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The opinion of the court was delivered by
Johnston, J.
: On the morning of October 23, 1890, Andrew C. Moffatt was in a wagon driving a team of horses along a highway in Wyandotte county, and, at an intersection of the highway with the Missouri Pacific railway, he was struck and fatally injured by the locomotive of a passenger-train. It was a regular train, which was about on time, running at the usual rate of speed, and the engineer and fireman in charge were in their proper places. They had sounded the whistle for the crossing at a point 80 rods away, and about the same place the bell was rung, but it does not appear that the whistle was again sounded ; and although those in charge of the train claim that the bell was rung continuously until the crossing was passed, that is a subject of dispute. The crossing is in a rural district, and west of the railroad — the direction from which Moffatt was coming — there is a high hill which obscured the view of the train, and to some extent deadened the noise of its approach and the sound of any warnings that were given. A dense fog prevailed on that morning, and the engineer did' not see Moffatt going upon the track until the train was within 50 feet of the crossing; and while those in charge of the train did everything in their power-to stop and prevent injury to Moffatt, after they discovered Mm, he was struck, and within a few hours afterward he died from the resulting injuries. He was a widower, and left six children, whose ages range from 14 to 22 years. This action was brought by the children, who allege that they were lfving with their father, and were wholly dependent on him for their maintenance and support.
The issues upon the trial were, whether the railway company was guilty of negligence in failing to give sufficient warnings of the approach of the train to the crossing, and whether the deceased was guilty of contributory negligence. The trial was with a jury, which found against the railway company, and awarded damages in favor of the plaintiffs in the sum of $8,000.
As Moffatt was a resident of Missouri at the time of his injury and death, the action was properly brought by his children, under section 422a of the civil code. The objections made to the validity of that provision of the code have been held to be unavailing. (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759.)
An attack was made upon the petition because of the indefiniteness of the averments respecting the neg ligence of the company. The allegations of the petition are sufficiently specific in stating that the fault of the company was in approaching the crossing with its engine and cars without giving any warning, and without using the bell or blowing the whistle. It contains some averments of a very general nature relating to the dangerous character of she crossing, of running the train at a high rate of speed, and of not using some other and different methods than blowing the whistle or ringing the bell for the protection of those who might be upon the crossing. These general averments are insufficient to justify the admission of proof as to any negligence of the company beyond the failure to give proper signals and due warning of the approach of its train. If other acts of negligence are relied on, they should have been distinctly set forth; and, when the court denied the motion to make the averments more definite and certain, no other proof of negligence should have been received, nor should any other grounds of recovery have been submitted to the jury than those which were properly pleaded. Although there was no averment or proof that the speed of the train was unlawful or negligent, the trial court enlarged the issues, and, by an instruction, submitted to the jury the question of whether the company was guilty of negligence in running the train at a very high rate of speed. The jury responded with a finding that 10 miles an hour was a dangerous speed at such a place, and that the railroad company was guilty of negligence by reason of running its train at a very high rate of speed, while approaching the crossing. It was a passenger-train, then running at a speed of from 30 to 32 miles an hour, which was the usual speed of that train. The crossing was in an open country, where there was no statutory or municipal regulation with respect to the speed of trains. The demands of the public and the necessities of modern business require that such trains should be run at a rapid rate, and railroad companies would hardly be justified in slacking the speed at every such highway crossing to avoid the risk- of a collision with some one who was passing over the same. Even if the rate of speed had been pleaded as p specific act of negligence, it could hardly be held, under the circumstances, that the speed at which the train in question was run was,negligent or unlawful. The court, however, without justification, made the speed of the train an element of negligence, and the jury evidently made it a basis of recovery. In this there was error.
It was the duty of the railway company to give reasonable and proper warnings for the protection of travelers on the highway when its train approached the crossing. The number and kind of signals required depended upon the character of the crossing, the speed of the train, and the surrounding circumstances. It is earnestly argued that the statutory signals having been given, the company had discharged its full duty to the public and to Moffatt. Complaint is therefore made of an instruction in which it is stated that
‘ ‘ The statute which requires a railroad company to give certain signals at street crossings was not intended to furnish a standard by which to determine in every case whether'or not such company had fully discharged its duty to prevent injury to the traveling public. It was intended, rather, to prescribe the minimum of care which must be observed in all cases.”
Under ordinary circumstances, in the open country, the railroad company can run as many trains and at as great a rate of speed as is consistent with the safety of its passengers. In such cases, it will ordinarily be sufficient to give the signals that are required by statute. Where, however, the crossing is a dangerous one, and where the road is constructed in such a way and place as to make it more than usually difficult to see the train or to hear the signals that are given, additional signals may be required. In this case, it appears that the railroad is constructed between thus bluff and the river, and that the bluff intercepts the vision of travelers approaching from the west on the highway. The testimony tends to show that on a foggy morning, like the one when the injury occurred, the bluff so obstructs the transmission of sound that the statutory signals cannot be heard by a traveler approaching the crossing. The legislature did not undertake to prescribe the standard of care required in all cases. It is to be determined, rather, from the situation and circumstances surrounding it. It is the duty of the railroad company, when the statutory signals or warnings are insufficient, to give other and additional warnings, such as reasonable care and prudence would dictate under the circumstances of the particular case, and the question of negligence in such a case is for the jury to decide. The view urged by the company in this case was presented in A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284. It was there said : “We are unable to adopt the theory that the performance of the statutory requirements is the full measure of the company’s duty toward the public at crossings. Circumstances may arise where the giving of other warnings or signals may be necessary and obligatory upon the company.” Instances are there given where it is held that it would be reasonable and right to require additional warnings, so as to avoid injury to persons or property that might be passing over the crossing. "We do not determine that additional warnings were necessary in this case, but only that the situation and circumstances were such as to justify the instruction that was given and the submission of the question to the jury.
In an effort to show that the statutory signals were insufficient at the crossing in question, the testimony of a witness who stood on the highway near the crossing and listened for the signals and noises of several passing trains was received, over the objection of the company. We think the testimony was competent. It tended to show that, on account of the intervening bluff, a traveler approaching the crossing could not hear the signals given 80 rods away, and was of some value in the determination of the question of whether or not Moffatt could reasonably have heard the approach of the cars under the circumstances existing at the time and place where the casualty occurred. If the test is made at the place and under substantially similar circumstances, it is difficult to see how better proof upon that question can be obtained. The testimony might be weakened to some extent by reason of the differing conditions of the atmosphere when the test was made, but this would affect its weight rather than its competency. Testimony of a like character was received on behalf of the railway company, and the further testimony which it offered upon the question and which was excluded was of little, if any, value.
Although there was no testimony whatever as to the earnings of the deceased, the jury, in answer to a special question, found that his earnings per year were about $2,000. Findings were also made that previous to his death he had contributed to the support of the children ; and, although several of them had reached majority, it is found, without testimony, that they derived their entire support from their father. One witness stated that the family were dependent upon the father for their support, but a further examination developed that he had no knowledge upon the question, and that the statement was a mere opinion which was not admissible in evidence. The unsup-' ported findings bore directly upon the amount • of damages to be awarded, and were therefore important.
The court erroneously refused to instruct the jury upon the relative value of positive and negative testimony. There was positive testimony offered by the company that the hell was rung continuously from the whistling-post to the crossing. In opposition to this there was the negative testimony of persons upon the train that they did not hear the ringing of the bell. In view of the condition of the testimony, the refusal of the court to give the instruction requested is contrary to the decisions of this court. (K. C. Ft. S. & G. Rld. Co. v. Lane, 33-Kan. 702 ; C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 id. 121; S. K. Rly. Co. v. Hinsdale, 38 id. 507 ; Mo. Pac. Rly. Co. v. Pierce, 39 id. 391.).
For the errors mentioned the judgment will be reversed, and the cause remanded for a new trial.
Allen, J'., concurring.
Martin, C. J., having been of counsel, did not sit.
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The opinion of the court was delivered by
Martin, C. J.
: The original action was commenced December 20, 1890, by the parents of George D. Ure, a child two years and one week old, to recover damages for injuries resulting in his death on April 1, 1889. A trial at June term, 1891, resulted in a verdict and judgment in favor of the plaintiffs for $3,000,. and the defendant prosecutes its petition in error in this court for a review of said judgment.
The material facts, either undisputed or found by the jury in answer to questions propounded, may be summarized as follows : The child was killed at Grain-field by a passenger train of the defendant, running east, which struck him on the track. The home of the child was a little north of the railroad, and he was first seen, by some of the witnesses, in the slight depression or ditch north of the track, and creeping toward the rails, about 620 to 650 feet west of the depot and 336 feet east of the switch. The engine was west of the switch and 500 to 600 feet from the child when the engineer first saw him near the track and creeping toward the rails. He was not at any public street or crossing. The engineer discovered the presence of the child in a dangerous situation near the track in time to stop the train and avoid the injury if he had immediately used all the appliances provided on his en gine for that purpose, and the train could have been stopped within 450 to 500 feet; but the engineer did not use proper care to stop his engine, and did not immediately use the appliances available for that purpose ; and the plaintiffs were in the exercise of ordinary care and prudence as to the child at the time, and his mother did not negligently permit him to wander upon the track. The general verdict is supported by the findings ; but the plaintiff in error claims that these are not justified by the evidence, and that the answers favorable to a recovery may have been influenced by erroneous instructions of the court. It contends that there is no distinction in principle between the time when duty arises toward a conscious and an unconscious trespasser upon its track ; whereas, the court below stated to the jury that such a distinction did exist in law, and that, as to a child so young as not to be chargeable with contributory negligence, the duty of the railroad company was not limited to the time after it was actually discovered to be in a place of danger, as in the case of a conscious trespasser, but that it was the duty of the railway company to keep a reasonable lookout, and if the unconscious trespasser could have thereby been seen in time to avoid the casualty, by stopping the train, and it failed to do so, then it was liable in damages for the injury. The authorities on this point are quite conflicting. The defendants in error claim that the evidence established the facts, first, that the engineer, by the exercise of reasonable care and watchfulness in the running of his train, could and should have discovered this child in a dangerous position near the track in time to have stopped the train and prevented the injury; and, secondly, that the engineer actually did see the child in dangerous proximity to the track in time to have stopped liis train and prevented the injury, if he had at once used the appliances provided on his engine for that purpose, but that he failed to do so. The second contention of the defendants in error is established by the findings of the jury, and we cannot say that there is no evidence to support them. We have great doubt of the correctness of the answer of the jury that the engineer saw the child 500 or 600 feet away, and we think the weight of the evidence is that it was not seen before the engineer reached the switch ; yet the evidence of the engineer is not entirely satisfactory, and probably the jury disregarded it, as they had a right to do, if the evidence of other witnesses on this point was more credible.
We deem'it unnecessary to decide whether the court was correct, or not, in making a distinction as to the point of time when duty of the railroad company arises toward a conscious and an unconscious trespasser upon its track. No question was propounded to the jury as to the distance at which the child might have been seen if the engineer had been keeping a proper lookout; and these most material questions in the case were directly propounded to the jury in the plainest of terms: “How many feet was George D. Ure east of the engine when engineer Trow first discovered him ? ’ ’ And ‘ ‘ What was the distance ahead of the engine when the engineer first saw the child near the track?” the answer to each question being “From 500 to 600 feet.” It does seem reasonable that the jury understood either of these questions as seeking an answer as to what distance ahead of the engine the child was when he could have been seen by.the engineer, if he had been looking ahead on the track; and in this view, it is immaterial whether the instructions of the. court on this point were correct, or not, and we deem it unnecessary to consider them. Some complaint is made upon the admission of testimony, but we think there was no material error in that respect.
The judgment of the court below will be affirmed.
Allen, J., concurring.
Johnston, J.
: In my view, the testimony does not sustain the finding that the engineer discovered that George D. Ure was in a dangerous situation near the track in time to have stopped the train and avoided the injury. It was probably the result of the erroneous charge given to the jury, in holding that the engineer must anticipate the presence of trespassers upon the track, and that, if he could have seen the boy in time to have stopped the train, and by the exercise of proper care have avoided striking him, the company is liable. It is -well settled that the duty of the company toward the-trespasser is to avoid injury to him after his peril is actually discovered. While the boy could not have been guilty of contributory negligence, no duty arose toward him until those in charge of the train discovered that he was in a place of danger. After he was seen, a higher degree of care was required of the trainmen than if he had been an adult, and if they then ran the train upon him without doing all they reasonably could to prevent the injury, the company would be responsible. As the duty toward him did not commence until his presence was discovered, and as there can be no negligence without a breach of duty, the instruction of the court upon this question was erroneous and misleading.
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The opinion of the court was delivered by
Martin, C. J.
: I. The original action was brought by the defendant in error against the plaintiff in error to recover damages for the alleged negligent burning of a grain elevator, a hay-press, some baled and a quantity of loose hay, and other property. The trial resulted in a verdict and judgment for the plaintiff, September 30, 1890, for $2,624.44 damages, $150 attorney’s fee, and costs taxed at $272.75. The allegation of negligence was as follows :
“ While said defendant was engaged in operating the defendant’s railroad, and while running its locomotive and train along said railroad and past the premises of plaintiff, as aforesaid, the defendant so carelessly and negligently managed and controlled its locomotiveand train that fire escaped therefrom, and on the 29th day of March, 1890, burned the following-described property belonging to the plaintiff.”
The instructions given to the jury assumed that on proof of the setting out of the fire by the defendant’s locomotive it devolved upon the .railroad company to-show, not only that the locomotive was properly and carefully managed and controlled, but that it was sufficient and in good condition and repair. This, would doubtless be so under the act of 1885, (¶ 1321, Gen. Stat. 1889,) if the allegation had been general, to the effect that the fire was negligently caused by the defendant in operating its railroad; but the averment restricts and limits the charge to the negligent management and control of the locomotive and train, and, in the absence of any amendment, the court was. not warranted in saying that in order successfully to defend itself the company must prove that the locomotive was sufficient and in good condition and repair. The cause of action in St. L. & S. F. Rly. Co. v. Fudge, 39 Kan. 543, originated prior to the enactment of the statute of 1885, but the general principle of pleading therein as to limiting the charge of negligence is applicable even under the statute, where the allegation of negligence is specific and not general. The defendant had a right to assume that any complaint of the insufficiency or want of repair of the locomotive was waived, the plaintiff relying upon the specific charge that the fire was caused by its negligent management and control. As further bearing on the limitation of the issue by the pleadings, see Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 662.
II. The defendant pleaded and largely relied upon the contributory negligence of the plaintiff as a defense, such negligence arising from permitting dry hay to accumulate around the building in large. quantities, extending therefrom to the tracks of the company, so as readily to catch fire from sparks emitted from the locomotive when properly managed. A great deal of the evidence related to the condition of the building and the premises around it, the same being used for the baling of hay and the storing of the same, both baled and loose. The defendant submitted 10 particular questions of fact in relation to the condition of different parts of the premises, three questions pertaining to the age of different parts of the building, and one as to the same never having been painted. The first 10 questions were objectionable in form, No. 1 being as follows: “Is it not a fact that the fire caught in the dry grass and rubbish that had accumulated near the northeast corner of the building?” instead of directly asking the jury “ Did the fire catch in the dry grass,” etc. Questions in a negative or a leading form should never be submitted, and these were both leading and negative, and any direct answer to them by yes or no was liable to be misunderstood. The court refused to submit the 14 questions referred to, and was proceeding to state the reasons therefor, when defendant's counsel objected to any argument in the presence of the jury, but this was overruled, the defendant excepting, and the court, referring to the first 10 questions, said, among other things: “ Suppose these questions should be answered as the defense asks that they should be answered — that this combustible material was scattered around there — it does not show that the plaintiff was guilty of negligence. . . . It gives no light to the court or any reviewing court.” We regard the remark as improper in the presence of the jury. It was a statement as a proposition of law that the scattering of combustible material upon and over the plaintiff’s premises was not negligence. That -was one of the principal questions to be submitted to the jury, and they would be very liable to interpret this remark of the judge as a declaration that all the evidence as to the existence of combustible matter around and about the premises was immaterial. The first 10 questions seem quite pertinent to the issue, although the answers to them in the manner most favorable to the defendant may not have been sufficient alone to overthrow a verdict in favor of the plaintiff. We do not understand this, however, to be the test of the competency of particular questions of fact requested. If the questions are plain and direct in form, are within the issues, are not repetitious, and there is evidence upon which they may be intelligently answered, they ought to be submitted, so that the detailed facts may appear of record; thus enabling the trial court, upon further proceedings, or a reviewing court afterward, to form an intelligent judgment upon the particular issues sought to be elucidated by the questions and answers. It would have been proper to submit the other four questions, for they were remotely within the issues, but they were not especially material, and the refusal of the court to submit them would not be reversible error. It is generally error to refuse to submit questions of fact drawn in proper form, material to the case, and based upon the evidence. Section 286 of the civil code has been uniformly held to grant a right to the parties to have proper questions of fact submitted to the jury. (Bent v. Philbrick, 16 Kan. 190 ; C. B. U. P. Rld. Co. v. Hotham, 22 id. 41; A. T. & S. F. Rld. Co. v. Plunkett, 25 id. 188, 198 ; City of Wyandotte v. Gibson, 25 id. 236, 243 ; W. & W. Rld. Co. v. Fechheimer, 36 id. 45, 51; Kansas City v. Bradbury, 45 id. 381, 388.) Of cotírse, it is the duty of the court to revise the questions, to strike out or amend those drawn by the attorneys in improper form or equivocal in their meaning, and those outside of or immaterial to the issues, as also such as are not based upon any evidence in the case. (Mo. Pac. Rly. Co. v. Holley, 30 Kan. 465, 472, 473.)
III. The railroad company assigns as error the failure of the court to give the following to the jury:
“You are instructed that where a man stores hay in buildings located in close proximity to a railroad track, and stacks hay on the outside of such building and against such building, and allows and permits loose hay to blow and scatter in and around such premises in such manner as to make it reasonable and probable that such scattered hay will be fired by sparks emitted from engines passing up and down such railroad track, the plaintiff is guilty of such carelessness and negligence as will bar him from any recovery for loss of property from such fire.”
And the company also complains of the giving of the following instruction on the same general subject:
“But if you further believe that plaintiff allowed hay or other rubbish to accumulate on or about his property, or left any cracks or openings in his building through which fire from a passing locomotive could readily communicate to the hay or other inflammable master inside such building, and that the fire was first communicated to the scattered hay or other inflammable rubbish so left exposed, or to the hay or other inflammable matter exposed through the cracks or openings of the buildings, and you further believe that the doing or permitting these things on the part of plaintiff were what an ordinarily prudent man would not have done under the same or like circumstances, then plaintiff cannot recover because of bis negligence.”
Counsel say:
‘ ‘ In this instruction the court fairly submitted the facts concerning the condition of the premises and how the fire was communicated to the building, . . . a state of facts which . . . can amount to nothing less than contributory negligence, and which must be pronounced such by the common judgment of all reasonable men. The court then leaves it to the jury to say whether it is negligence or not, and directs them that their determination of the question depends upon whether they believe that the doing or permitting these things is what an ordinarily prudent man would not do in a like case.”
It is our opinion, however, that the instruction requested was properly refused, for it did not embrace all the elements necessary to constitute negligence as a matter of law. It did not include the conditions of the wind, the weather, the earth, the frequency of the passing of the locomotive, the length of time that the premises had been littered, whether temporarily or habitually, nor other circumstances which might properly be taken into account in the solution of the question of the plaintiff’s contributory negligence. Neither did the instruction given by the court aim at an enumeration of all the circumstances which would justify a finding of negligence, but after reciting what the evidence tended to prove, it was properly left to the jury to say whether an ordinarily prudent man would have done so under the same or like circumstances ; this being the test of negligence. There was no error in the refusal of the instruction, nor in the instruction given by the court.
IV. The court instructed the jury to allow interest on the amount of the loss at 6 per cent, per annum from the date of the fire to the time of trial. A recovery of damages for simple negligence of a party to whom no benefit could accrue by reason of the injury inflicted does not include interest as such. Neither the act of 1885, nor chapter 51, General Statutes of 1889, relating to interest, in terms authorizes it; and, in the absence of a statute, we think interest is-not allowable any more for damages by fire than for the killing of cattle. (A. T. & S. F. Rld. Co. v. Gabbert, 34 Kan. 132, 136, 137 ; Kenney v. Railroad Co., 63 Mo. 99, 102 ; Atkinson v. Railroad Co., 63 id. 367; Sargent v. Hampden, 38 Me. 581, 585, 586.)
The judgment must be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.:
I. Counsel for plaintiff in error contend that the district court had no jurisdiction of the subject of the action, and that relief should have been sought in the probate court by way of contribution, and sections 39, 58, 59, 60, 61 and 62 of chapter 117, General Statutes of1889, being an act relating to wills, are cited in support of this position. It is *our opinion, however, that where relief is sought only as to real estate, and no part thereof has been sold for the payment of debts, and no division has been made, an heir may have specific relief as to the property itself, and need not pursue the circuitous remedy of contribution in the probate court.
II. It is virtually conceded in the briefs of defendant in error John Judd that Sadie Runlde Mott was incompetent, under section 322 of the code, to testify as to the transaction or communication with William Judd relied on as proof of the marriage; but it is claimed that the error was cured by the renunciation made on her behalf. At the time of the renunciation, however, all claim had been withdrawn to the effect that the plaintiff below might recover as the illegitimate son of William Judd, and it was necessary to prove the marriage in order to give him any standing whatever in court. His mother had been made a defendant, but she was united in interest with the plaintiff, and might have been joined with him. In her answer she claimed a one-half interest in all the property, and her testimony in support of the marriage was more in her own behalf than in support of the claim of her son. It would not do to allow her to experiment with the double claim in behalf of herself and her son until the close of the evidence, and then make her incompetent testimony competent for her son by withdrawing her own claim. On account of this error the judgment must be reversed; but, as Mrs. Mott has now disclaimed any interest, she will be a competent witness as to the alleged marriage on the next trial.
III. The plaintiff in error complained of the admission in evidence of certain statements and declarations of William Judd to Doctor Elder and others concerning his relations with Sadie Runkle, and tending to prove a common-law marriage and the paternity of her son. We hold, however, that the evidence was competent under the rule that allows the declarations of a deceased person to be given in evidence where the fact of relationship, descent, birth or marriage is in controversy, and the declarations concern his family affairs. ( Smith v. Brown, 8 Kan. 609, 620 ; 1 Greenl. Ev. § 134; Betsinger v. Chapman, 88 N. Y. 487, 496, 499; Branch v. Manufacturing Co., 56 Fed. Rep. 708, 713.)
IV. Certain witnesses acquainted with William Judd in his lifetime, and who saw the little boy in court, were allowed to testify on the point of family resemblance between the two. In our opinion, this was not a proper subject of expert or opinion testimony, and it ought to have been excluded. (Keniston v. Rowe, 16 Me. 38, 40; Eddy v. Gray, 4 Allen, 435, 438.)
V. A photograph of William Judd was admitted in evidence for the purpose of comparison of features with the child in court. While in most cases evidence of family resemblance by view and comparison of the jury is of little value in proof of parentage, yet it has often been held admissible where the child has attained an age when its features have assumed some degree of maturity and permanency. Where the child is a young infant, it has been held best not to exhibit it to the jury. Much must be left to the discretion of the trial court, however, as to the proper age, and we would not feel warranted in a reversal of the judgment in this case on account of the child’s appearance before the jury. (The State v. Danforth, 48 Iowa, 43, 47; The State v. Smith, 54 id. 104; Gilmanton v. Ham, 38 N. H. 108, 112, 113.) And where the putative father is dead, and a photograph, proven to be a good likeness of him, is offered in evidence for the purpose of comparison with the child in court, we think it admissible. (2 Rice, Ev. § 435, et seq.; Udderzook v. Commonwealth, 76 Pa. St. 340, 352, 355 ; People v. Webster, 68 Hun, 11, 17.)
The instructions given to the jury to aid in answering the two questions whether Sadie Mott, formerly Sadie Runkle, was the wife of William Judd at the time of his death, and whether John Judd was the son of William Judd, pretty fully covered the subject; but as to the alleged contract of marriage being executory and conditional, and not executed and absolute, see Carmichael v. The State, 12 Ohio St. 553, 559, 560; and Port v. Port, 70 Ill. 485, 488, 490.
We have purposely refrained from the expression of any opinion as to the sufficiency of the evidence to sustain the findings of the court and the jury that there was a marriage between William Judd and Sadie Runkle, for, as the case must go back for a new trial, the parties will have opportunity for the introduction of any new evidence which may be disclosed to throw light upon the subject.
The judgment will be reversed, and the case remanded for a new trial.
Johnston, J., concurring.
Allen, J., dissenting.
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The opinion of the court was delivered by
Allen, J. :
I. The principal contention for the plaintiff in error is that the train on its road, being a mixed freight- and passenger-train, on the older .road, and within its yard limits, was entitled to take the crossing ahead of the freight-train on the Missouri Pacific road; that the engineer brought his train to a full stop at the proper distance from the crossing, gave the customary signal, and started forward, assurqing that the persons in charge of the Missouri Pacific train would concede his right to make the crossing first-; that the engineer and other employees of the plaintiff in error performed all their duties; that the injury is chargeable solely to the neglect of the employees of the Missouri Pacific company, and that it alone is liable for the plaintiff’s injuries. The fallacy of the position of counsel lies in the assumption that the employes of the plaintiff in error had performed their full duty to passengers on their train when they had done everything necessary to entitle them to go ahead over the crossing in advance of the train on the other road, and were absolved thereafter from all duty to look after the safety of the passengers. Persons charged with the conduct of a train carrying passengers are not so lightly relieved of responsibility. No such easy limits to their care can be allowed. It is clear, even from the testimony of the witnesses introduced by the plaintiff in error, that the train on the Missouri Pacific road was in motion at the time the train of the Chicago, Kansas & Western started toward the crossing, and that it did not stop until the collision occurred. This is not a case between the two companies to recover damages to property of one from the other. In such an action, doubtless, the party most at fault could not recover from the other; but in an action by a passenger, it is no defense for one of the defendants to show merely that the fault of the other exceeded its own. It may be freely conceded that the employees of the Missouri Pacific company were negligent, or even more negligent than those of the Chicago, Kansas & Western, without even interposing a serious obstacle in the way of plaintiff’s recovery against both companies. The jury may have regarded it as a want of that high degree of care due to a passenger for the engineer of the Chicago, Kansas & Western to start toward the'crossing when he saw another train in motion toward it, and that he should have waited until he saw that they actually did what he assumed they would do — come to a full stop. They may, and doubtless did, regard it as the duty of the engineer, in case he saw fit to start toward the crossing, to keep close watch of the Missouri Pacific train, and to have stopped his train unless it was clear that he could pass the crossing in safety. None of the special findings negative either of these propositions. The fallacy of the chief contention on behalf of the plaintiff in error being perceived, its special claims are easily disposed of. The petition charges more than a failure to' stop. It charges negligence on the part of those in management of both trains in each attempting to cross ahead of the other, and we think fairly includes their whole conduct in the matter. This case does not rest on a mere presumption of negligence, arising.from the fact that a passenger was injured by a collision, but on testimony clearly showing a want of that measure of care due to a passenger. , It rests on actual proof of- negligence, not because the engineer failed to back his train off the track, as counsel suggest, but because he ran his train into a danger he ought to have foreseen and avoided.
II. Error is assigned on the ruling of' the court excluding the rules made by the board of railroad commissioners governing the movements of trains at crossings. We shall assume, though without deciding the question, that the board of commissioners had the power to make such rules, and that the companies, when properly notified of them, would be bound to obey them ; yet we think the ruling of the court, that it was incumbent on the party offering them to first show that the Missouri Pacific Railway Company had been served with a copy of them, or in some manner informed of their provisions, was correct. No attempt was made to make any such showing. The letter by the secretary of the board to the first vice-president of the Missouri Pacific company, informing him of permission granted to another railroad to omit stopping one of its trains at a certain point, is clearly not equivalent to a service-of the rules on the company. These rules were in fact afterward admitted in evidence as a part of the rules governing the employees on the trains of the plaintiff in error. We think there was no error in the ruling of the court.
The other claims of error in the admission and rejection of evidence are without force. The error assigned on the instructions is, in substance, the main contention already disposed of, and rests on the claim that the employees of the company might abate their watchfulness, and safely rest on the presumption that the employees of the other company would do everything their duty required them to do. Under the testimony, there is no force in the claim that the damages awarded are excessive.
The judgment is affirmed:
Johnston, J., concurring.
Martin, C. J., having been of counsel, did not sit.
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The opinion of the court was delivered by
Allen, J.
: The question discussed at length in the brief for the plaintiff in error is not presented by the record before us. The extent of the personal liability incurred by A. Gertrude Robinson to the plaintiff by giving a bond to pay the debts and legacies due under the will of her deceased husband might have been determined when this action'was tried on its merits, if the petition had contained proper averments charging a personal liability ; ■ but the petition contained no such averments. Judgment was asked and rendered against A. Gertrude Robinson in her representative capacity only. There was no personal judgment asked or rendered against her-, and the representatives of her personal estate are not the proper parties against whom a revivor may be had. (Insley v. Shire, 54 Kan. 798.) Whether the facts we have stated disclose a personal liability against P. K. and Roy M. Robinson for the full amount of the indebtedness of M. L. Robinson to the plaintiff, which might be' -enforced in an action brought for that purpose, we need not now determine, because the record does not raise the question.
In passing on the motion, the court made no special findings, but determined that the order of revivor ought to be set aside. We might perhaps with entire propriety rest- our affirmance of the order on the ground that no notice of the application to revive had been given. We think the consent to a revivor, given by an attorney without express authority from his client, ought not to preclude the client-from a hearing on the merits of the application, and especially so where the authority of the attorney to act at all in the matter is doubtful. Affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J. :
On December 20, 1890, in the district court of Cowley county, E. D. Eddy recovered a judgment against George S. Howard, Charles A. Howard, T. H. McLaughlin, and some other parties, for $1,969.33. Subsequently an execution was issued for the enforcement of the judgment, and on December 9, 1891, on the application of the above-mentioned debtors, the probate judge of Cowley county, without notice to the opposing parties, granted a temporary injunction to prevent the enforcement of the judgment. Soon afterward a motion was made in the district court to dissolve the injunction, upon the grounds that it was issued without notice, without sufficient evidence, that the petition on which the injunction was granted was not properly verified, and that the facts set forth in the petition did not entitle the parties to an injunction. The motion was allowed and the injunction dissolved, but the ground upon which the ruling was based is not stated.
The ruling of the court must be sustained. The temporary injunction was inconsiderately granted upon a verified petition. It is not necessary that the affidavit in support of the application for the injunction should be a separate, independent paper. If the petition sets forth the necessary facts, and is properly sworn to, an order may be allowed thereon. When used for that purpose it must state facts with the detail and particularity that are required in an affidavit or deposition. “When a verified petition is used as an affidavit, its allegations must be construed as those of an affidavit, and must be such statements of fact as would be proper in the oral testimony of a witness. Allegations which are simply conclusions of law, whether sufficient or not as matter of pleading, are incompetent as testimony.” (Olmstead v. Koester, 14 Kan. 463.) See, also, City of Atchison v. Bartholow, 4 Kan. 124; Center Township v. Hunt, 16 id. 430. Measured by this rule, the averments of the petition were insufficient to sustain the application. Many of the statements in the petition would have been inadmissible as testimony, and altogether they fail to establish equitable ground for relief.
That there was jurisdiction in the court rendering the judgment is clearly shown, and the matters complained of in respect to the filing of amended pleadings and joining issues are, at most, irregularities which may be revised on error. The extraordinary remedy of injunction cannot be employed to correct merely erroneous rulings, nor to prevent the enforcement of a judgment, where the rights of the party complaining might have been protected in the original action. No reason is alleged why they did not avail themselves of the ordinary remedies in the original action, and it does not appear that they were hindered in doing so by the wrong of the defendants. When this proceeding was brought, the time had not yet expired within which the judgment might have been taken to an appellate court for review. Only one equitable consideration was attempted to be presented as a basis of an injunction, but it was only the naked conclusion that, for a valuable consideration, Eddy had agreed not to enforce the judgment against the plaintiffs. A statement of this kind which does not show when the promise was made, what the consideration therefor was, nor any of the facts or circumstances upon which the conclusion rests, does not rise to the rank of testimony, and is wholly insufficient to sustain an application for an injunction. It is clear that the plaintiffs did not present a case authorizing the court to interpose by injunction to prevent the enforcement of a judgment that appears to be valid.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: The sufficiency of the information is attacked upon the ground that it does not set forth the means by which the death of Harvey Hudson was caused, nor directly connect the defendant with his death. The charge was made under section 27 of the crimes and punishments act, and a specific intent to kill is not a necessary element of the offense, tie is charged with culpable negligence in wilfully and forcibly seizing the boy, against his will and protest, and carrying him out into the river, where the water was deep and dangerous to human life, whereby he was drowned. It is said that the closing part of the charge is formal, and should not be considered in aid of the averment of fact. We think it constitutes a part of the charge, and should all be taken together. But even if we overlook the final part of the charge, the averments would be ample to sustain the conviction. The act with which the defendant was charged was unlawful and without justification ; and the language employed shows plainly enough that the culpably careless act, which was wilfully done, directly contributed to the death of the boy. Indeed, it is a question whether the charge is not sufficient to have sustained a conviction for a much graver offense.
Some objections are made to the instructions of the court, but the appellant appears to attach little importance to them, and there seems to be no good cause for complaint.
Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Kaul, J.:
Defendant appeals from convictions by a jury of two counts of burglary (K. S. A. 1973 Supp. 21-3715). He was sentenced under K. S. A. 1973 Supp. 21-4501 (d) for a term of from two to ten years on each count, the sentences to run concurrently. The charges stemmed from burglaries of a Vickers Service Station and the Muncie Bowl, a bowling alley in Kansas City, Kansas.
Defendant seeks reversal on the ground of the erroneous admission into evidence of two confessions and on the further ground that the trial court erred in excluding a portion of his testimony.
In the early morning of November 10, 1971, patrolman Harold Bruce, of the Kansas City, Kansas police department, interrupted a burglary taking place at Kenny’s Vickers Service Station in Kansas City, Kansas. Officer Bruce saw two subjects running from the station to an automobile. Bruce immediately broadcast descriptions o£ the automobile and the two men. About five minutes later defendant and Lewis Holden were stopped in an automobile answering the description on an approach to the Lewis & Clark viaduct which leads into Kansas City, Missouri. The two patrolmen who stopped defendant and Holden advised them of their rights and detained them until tibe arrival of detective Tom Rose. Rose again advised defendant of his rights and was told by defendant that he did not wish to make a statement or to be interrogated. Defendant was taken to the city jail where he was booked.
Later in the morning detective Wright, of the Crimes Against Property Unit of the police department, took over the investigation of the case. Wright testified that he had two conversations with defendant concerning the two burglaries with which defendant was later charged. Wright testified that on each occasion he gave defendant the Miranda warning (Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974) and fully advised him of his constitutional rights. On both occasions defendant was given a written form setting out his constitutional rights and a waiver thereof which stated that the subscriber had read and understood the statement of his rights; that he did not want a lawyer at the time; that he was willing to make a statement and answer questions, understood what he was doing; that no promises or threats had been made; and that no pressure or coercion of any kind had been used against him. Defendant signed the forms preceding each conversation with Wright. The first conversation took place at 7:25 a. m. on November 10. The questions and answers were reduced to writing in the form of a statement which was signed by defendant.
The first statement described defendant’s participation with Lewis Holden in the burglary of the Vickers Station. Later, Holden was interviewed and gave a statement which implicated defendant in the burglary of the Muncie Bowl. With this information at hand detective Wright again interviewed defendant at 11:20 a. m. the morning of November 11 at which time the second statement of defendant in which he admitted participating in the Muncie Bowl burglary was taken, reduced to writing, and signed by defendant. Thereafter a complaint was filed charging defendant with the two counts of burglary. Apparently, the complaint was not filed until November 22. No explanation concerning the delay appears in the record.
Defendant filed a motion to suppress the two statements. A full evidentiary hearing was had before the trial court, and portions of the testimony of Wright and defendant are reproduced in the record. The motion to suppress was denied. During the trial, which was commenced on March 28, 1972, detective Wright and defendant again testified concerning the circumstances surrounding the taking of the statements.
On appeal defendant specifies two points of error both of which are related to the admission of his statements into evidence. Defendant’s first point is stated as follows:
“It was reversible error to admit into evidence over defendant’s objection two written confessions extracted from the defendant in violation of the fifth and fourteenth amendments to the United States Constitution because both statements were taken from the defendant without the assistance of counsel after he had expressed a desire not to talk to police officers without an attorney, and because said confessions were the result of illegal detention, threats and promises, and therefore, involuntary.”
In his brief defendant says that his uncontroverted testimony on the motion to suppress and at trial was that following his arrest, detective Rose threatened him with physical abuse and refused to give him an attorney when he declined to give a written statement, sign a waiver form or speak without the assistance of counsel. Defendant further says that although endorsed as a witness, Rose did not testify at the hearing on the motion to suppress or at trial to contradict the testimony of defendant in this regard. The testimony of defendant given on the motion to suppress, which is reproduced in the record, does not relate to the circumstances surrounding his arrest, but recites his version of the events which took place at the city hall after his arrest. Defendant testified that Holden was examined first and after twenty to twenty-five minutes defendant was fingerprinted and then questioned by an officer identified by defendant as detective Woodson; we think, however, it must have been detective Rose. Defendant testified that Woodson showed him a statement signed by Holden and told defendant that if he did not sign a statement he (Woodson) would bash his head against the wall. Defendant says he refused to talle and further testified “They took me direotly upstairs because I wouldn’t talle.” He also testified that when he asked for an attorney the officer told him, “You don’t need no attorney. . . . We can’t help you out, anyway.” At trial, defendant again related his version of events at the police station following his arrest and that when he refused to talk he was put in jail. Defendant testified that he did not believe he was permitted to make a telephone call the night of his arrest. Defendant’s testimony concerning the taking of his statement the next morning is in sharp conflict with die testimony of detective Wright. Defendant testified that after breakfast he was taken from the jail to see Wright; tíiat he did not believe he was advised of his constitutional rights; and tíiat he told Wright and other officers present that “I’m not signing nothing, I want to see a lawyer on the spot.” When asked how he came to sign the waiver of rights and the written statement, defendant testified that he was told that Wright had a confession from Holden and that he (defendant) did not know who to turn to; that they wouldn’t get him a lawyer and so he went ahead and signed the statement. Defendant did admit that he had been permitted to make one telephone call. Concerning his reasons for signing the second waiver of rights and written statement, defendant testified:
“Because for the simple reason they were throwing all kinds of questions at me and I did not know what to do or who to turn to. They wouldn’t get me a lawyer or nothing, so I went ahead and signed them on my own.”
Detective Wright testified that he was assigned to the Crimes Against Property Unit; that when he reported for duty on the morning of November II he was assigned by his lieutenant to get defendant and Holden out of jail to make a follow-up on the case and see if they wanted to malee a statement. Wright testified that he knew defendant had told officer Rose the night before that he did not want to talk. Wright knew that defendant had been in custody for about five or six hours and that he had been booked for burglary and vagrancy investigation. Wright further testified that defendant and Holden were together when he talked to them; that he fully advised defendant of his rights; and that defendant did sign a rights waiver and was willing to make a statement about the Vickers burglary. After talcing defendant’s first statement at 7:30 a. m. the morning of November 10, defendant was returned to jail and detective Wright proceeded to take a statement from Holden and to- further investígate the case. At 11:20 a. m. the following day, November 11, Wright again had defendant brought down from the jail. Wright once again instructed defendant concerning his rights and defendant signed a second rights waiver. Wright then told defendant that Holden had given a statement which was given to defendant to read. At this point, according to Wright, defendant stated that he wished to give another statement. Defendant’s second statement concerning the Muncie Bowl burglary was typed and signed by defendant. Wright further testified that defendant was permitted to make two or three telephone calls and that one was completed, but Wright did not know whom defendant had talked to.
Defendant asserts that Wright knew that he (defendant) had asked for an attorney the night of his arrest. The record is not clear on this point. Wright’s testimony is definite that defendant never asked for an attorney in connection with the taking of the two statements. As to whether he (Wright) knew if defendant had asked for an attorney the night of his arrest, Wright testified that he had some information apparently from a report of detective Rose that defendant had said he would not talk without an attorney present. In any event, the record is clear that when defendant refused to talk the night of his arrest interrogation was not pursued by the officers, but defendant was put in jail within a few minutes and not seen again until after breakfast the next morning.
No contention is made that the Miranda warnings given were in any manner deficient, and it is conceded the warning was given by detective Rose the night of defendant’s arrest and again on each occasion preceding the statements given to detective Wright. Defendant’s position appears to be that whenever the warnings required by Miranda are once given to a defendant in custody, the warnings coupled with an inquiry whether defendant wishes to make a statement must be regarded as the commencement of an interrogation, and that if the defendant indicates a desire to remain silent such action not only invokes defendant’s constitutional right to remain silent, but to have counsel and forecloses, under any circumstances, the introduction of any later statement made without the presence of a lawyer. We believe the position taken by defendant in this regard reaches beyond the scope of Miranda prohibitions and conflicts with previous declarations of this court on the subject. In support of his position defendant quotes from Miranda v. Arizona, supra:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoiced. . . .” (pp. 473,474.)
We recognize, of course, the teaching of Miranda that law enforcement officers are not to be permitted to attempt in-custody interrogation and if met by a refusal to return the defendant to jail and then repeat the procedure periodically until a statement is obtained. However, we do not stretch this prohibition' to invalidate a statement given after an otherwise valid voluntary waiver of both the right to counsel and the right to remain silent is knowingly and intelligently made. When confronted with the identical quotation from Miranda set forth above, in an analogous case, the United States Court of Appeals (5th Cir. 1968) had this to say in Jennings v. United States, 391 F. 2d 512, cert. den. 393 U. S. 868, 21 L. Ed. 2d 136, 89 S. Ct. 154:
“We do not agree with these contentions. It seems clear to us that what the Court sought to interdict in Miranda were those situations in which a person has indicated his desire to exercise his constitutional right of silence but the police refuse to take no’ for an answer. Disregarding his constitutional claim, they continue to ask questions, see 384 U. S. at 453, 86 S. Ct. 1602, 16 L. Ed. 2d 694. These techniques were not used in this case. It is admitted that the local police ceased interrogation immediately upon appellant’s expression qf an unwillingness to proceed further.” (p. 515)
In State v. Godfrey, 182 Nebr. 451, 155 N. W. 2d 438, cert. den. 392 U. S. 937, 20 L. Ed. 2d 1396, 88 S. Ct. 2309, a similar case in which a statement was subsequently taken after defendant had initially invoked his right to silence; the Nebraska court with respect to the application of Miranda dealt with the problem in this manner:
“From the evidence here, when the police received the ‘no’ answer at the early morning interview made in connection with booking procedures, the interview was stopped. This should have demonstrated ‘that his interrogators are prepared to recognize his privilege should he choose to exercise it.’ Miranda clearly requires that if a defendant in custody at any time indicates that he wants an attorney before speaking to the police, any interrogation must cease until an attorney is present and the right continues to have the attorney present during any subsequent questioning. It is not clear that the same right to have an attorney present arises solely from a defendant’s indication at a specific time that he does not then wish to make a statement or answer a question where, as here, he does not ask for an attorney. This is particularly true where the police do not question him after such indication while investigation in the field is carried out for a few hours. We recognize that the police cannot be permitted to attempt an in-custody interrogation and, upon being met with a refusal, return a prisoner to his cell and then attempt to repeat the procedure periodically until a statement is obtained. However, an otherwise valid voluntary waiver of both the right to counsel and the right to remain silent, knowingly and intelligently made, followed by a statement, should not be transformed into invalidity merely because of silence at some prior time. One refusal to make a statement, when that refusal is fully honored, ought not to taint the substance of the entire subsequent procedures under the circumstances here.” (pp. 455, 456.)
