), is;
“ ‘Generally speaking, one seeking to recover on a policy of insurance has the burden of proving a loss from causes within the terms of the policy. ... In this respect, the authorities support the general rule that in an action on a policy insuring against death caused solely by external, violent, and accidental means, the burden of proof is on the plaintiff to show from all the evidence that the death of the insured was the result of accidental as well as external and violent means, but that where death by unexplained, violent, and external means is established, a presumption is thereby created or prima facie proof is thereby made of the fact that the injuries were accidental, without direct and positive testimony on that point, since the law will not presume that the injuries were inflicted intentionally by the deceased or by some other person.’
“See, also, 29 Am. Jur. 732 (Insurance, § 972). Also see notes in 20 A.L.R. 1123, 57 A.L.R. 972, and 116 A.L.R. 396, where many cases supporting the above quotation may be found. And we are not without authority of our own. In McCullough v. Liberty Life Ins. Co., 125 Kan. 324, 264 Pac. 65, 57 A.L.R. 963, it was held:
“ ‘Ordinarily'where one person intentionally injures another without misconduct on the part of the latter, and unforeseen by him, such -injury as to the latter is accidental.’
“ ‘And where an accident insurance policy provided for payment in the event the insured should sustain bodily injury directly and independently of any other cause, through external, violent and purely accidental means, the killing of the assured by a third person, though intentional, is deemed accidental within the meaning of the policy if the killing was not brought about by the agency of the assured.’ (Syl. ¶¶ 1, 2.)
“See, also, Spence v. Equitable Life Assurance Soc., 146 Kan. 216, 69 P.2d 713.” 155 Kan. at 77-78.
In Muzenich v. Grand Carniolian Slovenian Catholic Union, 154 Kan. 537, the deceased died as a result of drinking carbolic acid. The jury found the death to be accidental. On appeal, the insurer contended the trial court erred in denying its motion for a directed verdict. The policy involved was ordinary life, not an accident policy. The deceased, like in the case before us, was found dead in her hospital bathroom and was being treated for depression and had expressed suicidal thoughts. This court affirmed the trial court, stating:
“The defendant had the burden of establishing that deceased committed suicide. (See Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996.) It was compelled to rely wholly upon circumstantial evidence. Under such circumstances, where the physical facts and circumstances would justify a conclusion on one hand that the defendant took the carbolic acid into her mouth by mistake, either as to its effect or as to what it was, or on the other hand that she took it with the intention of destroying her life, we cannot say that as a matter of law one proposition or the other has been proven. It is the duty of the trier of the facts to take all of the proven and admitted circumstances and draw the inferences from them which it deems reasonable. In performing this service the trier of facts is not compelled to believe any particular testimony and this court cannot say as a matter of law that any particular circumstance was established when there was a question raised before the jury as to its being established. Thus it cannot as a matter of law be said that the substance taken into the mouth of deceased was carbolic acid or that she drank it knowing it was carbolic acid, nor that she knew it would kill her if she did drink it. There was testimony both ways as to her being of the suicidal type, so that it cannot be said as a matter of law that she was of the suicidal type. When thus viewed it must be said that the defendant’s evidence is equally consistent with the hypothesis that the death of the insured was accidental and with the hypothesis that it was suicidal, and was thus insufficient to require a directed verdict for defendant. (See McKenzie v. New York Life Ins. Co., 153 Kan. 439, 112 P.2d 86.) Where the evidence tending to prove one theory or the other is so nicely balanced it is proper to consider the rule that the presumption is against suicide.” 154 Kan. at 539-40.
As we have expressed on various occasions in the past, we are at a loss to understand why the Eighteenth Judicial District so often departs from PIK instructions when appropriate instructions are contained therein covering particular situations. See, for example, State v. Pioletti, 246 Kan. 49, 785 P.2d 963 (1990). This ancient, but not venerable, tradition creates many unnecessary issues in appeals from that judicial district. PIK Civ. 2d 2.72 should have been given herein. It is an accurate statement of the applicable law. But it was not given and instruction No. 14 was given in its place. Is this reversible error, as contended by Provident? We believe not under the circumstances herein.
Weighing heavily in our conclusion are the particular facts involved herein. The deceased was a careless smoker with a long history of accidentally burning his clothes and household goods. One of the health problems causing his depression was extremely malodorous flatulence arising from abdominal surgery. He had a history of striking matches in the belief the burning sulphur ameliorated the unpleasant odor. The fire investigation herein revealed the deceased was sitting on the toilet when his clothing caught fire. He was wearing cotton flannel pajamas with the pants in place at the waist. Burned matches were on the floor. There was evidence the fire started in the crotch area of the pajamas. Provident was seeking to prove that the deceased committed suicide by intentionally setting fire to his crotch. There was no evidence that an accelerant was used. The jury was probably influenced by the unlikelihood that anyone, particularly a physician, would select this bizarre vehicle for suicide over less painful and more certain means.