Returning to the instant case, when the police received a “no” answer at the station house, following defendant’s arrest; according to his own testimony, the interrogation was immediately dropped and defendant was put in jail. This served to put defendant on notice that all he needed to do to halt interrogation was to give a negative response. Detective Wright’s testimony that the statements subsequently taken were entirely voluntary is corroborated by defendant’s signature of the written waivers read by him which waived his rights to counsel and to remain silent. The question of voluntariness was for the trial court, and our responsibility on appellate review is limited to a determination whether there is competent substantial evidence to support its findings.
In State v. Creekmore, 208 Kan. 933, 495 P. 2d 96, we were confronted with the admissibility of an extrajudicial statement given in-custody interrogation taking place during the second visit of a detective to a prison farm wherein the defendant had been confined for several weeks. Guidelines governing a trial court’s consideration were set forth and we held:
“The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Generally if the accused was not deprived of his free choice to admit, deny or refuse to answer, the statement may be considered voluntary.
"When the trial court conducts a full preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence.” (Syl. ¶¶ 1, 2.)
We believe the record before us clearly indicates that defendant was fully cognizant of his alternatives. By reason of his experience the night of his arrest he was fully aware that he could immediately terminate any interrogation by merely saying “no.” Detective Wright’s testimony of the absence of coercion or promises and the explanation of defendant’s rights, including his right to waive, coupled with the reading of the waiver of rights form by defendant and his signature thereof, is ample evidence to support the trial court’s ruling.
For his second and final point on appeal defendant asserts error in the exclusion of his testimony that he had not been arraigned or taken before a judge until after he had given the two written confessions and had been detained in custody for over thirty-three hours. The matter complained of by defendant appears in the record as follows:
“Q. When did they tell you that you would get a lawyer, if ever?
“A. They told me I would be able to get a lawyer when I went in front of the city judge.
“Q. And did they tell you when that would be?
“A. No, sir, they did not.
“Q. Were you taken before a judge that day and was there a bond set?
“A. No, sir, it was a couple of days.
“Mr. Holbrook: I am going to object to that. We are getting far afield.
“The Court: You will be sustained. The last question and answer will be stricken.”
The defendant says the excluded testimony had a direct bearing on the admissibility of defendant’s confessions and that the jury might have inferred that the police might have overlooked other rights of the defendant in obtaining the confessions in view of their disregard of defendant’s constitutional rights by detaining him illegally. The state responds that all of defendant’s testimony concerning his allegations of coercion, duress, threats of physical abuse, and the time of giving the statements in relation to the time of arrest, had been submitted to the jury. The state maintains that the ruling of the court was within its sound discretion and even if eixoneous it does not remotely approach reversible proportions.
Concerning the admissibility of a confession K. S. A. 1973 Supp. 22-3215 (5) provides:
“The issue of the admissibility of the confession or admission shall not be submitted to the jury. The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing up on the credibility or the weight to be given to the confession or admission.”
This court has held that a confession obtained during a period of illegal detention is not inadmissible if voluntarily made and not the product of the detention. (Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; Cooper v. State, 196 Kan. 421, 411 P. 2d 652; and State v. Stubbs, 195 Kan. 396, 407 P. 2d 215.) Needless to say, we do not approve of unwarranted delay in taking a suspect before a proper magistrate; however, any issue as to whether defendant’s confes sions were freely and voluntarily made or a product of the delay in taking him before a magistrate was resolved by the trial court. As to the exclusion of defendants testimony concerning his detention, the jury had been made fully aware, by previous testimony, of the time lapse between defendants arrest and the giving of the statements. We find no abuse of discretion in this regard which rises to the level of reversible error.
While not specifying error on the point, defendant in his brief suggests the state was derelict in not producing detective Rose as a witness on the motion to suppress and at trial. Detective Rose was not present at the taking of either of the two statements in question and knew nothing of the circumstances. Rose’s knowledge was limited to the circumstances surrounding defendant’s arrest and events immediately following at the station house.
The critical issue before the trial court in this case was whether the state sustained its burden of establishing the voluntariness of defendant’s statements. The trial court resolved the issue by weighing the testimony of detective Wright, coupled with the signed waiver forms and statements, against the testimony of defendant and found adversely to defendant.
We hold that the state sustained its burden of proving the challenged statements to be admissible.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is a suit by the executors of the estate of Lena H. Flogan, deceased, to determine the ownership of four savings accounts created by the decedent in her lifetime. Defendants in the case are the savings and loan association (whose role in the action is that of stakeholder only) and church or church-related institutions, each of which claims the proceeds of an account by reason of having been named as a payee upon the death of Mrs. Hogan. Trial to the court resulted in judgment for the executors and the church groups have appealed.
The evidence before the trial court consisted of a written stipulation of facts plus testimony as to which there is no dispute.
On August 18, 1964, Mrs. Hogan consulted with Mrs. Neva Martin, president of the defendant First Federal Savings and Loan Association of Dodge City, Kansas, about establishing the accounts in question and on that date established the first one (Mrs. Martin died prior to trial). This account, in the amount of $2,300, was evidenced by a passbook in printed form which certified that Lena. H. Hogan held an account representing share interests in the association subject to its charter, bylaws, etc. Underneath Mrs. Hogan’s name on the printed form the following notation appeared: “Payable on death to Pentecostal Holiness Conference Board (for Missionary work).” At the same time a signature card in the name of Lena H. Hogan was executed, which card bore the same account number and the same payable on death notation as the passbook. On the space provided for the account holder’s signature the signature of Lena H. Hogan alone appeared. The signature card bore a printed provision on its reverse side appropriate for the establishment of a joint tenancy account but this side was never signed and the parties agree there was never any attempt to establish such an account.
Mrs. Hogan established three more savings accounts with the association. Each was made upon her direct order to the head teller. Each passbook and signature card was in the same form as the first account except as to the payee on death notation. The second such account was established by Mrs. Hogan September 2, 1964, in the amount of $1,500. The passbook and signature card bore the typed notation after Mrs. Hogans name: “Payable on death to: Southwestern College Oklahoma City, Okla.”
The third account, established October 1, 1964, in the amount of $3,300, carried this notation: “Payable on death to the Pentecostal Holiness Church solely for payment of the Church Mortgage”.
The last account was established July 2,1965, in the initial amount of $1,500. On February 2, 1971, the sum of $800.00 was added to it. The passbook and signature card bore this notation: “Payable on death to Pentecostal Holiness Conference Board to be divided equally between the Orphanage Childrens Home & Old Folks Home”.
During Mrs. Hogan’s lifetime the savings association paid to her periodically the accumulated interest on each account.
The Kansas Conference of the Pentecostal Holiness Church is a non-profit Kansas corporation which is engaged in missionary work, maintains an orphanage children’s home, an old folks’ home, and operates a college under the name of Southwestern College of Oklahoma City as a separate corporation. The Pentecostal Holiness Church, 302 E. Vine, Dodge City, Kansas, is a Kansas corporation and has a mortgage in excess of $3,300.
On February 25, 1971, Mrs. Hogan executed her last will and testament. The will contained several specific devises and bequests, including a devise of a one-half interest in her Dodge City residence to the Pentecostal Holiness Church of Dodge City and a bequest of a Dodge City bank account to the building fund of the Kansas Conference of Pentecostal Holiness Churches. The will did not mention Mrs. Hogan’s savings accounts. It concluded with a residuary clause naming the following legatees:
“Reverend C. W. Burpo, Mesa, Arizona; Oral Roberts Evangelistic Association, Tulsa, Oklahoma; The Billy Graham Evangelistic Association, Minneapolis, Minnesota; Reverend Billy James Hargis, Tulsa, Oklahoma; Reverend J. Harold Smith, Dallas, Texas.”
Lena H. Hogan died May 31,1971, and her will was duly admitted to probate in the probate court of Ford county, Kansas.
Mrs. Hogan’s sister, Grace Truax, died February 6, 1972. Thereafter the four passbooks evidencing the accounts in question here were found in the safety deposit box of Grace Truax.
In addition to the facts already stated the parties’ stipulation of evidence included the following:
“(26) That at all times during the lifetime of the said Lena Hogan that the aforedescribed accounts marked plaintiffs’ exhibits 1, 2, 3 & 4 were in existence, the said Lena Hogan was empowered and able to increase, diminish or destroy or withdraw any or all parts of said accounts at her pleasure.
“(27) That the defendant, Lena Hogan, was at all times totally aware of such accounts and arrangements as set forth as plaintiffs’ exhibits 1, 2, 3 & 4 and that she was in full possession of her mental and physical faculties at all times herein and when she made her last will and testament on 25 February 1971.
“(31) That according to the bylaws of the First Federal Savings & Loan Assn., the accounts in question would not be paid without presentation of the passbooks, known as plaintiffs’ exhibits 1, 2, 3 & 4.
“(32) That in addition to the passbooks, an application for withdrawal signed by some proper person and a presentation of the death certificate of the original signer, if the original signer be deceased, would be necessary to withdraw money from any of the accounts.”
When the defendant savings association declined to pay to the executors of Mrs. Hogan’s estate the proceeds of the four savings accounts the latter instituted this action, claiming them as assets of the estate.
The defendant church groups filed an answer claiming the accounts. The parties now agree that under the pleadings the issues in the case are as follows:
“Did the establishment of the accounts in question by decedent Lena H. Hogan in the First Federal Savings & Loan Assn., create:
“a. A third party beneficiary contract for the benefit of the defendant church groups;
“b. An escrow for the benefit of the defendant church groups;
“c. An inter vivos gift for the benefit of the defendant church groups;
“d. A trust for the benefit of the defendant church groups so as to vest the final ownership of such accounts according to the designations upon the account cards and passbooks, or were the efforts of Lena Hogan testamentary in nature and void for want of the proper statutory form?”
The trial court rendered its decision in a memorandum opinion which, after a recitation of the background, stated:
“The court finds that the so-called signature cards executed as to each of the above designated accounts were not executed as joint tenancy accounts between Lena H. Hogan and the parties named in the ’death payable’ clause.
“That Lena H. Hogan retained ownership and control of and over the accounts and the funds represented thereby during her lifetime, and made no delivery of the funds or accounts.
“The account signature cards of the respective accounts do not meet the requirements for a testamentary disposition of the funds represented by said accounts.
“The respective accounts were not set up as escrow accounts.
“The evidence does not support tire theory of defendants that there was an inter vivos gift of the funds represented by the respective accounts.
“The evidence does not support the theory of defendants as to parol trust.
“The court concludes the accounts above described and the funds represented thereby constitute assets of the estate of Lena H. Hogan, deceased.
“The defendant First Federal Savings and Loan Association is directed to honor the request of plaintiffs for payment of funds represented by said accounts.”
Upon appeal the church groups renew their contention that Mrs. Hogan’s agreements with the savings association constituted either inter vivos gifts, escrow accounts, executed contracts or trusts upon their behalf.
The parties agree there was a contractual obligation undertaken by the savings association upon the execution of the savings accounts but they differ as to its nature and as to whom the accounts are now payable. Although a savings and loan association is not to be equated in all respects to a bank, we think that an account in a savings and loan association, like a bank deposit, is subject to any agreement which the depositor and the association may make as to it, so long as the rights of third parties are not injuriously affected and no statute or other rule of law is violated (see 5A Michie on Banks and Banking, § 40).
Appellants contend first the trial court erred in finding the decedent retained ownership and control of the accounts during her lifetime and that she made no delivery of the accounts or funds. The argument is that Mrs. Hogan in her lifetime surrendered possession of the passbooks to her sister, Grace Truax, and she thereby relinquished all control over the accounts. Unfortunately for appellants both Mrs. Hogan and Grace Truax were deceased at the time of trial and there was no evidence whatsoever as to when and under what circumstances the passbooks came to be in Grace’s safety deposit box. The parties expressly stipulated that Mrs. Hogan was during her lifetime empowered and able to diminish, destroy or withdraw any or all parts of the accounts at her pleasure, and we see nothing wrong with the findings complained of.
The requisites of a valid inter vivos gift were stated in In re Estate of Matthews, 208 Kan. 492, 493 P. 2d 555, as follows:
“To establish a valid gift inter vivos, there must be (a) an intention to make a gift; (b) a delivery by the donor to the donee; and (c) an acceptance by the donee. The gift must be absolute and irrevocable.” (Syl. ¶ 6.)
Appellants rely on the following language quoted in Stevenson v. Hunter, 131 Kan. 750, 293 Pac. 500:
“ ‘Delivery of property to a third person as agent or trustee, for the use of the donee, and not as agent of the donor, under such circumstances as indicate that the donor relinquishes aH dominion and control over the property, is a sufficient delivery to complete the gift, which, in such case, is not revoked by the subsequent death of the donor before the property has been actuaEy delivered to the donee. And the validity of the gift is not affected by the fact that the trustee is not to deliver the property to the donee until after the donor’s death.’ ” (p. 755.)
The burden of proving that a gift was made, including the existence of all the elements necessary to its validity, is upon the party asserting the gift (38 Am. Jur. 2d, Gifts, §92, p. 890). Here the stipulation negates relinquishment of dominion and control over the accounts by Mrs. Hogan, delivery of the passbooks to appellants or their agents was not shown and the requirement that the alleged gift be absolute and irrevocable is lacking. In Waitman v. Waitman, 505 P. 2d 171 (Okla.) the depositor opened a savings account with a notation to pay the account on her death to her brother. In denying the brother s claim to the account after the depositor s death the Oklahoma supreme court stated:
“The evidence discloses that there was no vaHd gift inter vivos to Albert Waitman of any present interest (joint or otherwise) in this account.
“The evidence also discloses that Daisy Waitman’s attempted transfer, to Albert Waitman, of the entire interest in any balance remaining on deposit at the time of her death was intended to become effective upon, and only upon, her death. It was in the nature of a testamentary disposition and, not having been made in the manner prescribed by statute for the execution of wüls, was invahd and ineffective.’’ (p. 175.)
To the same effect see also Tonsic v. Holub, 13 Ohio App. 2d 195, 235 N. E. 2d 239; and Tucker v. Simrow, 248 Wis. 143, 21 N. W. 2d 252.
The trial court correctly ruled that an inter vivos gift was not shown.
Appellants assert they are entitled to the proceeds of the accounts on the theory of contract, either as third parties beneficiary or under an escrow agreement. Appellees respond that the typewritten instructions on the signature cards and passbooks were merely abortive attempts at testamentary disposition of the proceeds of the accounts.
K. S. A. 59-606 provides:
“Every will, except an oral will as provided in section 44 [59-608], shall be in writing, and signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.”
This court has never sanctioned forthright violation of our statute of wills. Neither the passbooks nor the signature cards were executed in accordance with it. In Imthurn v. Martin, 150 Kan. 906, 96 P. 2d 860, a contract was executed providing that M would take care of W from funds provided by W and further that if W should die before the funds were exhausted the remaining property would go to M. This court held respecting the contract:
“If ... it appears the maker intended to immediately vest the title to the property mentioned in the other party, then the instrument is a deed or bill of sale, as the case may be; but if it appears that the title to the property vests only upon decease of the maker, the instrument is testamentary in character and is only good as a will if executed in accordance with the statute.” (Syl. f 2.)
In Bowen, Administrator v. Hathaway, 202 Kan. 107, 446 P. 2d 723, ownership of the proceeds of a bank checking account was in dispute. The deceased depositor had executed a power of attorney giving Hathaway authorization to deposit money to his bank account, write checks on it and pay his bills. Thereafter the decedent had signed a signature card entitling the survivor to any balance in the account. The power of attorney was revoked but Hathaway s name was left on the account. This court remarked that neither the depositor nor the banker understood the incidents of ownership and legal implications arising from the two party bank account and further that:
“The desire expressed by Mr. Craig that Elma Hathaway have the funds on his death was not legally sufficient to effect transfer of title at his death. It was not sufficient as a gift (Hudson, Administrator v. Tucker, 188 Kan. 202, 361 P. 2d 878) and it was not sufficient as a testamentary disposition. (K. S A. 59-606.)” (p. 115.)
In In re Estate of Mathews, supra, we said:
"The mere expression of a desire on the part of the owner of a two-party bank account that the survivor should have the funds upon his death is not legally sufficient to effect a transfer of title at his death, nor is it sufficient as a gift.” (Syl. ¶ 7.)
Appellants rely on In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443, for the proposition that a third party beneficiary contract in their favor was executed between Mrs. Hogan and the savings association. In Smith, a depositor changed her individual savings account to a joint account with right of survivorship with her son as die joint tenant. In holding that the son was entitled to the balance of the account upon his mother s death this court stated:
“The legal significance of the contract entered into by Rachel and the bank was the creation of a joint tenancy bank savings account with the right of survivorship wherein Floyd was a third party donee beneficiary. In Goeken v. Bank, 104 Kan. 370, 179 Pac. 321, it was held:
“ ‘A person may avail himself of a promise made by a second party to a third for the benefit of the first, although the latter was not a party to it and had no knowledge of it when made.’ (Syl. ¶ 2.)
“The contract being beneficial to Floyd, his acceptance thereof may be presumed.” (p. 93.)
Smith is not helpful to appellants’ cause because there a joint tenancy account was actually created — a feature concededly not present here.
In Blais v. Colebrook Savings Bank, 107 N. H. 300, 220 A. 2d 763, the facts were very similar to those at bar. The depositor maintained a savings account in his name. At his direction a bank employee typed on the ledger oard and the signature card for the account a notation “payable on death” to a certain person. The passbook, which the depositor retained in his possession, bore a similar notation. After the depositor’s death the person named in the notation claimed the account. The New Hampshire supreme court described the account as one maintained in the name of the depositor alone, payable to him alone during his lifetime, and at his death to another and held that a joint account was not created and further “. . . the notation endorsed upon the ledger, the signature card, and the passbook, was an invalid ‘attempt to make a testamentary disposition.’ ” (p. 302.)
The requisites of an instrument to constitute an escrow agreement were stated in Wilson v. Woolverton, 137 Kan. 663, 21 P. 2d 313, thus:
“In order that an instrument may operate as an escrow, not only must there be sufficient parties, a proper subject matter, and a consideration, but the parties must actually contract and the deposit must be absolute and beyond the control of the depositor.” (Syl. ¶ 1.)
However, the requirement that the deposit be absolute was relaxed somewhat under the particular facts in Southwestern College v. Hawley, 144 Kan. 652, 62 P. 2d 850, a case strongly relied upon by appellants here, in which it was stated:
“Generally, to constitute an escrow, the instrument must pass unconditionally from the control of the depositor. This rule is not, however, so arbitrary and inflexible as to defeat the intention of parties engaged in worthy enterprises.” (p. 655.)
In Southwestern a written subscription to a college was placed with the president of a bank with directions that it be held for the depositors instructions and further that on depositor’s death it should be delivered to the college. This court upheld the college’s claim to the instrument, primarily upon the theory that such an agreement imparts consideration and public policy favors such arrangements. However, the impaot of the decision must be regarded as having been seriously eroded in In re Estate of Smith, 162 Kan. 215, 174 P. 2d 1012. In this latter case a decedent agreed to make a gift of realty to the alumni association of Kansas State Agricultural College. She placed deeds to the land in escrow but retained control over and had a right to withdraw them at any time before her death. She did not withdraw the deeds prior to her death. The trial court ruled that Southwestern compelled judgment for the alumni association but this court reversed holding that the contract arrangement was testamentary in character and ineffective to pass tide. In distinguishing Southwestern this statement was made:
“It will be noted that the above instrument [in Southwestern] was in the form of a promissory note. As far as the instrument itself was concerned it was an unconditional promise to pay a definite amount.” (p. 220.)
Certainly a subscription agreement is distinguishable from a savings account so far as the liability of a depositor to a third party is concerned.
In Reno County Community Hospital Ass’n v. Woodford Estate, 171 Kan. 97, 229 P. 2d 730, this statement appears:
“In some of the above cases mention is made of the rule that benefits to charitable uses have always been favorites of the law, and that courts have been liberal in the construction of any instruments conferring such benefits because they are calculated to foster and encourage charities, whether religious, educational or for the advancement of the public good. While our consideration of the evidence is measured by the above rule, it is always to be remembered that the facts must make it appear that the donor of such benefits not only had the intention to give but translated that intention by effective action, or stated another way, intention alone is not sufficient, the donor must have so acted that he bound himself or his estate.” (p. 104.) (Emphasis supplied.)
We think the trial court correctly denied appellants’ claims to the savings accounts based on contractual theories.
In Shumway v. Shumway, 141 Kan. 835, 44 P. 2d 247, we quoted approvingly the following respecting creation of a trust:
“. . . to constitute an express trust there must be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created, accompanied with an intention to create a trust, followed by an actual conveyance or transfer of lawful, definite property or estate or interest, made by a person capable of making a transfer thereof, for a definite term, vesting the legal title presently in a person capable of holding it, to hold as trustee for the benefit of a cestui que trust or purpose to which the trust fund is to be applied; or a retention of title by the owner under circumstances which clearly and unequivocally disclose an intent to hold for the use of another. . . .” (p. 837.)
In 54 Am. Jur., Trusts, § 33, this rule is stated:
“Intention to create a trust and manifestation thereof, with reasonable certainty, are essential to the creation and existence of a trust. This means an intention specifically to create a trust and not to do something else, as to create a gift or to make a transfer of property.” (pp. 44-45.)
And in Mathews, Administrator v. Savage, 195 Kan. 501, 407 P. 2d 559, we held:
“A fundamental essential of any trust is a separation of the legal estate from the equitable estate and the beneficial enjoyment.” (Syl. ¶ 1.)
Here, again, it must be remembered Mrs. Hogan during her lifetime retained complete dominion and control over the savings accounts, including the right to destroy them. There was never any formal declaration of trust made by her nor was there other evidence of her intent to create a trust. A similar situation was presented in Young v. McCoy, 152 Neb. 138, 40 N. W. 2d 540, wherein the answer filed by a person named as payee of a bank deposit upon the death of the depositor, stated:
" ‘This defendant further alleges that the said Arthur E. Young, * * * deposited in said State Bank of Elk Creek the sum of about $8,000.00 instructing Rudolph Kavanda the cashier of said bank who had charge of the records of said bank, to enter on the records of the bank such deposit so that any part thereof or the increase thereof remaining at the time of his death should be paid to the defendant herein Edyth L. McCoy; that in conformity with said request of the said Arthur E. Young, said cashier with the knowledge and consent of and in the presence of the said Arthur E. Young entered on the proper books of said bank said deposit as follows: "A. E. Young P. O. D. Mrs. Edith L. McCoy.’”” (p. 144.)
The court commented on this answer as follows:
“This pleading shows on its face that a valid trust was not created for the reason that no interest passed to the purported beneficiary prior to the death of the settlor. The general rule is: ‘Where the owner of property purports to create a trust inter vivos but no interest passes to the beneficiary before the death of the settlor, the intended trust is a testamentary trust and is invalid unless the requirements of the statutes relating to the validity of wills are complied with.’ Restatement, Trusts, §56, p. 167.” (p. 144.)
The general rule is also summarized in 57 Am. Jur., Wills, § 45, thus:
“. . . [T]he transfer of a bank account, to take effect at the death of the depositor, who retains control during his life, is testamentary in character and void if not executed as a will, whether the intention of the depositor is to provide for a trust or to make a direct gift.” (p. 76.)
The trial court correctly concluded the evidence failed to establish existence of a trust. Overall it clearly appears the attempted dispositions were testamentary in character and hence invalid because they were not executed in compliance with K. S. A. 59-606.
Judgment affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the trial court dismissing the plaintiff’s action on the ground that it was filed prematurely.
T. O. Tanton, a resident of the State of Illinois, died testate on the 15th day of May, 1914, leaving a last will and testament dated April 22, 1911, and a codicil thereto dated May 3, 1911. T. O. Tanton had been a longtime resident of the State of Illinois and was a resident of Illinois at the time of the execution of his will and codicil and at the time of his death. He was never a resident of the State of Kansas. His will and codicil were duly admitted to probate in the Probate Court of Sedgwick County, Kansas, because it affected a considerable amount of real property in the State of Kansas owned by the decedent. Paragraph 6th of the last will and testament of the decedent, T. O. Tanton, provides:
“6th. I give and devise to my grand-daughter Elizabeth Ruth Wilson for life the following described land in Sedgwick County, viz:
“The Southeast Quarter of Section Twenty-nine and the Northeast Quarter of Section Thirty-two all in Town Twenty-seven Range Two West, The Northeast Quarter of Section Twenty-five, The East Half of the Southwest Quarter of Section Thirty-six and the West Half or the Southeast Quarter of said Section Thirty-six all in Town Twenty-seven Range Three West, the Northwest Quarter of Section Six and the Southwest Quarter of Section Twenty-one and the West Half of the Southeast Quarter of Said section twenty-one all in Town Twenty-eight Range Two West, the Northeast Quarter of Section One and the Southeast Quarter of said Section Twelve in Town Twenty-eight, Range Three West, all of said land being in Sedgwick County, in the State of Kansas, to have and to hold the same for and during her natural life and at her death to pass to her children in equal shares, and if any child of hers is then dead the descendants of such child to take the share such deceased child of hers would have taken if then alive. In case she, said Elizabeth Ruth Wilson shall die leaving no children or descendants of children surviving her, then said real estate devised to her shall pass and go to my children, Edna Bally, John O. Tanton, Edith Tanton and Thomas Otto Tanton in equal parts and if any one of them is then dead, the share of such deceased one shall go to the lineal descendants of deceased one, but if such deceased one leaves no lineal descendants then the share such deceased one would have taken if alive, shall go to the remaining of said four children of mine, or their descendants.” (Emphasis added.)
The plaintiff, Marlene Lou Woolums (appellant), in her petition alleged she is the adopted daughter of Elizabeth Ruth Wilson, now Elizabeth Ruth Axe, the granddaughter of T. O. Tanton named in the will of T. O. Tanton. She further alleged that she has two children, namely Robert Michael Fitch, an adult, and Albert Bell Woolums, III, a minor. The plaintiff alleged her remainder interest to be contingent upon her surviving Elizabeth Ruth Axe, her mother, and that if she did not survive her mother then such remainder interest would pass to her children, Robert Michael Fitch, Albert Bell Woolums, III and any future child of plaintiff.
The plaintiff further alleged that she and her said two children have a saleable interest in the above described real estate and desire to effect a sale, but that “they have been prevented from making such sale because of a cloud on title to said real estate caused by claims of ownership, contingent and otherwise, by the defendants” who are the lineal descendants of T. O. Tanton deceased, some of whom have asserted plaintiff can never take as a remainderman.”
The plaintiff further alleged that she is the primary source of support for her parents, Elizabeth Ruth Axe and M. P. Axe, both 73 years of age, who are without funds, and the only means available to enable the plaintiff to discharge her moral obligations is to sell her remainder interest in the above described property.
The plaintiff alleged a previous action by Elizabeth Ruth Axe against those persons having contingent remainders in the above described real property, being case No. A-52177 in the District Court of Sedgwick County, Kansas, brought for the purpose of the appointment of a trustee to lease the contingent remainder interests for oil and gas. In that proceeding, she alleged, the issue was raised as to whether the plaintiff would be prevented, by virtue of her being an adopted daughter of Elizabeth Ruth Axe, from succeeding to the ownership of the above described real property upon the death of Elizabeth Ruth Axe. The petition recites a portion of the court’s decree in case No. A-52177, indicating that the court considered it neither necessary nor wise to determine the interest of the plaintiff in the above described real estate at that time.
The plaintiff then alleged: . . . [T]hat nothing in said Case A-52177 prohibits her from obtaining the judicial relief prayed for in this petition.
“10. That plaintiff is entitled to have the Court construe said will and decree that she has a present remainder interest in said real estate and will take as a child of said Elizabeth Ruth Axe under the terms of said will provided she survives her and if she predeceases said Elizabeth Ruth Axe, then in such event under the terms of said will the children of plaintiff will take as remaindermen. That plaintiff is entitled to have title to her remainder interest in said real estate quieted as against all defendants.
“11. This action has all the prerequisites of a class action as set forth in K. S. A. 1972 Supp. 60-223.
“Wherefore, plaintiff prays for judgment and decree that she has a remainder interest as aforesaid in and to the above-mentioned tracts of real property under the last Will and Testament of T. O. Tanton, deceased, and that her title to said remainder interests be quieted as against all defendants. Plaintiff further prays judgment for her costs and for such other and further relief as to the Court may seem just and equitable.”
The defendants answered denying all allegations of fact in the plaintiff’s petition except allegations with reference to the named defendants and their relationship to T. O. Tanton, deceased.
Thereafter the defendants filed a motion for judgment on the pleadings:
“. . . [F]or the reason that the plaintiff’s petition filed herein fails to state any cause of action against the defendants or any of them. In support of said motion, defendants state that plaintiff’s petition herein shows affirmatively that plaintiff’s cause of action is premature and non-existent at the present time, in that plaintiff’s interest in said property, if any, which interest is denied by the defendants, is purely a contingent remainder which may never come into existence and that said petition seeks to have the Court make a determination which may never be operative and which may never be required.”
The trial court after hearing the motion dismissed the action on the ground that it “is premature in that there is no issue to be determined by the Court at this time.”
Counsel for the defendants below challenged the sufficiency of the plaintiff’s petition under K. S. A. 1973 Supp. 60-212 (b) (6) on the ground that it failed to state a claim upon which relief can be granted. Under the foregoing statute the defendants had the option to raise such defense by motion. Here the defendants filed an answer on the 21st day of June, 1973, without joining such defense in their answer, and thereafter, on the 12th day of July, 1973, filed their motion. Under K. S. A. 1973 Supp. 60-212 (h) (2) the fore going defense may be asserted on a motion for judgment on the pleadings after a responsive pleading is filed by the defendant. (See, K. S. A. 1973 Supp. 60-212 [c].) We shall proceed to consider the sufficiency of the plaintiff’s petition to state a claim upon which relief can be granted.
When a motion to dismiss under 60-212 (b) (6), supra, raises an issue concerning the legal sufficiency of a claim for - relief, the question must be decided from the well pleaded facts of the plaintiff’s petition. The motion in such case must be treated as the modem equivalent of a demurrer. Disputed issues of fact cannot be resolved or determined on a motion to dismiss such as this, and the question for determination is whether in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate that the plaintiff does not have a claim. (Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P. 2d 875.)
Under tírese circumstances it must be assumed that the plaintiff is the adopted daughter of Elizabeth Ruth Axe, nee Wilson, who is in possession of the real estate above described as a life tenant, and that all other facts alleged in the petition above recited are true.
Basically the appellant (plaintiff below) is seeking a construction of the will of T. O. Tanton, deceased, as to future interests only. There is no dispute as to the extent or nature of the present interest held by Elizabeth Ruth Axe, nee Wilson. She is the granddaughter of T. O. Tanton and has only a life estate without any power to dispose of the remainder. She has no right, title or interest in the devised real estate after her death.
The appellees take the position that the appellant cannot succeed to the remainder interest because she was an adopted child, and upon the death of the life tenant tíre appellees take tide to the land in question under the provisions of the will.
The appellees also contend the construction of paragraph 6th of the will of T. O. Tanton, deceased, would be a construction having no bearing upon the present interest, but would relate only as to who may or may not succeed to the future interest after the death of the life tenant. It is the appellees’ position that the decision in this case does not depend upon a present right, but upon contingent future events, and under these circumstances the decision may never be necessary. The appellees concede they can find no Kansas case on all fours to support their position that a court will not construe a will or deed to determine future interests only.
Cases upon which the appellees rely are Miller v. Stoppel, 172 Kan. 391, 241 P. 2d 488 (a quiet title action brought by a church in possession holding the fee title subject to a reversion, if the land ceased to be used for pubhc worship, where the dispute developed between defendants as to which line of grantees under certain deeds would take the reversion); In re Estate of Casey, 156 Kan. 590, 134 P. 2d 665 (involving the construction of a will and determination of homestead rights acquired by the widow as sole devisee, where the court was asked to declare the future status of a creditor s claim as against the homestead in the event there was subsequent abandonment of the homestead); and Boeing Airplane Co. v. Board of County Comm'rs., 164 Kan. 149, 188 P. 2d 429 (a declaratory judgment action involving tax liability under state statute, where a declaration of rights was sought based upon future and uncertain events).
By her petition the appellant asks the court to remove a cloud cast upon her remainder interest by the appellees. The appellant does not seek to cut off the contingent interests of the appellees or to have her remainder interest fully vested by the court decree. What she seeks is a construction of the will of the decedent with respect to paragraph 6th of the will as set forth in her petition.
Under K. S. A. 60-1002 (a) an action may be brought by any person claiming title or interest in personal or real property against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim.
While the petition of the plaintiff purports to be a quiet title action, it also has the earmarks of a declaratory judgment action.
Declaratory judgment actions are covered in the new Code of Civil Procedure in K. S. A. 60-1701 which reads:
“In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceedings shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested. Controversies involving the validity or interpretation of deeds, wills, or other instruments of writing, express trusts, statutes, municipal ordinances, and other government regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.”
Assuming the allegations of the appellant’s petition to be true, as we must, it alleges a controversy involving tlie interpretation of a will, which the foregoing statute provides may be determined in a court of record having jurisdiction over the matter.
The position taken by various courts in declaratory judgment actions seeking to have a future interest determined is discussed in 22 Am. Jur. 2d, Declaratory Judgments, § 50 as follows:
“The basic principle that the courts will not declare the rights of parties upon a state of facts which has not arisen, nor upon a matter which is future, contingent, and uncertain, unless a present right depends upon the decision or there are other special circumstances which make it desirable at once to decide on the future rights, is generally recognized in cases involving the question of such relief in connection with future interest. . . . (p. 907.)
Further discussion is found in 22 Am. Jur. 2d, Declaratory Judgments, § 18 as follows:
“Since the courts have no jurisdiction to deal with hypothetical and speculative questions, and since they may not render declaratory judgments where the parties merely fear or apprehend that a controversy may arise in the future, the courts generally will not declare the rights of parties upon a state of facts which has not arisen and may never arise. Accordingly, the courts will not render a declaratory judgment as to future rights, nor will they attempt to decide or declare the rights or status of parties upon a state of facts which is contingent or uncertain, unless the settlement of present rights entails the settlement of such future or contingent rights, or unless a present determination of future or contingent rights serves a practical need, of the parties for guidance in their future conduct,” (Emphasis added.) (p. 861.)
Rorchard Declaratory Judgments, 2d Ed. page 56 states:
“When axe the facts sufficiently developed to admit of a conclusive adjudication, and when are they so contingent and uncertain as to justify a refusal to decide? Again, no a priori answer is possible. The only safe guide is an analysis of the precedents in which declaratory judgments have been granted and declined. In general, it may be said that the facts on which a legal decision is demanded must have accrued, for the principle of a declaratory judgment is that it declares the existing law on an existing state of facts. The danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events — although it may involve future benefits or disadvantages — and the prejudice to his position must be actual and genuine and not merely possible or remote. When the complaint on these tests is considered premature, the dismissal may be explained by any one of a series of labels, e. g., that there is as yet no ‘controversy,’ that the issue is hypothetical, that die result would be only an advisory opinion, etc.”
An extended annotation entitled “Declaratory or advisory relief respecting future interest” is found in 174 A. L. R. 880. At page 882 of the above annotation the general rule as to when courts will declare future rights is stated as follows:
“As a general rule the courts will not give a construction to or declare the rights of parties upon a state of facts which has not arisen, nor upon a matter which is future, contingent, and uncertain, unless a present right depends upon the decision or there are other special circumstances to satisfy the court that it is desirable at once to decide on the future rights. . . (Emphasis added.)
The above annotation after citing and considering numerous cases finally concludes:
“It is apparent from an examination of all the cases that, in the final analysis, whether the court will make a determination or declaration of future interests depends upon the facts and circumstances of the individual case. Where the circumstances are such as to indicate a real necessity for a present adjudication a determination will usually be made, but where such adjudication is not necessary or is sought merely for the convenience of the parties the courts generally postpone determination until the happening of the event upon which the future interest depends, and will not determine speculative, hypothetical, or abstract questions.” (p. 886.)
Prior to the new Code of Civil Procedure this court decided several actions under the declaratory judgment statute involving the construction of a will. (Sharpe v. Sharpe, 164 Kan. 484, 190 P. 2d 344 and Bodle v. Balch, 185 Kan. 711, 347 P. 2d 378.) While these cases have a bearing on the point presently under consideration they are not controlling. In Sharpe v. Sharpe, supra, it was said that one of the basic essentials of jurisdiction under the declaratory judgment act is that the judgment sought to be obtained will result in “consequential relief.” Under the new Code of Civil Procedure (60-1701, supra) the power of the district court to make binding adjudications of right when actual controversy exists is not dependent upon whether or not consequential relief is, or at the time could be, claimed. The statute specifically recites that no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is the only relief requested.
Furthermore under K. S. A. 60-1002 a quiet title action may be brought by any person claiming an interest in real property against any person who claims an interest therein adverse to him, for the purpose of determining such adverse claim.
Under the allegations of the petition the appellant and her children have a remainder interest in the real property subject to a life estate in the mother of the appellant. Considering the age of the appellant’s mother, the probability that the appellant and her children will survive her mother, or if the appellant should predecease her mother that her children would survive her mother, is a good prospect. Because of this probability the appellant has a saleable property right of considerable present value, except for the fact that such property right is unmarketable because of the claim of the appellees.
Under the law of this state the general rule is that any interest a person may have in property, vested or contingent, legal or equitable, may, in a proper case, be subject to attachment and garnishment, and may be levied upon and sold under execution. (Koelliker v. Denkinger, 148 Kan. 503, 83 P. 2d 703.) Another case holding that the interest of a remainderman in real estate, whether contingent or vested, is saleable is Markham v. Waterman, 105 Kan. 93, 181 Pac. 621. In the opinion the court said:
“Counsel for appellee contends that where a life estate with power of disposition is created, the remainderman does not take title. His interest may not amount to the dignity of title, but he has an interest or property right, nevertheless, although it may be of little value. And it is a property right or interest which he can sell, and consequently it can be sold for the payment of his debts (Strom v. Wood, 100 Kan. 556, 164 Pac. 1109). . . . Whatever form or sort of property, or interest in property, a man owns in this state, may ordinarily be the subject of legitimate barter and sale, and unless it be exempt property the sheriff may sell it to pay his debts.” (p. 98.)
Upon the allegations in the petition a failure to determine the controversy would result in prejudice to the appellant. She is entitled to have a construction of the will of T. O. Tanton, deceased, to determine the nature and extent of her remainder interest in the real property in question.
The circumstances indicate a real necessity for a present adjudication of the controversy alleged.
The fact that the appellant is alleged to be the adopted child of the life tenant does not disqualify her to take the property as a remainderman under the provisions of paragraph 6th in the will of T. O. Tanton, deceased.
The law of Kansas governs the interpretation of a foreign will where Kansas real estate is devised by the foreign will.
In Larned v. Larned, 98 Kan. 328, 158 Pac. 3, decided in 1916 the court said:
“. . . The law of the domicile and the effect given to its provisions by the courts of that jurisdiction may be examined to aid in finding the intention of tire testator, but when it comes to the disposition of real property the law of the place where the property is situated must control. To apply the New Jersey rule would contravene the law of Kansas under the rule of Keith v. Eaton, 58 Kan. 732, 51 Pac. 271, that application can not be made. . . (pp. 333, 334.)
A later statement of the rule is found in Purl v. Purl, 108 Kan. 673, 197 Pac. 185, where the court said:
“When the will was executed and when the testator died, he resided in the state of Illinois. The land is in Kansas, and a preliminary question is raised with respect to what law governs interpretation of the will. The appellants insist that the law of Illinois is controlling. The supreme court of Illinois and this court are in substantial accord on the subject. Title to land must be derived according to the law of the place where the land is situated; but the law of the testator’s domicile, with which he was probably familiar, may throw light on his intention.” (p. 675.)
Other Kansas cases adhere to the rule that the descent and devolution of real estate is governed by the law of the state in which it is situated. (Riemann v. Riemann, 124 Kan. 539, 262 Pac. 16; Hanson v. Hoffman, 150 Kan. 121, 91 P. 2d 31; and Meyer v. Rogers, 173 Kan. 124, 244 P. 2d 1169.) A United States Supreme Court decision recognizing this rule is Clarke v. Clarke, 178 U. S. 186, 44 L. Ed. 1028, 20 S. Ct. 873.
An adopted child has always inherited in Kansas the same as a natural bom child. The applicable statute on this point, when the will of T. O. Tanton became effective in 1914, was G. S. 1909, ch. 80, § 5066, it reads:
“§ 7. Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as children or heirs-at-law of the person thus adopting them.”
The foregoing statutory law has been substantially the same since 1868. (See, G. S. 1868, ch. 67, § 7; and K. S. A. 1973 Supp. 59-2103.) Cases discussing this point are: Gray v. Holmes, 57 Kan. 217, 45 Pac. 596; Riley v. Day, 88 Kan. 503, 129 Pac. 524; Dreyer v. Schrick, 105 Kan. 495, 185 Pac. 30; Bartram v. Holcomb, 109 Kan. 87, 198 Pac. 192; Denton v. Miller, 110 Kan. 292, 203 Pac. 693; Riemann v. Riemann, supra; and Schwarz v. Rabe, 129 Kan. 430, 283 Pac. 642.
Rased upon the foregoing, the petition of the appellant clearly indicates an active controversy exists between the parties and the controversy is justiciable.
Our opinion is not to be construed as an adjudication of the controversy alleged. The foregoing opinion is confined to the allegations of the petition. Upon remand of the case to the trial court the issue framed by the pleadings will have to be resolved. The burden of proof is upon the appellant to establish the facts alleged. On the record here presented the petition did not make the will or the codicil of T. O. Tanto n, deceased, a part of the pleading. The petition was confined to paragraph No. 6th of the will.
The judgment of the lower court is reversed and the case is remanded with directions to proceed to determine the controversy.
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The opinion o£ the court was delivered by
Price, C. J.:
This appeal is from a conviction of burglary in the second degree and larceny in connection therewith as defined by K. S. A. 21-524.
On September 24, 1967, the Bowen residence in Leawood was broken into. Several items were stolen — among them being a zircon ring belonging to Mrs. Bowen and a “Kennedy” half-dollar in a plastic case with the words “Grand Avenue Bank” engraved on the case. The burglary and theft were reported to the police.
On the evening of September 26 defendant, David Thomas Kowalec, was apprehended by the Leawood police for speeding. Being a nonresident he was directed to drive to the police station to post bond. His driver’s license was in the name of David “Ramsey”. He was recognized by the officers as having a police record. While he was inside the station making arrangements for bond one of the officers went outside to tell the two passengers in defendant’s car that they could come inside and wait until bond was posted. As the male passenger got out of the car the officer saw him drop a handkerchief over an object on the floor of the car. With the aid of his flashlight the officer observed a portion of the car’s interior and saw on the floor a pair of gloves, flashlight, a screw driver, pry-bar, ice pick, and the barrel of a gun. Having knowledge of defendant’s police record, the officer went back into the station and placed him under arrest for possession of burglary tools. He was then given the “Miranda warning”. With defendant’s permission — the car was searched. A zircon ring and air pistol were found in the right from seat. A search of defendant’s person yielded the plastic case containing the half-dollar. Mrs. Bowen was contacted, and she identified the ring and plastic case. Defendant was taken to the county jail and, as stated, was charged and convicted of burglary and larceny. Throughout his trial he was represented, under court appointment, by Mr. Lawrence G. Zukel, a member of the Johnson county bar. Following the denial of a motion for a new trial counsel was permitted to withdraw, and Mr. David H. Neighbor, a member of the Johnson county bar, was appointed to conduct this appeal.
Five contentions are urged.
The first is that the court erred in admitting into' evidence authenticated copies of two1 prior convictions of defendant in Jackson county, Missouri, they being for “Stealing Over Fifty Dollars” (1967) and “Burglary Second Degree and Stealing” (1961). At the time they were admitted in evidence the objection was that such evidence was “immaterial, irrelevant and prejudicial and unconstitutional”. It now is argued this evidence of prior convictions was admitted without a proper foundation being laid — although it was not and is not now contended that defendant is not the person shown in the two prior convictions.
The contention is without merit. Under K. S. A. 60-455 evidence of the prior convictions was admissible as being relevant and tending to show motive, opportunity, intent, preparation, plan, and inclination to commit similar related offenses (State v. Lewis, 195 Kan. 389, 405 P. 2d 796, and State v. Mader, 196 Kan. 469, 412 P. 2d 1001).
It next is contended the items found in defendant’s car were the fruits of an illegal search and seizure and therefore erroneously admitted in evidence.
A short answer to this is that the record shows defendant consented to the search. When being questioned about the matter the police officer testified that defendant “volunteered to have his car searched, in fact, volunteered to break into the trunk of his vehicle for us.” Having consented to the search, defendant may not now be heard to complain. The contention is without merit.
It is contended that defendant’s motion to dismiss should have been sustained on the grounds the evidence failed to prove the identity of the items in question, failed to prove their value as over fifty dollars, and failed to establish that defendant was in exclusive possession of the ring.
This contention likewise is without merit. Mrs. Rowen identified the zircon ring as being hers. The value of property stolen in a burglary is immaterial (State v. Long, 148 Kan. 47, 79 P. 2d 837 and Peay v. Hand, 184 Kan. 182, 334 P. 2d 369). The ring was found in defendant’s car and the plastic case containing the coin was found on his person.
Next, it is contended the court erred in refusing a requested instruction relating to the possibility of human error or mistake in identifying property. Only three instructions are included in the record, and for all we know the matter was adequately covered in other instructions. Complaint is made of instruction No. 15 in which the jury was told that possession by a defendant of property recently stolen in a burglary is sufficient to sustain a conviction of burglary and larceny where satisfactory explanation of such possession is not given, and it is argued that such “presumption of guilt” thus in effect requires a defendant to take the stand in violation of his constitutional right to remain silent. The contention that such an instruction — as a practical matter — “shifts the burden of proof” to a defendant, was dealt with in The State v. Bell, 109 Kan. 767, 770, 771, 201 Pac. 1110. Also see State v. Jenkins, 197 Kan. 651, 421 P. 2d 33; State v. Yates, 202 Kan. 406, 412, 449 P. 2d 575; State v. Walker, 202 Kan. 475, 480, 449 P. 2d 515, and State v. Brown, 203 Kan. 884, 457 P. 2d 130. The contention is without merit.
Defendant complains of instruction No. 16 in which the jury was told that the evidence as to other offenses was not to be considered as evidence of guilt but was to be considered only on the question of showing motive, opportunity, intent, preparation, plan and knowledge. The instruction was properly given (State v. Mader, above).
Complaint also is made of instruction No. 18 in which the jury was told that a defendant may or may not testify in his own behalf— as he so desires — and that his failure to testify must not be construed as a circumstance against him. It is argued that the giving of the instruction served to focus attention on the fact defendant did not testify. The giving of the instruction was not erroneous, and it was a correct statement of the law (K. S. A. 62-1420, The State v. Olsen, 88 Kan. 136, 127 Pac. 625, and State v. McCoy, 160 Kan. 150, 161, 160 P. 2d 238).
Finally, it is argued a mistrial should have been granted because of a remark by the county attorney in his opening statement to the effect the state’s evidence would show that at the time of defendant’s arrest the police officer knew him to be a convicted felon. Defendant’s objection to the remark was sustained and the jury was admonished to disregard it. During the trial the state was permitted to show the two prior convictions, and the jury was properly instructed as to the limited purpose for which such evidence was admitted.
We find no prejudicial error and the judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J:
This is a suit against an insurance company to recover medical bills under the medical payments coverage of an automobile insurance policy.
The controlling question on appeal is whether the “other insurance” provision of the insurance policy is ambiguous and subject to construction in the insured’s favor.
On the 13th day of October, 1967, an automobile being driven by Craig Wignall and owned by James Wignall was involved in a collision. Denice Ibarra (plaintiff-appellee), age 14 and the daugh ter of Betty Jean Ibarra Casey (plaintiff-appellee), was a passenger in the Wignall vehicle at the time of the collision, and thereafter she and her mother incurred over $1,000 in medical expenses for the treatment of injuries sustained by Denice in the collision.
At the time of the collision the Wignall vehicle was insured by a policy of insurance with the State Farm Insurance Company, which provided for medical payments coverage to passengers of that vehicle. Subsequently the Ibarras presented a claim to the State Farm Insurance Company for the medical expenses incurred as a result of the collision, and the claim was paid in full by State Farm.
On the day of the collision Betty Jean Ibarra Casey was the named insured in an automobile policy of insurance with the Aetna Casualty and Surety Company (defendant-appellant). The described vehicle in that policy was a Buick LeSabre automobile owned by Betty Jean Ibarra Casey. Neither Denice Ibarra, the minor, nor Mrs. Casey, her mother, carried any other automobile insurance. The Aetna automobile policy provided for medical expense payments for bodily injury sustained by the named insured or a relative while occupying a non-owned automobile incurred within one year from the date of the accident up to the sum of $1,000. Under the provisions of the policy relating to persons insured, and medical expense coverage, a relative is an insured.
The “other insurance” provision of the Aetna policy here in controversy provides:
“Other Insurance
“Liability and Medical Expense Coverages
“[1] If the Insured has other insurance against a loss to which the Liability Coverage applies or other automobile insurance affording benefits for medical expenses against a loss to which the Medical Expense Coverage applies, Aetna Casualty shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability under this policy for such loss bears to the total applicable limit of liability of all valid and collectible insurance against such loss; [2] provided, however, the insurance with respect to a temporary substitute or non-owned automobile shall be excess insurance over any other valid and collectible insurance and [3] if the Insured has other excess or contingent insurance applicable to loss arising out of the use of a temporary substitute or non-owned automobile, Aetna Casualty shall not be liable under this policy for a greater proportion of such loss than the amount which would have been payable under this policy, had no such other insurance existed, bears to the sum of said amount and the amounts which would have been payable under each other policy applicable to such loss, had each such policy been the only policy so applicable.” (Emphasis added.)
The numbers in brackets in the foregoing provisions of the policy have been added for clarification and to facilitate further discussion of these provisions.
Denice Ibarra and her mother submitted a medical expense claim under the Aetna policy to the Aetna Casualty and Surety Company for the same medical expenses the State Farm Insurance Company paid. It should be noted, however, the plaintiffs first submitted their claim for medical bills to Aetna, but Aetna denied the claim on the ground the Wignall vehicle was a non-owned automobile as defined in the Aetna policy, and that since the Wignall vehicle had medical expense coverage the Aetna policy was excess insurance. In its letter Aetna contended State Farm’s coverage was primary, and it returned the medical bills sent to it by the plaintiffs.
Thereafter, on the 23rd day of January, 1968, the plaintiffs filed their suit against Aetna praying for judgment against Aetna in the sum of $1,000 plus costs and reasonable attorney fees. A list of the medical bills in the amount of $1,032.55 was attached to the petition as an exhibit.
After issues were joined by the pleadings and discovery was completed, the matter was submitted to the trial court on motions for summary judgment filed by the respective parties. The trial court considered the case on the pleadings, the admissions of record, suggestions and argument of counsel.
Subsequently, after various motions and delaying tactics, the trial court entered judgment for the plaintiffs against Aetna in the sum of $1,000 and costs. It also awarded the plaintiffs $250 as and for attorney fees pursuant to K. S. A. 40-256.
Appeal has been duly perfected by Aetna presenting the points hereafter discussed.
Was the Aetna medical expense coverage excess insurance over the State Farm insurance coverage?
The appellant argues the appellees are attempting to effect a double recovery for their “alleged” medical expense arising from the collision of October 13, 1967.
It is a generally accepted rule that insurance policies are to be construed in favor of the insured and against the insurance company. This rule, however, is to be invoked only where there exists rational grounds for construction of the policy. That is, the contract must contain provisions or language of doubtful, ambiguous or conflicting meaning, as gathered from a natural interpretation of its language. (Ferguson v. Phoenix Assurance Co., 189 Kan. 459, 370 P. 2d 379, 99 A. L. R. 2d 118; and Lanin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992.)
Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Simonich, Executrix v. Wilt, 197 Kan. 417, 423, 417 P. 2d 139.)
If the language when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the insurance policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties. (Ferguson v. Phoenix Assurance Co., supra.)
In determining the intention of the parties under the above rule, the test is not what the insurer intends the words of the policy to mean, but what a reasonable person in the position of the insured would have understood them to mean. (Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571; Jenkins n. United States Fire Ins. Co., 185 Kan. 665, 347 P. 2d 417; and Kansas Farm Bureau Ins. Co. n. Cool, 205 Kan. 567, 471 P. 2d 352.)
The appellant’s defense in this action is that “other insurance” coverage was available, or applicable — that of State Farm on the non-owned automobile. It contends clause [2] of the “other insurance” provision here in question is clear and unambiguous in that it specifically provides that the insurance with respect to a non-owned automobile shall be excess insurance over any other valid and collectible insurance.
But the wording of the policy here, commencing with clause [1] is: “If the Insured has . . . other automobile insurance affording benefits for medical expenses.” This language, on its face, applies to the appellees only if either had other automobile insurance policies. Denice was a minor and had no automobile policy of any kind. She was insured only because she was a relative of the named insured, Mrs. Casey, who had no other policies of automobile insurance.
The phrase, “If the Insured has other insurance,” has been construed to mean other insurance purchased by the insured. (Bituminous Cas. Corp. v. Travelers Ins. Co., 122 F. Supp. 197, Syl. ¶ 5 [D. Minn. 1954].) We think this is the proper interpretation of the language in clause [1]. Since neither Mrs. Casey nor Denice “had” other insurance, this provision of the policy does not apply. When the various clauses of the “other insurance” provision of the policy are considered, it can logically be argued clause [2] is a proviso which is a part of, modifies and is dependent upon the preceding provision, clause [1]. Thus, if clause [1] is not applicable to the facts here presented, clause [2] is not applicable.
Further still, the proviso in clause [2] links the excess condition by the word “and” without punctuation to clause [3] again providing, “if the Insured has other excess or contingent insurance applicable.” (Emphasis added.)
A possible interpretation of the proviso (clause [2]) is that the policy in question affords excess coverage only as to non-owned automobiles if the insured has other excess automobile insurance, and then only pro rata.
When the foregoing interpretation of the “other insurance” provisions in question is viewed in the light of the appellant’s contention as to its meaning, also possible, it must be said the policy on the point in question is ambiguous, uncertain and open to queston. A layman would interpret the word “has” to mean that he has purchased or carries insurance issued to him. This is what lawyers mean when they ask, “Does your driver have insurance?”
The appellant relies upon three cases from other jurisdictions which have “other insurance” provisions similar to the Aetna policy herein. These cases are: Burns, Aplnt. v. Employers’ L. A. Corp., Ltd., 205 Pa. Super. 389, 209 A. 2d 27 (1965); Harkavy v. Phoenix Ins. Co., 220 Tenn. 327, 417 S. W. 2d 542 (1967); and Vallaire v. Employers Liability Assurance Corp., 177 So. 2d 391 (La. 1965).
In each of these cases the “proviso” clause of the “other insurance” provision is for all practical purposes identical to clause [2] of the Aetna policy here in question, and the courts in each of these cases held the insurance of the respective companies issuing such policy to be excess insurance.
In each of these cases, however, the issue was not identical to that here presented. In the Burns and Harkavy cases the real dispute centered around the term “valid and collectible insurance.” Rut there is another distinction which is more basic. The initial clause in each of the policies in these cases read, “If there is other automobile medical payments insurance.” The policies did not read as clause [1] of the Aetna policy — “If the Insured has . . . other automobile insurance affording benefits.” (Emphasis added.) This is the important distinguishing characteristic of these cases, and we do not consider them applicable here.
When there is as much trouble interpreting an insurance policy as we have here, it is difficult to say it is free from ambiguity. Policies written and sold to the public should not require the services of an expert in semantics to determine coverage. (Mallinger v. State Farm Mut. Auto. Ins. Co., 253 Iowa 222, 111 N. W. 2d 647 [1961].)
Under the foregoing rules of law the ambiguity in the Aetna insurance policy respecting the “other insurance” provisions on medical expense coverage must be resolved by construing it in favor of the insured and against the insurance company. Under these circumstances the Aetna medical expense coverage is not excess insurance over the State Farm insurance coverage, and the appellees are entitled to recover their medical expenses up to the limit of $1,000 provided in the Aetna policy from Aetna.
The appellant contends the damages alleged by the appellees were neither proved nor stipulated, and the validity of service upon the appellant was not ruled upon by the trial court.
In the journal entry of judgment the trial court found it had jurisdiction of the parties and the subject matter. The appellant raised the matter of service in its letter of October 8, 1968, requesting a rehearing. Pursuant thereto the court held another hearing on October 25, 1968, at which the question was argued, and the trial court in announcing its decision by letter of November 18, 1968, to counsel said the enclosed journal entry was based upon motions for summary judgment, motion for rehearing, and motion to settle journal.
On the state of the record here presented, the appellant has not made it affirmatively appear the trial court erred in finding that it had jurisdiction of the parties and the subject matter.
The appellant filed its motion in the trial court for summary judgment first. Then the appellees filed their motion for summary judgment. As the record then stood, the petition indicated the amount of medical bills was in excess of $1,000, and a list of the medical bills was attached and incorporated by reference. The appellees admitted in their answers to requests for admissions that the medical bills attached to the petition were the same bills submitted to State Farm and paid by it. They were the same bills previously submitted to the appellant which it returned to the appellees. We see no merit in the appellant’s contention that the appellee’s damages were neither proved nor stipulated. This was not a controverted issue in the trial court, and on the record here presented the appellant must be deemed to have admitted the validity of the medical expenditures.
The appellant contends that if its coverage is primary, it should be prorated with State Farm Insurance Company.
The trial court in its conclusions of law held the policy of Aetna to be primary, not excess. We deem this conclusion of the trial court to be immaterial to the judgment entered on behalf of the appellees, and on the facts in this case find it unnecessary to delve into this question. (See, Jones v. Morrison, 284 F. Supp. 1016 [W. D. Ark, 1968].)
The trial court held that the appellant had waived its pro rata defense because it was not an issue raised by the pleadings, nor was it argued by the appellant until after the trial court had announced its decision. Refore the trial court had ruled on the appellant’s motion for summary judgment, the appellant had consistently argued that State Farm Insurance Company’s policy was primary. It argued this defense solely and at length in its brief in support of its motion for summary judgment and at the first hearing of the matter. Only after the trial court ruled against the appellant on this matter did it assert the pro rata defense. Under the circumstances the appellant is deemed to have waived this defense, and the trial court properly so held. (Insurance Co. v. Ferguson, 78 Kan. 791, 98 Pac. 231; Lucas v. American Yeomen, 105 Kan. 700, 185 Pac. 901; and Svetlicic v. Farmers Alliance Ins. Co., 136 Kan. 551, 16 P. 2d 956.)
Did the appellant have just cause and excuse for not paying the appellees’ claim?
The appellees contend under K. S. A. 40-256, providing for the allowance of attorney fees where the insurance company refuses to pay without just cause or excuse, a review of the cases shows that where the court below has awarded fees, the Supreme Court has sustained it, and where the court below has not awarded attorney fees, the Supreme Court has upheld such decision.
Ry this process of reasoning the appellees arrive at an erroneous conclusion. (See, Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219; Barnes v. Mid-Continent Casualty Co., 192 Kan. 401, 388 P. 2d 642; and Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681.)
In Lindesmith v. Republic Mutual Fire Ins. Co., 189 Kan. 201, 368 P. 2d 35, a judgment was rendered against the insurer on the question of coverage and was held not sufficient, in and of itself, to justify a ruling that the insurance company did not have “just cause or excuse” to deny the insured’s claim.
The law on this point is clarified in Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P. 2d 756, wherein it is said:
“. . . 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. . . . 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. . . .” (p.565.)
Under the provision of Aetna’s insurance policy it was questionable whether Aetna was liable to the appellees in this case for medical expenses of the appellees which had previously been paid by the State Farm Insurance Company. Under these circumstances Aetna in good faith was justified in litigating the question of law presented although unsuccessful in its effort. It cannot therefore be said the claim of the appellees was denied without just cause or excuse. Accordingly, the trial court erred in awarding attorney fees to the appellees in the sum of $250 as a part of the judgment against Aetna.
The judgment of the lower court awarding damages to the appellees in the amount of $1,000 for medical expenses is affirmed, but the judgment awarding attorney fees is reversed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Fromme, J.:
This action was brought by an insured father and daughter against their insurance company on the medical payments coverage provided in their automobile policies. The case was submitted on a stipulation of facts and on opposing motions for summary judgment. Judgment was entered in favor of the insurance company and this appeal followed.
The daughter, Carol B. Bramlett, a minor, resides with her father, Robert L. Bramlett. The father owns a 1964 Pontiac automobile and a 1956 Ford pickup truck. These vehicles were insured by State Farm Mutual Automobile Insurance Company (the insurance company). Separate policies were issued and they provided medical payments coverage of $1000 to Robert Bramlett and members of his household who might sustain bodily injury caused by accident while occupying or through being struck by the owned automobile, or any other motor vehicle.
The daughter, Carol B. Bramlett, purchased a 1962 Chevrolet automobile on December 20, 1965, and on that day she purchased identical insurance coverage from the insurance company. Her father paid the premium and both Carol and her father were the “named insured” under this policy. All three policies were identical in medical coverage and in the wording of the policies.
Three months later on March 15, 1966, Carol Bramlett was injured while riding as a passenger in the 1962 Chevrolet. Medical expenses were incurred on behalf of Carol as a result of this accident in the amount of $1880.32. A claim for the total amount was filed in court against the insurance company based upon the medical coverage in all three policies. While die claim was pending in court the insurance company paid $1000 on the claim under the 1962 Chevrolet policy without prejudice to the rights of either party. $880.32 and possible attorney fees remain at issue in this case.
At the outset we point out all parties concede that material changes were made in the form of policies issued by this insurance company after our decision in Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992. It is further conceded these changes in the present policies make the law declared in Lavin inapplicable to the present case. We are not called on to decide the effect of any such policy changes and we express no opinion thereon in this case.
The thrust of the appellants’ (Robert L. and Carol B. Bramlett’s) argument is that the provision giving automatic coverage to newly acquired automobiles in the Ford and Pontiac policies applies to the 1962 Chevrolet as a newly acquired automobile.
The Ford and Pontiac policies provide $1000 medical payments coverage to the named insured and relatives residing in the household while occupying or being struck by the “owned automobile”. Under the definition section of the policies “owned automobile” means the automobile described in the policy, and includes a tem porary substitute automobile and a “newly acquired automobile”. Therefore, if the 1962 Chevrolet is a “newly acquired automobile” it comes within the definition of the “owned automobile” and medical coverage is provided by the Ford and Pontiac policies in excess of that listed in the Chevrolet policy.
The pertinent provision in the definition section of these policies reads as follows:
“Newly Acquired Automobile — means an automobile, ownership of which is acquired by the named insured or his spouse, if a resident of the same household, if (1) it replaces an automobile owned by either and covered by this policy, or the company insures all automobiles owned by the named insured and such spouse on the date of its delivery, and (2) the named insured within 30 days following such delivery date applies to the company for insurance on such newly acquired automobile. If more than one policy issued by the company could be applied to such automobile the named insured shall elect which policy shall apply. The named insured shall pay any additional premium required because of the application of the insurance to such newly acquired automobile.” (Emphasis supplied.)
The insurance company’s counter contention is that the purpose of the automatic coverage clause is to give the insured 30 days interim protection on any new car acquired in order to afford him a reasonable opportunity to acquire insurance coverage on the new car, and that once the insured does acquire specific coverage on the new car the automatic coverage provision is no longer applicable.
In construing an insurance policy a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished. (Continental Casualty Co. v. Employers Mut. Casualty Co., 198 Kan. 93, 422 P. 2d 560.)
Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense. (Saul v. Saint Paul-Mercury Indemnity Co., 173 Kan. 679, 250 P. 2d 819.)
In Rlashfield Automobile Law and Practice (Third Edition), Vol. 7, § 316.3, pp. 656, 657, it is said:
“An automatic insurance provision is for the benefit of the insured, and its purpose is to extend coverage to the person already insured with the company in question with respect to the operation or maintenance of another automobile acquired by him, which is not described in the policy, as a replacement for the automobile originally covered or as an additional automobile when the company insures all the automobiles of insured. Once 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’ or ‘newly acquired automobile’ clause are no longer applicable.”
The courts are not uniform in their decisions regarding the length of time this automatic coverage is afforded to a newly acquired automobile when a 30 day automatic coverage provision is construed. Appellants cite and rely on Carey v. State Farm Mutual Insurance Company, 247 F. Supp. 381 (1965), wherein it was held coverage under a policy issued on a previously owned automobile automatically applied to the newly acquired automobile and continued for the remaining policy period. The coverage continued after a separate policy was purchased and in effect on the newly acquired automobile. In that case an accident occurred two months after the automobile was acquired and separately insured. The policy covering the previously owned automobile required the named insured to notify the insurance company of the purchase within 30 days after title was acquired. The effect of the holding in Carey was to extend liability coverage under the policy on a previously owned automobile to an accident involving the newly acquired automobile. The policy issued on the newly acquired automobile was considered “other insurance” available to cover liability. Pro-rata recovery was allowed on the new policy in addition to recovery under the policy on the previously owned vehicle.
The appellee relies on Cook v. Suburban Cas. Co., 54 Ill. App. 2d 190, 203 N. E. 2d 748. In Cook the court said:
“Since the purpose of the ‘automatic insurance clause’ or ‘newly acquired automobile clause’ is to provide insurance coverage where the owned automobile is not described in the contract [citing cases] once specific insurance is purchased and the automobile becomes described in a policy, the automobile is no longer a ‘newly acquired automobile’ but is then a ‘described automobile’ and the terms and provisions under the so-called ‘automatic insurance clause’ or ‘newly acquired automobile clause’ is no longer applicable.” (203 N. E. 2d 751.)
We are more impressed with the reasoning of the Illinois court in construing the “newly acquired automobile clause”. The intention of the parties and the purpose sought to be accomplished as expressed by the wording of the policy was given effect to arrive at the decision.
In Carey v. State Farm Mutual Insurance Company, supra, the court’s reasoning is difficult to follow. The court begins by assuming the insurance company did not intend to afford the coverage. It indicates the insured did not intend to purchase the double liability coverage. Then, to arrive at its ultimate decision the court finds the intention of the parties was clear, no ambiguity existed, and the coverage was intended and purchased. It is difficult to see how the result reached by the court in that decision could have been influenced by any consideration of the intention of the parties.
In ascertaining and enforcing the intention of the parties to an insurance contract courts should not add terms, conditions or coverage which were never contemplated or agreed upon by the parties. If the language in the policy is clear and unambiguous it should be taken in its plain, ordinary and popular sense.
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.
In the present case the district court correctly held the 1962 Chevrolet was not a “newly acquired automobile” under the Ford and Pontiac policies when the insured acquired specific insurance on the 1962 Chevrolet automobile.
The judgment is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by Kaneb Pipe Line Company and the State Corporation Commission from a district court’s judgment setting aside an order of the commission certificating shares of common stock issued by Kaneb.
Kansas-Nebraska Natural Gas Company, Inc., appellee, was granted leave to intervene in proceedings before the commission. The commission denied an application for rehearing and Kansas-Nebraska appealed to the district court of Phillips County.
The material facts can be briefly stated. On November 17, 1967, Kaneb filed an application with the commission, pursuant to the provisions of K. S. A. 66-125, requesting the certification of some 20,566 shares of common stock which had been issued pursuant to two separate employee stock option plans. Kansas-Nebraska filed a petition to intervene, which was brought to the commission’s attention at tire commencement of the hearing on April 9, 1968. Kaneb objected to the intervention and the parties argued their respective positions before the commission. The commission staff counsel pointed out that under K. A. R. 82-1-213 (i) admission as an intervenor should not be construed as recognition by the commission that such intervenor might be aggrieved by any order of the commission in such proceeding. Kansas-Nebraska was allowed to intervene and the hearing was held.
At the hearing Kaneb offered in evidence its verified application which set forth the stock option plans approved by its shareholders and by its board of directors. Kaneb also submitted annual reports filed with the commission, which indicated the shares of stock which had been issued under the stock option plans.
Neither Kansas-Nebraska nor the commission offered evidence.
The commission’s order was filed May 15, 1968. The commission made findings of fact and conclusions of law and granted a certificate covering 22,159 shares of common stock previously issued by Kaneb.
The commission ruled in essence that its authority under the provisions of K. S. A. 66-125 is to determine whether the issuance of the securities is necessary for statutory purposes, and upon ascer taining the truthfulness of the statements contained in the application and that the stock will be used for the purpose for which its issuance is required, it then becomes the mandatory duty of the commission to issue the certification applied for as provided in 66-125, supra.
The commission found that Kaneb had furnished all requisite and necessary information required by the provisions of 66-125, supra, and that the issuance and sale of stock was necessary and required for the purposes stated in the application.
Commissioner Greenleaf dissented on the ground the commission lacked power to retroactively certificate the stock.
Kansas-Nebraska filed an application for rehearing, primarily on the ground that the commission’s order was unlawful because the stock was void under the terms of 66-125 and could not be retroactively validated.
As we have previously indicated, Kansas-Nebraska appealed to the district court after the application for rehearing was denied. Kaneb intervened in the district court proceeding.
The district court adopted the findings of fact made by the commission and then held as a matter of law that the commission had no authority to authorize or approve the issuance of the stock, after the same had been issued, because Kaneb had failed to secure prior approval of the stock under the provisions of 66-125.
Before proceeding further with this opinion it should be said that we have had no occasion to consider the merits of the controversy since we are of the opinion Kansas-Nebraska had no standing to seek judicial review of the commission’s order.
The standing of Kansas-Nebraska was put in issue when the commission and Kaneb filed motions to dismiss in the district court on the ground that Kansas-Nebraska did not have standing to seek judicial review since it did not have the requisite “interest” nor was it an “aggrieved” party in the proceedings.
The district court did not expressly rule on the motions to dismiss, but during the proceedings commented:
“. . . I don’t know how the — these Kansas-Nebraska Natural Gas Company got into it other than from the record, but it appears the Corporation Commission permitted them to intervene in that case.”
This comment is the only clue as to the view of the district court concerning the standing of Kansas-Nebraska. It appears the district court refused to dismiss simply because the commission had permitted Kansas-Nebraska to intervene in the commission proceedings.
The record of proceedings before the commission discloses that, in support of its motion to intervene, Kansas-Nebraska argued that, since Kaneb had acquired twenty percent of the stock of Kansas-Nebraska with the avowed purpose of seeking a merger, it had a vital interest in the validity of Kaneb’s stock which might be traded for Kansas-Nebraska stock in the event a merger was consummated. The commission made no findings or orders at this point in the proceedings, as to the status of Kansas-Nebraska. The only showing in the record indicating the position of the commission concerning the standing of Kansas-Nebraska is reflected in a colloquy between Commission Chairman, Saffels and staff counsel Johnson which is shown in the record as follows:
“Chairman Saffels: Mr. Johnson, do you have any comment?
“Mr. Johnson: Mr. Chairman, of course, this is a matter of discretion with the Commission. I do feel that in this instance the matter is one of broad discretion. I agree with Mr. Partridge as to his citation of the rule to which he referred; however, I would call the Commission’s attention to another rule with reference to intervention. That is Rule 82-1-213, which states in part: ‘Admission as an intervenor shall not be construed as recognition by the Commission that such intervenor might be aggrieved by any order of the Commission in such proceeding.’ I think that order is in keeping with the broad discretion the Commission has in this matter and I would just bring that particular rule to the Commission’s attention.”
The commission’s Rule, K. A. R. 82-1-213 (i) defines “intervenors.” The portion of the Rule pertinent to our question reads:
“. . . Admission as an intervenor shall not be construed as recognition by the commission that such intervenor might be aggrieved by any order of the commission in such proceedings.”
The purpose of the rule seems to be to afford a safeguard which enables the commission to pursue a commendable liberal policy in permitting participation by parties desiring to intervene in commission proceedings. It affords an intervening party an opportunity to show and the commission to hear evidence of any direct interest the party might have in the proceedings, that might be adversely affected by the commission’s order without a precommitment by the commission with respect to standing.
We believe the rule serves a laudable purpose in protecting a party’s right to show an interest without hindering orderly procedure in commission proceedings.
The rationale of the rule is not without supporting authority. In 2 Am. Jur. 2d., Administrative Law, § 576, this statement appears:
“. . . Furthermore, the mere fact that a party was permitted to intervene in an administrative proceeding does not give him a standing to sue for relief in the courts, or to appeal under a statute granting each party to the proceeding a right to review; . . .” (p. 397.)
A discussion of the rule and cases in support thereof is found in 3 Davis, Administrative Law Treatise, Standing, § 22.08, p. 242.
In the instant case, as we have previously noted, the district court did not make an express finding as to the standing of Kansas-Nebraska. From the colloquy between the commission and its counsel and the subsequent filing of the motion to dismiss in the district court, the commission’s position clearly appears to be that Kansas-Nebraska was not “aggrieved” by the commission’s order.
Kansas-Nebraska submitted no evidence in the commission hearing. It stood only on the assertion that Kaneb owns twenty percent of its stock for the avowed purpose of effecting a merger. In its brief on appeal, Kansas-Nebraska repeats the assertion and argues that in case a merger is effected, which might result in a trading of stock, Kansas-Nebraska stockholders would suffer a disadvantage by reason of the additional stock and the possibility of a cloud on the validity of the Kaneb stock in question. In other words, Kansas-Nebraska depends only upon the possibility of inequities arising between respective stockholders of the two companies in case of a merger as a basis for its claim of standing in these proceedings.
We do not believe the hypothesis asserted by Kansas-Nebraska is sufficient to afford it standing under our statutes dealing with the subject.
Kaneb says that the term “interested” as used in the statute cannot be stretched to include the merely curious of those who by virtue of their general hostility to the applicant are interested in interfering with or harming its business. Kaneb contends the word “interested” in the context used in the statute means a party interested in the subject matter and one who has an “immediate and pecuniary” interest which would be “injuriously affected” or “aggrieved” by the commission s order.
Kaneb points out that Kansas-Nebraska is not a creditor, stockholder, debtor, customer, supplier or competitor of Kaneb and that there is no contractual relationship of any kind between the two companies.
Even i£ the possibility of a merger gives Kansas-Nebraska a position of interest in the proceeding, Kaneb points out and it is undisputed, that all merger proposals between the two companies had terminated by November 1967. Kaneb further says that the district court was aware of the termination of merger proposals because of other appeals to the same court by Kansas-Nebraska from commission orders in other proceedings.
In its annual report to shareholders for the year 1967, the chairman of the board and the president of Kaneb stated that Kaneb was still of the opinion that a merger of the two companies would benefit shareholders and consumers of both companies, but as of November 1967 there was no outstanding plan of merger.
As we have previously noted, the order of the commission was entered on May 15, 1968, and the application for review was presented to the district court on October 25, 1968. On that date the only actual connection between Kaneb and Kansas-Nebraska was the ownership by Kaneb of common stock in Kansas-Nebraska.
If prospects of a merger should again appear, shareholders of Kansas-Nebraska may protect themselves by negotiating on a basis of the adjusted shareholder equities in the two respective companies. If the additional stock of Kaneb should be used in some future merger attempt to the unlawful disadvantage of Kansas-Nebraska shareholders, they have access to the customary legal remedies of shareholders, rather than by resorting to intervention in commission proceedings which actually concern only internal affairs of Kaneb.
While we believe that in commission proceedings a liberal policy governing intervention should be followed; nevertheless, some showing of direct interest must be shown, particularly when the proceedings concern the internal affairs of an applicant.
The applicable statute (K. S. A. 66-118a) governing review proceedings defines a “party” as including any person, corporation, etc., “interested” in any matter pending before the State Corporation Commission or in proceedings for review of an order or decision of the commission.
K. S. A. 66-118b provides in substance, pertinent to the issue here, that “any person being dissatisfied” with any order of the commission may apply for a rehearing and if the rehearing is denied then under K. S. A. 66-118c “the applicant” may within thirty days apply to the district court of the county in which the order of the commission is to become effective for a review of such order or decision.
“Interest,” as used in 66-118a, has been spoken of by this court as embodying the usual requirements of a showing of interest and aggrievement as a prerequisite for standing. In Pelican Transfer & Storage v. Kansas Corporation Commission, 195 Kan. 76, 402 P. 2d 762, the term “aggrieved party” was used. In Spena v. Goffe, 112 Kan. 693, 212 Pac 1093, the term “directly injured” was used in this connection. The term “a person aggrieved” was used in a comment on the subject in Bennett v. Corporation Commission, 157 Kan. 589, 142 P. 2d 810.
In Anderson v. Carder, 159 Kan. 1, 150 P. 2d 754, the court was dealing with standing to appeal in court proceedings. However, we believe the requirements of “interest” and “aggrievement” for that purpose to be so analogous to the requirements in administrative proceedings that the language used is worthy of note. In Anderson this court stated:
“The question of what constitutes the necessary interest to give a person a right of appeal is often an interesting one. Ordinarily a person cannot appeal from a judgment unless he has a particular interest therein and is aggrieved or prejudiced thereby. Ordinarily his interest must be immediate and pecuniary. (McLeod v. Palmer, 96 Kan. 159, 150 Pac. 535; Cardin v. Apple, 150 Kan. 162, 92 P. 2d 32; In re Estate of Doyle, 152 Kan. 23, 30, 103 P. 2d 52; 2 Am. Jur., Appeal and Error, §§ 149, 150, 152; 4 C. J. S., Appeal and Error, §186.) Appeals are not allowed for the purpose of settling abstract questions, however interesting or important to the public generally, but only to correct errors injouriously affecting the appellant. (2 Am. Jur., Appeal and Error, § 152, see, also, Nicholas v. Lawrence, 161 Va. 589, 171 S. E. 673; Barriger v. Louisville Gas & Electric Co., 196 Ky. 268, 244 S. W. 690 [31 A. L. R. 1408])” (Emphasis supplied.) (p. 4.)
While this court has not been confronted with the application of statutory terminology to the question of standing in the context presented here, we believe the language used in the cases noted supports an interpretation of “interested party” as one who has an immediate and pecuniary interest which would be injuriously affected or aggrieved by the commissions order.
We find similar interpretations in other jurisdictions where like proceedings are governed by statutes or commission rules similar to our applicable statutes.
Standing to appeal a commission ruling was one of the questions in the factually similar case of Eastern Maine Elec. Coop. v. Maine Yankee Atom. P. Co., (Me. 1967), 225 A. 2d 414. As here, the Maine case involved an application for approval of the issuance and sale of common stock before the Maine Public Utilities Commission. The Maine Public Utilities Commission rules permitted intervention by persons other than original parties to the proceeding “who are directly and substantially affected by the proceeding” and require a showing “of the direct and substantial interest of the petitioner in such proceeding.” The Maine Commission approved an issuance of common stock by Maine Yankee. Eastern Maine was permitted to intervene before the commission and appealed from the commission’s order. Eastern Maine sought to establish standing on the ground that it was a customer of two Public Utility Companies which were established by the evidence as “potential” stockholders of Maine Yankee.
A citizen committee, comprised of people who were interested in the creation of a “potential” but as yet nonexistent competitor of the applicant, Maine Yankee, also attempted to gain standing to appeal.
The Supreme Court of Maine ruled that neither appellant had standing to attack the commission’s order approving the issuance of stock by Maine Yankee. The court stated:
. . The mere fact that the Commission saw fit either erroneously or as a mere act of grace to vouchsafe status as intervenors to these parties does not establish or ensure their standing as appellants or relieve them from the necessity of demonstrating on appeal that they have a viable interest in these proceedings. . . (p. 416.)
The corn! further noted with approval a portion of the Commission’s decree:
“. . . ‘We were acting solely upon a request of management of a utility to issue and sell common stock and the risk, if any there be, falls wholly upon the stockholders of the utility and not the ratepayer.’ (Emphasis ours.)” (pp. 416, 417.)
We believe the “potential" interest of Kansas-Nebraska in these proceedings closely resembles that of the prospective appellants in the Maine case, which was termed remote and speculative by the Maine court.
In the case of In re Application of Neb. Power Co., 147 Nebr. 324, 23 N. W. 2d 312, the Nebraska court was concerned with standing to obtain judicial review of an order of the Nebraska Railway Commission. The applicable Nebraska statute (75-405, R. S. 1943.), in substance conferred standing in these terms “If . . . person or persons affected thereby shall be dissatisfied with the decision of the State Railway Commission . . . such person or persons affected may institute proceedings in the Supreme Court of Nebraska. . .
In the Nebraska case the appellant alleged it was a customer of an applicant who sought authority to issue and sell serial notes. In dismissing the appeal for lack of standing the Nebraska court interpreted the language of the statute to mean—
“. . . any person or persons who either have a substantial right, a property right, or a pecuniary right that would be adversely or injuriously affected, or some right other than merely a general interest common to all members of the public that would be adversely or injuriously affected as a result of the order of the commission.” (p. 329.)
In an older case, Page v. Commonwealth, 157 Va. 325, 160 S. E. 33, the Virginia Supreme Court, in considering the applicable statute (Code 1919, §3832) which afforded appeal from a commission order to any party in interest, declared that “the interest here alluded to must be direct and not indirect and remote.” The court further held that the mere fact that a party was permitted to intervene in commission proceedings did not make such intervenor a “party in interest.”
In 2 Cooper, State Administrative Law, Section 2(A), General Tests, a general test is stated in this language:
“If an administrative rule or order either commands or prohibits action on the part of an individual, or if there is a reasonable probability that it may be in the future require or forbid action on his part, this is ordinarily enough to confer standing upon that individual to seek judicial review.” (p. 538.)
See, also, 2 Am. Jur. 2d, Administrative Law, § 575, p. 395; 73 C. J. S., Public Administrative Rodies and Procedure, § 176 [Right of Review — Interest in General], pp. 517, 518.
In the instant case the commission’s order neither commands nor prohibits action on the part of Kansas-Nebraska. Viewed in the light of the rationale of the authorities mentioned, Kansas-Nebraska’s allegations concerning a “potential merger,” which the record shows has not actually been pending since November 1967, are too speculative and remote to constitute an interest which entitled Kansas-Nebraska to judicial review of a commission order dealing only with a stock issue of Kaneb. Under the statutes governing judicial review, which we have referred to, the “interest” of an “interested” party must be direct, not indirect and remote.
Accordingly, we hold the district court erred in failing to sustain the motion to dismiss presented by the commission and Kaneb.
The judgment is reversed with directions that the order of the State Corporation Commission be reinstated.
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The opinion of the court was delivered by
Fromme, J.:
This claim was filed by Ethel M. Johnson, mother, on behalf of Nancy D. Younts, her seventeen year old daughter, against the St. Francis Hospital and School of Nursing, Inc. (the hospital) for injury and damage to the tip of the daughter’s right ring finger. The claim was tried to the court. Judgment was rendered in favor of the defendant based upon the court’s findings. The plaintiff has appealed.
The claim was presented to the court on two theories. First, on the theory that one of the nurses employed by the hospital negligently caused the injury by closing a door on the daughter’s finger, and second, on the theory that a resident surgeon employed by the hospital ■ performed an unauthorized surgical procedure on the daughter to repair the finger without obtaining the consent of the daughter and her mother.
We will treat the contentions with respect to each separate theory in the order listed above.
The facts as to the accident are in dispute. In view of the court’s findings in favor of the hospital the evidence favorable to the hospital will be summarized.
The mother had undergone major surgery on the day of the daughter’s injury. The daughter was in the hospital and was concerned about her mother’s condition. The mother was brought to her room on a surgical cart while the daughter waited outside her mother’s room. The daughter followed the nurses into her mother’s room. The nurses were preparing to transfer the mother from the surgical cart to the bed. The daughter was asked to step into the hall. When the daughter was in the hall one of the nurses (Wanda) closed the door to the room. She heard the daughter scream with pain. In a partial closing of the door the nurses’s view of the daughter had been obscured by the door. The nurse could not anticipate and did not see the daughter’s move toward the door. It may be inferred the daughter stepped forward after the door was partially closed and unconsciously placed her finger in the scissorlilce action of the door hinge. A piece of flesh from the daughter’s finger was found on the floor below the hinges of the door. The door was opened immediately for the nurse had not yet released the door handle. The daughter was suffering and her finger was bleeding. One of the nurses (Joyce) asked the daughter if she would like to go see about getting her finger fixed. The daughter said she would. The nurse obtained permission at the nurses’ station to take the daughter to the emergency room of the hospital. The resident surgeon in the hospital treated and repaired her finger.
The court made the following findings with regard to negligence of the hospital employees:
“1. The injury sustained by the plaintiff, Nancy D. Younts, was not due to any wrongful or negligent act on the part of St. Francis Hospital and School of Nursing, Inc., its agents, servants or employees.
“2. The injury sustained by the plaintiff, Nancy D. Younts, to her finger was not due to the failure of any care due plaintiff by defendants, its agents, servants or employees.”
The judgment of the court denied plaintiff relief.
Upon appellate review this court accepts as true the evidence and all inferences to be drawn therefrom which tend to support the findings of the trial court. The appellate court disregards any conflicting evidence and inferences which do not tend to support the findings.' When findings are attacked for insufficiency of evidence or as being contrary to the evidence the appellate court’s power begins and ends with determining whether there is evidence to support such findings. It is of no consequence that contrary evidence was adduced which, if believed, would have supported different findings. In short, the findings of a trial court as to negligence or the lack of it which are supported by substantial relevant evidence will not be overturned on appellate review (Morris v. Hoesch, 204 Kan. 735, 466 P. 2d 272; In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527.)
Plaintiff’s claim based on the theory that one of the nurses employed by the hospital negligently caused the injury by closing a door on the daughter’s finger is disposed of by the findings of the trial court. The findings are supported by substantial competent evidence and will not be overturned on appeal.
It should be noted at this point that a malpractice claim based upon negligence in the care and treatment of a patient is not concerned with consent of the patient. The consent of a patient or of his parent is immaterial in such a case because a consent does not free the hospital or the doctor from the consequences of negligence. (See Tefft v. Wilcox, 6 Kan. 46; Hershey v. Peake, 115 Kan. 562, 223 Pac. 1113; Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955; Riggs v. Gouldner, 150 Kan. 727, 96 P. 2d 694; Zink v. Basham, 164 Kan. 456, 190 P. 2d 203.)
See also Joy v. Brown, 173 Kan. 833, 252 P. 2d 889, Richey v. Darling, 183 Kan. 642, 331 P. 2d 281, and Kimberly v. Ledbetter, 183 Kan. 644, 331 P. 2d 307, where recoveries were authorized despite consent when abortions were negligently performed.
The article by William A. Kelly, associate professor of law at the University of Kansas School of Law, entitled “The Physician, The Patient, And The Consent” points out that consent, or the lack of it, is immaterial in malpractice claims based upon negligence. (8 Kan. L. Rev. 405 at pp. 426,427)
An examination of plaintiff’s claim and of the evidence introduced during the trial indicates no attempt was made to establish that Dr. Winsky, the treating physician, was negligent in his care or treatment of this injury.
We turn now to plaintiff’s second theory, that Dr. Winsky performed an unauthorized surgical procedure on the daughter without obtaining the consent of the daughter and her mother. In addition the plaintiff contends the consent of the daughter cannot be sufficient because the docter failed to adequately inform the daughter as to the consequences of this surgical procedure.