As noted by the Court of Appeals and as previously cited herein, instruction No. 9 did advise the jury that plaintiff had the burden of proof that the death was accidental.
The Court of Appeals adequately handled one additional point raided in this issue when it held:
“Provident’s other line of argument with respect to the presumption against suicide is that no instruction should have been given since Dr. Evans was not a sane and normal person. The comment to PIK Civ: 2d 2.72 states: ‘It would appear this instruction would only be proper when the deceased was sane at the time of death.’
“The record is devoid of any evidence that Dr. Evans was insane at the time of his death. He was clearly suffering from depression, but he had not been adjudicated insane, and there was no testimony to the effect that his condition warranted such a finding of insanity. In order for Provident to prevail on this point, the trial court would have to find as a matter of law that Dr. Evans was insane for the purposes of the presumption against suicide merely because he was being treated for severe depression. Provident cites no case law which would support such a finding nor is any apparent.” 15 Kan. App. 2d at 102-03.
We conclude that no reversible error has been shown in the giving of instruction No. 14.
MENTAL INFIRMITY
This issue was adequately handled by the Court of Appeals when it stated:
“The accidental death policy under which Dr. Evans was insured has an exclusion for losses caused by mental infirmity. Provident contends that the trial court erred in refusing to give an instruction requiring the jury to find for Provident if it found that Dr. Evans’ death was due to his mental infirmity.
“A party is entitled to a jury instruction in explaining its theory of the case when there is sufficient evidence to support such a theory. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, Syl. ¶ 3, 667 P.2d 289 (1983). Provident argues that there must have been sufficient evidence to support its mental infirmity theory because Evans’ motion for directed verdict on the question of mental infirmity was overruled.
“Arguably, the evidence established that Dr. Evans had a mental infirmity; he was severely depressed. However, there was no evidence adduced at trial as to how this mental infirmity would have resulted in his death other than by an intentional suicidal act. Indeed, Provident’s entire theory of the case seems to have been that Dr. Evans committed suicide. All of the evidence adduced by Provident was directed toward a showing that Dr. Evans knew exactly what he was doing, formed an intent to take his own life, and carried out his plan.
“The trial court did not err in refusing to give an instruction on Provident’s mental infirmity theory.” 15 Kan. App. 2d at 103.
In its brief, Provident states that “[f]rom the evidence presented, the jury could have found that Evans’ death resulted from mental infirmity and rendered a verdict for Provident. If the jury was not convinced the fire was started with suicidal intent, it could have concluded it was an intentional or deliberate act which resulted from his mental infirmity as related to his preoccupation with punishment for his sins or otherwise.”
If the jury found that Dr. Evans intentionally started the fire without suicidal intent, the exclusion against “intentionally self-inflicted injury” would apply, and that was instructed on in instruction No. 9.
We find no error in this point.
A final claim of error in this area is that the trial court erred in overruling Provident’s motions for a directed verdict and for judgment notwithstanding the verdict. The grounds on which these claims are made have been discussed and determined adversely to Provident in our discussion of the three claims of instructional error.
EXPERT TESTIMONY
For its next issue, Provident contends the trial court improperly restricted the testimony of its expert, Dr. Herbert Modlin.
In his deposition, Dr. Modlin, a psychiatrist, testified that in his opinion Dr. Evans committed suicide. The district court granted plaintiffs motion in limine to exclude this ultimate conclusion.
The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial court. Plains Transp. of Kan., Inc. v. King, 224 Kan. 17, 21, 578 P.2d 1095 (1978). The trial court has broad discretion to control examination of witnesses and reviewing courts will not interfere unless discretion has been abused. State v. Mitchell, 234 Kan. 185, 188, 672 P.2d 1 (1983).
Dr. Modlin’s testimony was based upon a procedure he categorized as a “psychological autopsy,” performed by reviewing medical records, hospital records, deposition testimony, and other evidence. From his review, Dr. Modlin concluded Dr. Evans was suicidal on the day of his death and that he had, in fact, committed suicide. The limitation placed upon his testimony went only to his opinion on the ultimate fact — that Dr. Evans committed suicide. The balance of his testimony concerning the “psychological autopsy,” including Dr. Modlin’s opinion that Dr. Evans was suicidal on the day of his death, was presented to the jury. We do not have the question before us on the admissibility of a “psychological autopsy” in general and express no opinion thereon. Rather, we have the narrow issue of whether or not the limitation respecting the ultimate conclusion was an abuse of discretion.
We find no abuse of discretion in the trial court’s limitation on Dr. Modlin’s testimony.
PREJUDGMENT AND POST-JUDGMENT INTEREST
As to the prejudgment interest aspect of this issue, the Court of Appeals correctly held that this was a matter not raised before the trial court and hence cannot be raised for the first time on appeal, citing Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987), in support thereof.