It will be helpful to examine some additional facts bearing upon the question. The injury occurred in the hospital at a time when the mother was semi-conscious by reason of a general anaesthetic. She was being returned to her room after major surgery. The injured daughter’s parents were divorced. The father was living two hundred miles away. His address was unknown and not immediately available. The daughter was seventeen years old, intelligent and capable for her age. The injury resulted in loss of the fleshy tip of her right ring finger. The fingernail was left intact and the end of the bone was slightly fractured. The surgical repair, accomplished in the emergency room of the hospital, was of a minor nature. The plaintiff remained conscious throughout the treatment and was fully aware of what was being done. She raised no objection to the surgical procedure. The testimony of both the family doctor and the treating physician indicates the medical procedure utilized in the repair was necessary and customary for that particular injury. The functional and cosmetic results attained were good. The family doctor, who was consulted before the repair was undertaken, gave his consent. He indicated to the treating physician that the surgical procedure suggested was proper, necessary and should be undertaken.
The family physician, Dr. Thompson, testified in part as follows:
“On the date of the incident, January 27, 1965, Dr. Winsky called me. I do not remember what time of day. I was in my office when he called. He described the injury and outlined the plan of treatment which sounded good to me, so I instructed him to proceed and do it. I leave a standing order at St. Francis Hospital with respect to treatment of patients of mine who present themselves for emergency care, at least those that are there for minor injuries. My orders are for them to go ahead and repair them if it is minor such as a laceration or such as this which would be a minor procedure. And Dr. Winsky cousulted me.”
“I have been Nancy Younts’ physician for several years prior to this occurrence. ...”
“I think the operation was well done. I think the graft took well. . . .”
“Miss Younts was in my office five days ago. There was no complaint at that time about the finger. She wasn’t in for that anyway. I don’t believe that I have an opinion to a reasonable degree of medical certainty as to whether in [sic] the injury or damage was occasioned or suffered by Miss Younts as a result of the alleged lack of parental consent or any other consent. The reason I say that is that she has a good functional result of the finger. I think almost perfect as a matter of fact. I don’t believe the lack of consent had anything to do with the end result, if there was such a lack of consent. If this procedure had not been undertaken to stitch on a small piece of skin onto the finger tip, I think this would have healed over a period of time. I think these can be left out in the open and will heal. They’ll heal faster this way and will probably heal with a scar on the end rather than probably the good result she has here now. I have not performed sensitivity tests on the finger tip; that’s all subjective actually that we have as far as the sensitivity is concerned. By subjective, I mean what she says. I think the function of the finger now should be good. I have no knowledge of the portion of the finger tip which was torn off. In order for me to form an opinion as to whether or not it was usuable [sic]. I would have had to have an opportunity to examine it. The reason a graft is ordinarily taken from the forearm on injuries of this ldnd is primarily because the skin there will have about the same type pigment as you have in the hand. If you take it off some place else that is covered and you put it out here, it’ll turn dark. If you take it off the hip and put it on the finger, you will have a finger with a brown end on it. The skin from this area will have about the same pigment as the skin out here. One purpose is for aesthetic qualities. . . .”
“. . . I don’t know if there are any other places than the forearm to take the skin for this type of operation. I know this is the customary place to take it. I suppose there are other places. I have operated and taken it oil the skin for [sic] the forearm, but that was a bigger area.”
Dr. Winsky, tbe treating physician, testified as follows:
“Later on the same day, I saw her in the emergency room. This was after lunch some time, probably between two and three o’clock. This is as close as I can recall. I was called down to the emergency room. I was the surgery resident on call that day. I was called down there to examine and repair this finger tip. I examined the finger at the time I arrived. There was also an x-ray there that had been taken of her finger before I arrived which demonstrated a small fracture in the tip of the bone of this last phalanx of the distal phalanx. The fracture was just on a small edge of the tuft. The tuft is the flared portion on the very end of the phalanx. It is real friable, somewhat fragile piece of bone. It’s not a solid structure like the rest of it. There was a crack through this that was visualized on x-ray. A crack is a fracture. As I recall, the tip of her finger was missing. I did’t see any bone exposed. There was soft tissue there, but the entire skin was missing. The finger nail was still there. This was below the finger nail or the actual distal or past the finger nail. The finger nail was not affected. I don’t recall the specific conversation, but I know vaguely what conversation went on. I recall having told her what she already knew, that her finger tip was missing and that we would have to take a piece of skin, best from the arm, to put over this to cover it. She did not have any objection to this procedure as far as I recall. Before I commenced treatment of the finger, I talked to Dr. Dan Thompson. I called him at his office. I described what I have just described about her finger, told him what had happened or what I knew about it and told him what I though ought to be done, and he said do it. So I did. I took a small eliptical piece of skin from her forearm, and after I had taken it off, I reapproximated the edges where I had taken the skin from. I closed this, and then I took the little piece of skin very carefully with the scissors, took the fat off the back side so it has a better chance of growing, and cut it to the proper shape and sutured it to the tip of her finger. During the time I was stitching tire sldn on, I am sure I had conversation with Nancy concerning what I was doing. I don’t remember specifically, but I talk a lot and I usually talk to people while I am working, and I almost invariably tell them, before you stick them with the needle, before you deaden the finger, ‘This will hurt.’ These are rather non-specifics, but this has always been my policy. I don’t have a clue as to how many stitches it took to sew the tip of the finger on. The purpose in taking the skin from the wrist and putting it on the finger tip is that you have to have some kind of a covering on the finger tip or else you get infection or you get granulation. It piles up and forms an excessive amount of scar tissue which is extremely sensitive. It doesn’t heal well unless you get a covering on it. The reason for taking it from the wrist, it more nearly matches the finger than any other place. This is pretty standard procedure concerning the place to get grafts for the finger. . . .”
Mrs. Johnson, the mother, testified on cross-examination as follows:
“Dr. Thompson is our family doctor. Nancy has gone to Dr. Thompson. I have confidence in him. Had I known at the time that Dr. Thompson and Dr. Winsky had conferred and decided that this was the best procedure, I doubt if I would have consented for the graft to come from her arm. If Dr. Thompson and Dr. Winsky had indicated that they felt that that was the best procedure, I would have taken some time with Dr. Thompson to talk and find out if it was the best. If he had told me it was the best, I would have consented if he said so and she was agreeable.”
The trial court’s findings, which relate to plaintiff’s theory that the medical procedure performed on plaintiff was unauthorized and without the consent of the daughter and her mother, were as follows:
“4. This Court finds that at the time of the accident and injury to plaintiff’s finger and all during the time plaintiff was in the emergency room of defendant’s hospital, plaintiff was conscious and capable of knowing what was taking place. Plaintiff was a young lady of 17 years on the date of this incident.
“5. This Court further finds that at no time did plaintiff object or complaint [sic] to anything anyone did to assist her. There is no evidence in this case that plaintiff did not know and observe at all times what the doctor was doing to repair her finger. There is no evidence that plaintiff at any time objected to any action taken by the doctor or hospital personnel.
“6. This Court finds that, based on the evidence presented, plaintiff suffers no disability or damage as a result of the injury to her finger or the treatment given her finger.”
Plaintiff contends these findings are erroneous as a matter of law and do not support a judgment in favor of defendant.
It is the settled general rule that in the absence of an emergency or unanticipated conditions arising during surgery a physician or surgeon before treating or operating must obtain the consent of the patient, or if the patient is incompetent the consent must be obtained from someone legally authorized to' give it for him. A surgical operation on the body of a person is a technical battery or trespass, regardless of its result, unlesss the person or some authorized person consents to it. Generally the surgeon is liable for damages if the operation is unauthorized. (41 Am. Jur., Physicians and Surgeons, § 108, p. 220; 70 C. J. S. Physician and Surgeons, § 48 g, p. 967.)
See annotations on the subject of consent to surgical operations appearing in 76 A. L. R. 562 and in 139 A. L. R. 1370.
The consent of a patient to be sufficient for the purpose of authorizing a particular surgical procedure must be an informed consent. The patient must have reasonable knowledge of the nature of the surgery and some understanding of the risks involved and the possible results to be anticipated.
In Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, this court said:
“In our opinion the proper rule of law to determine whether a patient has given an intelligent consent to a proposed form of treatment by a physician was stated and applied in Salgo v. Leland Stanford, Etc. Bd. Trustees, supra [154 Cal. App. 2d 560, 317 P. 2d 170]. This rule in effect compels disclosure by the physician in order to assure that an informed consent of the patient is obtained. The duty of the physician to disclose, however, is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. . . .” (p. 409)
The medical treatment in that case was a technical cobalt radiation treatment of a serious and dangerous nature where the risks and hazards of the treatment endanger life and must be weighed against the need of the particular patient.
It was also stated in Natanson:
“The conclusion to be drawn from the foregoing cases is that where the physician or surgeon has affirmatively misrepresented the nature of the operation or has failed to point out the probable consequences of the course of treatment, he may be subjected to a claim of unauthorized treatment. But this does not mean that a doctor is under an obligation to describe in detail all the possible consequences of treatment. . . .” (p. 406)
“. . . Under the rule heretofore stated, where the patient fully appreciates the danger involved, the failure of a physician in his duty to make a reasonable disclosure to the patient would have no causal relation to the injury. In such event the consent of the patient to the proposed treatment is an informed consent. The burden of proof rests throughout the trial of the case upon the patient who seeks to recover in a malpractice action for her injury.”' (p. 410)
In the opinion denying a rehearing in Natanson v. Kline, supra,, reported at 187 Kan. 186, 354 P. 2d 670, it is pointed out that what is a reasonable disclosure upon which an informed consent may rest must depend upon the facts and circumstances of each case.
See also Williams v. Menehan, 191 Kan. 6, 379 P. 2d 292, where it was held the physician made a reasonable disclosure as to a cardiac catheterization procedure which resulted in the death of the patient.
In Yeates v. Harms, 193 Kan. 320, 393 P. 2d 982, which involved the loss of an eye after a cataract operation, this court said:
“A careful examination of plaintiff’s requested instructions reveals that in his concept of the case he goes too far and would have this court extend the duty of a physician or surgeon to the extreme where he would have to apprise his patient not only of the known risks but also of each infinitesimal, imaginative, or speculative element that would go into making up such risks. This is another hurdle we simply cannot make. . . .” (p. 333)
In the present case we are confronted with an additional question of whether a seventeen year old girl can give her consent to a minor surgical procedure without the knowledge or consent of her parents. We find no Kansas cases on the subject.
In Lacey v. Laird, 166 Ohio St. 12, 139 N. E. 2d 25, where plastic surgery was performed on the nose of an eighteen year old girl without her parents’ consent, it was pointed out:
“The making of a contract obviously involves the consent of each of the contracting parties. Probably because of this and of the law with respect to the capacity of infants to contract, some authorities have indicated that the consent of a minor to performance of a surgical operation will ordinarily not be sufficient in itself to require the conclusion that performance of such opei'ation cannot constitute an assault.
“It is apparent however that the consent, which prevents what would otherwise be an assault from being an assault, does not depend upon the capacity of the consenting party to contract. It has nothing to do with contractual capacity.” (pp. 22, 23)
It is stated in the concurring opinion in Lacey v. Laird, supra, that although an infant may avoid liability on contracts solely because of his age, the general rule as to torts does not allow an infant to escape the consequences of his informed consent if he has the degree of maturity of mind which permits him to understand the intricacies of the matter.
A majority of the cases collected in 76 A. L. R. 562 and 139 A. L. R. 1370 recognizes that the consent of a parent may not be necessary or required under circumstances where the child has knowingly consented. In such cases the sufficiency of a minor’s consent depends upon his ability to understand and comprehend the nature of the surgical procedure, the risks involved and the probability of attaining the desired results in the light of the ■circumstances which attend.
In Bonner v. Moran, 126 F. 2d 121, 139 A. L. R. 1366, a fifteen year old boy consented and became the donor in an extensive skin graft procedure for the benefit of another person who was seriously burned. The procedure required the boy to remain in the hospital for two months. The case holds generally the consent of a parent to a surgical operation on a child is necessary. Certain exceptions are recognized in the opinion and those exceptions generally recognized by the courts are, (l) when an emergency exists, (2) when the child has been emancipated, (3) when the parents are so remote as to make it impracticable to obtain consent in time to accomplish proper results and (4) when the child is close to maturity and knowingly gives an informed consent. The opinion stresses that one of the basic considerations to be taken into account is whether the proposed operation is for the benefit of the child and performed with a purpose of saving his life or limb.
In our opinion the proper rules of law were set forth and applied in Bonner.
Applying those rules of law to the facts and circumstances of the present case it appears that the father’s consent was not available or necessary. The mother’s consent was not obtained but her physical condition at the time would have necessitated delaying necessary treatment of a painful injury. The mother’s testimony at the trial indicates that if she had been asked for her consent she would have relied largely upon the judgment of her family doctor. This doctor was consulted by the treating physician in advance and he approved the surgical procedure adopted, including the “pinch graft” taken from the girl’s forearm. The plaintiff was conscious throughout the treatment and indicated her consent both verbally and by submitting herself to the treatment. She was of sufficient age and maturity to know and understand the nature and consequences of the “pinch graft” utilized in the repair of her finger. It is uncontradicted that the method of repair utilized was the approved surgical treatment and in the best interests of the patient. The desired results were accomplished and permanent damage resulting from the injury after the treatment was minimal from both a functional and a cosmetic standpoint.
We hold that the facts and circumstances attending the injury and rep ah of the plaintiff’s finger bring this case within an exception to the general rule requiring the consent of the parent to a surgical operation on a child. The exception applicable is that under the circumstances the daughter was mature enough to understand the nature and consequences and to knowingly consent to the beneficial surgical procedure made necessary by the accident.
The findings of the trial court in this regard are supported by substantial competent evidence and include a finding that the plaintiff suffers no disability or damage to her finger as a result of the treatment.
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 an action for injuries resulting from a defect in a highway.
The facts must be stated at some length. For the purpose of some brevity F. Dean Kelley, the plaintiff and appellee, will be referred to as Kelley; the State Highway Commission of the State of Kansas, defendant and appellant, will be referred to as Highway Commission, and the Broce Construction Company, Inc., defendant and appellant, will be referred to as Broce.
The allegedly defective highway located in Stevens County Kansas was designated U. S. 56 and was undergoing realignment construction at the time of the accident.
During the summer of 1965, Broce began work under its contract with the Highway Commission to surface the new realigned segment of U. S. 56. This contract contemplated a partial acceptance of the segment located between Moscow, Kansas and the Cimarron River Bridge prior to the completion of the road. This segment was to be opened at the request of the contractor so that shoulder material from the old road could be used to complete the new road. On October 1, 1965, a segment of the new road was opened by the resident engineer of the Highway Commission in response to a request made by the contractor two or three days prior thereto.
On the morning of October 1, 1965, the resident engineer and the maintenance department district foreman, who was in charge of placing signs on the segment of newly opened highway, met on the job and discovered that traffic could not be channeled as contemplated in the plans. It was decided that traffic could be routed onto the new highway at Moscow, Kansas and then carried on the realignment or new highway in a northeasterly direction until it reached the point where the two roadways intersected. At that point traffic would be diverted back onto existing, or old, U. S. 56. During the daylight hours of October 1, 1965, the maintenance crew completed the signing of this route. At a point 600 feet to the southwest of the intersection of the two roadways a State Highway Commission employee placed a right reverse curve sign with a 50 MPH speed plate attached to it. The same crew added a 10 foot barricade to an existing 10 foot barricade of the contractor across the surfaced portion of the new road 50 feet north of the intersection of the two roads. They attached to this 20 foot barricade a “Road Closed” sign, a red arrow pointing to the right, and three delineators or hazard markers. This work was completed shortly before 5 P. M. on October 1, 1965.
Without pride in our artistry or a claim of accuracy we present above a drawing which tends to depict the situation at the scene of the accident.
In the afternoon of October 1, 1965, Kelley left his home in rural Guymon, Oklahoma on his way to Satanta, Kansas to attend a football game. Kelley drove to Moscow, Kansas in his pick-up truck where he came upon a clearly marked detour which put him on what he recognized as a new blacktop highway. He followed this new road until he hit the barricade constructed across the new highway just north of the intersection with the old highway. Kelley testified he did not see the curve sign which was located 600 feet southwest of the intersection of the two roadways.
Kelley estimated his speed immediately prior to the accident at 45 to 50 MPH. When he saw the barricade, he applied the brakes and swerved to the right. The left side of his truck hit the barricade and the truck continued on into the ditch on the right side of the new roadway.
There was a difference in the elevation of the two roadways at this intersection of one foot or more. A ramp was built sloping from the elevation of the new road down to the old road. The ramp was 50 to 100 feet long. Prior to October 1, 1965, traffic had been carried exclusively along old U. S. 56. Where the old highway was intersected by the newly constructed roadway traffic crossed over the new road and continued on old U. S. 56 until it crossed the Cimarron River.
Jess Parum testified he was a passenger in a car proceeding east on the new highway and came upon the accident scene after it had happened but before the investigating officers arrived. He was going to the same football game that plaintiff was attending. He further testified:
“Q. Just tell us, tell the jury in your own words what happened as you approached.
“A. Well, we didn’t see anything until we come around the curve and our lights, when the lights come around, why, there was evidence of a barricade there and Bob, the other driver, I said, ‘I think that was a barricade. I think we better stop.’ So he stopped. That was what was left of the barricade, what we saw.
“Q. Did you come back to the accident scene then?
“A. Yes.
“Q. Now, you say that you started to go around the curve. What direction was this curve?
“A. Well, we were going, I think we was going east and turned a little left turn.
“Q. It was a left curve?
“A. Yes, sir.
“Q. And could you tell this jury where your vehicle was when you first noticed what was left of this barricade?
“A. Well, it just seemed to me we were right in it when we saw it.
“Q. Were you far enough away that you would have been able to stop your vehicle?
"A. No. We agreed that if somebody else had not hit it we probably would have.
“Q. And as you were out there that night, Mr. Parum, did you see any lights in the area where this barricade was?
“A. No, I didn’t.
“Q. And as you approached where this barricade was did you see a highway marker sign indicating a curve or jog to the right at fifty miles per hour?
“A. No.”
There were no lights on the barricades.
The jury returned a verdict in favor of Kelley in the amount of $10,000 against the Highway Commission and Broce. They have appealed.
As the liability of the Highway Commission and Broce is based on different legal grounds, the appeals will be considered separately. We will first consider the appeal of the Highway Commission.
The Highway Commission presents several grounds as to why judgment should not have been rendered against it. Among them is the contention that there was no notice of the defect five days before the accident. Our attention is called to K. S. A. 68-419 which provides insofar as material here:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state; that is to say, such recovery may be from the state when the director of highways, or state highway engineer, or any member of such state highway commission, or any foreman, patrolman, or other employee in charge of the construction, maintenance or upkeep of such highway, shall have had notice of such defects five (5) days prior to the time when such damage was sustained, . . .”
The petition was in general form and left the specifics open. We look to the preliminaries of the trial for the specific defect claimed. In an answer to an interrogatory the appellee stated:
“The defect was the construction of the State Highway Commission and its contractor who created conditions where the road appeared to turn and didn’t, which made the highway unsafe for travel.”
At pretrial conference appellee described the defect as follows:
“It is our contention that to leave the highway in a condition which would lead a driver to turn off believing he was following it and not to mark it and guard it constitutes common law negligence and also constitutes a violation of 2102 . . .”
In its opening statement to the jury appellee again described the defect:
“Now, it is the contention of the plaintiff that the only way that the highway commission is liable in Kansas for a defect in the highway and we contend when you build a road so that it appears you are going to turn to the left but when in fact you turn to the right that you have built in a defect to the traveling public. You have made it so that it is not safe for the ordinary motorist driving along at nighttime such as Mr. Kelley was and the evidence will show in this case. . . .”
The jury answered special questions involving the Highway Commission as follows:
‘Tf you find for the Plaintiff against the State Highway Commission state:
“a) The defects existing in the highway five days before October 1, 1965, that were a proximate cause of Plaintiff’s injury.
“Answer: The new hiway crossing over old hiway at curve with resulting difference in height created the defect.
“(h) What agent, employees, officials or highway patrolmen of the defendant Highway Commission had five days notice of such defects?
“Answer: Resident Engineer, Mr. Winters.”
The Highway Commission contends that there could not have been five days notice of the defect in the highway because the condition had only been created in the late afternoon and the accident occurred in the early evening.
Kelley contends the Highway Commission, through its agents, knew of the conditions which created the defect for more than five days and this was sufficient even though the highway had been open for but only a few hours.
The right of the action against the Highway Commission is not based on negligence. The liability is purely statutory. There can be no liability except as expressly provided by the legislature although the results may sometimes appear harsh and unjust.
In Rosehaugh v. Allen County Comm’rs., 120 Kan. 266, 243 Pac. 277, in considering a similar statute, we stated:
“. . . If the county were suable to the same extent as a city, neglect to comply with a statutory regulation designed to make travel on a highway safer would entail liability to a person injured on account of the negligence. The county, however, as an agent of sovereignty, rests under no common liability for negligence of its officers. It is not subject to actions for damages except so far as the legislature has expressly provided. The result is, failure to discharge the duty imposed by the statute of 1917 merely renders the highway defective, and liability for the defect must be enforced under the statute of 1887. (Story v. Brown County, 116 Kan. 300, 226 Pac. 772.)” (p. 267.)
Again in Payne v. State Highway Comm., 136 Kan. 561, 16 P. 2d 509, we said:
“The right of action under this statute is not founded on the law of negligence. Diligence on the part of officials is no defense if the highway is defective within the terms of the statute, and conversely the lack of due care on the part of the officials does not of itself create liability. Negligence enters into the case only on the part of the party sustaining the injury, and may defeat recovery. The liability is statutory. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762, and cases there cited. See, also, Hollinger v. Dickinson County, 115 Kan. 92, 222 Pac. 136; Gorges v. State Highway Comm., 135 Kan. 371, 10 P. 2d 834.)” (p. 563.)
In order to create liability under the statute the defective condition must have existed for as much as five days. In Arnold v. Coffey County Comm’rs., 131 Kan. 343, 291 Pac. 762, we said:
“. . . This showing may be made by any competent evidence, direct or circumstantial . . . but the showing of the chairman’s actual knowledge of the specific defect in the bridge, culvert or highway which caused the injury for which damages are sought as much as five days before the injury is essential to liability. . . .” (p.347. Citations omitted.)
Again in Rockhold v. Board of County Commissioners, 181 Kan. 1019, 317 P. 2d 490, we stated:
“It must be recognized that less than five days elapsed between the creation of the defect in the highway and the accident which caused the death of plaintiff’s son in the instant case. Therefore, it is impossible to meet the five-day requirement of notice in the statute.
“Subsequent development of the Kansas law on the precise point presented in this case, however, is contrary to the construction propounded by appellant. A case impossible to distinguish on the facts before this court is Rosebaugh v. Allen County Comm’rs, supra [120 Kan. 266, 243 Pac. 277]. While there the injuries were sustained at 9:30 p. m., the last three loads of gravel dumped on the county highway at 5:00 p. m. of the same day were not spread and thus caused a defect in the highway. The petition alleged the obstruction created by those three loads of gravel was left without warnings, guards, barricades or red lights from 5:00 p. m., to 9:30 p. m., on the day of the accident. The court there affirmed the judgment of the trial court which sustained a demurrer to the petition, saying:
“ *. . . Conceding that the chairman had actual notice of the defect because the board was doing the work, an indispensable condition of liability— notice for at least five days — did not exist.’ (p. 268.)
“This court has steadfastly adhered to the foregoing construction of the statute. . . .” (p. 1022.)
The five days notice should be of the particular defect which caused the accident, and not merely of conditions naturally productive of such defect and subsequently in fact producing it. (40 C. J. S., Highways, § 263, p. 312.)
In considering a similar statute, in Backstrom v. Ogallah Township, 149 Kan. 553, 88 P. 2d 1026, we said:
“. . . That requirement is that to fasten liability on a township for injury sustained by a defective bridge, culvert or highway on a township road, it must appear that the township trustee had notice of the specific defect for at least five days prior to the time when such damage was sustained. (G. S. 1935,68-301.)” (p. 558.)
Applying the facts in this case to the law as stated, we do not believe the notice was sufficient to fall within the five day requirement of the statute.
All of the conditions pleaded and relied on by the plaintiff to constitute a defect were created and established on October 1, 1965, the same day as the accident. The signs were erected on October 1, 1965; the barricade to the northeast of the intersection which had been maintained by Broce Construction Company was enlarged by the addition of signs, markers and a second barricade of equal size on October 1, 1965; the failure to establish warning lights was an act of omission occurring on October 1, 1965, and the condition where the road appeared to turn left when in fact it turned right was established October 1, 1965. Not even the plan to do these things had been in existence the requisite five days. The request to open the construction project to traffic was made to the resident engineer only two or three days prior to October 1, 1965, and at that time the request was to open the entire route of the construction project. The condition found by the jury to be a defect was not in existence to affect the road as a means of transit for five days. Prior to October 1, 1965, traffic was carried on existing U. S. 56 straight across the ramp on both sides of the construction project. It was not until October 1, 1965, that traffic was routed so that it was placed on the new highway from Moscow to the intersection and thence diverted off the new highway back to the old road and thence eastward along the old road as before.
The judgment against the State Highway Commission must be reversed for lack of five days notice of the specific defect.
We now approach the appeal of the Broce Construction Company, Inc., referred to as Broce.
Kelley contends that Broce was in negligent violation of K. S. A. 68-2102 which provides:
“Every person who shall have entered into a contract to make any improvement, or any municipality which has undertaken for itself the making of any improvement, shall, where the work so undertaken requires the closing of any highway or the rendering of the same impassable or dangerous to travel while said improvement is being made, place at the intersection of all highways leading thereto, barricades and warning signs, advising the public that said highway is closed or is impassable or dangerous to travel. Such warning signs shall be illuminated in the nighttime by warning lights.” (Emphasis supplied.)
The jury’s answer to a special question also fixed liability of Broce as insufficient lighting at the barricade—
“If you find for the Plaintiff against Defendant Broce Construction Company, state the acts of negligence which were the proximate cause of Plaintiff’s injury.
“Answer: Insufficient lighting at station 509 + 70.”
Broce attempts to refute liability on several grounds.
It is first contended that the action of the Highway Commission relieved Broce of any statutory liability.
We cannot agree with this contention. The statute places the responsibility on the contractor making improvements to place barricades and warning lights advising the public that the highway is closed or impassable or dangerous to travel.
The word “improvement” as used in K. S. A. 68-2102 is defined in K. S. A. 68-2101 (c) as follows:
“The word ‘improvement’ shall mean the repair, building, rebuilding, alteration, construction, or reconstruction of any highway or part thereof, or the grading or regrading of the same, or the erection, construction, building, rebuilding, or repair of any bridge or culvert on any highway.”
The undisputed facts are that Broce had not completed the work east or beyond the barricade. Broce had had a barricade at the point where the accident occurred for some time before the accident to keep traffic from going east on the new road. All the Highway Commission did to the barricade was place another section beside it so that the whole road was blocked instead of just one lane. The barricade that Broce had up and knew about was to keep traffic from going east on the new highway. Broce’s engineer and general superintendent testified he was supervising the job in question and that his company, in the past, had taken the responsibility for this barricade and he did not send anyone to the crossover to check on their barricade on the day of the accident.
The Highway Commission had not established a detour as provided by K. S. A. 68-2103 but permitted use of the new road for the accommodation of the contractor.
We have no precedents to guide us in the interpretation of the statute but we are forced to conclude that under the facts and circumstances Broce was a contractor engaged in the improvement— building — of a highway and obligated to provide a barricade and warning lights at the place of the accident.
Broce contends that the evidence proves Kelley guilty of contributory negligence as a matter of law. The facts heretofore presented refute this contention.
Broce stresses the rule that the operator of a motor vehicle is required to so articulate his speed that he can stop or turn aside within the range of the vision of the headlights.
This rule has many exceptions. Under modern traveling conditions it would appear that the exceptions have become the rule. In Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976, we held:
“The rule announced by this court, that where a person drives an automobile along a highway on a dark night at such speed that the car cannot be stopped or turned aside within the range of vision of the lights on his car, such person is guilty of negligence as a matter of law, has many exceptions involving questions of fact.” (Syl. f 2.)
In the opinion we stated:
“. . . A traveler on the highway at night cannot lay a trap for a fellow traveler and escape liability. . . .” (p. 577. See, also, Newman v. Case, 196 Kan. 689, 413 P. 2d 1013.)
We believe the same rule should apply to a construction contractor working on a highway.
The Secrist case also lists the cases setting out the exception to the rule. They will not be repeated here.
Under modern traveling conditions we do not believe the rule should be applied where there is an unlighted obstruction left on the highway after it has turned dark.
Other alleged errors, most of which appear to be duplicates of the first contention, have been examined and found to be without merit.
The judgment is affirmed as to the Broce Construction Company,' Inc., and reversed as to the State Highway Commission of the State of Kansas.
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 in a quiet title action. The only question raised is the sufficiency of the evidence to support the judgment.
The plaintiff, Eva Hutton White, brought an action against Scott Hutton and others to quiet title to a house and lots in Bucldin, Kansas. It is not disputed that the property was conveyed to her by her father and mother in 1950. (See Hutton v. Hutton, 184 Kan. 560, 337 P. 2d 635.)
The defendant, Scott Hutton, answered alleging in part:
“That on or about August 14, 1961, plaintiff and her husband, T. D. White, were indebted to this defendant; that plaintiff and her said husband could not pay said debts; that in consideration of the cancellation of such indebtedness plaintiff and her said husband and this defendant orally agreed that plaintiff and this defendant owned said real property in equal shares; . . .”
The plaintiff replied stating:
“Plaintiff specifically denies any indebtedness of herself or of T. D. White to Scott Hutton and further specifically denies that she orally agreed at any time that Scott Hutton owned or had any interest in the real property which is the subject of this action . . .”
The case was tried to the court. The trial court found that—
“The Court further finds that the loan made by Scott Hutton to Eva White and T. D. White has all been repaid and cannot be considered as consideration for any implied agreement.”
and coneluded:
“1. That Plaintiff, Eva Hutton White, acquired title to Lots 13, 14 and 15, Block 35, Bucldin, Kansas, by virtue of a deed made, executed and delivered to her on August 25, 1950, from W. A. Hutton and Viola Hutton.
“2. That Defendants’ evidence is not sufficient to establish an express contract or implied contract to convey an undivided one-half interest in said real estate to defendant, Scott Hutton.
“3. Title to said real estate should be quieted as to all defendants, including Scott Hutton, in favor of Eva Hutton White.”
The defendant, Scott Hutton, has appealed. His chief contention is that there was no substantial competent evidence to support the trial court’s finding that Eva Hutton White was the sole owner of the real property in question.
It may be stated that there was substantial competent evidence, both documentary and circumstantial, from which inferences could be drawn in favor of or against either party. However, both parties testified as to the disputed issue. Scott Hutton testified:
“Q. Just tell the Court as near as you can recall what was said by anyone present at that meeting concerning this house.
“A. I can’t recall that there was very much said.
“Q. Well, whatever you can recall.
“A. We agreed that the property belonged to both of us and I was to pay half of the tax and that was about all.
“Q. That was in August of 1961 as near as you can recall.
“A. Yes.”
Eva Hutton White, testified on her own behalf as follows:
“Q. Did you at any time tell your brother that you would give him half of this house?
“A. No.
“Q. Did he ever ask you for half of it?
“A. Yes.
“Q. When was that, Mrs. White?
“A. I suppose that was about ’64 or ’65.
“Q. Do you remember where this took place?
“A. In my house.
“Q. Was anyone present other than you and Scott?
“A. No.
“Q. Tell the Court what was said by each of you.
“A. Well, I told him that it wasn’t settled up yet, and according to what I know about law the Supreme Court gave it to me. But he said he was going to have half of it.
“Q. Did you offer to give him half of it?
“A. I didn’t offer to give him half of the house.
“Q. Was there any other conversation between the two of you at that time?
“A. Just over the house.
“Q. Did he leave or did you leave or what?
“A. He left.”
Although the evidence was conflicting, there was substantial competent evidence to support the findings of the trial court.
It is not the function of this court to weigh conflicting evidence or to substitute our judgment for that of the court which heard the case. (Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Saint v. Saint, 196 Kan. 330, 411 P. 2d 683.) The appellate court will review the evidence only for the purpose of determining its sufficiency to support the findings [Smith v. Mr. D’s, Inc., 197 Kan. 83, 415 P. 2d 251; First National Bank of Topeka v. Hiatt, 201 Kan. 50, 439 P. 2d 373) and the evidence is to be viewed in a light most favorable to sustaining the verdict. (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670.) Neither do we pass on the credibility of the witnesses. (Finnell v. Patrons Co-operative Bank, 193 Kan. 354, 394 P. 2d 116; Schroeder v. Richardson, supra.)
An examination of the record discloses substantial competent evidence to support the findings upon which the judgment is based.
The judgment is affrmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal on a question reserved by the state in a prosecution for arson.
The defendant was charged in an information with three counts:
(1) First degree arson as defined by K. S. A. 21-581;
(2) Burning of insured property as defined by K. S. A. 21-584, and
(3) Accessory after the fact, as defined by K. S. A. 21-106.
On the question reserved by the state we are only interested in Count 1 of the information which charged:
“on or about the 8th day of October, 1967, in said County of Barton and State of Kansas, one C. C. (Monte) Parrish, then and there being, did then and there unlawfully, feloniously, and willfully, set fire to, or caused to be burned, or aid, counsel, or procure the burning of a dwelling house, The Parrish Hotel, 12th & Main Streets, Great Bend, Kansas, such property being the property of another, to-wit: Bonnie Evitt and other persons, said property being occupied at the time by said Bonnie Evitt and other persons, all in violation of KSA 21-581.”
The statute covering arson in the first degree (K. S. A. 21-581) reads:
“That any person who willfully sets fire to or bums or causes to be burned, or who'aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, bam, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, such property being the property of another person, shall be guilty of arson in the first degree, and upon conviction shall be punished by confinement and hard labor for not less than two nor more than twenty years.”
At the pretrial hearing the defendant moved the trial court for an order dismissing Count 1 of the information for the reason that the hotel was the property of the defendant. The state admitted that the defendant owned the hotel. On such admission the trial court sustained the motion to dismiss.
The defendant was brought to trial on an amended information and convicted of burning insured property and burning the personal property of another. (State v. Parrish, 204 Kan. 178, 468 P. 2d 143.)
The evidence presented at the trial on an amended information disclosed that there were sixteen to eighteen persons registered at the hotel on the date of the fire. Several of the guests made the hotel their permanent residence, paying for their room by the week. The others were day guests. The appellant assumes we have the right to consider such evidence. The appellee does not challenge the assumption. We, therefore, accept the facts without determining the propriety of their origin.
The appellant, the state, contends that the guests in the hotel had a right of occupancy to their rooms and such right constituted “property of another” as that term is used in K. S. A. 21-581 defining first degree arson.
Simply stated, is the right to occupy a room in which one is a guest at a hotel a “property right” so as to be covered by the term “property of another” should the hotel be intentionally burned by the owner?
The appellant states its contention as follows:
“Plaintiff’s contention was, and is, that the crime of first degree arson, with particular reference to the words ‘property of another’, is not only a crime against ownership but also a crime against possession, occupancy, or habitation. . . .”
The appellant suggests that to determine the proper construction to be given the phrase “property of another” as used in the statute we need to look to the common law antecedents and our attention is called to 5 Am. Jur. 2d, Arson, § 6, p. 805, where it is said:
“A necessary element of the crime of arson at common law was that the house burned be that ‘of another.’ Since common-law arson was an offense against possession rather than property, the phrase ‘of another’ meant in the possession of another. Thus, an owner in possession and a person in sole lawful occupancy could not be guilty of arson, although an owner out of possession could.”
This court renounced appellant’s theory in State v. Shaw, 79 Kan. 396, 100 Pac. 78. In dealing with an arson case in which a husband had burned his wife’s house, we stated:
“. . . In the first place there are no common-law offenses in this state; they are all statutory. (The State v. Young, 55 Kan. 349, 40 Pac. 659.) The crime of arson is fully defined by statute, and the language used indicates quite clearly that it was not intended by the enactment of this statute merely to adopt the common-law definition of that offense. The two differ materially. . . .” (p. 397.)
Again in State v. Craig, 124 Kan. 340, 259 Pac. 802, in considering an arson case where the defendant owned a one-sixth interest in the fee and occupied the farm as a tenant burned the bam, we stated:
“Touching the point that defendant was in possession of the barn as lessee of the farm at the time of the burning, we do not see what that fact had to do with its criminal character. Arson in the third degree is a statutory offense; defendant’s act was an offense against property, not mainly or particularly one against another’s possession or occupancy of the property; and his criminal responsibility for his act was not diminished by any rights attaching to his leasehold.” (p. 344.)
The last time this court had occasion to consider a prosecution for burning the property of another under the provisions of K. S. A. 21-581 was in State v. Crosby, 182 Kan. 677, 324 P. 2d 197, 76 A. L. R. 2d 514. In that case Crosby was charged with the burning of a mortgaged house which he owned and in which he, his wife and daughter lived. He was convicted and appealed to this court. The prosecution contended that the mortgagee possessed an “estate” or “interest” in the mortgaged property which was embraced in the phrase “property of another” as used in the arson statute. This court reversed the conviction as to this count holding:
“Real property upon which there is a mortgage is not the ‘property’ of the mortgagee within the meaning of our arson statute (G. S. 1949, 21-581) which makes it a criminal offense to willfully set fire to or burn ‘the property of another person.’
“A mortgagor of real property who willfully sets fire to or burns the mortgaged property is not guilty of the offense of arson as defined by G. S. 1949, 21-581 — that is to say, he is not guilty of setting fire to or burning ‘the property of another person.’” (Syl. 2 and 3.)
In the opinion the court stated:
“Conceding, for the sake of argument, that in one sense of the word a mortgagee has an ‘interest’ in the mortgaged property (the Bodwell case, supra [Bodwell v. Heaton, 40 Kan. 36, 38, 39, 18 Pac. 901]), we are not here concerned with civil rights and liabilities growing out of the relationship, such as for acts of waste committed by the mortgagor, and the like. Our question is whether mortgaged real property is ‘the property of another person’ (the mortgagee) within the meaning of the statute, 21-581.
“We think the answer is to be found in the principles and rules applicable to criminal prosecutions generally, a primary one being that criminal statutes are to be given a strict construction. . . .” (p. 683.)
It would appear that this court has considered the phrase “property of another” to mean a fee estate. The fact that other parties may have some “interest” in the property is not controlling.
It might be noted that when the new Kansas Criminal Code takes effect July 1, 1970, an entire new and different definition of the crimes of arson will be in force. This decision will not, therefore, be a lasting precedent and an extended opinion is not justified.
We are forced to conclude that an ordinary hotel is not the property of the guests within the meaning of our arson statute (K. S. A. 21-581) and the owner of the hotel, by burning it, cannot be guilty of burning the property of another.
The judgment of the trial court dismissing Count 1 of the original information charging arson under K. S. A. 21-581 is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
O’Connor, J.:
The defendant has appealed from his conviction by a jury on one count of making false entries in a book of accounts of a moneyed corporation. (K. S. A. 21-618.) The jury was unable to agree on ten other counts with which defendant was charged— five counts of issuing warehouse receipts for grain not received (K. S. A. 34-290) and five counts of issuing warehouse receipts containing false statements (K. S. A. 34-291) — and a mistrial was declared. Hence, we confine our attention to questions relating to only the one count upon which conviction was had.
The factual background of the case will be developed as defendant’s numerous contentions on appeal are considered. We turn first to ilie proceedings prior to trial in district court.
Defendant was originally charged in Reno county, but in Addington v. State, 199 Kan. 544, 431 P. 2d 532, we ordered him discharged because venue for the prosecution of the offenses did not lie in that county. Thereupon, prosecution was begun in Sedgwick county on September 12, 1967, with the filing of a complaint duly subscribed and sworn to under oath by S. J. Reda, a warehouse examiner, before a deputy clerk of the court of common pleas, charging defendant with the ten counts upon which the jury subsequently reached an impasse. A warrant was issued, signed by the deputy clerk. The return shows defendant was arrested September 14, at which time he appeared before the court and waived the reading of the complaint and warrant. Defendant’s counsel moved to quash the warrant and dismiss the complaint for the reason the matter was still pending in Reno county. The court took no action on the motion but set a date for preliminary hearing and fixed bond at $1,000. Defendant was released upon making bond.
On September 28, defendant filed a motion to dismiss and quash the warrant for the reason the complaint was not made to a magistrate, no witnesses were examined on oath, and probable cause was not found to exist by a court or magistrate, contrary to K. S. A. 62-602 and the federal and state constitutions. The following day the case came on for preliminary hearing. Prior to the argument of defendant’s motion the county attorney presented the magistrate with an amended complaint and requested that Mr. Reda be sworn to sign it. After swearing the allegations of the complaint were true, Reda signed it before the magistrate, who issued an amended warrant upon which the defendant was immediately arrested in open court.
The amended complaint and warrant were identical to the original, except there was added Count 11, charging defendant with the offense of which he was convicted.
The court announced defendant’s motion to quash and dismiss would be considered as having been lodged against the amended complaint and warrant, since the matter was now moot as to the original complaint and warrant. Further ruling on the motion was reserved until after both parties presented their evidence at the preliminary hearing, at which time the motion was overruled. Defendant was bound over for trial on all eleven counts and made bond for appearance in the district court.
After an information was filed, defendant, by way of habeas corpus, attacked the proceedings in the court of common pleas on the basis the original complaint and warrant were void and there was no evidence to support a finding of probable cause. The writ was denied.
At arraignment on the information defendant stood mute, and pleas of not guilty were entered in his behalf. Thereafter he filed a plea in abatement on the grounds the warrant and amended warrant were not issued by a magistrate upon a finding of probable cause; that as to Count 11, the evidence before the magistrate was insufficient to show a crime had been committed, or probable cause to believe defendant committed it; and further, the state failed to show venue of the offense in Sedgwick county. The plea was overruled and the case came on for trial March 25, 1968, in district court.
The first two specifications of error relate to the validity of the original warrant issued by the deputy clerk of the court of common pleas and the amended warrant issued by the examining magistrate. The argument is made that the deputy clerk was without power and authority to issue a warrant, and that the amended warrant issued by the magistrate on a complaint containing only the naked allegations of the elements of the offense in the words of the statute, without examination of the complainant, was void. Both contentions are without foundation and cannot, under the circumstances, be used as a basis for vitiating defendant’s conviction.
With respect to the issuance of the original warrant, that matter became moot when an amended complaint was filed and an amended warrant issued. Furthermore, under the prior decisions of this court, any objection defendant may have had to the power or authority of the deputy clerk to issue the warrant was effectively waived when defendant voluntarily gave bond for appearance at his preliminary hearing at a later date. (State v. Munson, 111 Kan. 318, 206 Pac. 749; State v. Miller, 87 Kan. 454, 124 Pac. 361; State v. Longton, 35 Kan. 375, 11 Pac. 163; 2 Hatcher’s Kansas Digest [Rev. Ed.], Criminal Law § 87.) The only objection defendant registered to issuance of the original warrant was that the Reno county prosecution was still pending. Before the court ruled on the motion to quash, defendant gave bond, and he was no longer held by virtue of the original warrant.
The amended complaint upon which the amended warrant was issued was sworn to positively, under oath, before the magistrate. In such case, and particularly when the crime was charged substantially in the language of the statute, the requirement of the Bill of Rights, that no warrant shall be issued but on probable cause supported by oath or affirmiation, is satisfied by the charge made and the positive form of the verification. (K. S. A. 62-602; see, Holton v. Bimrod, 61 Kan. 13, 58 Pac. 558.) The allegations of the complaint positively sworn to provided the magistrate sufficient basis for making the requisite finding of probable cause to issue the warrant. If there was any deficiency as to probable cause, that was cured by the fact the motion to quash was not acted on until after all the evidence was produced at the preliminary hearing and the court ruled that the crimes had been committed and there was probable cause to believe defendant committed them. (See, State v. Jones, 202 Kan. 31, 446 P. 2d 851.)
Despite what has been said, the state suggests, and we believe rightly so, that the short answer to defendant’s challenge to the legality of his arrest is that his arrest on the amended warrant, even if defective or irregular, did not void his subsequent conviction. In Kinnell v. State, 205 Kan. 445, 469 P. 2d 348, we held:
“An illegal arrest and detention do not, standing alone, invalidate a subsequent conviction (Baier v. State, 197 Kan. 602, 419 P. 2d 865; State v. Dobney, 199 Kan. 449, 429 P. 2d 928; Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; Moreland v. United States, 347 F. 2d 376 [10 CA, 1965]; Davis v. United States, 416 F. 2d 960 [10 CA, 1969]; United States ex rel. Ali v. Deegan, 298 F. Supp. 398 [SD, NY, 1969]).” (pp. 445-446.)
The law is well settled that jurisdiction of a court to try a person accused of a crime is not divested by the fact he may have been unlawfully arrested. (Williams v. State, 197 Kan. 708, 421 P. 2d 194; Hanes v. State, 196 Kan. 404, 411 P. 2d 643; State v. Cook, 194 Kan. 495, 399 P. 2d 835.)
In attacking the validity of the amended warrant on the ground there was no finding of probable cause, defendant relies heavily on Giordenello v. United States, 357 U. S. 480, 2 L. Ed. 2d 1503, 78 S. Ct. 1245. We think the case has no application to the facts here. The defendant in Giordenello attacked the legality of his arrest on a narcotics charge on the ground that the complaint did not provide sufficient basis on which the commissioner could make a finding of probable cause for issuance of the arrest warrant. The court held the arrest was unlawful because the warrant was issued on a defective complaint and, as a consequence, narcotics seized at the time of the arrest were the product of an illegal search and were inadmissible as evidence. The case is not authority, as defendant contends, for the proposition that an arrest made without probable cause deprives a court of jurisdiction of the person arrested. It relates fundamentally to the question surrounding the use of evidence obtained incident to an unlawful arrest. (See, Ewing v. United States, 404 F. 2d 625 [10 CA, 1969], cert. denied 396 U. S. 858, 24 L. Ed. 2d 109, 90 S. Ct. 125; United States ex rel. Orsini v. Reincke, 286 F. Supp. 974, 397 F. 2d 977, cert. denied, 393 U. S. 1050, 21 L. Ed. 2d 692, 89 S. Ct. 689 [1969].) Unless a defendant’s substantial rights are prejudiced as a direct result of an unlawful arrest, such as the use of evidence seized at the time, his arrest will not vitiate his subsequent conviction. The record here is barren of anything stemming from defendant’s arrest, even if illegal, that prejudicially affected his substantial rights at trial.
We need but pause briefly with regard to defendant’s assertion the district court erred in overruling his plea in abatement. Under the circumstances presented in the record, the right to plead in abatement was waived. On September 29, 1967, defendant was bound over to appear at the next term of the district court (January 1968). He filed a motion for continuance of the case over the term on February 6, which was denied February 9. On the latter date defendant was arraigned on the information. His plea in abatement was not filed until February 19, which, of course, was after he had sought a continuance and been arraigned. What was said in State v. Jones, supra, is controlling, and disposes of the point:
“. . . Pleas in abatement are dilatory pleas and are not favored by the courts. (Walker v. United States, 93 F. 2d 383, cert. den. 303 U. S. 644, 82 L. Ed. 1103, 58 S. Ct. 642, reh. den. 303 U. S. 668, 82 L. Ed. 1124, 58 S. Ct. 755.) Courts have been and are particular about the sufficiency and promptness of the filing of such pleas. The general rule is set forth in 22 C. J. S., Criminal Law, § 429, p. 1224, as follows:
“ ‘A plea in abatement must be presented with the greatest promptness, usually not later than the arraignment, and ordinarily must precede an application for a . . . continuance . . . and if not filed in proper time is regarded as waived.’
“The defendant was arraigned September 19, and a plea of not guilty was entered for him. Thereafter, and on October 17, he filed a motion for continuance and the facts presented in his plea in abatement filed November 17, were known to him at the time he sought the continuance. Under such circumstances the right to plead in abatement was waived. (State v. Tucker, 115 Kan. 203, 222 Pac. 96; State v. Bland, 120 Kan. 754, 755, 244 Pac. 860; State v. McCarther, 196 Kan. 665, 414 P. 2d 59.) See, also, State v. Pittman, 199 Kan. 591, 433 P. 2d 550, and Gray v. State, 194 Tenn. 234, 250 S. W. 2d 86. . . .” (p. 39.)
Before examining the remainder of defendant’s specifications, we shall review in some detail the evidence presented at trial.
The offense of which defendant was convicted was alleged in Count 11 of the information in substantially the following language: That on or about the 29th day of October 1965, in Sedgwiclc county, Kansas, William H. Addington did unlawfully, feloniously, wilfully, with intent to defraud, make false entries in a book of accounts kept by a moneyed corporation within this state, namely, Addington Grain Company, Inc., a Kansas corporation, delivered and intended to be delivered to persons dealing with such corporation by which pecuniary obligations, claims and credits did purport to be created, increased, diminished, discharged, and affected, and did submit a report to the registrar appointed by the chief grain inspector, to wit: A report showing that collateral receipts for 420,000 bushels of wheat had been canceled on October 29, 1965, knowing that such cancelation had not taken place.
The allegations of the information stated a public offense in violation of K. S. A. 21-618.
In the early part of May 1965, defendant paid off loans previously obtained by the Addington Grain Company, Inc. from the Denver United States National Bank by giving two checks, one in the sum of $266,409.82 and the other in the sum of $408,529.38, thereby redeeming warehouse receipts which had been pledged as collateral for the loans. The checks were not honored upon presentation. Thereafter defendant made good the $266,409.82 check with another check. He also negotiated a loan for $500,000 from the bank, pledging four warehouse receipts on Addington Grain Company, Inc., each for 105,000 bushels of wheat, to secure the loan. These official receipts (numbered 12873, 12874, 12875 and 12876) were issued May 17, 1965. $408,529.38 of the loan proceeds was used to pay off the second insufficient funds check.
The ledger books of the Addington Grain Company, Inc., which were kept at that time in Topeka, showed receipt by the company of 300,000 bushels of company-owned wheat on May 17, 1965. Source records later disclosed this to be false. The regular report to the registrar of the company showed an addition to company-owned wheat of 300,000 bushels on that date, as well as the issuance of the four warehouse receipts.
The company’s office in Topeka was closed in the first part of October 1965, and the books were moved to Wichita. According to Monty Frazier, defendant’s office manager, these books were not kept up after that time, and the company ceased to maintain a daily position record. In October, the Wichita office took over the task of preparing and filing regular reports to the registrar. Copies of these reports were retained in the Wichita office and used by the company to determine its daily grain position.
On October 29, 1965, Frazier, knowing of the four warehouse receipts pledged to the Denver bank, called defendant in Nevada and advised him that the company’s warehouse at Hutchinson was about to be examined. On November 8, S. J. Reda, in company with two other state examiners, began measuring wheat in the Hutchinson facility. They went to defendant’s office in Wichita on November 9 to complete their computations and check the office records. The examiners were furnished copies of the company’s regular reports to the registrar. These reports were required to be made up each time warehouse receipts were issued or canceled, and not less than once a week. The report form carries a certification that warehouse receipts outstanding and uncanceled do not exceed the amount of grain in the warehouse, and that the report covers all warehouse transactions in regard to grain received or loaded out since the last report. After comparing the “measured” bushels with the book figures shown on the registrar reports, Reda found a shortage of approximately 419,000 bushels and advised defendant of the discrepancy.
The records of the Kansas grain inspection department contained two partially overlapping sets of regular reports to the registrar for the Hutchinson warehouse covering the period October 29 through November 9 — one set signed by Frazier and the other signed by defendant. A report dated October 29, and signed by Frazier, showed as outstanding the four collateral warehouse receipts for 420,000 bushels. Another report for the same day, and signed by defendant, showed the four receipts canceled. Although no receipts were shown as issued or canceled, and a report was not required, nevertheless reports signed by defendant were filed for October 30, November 1, November 2, and Novembér 3— each time decreasing the amount of company-owned wheat. No reports for those dates were filed or signed by Frazier. Separate reports were again filed for November 4 — the one signed by Frazier showing the four collateral receipts outstanding, the one signed by defendant did not mention the receipts. The other reports made by defendant and/or Frazier during the period are immaterial.
On November 8, 1965, defendant went to the Denver bank and personally obtained the four warehouse receipts he had previously pledged. According to the records of the registrar, the Merchants National Bank in Topeka, these receipts were canceled the next day. (The record is not clear, but presumably the receipts would have been accompanied by a regular report to the registrar.) That same date (November 9) defendant was in his Wichita office while the warehouse examiners were going through the company’s records, including the canceled warehouse receipts. During the course of the examination Frazier brought them the four canceled receipts and said, “[T]hese should go into the cancelled box of receipts.”
John Krumme, an employee of the warehouse service branch of the United States Department of Agriculture, appeared at defendant’s office November 30. He found the Kansas examiners working with copies of registrar reports, which was unusual. Upon asking for the daily position reports, he was told defendant was using copies of the registrar reports to determine the company’s daily grain position. Eventually he was furnished the ledger book kept in the Topeka office until October 1965, but abandoned it when he found the entries were confusing, and particularly when he found it contained an entry for 300,000 bushels of wheat on May 17 when the source documents did not confirm receipt of that much wheat by the company. Krumme then obtained the warehouse superintendent’s book at Hutchinson showing the daily “load and unloads” of grain, and with that record and office copies of the registrar reports, reconstructed a daily grain position beginning May 13. The reconstructed figures disclosed that on May 17, with the issuance of the four warehouse receipts for 420,000 bushels of wheat, defendant’s company had a shortage until these receipts were shown as canceled on defendant’s report to the registrar on October 29, 1965. When Krumme confronted defendant on December 3 with the fact the warehouse was short during the summer and fall months of 1965, defendant removed the four receipts from his desk drawer and explained the receipts had been registered in advance so that if defendant were out of town, the company could raise money if necessary.
With this evidence in mind, we will examine defendant’s contention there was a fatal variance between proof of the offense and the charge contained in Count 11 of the information.
He first complains there was a variation in the date of the offense as charged in the information, October 29, 1965, and proof of its commission, November 9, 1965. We do not agree.
The copy of the regular report to the registrar dated October 29, 1965, and signed by the defendant, showed cancelation of the four warehouse receipts in question, when in fact they were not picked up by defendant until November 8, and shown as canceled on November 9 on the records of the registrar. In other words, the October 29 report with respect to cancelation of warehouse receipts was false and was for the ostensible purpose of misleading the examiners, or any other person dealing with the corporation, about the company’s true grain position on and after that date. There was ample evidence from which the jury could infer the report was designed to hide the shortage of wheat in defendant’s warehouse. This was accomplished, as shown by the evidence, just as alleged in the information — by defendant submitting a false report to the registrar showing the receipts canceled on October 29. Copies of the registrar report were kept and used by defendant in the regular course of business to determine the company’s daily grain position. The offense was committed when a copy of the false report was placed in and became a part of the corporation’s records at Wichita, and this could have been done on October 29, or on any day prior to the time it was given to the warehouse examiners.
Contrary to defendant’s argument, time is not an indispensable ingredient of the offense defined by K. S. A. 21-618. This being the case, the precise time at which the offense is alleged to have been committed is not material. The general rule is that it is not necessary to prove the offense was committed at the time alleged, but it may be proved to have been committed at any time within the period prescribed by the statute of limitations. Exceptions to this rule are where offenses cannot be committed except on certain days or within certain periods of time, as on Sunday or in the nighttime. (State v. Reno, 41 Kan. 674, 21 Pac. 803.) As long as the defendant was not misled by the allegations as to the date — and this record discloses nothing to that effect — the date is unimportant, and a conviction may properly follow upon sufficient proof of the commission of the offense within the provisions of the limitations statute. (Bruffett v. State, 205 Kan. 863, 472 P. 2d 206; State v. Jones, 204 Kan. 719, 466 P. 2d 283; State v. McCarthy, 124 Kan. 20, 257 Pac. 925.)
The complaint is also made there was no proof the offense was committed in Sedgwick county, the argument being the evidence showed the registrar report in question “was prepared and delivered in Topeka,” and there was no evidence tending to prove any act requisite to the consummation of the offense in Sedgwick county.
The information alleged the complete offense in the language of the statute and, in addition, alleged defendant submitted a report to the registrar showing collateral receipts for 420,000 bushels of wheat had been canceled on October 29, 1965, knowing that such cancelation had not taken place. The latter part of the allegation was the basis for the false entry alleged to have been made in the book of accounts of the Addington Grain Company, Inc. It was merely descriptive of the offense itself. There was evidence that defendant submitted, or caused to- be submitted, the false report in Topeka, as alleged in the information; but the gravamen of the charged offense was the making of a false entry in the company’s book of accounts in Wichita, which was established by evidence that a copy of the false report signed by defendant was kept and maintained by him as part of the company’s records in the Wichita office. There is nothing in the record indicating that defendant was misled by the charge he was expected to meet.
Ordinarily the place where the offense occurred is a question of fact, just as any other question, to be determined by the jury. Among the instructions given tO' the jury was one stating it was incumbent upon the prosecution to prove beyond a reasonable doubt that the crime alleged was committed in Sedgwick county. By its verdict the jury found the offense was committed in that county. In State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383, we said:
“Venue may be established by proof of facts and circumstances introduced in evidence from which venue may be fairly and reasonably inferred.” (Syl. ¶ 2.)
The testimony of defendant’s private secretary, upon which he relies as showing the report was actually prepared in Topeka, is vague and inconclusive. Whether the report was prepared in Wichita or Topeka is of minor significance. The unlawful element of the offense was defendant’s placing, or causing to be placed, a copy of the false report in the records of the corporation in Wichita for the purpose of its being used as part of the company’s records. Venue for prosecution of the crime properly lay in Sedgwick county. (K. S. A. 62-404; Addington v. State, supra.) For that matter, there was ample evidence that for the period in question reports to the registrar were regularly prepared in the Wichita office, where the copy of the October 29 report, signed by defendant, was found. Under the same rationale applied in forgery cases, a presumption would be warranted that the false report and copy thereof was prepared, or caused to be prepared, in Sedgwick county. (State v. Joseph Little, supra; State v. Johnson, 189 Kan. 571, 370 P. 2d 107.)
We are satisfied from the over-all record that there was substantial, competent evidence to support the jury’s finding that the offense was committed in Sedgwick county.
Defendant’s further contention, that copies of registrar reports are not a “book of accounts kept by a moneyed corporation” and information contained in such a report does not constitute an “entry” within the contemplation of K. S. A. 21-618, cannot be sustained.
A public warehouseman is required by statute to' file a report to the registrar showing “such information regarding receipts issued or canceled or shipments of grain received or delivered, as may be necessary to enable the registrar to keep a full and complete record of all transactions by said warehouse.” (K. S. A. 34-249.) The report form shows that the warehouseman is to report each time there is any change in warehouse receipts, and the particular period of time covered by the report. The form provides for a statement as to the total amount of a commodity in the warehouse at the beginning of the period, the amount received, the amount shipped out, and the balance on hand at the end of the period. Also provided for is a statement as to how much of the balance is owned by the warehouseman and how much is owned by depositors. The form further requires a statement of warehouse receipts outstanding at the beginning of the period, receipts issued and canceled, and receipts outstanding at the end of the period. Each receipt issued or canceled must be specifically listed on the form. Basically, the report contains the same information, although in summary form, as a standard daily grain position record commonly used in the industry. The report serves the purpose of a statement of account of a public warehouseman, and in this case was being used as such. According to Frazier, office copies of the regular report to the registrar had been used by the company as its daily grain position records since the middle of October 1965. In view of all the evidence, we are of the opinion the district court properly instructed the jury, as a matter of law, that copies of the regular reports to the registrar were to be considered as a book of accounts of the corporation.
In State v. Kennedy, 105 Kan. 347, 184 Pac. 734, this court held that a passbook issued by a bank to a depositor was a “book of accounts” kept by the depositor within the meaning of what is now K. S. A. 21-618. The reasoning of that decision is not particularly helpful when applied to the facts here.
Many cases which speak of “books of account” have involved the admissibility of evidence under the “shop book” exception to the hearsay rule. (See, K. S. A. 60-460 [m], which is our present law.) Long ago in State v. Stephenson, 69 Kan. 405, 76 Pac. 905, this court stated:
“. . . It is not necessary to admissability in evidence that a book of accounts be kept in any particular form, nor is it material by what name it may be called; it is enough, if it be a book regularly and correctly kept, containing original entries of the daily transactions of the business, made at or about the times the transactions were had. . . .” (p. 408.)
A similar statement is found in Nicola v. United States, 72 F. 2d 780:
“. . . Books of account consist of entries made in the regular course of business showing the transactions which have actually occurred in the business. . . .” (p. 783.)
Also, see, Cudahy Packing Co. v. United States, 15 F. 2d 133; 30 Am. Jur. 2d, Evidence, §§ 936, 944 and 945; 32 C. J. S., Evidence § 685 (1).
Our research discloses that several other states, notably Missouri, New York, Oklahoma, and Texas, have enacted statutes similar to K. S. A. 21-618.
The Texas statute (Vernons Ann. P. C., art. 1123) differs from ours in that it is not limited to “moneyed corporations.” In Sims v. State, 169 Tex. C. R. 466, 334 S. W. 2d 818, a county clerk was charged with making a false entry in a book kept in the course of business of the office of county clerk. Entries in the book reflected the fee charged and collected for filing and recording instruments in his office — the record being designated as “daily report sheets.” The evidence disclosed these sheets were placed in loose leaf binders until the end of the year, when they were checked by the auditor, returned to the clerk’s office, and were then sent out to be bound as permanent records. The “daily report sheets” were the only records kept as to monies received for the recording of instruments. The court held the entries made on these sheets were made in a book kept as a book of accounts as defined by the statute.
Likewise, in Vahlberg v. State, 96 Okla. Cr. 102, 249 P. 2d 736, under a statute similar to K. S. A. 21-618, except that it pertained to “book of accounts” kept in the office of any county treasurer, the criminal court of appeals upheld an instruction to the jury which stated in effect that the record books referred to as the “work record” and the “permanent tax sales record” are “books of account” kept in the office of the county treasurer of Oklahoma county within the meaning of the statute. Also, see, State v. Morro, 313 Mo. 114, 280 S. W. 697, which was decided under an identical statute to ours and involved false entries in a book of accounts kept by a bank “some pages of which were designated ‘Certificate of Deposit Register’.”
Whether or not copies of the regular reports to the registrar were a book of accounts kept by a moneyed corporation was a legal question to be decided by the court and not, as defendant suggests, a question of fact for determination by the jury. As a general rule, the interpretation or construction and the meaning and legal effect of written instruments are matters of law exclusively for the court. (Vahlberg v. State, supra; see, State v. Kennedy, supra.) The trial court was required to instruct the jury on all matters of law necessary for its information on giving a verdict (K. S. A. 62-1447), and no error occurred as a result of the court’s refusal to submit the question to the jury.
The assertion is also made that the trial court failed to give certain instructions requested by the defendant. Only one deserves mention. The requested instruction was that to constitute a violation of K. S. A. 21-618 the false entry must, in some manner, affect the pecuniary obligation of the corporation. The court properly denied the request and instructed the jury substantially in the words of the statute. The statute condemns any false entry in a book of accounts by which any pecuniary obligation, claim or credit shall be or shall purport to be created, increased, diminished or discharged, or in any manner affected. A like contention was considered and rejected in State v. Kennedy, supra, where the alteration was a change of the dates of deposit in a passbook. There it was stated:
Where an employee whose duty it is to collect the cash of a moneyed corporation and deposit it in the bank, falsely and with intent to cover up his defalcation, alters the date of an original entry in the pass book so as to prevent the officers or other employees of the corporation from discovering the true state of the account, the alteration constitutes forgery within the provisions of the statue referred to, notwithstanding the actual amount of money to the credit of the corporation remains the same after the alteration as before.” (Syl. ¶ 3.)
(Also, see, State v. Mono, supra.)
Most of defendant’s other contentions concerning requested instructions not given, and the inadequacy of the court’s instructions in general, have been inferrentially answered in the discussion of earlier specifications. Keeping in mind that the adequacy of instructions is determined by their being considered as a whole, each in conjunction with all other instructions in the case (State v. Trotter, 203 Kan. 31, 453 P. 2d 93), we are satisfied the court fully and correctly instructed the jury as to all material questions of law involved in the case.
Finally, we cannot subscribe to defendant’s argument that the jury was coerced into rendering a verdict. Trial of the case covered six weeks and involved twenty-five days of trial time. The case was submitted May 6. The next day the jury advised the court it was deadlocked and needed further instructions. During the ensuing four days the court gave several additional instructions in response to specific questions tendered by the jury. On May 10 the jury reported it was unable to agree on Counts 1 through 10 but it had arrived at a verdict on Count 11. The length of time a jury should be kept deliberating in an attempt to reach a verdict is a matter resting within the sound discretion of the trial judge. (Taylor v. Holyfield, 104 Kan. 587, 180 Pac. 208; Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137.) Under all the circumstances, we discern no abuse of discretion on the part of the lower court in keeping the jury at its task after the court was informed of the deadlock and the need for additional instructions.
After carefully examining the entire record, we have concluded that no prejudicial error warranting reversal has been made to appear.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This action seeks recovery of land by way of reverter because of alleged violation of restrictive covenants contained in a deed of conveyance.
Plaintiffs appeal from summary judgment rendered against them and in favor of the defendants, the city of Topeka and its officers. The parties concede only a question of law was presented to the trial court, the facts not being at issue.
In 1899 the city of Topeka accepted an eighty acre tract of land given it by the heirs of Guilford G. Gage for the purpose and on the condition, that it should be used as a public park, to be known as Gage Park, “for the benefit of the health, comfort and recreation of the citizens of Topeka and their friends, and such other orderly persons as may resort thereto.” The deed of gift further contained a provision that “said real estate shall be inalienable by said City of Topeka, either by way of deed, conveyance, lease, or in any other manner, and shall be forever held and used for the purposes aforesaid.” It also provided that “upon violation of, or default in, or non-compliance with any of the conditions aforesaid, the grant hereby made shall be forfeited, and said land and every right thereto or therein shall revert to and become the absolute and exclusive property of said parties of the first part, their heirs and assigns.” The property is a part of that which has since been maintained by the city as Gage Park.
In October, 1966, the city entered into a written agreement, the object of complaint in this action, granting to one A. C. McCall the right to construct and operate a miniature train upon the park premises.
Plaintiffs, the heirs of the grantors in the deed of gift, contend this agreement constitutes a conveyance in violation of the provisions in the deed, working forfeiture and reversion of the premises to them.
The agreement in question (with its subsequent modifications) refers to McCall throughout as a “Concessionaire”. In it he is given the exclusive right, for a term of sixty months with option to renew, to make available to the public a miniature train ride, this being described as a “concession, right and privilege”; concessionaire is to furnish all equipment, pay all costs of construction, maintenance and operation including proper roadbed, track, train station and other facilities, the train to be a scale model of an “Old Time Steam Train Replica”; the design of the train station is to be approved by the city and its location and that of the railroad track and its length are to be designated by the city; concessionaire may not use any space in the park except that designated by the city; all park alterations incident to construction of the railroad are to be approved by the city prior to commencement of alteration; all facilities shall be maintained in a safe, neat and satisfactory condition; the train is to be operated so as not to interfere with the normal use and enjoyment of the park by the general public; hours of operation shall be as directed by the city; all park rules and regulations are to be obeyed; fees charged for train rides shall be as fixed by the concessionaire and approved by the city; concessionaire is to pay monthly to the city 22& per cent of the gross receipts derived from rides; if concessionaire is dissatisfied with any order, direction or decision on the part of the city he may appeal therefrom to the mayor and board of commissioners whose decision shall be final; the agreement may not be transferred by the concessionaire and may be terminated by either party upon thirty days’ written notice; in the event of termination of the agreement for any reason concessionaire is to retain his own property placed on the premises but is to restore city premises to their present condition, including, but not to be limited to, leveling, bringing to grade and reseeding all areas involved; concessionaire is to furnish liability insurance on behalf of himself and the city insuring against injury or death in stated amounts.
The agreement also contained these provisions:
“VIII
“The Concessionaire shall not by virtue hereof be deemed to have become the tenant of the City, or any of the premises herein referred to, nor to have been given or accorded as against the City, the possession of any thereof; but as to such of the premises as he is hereunder entitled to use, he shall be deemed merely to be a licensee permitted to enter therein solely for the purpose of exercising therein the right and privileges hereby granted. Upon any termination of this agreement, the City shall have the right through such means as it sees fit to remove and exclude therefrom Concessionaire and any of Concessionaire’s employees, without being deemed guilty of any unlawful entry, trespass or injury of any sort whatever.
“XIII
“It is mutually agreed by the parties hereto that in the event title of the City to any land or portion of land to be used by Concessionaire hereunder is adjudged by a Court of competent jurisdiction to be in jeopardy, or to be such that the City is prohibited from allowing such use as contemplated hereunder, then, and in that event, this agreement shall forthwith terminate, and Concessionaire shall, from such time thereafter, have no right, title, interest or claim against the City whatsoever.”
Appellants contend the agreement constitutes a lease in violation of the deed of gift, giving rise to a right of forfeiture. They concede that if the agreement be held to be a license, there is no violation and no right of forfeiture.
In 1916 the selfsame deed of gift conveying Gage Park to the city was the subject of litigation in Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014. There an adjoining landowner sought, by reason of the provisions in the deed upon which appellants here rely, to oust the city from granting to individuals exclusive rights within the park to operate refreshment and lunch stands and to rent boats, dressing rooms and bathing equipment. This court held such action was not in conflict with the provisions of the deed, saying, “The concessions granted do not amount to the leasing of any part of the park.” (p. 329.) The following text was quoted approvingly:
“Under a power to control and regulate parks the municipal authorities may provide for the pleasure, amusement, comfort, and refreshment of persons frequenting them, which in their discretion they may do by granting privileges to private persons to furnish food or refreshments, or means of innocent entertainment, with the right to erect necessary structures incident thereto which will not interfere with the rights of the public. . . .” (p. 330.)
Appellants argue the Bailey case is distinguishable because here the agreement permits improvements of a permanent nature to be made in the park (train station and garage, tracks on a certain grade, trestle, signals, etc.), that it permits exclusive possession to the grantee of part of the premises and by its very nature constitutes a lease. They point to an instance in the agreement in which the term “lease agreement” is used and another in the clause forbidding transfer in which the word “sublet” appears.
As the issue is presented here the basic question to be determined is whether the agreement is a lease or a license.
In 32 Am. Jur., Landlord and Tenant, § 5, we find this:
“Distinctions between Lease, License, and Easement. It is recognized that it is often difficult to distinguish between a license and a lease. A license in the law of real property is defined to be an authority to do some act or a series of acts on the land of another without passing an estate in the land. It amounts to nothing more than an excuse for the act, which would otherwise be a trespass. It is ordinarily not assignable. A demise or lease is more than a license to enter and occupy for a specific purpose, but the fact that the privilege is paid for even by an annual payment does not prevent it from being a license merely. A leasehold, including an estate for years, is an interest in real property. Indeed, the distinguishing characteristics of a lease is that it carries a present interest and estate in the land for the period specified, and the criterion seems to be the right to the possession of the land, and if such right is not conferred, the transaction is to be deemed a license, profit, or easement. A license to do an act upon land involves tire exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms.
“Whether an instrument is a license or a lease depends generally on the manifest intent of the parties gleaned from a consideration of its entire contents.” (pp. 30-31.)
The foregoing accords with our holding in Smyre v. Kiowa, 89 Kan. 664, 132 Pac. 209, in which the following was quoted approvingly:
“The test to determine whether an agreement for the use of real estate is a lease or a license is whether the contract gives exclusive possession of the premises against all the world, including the owner, in which case it is a lease, or whether it merely confers a privilege to occupy under the owner, in which case it is a license, and this is a question of law arising out of the construction of the instrument.” (p. 668.)
The agreement here gives an exclusive right to the grantee to make available to the public a certain type of entertainment but, as in Bailey, this limited right is vastly different from a right to exclusive possession of premises against the grantor usually found in a lease. The rights granted are subject to a high degree of control by the city, and subject as well to the normal use and enjoyment of the park by the public. We shall not repeat the substance of those provisos already stated but virtually everything permitted to be done under the agreement must conform to the will of the city. For our purposes here, about all the concessionaire has is the exclusive right to operate as the city may dictate. And the termination clause strongly suggests license rather than lease.
The agreement does contemplate alteration in the terrain and erection of certain type structures (again subject to city approval) but these appear to be insignificant and of insufficient character to affect the essential nature of the transaction. In Boyd v. Colgan, 126 Kan. 497, 268 Pac. 794, an agreement denominated a lease gave a right to enter upon land for the purpose of hunting and fishing. The instrument also gave the grantee the right to construct a dam and put down wells on the premises. Despite this aspect of the contract and its name, the instrument was held to be a license and not a lease.
In the case at bar, under the rationale of Bailey and the other authority cited, we think the parties intended the agreement to be nothing beyond a license. Hence we hold it not violative of the inalienability clause in the deed.
Appellants further contend the city’s action was in violation of the clause in the deed that the premises be used as a park for the benefit of the public. For this position they rely primarily upon cases from other jurisdictions. We have examined those cited but in view of our own precedent and inclination, we decline to follow them.
Appellants’ argument essentially is that operation of a miniature train is a commercial enterprise not within the area of recreation authorized in a public park.
In Bailey v. City of Topeka, supra, the court considered the commercial aspect of the right granted. It declined to consider this factor a violation of the deed, saying:
“The fact that a profit resulted would not render the transaction objectionable. The incidental revenue would not characterize transaction as commercial rather than governmental.” (p. 329.)
The court further quoted approvingly from 3 Dillon s Municipal Corporations, 5th ed., § 1096, p. 1749, as follows:
“A park may be devoted to any use which tends to promote popular enjoyment and recreation.” (p. 330.)
In City of Wichita v. Clapp, 125 Kan. 100, 263 Pac. 12, this court indicated the wide range of enterprises which have been sanctioned in public parks, saying:
“Under various authorities, the expression ‘park purposes’ has been held to include a race track, a tourist camp, bridle trails, boating, bathing, refreshment and lunch stands, providing bathing suits, towels and rooms for bathers, dressing pavilion, waiting room for street cars, refreshment and shelter room for the public, grandstand, ball games, baseball diamond, race meets, tennis courts, croquet grounds, children’s playgrounds, hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and many other recreational and education facilities.” (p. 101.)
We should mention the record before us contains no suggestion of offensiveness to any person or class of persons in the actual operation of the train.
These small “iron horses” have come to be attractive mementos of a once popular but now rapidly vanishing mode of transportation and are most often found in places of scenic or historic interest or simply where people of all ages congregate for sheer fun. For those so inclined they furnish a pleasant means of touring an area for whatever vistas may be afforded. It seems invitingly clear that such universally enjoyed devices, properly regulated, are a form of wholesome recreation that ought not to be declared beyond the pale of “innocent entertainment” contemplated in Bailey, and that court interference would be unwarranted. As already indicated, the train in question is not to be operated as to intrude upon other use and enjoyment of the park and its facilities and will remain subject to strict municipal control. We hold the city’s action in permitting its operation is consistent with the terms of the grant and does not constitute an unauthorized use of Gage Park.
The trial court ruled correctly and its judgment is affirmed.
APPROVED BY THE COURT.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the disciplinary administrator against Steven R. Smith, of Wichita, Kansas, an attorney licensed to practice law in the State of Kansas.
The disciplinary administrator filed a three-count complaint involving numerous conversions of funds of clients and of the law firm in which respondent was a partner, which occurred during the years 1984 to 1988. The respondent admitted the factual allegations and that they constituted violations of DR 1-102(A)(4) and (6) (1990 Kan. Ct. R. Annot. 165) and Model Rules of Professional Conduct 8.4(c), (d), and (g) (1990 Kan. Ct. R. Annot. 290).
The hearing panel received stipulated evidence; heard testimony concerning the reasons for the respondent’s conduct, his explanation thereof, and what he had done in mitigation; and heard evidence concerning the proposed plan of rehabilitation.
Respondent is 42 years of age. He was, and had been for a number of years, a partner in a large, prestigious law firm in Wichita, Kansas. During the years 1986, 1987, and 1988, his income from the practice of law ranged from $90,000 to in excess of $100,000 annually. Starting in 1984, he began falsifying expense vouchers. When this was discovered in 1988, he immediately resigned from the partnership and notified the disciplinary administrator what he had done.
The disciplinary administrator’s office filed a three-count complaint. The first count alleged respondent had mishandled and misappropriated the law firm’s funds and the law firm’s clients’ funds in excess of $18,000. It was alleged, and respondent con cedes, that he charged fictitious expenses to the clients and also inflated legitimate expenses.
The second count alleged that respondent had obtained a firm check, which he filled out in the amount of $2,600, with no payee shown on the face of the check. The notation on the face of the check indicated the money was used to pay for an expert witness. The money was converted to the respondent’s personal use. When the final bill was sent to the client, the charge for the expert witness was deleted. The respondent increased the number of hours he actually spent on the case and charged his client for Westlaw research expenses he did not incur in order to conceal the fact that he had converted $2,600.
The third count alleged respondent had retained a $6,000 workers compensation fee which belonged to the firm and converted the money to his own use.
The record does not reflect the exact amount involved in these and other incidents and that fact will probably never be known. Respondent testified he had signed over his interest in the partnership and forfeited other funds, having a total value of $29,400. He also entered into a diversion agreement in the District Court of Sedgwick County, Kansas, concerning criminal charges arising out of his acts, in which he agreed to reimburse the firm an additional $34,012.45. Thus, the record before us shows that he has, in part, reimbursed the firm’s clients and his former law firm and agreed to pay a total of $63,412. The record indicates the law firm has made a diligent effort to see that all of the clients have been reimbursed.
Since his resignation, respondent has been employed by the law firm of Render, Kamas & Hammond, of Wichita. Al Kamas of that firm, with the aid and advice of respondent’s attorney, Jack Focht, has undertaken a compassionate and comprehensive program to rehabilitate respondent and salvage his legal career. They arranged professional mental help and marshaled all of the evidence presented to the panel. We do not deem it necessary to detail the mitigating evidence presented. The hearing panel noted that approximately 150 members of the Kansas Bar expressed support for a plan of probation on behalf of the respondent. The panel stated there was reason to suspect some orchestration, but found that lawyers statewide do support a system of probation as one of the disciplinary options.
The panel recommended that
“Steven R. Smith be suspended from the practice of law for a period of five years. We further recommend that after serving one full year of suspension from the date that this matter is finalized pursuant to Rule 212 [1990 Kan. Ct. R. Annot. 149], the respondent shall be placed on probation for the remaining four years and reinstated subject to the following terms:
“a. All legal work performed by the respondent during his probationary period shall be under the direct supervision of a licensed, practicing attorney, retired member of the judiciary, or a committee composed of more than one attorney. The names and addresses of those who will assume this responsibility shall be submitted to the Disciplinary Administrator for approval prior to reinstatement.
“b. The personal financial affairs of the respondent shall be reviewed on a quarterly basis through the first two years of his probation and on a semi-annual basis for the remaining two years. Written confirmation of the financial review shall be furnished to the Disciplinary Administrator. ”
It is well established that the panel’s findings and recommendations are advisory only and are not binding on the court. State v. Phelps, 226 Kan. 371, 378-79, 598 P.2d 180 (1979); State v. Johnson, 219 Kan. 160, 546 P.2d 1320 (1976). It is the responsibility of this court to examine the evidence and determine for itself the discipline to be imposed. State v. Klassen, 207 Kan. 414, 415, 485 P.2d 1295 (1971).
Here, the respondent was more than capable of functioning as an attorney. His professional skill as an attorney was recognized by the bench and bar. He did not engage in an isolated incident of ethical misconduct. The conversion of funds was a series of repeated acts which occurred over a period of four years and a substantial amount of money was involved.
We are of the opinion that respondent’s conduct requires disbarment.
It Is Therefore Ordered that Steven R. Smith be, and he is hereby, disbarred from the practice of law in the State of Kansas. The privilege and license of Steven R. Smith to practice law in this state are hereby revoked, and the Clerk of the Appellate Courts is directed to strike the name of Steven R. Smith from the roll of attorneys in the State of Kansas.
It Is Further Ordered that Steven R. Smith shall forthwith comply with the provisions of Rule 218 (1990 Kan. Ct. R. Annot. 155).
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to the respondent.
Holmes, C.J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an action challenging the termination of plaintiff Richard Virgil Brown’s employment with defendant United Methodist Homes for the Aged (UMH). The plaintiff alleged breach of his contract of employment and retaliatory discharge for filing a workers compensation claim and that defendant provided false information to the Kansas Department of Human Resources, Division of Employment Security (KDHR), so as to deny plaintiff unemployment compensation benefits. The jury rejected the latter two claims but found for plaintiff on the theory of breach of contract and awarded $35,000 in damages. Defendant appeals the verdict and the denial of judgment for defendant as a matter of law on plaintiff s breach of contract claim. The plaintiff cross-appeals, challenging the district court’s instruction regarding retaliatory discharge and the court’s refusal to instruct the jury about mental anguish as an element of damages.
We first consider UMH’s direct appeal. UMH contends that the district court erred in not finding as a matter of law that Brown stated no cause of action for his discharge. Thus, the district court should have granted UMH’s motion for summary judgment, should have directed a verdict at the close of both the plaintiff s evidence and all the evidence, and should have granted UMH’s motion for judgment notwithstanding the verdict filed after trial was completed. UMH also contends that substantial competent evidence does not support the verdict that an employment contract existed and was breached. The basic question to be decided is whether an implied contract of employment existed between Brown and UMH.
Standards of Review
The standard of review in an appeal of a summary judgment has been stated by this court on numerous occasions. Summary judgment is proper only when the pleadings, affidavits, and the discovery record show that no genuine issues of material fact exist and that the moving party is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). In reviewing a decision involving summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983). Here, this court must give Brown the benefit of all favorable inferences arriving from this record in determining whether the district court erred in denying UMH’s motion for summary judgment.
In ruling on a motion for directed verdict, the trial court as well as the appellate 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 based upon the evidence, the motion must be denied and the matter submitted to the jury. Pilcher v. Board of Wyandotte County Commrs, 14 Kan. App. 2d 206, 208, 787 P.2d 1204 (1990) (quoting Holley v. Allen Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 [1987]). In deciding a motion for directed verdict, the question before a trial court is not whether there is no evidence to support the party against whom the motion is directed but whether evidence exists upon which the jury could properly find a verdict for that party. In Sampson v. Hunt, 233 Kan. 572, 578, 665 P.2d 743 (1983), this court noted that, even where facts are undisputed, it may be possible to draw conflicting inferences from the facts, which would also require the issue to be submitted to the jury. The matter becomes a question of law for the court’s determination where no evidence is presented on a particular issue or where the evidence presented is undisputed and is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice. Sampson, 233 Kan. at 578; Pilcher, 14 Kan. App. 2d at 209.
The test for determining whether a motion for directed verdict should be granted is the same test applicable to a motion for judgment notwithstanding the verdict. Holley, 241 Kan. at 710; Turner v. Halliburton Co., 240 Kan. 1, 6-7, 722 P.2d 1106 (1986) (citing 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-250 [1979]).
Concerning UMH’s argument that the verdict was not supported by the evidence, this court has held that when a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, this court does not weigh the evidence or pass on the credibility of the witnesses. “If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.” Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988).
Facts
UMH hired Brown on March 15, 1985, as a part-time security guard to work weekend nights between 4:00 p.m. and 12:00 a.m. at its nursing home located at 1135 S.W. College Avenue, Topeka, Kansas. UMH gave Brown its Personnel Policies Manual that addressed disciplinary procedures and employee benefits. Brown signed a receipt for the manual and agreed to abide by its provisions. The manual is in looseleaf form and, as amendments or revisions are made, new pages are furnished to employees in their pay envelopes to be inserted ini the manual.
One manual revision, which was effective August 9, 1985, provided:
“Employment with United Methodist Homes is ‘at will,’ and may be terminated by the Homes without cause. No commitment for employment for any specified duration, including ‘lifetime’ employment, shall be valid or binding on the Homes unless it is expressly set forth in a written document and signed by the employee and by the Executive Director of the Homes.”
A memorandum explaining this “at-will” language provided:
“TO ALL EMPLOYEES:
“You have received the revisions to the Personnel Polices Manual. There are some questions concerning the ‘At will’ statement on page 3, D and page 31, F, 1.
“This statement has been included at the suggestion of our legal counsel due to a change in the law. It is not a change in policy. The United Methodist Home has always been an ‘At will’ employer. This simply means that we do not have written contracts with any employees that guarantee a length of employment. For example: the teachers and the school board. This means that The Methodist Home has the same relationship with you as you have with the Home. In other words, you have the right to quit, just as we have the right to terminate employment. It has always been this way.
“The law has changed in interpretation due to the result of legal action taken by employees against their employer (not the Methodist Home). In these court cases the personnel policy manual was interpreted to be a contract, due to a legal technicality. To cover this legal problem the Legal Advisers ask us to include the ‘at will’ statement.”
The addition of the “at-will” clause did not change the policy of UMH that prohibited dismissal of an employee except “for cause.” Orman Thorson, director of environmental services for UMH, explained, “You just don’t terminate a person because you want to terminate them. You have got to have some kind of cause.” The policies of UMH incorporated the philosophy of the Christian faith, including treating employees fairly.
After about two weeks on the job, Brown was transferred to a full-time security position working Monday through Friday in the same shift of 4:00 p.m. to 12:00 a.m. He continued in this job until February 1986 when he suffered a hernia while lifting trash bags at work, which was part of his duties as a security guard. About a week after his accident, Brown reported this to his supervisor, Orman Thorson. Nearly a year later, on February 2, 1987, Brown for the first time filled out an accident report about the incident, which was done to obtain workers compensation benefits. He thereafter received temporary total disability benefits.
Brown continued at his job as a full-time security guard until the latter part of February 1986, when the pain associated with his hernia became worse. Brown consulted with Dr. Rogelio Sanchez, who recommended that Brown undergo surgical repair of the hernia. Dr. Sanchez instructed him not to lift more than 40 pounds until his hernia was repaired. Thorson and Peter Bonnell, assistant director of plant operations, weighed trash bags and found none weighing over 33 pounds.
Because of the pain Brown was experiencing, Marcella Weibel, UMH’s director of housekeeping and Brown’s daytime immediate supervisor, consulted with Thorson and granted Brown a leave of absence without pay for 90 days commencing January 20 and ending April 20, 1987. Brown testified that he did not request a leave of absence or understand why he was being placed on leave. The leave of absence was written by Weibel and signed by Brown, stating:
"Jan. 20, 1987
Richard Brown has requested leave of absence because of pain and he will have surgery.
He will be on leave of absence without pay for ninety days beginning Jan. 20, 1987 to April 20, 1987.
By Marcella Weibel
Dir. of Housekeeping
I am writing this at Richard’s request.
Richard Brown”
Concerning approved leave, UMH’s manual provided, in part:
“6. Due to the expense of obtaining temporary replacements, and/or the hardship on the facility caused by leaving the position open, the position may be filled.
“7. When an employee returns from an approved leave of absence, that employee will be reinstated to first available, same, or similar position.”