Plaintiff contends the trial court erred in awarding post-judgment interest at seven percent pursuant to K.S.A. 1990 Supp. 40-447 rather than under the regular post-judgment interest statute, K.S.A. 16-204. The point is well taken.
K.S.A. 1990 Supp. 40-447(a) provides, in pertinent part:
“Notwithstanding any other provision of law, each insurer admitted to transact life insurance in the state of Kansas which fails or refuses to pay the proceeds of, or payments under, any policy of life insurance issued by it within 10 days after the date of receipt of due proof of death in the manner and form requested by the policy, shall pay interest on any moneys payable and unpaid after the expiration of such 10-day period at an annual rate of not less than the current rate of interest on death proceeds left on deposit with the insurer plus 1% computed from the date of said receipt.”
K.S.A. 16-204 sets forth the rate of interest on judgments.
A reading of K.S.A. 1990 Supp. 40-447 in its entirety shows that it is intended to apply to situations where an insurance company fails to pay a properly submitted claim within 10 days. Section (e) of the statute provides:
“The commissioner of insurance may adopt such rules and regulations necessary to provide for the enforcement and administration of this act.”
K.S.A. 1990 Supp. 40-447 does not apply to post-judgment interest. Where a judgment has been entered, K.S.A. 16-204 controls the rate of interest to be applied.
Although we reach this conclusion on a different rationale than did the Court of Appeals, its result was correct. The trial court’s post-judgment interest determination must be reversed and the case remanded to the district court for entry of post-judgment interest pursuant to K.S.A. 16-204.
ATTORNEY FEES
The balance of the issues concern attorney fees. They are:
1. Provident’s claim that attorney fees should not have been awarded against it by the trial court;
2. plaintifFcross-appellant’s claims that:
(a) insufficient attorney fees were awarded by the trial court;
(b) discovery should have been permitted as to amounts spent by Provident in defense of this action; and
(c) appellate attorney fees be awarded.
Provident contends that the trial court erred in awarding attorney fees to plaintiff. K.S.A. 40-256 provides:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201, and including in addition thereto any fraternal benefit society and any reciprocal or interinsurance exchange on any policy or certificate of any type or kind of insurance, if it appear from the evidence that such company, society or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs . . . .”
The question of whether an insurer has refused to pay without just cause or excuse is one of fact for the trial court. Farm Bureau Mutual Ins. Co. v. Carr, 215 Kan. 591, 598, 528 P.2d 134 (1974). In refusing to pay a claim, an insurance company has a duty to make a good faith investigation of the facts surrounding the claim. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 227, 597 P.2d 1080 (1979). If there is a bona fide and reasonable factual ground for contesting the insured’s claim, there is no failure to pay without just cause or excuse. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565, 470 P.2d 756 (1970). Whether an insurance company’s refusal to pay is without just cause or excuse is determined on the facts and circumstances in each case. Smith v. Blackwell, 14 Kan. App. 2d 158, 165, 791 P.2d 1343 (1989), rev. denied 246 Kan. 769 (1990).
Whether there was just cause to refuse payment and, therefore, justification for denial of attorney fees is in the trial court’s sound discretion. DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, Syl. ¶ 8, 661 P.2d 812 (1983). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
Plaintiffs claim was ultimately denied by Joe Roberts, Jr., Provident’s manager of the life claims department. Roberts testified he reviewed the results of Provident’s investigation herein before making the decision. Included was a report from the Pinkerton agency that Provident had assigned to investigate the fire. Roberts testified nothing in the Pinkerton report supported death by suicide. After receipt of the Pinkerton report, Provident assigned one of its own investigators to the case. When this report was received, Roberts testified he “felt like we did not have evidence to establish it was accidental.” The evidence from the treatment by health care providers was to the effect that Dr. Evan’s depression had improved with the administration of electric shock therapy, and they did not consider him suicidal. Neither the Wichita Fire Department nor the county coroner had ruled the death a suicide. The bizarre nature of the death must also be considered a factor.
We must conclude that no abuse of discretion has been shown in the trial court’s award of attorney fees pursuant to K.S.A. 40-256.
On the issues relative to the amount of attorney fees awarded by the trial court, the Court of Appeals adequately determined the matter as follows:
“Evans argues that the trial court should have awarded her more attorney fees because the higher- amount she requested was reasonable.
“Evans was awarded attorney fees pursuant to K.S.A. 40-256, which reads: ‘[T]he court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action.’ (Emphasis added.)