The leave of absence document was backdated by Harriet White, personnel director of UMH, to January 10, 1987, to accommodate UMH’s requirement that a leave of absence must be requested by an employee in writing at least 10 days prior to its being granted. This resulted in extending Brown’s leave of absence through April 30, 1987, although apparendy he was never informed of this action. Meanwhile, UMH needed a full-time security guard to work Brown’s shift; Willie Walker, UMH’s then part-time weekend security guard, was transferred to fill Brown’s full-time position on January 29, 1987.
On March 10, 1987, Brown underwent surgery for repair of his hernia. Brown returned to UMH late in the afternoon on Thursday, April 30, 1987, and spoke with Thorson, who advised him that Willie Walker had been hired to fill Brown’s full-time security duties. Thorson offered Brown a part-time weekend security position working 12:00 a.m. to 8:00 a.m., starting Saturday, May 2, 1987, until a full-time position opened up. The parties dispute whether Brown understood that the part-time position was the only available position at that time. It is also disputed whether Brown agreed to take the part-time weekend security job, but it is uncontroverted that Thorson scheduled Brown to work Saturday and Sunday, May 2 and 3, 1987, from 12:00 a.m. to 8:00 a.m.
On Friday, May 1, 1987, Thorson told Weibel that Brown would be reporting to work that weekend and that UMH need not be concerned about having to fill the position. Apparently, on the same day, according to data entry records of KDHR, Brown filed for unemployment compensation benefits, indicating that he was on “leave of absence.”
Brown did not report for work at midnight on either Saturday, May 2, or Sunday, May 3, 1987. This required other security guards to work overtime. Brown testified that he had been out of town that weekend and that, upon his return Sunday evening, his wife checked the telephone answering machine and advised Brown that he was to call someone at UMH. Brown testified that he responded, “I kept paying no attention because I ain’t going to be bothered with nobody, you know, didn’t realize what it was or anything, didn’t know what it was.”
The following day, on May 4, 1987, Brown was terminated under the terms of UMH’s manual that provides that if an employee fails to give notice of an unscheduled absence for two scheduled work days, it is considered grounds for termination.
On May 12, 1987, Automatic Data Processing (UMH’s agent for handling unemployment compensation claims) field representative L.N. Collier submitted the following response to KDHR’s inquiry concerning the circumstances of Brown’s separation from UMH’s employment:
“The claimant was discharged because on 5-2-87 and 5-3-87 he was absent from work and failed to call the employer to report his absence. As a result the employer was without the services of a security guard for a period on 5-2-87 and was required to call in substitute guards and pay them at a time- and-one-half rate for the shifts the claimant missed. The claimant had been on medical leave of absence since 1-19-87 and had agreed to return to work beginning 5-2-87. He was aware that employer policy requires absences to be reported on a daily basis and was aware that his unreported absences exposed the elderly residents of the employer’s geriatric facility to danger from intruders. Determinations requested regarding his separation from work and regarding his availability for full-time work.”
On May 19, 1987, KDHR’s claims examiner issued three determinations concerning Brown’s claim. The examiner found the claimant was disqualified for benefits until he became re-employed and had had earnings from insured work of $309. The disqualification began on May 3, 1987. The examiner found that claimant was discharged due to absences. “The absences were not excused because the claimant failed to properly notify the employer of the absence. Misconduct is a violation of a duty or obligation reasonably owed the employer. The claimant was discharged for misconduct connected with the work. ” Neither Brown nor UMH appealed KDHR’s determinations.
Between May 1, 1987, and the date of trial, defendant UMH had several full-time, entry-level positions became vacant that were not offered to Brown. Brown was not notified of these full-time openings.
Direct Appeal
The basic argument being made by UMH is that Kansas has adopted the employment-at-will doctrine; therefore, Brown could be discharged without cause, and no implied contract existed merely because guidelines were distributed by the employer.
UMH directs this court to Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976). The plaintiff in Johnson argued that a company policy manual distributed by the employer to employees during Johnson’s employment constituted an express contract or served as a basis for establishing a contract of employment by implication. Johnson argued that the statement in the manual that an employee shall not be dismissed without just cause was enforceable against the employer. This court reviewed the manual and found nothing expressly providing for a fixed term of employment and no language from which a contract to that effect could be inferred. 220 Kan. at 54. The manual was published long after Johnson began his employment with the employer and, therefore, was only a unilateral expression of company policy and procedures. This court concluded that the terms of the manual were not bargained for by the parties and any benefits conferred by it were mere gratuities. No meeting of the minds occurred; instead, the manual was merely defendant’s unilateral act of publishing company policy. 220 Kan. at 55.
UMH argues that application of Johnson to the present case establishes that the district court erred in not finding as a matter of law that Brown stated no cause of action in arguing that an implied contract had been created through the existence of the manual he received from UMH. UMH points out that, although Brown received a copy of the manual at the time of his employment and agreed to abide by its terms, the record is devoid of evidence sufficient to establish the necessary elements of an implied contract and, thus, Brown remained an employee at will.
Although the decision in Johnson set forth a strict adherence to the employment-at-will doctrine, more recent Kansas appellate courts have recognized the development of various theories that have eroded this doctrine. See Morriss v. Coleman Co., 241 Kan. 501, 511, 738 P.2d 841 (1987). The Court of Appeals, in Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), recognized an action in tort for wrongful discharge due to the filing of a workers compensation claim as authorized by statute after sustaining injury on the job. The Court of Appeals analyzed the public policy underlying the Workers Compensation Act and held that the discharge of the employee in retaliation for filing a workers compensation claim is actionable at law and can support an award of both actual and punitive damages. 6 Kan. App. 2d at 495-96. Recently, in Morriss, this court noted that Murphy is important because “it opened the way to judicial recognition of a variety of public policy considerations which could support actions for tortious retaliatory discharges.” 241 Kan. at 511.
Brown cites Sweet v. Stormont Vail Regional Medical Center, 231 Kan. 604, 647 P.2d 1274 (1982), in support of his argument that the district court here correctly let this case go to the jury. When Sweet terminated her employment with Stormont-Vail without prior notice, she was paid for her work to the date of termination but not for vacation time because she had not complied with notice provisions in the employee handbook. The court pointed out that none of the parties seriously questioned the applicability of the employee handbook to Sweet’s employment. 231 Kan. at 605. The court concluded that, when an employee is made aware of company policy that is a part of the terms of the employment contract, the employee is bound by those terms. Because Sweet acknowledged receipt of the handbook outlining the conditions of her employment contract and her rights thereunder, the court concluded that the requirement of notice of intent to terminate was reasonable because it was consistent with the hospital’s need to be adequately staffed for the health and safety of its patients. 231 Kan. at 611.
Brown argues that, along this line, defendant UMH distributed the manuals to provide employees notice of the written leave of absence policy and, in that way, took positive steps to bind itself and its employees to this policy by requiring compliance with the terms set forth in the Personnel Policies Manual.
Both parties discuss the Court of Appeals decision in Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659, 684 P.2d 1031 (1984). The plaintiff in Allegri alleged that he had an implied contract with the employer under terms defined by the parties’ course of dealing and the employee handbook’s discipline policy that led plaintiff to believe he could be terminated only “for cause.” Plaintiff did not rely exclusively upon the terms of the handbook; he also emphasized communications and discussions with his supervisors in arguing the existence of an implied contract.
In deciding whether an implied contract existed in Allegri, the Court of Appeals recognized that Kansas traditionally followed the employment-at-will doctrine as set forth in Johnson, but the determination of whether an implied contract of employment existed required a factual inquiry. 9 Kan. App. 2d at 663 (citing Johnson, 220 Kan. at 54-55, quoting 53 Am. Jur. 2d, Master and Servant § 27, p. 103). In Allegri, the court recognized that intent of the parties is normally a question of fact for the jury that is shown by acts, circumstances, and inferences reasonably deducible therefrom. 9 Kan. App. 2d at 663.
In Allegri, the court concluded that the trial court erred in considering only the employee handbook and a conversation between plaintiff and one of his supervisors in granting summary judgment. Testimony in the record raised a material question about whether the conduct of the parties evidenced an implied employment agreement. The court recognized that such an agreement cannot be established solely by the employee’s subjective understanding or expectation about his employment, but noted:
“[A] mutual intent to employ plaintiff as long as he did his job satisfactorily could be based upon such factors as the longevity of plaintiffs employment with defendant and defendant’s predecessors, the nature of plaintiffs employment, plaintiffs rejoining the hospital at the hospital’s request after having left to pursue his own private practice, plaintiff s curtailment of that private practice after returning to the hospital, and the excellent performance evaluations plaintiff received from defendant.” 9 Kan. App. 2d at 664.
Therefore, although the court expressed no opinion about the merits of plaintiffs claim that an implied contract existed, the court found sufficient evidence to merit submission of the case to the jury. 9 Kan. App. 2d at 664. In Morriss, this court noted that Allegri is important “because it established clearly the rule that intent of the contracting parties is normally a question of fact for the jury and that the determination of whether there is an implied contract in employment requires a factual inquiry.” 241 Kan. at 512.
This court addressed the employment-at-will doctrine at length in Morriss, 241 Kan. 501. The plaintiffs were two former employees of Coleman Company, Inc., of Wichita, who alleged that Coleman had breached an implied contract of employment by discharging them without good cause and by terminating their employment in bad faith, in violation of an implied covenant of good faith and fair dealing. The plaintiffs were an executive secretary and a production supervisor. The secretary had accompanied the production supervisor on a trip to retrieve a car for a supervisor of the company. The secretary paid her own expenses and did not inform the company of her intent to accompany the other plaintiff. The supervisor terminated the two plaintiffs after they delivered his car to Wichita. 241 Kan. at 501-07.
In reviewing the plaintiffs’ claims, the Morriss court reviewed in detail the employment-at-will doctrine. Under the American common law, an employer may discharge an at-will employee “for good cause, for no cause, or even for a wrong cause, without incurring liability to the employee for wrongful discharge.” 241 Kan. at 508. The employment-at-will doctrine is not strictly adhered to when the employer’s conduct undermines an important public policy. Roth federal and state legislation have restricted the employer’s ability to terminate a worker arbitrarily and, although no court has entirely abolished the employment-at-will doctrine, recent cases indicate a trend to avoid the injustice of the rule. Along this line, some state courts have recognized causes of action based upon the theories of wrongful discharge, violation of public policy, and breach of contract. 241 Kan. at 509.
The court in Morriss recognized two exceptions to the employment-at-will doctrine commonly used by the courts. First, under an implied contract theory, the employment contract is interpreted more broadly. It recognizes an implied obligation on the employer to not terminate an employee arbitrarily where a policy or program of the employer, either express or implied, restricts the employer’s right of termination at will. Thus, employee manual guidelines that set out the grounds and procedures for discharge are viewed as part of the employment contract and bar the employer from violating its own policies in discharging an employee. 241 Kan. at 509.
A second exception has been recognized in suits of a tort nature for retaliatory discharge based on the theory that dismissal of employees for reasons violative of a particular public policy are actionable. Conduct of an employer violative of public policy and giving rise to a cause of action has been recognized when an employee is discharged in retaliation for opposing an illegal or unethical activity of the employer, in retaliation for filing workers compensation claims, in retaliation for exercising rights under labor-management relations statutes, as a penalty for refusing to take a polygraph exam, as a penalty for taking time to serve on jury duty, and for various other violations of public policy interests. 241 Kan. at 509.
In considering the case before it, this court in Morriss noted that plaintiffs argued that the trial court erred in granting summary judgment because a genuine issue of fact existed about whether their employment was terminated in violation of an implied contract that an employee would not be terminated except for good cause. Coleman relied upon a paragraph in the supervisor’s manual to the effect that nothing in the manual should be construed as an employment contract or guarantee of employment. This court affirmed on petition for review the Court of Appeals’ reversal of the trial court’s granting of summary judgment; in its unpublished opinion the Court of Appeals had relied upon the following rule stated in Syl. ¶ 5 of Allegri:
“ ‘Where it is alleged that an employment contract is one to be based upon the theory of ‘implied in fact,’ the understanding and intent of the parties is to be ascertained from several factors which include written or oral negotiations, the conduct of the parties from the commencement of the employment relationship, the usages of the business, the situation and objective of the parties giving rise to the relationship, the nature of the employment, and any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time said employment commenced.’ ” 241 Kan. at 513 (quoting Allegri, 9 Kan. App. 2d 659, Syl. ¶ 5).
This court in Morriss concluded that the disclaimer in the manual did not determine the issue as a matter of law, pointing out that the disclaimer was neither brought to the personal attention of the employees nor intended by Coleman to create an unqualified employment-at-will relationship, especially in view of other provisions in the manual and statements made by Coleman supervisors to employees. The court emphasized that no trial had occurred in the case. It held that the evidence presented in the record at the time summary judgment was granted was insufficient to require summary judgment in favor of the defendant as a matter of a law. The court stated: “The ultimate decision of whether there was an implied contract not to terminate the plaintiffs without just cause must be determined from all the evidence presented by the parties on that issue.” 241 Kan. at 514.
In support of its argument that the district court erred in allowing this case to be submitted to a jury, UMH relies extensively upon Plummer v. Humana of Kansas, Inc., 715 F. Supp. 302 (D. Kan. 1988). Plummer was given an employment handbook when he was hired by Humana and signed a statement acknowledging receipt of the handbook and promising to abide by its contents. The handbook provided that employment with Humana was not of a specific duration and that employees could be discharged for cause or at the convenience of the hospital. When Plummer was terminated, he sued, alleging that the handbook created an implied employment contract which was breached by his termination.
In Plummer, Judge Saffels distinguished Morriss because Plummer acknowledged receipt of the handbook and had agreed in writing to abide by its terms. No evidence indicated that the management suggested to Plummer that dismissal would be only for cause or that Humana intended to create anything other than an unqualified employment-at-will relationship. Thus, the court found no issue of intent in question, and therefore summary judgment was appropriate because no implied employment contract existed. 715 F. Supp. at 304.
Both parties cite to Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 787 P.2d 1204 (1990), in which the Court of Appeals affirmed a directed verdict on the claim of breach of implied contract but reversed on the instructions concerning plaintiff s claim for retaliatory discharge for filing a workers compensation claim. The court concluded that the evidence offered by plaintiff was simply not sufficient to carry the issue of implied contract to a jury. The evidence plaintiff offered involved her own testimony and that of a former supervisor concerning their belief that employees would receive three warnings before being fired. The court emphasized that plaintiff did not support this theory with any written documentation or policy and could not state where or from whom she had received this information. Instead, she simply insisted that “everyone said it had always been this way.” 14 Kan. App. 2d at 210. Based upon this evidence, the Court of Appeals affirmed the trial court’s directed verdict on the issue of implied contract. 14 Kan. App. 2d at 210.
Brown lists five ways in which he distinguishes his case from Pilcher. First, he argues that UMH had a written personnel policy especially formulated upon the issue of termination that did not exist in Pilcher. Second, Brown presented a written statement by Weibel, director of housekeeping and Brown’s immediate supervisor, indicating UMH’s administrator had written a note that Brown had received a copy of the leave of absence policy. Third, Weibel admitted at trial that UMH had made a mistake in its treatment of Brown. Fourth, Weibel stated the philosophy of UMH was to treat employees fairly and recognized that Brown was eligible for the extended illness policy used by UMH, but that he was erroneously placed on a leave of absence without pay. Finally, Weibel acknowledged this error and apologized from the witness stand about the failure to use UMH’s extended illness policy instead of the leave of absence without pay.
Plummer is distinguishable on its facts from the present case. In that case, Plummer relied solely on the handbook, which he acknowledged receiving and reading, including the disclaimer provision, when he was first hired. Here, the handbook was amended as to the disclaimer after Brown started working for UMH. The handbook in Plummer contained no statements about termination for cause. As Judge Saffels noted, “there is no evidence that management indicated dismissals would only be ‘for cause.’ ” 715 F. Supp. at 304. Here, although the manual did make clear that discharge could occur without cause, the stated policy of UMH was to treat all employees fairly in accordance with Christian principles and not to discharge an employee except “for cause.” In Plummer, the handbook stated that discharging an employee could occur “at the convenience of the hospital.”
The district court here refused to grant summary judgment because factual issues remained that needed to be determined by the trier of fact. The court’s memorandum decision discusses at length the claim regarding wrongful discharge based upon the filing of a workers compensation claim. The jury rejected this as a basis for recovery by Brown. A review of the motion for summary judgment filed by UMH, the response filed by Brown, and the reply by UMH establishes that questions of fact did exist about the role of the Personnel Policies Manual in giving rise to an express or implied contract of employment. The record must be read in the light most favorable to Brown, who opposed the motion. If this is done, the intent of the parties through the distribution of the Personnel Policies Manual presented a question of fact that needed to be submitted to a jury. Addition of the employment-at-will language after Brown’s employment presented questions about its applicability to Brown. The district court did not err in denying summary judgment.
We next consider the district court’s denial of defendant’s motions for a directed verdict and judgment notwithstanding the verdict. At trial, the Personnel Policies Manual was presented as well as the amendment that occurred specifying that employment with UMH is “at will” and that employees may be terminated by UMH without cause. The provision specifically stated that no commitment was made for a specific term of employment. This amendment was accompanied by the memorandum that specifically explained that UMH was an at-will employer and did not guarantee a length of employment to its employees.
The written personnel policy alone is not sufficient to establish an implied contract of employment of a term of specific duration. However, Brown argues that the manual, in addition to testimony that occurred at trial, established that an implied contract could be found by the jury. The testimony he refers to is that of Weibel: that the philosophy of UMH was “to be fair to the employees,” that a mistake had been made in calculating Brown’s leave of absence, and that Brown had been mistakenly placed on leave of absence without pay instead of being placed on extended illness leave with pay until the time he had accumulated under that benefit had been used.
The evidence offered by Brown is not extensive. The Personnel Policies Manual contains specific provisions for terminating an employee, including a list of policy violations that are grounds for termination. Yet this manual contains two statements stressing that employment with UMH is “at will.” Brown presents no evidence of additional conversations or statements made to him indicating that the terms of the Personnel Policies Manual were meant to be an implied contract of employment requiring his continued employment unless dismissed for cause. Brown instead relies upon the trial testimony of UMH supervisory employees indicating their intent to treat employees fairly and to follow the rules.
Although the facts and inferences reasonably to be drawn from the evidence in favor of Brown are not strong, it is possible that reasonable minds could reach different conclusions based upon the evidence about whether a motion for directed verdict should be granted or denied. In such a case, the evidence must be submitted to the jury. Only when no evidence is presented on an issue, or when the evidence presented is undisputed and is such that the minds of reasonable persons cannot draw differing inferences and arrive at opposing conclusions with reason and justice, does the matter become a question of law for the court’s determination. Therefore, the district court did not err in denying the motion for directed verdict concerning the issue of an implied contract of employment or in denying the motion for judgment notwithstanding the verdict.
Finally, UMH argues that the verdict was not supported by substantial evidence or was contrary to the evidence. The evidence must be considered in the light most favorable to the prevailing party, Brown. The manual asserts that the employment was at the will of the employer but provides for termination upon the happening of specific events. The philosophy of the employer suggests a desire to treat employees fairly and under the philosophy of Christian living that may go beyond the normal employment relationship. Since we find that these circumstances are adequate to withstand a motion for directed verdict and a motion for judgment notwithstanding the verdict, it follows that such evidence is also sufficient to support the jury’s verdict.
After arguing at length that the district court erred in submitting the breach of contract issue to the jury, UMH asserts that even if an implied contract existed, no evidence was presented to establish that UMH breached the contract by not returning Brown to the “first available, same, or similar position” upon his return from an approved 90-day leave of absence. In support of this argument, UMH indicates that it is indisputable that, during the three months Brown was absent, UMH had to find someone to fill his position to secure the safety of its residents. The manual expressly provides that, because of the expense of obtaining temporary replacements or the hardship on the facility caused by leaving a position open, a position may be filled during a leave of absence. UMH further argues that Brown was offered the only security position available at the time, although part time, which complied with the provisions of the policy manual.
Brown presented evidence that other full-time positions became available after his return from his leave of absence and prior to trial, but he was never notified of any of these positions. Although some question existed about his ability to fulfill some of the positions that became available, such as floor finisher and housekeeper, the district court did not err in submitting to the jury the question of whether UMH complied with the provisions of its manual in making these positions available to Brown upon his return from leave.
UMH also argues thát Brown was discharged for cause because uncontroverted evidence established that he was scheduled to work May 2 and 3, 1987. The manual provides that two unscheduled absences from work are grounds for termination, and, UMH argues, since Brown did not report for work as scheduled and expected, UMH was justified in discharging him for cause.
Brown’s evidence concerning the acceptance of employment for the part-time security position contradicts that of UMH. Brown specifically stated that he refused the offer of employment because he could not afford to work for those earnings. Whether an implied contract of employment existed is a classic question of fact that had to be submitted to the jury. Therefore, the district court did not err in submitting the questions concerning the discharge of Brown to the jury for determination.
The defendant next argues that the district court abused its discretion in denying defendant’s request to amend the pretrial order to assert the defenses of res judicata and collateral estoppel. On March 26, 1990, the day before trial was to begin, UMH filed a motion for leave to modify the pretrial order to allow UMH to assert the affirmative defenses of res judicata and/or collateral estoppel as a bar to plaintiffs claims. The matter was considered by the court at a hearing the afternoon before trial began. The court ruled the next morning, just prior to the trial, that the motion to modify the pretrial order would be denied. The court ruled first that the motion was untimely, was minimally briefed, and gave no time for plaintiff to respond. The court further ruled that, even if the motion had been timely, plaintiff s claim was not barred by res judicata or collateral estoppel. We first address the district court’s ruling that the motion was untimely.
Pursuant to K.S.A. 1990 Supp. 60-216, a trial court may conduct a pretrial conference to simplify the issues, determine the necessity of amending the pleadings, consider the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof, and review other matters that may aid in the disposition of the action. Following such a conference, the court, in its discretion, or if requested by the parties, shall make an order reciting the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties that concern any of the matters considered and that limit issues for trial to those not disposed of by admissions or agreements. When such an order is entered, it controls the subsequent course of the action “unless modified at the trial to prevent manifest injustice.” K.S.A. 1990 Supp. 60-216(a). The provisions of 60-216 give the trial court great discretionary power that is abused only when no reasonable person would take the view adopted by the trial court. The exercise of judicial discretion requires the judge to have proper regard for what is just and fair under the existing circumstances and requires that he or she not act in an arbitrary fashion or unreasonable manner. State Farm. Fire & Cas. Co. v. Liggett, 236 Kan. 120, 124-25, 689 P.2d 1187 (1984).
UMH argues that the district court abused its discretion in failing to allow amendment of the pretrial order because it did not comply with legitimate objectives of securing the just, speedy, and inexpensive determination of the action. In support of its argument, UMH points out that, in Commercial Credit Corporation v. Harris, 212 Kan. 310, 510 P.2d 1322 (1973), the trial court did not abuse its discretion in allowing a defendant to assert an affirmative defense as late as the morning of trial. This court noted that no error will lie in ruling upon the exercise of the discretion of the trial court unless such discretion is abused. This court pointed out that plaintiff could have requested a continuance if it was unprepared to defend against defendant’s allegation of misrepresentation raised in the late defense. If a request for a continuance was denied, then the appellate court would review whether the trial court abused its discretion due to a showing of surprise and lack of time to prepare. 212 Kan. at 312-13.
In response, Brown directs this court to Hoover Equipment Co. v. Smith, 198 Kan. 127, 132, 422 P.2d 914 (1967), discussing the trial court’s exercise of discretion in allowing an amendment to a pleading. Plaintiff sought to amend its petition to state an additional claim after its motion for summary judgment had been denied and before a pretrial conference was held. Pursuant to K.S.A. 60-215(a) and (d), application to amend a pleading is not permitted as a matter of course after a responsive pleading is served but may be granted by leave of the court. Here, permission to amend was refused. This court noted that the trial court “is given wide latitude and discretion in permitting or refusing amendments of pleadings in the interests of justice. In the absence of a clear abuse of discretion the order of the trial court should be approved.” 198 Kan. at 133.
A review of the record here indicates that the district court did not act in an arbitrary fashion or unreasonable manner. The motion for leave to modify the pretrial order was filed the after noon before trial was scheduled to begin. UMH asserts that Brown had notice of this potential claim because UMH had previously argued that the effect of KDHR’s rulings was adverse to Brown because he had failed to exhaust his administrative remedies for unemployment compensation. Yet UMH admittedly did not present its claim of res judicata or collateral estoppel until just prior to the beginning of trial.
The record indicates that UMH had ample opportunity to include these defenses prior to the afternoon before trial. We find that the district court did not abuse its discretion in refusing to allow inclusion of these defenses at that late date.
The final issue raised by defendant is whether the district court erred in refusing to grant a remittitur. The jury awarded a verdict of $35,000 in damages. In its motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, UMH asked the district court to reduce the jury verdict to be in conformity with applicable Kansas law. UMH argues that the damages awarded here exceed those appropriate for recovery in a breach of employment contract case, where a party is entitled to recover only his actual damages less those he might have reasonably prevented. Lines v. City of Topeka, 223 Kan. 772, 577 P.2d 42 (1978). The court noted:
“In a case involving wrongful discharge from employment the proper measure of damages is the amount the salary for the period would have been less the amount plaintiff earned, or which with reasonable diligence he could have earned, had he applied the same ability and devotion in a comparable job.” 223 Kan. at 781.
UMH points out that Brown was 60 years old at the time of his discharge and earned $4.38 per hour. A full-time job would involve 40 hours per week; the part-time security guard position involved 16 hours per week. Using the damages calculation set out in Lines, UMH argues that Brown’s damages should have been calculated by multiplying the hourly rate of $4.38 times 24 hours per week (which is 40 full-time hours less the 16 part-time hours Brown could have worked at UMH) times 52 weeks per year. This results in loss of a yearly income of approximately $5,460. Because Brown retired when he was 62 years old, the amount he could have earned would be multiplied by two years, or approximately $10,920. UMH argues that this, not the $35,000 verdict, is the appropriate amount of damages that Brown should have been awarded. Although a jury’s determination of damages is ordinarily held in high esteem, the damages cannot be too conjectural and speculative to form a sound basis for measurement. Johnson v. Baker, 11 Kan. App. 2d 274, 276, 719 P.2d 752 (1986). Yet damages do not have to be established with absolute certainty. 11 Kan. App. 2d at 277.
Brown counters that he could have worked until he was 70 years old and would have earned about $10,000 per year. Therefore, he could have earned $100,000 before mandatory retirement, not including retirement benefits that he lost due to his termination. Brown argues that the party injured in a breach of contract case is entitled to compensation for injuries sustained and “is to be placed, so far as it can be done by a money award, in the same position he would have occupied if the contract had been performed.” Steel v. Eagle, 207 Kan. 146, 151, 483 P.2d 1063 (1971).
Brown argues that the award here was barely adequate. He had earned $4.38 per hour and worked 40 hours a week with frequent overtime, earning about $10,000 per year. He insists in his brief that he would have worked at UMH as long as he could have, presumably until he had to retire at age 70. At trial he testified that he would have stayed at UMH until he was 65.
In Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, 321, 507 P.2d 288 (1973), this court stated the rule on remittitur as follows:
“Where a verdict is so excessive and out of proportion to the damages actually sustained as to shock the conscience of the court, and the verdict has been approved and judgment entered thereon, and where no passion or prejudice has been shown other than the size of the verdict itself, this court may, on appropriate occasions, tentatively affirm the judgment on condition that the plaintiff accept a judgment in a somewhat lesser amount, reserving the right to reverse the judgment in case the plaintiff does not accept the smaller sum. [Citation omitted.] In Slocum v. Kansas Power & Light Co., 190 Kan. 747, 749, 378 P.2d 51, one of our later cases on the subject, we said this court would not require the plaintiff to accept a remittitur or else grant a new trial unless, under the facts of the particular case, the judgment was so large that it could not in reason be allowed to stand.”
The award of $35,000 in damages does not shock the conscience of the court in this case. Using the figures suggested by UMH, if Brown had retired at age 62 he would have incurred lost wages of approximately $11,000. If he had stayed on until age 65, which he indicated at trial, he would have incurred lost wages of approximately $27,000. If he had continued his employment until mandatory retirement at age 70, he would have lost approximately $55,000 in wages. These figures contain no consideration for inclusion of an amount to cover the loss of retirement benefits, health benefits, and other benefits he was entitled to receive in connection with his job. We find no error in the district court’s refusal to grant a remittitur in this action.
Cross-Appeal
We next consider Brown’s cross-appeal. Brown asserts that the district court failed to instruct the jury properly on the issue of retaliatory discharge. The challenged language is contained in the third paragraph of Instruction No. 4. The first paragraph informed the jury that plaintiff s employment was terminable at the will of either party and could be terminated at any time as long as the reason for termination was not unlawful and did not violate the terms of an agreed-upon personnel policy. The second paragraph informed the jury that an employer could lawfully terminate an employee who failed or refused to perform the duties of his employment even if reasons for the refusal were based upon a physical incapacity that arose out of and in the course of employment with the employer, subject to the terms of an agreed-upon personnel policy. The third paragraph of the instruction, to which Brown objected, provides as follows: “You are further instructed that it is unlawful for an employer to terminate an employee if the act of termination by the employer toas motivated or caused solely by the employer’s desire to retaliate against the employee for his intention of pursuing a claim for workmen’s compensation benefits.” (Emphasis added.)
Although he did not submit a proposed instruction in writing, as part of his objection Brown argued that this last paragraph should read as follows: “You are further instructed that it is unlawful for an employer to terminate an employee if the act of termination by the employer was primarily motivated by em ployer’s desires to retaliate against the employee for his intention of pursuing a claim for workmen’s compensation benefits.” (Emphasis added.) Brown could give the court no authority to support the objection, which the court overruled. In his cross-appeal, Brown argues that the provisions of PIK Civ. 2d 18.54A (1990 Supp.), concerning wrongful discharge/retaliatory discharge, are more favorable to plaintiff than the instruction given by the district court. The proposed instruction, which plaintiff asserts was published after this case was tried, provides as follows:
“An employee may recover for retaliatory discharge if the facts and circumstances prove that the employee’s termination was based on retaliation. Retaliatory discharge may be proved by a showing that the employee was terminated because:
2. The employee exercised a statutory right by [pursuing a claim for workers compensation]. ”
In support of his argument, Brown directs this court to Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057 (5th Cir. 1981), which approved the use of an instruction that was very similar to that requested by Brown at the instructions conference. The claim for retaliatory discharge in Smith arose from general maritime law. In providing guidance to the district courts within the circuit, the Fifth Circuit noted that, to prevail on the retaliatory discharge claim, the seaman had to affirmatively establish that the employer’s decision “was motivated in substantial part by the knowledge that the seaman either intends to file, or has already filed, a personal injury action against the employer.” 653 F.2d at 1063-64. Brown does not direct this court to any Kansas cases discussing the claim of retaliatory discharge to support his argument that the district court erred in instructing the jury that the act of termination was motivated or caused solely by the employer’s desire to retaliate.
UMH directs this court to the decision in Pilcher, 14 Kan. App. 2d 206, arguing that the instructions in any action are to be considered together and read as a whole and, where they fairly instruct the jury on the laws governing the case, error in an isolated instruction may be disregarded as harmless. Therefore, if the instructions are substantially correct, they will be approved on appeal because the jury could not reasonably have been misled by them. 14 Kan. App. 2d at 214.
UMH argues that the third paragraph of Instruction No. 4 is virtually identical to PIK Civ. 2d 18.54A (1990 Supp.) except for the use of the term “solely” rather than “based on.” Both instructions place the burden on plaintiff to establish that the employer discharged the employee in retaliation for filing or intending to file a workers compensation claim. This causal relationship must be established between the exercise of the employee’s right and his firing by the employer. The instruction was substantially correct because, regardless of whether the term “solely” was included, the jury was still charged with finding that plaintiffs discharge was caused by his intention to pursue a claim for workers compensation benefits. Based upon the evidence presented, the jury found that no retaliatory discharge had occurred. In addition, UMH argues that the evidence here did not support a finding of retaliatory discharge because, when asked if he was fired for filing a workers compensation claim, Brown answered, “I don’t know why I was fired, sir, really.”
We find merit in UMH’s argument. The cases in Kansas that have discussed retaliatory discharge for the filing of a workers compensation claim do not state that this must be the sole ground for termination. This claim was first recognized in Murphy v. City of Topeka, 6 Kan. App. 2d 488. The court found that plaintiff alleged a valid cause of action for retaliatory discharge but refused to allow punitive damages because this was the first time the cause of action was recognized in Kansas. 6 Kan. App. 2d at 497. In discussing the claim, the court gives no suggestion that the sole basis for the termination must be retaliation for the filing of a workers compensation claim.
Brown has the burden to establish that he was discharged for filing a workers compensation claim. Under the facts of this case, Brown was discharged because he either agreed to work the weekend and failed to do so, as alleged by UMH, or for filing a workers compensation claim, as alleged by Brown. Therefore, Brown’s burden to establish the latter was the same whether it was “motivated or caused solely,” “primarily motivated by,” or “based on” the employer’s desire to retaliate against him. We agree with UMH that, in either case, the jury was required to find that Brown’s discharge was due to his filing a claim for workers compensation. Although PIK Civ. 2d 18.54A (1990 Supp.) is preferred, the instruction given by the district court was not erroneous based on the facts of this case.
Because of the foregoing decision, we need not consider whether the district court erred in refusing to instruct the jury on mental anguish as an element of damages.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
HOLMES, C.J.:
Professional Anesthesia, Inc., appeals from an order of the district court denying its cross-claim for indemnification from Wendell P. Gafford. We affirm.
The facts necessary for a determination of the issues in this appeal are not in dispute and arise out of the underlying medical malpractice judgment in Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823 (1989). Shawn A. Leiker died as a result of the negligent administration of anesthesia by Wendell P. Gafford, a certified registered nurse anesthetist employed by Professional Anesthesia. In the underlying case (Gafford Z), the action was originally filed by James S. Leiker in his representative capacity as the husband and next friend of Shawn A. Leiker, and in his individual capacity. While the proceedings were pending in district court, Shawn A. Leiker died and the pleadings were amended to include James S. Leiker as Special Administrator of Shawn’s estate and as representative of the minor children. The defendants in Gafford I were Wendell P. Gafford; Professional Anesthesia, Inc., a corporation wholly owned and controlled by defendant Gafford; George W. Marshall, M.D., the attending physician; his professional corporation; and Abbott Laboratories. Professional Anesthesia filed a cross-claim for indemnification against Gafford. The trial court deferred any action on the cross-claim until final resolution of the action between Leiker and the defendants. The jury determined that Gafford was 90% at fault and Marshall was 10% at fault. The judgment, in excess of two million dollars, was entered against Gafford, Marshall, and their respective corporations. The liability of Professional Anesthesia was predicated solely upon its vicarious liability as the employer of Gafford under the doctrine of respondeat superior.
Following our decision in Gafford I, the trial court considered the cross-claim of Professional Anesthesia against Gafford in which the corporation sought indemnification for any damages it might be required to pay to Leiker and for its attorney fees incurred in defending the underlying action. As Gafford apparently had no intention of defending against the cross-claim, Fletcher Bell, as Kansas Commissioner of Insurance, intervened to represent the interests of the Kansas Health Care Stabilization Fund (Fund). The trial court denied the cross-claim and Professional Anesthesia has appealed. Ronald Todd, the successor to Fletcher Bell, has now been substituted as the intervenor/appellee on behalf of the Fund. Additional facts will be considered as they become relevant to the issues on appeal. The case was transferred from the Kansas Court of Appeals pursuant to K.S.A. 20-3018(c).
Professional Anesthesia raises two issues on appeal:
(1) whether Professional Anesthesia can be allowed to seek indemnification from codefendant Wendell P. Gafford; and
(2) whether indemnification of Professional Anesthesia can include attorney fees for defense of the corporation.
Although phrased as two issues, the initial determination for this court is whether, when an employer has been found vicariously liable in a negligence action under the doctrine of respondeat superior, an employer may recover attorney fees incurred in the defense of the underlying action when the employer will not be required to pay any part of the judgment rendered against the employee tortfeasor.
In the instant case, it is asserted by the intervenor and not controverted by Professional Anesthesia that the entire judgment against Gafford and Professional Anesthesia has been or will be paid by Gafford’s malpractice insurance carrier and the Fund. Therefore, even though a judgment was rendered against Professional Anesthesia on the theory of respondeat superior it will not be required to pay any part of the judgment.
We pause to note that the Kansas Legislature recently passed legislation that eliminates vicarious tort liability in medical malpractice cases involving multiple health care providers who are qualified for coverage by the Kansas Health Care Stabilization Fund. See K.S.A. 1990 Supp. 40-3403(h). That legislation applies only to claims filed after July 1, 1986, and therefore has no application to this action, which arose prior to that time.
In the recent case of Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991), wherein we held K.S.A. 1990 Supp: 40-3403(h) to be constitutional, we explained the doctrine of respondeat superior and vicarious liability as follows:
“[T]he common-law doctrine of vicarious liability has long been a part of Kansas negligence law. The doctrine was succinctly explained in Simpson v. Townsley, 283 F.2d 743 (10th Cir. 1960), where the court stated:
‘Under the law of Kansas, there is no distinction between the liability of a principal for the tortious acts of his agents and the liability of a master for the tortious acts of his servant. In both relationships, the liability is grounded upon the doctrine of respondeat superior. Under that doctrine, the liability of the master to a third person for injuries inflicted by a servant in the course of his employment is derivative and secondary and that of the servant is primary.
‘Moreover, under the law of Kansas, while a master whose liability is predicated solely on the doctrine of respondeat superior and not on any wrong on his part may be sued jointly with his servant for a tort committed by the latter within the scope of his employment, they are not joint tortfeasors in the sense they are equal wrongdoers. Where a master becomes liable to a third person for personal injuries caused solely by the act of his servant, under the doctrine of respondeat superior, and is required to respond to such third person in damages by reason of such liability, he will be subrogated to the rights of the injured third person and may recover over from his servant who is primarily liable.’ 283 F.2d at 746.
“The modern theory underlying the common-law doctrine has been described by one authority as follows:
‘What has emerged as the modern justification for vicarious liability is a rule of policy, a deliberate allocation of a risk. The losses caused by the torts of employees, which as a practical matter are sure to occur in the conduct of the employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing business. They are placed upon the employer because, having engaged in an enterprise, which will on the basis of all past experience involve harm to others through the torts of employees, and sought to profit by it, it is just that he, rather than the innocent injured plaintiff, should bear them; and because he is better able to absorb them, and to distribute them, through prices, rates or liability insurance, to the public, and so to shift them to society, to the community at large.’ Prosser and Keaton on Torts § 69, pp. 500-01 (5th ed. 1984).
As a practical matter vicarious liability was recognized as a method of providing a source of recovery for the innocent victim of another’s negligence when the actual tortfeasor was unable to respond financially for the damage caused.” 248 Kan. at 829-30.
In the present case, Professional Anesthesia seeks indemnification not for any money it has paid to Leiker on the judgment but solely for its attorney fees incurred in defending the underlying action. Indemnification is a creature of equity and has its origin in the common law: “The doctrinal basis for non-contractual indemnity among tortfeasors is unjust enrichment. The right is ‘restitutional in nature, and is based on inherent injustice.’ ” United Air Lines v. Wiener, 335 F.2d 379, 398-99 (9th Cir. 1964) (quoting Davis, Indemnity Between Negligent Tortfeasors; a Proposed Rationale, 37 Iowa L. Rev. 517, 538 [1952]).
In other words, the basis for indemnity is equity and restitution. 41 Am. Jur. 2d, Indemnity § 1 provides:
“The word ‘indemnity’ is defined by lexicographers to mean ‘security or protection against hurt or loss or damage.’ The word appears to be used ... in the sense of compensating for actual damage. ... In other words, indemnity is a right which inures to a person who has discharged a duty which is owed by him but which, as between himself and another, should have been discharged by the other.” (Emphasis added.)
See Restatement of Restitution § 86 (1936); Restatement (Second) of Torts § 886R (1977). In addition, Restatement (Second) of Agency § 401, comment d (1957) provides, in relevant part: “Thus a servant who, while acting within the scope of employment, negligently injures a third person, although personally liable to such person, is also subject to liability to the principal if the principal is thereby required to pay damages.” (Emphasis added.)
41 Am. Jur. 2d, Indemnity § 32, explains that the necessity for actual damage to the indemnitee is a condition precedent to the liability of the indemnitor:
“A contract of indemnity implied by law in favor of one who is legally liable for the negligence of another has been held to cover loss or damage and not merely liability. Therefore, ... a cause of action for indemnity based on tort does not accrue until the indemnitee has suffered an actual loss.” (Emphasis added.)
Simply because one has been found liable for an obligation of another, it does not necessarily follow that one is entitled to indemnification. A condition precedent to indemnification is that the indemnitee must actually have paid on the obligation for which he seeks indemnification. Justice Cardozos in Schubert v. Schubert Wagon Co., 249 N.Y. 253, 164 N.E. 42 (1928), reasoned that where a master is found, liable for the act of his servant, though not personally at fault, he may recover from the servant only after he has paid the loss. The master is not entitled to recover from the servant upon the mere attachment of liability: “Loss there must be, not merely liability, before indemnity is due. [Citations omitted.] The servant shall respond when the master shall have paid.” Schubert, 249 N.Y. at 257-58.
Similarly, the Montana Supreme Court held that a party is not entitled to indemnity until payment has been made. “It follows that the right of indemnity does not arise . . . until payment has been made. This is because, if the employee . . . paid the judgment, the employer . . . never did have a right to be indemnified.” St. Paul Fire Ins. Co. v. Thompson, 152 Mont. 396, 403, 451 P.2d 98 (1969). As authority for this proposition, the Montana court relied upon Gaffner v. Johnson, 39 Wash. 437, 438-39, 81 Pac. 859 (1905), wherein the Washington court stated: “No cause of action accrued to the master, as against the servant, until the master was compelled to pay the party injured by the act of the servant. 20 Am. & Eng. Ency. Law (2d ed.), 51, 52.” (Emphasis added.)
This principle is also recognized in Kansas. In Missouri Pacific Railroad Co. v. City of Topeka, 213 Kan. 658, 662, 518 P.2d 372 (1974), the Kansas Supreme Court reiterated when the right to indemnification accrues: “[I]t is a right which inures to a person who has fulfilled an obligation owed by him but which as between himself and another person should have been discharged by the other.” (Emphasis added.)
Counsel in the present case candidly concede that they have found no case which allows indemnification for attorney fees and expenses incurred by the employer when the employee tortfeasor has fully satisfied the judgment rendered against both the employee and the employer.
Both Professional Anesthesia and intervenor cite to Kansas cases that address the issues of indemnification and attorney fees. Professional Anesthesia relies upon Simpson v. Townsley, 283 F.2d 743 (10th Cir. 1960), and Fenly v. Revell, 170 Kan. 705, 228 P.2d 905 (1951), for the proposition that Kansas law recognizes the doctrine of implied indemnity. However, both of those cases adhere to the rule that the right to indemnity does not accrue until the master “is required to respond to such third person in damages.” Simpson, 283 F.2d at 746. See Fenly, 170 Kan. at 707-08.
Other cases relied upon by Professional Anesthesia are clearly distinguishable on their facts and do not support appellant’s position. See Prickett v. Hawkeye-Security Insurance Company, 282 F.2d 294 (10th Cir. 1960) (determination of liability between two insurance carriers in automobile accident damage action); City of Fort Scott v. Penn Lubric Oil Co., 122 Kan. 369, 252 Pac. 268 (1927) (actual damages paid to injured third party in a sidewalk fall case); Ireland v. Bank, 103 Kan. 618, 176 Pac. 103 (1918) (action on a contractual indemnity bond); City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285 (1917) (contractual liability under a surety bond); Bourke v. Spaight, 80 Kan. 387, 102 Pac. 253 (1909) (action on a negotiable instrument). None of the cited cases hold that in an implied indemnity action wherein the employer’s liability was based upon respondeat superior, an employer may recover attorney fees from the employee without having made any payment to the third party damaged by the employee’s negligence.
In the case now before this court, Professional Anesthesia has not “been compelled to pay any third person” and the judgment will be satisfied in full by Gafford’s malpractice carrier and the Fund. Professional Anesthesia has not discharged any obligation to Leiker on the underlying judgment, and therefore, Professional Anesthesia is not entitled to bring this action for indemnification. Although indemnification, in an appropriate case, may include reasonable attorney fees incurred in the underlying action, such fees alone do not constitute the requisite damages necessary to support an action for implied indemnity, nor do such fees equate to payment on an obligation to a third person. More specifically, the attorney fees incurred by Professional Anesthesia are not a payment to Leiker on the underlying judgment. The authorities relied upon by Professional Anesthesia only address attorney fees as part of the amount recoverable once indemnity is allowed. Here, Professional Anesthesia, not having paid any of the underlying judgment, is not entitled to indemnity, and therefore, the cases it relies upon are not persuasive. Generally, in Kansas, absent an applicable Supreme Court rule or express contractual or statutory authority to the contrary, parties bear the cost of their own attorney fees. Chetopa State Bancshares, Inc. v. Fox, 6 Kan. App. 2d 326, 333, 628 P.2d 249, rev. denied 229 Kan. 669 (1981).
We conclude that the overwhelming majority, if not all, of the authorities require that an employer seeking indemnification for damages suffered under the doctrine of respondeat superior must first have incurred such damages by way of actual payment to the third-party victim. Absent any such payment, the common-law right to implied indemnity does not apply.
In view of the foregoing, other issues and arguments raised by industrious and able counsel need not be addressed.
The judgment is affirmed.
Six, J., not participating.
Terry L. Bullock, District Judge, assigned.
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The opinion of the court was delivered by
Herd, J.:
This is a post-divorce action by Goldie Cyr to enforce child support and alimony judgments. The appellant, Darrell Cyr, contends the judgments are void due to the passage of time.
The facts are not in dispute. Goldie and Darrell Cyr were divorced in 1964. Goldie was granted custody of the children and Darrell was ordered to pay $35 a week, commencing April 13, 1964, for child support, and $2,500 in alimony, at $25 a month, beginning April 27, 1964. The court order to pay alimony expired in July 1972.
The last execution to collect past due child support was issued on July 22, 1974, and there have been no other executions, formal hearings in aid of execution, or wage withholding proceedings.
On March 6, 1979, and January 24, 1980, Goldie filed accusations and affidavits of contempt against Darrell for failure to pay support. A hearing was held and on September 22, 1980, the district court determined Darrell was $2,550 in arrears on the alimony judgment and $14,653.74 in arrears on the child support payments and entered judgment thereon from which no appeal was taken. Darrell was ordered to make $25 weekly payments on the $17,203.74 arrearage.
On May 2, 1981, the Cyrs’ youngest child reached majority. Goldie Cyr filed a third motion for'contempt against Darrell for failure to pay support on July 1, 1981. Thereafter, on November 20, 1981, Goldie’s motion for contempt was withdrawn upon Darrell’s agreement to pay $100 a month on the arrearage to be determined by the court order. On November 3, 1982, the parties announced a settlement to . the court in which Darrell acknowledged an arrearage of $16,375.74 together with $6,667.59 in accrued interest. The court ordered that those sums constituted a judgment against the defendant. No appeal was taken from this order. On rehearing, on November 18, 1982, the court vacated the November 3, 1982, order and reaffirmed the judgment of September 22, 1980.
On March 1, 1983, Goldie filed an accusation and affidavit in contempt against Darrell for failure to pay $100 a month on the arrearage as ordered November 20, 1981. Goldie withdrew the motion for contempt upon Darrell’s agreement to pay $100 a month until the November 20, 1981, order was brought up to date. Darrell failed to make the payments, however, and was found guilty of indirect contempt for nonpayment of support on April 13, 1987. He was sentenced to 30 days in jail but placed on probation upon agreement to pay arrearage of $13,015.46 plus interest. Goldie was granted judgment against Darrell in the amount of $13,015.46, on April 13, 1987. No appeal was taken from this order.
Darrell failed to make the $100 payments and Goldie subsequently filed a motion to revoke probation. A hearing officer found the April 13, 1987, order to pay $100 a month was res judicata on the issues of child support and alimony, and, in addition, constituted a new judgment. Upon appeal of the hearing officer’s report, the district court determined there could be no new judgment after May 2, 1981, for past due child support and no new judgment for past due alimony after July 1972, and, therefore, the arrearage amount determined by the court on April 13, 1987, did not constitute a new judgment. The district court further ruled that Goldie’s accusations in contempt did not constitute executions pursuant to K.S.A. 60-2401 or garnishment or income withholding proceedings pursuant to K.S.A. 1990 Supp. 60-2403 but were proceedings in aid of execution pursuant to 60-2403, thereby keeping alive the judgments for past due support. Goldie and Darrell each appealed the district court ruling to the Court of Appeals, which in an unpublished opinion filed December 28, 1990, affirmed the trial court finding that the contempt actions kept the judgments for past due support alive under 60-2403 but disagreed with the trial court’s finding that the April 13, 1987, calculation is not a new judgment. Darrell sought and was granted review by this court.
The first issue we address is whether an accusation in contempt for failure to comply with an order to pay child support and alimony is a proceeding in aid of execution pursuant to K.S.A. 1990 Supp. 60-2403.
K.S.A. 1990 Supp. 60-2403(a) provides in part:
“If a renewal affidavit is not filed or if execution, including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment, . . . the judgment . . . shall become dormant.”
A dormant judgment may be revived within two years of its dormancy if the judgment creditor files a motion for revivor and files a request for the immediate issuance of an execution thereon. K.S.A. 1990 Supp. 60-2404. Once a judgment grows dormant, however, and is not revived pursuant to K.S.A. 1990 Supp. 60-2404, it becomes absolutely extinguished and unenforceable. Long v. Brooks, 6 Kan. App. 2d 963, 966, 636 P.2d 242 (1981).
Darrell Cyr alleges Goldie Cyr’s contempt accusations did not keep alive the support judgments because the contempt proceedings were not proceedings in aid of execution. He contends the purpose of a contempt proceeding is to force compliance with a court order, whereas the purpose of a proceeding in aid of execution is to supply information to aid in collecting a money judgment. Thus, he asserts the alimony judgment became dormant in July 1984 and was extinguished two years later, and the child support judgments became void in May 1988, seven years after the youngest child reached majority.
Goldie Cyr contends the September 1980 arrearage judgment did not become dormant because the purpose of the numerous contempt proceedings was to give effect to the previous and past due support orders of the district court. Therefore, Goldie asserts, the contempt proceedings constituted proceedings in aid of ex ecution within the meaning of K.S.A. 1990 Supp. 60-2403 and K.S.A. 1990 Supp. 60-2419.
Interpretation of a statute is a question of law and it is a function of this court to interpret a statute to give it the effect intended by the legislature. NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989). The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs. Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989). In determining legislative intent, we are not limited to consideration of the language used in the statute, but may look at the historical background of the enactment, thé circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. In re Petition of City of Moran, 238 Kan. 513, 520, 713 P.2d 451 (1986); Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984).
K.S.A. 1990 Supp. 60-2403(a) states that a judgment becomes dormant after five years if a renewal affidavit is not filed or if an execution, “including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution,” is not issued. Fleming v. Etherington, 227 Kan. 795, 798, 610 P.2d 592 (1980).
K.S.A. 1990 Supp. 60-2419 establishes the procedure of a proceeding in aid of execution. Under the statute, a judgment creditor is entitled to a court order requiring the judgment debtor to appear before the judge or hearing officer and answer concerning his property whenever an execution against the judgment debtor has been returned unsatisfied. Any judgment debtor who fails to appear before the court as ordered shall be held guilty of contempt. K.S.A. 1990 Supp. 60-2419. The purpose of the proceeding in aid of execution is remedial in that it assists the judgment creditor in obtaining satisfaction of a prior judgment. Fleming v. Etherington, 227 Kan. at 798; Threadgill v. Beard, 225 Kan. 296, 302, 590 P.2d 1021 (1979).
Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding. Edmiston v. First Nat’l Bank of Holcomb, 242 Kan. 13, 15, 744 P.2d 829 (1987). A proceeding in civil contempt is remedial in nature, designed to advance the private right of a litigant won by court order. Campbell v. Campbell, 198 Kan. 192, 193, 422 P.2d 941 (1967). Any penalty inflicted for contempt, however, is intended to be coercive and relief can be achieved only by compliance with the order. 198 Kan. 193-94; Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 109, 269 P.2d 435 (1954). The power to punish for contempt of court does not arise from legislative action, but is inherent in the court itself. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983). The procedure for holding a party in indirect contempt, however, is set forth by statute and must be strictly construed against the movant. K.S.A. 20-1204a; Edmiston v. First Nat’l Bank of Holcomb, 242 Kan. at 16.
This court has long held that court orders for child support are enforceable by proceedings in indirect contempt. Johnson v. Johnson, 148 Kan. 682, 685-86, 84 P.2d 888 (1938); Barton v. Barton, 99 Kan. 727, 729-30, 163 Pac. 179 (1917); In re Groves, 83 Kan. 238, 239, 109 Pac. 1087 (1910). In Crumpacker v. Crumpacker, 239 Kan. 183, 185, 718 P.2d 295 (1986), we recognized that the 1985 legislative enactment of Senate Bill 51, relating to the enforcement of support obligations, provided for the enforcement of support obligations through civil and criminal proceedings, including contempt, income withholding, and the establishment of liens. Thus, we determined past-due installments of child support could be collected by contempt proceedings even following the child’s attainment of majority. 239 Kan. at 185.
In 1985, the legislature amended 60-2403 to include income withholding proceedings as a form of execution in which to keep support judgments alive. L. 1985, ch. 115, § 54. At that time and at no time since the 1985 amendment has the legislature undertaken to explicitly include contempt proceedings as a specific proceeding designated to keep judgments from becoming dormant. L. 1988, ch. 218, § 2; L. 1990, ch. 207, § 2. The failure to explicitly include contempt proceedings within the dormancy statute is indicative of a legislative intent to require more to keep a judgment alive.
We also recognize, however, that in certain instances words, phrases, or clauses must be omitted or inserted in a statute to give effect to the legislature’s intention. Lakeside Village Improvement Dist. v. Jefferson County, 237 Kan. 106, 114, 697 P.2d 1286 (1985). The primary purpose of Senate Bill 51, which amended 60-2403 to include income withholding proceedings as a form of execution to keep judgments alive, was to provide aid in the enforcement and collection of child support judgments. See Note, Kansas Enacts New Provisions For Child Support Enforcement — Mandatory Wage Withholding, 25 Washburn L. J., 91, 105 (1985).
Contempt proceedings are a regularly utilized and approved method of enforcing child support judgments. Crumpacker, 239 Kan. at 185. The purpose of a contempt proceeding is to force compliance with a court order. The purpose of an execution, garnishment, income withholding proceeding, and, proceeding in aid of execution is the same, that is, to collect on a favorable money judgment. Thus, a contempt proceeding to enforce support orders has the same remedial purpose as those proceedings specifically designated in K.S.A. 1990 Supp. 60-2403. Nevertheless, execution of a judgment and the revivor thereof are creatures of statute. Citations for contempt of court are not one of those proceedings enumerated in the statute for keeping a judgment alive; therefore, it cannot have such effect.
Although we do not agree with the district court that a contempt proceeding constitutes a proceeding in aid of execution, we uphold the conclusion of the lower court that the past due support judgments are alive. Where the district court reaches the correct result based upon the wrong reason, this court will affirm the district court. Collins v. Heavener Properties, Inc., 245 Kan. 623, 633, 783 P.2d 883 (1989).
As previously stated, the district court granted judgment for the arrearage in child support and alimony September 22, 1980. No appeal was taken from the judgment. On November 3, 1982, the district court awarded judgment to Goldie Cyr for the arrearage plus interest. No appeal was taken from this order. On April 13, 1987, Goldie was awarded judgment against Darrell in the amount of $13,015.46. No appeal was taken from this judgment. The judgments were awarded following hearings wherein both parties were represented by counsel with the exception of the April 13, 1987, hearing at which Darrell appeared pro se.
In Friesen v. Friesen, 196 Kan. 319, 410 P.2d 429 (1966), we considered a similar situation. Therein, the appellant sought to avoid payment of a prior support judgment that was subsequently revived. We held appellant’s efforts to avoid enforcement of the judgment constituted a collateral attack on the judgment which was prohibited unless the judgment was found void. Since the prior judgment was held valid, appellant’s attack on the order to pay past due child support was set aside. 196 Kan. at 321-22. See Riney v. Riney, 205 Kan. 671, 677, 473 P.2d 77 (1970).
The judgments in this case were rendered by a court which had jurisdiction over the parties and subject matter of the action. Both parties were present and represented by counsel at the proceedings wherein judgment was granted to Goldie, and at no time was an appeal taken from any of the judgments. Thus, upon finding the judgment rendered on April 13, 1987, to be valid, it cannot be collaterally attacked. Darrell’s argument that the five-year statute of limitations on judgments prevents enforcement is without merit. Upon this conclusion, Goldie Cyr is entitled to the issuance of an execution to enforce the judgment of April 13, 1987.
The judgments of the Court of Appeals and the district court are affirmed.
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The opinion of the court was delivered by
Johnston, J.
: Osso Terreso was prosecuted upon an information which charged that at a certain time and place he
“did unlawfully, feloniously, purposely, and with his deliberate and premeditated malice, make an assault in and upon Fannie Nesbit, with a deadly and dangerous weapon, to wit, a certain revolving pistol, loaded with powder and leaden balls, which the said Osso Terreso then and there in his right hand did hold, with the intent him, the said Osso Terreso, then and there and thereby her, the said Fannie Nesbit, to unlawfully, feloniously, purposely, and with his deliberate and premeditated malice to kill and murder,” etc.
At the trial the jury found the defendant guilty of wounding and endangering the life of Fannie Nesbit, under circumstances which would have constituted manslaughter in the fourth degree if her death had ensued therefrom. The defendant moved for a new trial, and among the grounds alleged was that the verdict found him guilty of an offense other than that charged in the information, which motion was by the court allowed. Before the defendant was put upon trial the second time he filed a plea alleging that the' proceedings first had were a bar to any further prosecution upon the charge made against him. The plea was overruled, and upon the second trial he was found guilty of an assault with a deadly weapon with intent to kill and murder, as charged in the information. He insists upon this appeal that he had already been once in jeopardy, and that the plea in bar should have been sustained. This contention cannot be maintained. The criminal code provides that ‘ ‘ the granting of a new trial places the parties in the same position as if no trial had been had.” (§ 274.)
"Upon the defendant’s motion for a new trial the court granted just what he asked, and of course he waived all right to object to the legal consequences necessarily resulting from such grant. He waived his right to plead former jeopardy or to again being tried for the same offense.” (The State v. Hart, 33 Kan. 218.)
See, also, The State v. McCord, 8 Kan. 232 ; The State v. Rust, 31 id. 509 ; The State v. Miller, 35 id. 328.
It is urged, however, that the verdict first returned was absolutely void, and that, although he asked for a new trial and consented that the verdict should be set aside, he did not thereby gain any legal benefit or advantage. The verdict, however, cannot be said to be a nullity. Although it appears to have been irregular and not justified by the charge in the information, there was included in it, as well as in the charge of the information, the crime of assault, and possibly the offense that the life of Fannie Nesbit was endangered by the act of the defendant. When a person is charged with an offense consisting of different degrees he may be convicted of the degree charged or of any degree inferior thereto ; or where he is charged with the commission of an offense under one section of the statute, and the offense that is charged includes another offense under another section of the statute, the defendant may be found guilty of either offense. (Crim. Code, §§ 121, 122; The State v. Burwell, 34 Kan. 312.) See, also, Crim. Code, §230.
It is clear that the defendant derived some advantage and a legal benefit by the setting aside of the verdict, and as the new trial was granted at his request, he waived his right to plead former jeopardy, and no error was committed in putting him on trial a second time on the same information.
The judgment of the district court will be affirmed.
- All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: The defendant, a resident of Topeka, Kan., was in the city of Lyons November 4, 1894, and for two or three days thereafter, when he returned to Topeka. About two weeks afterward a subpoena, in a criminal case pending before a justice of the peace at Lyons, was served upon him at. Topeka, and in obedience thereto he went to Lyons to testify as a -witness. Soon after his arrival there he was arrested on a warrant from the police judge charging him with being drunk in a street of the city of Lyons on November 4/1894, such being an offense under an ordinance of the city. The complaint was filed and the warrant issued while the defendant was in the city as a witness in said criminal case. He was found guilty, and was fined in the police court, but he appealed to the district court, where his plea to the jurisdiction was sustained and he was discharged, the court holding that he was privileged from arrest on said charge while in attendance as a witness in the criminal case in obedi ence to subpoena. The city excepted to the ruling of the court, and thereupon the city attorney stated to the court that “the state would reserve the question,” and the case is now here for disposition by this court. A motion is made to dismiss the appeal for want of jurisdiction. Drunkenness in a street or highway is a public offense, (¶"2519, Gen. Stat. 1889,) and when prosecuted in the police court of the city the proceeding is in its nature criminal; but even the right of the state to appeal in criminal cases is quite limited, as was observed in City of Salina v. Wait, just decided. See, also, The State v. Crosby, 17 Kan. 396, 401. In Junction City v. Keeffe, 40 Kan. 275, a decision of the commission, it appears to have been assumed that the city was identical with the state in such prosecutions, and the court seems to have overlooked the distinction. We have no disposition to question the authority of that case as applied to prosecutions instituted and carried on by the state; but to say that, without any statutory provision authorizing the city to appeal, it may do so in the name of the state, under sections 283, 288, of the criminal code, is much in the nature of judicial legislation. An appeal may be taken by a defendant in a criminal case “from any judgment against him,” (Orim. Code, § 281,) but the state has a right of appeal only under section 283 of the criminal code, and no legislative provision whatever is made for an appeal by a city in any prosecution under its ordinances.
The motion to dismiss must be sustained.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J. :
This proceeding in error is founded on a case-made, the validity of which is challenged upon the ground that it does not appear to have been settled by the trial court. Appended to the case is a certificate which recites: “And now, on this 28th day of June, 1892, come the parties by their attorneys, and present this made case to me for final settlement ; and, having considered said made case, and the amendments suggested thereto, I do hereby certify that the foregoing is a full, complete, and correct record of all the pleadings, process, evidence and proceedings in the case. Witness my hand,” etc.
The certificate, although signed by the judge, lacks the essential statement that the case-made was settled, and is, therefore, fatally defective. “The certificate of the judge to a case-made should show affirmatively that he has settled it.” (Allen v. Krueger, 25 Kan. 74; National Bank v. Becannon, 51 id. 716.) It is not absolutely essential that the words of the statute should be employed, but the expressions used should clearly indicate that the judge has determined that what he has considered and signed is a true case-made; but probably no briefer or better terms can be employed than those found in the statute. As the word “allowed” as well as “settle” is found in the statute, it may be safely used in the cer tificate. (A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567.) The statements in the certificate as to what is contained in the case-made are without force and must be ignored. Stripped of these statements, nothing remains except a certificate that the case was presented to the judge for settlement, and that he considered the same.
Within the case of National Bank v. Becannon, supra, the certificate is insufficient, and the proceeding must be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: It is insisted that both the evidence offered at the trial and the findings of the jury show that the tie which injured Pelton was thrown out of the car in the usual and ordinary manner, which was known to Pelton, and that the risk of pursuing his employment as the work was being carried on was assumed by him. The special questions submitted to the jury at the request of counsel for the railroad company were very artfully drawn, and some of the answers tend to uphold this contention; but, on a consideration of all the findings, and all the evidence on which they are based, we cannot say that the risk was assumed by Pelton. There is evidence tending to show that the tie which struck Pelton came out of the car in quite an unusual manner, and there is also evidence tending to prove that it was incumbent on those who were in the car to .look out, to some extent at least, for the safety of the men on the ground. The general verdict in favor of the plaintiff includes a finding in her favor of every fact which there was evidence tending to support necessary to uphold the verdict, and not directly negatived by the special findings. Taking all the findings together, we cannot hold that the risk was assumed.
It is strenuously urged that the injury in this case was purely accidental, and that this is shown by the findings of the jury, especially the seventeenth, in which they say that Brickell accidentally lost control of the tie. In its ordinary use, the word “ accidental ” does not necessarily negative the idea of negligence. In ordinary conversation we often speak of a calamity as an accident without regard to its cause, and without considering whether it was the result of negligence or not. The seventeenth question was not so framed as to fairly challenge the attention of the jury to the question whether Pelton’s injury was purely an accident, occurring without the fault of any one, or not. The fifteenth question was whether Brickell purposely injured Pelton, which the jury answered in the negative. We think it clear, when the general verdict and all the questions and answers are considered together, that the jury regarded Brickell as negligent in permitting the tie to go out as it did, though he did not intend to injure anyone with it. The demurrer to, the evidence offered by the plaintiff and the motion for judgment on the special findings were properly overruled.
Amotion for a new trial was made, upon the grounds, among others, that the special findings of the jury were inconsistent with the general verdict and with each other, and that the verdict was excessive, contrary to the evidence, and given under the influence of passion and prejudice. It is also insisted that, although the action for the injury survives, the element of damages for pain and suffering resulting from it does not survive, but is personal to and dies with the person injured. The case of Cregin v. Railroad Co., 83 N. Y. 595, is cited in support of this contention. Although the statute of New York under consideration in that case is somewhat different from ours, it must be conceded that the reasoning of the court sustains the contention of the plaintiff in error, but we are not satisfied with the conclusions reached by that court. By our statute a cause of action for an injury to the person survives. The court of appeals of New York makes a distinction between what it terms pecuniary losses, which diminish the estate which would have gone to the personal representative, and losses personal to the injured party affecting only his feelings. But Jonathan Pelton had one entire cause of action, prior to the day of his death, against the railroad company. He had as full and complete a right to recover for the element of pain and suffering as for that of loss of wages. If he had recovered his damages in his lifetime, whatever he did not expend before his death would have been assets belonging to his estate. The dollars awarded for pain and suffering would have differed in no manner from those awarded for loss of wages, and would have been subject to precisely the same rules of distribution. We think the entire cause of action survived, and in this view we are sustained by the supreme court of Illinois. (Holton v. Daly, 106 Ill. 131; Railroad Co. v. O’Connor, 119 id. 586.) The argument drawn from decisions as to the nature of the recovery under section 422 of the code, which gives a cause of action where none existed at common law, has no application to causes of action which are made to survive under section 420, nor those actions already begun which section 421 of the code declares shall not abate.
We find it extremely difficult to harmonize the various findings of the jury, yet, if there were no other questions, it is possible that, in view of the artful manner in which the questions were framed, of the unfairness of many of them, and of the rule that 'the general verdict is a general finding in favor of the plaintiff on every material fact not directly negatived by the special findings, we might uphold the verdict. But the j ury have found that Pelton died from a disease of the kidneys and bladder. The evidence shows that that disease was chronic, and must have continued for a considerable period of time. According to the testimony of one physician, he ’would have been unable to work for several weeks, months perhaps. In assessing the damages, the jury have allowed full wages for every working day from the date of the injury to the date of his death, without any allowance whatever for loss of time occasioned by the mor- ■ tal disease of which he died. Although the gross sum allowed for loss of time is not large, the allowance shows a want of that care and discrimination on the part of the jury which they ought to have exercised. The railroad company, clearly, was not liable for loss of time which Pelton would inevitably have sustained from causes other than the injury. ■ If he was rendered unable to work by disease in no manner resulting from it, he could not have been subjected to loss of wages during that time by the injury, for he could not in any event have earned any. The jury allowed $561.60 for loss of wages. They also allowed $3,438.40 for pain and suffering. As the injured man lived and suffered only a year and a half, this allowance seems very liberal, being at the rate of more than $2,200 per year. It is true that no definite measure can possibly exist for damages of this kind. No one can say just how severely another has suffered, nor just how much money would be an equivalent for that suffering. A comparison of the allowances made in other cases with the verdict in this impresses us that it is very liberal, and when taken in connection with the indiscriminating allowance for loss of time, and the somewhat careless and conflicting answers to special questions, we are forced to the conclusion that the jury have failed to give this ease that fair and candid consideration it demanded, and that a new trial should be awarded.
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
Schroeder, J.:
This is an action by a real estate broker to recover a broker’s commission for the sale of farm real estate. The case was tried before a jury in the district court of Wyandotte County, Kansas, resulting in a verdict and judgment for the plaintiff, whereupon appeal has been duly perfected.
The appellee in his brief says the only question is: “Were plaintiff-appellee’s efforts the procuring cause of bringing buyer (Mr. Stoneback) and seller (Mr. Judy) together?” To be more technical, the appellate question is whether there is any evidence to sustain a finding that the efforts of the real estate broker were the procuring cause of the sale.
The general rule is that a real estate agent or broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal. (DeYoung v. Reiling, 165 Kan. 721, 199 P. 2d 492, Syl. ¶ 1; and Patee v. Moody, 166 Kan. 198, 199 P. 2d 798.)
In the DeYoung case the court said:
“We need not here discuss at length the conditions under which real estate agents or brokers are entitled to a commission. Various aspects of the pertinent law on that subject are treated extensively by the textbook writers — and the cases from which the applicable rules are deduced are legion. It is well, however, to have in mind at the outset some long-established rules. A broker is entitled to a commission if he produces a buyer who is able, willing and ready to purchase upon the proffered terms or upon terms that are acceptable to the principal. He must be the ‘efficient,’ the ‘procuring’ cause, or as some cases say, the ‘proximate’ cause, of the consummated deal. An owner who has knowledge that a broker with whom he has listed his property has interested a prospective customer with whom he is still conducting negotiations, cannot defeat the broker’s right to a commission by the expedient of closing the deal himself or through another broker. . . . The payment of a commission to one broker is not in itself sufficient to avoid liability to another. . . .” (p. 725.)
It is to be noted the conditions specified in both (a) and (b) above (DeYoung v. Reiling, supra, Syl. ¶2) must be met before the real estate broker is entitled to a commission. Numerous cases have been litigated in which the issue is whether the real estate broker is entitled to a commission upon the sale of real estate, but basically, they do not alter these conditions. Occasionally a case will arise where a departure appears to have been made, but upon careful study the rule was not altered. The factual situation merely necessitated a distinction.
An example is Owen v. Spangler, 111 Kan. 484, 207 Pac. 772. There land had been listed on certain terms for sale with a real estate agent. The agent procured a purchaser on terms slightly different and communicated the fact to the owner who, on April 21, telegraphed in reply: “Will take offer and vacate May fifth, sooner if possible.” The owner was informed by letter that the terms stated in his telegram were satisfactory to the purchaser, and that there was no need of a written agreement. The purchaser was ready, able and willing to complete the sale; the only reason it fell through was because the owner insisted upon the purchaser signing a written contract, dated about April 27, providing for possession to be given within thirty days from that date, or sooner if possible. The court held the agent had earned his commission when he brought the parties together upon terms agreeable to them, and that the seller could not relieve himself from liability to his agent by insisting upon different terms which prevented a sale.
On these facts the court stated the rule to be:
“Where a real-estate agent is employed to find a purchaser ready, able and willing to buy on terms acceptable to the seller, it is not required in order to earn his commission that he bring the parties together personally or introduce them, nor is it the law that in order to earn his commission he must procure a binding contract signed by the purchaser.” Syl. ¶ 1.)
In Dreisback v. Rollins, 39 Kan. 268, 18 Pac. 187, approval was given to an instruction of the trial court which reads:
“‘If the defendant placed certain real estate in the hands of the plaintiff, as a real-estate agent, to find him a purchaser, and thereafter plaintiff brought him and his principal into communication, setting on foot negotiations which resulted in a sale, then, notwithstanding the transfer was concluded by the principal, the agent would be entitled to his commission, even though the said principal had placed said real estate in the hands of other agents for sale, and had reserved the right to sell said lands himself. It would not be essential that the agent should be present and participate in the consummation of the sale to be entitled to his commission, unless the terms of the contract between himself and his principal specially provided therefor; . . ” (p.269.)
In Grimes v. Emery, 92 Kan. 911, 141 Pac. 1002, the court said:
“The appellant contents that under the evidence in this case the appellee did not bring the seller and the purchaser together or institute a contract be tween them and hence did not earn any commission. Numerous authorities are cited, the language of which differs mainly upon what constitutes a bringing of the seller and purchaser together or the producing of a purchaser to the seller who is ready, willing and able to purchase the property upon the terms and at a price designated by the owner, but none of them so inconsistent with the general doctrine that where a broker is employed to sell real estate for a commission and by any means is the procuring cause of bringing the seller and a proposed buyer together and a sale is consummated, either with or without the assistance of the broker, the broker is entitled to his commission.” (pp. 914, 915.)
In Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104, the court undertook to reconcile apparent variations in the rule by showing that statements relied upon by the defendant were either incomplete quotations from the opinion cited, or that the proposition of law relied upon was a proper pronouncement of the law under the facts of that case.
The primary relation, as between customer and real estate broker, is that of agency, and the general rules of law applicable to principal' and agent govern their rights and liabilities. Furthermore, agency can result only from contract, express or implied, and in determining whether a valid contract has been entered into, the rules which pertain to contracts generally are applicable. There must be consideration, mutuality and a meeting of the minds as to essential matters. Meeting of the minds may be shown by implication, by conduct of the parties. Like other features essential to a cause of action, the burden of establishing agency is upon the party asserting it. (Patee v. Moody, 166 Kan. 198, 199 P. 2d 798.)
Whether a broker has performed services entitling him to a commission is ordinarily a question of fact for the jury, if there is conflict of evidence or if there is any substantial evidence to support the essential elements of his cause of action. Each case must be determined upon the particular facts presented. Whether the broker was the procuring cause of a purchase must be determined in the light of all the facts and circumstances leading up to and including any final negotiations between the vendor and the purchaser. (DeYoung v. Reiling, supra; Patee v. Moody, supra; and Grimes v. Emery, supra.)
An attempt to determine whether there is any competent evidence to support a finding that the real estate broker was the procuring cause of the sale in this case will require a detailed recital of the facts. It will also serve to give the reader a proper understanding of the case.
Harvey Stoneback was a farmer who sold land which he owned west of Lawrence for a considerable sum of money. Thereafter he desired to buy a Kaw Valley bottom farm and started to look for one personally. He looked on both sides of the Kaw River in the Lawrence area, in the DeSoto area and in the area of Linwood. He personally checked various farms on both sides of the Kaw River. He testified he would find a farm for sale and would stop his automobile along the road.
“Had you looked at the farms from Bonner east to Kansas City in the Kaw Valley?
“A. No, I hadn’t come down that far.”
Phillip S. Judy (defendant-appellant) was not a farmer but owned a Kaw Valley bottom farm of approximately 200 acres located near Bonner Springs. Judy had gone to D. M. Hiniger, d/b/a Hiniger Real Estate Company (plaintiff-appellee) and said he was going to sell his farm. He informed Hiniger that he had told three or four other brokers about it and that he wanted $120,000 net. He said to Hiniger:
“Don’t bring anybody down unless it is somebody that has got enough money to buy it because I don’t want them running around over the place.” Hiniger testified:
“He told me that he didn’t want to write it in a written contract right now, but he said, ‘If you find somebody that is capable of buying this place,’ he said, ‘you let me know and I will sign up a written agreement with you.’ ”
Into this state of affairs Stoneback on or about the 28th day of March, 1961, wandered into Hinigers real estate office in Bonner Springs. Stoneback did not talk to Hiniger but to a salesman in Hinigers office by the name of Tompkins. Stoneback asked if they had any bottom farms for sale. Tompkins said they did not have any, but he showed him a creek bottom farm in Johnson County which Stoneback did not want. This was the only farm Hinigers real estate firm ever showed to Stoneback.
On Friday, the 21st day of April, 1961, Stoneback again stopped in Hiniger’s office and again inquired of Tompkins concerning Kaw Valley bottom farms. Stoneback testified that Mr. Tompkins told him that he had a very good farm, “it would be dandy for me,” “a garden spot.” Tompkins testified concerning this occasion as follows:
“Q. What if anything did you say to Mr. Stoneback about the Judy farm?
“A. I asked him would he be interested in a Kaw Valley farm of a little over 200 acres, that was good land and lay approximately a little over three miles from Bonner Springs that would run about $125,000 to $130,000 — will he be interested in that?
“Q. What did he say?
“A. Yes, he said he would.
“Q. When did you say that was?
"A. That would be on Friday, April 21st.
“Q. Did you tell him this was the Judy farm and where it was located?
“A. No.
“Q. Did you describe the farm to him other than generally?
"A. No.
“Q. Did you tell him it was the P. S. Judy farm at Edwardsville, Kansas?
“A. No.”
As to this occasion Stonebaclc testified:
“. . . Some way or another he said he knew of one but I don’t think he had it listed yet. It was a garden spot.
“Q. And you wanted to see that?
“A. Yes. But no, he wouldn’t show it to me.
“Q. Why?
“A. Well, he didn’t say why. He just said he couldn’t show it to me. I says, Well, would you tell me this? Is it above Bonner Springs or below Bonner Springs on the river?’ No, he couldn’t tell me that either. Well, I got kind of disgusted with them and I says, Well, I guess I will go on.’
“Q. Yes?
“A. And I did. And the next day, I guess it was, or soon after that anyway, I come down to Edwardsville and I seen some nice land back in behind Edwardsville, so I drove down 104th Street, which is the main street of Edwards-ville where the postoffice is.
“A. So I drove down there, and there was a little house off the road there. It was early in the morning and there was a man there, and I says, ‘Do you know if there is any land for sale down here?’ And he says, ‘Yes, there is two hundred acres right across the road I think is for sale.’ And I says, Who owns it?’ ‘Mr. Judy.’
“Q. Prior to that time nobody had mentioned the word Judy to you?
“A. No.
“Q. You never heard the word?
“A. That is the first time, when this man told me.
“Q. That is the man on 104th Street at Edwardsville, Kansas?
“A. Yes.
“Q. He pointed out the Judy farm to you?
“A. Yes.
“Q'. What did you do then?
“A. Well, I says, ‘Do you know where he lives?’ Well, he thinks he lives up there, over on the hill there, but he says, ‘They can tell you in Edwardsville where you can get in contact with him.’
“Q. Did you talle to Mr. Judy?
“A. I think that same day I talked to him.
“Q. What was the conversation you had with him?
“A. I asked him if he owned that farm out there and he still wanted to sell it, I was wanting to buy some land.
“Q. What did he say to you?
“A. He says, ‘I sure do.’
“Q. Did you talk price?
“A. I don’t believe we did at that time.
“Q. Did he tell you who he had it listed with?
“A. Well, Turner State Bank, a man by the name of Mr. Madden. And he said, T just listed it yesterday with Hiniger at Bonner Springs.’ That is what he told me.
“Q. All right. When he told you that, what did you say?
“A. What did I do?
“Q. What did you say?
“A. Well. T don’t want to do business with Hiniger.’ That is what it was.
“Q. You declined to do any business through him?
“A. Yes. Yes.
“Q. What did Mr. Judy say then, if anything?
“A. Well, I guess he said he guessed I didn’t have to, he had it listed at the Turner State Bank.
“Q. Now, did he say anything to you about offering to show you the property?
“A. Yes, but I believe I said, ‘Well, I have already walked all over it.’
“Q. Had you?
“A. Yes, that same morning when that man told me.
“Q. Before you went down to see him you walked all over the farm?
“A. Yes.
“Q. Was anybody with you?
“A. No.”
Tompkins said he told Stoneback he intended to get information concerning this farm and suggested that Stoneback come back some three or four days later, but Stoneback never returned.
Tompkins testified that he made an appointment for ’Stoneback to return to his office on Tuesday, the 24th (sic) day of April, 1961, at 2:30 p.m. Stoneback testified that he never agreed to come back. As to the occasion in question Mr. Hiniger testified as follows:
“A. It was on the 21st day of April of 1961 that I called Mr. Judy and told him I believed we had a prospective buyer capable of buying this place, and I would like to meet with him and sign the contract that he had agreed to. So he agreed to meet us on the next day, Saturday, at Edwardsville and sign the contract to sell this farm.
“We met with him on the next morning and he wanted to know about the prospect and if he was able to buy, and I told him that Mr. Tompkins, my salesman, had been showing Mr. Stoneback — or I didn’t mention his name, but I said, ‘We have been showing a prospect a bunch of farms around.’ And I said, ‘We think that he might buy your place.’
“ “Well,’ he says, Judy says, ‘does he have enough money to buy?’ And I ■said, ‘Yes. I have done what you told me. And I have called a friend of mine in Lawrence and asked him if this fellow is able to buy.’ And he said, “yes, I know the fellow very well.” He said, “He sold the biggest farm west of Lawrence that is in this area and that ran into quite a sizeable sum of money and he wants to put that money back into a farm somewhere.” And I said, ‘That is the man we have and I think he is very capable of buying your place.’ So Mr. Judy said, ‘Well, in that case I will sign the contract.’
“Q. This all took place on April 22, Saturday?
“A. On April 22, on Saturday.
“Q. And it was actually signed on the 22nd but was dated the 21st?
“A. That is right.”
It was thus on Saturday, the 22nd day of April, 1961, that Hiniger, by his own admission, first procured a contract to sell the farm owned by Mr. Judy. This was a nonexclusive listing on a form written contract prepared by Hiniger and signed by Judy. Judy had explained to Hiniger that this property was already listed with other brokers and that he would not give an exclusive contract to any real estate agent.
The contract introduced in evidence discloses that the provisions making the contract exclusive were stricken. It was a general real estate broker’s “Sales Agency Contract” between the parties listing the farm for a term of six months, in which the owner agreed to pay five percent commission on the sale price of $90,000. The concluding paragraph of the contract reads:
“In the event’ the property is sold within 30 days after the termination of this Contract, whether directly or indirectly, upon any terms, to anyone to whom it has been offered by the agent, providing he shall have disclosed the name to the owner on or before the terminal date of this Contract, the owner shall pay the agent full commission.”
In the course of Hiniger’s testimony at the trial counsel for Hiniger stipulated that the Hiniger Real Estate Agency did not show the farm to Stoneback; that Tompkins did not show the farm to Stone-back; that no mention was made of the name of the farm; and that no one told Stoneback where the farm was located, “Only the general direction, three miles from the city limits of Ronner Springs.”
Hiniger testified that when he went to talk to Judy to obtain the listing he did not tell Judy that Stoneback was the prospective purchaser he had in mind.
The reason why Mr. Stoneback was not shown the Judy farm by the Hiniger Real Estate Agency on the 21st day of April, 1961, was stated by Hiniger as follows:
. . we didn’t have the Judy place under contract and we knew if we explained about a farm or house somewhere that is not under contract and tell a man exactly where it is that we probably will get the run around on a commission. We told him it was within about three miles of Bonner Springs, and some things about the place, but we couldn’t tell him all about it.”
Throwing further light on the occasion in question, Mr. Stoneback testified on cross examination:
“Q. When he told you there was this two hundred acres of land near Bonner that might be for sale, did you make an appointment to come back after he got all the information on it?
“A. No, I don’t think I did, because if I couldn’t find out where it was and if they didn’t want to sell it and wouldn’t let me look at it, that made me a little bit peeved. And I says, Well, heck, there is plenty of land in the Kaw Valley. I will look for some myself.’ And I accidentally ran onto this place and it happened to be the same place. I didn’t know it.”
Judy in his testimony confirmed the fact that Hiniger would not tell him who the prospective purchaser was. Judy then testified:
“A day or two after that a Mr. Stoneback came up to me, came to the place and saw me. And he says, T have looked over your farm.’
“Q. Did he say he had looked it over or wanted to?
“A. He said, ‘there was some people told me about it. I have been looking up and down the valley and some neighbors have told me the farm was for sale.’ I said, Who are you dealing with?’ He says, T am not dealing with any real estate men.’ I says, ‘Mr. Hiniger came down here the other day and I signed a contract. Are you dealing with him?’ And he says, ‘No, I am not.’
“. . . I asked him if any real estate man sent him, and he says, ‘No, I am not dealing with any real estate men.’ I says, T signed a contract with Mr. Hiniger day before yesterday to sell this land, and also a Mr. Madden, has a contract to sell this land.’ He says, T won’t deal with Hiniger. He has tried to sell me some old junk land and I won’t have anything to do with him. I don’t want anything to do with him.’
“And I then called Mr. Hiniger and I says, ‘Hiniger, Mr. Stoneback is down here looking at this farm and likes it and I think he is going to buy it. Tomorrow I think I will close the deal. But if you are in on it, you see Mr. Stoneback and bring him down here. You bring him down here, so that there will be no conflict’. I made that emphatic to him. He and his helper then said, We will go up this afternoon to Lawrence.’ They did. And the next day after that Mr. Stoneback came down and he says T don’t want to deal with that man and I told you that. I won’t buy the farm if you keep on.’
“Well, I told Hiniger, that, and I didn’t see anything more of him.
“I says, ‘well, how would it do to deal through the bank at Turner? Mr. Madden has been my banker for years and years, and there is a lot of legal work and a lot of stuff to attend to.’ Which I don’t know. I am an engineer, a well man. ‘That is all right.’ And he went down there and saw Mr. Madden, and they consummated the deal.
“Then after the contract was drawn up with them, Mr. Hiniger some time after called up and wanted to know about his commission. I says, Well, now, wait a minute. I have paid the commission. I paid the commission, every penny, to Mr. Madden.’ I said, ‘I am not going to pay it twice. If Mr. Madden wants to surrender part of it — You have done nothing about this sale, not a thing. It is up to you. I am not going to pay this commission unless it is legal and it is necessary to do it.’ ” .
Tompkins testified as to a communication between Judy and the Hiniger Real Estate Agency by telephone on a Tuesday, the 25th day of April, 1961, as follows:
“Q. What was that conversation or when did it take place?
“A. The telephone rang, I was at the office and I answered it Hiniger Real Estate, Tompkins speaking, and Mr. Judy says ‘This is Mr. Judy, I believe you folks have sold the farm.’ And I said, ‘That is to Mr. Stoneback of Lawrence?’ and Mr. Judy said ‘yes.’
“Mr. Little: Mr. Judy said ‘yes’ to you?
“The Witness: Yes.
“Q. That was the last conversation you had with Mr. Judy until you met him on the street in May?
“A. Yes.”
Later in the day on Tuesday, April 25th, Hiniger called Judy. He testified as follows:
“Q. Mr. Hiniger, when did you next talk to Mr. Judy? This was on a Saturday that you signed the contract, as I understand it?
“A. About noon on the following Tuesday I called Mr. Judy and I said, T understand that our man from Lawrence has been down and you have sold the farm.’ Mr. Judy said, ‘Yes, your man Mr. Stoneback has come down from Lawrence and we have made all the arrangements and he is going to take it.’ And I said, ‘Well, what do you want me to do? What is tire deal on it? Do you want me to help with the abstract and get going on it?’ He said, ‘Now,’ he said, ‘Mr. Stoneback is coming in in another few minutes or so.’ And he said, ‘We have a few particulars to work out on it.’ He said, ‘If you will stay around the office,’ he said, T might be calling you.’ So I waited around the office that afternoon and there wasn’t any call come in. And then the next morning, it was Wednesday morning, Mr. Judy called me and he said, ‘Now, your man Mr. Stoneback is going to buy the farm. We have met on all the terms and everything.’ He said, ‘Has the mail come in?’ It was about 9 o’clock. He said, T have another offer in the mail.’ He said, ‘there is a fellow somewhere over in Missouri that sent a $1000 check in the mail.’ And he said, ‘It is not as good a deal as Mr. Stoneback’s. It is not quite the kind of deal I would want, but,’ he said, T don’t want to lose it.’ He said, ‘I want to sell this farm.’ He said, ‘what I want you to do is get hold of Stoneback and get him signed up on this deal, and let’s close it up.’