“This court discussed the operation of K.S.A. 40-256 in Hochman v. American Family Ins. Co., 9 Kan. App. 2d 151, 154-55, 673 P.2d 1200 (1984):
“ ‘These statutes allow “reasonable” fees to parties who have prevailed against an insurance company in certain cases. ... In discussing the purpose of attorney fee statutes, the Kansas Supreme Court has stated the purpose of the award of fees is not to punish the insurance company but “ ‘to permit the allowance of a fair and reasonable compensation to the assured’s attorney ....’” Lattner v. Federal Union Ins. Co., 160 Kan. 472, 481, 163 P.2d 389 (1945). The amount of attorney fees to be awarded is a matter largely within the trial court’s discretion. Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P.2d 681 (1968). An abuse of discretion arises only if no reasonable person would have taken the same position as the district court. See Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
“There is nothing in the record to indicate that the $71,645.65 the trial judge allowed to Evans is not a ‘reasonable’ fee. The record does disclose that Evans originally claimed $91,541.75. A hearing was held on the subject of attorney fees, and Richard C. Hite appeared on behalf of Evans as an expert witness. Hite testified that the $91,541.75 would have been a reasonable fee for the work done on the case. Hite gave no testimony that anything less than that amount would be unreasonable or that the $71,645.65 ultimately settled on by the judge would not be a reasonable fee.
“The trial court itself is an expert in the area of attorneys’ fees and can draw on and apply its own knowledge and expertise in evaluating their reasonableness. Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 676, 443 P.2d 681 (1968). In the present case, the trial judge awarded Evans attorney fees at a rate of $85 per hour for 842.89 hours. There has been no showing that the trial judge abused his discretion.
“Provident argues that the amount of attorney fees awarded was improper because K.S.A. 40-256 allows the award of fees for only one attorney or firm. It cites for support Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 713, 366 P.2d 219 (1961), which states:
“ ‘The statute [K.S.A. 40-256] provides for the allowance of a reasonable sum as an attorney fee to be recovered and collected as a part of the costs. It does not contemplate an amount in the nature of a speculative or contingent fee conditioned on winning the case, but only a reasonable fee for the appellee to pay his attorney for prosecuting the case, and the statute does not contemplate a fee for more than one attorney or firm of attorneys.’
“Evans correctly points out, and Provident admits in its reply brief, that Wolf did not involve a situation in which a claim was being made for fees based on the services of more than one attorney.
“Provident also cites Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P.2d 180 (1949), in support of its argument. The only relevant language in the opinion is as follows:
“ ‘Appellant’s contention the fee of $500 allowed was excessive has some merit. . . . Appellee seeks to justify the allowance as not excessive because two attorneys were employed by her. That is not the test. In the determination of what constitutes a reasonable sum under the statute the amount involved must always be one of the controlling factors. When that is given consideration, along with the fact there was no spirited trial but a submission of the cause solely on testimony given by appellee at a former trial, we feel impelled to hold the fee was excessive and should be reduced to $400.’ 166 Kan. at 656-57.
“The Tenth Circuit has cited both Akins and Wolf in a case in which it refused to increase the amount of attorney fees awarded:
‘Here the recovery was substantially less than the fees and expenses claimed. The total claim was based upon the services of two attorneys who were not members of the same firm and who included time and expenses in state court litigation prosecuted by the elevator company concerning the same subject matter but which was of questionable necessity or benefit in relation to the instant case. The statute warrants the allowance of an attorney’s fee based upon representation of a single attorney or firm. Wolf v. Mutual Benefit Health and Accident Assn., 188 Kan. 694, 366 P.2d 219 (1961). See also Akins v. Illinois Bankers Life Assur. Co., 166 Kan. 648, 203 P.2d 180 (1949). We are not impressed with the elevator company’s argument that since its attorneys were associated on this particular case they represented a firm within the contemplation of Wolf Nor do we think the court was required to compensate for all of the time devoted by these attorneys to extensive proceedings collateral to the present case, a substantial portion of which was abortive or for the unsuccessful purpose of avoiding federal jurisdiction. We think there could be properly weighed the necessity and productivity of the hours claimed in relationship to the circumstances of the litigation before it. Grain Dealers Mut. Ins. Co. v. Farmers U. Coop. E. & S. Ass’n, 377 F.2d 672, 682-83 (10th Cir. 1967).
“In our opinion, Akins and Grain Dealers stand for the proposition that the employment of two attorneys may not be used to justify an otherwise excessive fee. The language in Wolf may be read as an admonition that it is not reasonable to hire two attorneys to do the work of one. However, K.S.A. 40-256 simply requires that the total fee charged be ‘reasonable.’ We hold that a plaintiff may employ more than one attorney as long as the total fee is reasonable for the work required. Conversely, an unreasonable fee is not rendered reasonable for the purpose of K.S.A. 40-256 simply because a plaintiff hires more than one attorney. There is nothing in the record to indicate that the amount of attorney fees awarded by the trial judge was not reasonable; indeed, it was $20,000 less than the figure which Evans’ expert testified was reasonable.
“Provident does not argue that the fees were in any way excessive but that only one of Evans’ lawyers should be awarded fees. That argument is not supported by the plain wording of K.S.A. 40-256 or the questionable line of case law cited by Provident. The trial judge did not abuse his discretion in the amount of attorney fees awarded.” 15 Kan. App. 2d at 107-10.
Next, plaintiff contends the trial court abused its discretion in denying her request to discover the time spent and amount charged by attorneys for defendant Provident in this action. Plain tiff contends this was relevant information to what attorney fees should be awarded.
No correlation between the amount of time and money expended in defending a case and that expended in prosecuting a case is shown.
The control of discovery is entrusted to the sound discretion of the trial court and orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion. In re Marriage of Adams, 240 Kan. 315, Syl. ¶ 4, 729 P.2d 1151 (1986). Evans makes no attempt to show how she was prejudiced by the trial court’s ruling and, in fact, brought in her own expert witness to testify with regard to attorney fees. No abuse of discretion by the trial court is shown.
This brings us to the issues involving appellate attorney fees.
Plaintiffs brief contains a motion for additional attorney fees incurred in connection with the appeal. In the appendix to the brief is data on time expended to the date of the filing thereof (September 5, 1990).
In its decision, the Court of Appeals remanded the case to the district court for determination of appellate attorney fees. This is contrary to our Rule 7.07(b) (1990 Kan. Ct. R. Annot. 37), which provides:
“ATTORNEY FEES. Appellate courts may award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees.
“Any subsection (b) motion for attorney fees on appeal shall be made pursuant to Rule 5.01.
“An affidavit shall be attached to the motion specifying: (1) the nature and extent of the services rendered; (2) the time expended on the appeal; and (3) the factors considered in determining the reasonableness of the fee. (See MRPC 1.5 Fees.)
“The motion shall be filed with the Clerk of the Appellate Courts within fifteen (15) days after oral argument. If oral argument is waived, the motion shall be filed within fifteen (15) days after either the day of argument waiver or the date the case appears on the summary calendar, whichever is the later.”
Civil appellate attorney fee awards are to be determined by the appellate court hearing the appeal. Motions for attorney fees incurred before the Court of Appeals should be determined by the Court of Appeals. We note the motion filed herein is not in compliance with the rule. The data attached to support the motion is not in affidavit form. Additionally, nothing about the factors required by Rule 7.07(b)(3) is included. Further, the motion was filed more than two months in advance of oral argument before the Court of Appeals rather than “within fifteen (15) days after oral argument.” The requirement that the motion be filed after oral argument is logical, as it would include all time expended.
We conclude that the whole question of award of attorney fees for appellate work at the Court of Appeals level must be remanded to the Court of Appeals for its determination.
Plaintiffs supplemental brief filed on April 17, 1991, before this court after review was granted, contains a new motion for additional fees for appellate work. The supporting data is again included in the appendix and not in compliance with Rule 7.07(b) for all the reasons previously referred to in discussing the like motion filed before the Court of Appeals.
We believe it is the better practice for motions for awarding attorney fees pursuant to K.S.A. 40-256 and Rule 7.07 to be determined sequentially. Specifically, it would be inappropriate in petition for review cases to determine attorney fee requests on appellate work before us prior to the Court of Appeals determining attorney fee requests for appellate work before it. To hold otherwise could result in overlapping or gaps in fees if allowed. We note the data presented to us includes much time expended at the Court of Appeals level. After the Court of Appeals has decided the question on remand, counsel for plaintiff should request our consideration of the attorney fee motion filed herein if further consideration is desired. Failure to do so within 15 days shall be deemed abandonment of the motion.
All issues before us have now been determined. However, a unique double remand situation exists. The case is being remanded: (1) to the district court for entry of appropriate post-judgment interest; and (2) to the Court of Appeals for determination of the motion seeking an award of attorney fees for appellate work in the Court of Appeals. Obviously, the case cannot be remanded to two courts simultaneously. We conclude the procedure to be followed is this:
1. The case is to be remanded to the district court;
2. within 10 days after the district court has made its determination, it shall so notify the Court of Appeals; and
3. upon receipt of said notice, jurisdiction of the case shall be in the Court of Appeals which court shall proceed to determine the attorney fee matter remanded to it herein.
The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for the determination required by this decision. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for the determination required by this decision. The sequence of remands shall be as set forth in the opinion.
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The opinion of the court was delivered by
Martin, C. J.
: I. The first question concerns the validity of the contract of guaranty that the railroad would be completed to Richards, and this includes the power of the town company to enter into such a contract, and the authority of the general agent to bind the corporation. If the corporation had no right to build a railroad, yet, as a means of promoting its own interest, it might contract with a railroad company for the extension of its road to or through the town site, and aid it by the donation of town lots or money. ( Whetstone v. Ottawa University, 13 Kan. 320, 340 ; Fulton v. Land Co., 47 id. 621.) And if, in order to induce settlement, the town company should guarantee that the railroad would be built, and a person relying thereon should be induced to settle upon the town site at great expense, it could not be relieved of its obligation on the plea of want of power ; (Town Co. v. Morris, 43 Kan. 282, 284, and cases cited; Town Co. v. Russell, 46 id. 382; Mound City v. Snoddy, 53 id. 126;) nor could it escape liability on the ground that the board of directors failed formally to confer authority on the general agent to enter into the contract,. (Town Co. v. Swigart, 43 Kan. 292,) especially where it is customary for such agent to make and the corporation to act upon such contracts. (Durham v. Mining Co., 22 Kan. 232, 244 ; Building Association v. Martin, 39 id. 750.) Spivey testified that it was the custom of the general agent to make contracts to induce parties to locate upon the town sites, and to use his judgment and discretion as to the terms and conditions of such inducement, and that he made a large number of such contracts, and had authority to do so.
II. The town company claims that the letters of June 28 and June 30, respectively, constitute whatever contract was made by the agent with Lincoln; and, as the latter said nothing about the railroad in his letter, there was no contract of guaranty of its completion. These letters can scarcely be said to embrace the full terms of the contract, for in that of the general agent to Lincoln he asks him to rest assured that the railroad would be built and in operation, as stated to him when he was at Topeka, which indicates that Lincoln had‘not covered the whole subject in his letter. Besides, the main, if not the only, in ducement to Lincoln to remove his store from Matfield Green, where-he had a well-established business, to the new town site a mile away, was that Richards was to be the railroad town; and on the heading of the letter of June 30, by the general agent, as well as 'on all others written by him, was the following heading: “Arkansas Valley Town and Land Company. Town Property on the Túne of the Atchison, Topeka & Santa Fe Railroad and Auxiliary Lines.” There can be no doubt, upon the evidence, that the contract included the guaranty that the railroad would be built to Richards, if not in September, at least in the fall of-1886.
III. The evidence and the instructions of the court as to damages are complained of. When the contract was entered into, both parties were fully cognizant of the situation. The success of Richards contemplated the downfall of Matfield Green, and neither was possible without the building of the railroad to the former place. With the railroad, Richards was to blot out Matfield Green; without it, no business could be established there. By the procurement of the general agent, Lincoln placed himself in a hostile attitude to Matfield Green, so that a failure at Richards, which must be inevitable without the railroad, involved the ruin of an established and profitable business. This brings the case within the rule of Hadley v. Baxendale, 9 Exch. 341, decided in 1854, Baron Alderson stating the same, as follows :
‘ ‘ Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at tbe time they made the contract, as the probable result of the breach of it.”
The damages by the breaking up of Lincoln’s established business at Matfield Green were not as difficult nor as uncertain of measurement as those in the cases of Hoge v. Norton, 22 Kan. 374, 379, and Brown v. Hadley, 43 id. 267, 271, nor as some others that might be mentioned. (Heatwole v. Gorrell, 35 Kan. 692, 699.) Sedgwick, in his work on Damages (8th, ed.), section 182, says:
“Where it clearly appears that the defendant has interrupted an established business, from which the plaintiff expected to realize profits, the plaintiff should recover compensation for whatever profit he makes it reasonably certain he would have realized. Here, as elsewhere, the question is one of fact; whether the profit can be proved with reasonable certainty.”
And he cites the case of Chapman v. Kirby, 49 Ill. 211, 217, 219, where the court says :
“And to measure such damages, the jury must have some basis for an estimate, and what more reasonable than to take the profits for a reasonable period next preceding the time when the injury was inflicted, leaving the other party to show that by depression in trade or other causes they would have been less? Nor can we expect that in actions of this character the precise extent of the damages can be shown by demonstration. By this means they can be ascertained with a reasonable degree of certainty.”
We think it was proper for the jury to take into consideration the loss of profits incurred by Lincoln in the breaking up of his established business at Mat-field Green. In a projected business the loss of profits is often merely conjectural, and not the subject of any reasonable measurement. (Sedg. Dam. §183.) Such was the case in Town Co. v. Leonard, 46 Kan. 854, 357, 358, and an exact rule of damages was there available, namely, the cost of’ removing the hotel to Sherman Center, and placing it over a cellar of equal size and a foundation of similar kind as it was then resting upon in Itasca.
Finding no material error in the record, the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J. :
The only negligence relied on by the plaintiff for a recovery is that of the engineer in running at an unusual, unnecessary and dangerous,rate of speed. It is not claimed that the conductor was negligent in attempting to make a flying switch at a place where it was necessary to cross another rail road. Much stress is put on the fact of McDermott’s inexperience and want of knowledge of the dangers attending the performance of the particular duty-devolving on him in making a flying switch, and on the fact that the officer who employed him knew his want of experience. It certainly cannot be held that the company is guilty of greater negligence in employing an inexperienced hrakeman than he is in soliciting and accepting such employment. Experience in any line of business cannot possibly be gained in any other way than through actual employment in it. By entering the employment of the company as a hrakeman, McDermott held himself out as competent to perform his duties as such. Although the jury have found the rate of speed at which the engine and car were driven was greater than was necessary, and that this caused his death, they also find the rate to have been 12 to 15 miles per hour. While this rate does not impress us as remarkably high or indicative of carelessness on the part of the engineer, we cannot declare, as a matter of law, that it conflicts with the finding that it was unusual and unnecessary. The serious obstacle in the way of sustaining the general verdict is the twenty-eighth finding, from which it appears that the movements of the engineer were under McDermott’s own control. This being so, it is exceedingly difficult to understand how he can be exonerated from negligence while charging it on the engineer. If the engineer was bound to follow his directions, and did follow them, as the findings seem to indicate, the unnecessary speed was chargeable to McDermott rather than the engineer, and his widow claiming through him cannot recover on the ground of negligence on the part of the engineer. This view seems controlling to my brethren, and while the writer entertains great doubt whether the twenty-eighth finding ought to be construed as meaning more than that it was the duty of McDermott to signal the engineer to slack up at the proper time for him to pull the pin and pull ahead after it was pulled, and of the engineer to obey these signals, he yet .is not clear that its meaning is misapprehended by the other members of the court.
The judgment is therefore affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: This is a proceeding to reverse the ruling of the district court of Rice county on motions to confirm and set aside a sale of lands made on April 1, 1891. The purchasers only are made parties defendant in this court. A motion to dismiss is interposed, on the ground that there is a defect of parties, owing to the failure to bring in the original judgment debtors. The sale was of a half section of land, and the price paid for it was $76. On the hearing of the motion to set aside the sale, the attorney for the plaintiff in error tendered a bid on behalf of the savings bank of $2,088 for the land. It is conceded that the sale carried a full title. Under this state of facts, we think it would be shutting our eyes to the substance and grasping at a shadow to hold that the judgment debtors have any possible interest in upholding this sale, made before the passage of the act of 1893, known as the “redemption law.” Where there is any doubt of the property bringing a greater price on a resale than the amount for which it was first sold with the costs of a resale added, the judgment debtors doubtless are necessary parties, because their interests might be affected adversely by setting aside the sale, and so they doubtless would be where the redemption act applies; but as the price for which this land sold was less than 25 cents an acre, and one of the plaintiffs in error now offers to bid more than $2,000 for it, there is no substance in the contention that the original judgment debtors may be injured by a reversal of the orders complained of. On the merits of the case, we have no hesitation in saying that the sale ought to have been set aside; and we reach this conclusion notwithstanding the fact, insisted on by defendants in error, that the record fails to show that all the evidence introduced on the motions is contained in the case. The orders of sale, the sheriff’s return and the testimony of the defendants in error are here. The price at which the property sold is grossly inadequate. We might perhaps say that a bid of $76 on a half section of land in Rice county is merely a nominal consideration, and not a substantial price, especially in view of the offer of the plaintiff in error. , Two of the defendants in error are attorneys at law, the other is a banker. All of them testified. Mr. Perry, according to his own testimony, was requested to attend the sale as the representative of the plaintiff, J. M. Washburn, with instructions to bid the costs only. He testified that he examined the records in the district clerk’s office. He knew that the savings bank had a lien for $1,500 and interest, and that the sale would carry a full title. Whether he understood he was also representing the savings bank is not so clear from 'his testimony. It appears from the testimony of the three defendants in error themselves that they were the only bidders at the sale, and we think it very clear from -their own testimony that there was an understanding between them before the sale that each of them was in fact bidding in behalf of all, and that the competition was apparent, but not real. The sheriff’s return shows a sale of the east half of section 7 : to Samuel Jones, an undivided one-third; to J. A. Blair, an undivided two-thirds, but does not show the amount for which it was sold. It is only from the testimony contained in the case that we learn the price for which the land sold. The return was not good. The sale should have been set aside. The orders of the district court sustaining the motion to confirm and overruling the motions to set aside the sale will be reversed, and the case remanded, with directions to set aside the sale, on condition, however, that the Iona Savings Bank shall continue its bid of $2,088 for the land at any sale hereafter made under the judgments in the case.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: The errors assigned are very numerous. We have examined them all, but deem it unnecessary to make mention of any but the principal questions presented.
I. It is said that the negligence charged was that “the engineer and servants in charge of said train, suddenly, carelessly, and with gross negligence, backed said train across said highway, striking the wagon in which said plaintiff was riding.” On the trial, the plaintiff offered in evidence an ordinance of the city of Wichita, requiring the defendant to maintain and operate automatic gates at all street crossings where there were two or more tracks. This was objected to by the defendant, but the objection was overruled. The plaintiff proved, without objection, that no gates were maintained, and that no flagman was stationed at the crossing, and the court instructed the jury that if they found that an ordinance required the defendant to maintain gates across First street, that the defendant failed to comply with the ordi nance, and that such failure was the proximate cause of the injury, the defendant would be liable for the damages resulting from it. The jury, in answer to the forty-fifth question, find that it was negligence on the part of the company not to maintain automatic gates at this crossing. The failure to maintain gates at a crossing where the city ordinance required them might be, of itself, such negligence as would render the company liable for an injury received by a person crossing the track, and where the failure to maintain the gates is relied on as the ground of recovery it ought to be alleged in the petition. A careful examination of the whole case presented convinces us, however, that the.jury were not influenced by this testimony. The failure to maintain the gates was not relied on for a recovery. There was an abundant showing of negligence without it.
The forty-fourth special question submitted by the defendant was, “Q. Do you find that the defendant caused plaintiff’s injury by wilful and wanton negligence? A. Yes.” We think the testimony of the witnesses for the defendant, and especially that of the engineer, shows that the switching crew were not only guilty of negligence, but of very gross negligence. The car which struck the wagon was standing, as the jury find, 15 to 18 feet south of the north line of First street. The engineer testifies that he could not see the rear cars because of cars on the Wichita & Western track. It is clear from all the evidence that no person was stationed upon or near the car which caused the injury, either to observe and warn persons passing along the street, to regulate the movement of cars, or to give signals to the engineer; nor were there trainmen so stationed along the train that signals could be readily transmitted to the engineer by any one on the ground near First street. The foreman was operating in utter disregard of the safety of persons passing along the street, and we think the finding of the jury of wanton negligence in the management of the train is not only abundantly sustained by the evidence, but is uncontradicted by any witnesses except McCambridge himself, and even his testimony fails to show that he was taking that care which ought always to be taken under similar circumstances. Under this state of facts, the error with reference to the gates appears unimportant.
II. The claim that the plaintiff was guilty of contributory negligence as a matter of law, merely because the horse passed along the street on a slow trot, cannot be sustained. Her conduct was of course a proper subject of consideration by the jury, and the question whether she acted with ordinary prudence was fairly submitted to them, and their finding was in her favor. As the car which caused the injury was standing still until the horse was almost upon the track, and as the engine which propelled it was a long distance away, out of sight, and especially as no trainman was in sight to give any warning that the car was likely to move suddenly, we'are unable to perceive anything in the conduct of the plaintiff sufficient to bar her recovery, and certainly not in opposition to the finding of the jury.
III. At the request of the defendant, 52 special questions were submitted to the jury. They were not all answered when firs* returned into court, and the jury were again sent out. As the verdict was finally received, the eighth, fifteenth, thirtieth, thirty-first, thirty-second and fiftieth questions were answered “ Don’t know.” Numerous cases are cited to the effect that these answers are improper, and that the court should have required the jury to return proper answers to them. It is only pertinent, properly framed questions, which can be intelligently answered from the testimony, that the court is required to compel an answer to. We do not deem it of any general interest to enter into a minute analysis of these questions, or of the testimony bearing on them, but shall content ourselves with the remark that the answers are fairer than the questions, and about as good as could be given under the testimony. The twenty-eighth question and answer were : "Was there anything to prevent plaintiff from seeing the engine when 110 feet from the main track, if she'had looked in its direction? A. We cannot answer, as no direction is given.” There is very little significance in this question, and we think the answer is only subject to criticism because of the concluding portion of it. What the jury doubtless meant is,.that, from the testimony, the exact direction of the engine from the point named, when the plaintiff passed it, could not be determined, and we think this is the truth.
IY. It is claimed that the damages are excessive, given under the influence of passion and prejudice, and reference is made to the finding that the defendant was guilty of wanton and wilful negligence, and awarded $1,000 exemplary damages, as evidence thereof. There was a great deal of testimony by physicians with reference to the nature of the plaintiff’s injuries. That she was severely hurt and rendered delirious several days is beyond dispute. Whether her injuries are of a permanent character, and such as the testimony in her behalf tended to show, was a proper matter for the consideration of the jury, and we 'find nothing in the award of damages to shock our sense of right, nor are we at all clear that this was not a proper case for exemplary damages.
V. Many questions were raised on the introduction of testimony, and are urged in the brief, but we find nothing we deem reversible error, nor worthy of special mention. Numerous criticisms of the instructions are made,- but on the whole we think the case was fairly submitted, and that the verdict was right.
The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J. :
I. A. Kness appeals from a conviction for the larceny of a horse, and insists that the evidence in the case did not warrant the instructions of the trial court, nor sustain the verdict of the jury. He asserts that the testimony shows that the animal stolen was a gelding, and that proof of the larceny of a gelding does not support the charge of the larceny of a horse. He insists that the court failed and refused to make this distinction in charging the jury.
The testimony is not preserved in a bill of exceptions, and without it we cannot determine the questions raised by the appellant as to the charge of the court, nor as to the sufficiency of the evidence. What purports to be a stenographer’s transcript of the evidence in the case is attached to the record, but it is not referred to nor included in the bill of exceptions. It therefore forms no part of the record, and cannot be considered upon this appeal. (The State v. McClintock, 37 Kan. 40 ; The State v. Allison, 44 id. 423 ; The State v. Tilney, 44 id. 581.)
The judgment of the district court will be affirmed.
All the Justices concurring.
|
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] |
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