“So that evening, Wednesday evening, I told Mr. Tompkins, my salesman, ‘We better go to Lawrence and see if we can’t find Mr. Stoneback.’
“So we went up to Lawrence and we found where he lived and went down to the place.
“I told him, T understood you were making a deal for the Judy place, that it was about what you wanted.’ And he said, ‘yes> that is right.’ . . .”
The substance of what took place when Hiniger and Tompkins called upon Stoneback in Lawrence was that they antagonized Stoneback and he ordered them off the place. Hiniger admits Stoneback refused to deal with him in any way.
The evidence discloses that Stoneback purchased the farm from Judy for the sum of $90,000 and that the negotiations and legal paper work necessary to consummate the deal were handled by Mr. William Madden, Judy’s banker, and Judy’s attorney. The deal was closed on the 26th day of June, 1961, and Judy paid Madden a commission of $4,500.
For the reasons hereafter assigned, we think there was no competent evidence from which the Jury could possibly have found that the Hiniger Real Estate Agency was the procuring cause of the sale.
It has been held where the plaintiff, who is the only witness in his behalf, testifies to a state of facts which precludes his recovery, the effect cannot be avoided, and he is bound thereby. (Bell v. Johnson, 142 Kan. 360, 46 P. 2d 886, Syl. ¶2.)
In Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, it was said:
“The vigor of the rule heretofore stated in testing the sufficiency of the evidence on demurrer yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions, frequently spoken of as informal admissions, are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross examination of the party. . . .” (pp. 441, 442.)
The same principle of law applies in testing the sufficiency of the evidence to support the verdict (See, Casement v. Gearhart, 189 Kan. 442, 370 P. 2d 95) where such issue is clearly presented without complicating factors. The proposition of law which evolves may therefore be stated as follows: A verdict cannot be upset if there is any evidence in the record to support it, where such issue is clearly presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross examination of the party.
It has been recognized that admissions made by a party are the strongest kind of evidence.
Here numerous admissions were made by Hiniger in his testimony which are binding and conclusive upon him. Such admissions were not contradicted and the explanations given did not in any way detract from their binding effect and conclusiveness.
In the instant case on the vital point at issue there was no contradictory nor conflicting testimony from which the jury could possibly have found that the Hiniger Real Estate Agency was the procuring cause of the sale. Both Mr. Hiniger and his only other witness, Tompkins, testified in substance that they did not intend and never intended that the prospective purchaser should view or see the Judy farm until after they had obtained a contract to sell it to him. They both admit that Stoneback, who bought the farm, saw and found the farm before they were in a safe position to show it to him or tell him where it was located. This evidence by which Hiniger is bound established that the broker did not produce the customer, but instead the customer produced and offered himself to the seller before the broker could do so.
The general rule is that a real estate broker is entitled to a commission if (a) he produces a buyer who is able, ready and willing to purchase upon the proffered terms or upon terms acceptable to the principal; (b) he is the efficient and procuring cause of a consummated deal. The broker can recover a commission only if he sustains the burden of proving that he has fulfilled each of these conditions.
The contention of Hiniger in his brief, that his agency brought the Judy farm to Stoneback’s attention and intended to do so by telling him it was three miles from Bonner Springs, is contrary to the reason given by Hiniger for not disclosing more information to Stoneback concerning the Judy farm. The only testimony on this point was given by Tompkins who said he told Stoneback the land “lay approximately a little over three miles from Bonner Springs.” In talk by a real estate agent this could hardly be said to describe the location of the Judy farm.
It has been held where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground and put his conduct on another and different consideration. He is not permitted thus to mend his hold; he is estopped from doing it by a settled principle of law. (Redinger v. Jones, 68 Kan. 627, 637, 75 Pac. 997; and Sandefur v. Hines, 69 Kan. 168, 171, 76 Pac. 444.)
Where one gives a real estate broker authority to sell his property upon terms stated but not expressly agreeing that such real estate agent shall have the exclusive right to sell, he retains the right to effect a sale personally or through another agent. (See, Krehbiel v. Milford, 171 Kan. 302, 232, P. 2d 229.)
We hold where a real estate broker merely tells a prospective purchaser that there is a farm in a certain general area or vicinity for sale, before the broker procures a contact from the owner listing such farm for sale, and does nothing more to bring the buyer and the seller togethei’, as here, it is insufficient to show a service rendered by the real estate broker which would entitle him to claim that he was the procuring cause of a sale made by the owner.
After Stoneback found the Judy farm by his own efforts and presented himself to Judy, he indicated a willingness to buy the Judy farm. Up to this point neither Hiniger nor his salesman, Tompkins, had anything to do with the deal which would authorize them to á commission for the sale of the farm. At this point Judy called Hiniger and said: “what I want you to do is get hold of Stoneback and get him signed up on this deal, and let’s close it up.”
Judy was willing to pay one commission for the sale of his farm but not two. He did not want to handle the final negotiations or be concerned with the legal papers closing the transaction. It was a big deal for him and he wanted everything to be handled properly by someone who knew how to handle it.
Therefore, Judy gave Hiniger an opportunity to earn a commission by closing the deal. This was a new oral contract independent of the original contract listing the farm for sale. If Hiniger could get Stoneback signed up and close the deal, Judy would pay him a regular commission. But the efforts of Hiniger antagonized Stone-back and he refused to deal with Hiniger in any way. Thus, on this subsequent independent contract Hiniger failed to produce.
Hiniger contends in his brief that Judy admitted he owed a real estate commission to him. In view of the factual situation as it arose in this case, it becomes necessary to consider this point. Mr. Hiniger testified:
“Q. When did you next talk to Mr. Judy?
“A. I called Mr. Judy the next morning early, Thursday morning [April 27, 1961], and I told him that we had been up to Lawrence to see the man, as he had told us to do, and that Mr. Stoneback said he wouldn’t sign up with us, that he was going to deal direct with Judy. So, Judy said, ‘well/ he said, T will tell you, you produced this prospect, and,’ he said, ‘If he buys the farm you are going to get paid this commission.’ I said, T know you and I have had a lot of dealings together and I know you are honest and fair about it, and that is the way we have always done business, and I will expect a commission.’ He said, ‘what do I do from here?’ I said, ‘I will draw the contract up and give it to you and you could sign it up, perhaps.’ He said, ‘Well,’ he said, T don’t know whether it ought to have a witness ór somebody here.’ He said, T would like to have you fellows or somebody else because it is a big deal and I don’t want to lose out. I have another man on it.’ So I suggested that he probably then ought to see his attorney if he had some business with an attorney, and he said he did. And he decided at that time that he would take it up with his attorney. And he wanted to know of me when Mr. Stoneback was coming down and I said, ‘Well, he talked like ha will be in today.’
“Q. When did you next talk to Judy about the transaction?
“A. That was on a Thursday, and I waited on a call on Friday. And it seemed like I couldn’t get hold of.Judy Saturday or Sunday. I think it was the following Monday I called Judy to see if the deal was closed. Judy said, T took it to the attorney,’ and, he said, ‘we have got it all wound up.’ He said, ‘Don’t you worry, Hiniger, that commission is due you, we arranged for it, and you will get paid.’ ”
Mr. Judy in Ms testimony denied that he had any time acknowledged owing Hirnger a real estate commission.
Hirnger in tMs case seeks to recover a real estate commission on the basis of the written nonexclusive real estate sales contract wMch he had with Judy. Construing the testimony of Hiniger, wherein he contends Judy admitted owing a commission, most favorably to Hirnger, it still does not support the verdict of the jury. In the first place, it is absolutely contrary to the admissions made by Hirnger at the trial and to the stipulations wMch he entered into. They established that neither he nor Ms agency was the procuring cause of the sale. The admissions Hirnger contends Judy made to Mm do not explain Himger’s conduct and admissions to the contrary. (Blackmore v. Auer, supra.) In the second place, if such testimony of Hiniger be construed as a promise by Judy to pay a broker’s commission to Hirnger, it is not supported by any consideration and therefore not binding on Judy. In the tMrd place, tMs point is not embraced witMn the only question stated by the appellee to be the issue on appeal.
We hold upon all the facts, conditions and circumstances presented by the record in the instant case that there is no competent evidence to support the verdict of the jury. Accordingly, the judgment of the lower court is reversed with directions to enter judgment for the defendant below.
Robb, J., dissents.
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The opinion of the court was delivered by
Price, J.:
This appeal arises under the Kansas compensating tax law — commonly referred to as the “use” tax.
The question presented is whether the materials which were purchased outside the state of Kansas and used in the construction of the Capehart Housing Project on the Fort Riley Military Reservation were subject to the tax.
The Director of Revenue and the Board of Tax Appeals ruled that such materials were subject to the tax. The “McKee-Emery Group,” the housing contractors (hereafter referred to as plaintiffs), appealed to the district court. The court reversed the decision of the Board of Tax Appeals and held the imposition of the tax to be null and void.
The Director has appealed.
We regard certain procedural questions raised by the parties as being of no material consequence and will consider the case on the merits.
This is the third appearance in this court of litigation concerning the housing project on the Fort Riley Military Reservation, located in Riley and Geary counties.
In First National Bank in Dallas v. Lowman, 193 Kan. 349, 395 P. 2d 313, the question was whether the mortgage held by plaintiff bank on the property was subject to the mortgage registration fee as a condition precedent to being filed for record. We held that it was.
In United States v. Board of County Commissioners, 194 Kan. 614, 400 P. 2d 685, the question was whether the improvements on the housing project in existence on January 1,1962, were subject to taxation by Riley county under the provisions of G. S. 1961 Supp., 27-102b and 27-102c (now K. S. A. 27-102b and 27-102c), or whether such improvements were exempt from taxation under G. S. 1949, 79-201 Fifth, which exempts from taxation all property belonging exclusively to the United States. We held such improvements to be exempt under the last mentioned statute.
The procedural steps in the federal plan and scheme in accomplishing the construction of the military housing in question are related in those cases and are incorporated herein by reference.
After this case reached the district court on appeal from the ruling of the Board of Tax Appeals, the court appointed Roy N. McCue, a member of the Topeka bar, as referee, to hear the evidence. The referee made exhaustive findings of fact and conclusions of law, which, after review by the court, were approved and adopted by it.
Keeping in mind the entire background of the matter as set out in the above mentioned cases, we summarize briefly the facts as they pertain to the question presented here.
In furtherance of the construction of the housing project, plaintiffs, as the housing contractors, during the period from April 1,1961 to August 4, 1961, purchased building materials from vendors outside the state of Kansas, and it is upon the purchase price of such materials that the Director levied the compensating tax in the amount of $22,044.45, with interest. The basic contract under which the housing was constructed was prepared by and executed by the government. The work performed by plaintiffs was required to be done to the satisfaction of the government and payment to plaintiffs for work under the contract was to be made only on the authorization of the government. Payments were made by the gov emment to plaintiffs once each month for work done and materials furnished during the preceding month, and title to all materials and work for which such progress payments were made vested in the government upon such payments. Plaintiffs were required to furnish to the government for approval the name of the manufacturer of machinery or other equipment contemplated to be incorporated into the housing project, and plaintiffs submitted full information concerning materials and samples of such materials to the government for approval when so directed. All materials were subject to inspection by the government and were subject to rejection unless they met approved government specifications. All materials were purchased at a price “F. O. B. Jobsite, Fort Riley, Kansas,” and the purchase orders contained a notation to the effect the materials were for the construction of “Armed Services Housing Project Consisting of 867 Capehart Housing Units at Fort Riley, Kansas.” The purchase orders also provided that the subcontract was subject to approval by the Department of the Army and the Federal Housing Administration, referred to therein as the “Owners.” The government maintained personnel on the jobsite for the purpose of inspecting the materials and the work performed in order to determine whether they met the housing contract specifications. The progress payments made to plaintiffs each month were based upon a monthly inventory of the materials and work done, approved by the government, and such payments were made out of the mortgage loan proceeds guaranteed by the government. The government took possession of the housing units as they were completed and used the same for the housing of military personnel. The materials in question could not be diverted by plaintiffs to some purpose other than the performance of the housing contract with the government, and all materials so purchased were used and consumed in fulfillment of the contract between plaintiffs and the government.
As conclusions of law the court held that the government was in fact the purchaser of the materials in question, was vested with full ownership thereof, that the use of the materials by plaintiffs was merely in the capacity of a bailee who had possession of the property to accomplish the purpose of the government, as bailor, and that the government was die “user, storer or consumer” of the property at the time it was used, stored and consumed on the Fort Riley Military Reservation within the meaning of the compensating tax act, and that plaintiffs exercised no privilege of use, storage or consumption. The court further held that the housing contract and the operations under it were the means by which the government acquired the military housing, and that the construction of such military housing and the use of such materials by plaintiffs was not incident to the ownership of such property — the government having all of the incidents of ownership thereof from the moment of delivery at the jobsite by the out-of-state vendors.
As a consequence of the foregoing it further was held that the transactions in question were outside the scope of the compensating tax law and that the government, being immune from taxation by the state — the imposition of the tax by the Director was erroneous.
With respect to the basic principle involved^ this case is not unlike that of General Motors Corporation v. State Comm. of Rev. & Taxation, 182 Kan. 237, 320 P. 2d 807, (cert. den. 358 U. S. 875, 3 L. ed. 2d 105, 79 S. Ct. 115) in which the state attempted to levy a compensating (use) tax on the purchase price of materials purchased by plaintiff corporation outside the state for use by it in the manufacture of military aircraft pursuant to a contract between it and the government. The opinion (pp. 242, 243) traces the background and reasons leading to the enactment of our compensating tax law, and sets out or refers to pertinent sections of the law which, in all material parts, are applicable to the question before us. For that reason we do not encumber this opinion with verbatim quotation of the various sections. Particular reference was made to G. S. 1949, 79-3702 (c) [later appearing as G. S. 1961 Supp., 79-3702 (c) and K.S.A. 79-3702 (c)], which provides that:
“The word ‘use’ means and includes the exercise within this state by any person of any right or power over tangible personal property incident to the ownership of that property, . . .” (Emphasis supplied.)
It was said that because of the foregoing quoted provision the important factor to be considered was whether the corporations use of the property was incident to the ownership thereof. The facts established — and it was so held — that the contracts involved, and the operations under them, were merely the means by which the government purchased the property and equipment for the corporations use in manufacturing military aircraft for the government, that is, the use of such property by the corporation was merely to accomplish the purpose of the owner — the production of military aircraft for the government, and that the corporations use of the property was not incident to the ownership of the property — and therefore was not subject to the compensating (use) tax.
The Director relies in part on a section of the Retailers’ Sales Tax Act [G. S. 1961 Supp., 79-3602 (m)], which provides that sales of tangible personal property to contractors of materials and supplies for use by them in erecting structures for others are sales for final consumption. This provision would support his contention in situations where there were retail sales to contractors for use by them in erecting structures for others — but not where — as here — the contractor’s use of the property was not “incident to the ownership of that property.” [79-3702 (c), above.]
In addition to what was said and held in the General Motors Corporation case, above, and which we believe is controlling here— in the recent United States case, above, it was said with respect to this military housing project that the manufacturer — builder corporations were created to function solely for governmental purposes serving no purpose independent of that of the government, and, being mere instrumentalities of and beneficially owned by the government, were immune from imposition of the state tax.
In passing, we note that the courts of Michigan and Florida have passed on a similar question and have held such sales of materials to be exempt from state taxation. See Knapp-Stiles v. Dept. of Revenue, 370 Mich. 629, 122 N. W. 2d 642, (1963); Green v. Eglin AFB Housing Inc., (Fla.) 104 So. 2d 463 (1958), and Green v. Perini-Westward Developers, Inc., (Fla.) 121 So. 2d 462 (1960).
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the defendant city of Galena from the trial court’s order granting a peremptory writ of mandamus against it and overruling its motion for new trial.
Defendant’s complaints of error are that the trial court erred (1) in overruling its motion to quash plaintiff’s motion for writ of mandamus (2) in granting the peremptory writ of mandamus and (3) in overruling its motion for new trial.
On December 15, 1961, the Kansas State Board of Health (hereafter referred to as the board) in pertinent parts of its order to chlorinate directed to the defendant city of Galena found that the city’s good quality of water at the source did not safeguard the consumers’ health because of danger of contamination in the distribution system; that continuous chlorination treatment and maintenance in the distribution system would provide substantial protection against contamination and disease; that on May 25, 1956, the city had been instructed by the board to chlorinate its water on or before January 1, 1958; that on June 17, 1960, the board had again formally ordered the city to chlorinate its water supply on or before September 21, 1960; that the city was reported willing to chlorinate its water supply but intended to do so only at some future indefinite date; that the city’s failure to chlorinate its water supply is prejudicial to the public health and that the interests of public health require prompt installation of suitable chlorination facilities. Under the provisions of K. S. A. 65-163 the board ordered the city to purchase and install adequate facilities for chlorination of its public water supply, that such facilities were to be installed promptly and within a reasonable time thereafter, and subsequently the city should continuously maintain such facilities and process.
Upon the board’s motion for issuance of an alternative writ showing the city’s refusal and failure to comply with the board’s order of December 15, 1961, the trial court on April 12, 1962, ordered the issuance of the writ commanding the city to comply immediately with the board’s order or show cause on or before July 13, 1962, why the city should not be required to do as commanded.
On March 1, 1963, the general demurrer of the city and its motion to quash the alternative writ were overruled and the city was granted thirty days in which to answer.
The city’s answer thereafter filed made certain formal admissions and then set out a general denial. It further answered that at all pertinent times mentioned the city had maintained a good and sufficiently healthful and pure water supply for all of its inhabitants and the patrons of its water department; the cost of chlorinating the water supply would exceed $2,000 which, under K. S. A. 65-171 limiting such cost to $1,000, would require the change in water supply to be passed upon by the qualified electors in the city at a general or special election; no attempt had been made by the board to cause, or attempt to cause, the issue to be so presented to the electors.
On October 22, 1963, the parties stipulated to certain facts including those stating that the city had not complied with the order of the board to chlorinate its water, dated December 15, 1961, nor had the city appealed from the order to the district court within thirty days. It was further stipulated the cost of chlorination would exceed $2,000, the question had never been submitted to the city’s electors, and that monthly and semi-monthly reports concerning the purity and fitness of the water supply for a part of 1960, and for all of 1961, 1962, and 1963 reflected that the water was pure and fit for human consumption. The analysis of the water samples had been conducted by the boárd.
On December 17, 1963, in its formal journal entry of judgment, the trial court adopted the agreed facts as its findings, and further found the board had legal authority to order the city to chlorinate its water supply, the city had a clear legal duty to comply therewith and that the provisions of K. S. A. 65-171 pertaining to “. . . the supply of water for any municipal water plant . . .” are not applicable concerning an order for chlorination of a public water supply. Since no reason was shown why a peremptory writ should not issue, the trial court commanded the city to provide chlorination of its public water supply within a reasonable time. The court reserved jurisdiction of the cause.
On January 22, 1964, the city’s motion for new trial was overruled. Hence this appeal.
The city’s contentions are based on the applicability of K. S. A. 65-171 which provides:
“That nothing in this act shall permit the board of health to change the supply of water for any municipal water plant where the cost of such change would exceed one thousand dollars without first submitting the same to the qualified electors at a general or special election.” (Our emphasis.)
We think the above statute is unequivocal, clear, and unambiguous and would be controlling if an order of the board undertook to change the source of supply of water for any municipal water plant because in that event an election would have to be conducted should the cost of the change exceed $1,000. However, under the circumstances here involved, we agree with the trial court and the board that K. S. A. 65-171 has no application because nothing in the board’s order requires a change in the source of supply of water that goes into the city’s water plant. As contended by the board, we believe the order is controlled by the provisions of K. S. A. 65-163. The statute is quite long and we shall merely state that it likewise is unequivocal, clear, and unambiguous and included among its provisions are:
. . no person, company, corporation, institution or municipality shall supply water for domestic purposes to the public within the state from or by means of any waterworks that shall have been constructed . . . without a written permit from the state board of health. . . .” (Our emphasis.)
The order of the board in this case is simply informing the city that the water which it furnishes for domestic purposes to the public must be chlorinated before it is safe for public consumption.
No mention is made of the source of supply of the water going into the waterworks or the municipal water plant. Reference is made only to the water that is furnished by such water plant when it is ready to be consumed for domestic purposes by the public.
We, therefore, conclude the trial court correctly decided that K. S. A. 65-171 has no application herein and no election is required, that the controlling statute is K. S. A. 65-163, and the order granting the peremptory writ was correct.
Judgment affirmed.
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The opinion of the court was delivered by
Robb, J.:
Defendant was charged with forgery in the second degree under the provisions of K. S. A. 21-608 and appeals from the judgment and sentence of the trial court under K. S. A. 21-631 upon his plea of guilty while represented in the trial court by court-appointed counsel.
As set out in the joint abstract of the parties, the facts are not in dispute.
The prime question here is whether defendant should have had court-appointed counsel at his preliminary hearing, which hearing he waived without counsel. Defendant contends he should have had such counsel but we are faced with the reality of the law as it has been interpreted in this state under our existing statutes.
We have no statute which requires legal representation at a preliminary hearing. Under K. S. A. 62-615 a defendant may be assisted by counsel at a preliminary hearing but failure of the court to appoint counsel for him cannot be held to be reversible error. A thorough discussion of this matter is to be found in State v. Daegele, 193 Kan. 314, 316, 393 P. 2d 978 (cert. denied, 379 U. S. 981, 13 L. ed. 2d 571, 85 S. Ct. 686) and cases cited therein. On February 17, 1964, when defendant appeared for trial in the district court, the court inquired as to whether he had an attorney and defendant replied:
“No, I don’t. I told the prosecuting attorney here I wish to enter a plea of guilty to it, and I would waive my rights for counsel.”
The trial court refused to accept such waiver of defendant’s right to counsel and thereupon appointed counsel for him. After such appointment of counsel, and on February 25, 1964, defendant entered a voluntary plea of guilty and thereby waived any previous irregularity pertaining to the preliminary hearing. (State v. Daegele, supra.) See, also, State v. Jordan, 193 Kan. 664, 396 P. 2d 342, where it was stated:
“Any alleged ‘irregularity’ pertaining to a preliminary examination is deemed to have been waived where a defendant enters a voluntary plea of guilty in the district court.” (Syl. f 4.)
The record further reflects that when sentence was pronounced by the trial court, defendant requested a parole from the trial court. Recently in State v. Robertson, 193 Kan. 668, 396 P. 2d 323, Syl., this court restated its long-established rule that a defendant, by applying for a parole, recognizes the validity of the judgment and acquiesces therein. To the same effect are State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. denied, 377 U. S. 958, 12 L. ed. 2d 502, 84 S. Ct. 1640; State v. Irish, 193 Kan. 533, 393 P. 2d 1015.
On the basis of this record we are of the opinion defendant has failed to show that his substantial rights were prejudiced and our conclusion is the trial court committed no reversible error in the particulars complained of by defendant.
Judgment affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order sustaining a demurrer to plaintiffs’ evidence in an action for the wrongful death of a child based on the attractive nuisance doctrine.
No issue is presented by the pleadings, and there is no conflict in the facts as disclosed by plaintiffs’ evidence.
The defendants lived at 712 South Terrace Drive, Wichita, Kansas. Their back yard was enclosed with a white picket fence about two and a half feet to three feet high. When opened, the gate into the back yard was pulled shut with a spring where it was caught by a strong latch. In the rear of the back yard was a swimming pool. The swimming pool was of the usual modern type and had a fence around it about six feet high.
At the time of the incident under consideration the gate into the swimming pool was open. There was a diving board at the east end of the pool. The water was about six feet deep and was covered with a layer of snow and rotten ice. Bushes and evergreens obscured the view to the swimming pool from the gate into the back yard and from the street or sidewalk along the back yard. The pool was visible over the fence at the south side of the house.
In May, 1960, the plaintiffs moved into a house at 745 South Terrace Drive, Wichita, Kansas, a few houses down and across the street from the defendants.
The plaintiffs had a son, Lloyd Charles, six and a half years old. A few days before the unfortunate occurrence he came home and asked his mother if she knew that Jill had a swimming pool. His mother answered that she did but he was not to go near it. Jill was the daughter of the defendants and was in the same school room as the plaintiffs’ child.
On February 8, 1961, Lloyd Charles got out of school at 3:30 o’clock p. m. He got home between 3:30 o’clock p. m. and 3:40 o’clock p. m. He ate a piece of apple pie and went outside and built a snowman in the front yard. He came back in the house and was in from 4:30 to 5:00 o’clock p. m., at which time he went back outside. He was wearing his O. D. coat with the hood, gloves, jeans and his daddy’s over-shoes. His mother checked on him a little after 5:30 o’clock p. m. Later, she went out to call him in but couldn’t find him.
The police were called and an extended search was made for the child. Tracks were found leading through the gate of the defendants back yard to the swimming pool, through the gate into the swimming pool and to the diving board. The ice was broken under the end of the diving board and an investigation disclosed the body of the child at the bottom of the pool.
The plaintiffs’ evidence disclosed facts substantially as presented. The trial court sustained a demurrer thereto and plaintiffs have appealed.
The sole question presented for review is whether the evidence tends to establish any liability on the part of the defendants under the attractive nuisance doctrine. We are forced to conclude that it does not.
As a direct approach to the question involved, it may be suggested that this court has squarely held that a swimming pool does not belong in the same class with instrumentalities regarded as attractive nuisances, and that the question of attractive nuisance is entirely ehminated in this state from cases where the injury or death occurs at or in a modern swimming pool.
In Gilliand v. City of Topeka, 124 Kan. 726, 262 Pac. 493, we held as a matter of law:
“A swimming pool in a public park of a city, constructed of concrete and equipped with the usual swimming-pool accessories, is not a nuisance, although attractive to children.” (Syl.)
Again in Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 Pac. 902, we repeated:
“The rule announced and stated in Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53, and Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493, followed to the effect that a swimming pool constructed and equipped in the usual modem manner is not a nuisance, although attractive to children.” (Syl. 1.)
The rale applicable to swimming pools is no doubt influenced by the general rule that liability under the attractive nuisance doctrine must be based upon latent, not patent, dangers. (McGaughey v. Haines, 189 Kan. 453, 458, 370 P. 2d 120.)
The rale is stated in 65 C. J. S., Negligence, § 29 (3), p. 461, as follows:
“It has been considered that the attractive nuisance doctrine applies only where the danger is latent, and not when it is patent, for the reason that the inefficiency of children who are so little advanced as to be unable to recognize patent dangers should not be allowed to shift the care of them from their parents to strangers or to impose on the owners of property a duty and liability where otherwise none would exist. . . .”
The inherent danger from a pool of water is quite patent. The danger is in no way hidden or difficult to understand.
Although liability under the attractive nuisance theory must to a great extent be governed by the facts and circumstances of each particular case, there are certain recognized elements which serve as a guide. In this case many of the elements are lacking which are essential before the attractive nuisance doctrine is applicable.
Before the doctrine of attractive nuisance applies it must be shown that the owner knew or should have known that little children frequented the premises where the attractive instrumentality was located. (C. K. & W. Rld. Co. v. Bockoven, 53 Kan. 279, 36 Pac. 322.) In Biggs v. Wire Co., 60 Kan. 217, 56 Pac. 4, it was held in the first paragraph of the syllabus:
“The maintenance of dangerous machinery on private grounds, unprotected from the visits of trespassing children, renders the owner thereof, who has knowledge that children and others are accustomed to frequent said grounds and climb upon the structures supporting said dangerous appliances, liable in damages to the next-of-kin of a boy fourteen years of age who was caught in said exposed machinery and killed.”
In Moseley v. City of Kansas City, 170 Kan. 585, 228 P. 2d 699, we stated at page 591 of the opinion:
“. . . The condition or appliance must be something unusual and which is of a nature rendering it peculiarly or unusually attractive or alluring to children. The object must be one and so situated that the owner knew, or should have known, it was attractive to children of tender years. In this case plaintiffs do not allege that the defendants knew or should have known children had played about the pole in question and that it was attractive and dangerous to children. What they do allege is that defendants could have known those facts. That is insufficient. The word should’ denotes duty. The word 'could’ denotes no more than a possibility.”
There is no evidence that any child, including Lloyd Charles, had ever before entered the back yard enclosure. Any inference of knowledge was refuted by the nature of the back yard fence which enclosed the premises. (C. K. & W. Rld. Co. v. Bockoven, supra.)
It is necessary that the instrumentality alleged to be an attractive nuisance should have been so situated as to entice the child onto the premises before liability could be imposed. It is not sufficient that it attract him after he had already become a trespasser. It was established by the evidence in this case that the swimming pool could not be seen from the street or sidewalk where the gate to the back yard was located.
Unfortunate as the accident to the child may be, a case must not be determined on sympathy rather than sound principles of law. A higher degree of care for the protection of a trespassing child should not be imposed on a property owner than is expected of a parent or custodian. Rules should not be adopted which, if carried to their logical conclusion, would make a property owner an insurer of a trespassing child against all injury. Such rules would make the ownership of property and modem conveniences well-nigh intolerable.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Schroeder, J.:
This is a plenary action brought by a trustee in bankruptcy to recover the value of a certain stock of merchandise taken by the defendants from the bankrupts by virtue of a chattel mortgage executed between the defendants and the bankrupts on December 9, 1960. The trustee sought to set aside the transactions between the defendants and the bankrupts on the ground that they constituted a voidable preference under the Bankruptcy Act. The trustee prevailed in the court below, and appeal has been duly perfected by the defendants.
The primary question presented by this appeal is whether the transaction in question constituted a voidable preference under the Bankruptcy Act. A secondary question is presented as to whether the transaction between the defendants and the bankrupts violated the Kansas Bulk Sales Law.
The case was submitted to the trial court for decision upon facts which were stipulated by counsel for the respective parties.
The parties stipulated, in substance, that James L. Quinn (plaintiff-appellee) was appointed trustee in bankruptcy of the estate of Galen Smith Houdyshell and Luella Taylor Houdyshell, his wife, and brings this plenary action in his official capacity as the trustee in bankruptcy to recover from Walter Voorhees and Georgetta M. Voorhees, his wife, (defendants-appellants) the value of a certain stock of merchandise taken by the appellants from the possession of Houdyshells, the bankrupts. The trustee also sought to recover possession of the books, records and accounts receivable ledger now in the possession of the appellants.
On or about the 9th day of December, 1960, the bankrupts executed a document which purported to be a chattel mortgage on certain goods and chattels located at 916 Kansas Avenue, Topeka, Kansas. This document was admitted into evidence. The goods and chattels described in the mortgage were as follows: “Such goods and chattels being the stock of merchandise and Accounts Receivable to Houdyshells.”
There was no apparent change in the operation of the business known as Houdyshell Men’s Wear, and Galen Smith Houdyshell continued to operate the business in the same manner as he had been doing prior to the execution of the mortgage in question. The chattel mortgage also provided that:
“Mortgagors should have the right to sell any of the stock of merchandise in the usual course of business. However, it is agreed that the mortgage on the stock of merchandise shall be a continuing mortgage and mortgagors will substitute merchandise of equal quality and value to replace the stock of merchandise sold in the ordinary course of business.”
The mortgage also provided that the mortgagees should have the right of possession upon the breach of any of the covenants contained therein or the default in performance of any of the terms. The chattel mortgage was recorded on February 16, 1961, at 3:23 p. m. in the office of the Register of Deeds of Shawnee County, Kansas.
On December 9, 1960, the same date upon which the purported chattel mortgage was executed, the appellants and the bankrupts executed a dissolution of partnership agreement and promissory note, which were received by the trial court in evidence. From December 9,1960, until December 31,1962, the bankrupts operated the business, sold merchandise at retail and purchased merchandise to replenish the stock, all in the usual course of a retad business. During this time the bankrupts made payments to the appellants in accordance with the terms of the dissolution of partnership agreement and chattel mortgage. These payments were stipulated by the parties to be in accordance with the terms of the documents executed by the appellants and the bankrupts, and bore no direct relation to the amount of sales which were made in the course of the operation of the business. It was further stipulated that 20 percent of the merchandise on hand at the time the appellants took possession of the stock from the bankrupts was the original merchandise which was on hand at the time of the execution of the mortgage, and that 80 percent of the stock had been acquired subsequent to the execution of the mortgage.
On or about the 31st day of December, 1962, the appellants demanded and took possession of the entire stock of merchandise, the books, records and accounts receivable ledger of the business, and, it is stipulated, at that time the appellants had reasonable cause to believe the the bankrupts, doing business as Houdyshell Men’s Wear, were insolvent.
Thereafter, the appellants sold the property and, in accordance with an agreement between the parties, deposited the money in the First National Rank of Topeka where it remains at this time subject to the orders of the court.
On the 7th day of January, 1963, a voluntary petition in bankruptcy was filed by the Houdyshells, doing business as Houdyshell Men’s Wear, and subsequently they were adjudged bankrupt on said petition.
The trial court held the act of taking possession of the mortgaged property by the appellants constituted a voidable preference under the Bankruptcy Act, and further held, in ruling upon the motion for a new trial, that the transaction between the appellants and the bankrupts violated the Kansas Bulk Sales Law.
It has repeatedly been held by this court that a mortgage covering after-acquired property is an executory contract giving the mortgagee the right of possession upon acquisition. (Campbell v. Quinton, 4 Kan. App. 317, 45 Pac. 914; Cameron, Hull & Co. v. Marvin, 26 Kan. 612; and Johnson v. Interstate Securities Co., 152 Kan. 346, 103 P. 2d 795.)
It has also been held if the mortgagee takes possession of the after-acquired property with the mortgagor’s consent, the mortgage is effectuated. (Bank v. McIntosh, 72 Kan. 603, 613, 84 Pac. 535; and cases cited therein.)
It has even been held where the holder of an unrecorded chattel mortgage takes actual possession of the property, with the consent of the mortgagor, the mortgage is valid as against a creditor whose execution was levied on the mortgaged property after the mortgagee took possession. (National Bank v. Hannaman, 115 Kan. 370, 223 Pac. 478.)
In Jacquart v. Jennings, 118 Kan. 224, 235 Pac. 101, Jones on Chattel Mortgages, 5th ed., § 164a, is approvingly quoted as follows:
“ ‘It is immaterial whether the mortgagee takes possession in invttum or the mortgagor voluntarily puts him in possession, if the act be done in pursuance of a license contained in the deed. In the one case as much as in the other, the mortgagee obtains possession by virtue of a valid contract which entitles him to such possession.’ ” (p. 226.)
(See, also, Wyatt v. Duncan, 149 Kan. 244, 87 P. 2d 233.)
In Gagnon v. Brown, 47 Kan. 83, 27 Pac. 104, it was said:
“. . . If a mortgagee takes possession of the mortgaged property before any other right or lien attaches, his title under the mortgage is good against everybody, if it was previously valid between the parties. . . .” (Emphasis added.) (p. 85.)
In actions such as these by a trustee in bankruptcy appointed pursuant to federal law, the validity of the chattel mortgage is to be determined by the law of Kansas. (Etheridge v. Sperry, 139 U. S. 266, 35 L. Ed. 171, 11 S. Ct. 565 [1891]; and Bussert v. Quinlan, 267 F. 2d 219 [10th Cir. 1959].)
Under Section 70 (c) of the Bankruptcy Act (11 U. S. C. A. § 110 [c]) the trustee, as to all property, whether or not coming into pos session or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of the bankruptcy, shall be deemed vested as of such date with all the rights, remedies and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists. It has been said the trustee under this section stands in the position of a judgment creditor holding an execution duly returned unsatisfied.
Section 70 (e) (11 U. S. C. A. § 110 [e]) gives the trustee whatever rights any creditor of the bankrupt with a provable claim has under state or federal law to attack a transaction which is fraudulent and voidable for any other reason by such creditor.
Thus, if the chattel mortgage here in question is void under the laws of Kansas as to creditors in the categories above mentioned, it is void as against the trustee in bankruptcy. (See, Bussert v. Quinlan, supra.)
In Section 60 (a) (1) of the Bankruptcy Act (11 U. S. C. A. § 96 [a] [1]) a preference is defined as follows:
“A preference is a transfer, as defined in this title, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this title, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.”
Section 60 (a) (2) of the Bankruptcy Act (11 U. S. C. A. §96 [a] [2]) provides in part:
"... a transfer of property other than real property shall be deemed to have been made or suffered at the time when it became so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee. . . .”
In the Collier Bankruptcy Manual (2nd ed. 1964), § 60.01, p. 619 it is stated:
“. . . Briefly stated, the elements of a preference under § 60a consist of a debtor (1) making or suffering a transfer of his property, (2) to or for the benefit of a creditor, (3) for or on account of an antecedent debt [resulting in a depletion of the estate], (4) while insolvent, and (5) within four months of bankruptcy or of the original petition under Chapters X, XI, XII or XIII of the Act, (6) the effect of which transfer will be to enable the creditor to obtain a greater percentage of his debt than some other creditor of the same class. Subdivision h of § 60 then provides that such a preference may be avoided by the trustee under proof of the additional element that (7) the creditor receiving or to be benefited by the preference had reasonable cause to believe that the debtor was insolvent. . . .”
It is important to note the mortgagee in this case obtained possession of the mortgaged property prior to the filing of any liens or claims upon the mortgaged property by virtue of his chattel mortgage which had been executed and recorded more than two years prior to the time at which he took possession.
The only Kansas decision touching the point in question is Wyatt v. Duncan, supra, which the appellants assert as virtually a “bay horse” case and decisive of all the issues raised in the instant case. In that case the instrument involved was a conditional sales contract rather than a chattel mortgage. There a trustee in bankruptcy brought an action to recover damages against a surety on a replevin bond, which had been given in a replevin action by a vendor, prior to the filing of a petition in bankruptcy by the vendees, to recover possession of a stock of merchandise and fixtures from the vendees who had purchased the same under a conditional sales contract which had never been recorded. The trustee, among other things, contended that the transaction constituted a preference under the Bankruptcy Act. After an exhaustive review of the decisions concerning similar circumstances, where both conditional sales contracts and chattel mortgages were involved, the court held:
“The vendor retained title to the property under the express terms of the contract, and obtained possession thereof by virtue of judicial process, and not by reason of any act of the vendees. The vendor obtained possession of the property before any creditor obtained a specific right in or a lien upon the property and prior to the filing of the petition in bankruptcy by the vendees; the taking of possession, under the circumstances, operated as a filing of the contract for record; the act of taking possession within the period of four months prior to the filing of the petition in bankruptcy did not constitute a preference or a transfer under the provisions of the national bankruptcy act (11 U. S. C. A. §96), nor did it constitute a preference or transfer under that act by reason of the provision in the contract which vested title in the vendor to after-acquired property.” (Syl. f S.)
It must be recognized when the Wyatt decision was announced the Bankruptcy Act provided that the trustee occupied the status of a hona fide purchaser for value, while at the present time, by reason of amendment to the Bankruptcy Act, the trustee now stands in the shoes of a judgment creditor holding an execution duly returned unsatisfied. The change in the status of the trustee makes no difference, however, in the practical application in the rules of law stated in Wyatt v. Duncan, supra.
The language of Section 60 of the Bankruptcy Act (11 U. S. C. A. § 96) must be read together with the language in Section 70 (a) of the Bankruptcy Act (11 U. S. C. A. § 110 [a]), the pertinent portion of which provides:
“(a) The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this title, . . .” (Emphasis added.)
In a comprehensive annotation in 134 A. L. R. 1219, et seq., the case of Wyatt v. Duncan, supra, is cited as stating the majority rules of law with respect to the issues involved in the instant case. In a later annotation in 71 A. L. R. 2d 1446, et seq., it is apparent that subsequent to the revisions of the Bankruptcy Act in which the status of the trustee was changed as above set out, a majority of the states which have decided this precise question have not allowed the trustee to prevail.
The appellee, and the lower court in its decision, relied upon Bussert v. Quinlan, supra, decided in the United States Court of Appeals for the 10th Circuit, which based its decision upon a construction of the Kansas law. It is to be noted, however, the mortgagee in the Bussert case never took possession of the after-acquired mortgaged property.
Language relied upon by the trial court in the Bussert case was quoted from Bank v. Hardman, 89 Kan. 212, 131 Pac. 602, as follows:
“ ‘Where a chattel mortgage is executed upon a stock of merchandise, and the mortgagor by consent of the mortgagee, whether expressed in writing or not, malees sales in the ordinary course of business, without applying any of the proceeds to the payment of the mortgage debt, the transaction amounts to a legal fraud upon creditors, and the instrument is void as to them. While a different view is taken in some jurisdictions, this is the settled doctrine in Kansas. Implement Co. v. Schultz, 45 Kan. 52, 25 P. 625; Smith v. Epley, 55 Kan. 71, 39 P. 1016. See, also, other cases cited in 6 Cyc. 1108, and Brooks v. Bank of Beaver City, 82 Kan. 597, 109 P. 409. Whether the mortgage is recorded or not can make no difference with the application of this rule.’ ” (p. 222.)
An analysis of Bank v. Hardman, supra, discloses that the quoted language has application to the facts there before the court. There a surety on a note, who was induced to become such by the assurance of the payee that its payment was to be fully secured by a chattel mortgage upon a stock of merchandise, intended when he signed the note that the mortgagor should be permitted to remain in the possession of the goods, and to make sales in the usual course of business, without applying the proceeds to the debt. Where this course was followed, it was held, the mortgage was thereby rendered invalid by conduct in which the surety participated, and he could not escape liability on the note by showing that without his knowledge the mortgage had been withheld from record.
On the facts in that case the chattel mortgage in the bankruptcy proceedings was adjudged void because at the time the mortgage was executed the owners of the note withheld it from record, by agreement with the mortgagee, in order to give him a false appearance of good credit. The opinion does not disclose that the mortgagee ever took possession of the mortgaged property. The law above quoted from the opinion follows decisions where the mortgagee of a chattel mortgage leaves the mortgagor in possession of the property covered by the mortgage, and has never taken possession of the property pursuant to the terms of the chattel mortgage, where rights of attaching or lien creditors have intervened. (See, Johnson v. Interstate Securities Co., 152 Kan. 346, 103 P. 2d 795.) At the foundation of the decision in Bank v. Hardman, supra, was the failure of the mortgagee to record the chattel mortgage. In holding the surety hable on the note the recording of the mortgage was immaterial because the surety had full knowledge of the material facts. (See, Humphrey v. Mayfield, 63 Kan. 208, 65 Pac. 234, upon which the trial court also relied.)
On the facts in this case there were no attaching creditors or lien creditors who acquired any right to the merchandise, including the after-acquired property, prior to the time the mortgagee took actual possession of the property covered by the chattel mortgage. (This we must assume from silence of the record on the point, where the trustee has the burden of proof.)
We hold where the mortgagee of a recorded chattel mortgage covering a stock of merchandise, including after-acquired property, takes possession of the property covered by the mortgage pursuant to its terms within the four-month period prescribed by the Federal Bankruptcy Act, under the terms of a mortgage between the parties executed in good faith prior to the four-month period, and there are no attaching creditors or hen creditors who acquired any right in the property covered by the mortgage prior to the time the mortgagee takes actual possession of such property, the act of taking possession does not constitute a voidable preference or transfer within the meaning of the Bankruptcy Act.
Did the transactions between the parties constitute a violation of the Kansas Bulk Sales Law?
G. S. 1949, 58-101 (now K.S.A 58-101) provides:
“The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditors of the seller, unless the purchaser receives from the seller a list of names and addresses of the creditors of the seller certified by the seller under oath to be a complete and accurate fist of his creditors and unless the purchaser shall, at least seven days before taking possession of the property, or before paying therefor, notify in person or by registered mail, every creditor whose name and address is stated in said list, or of whom he has knowledge of the proposed sale.”
The trustee contends the transaction between the appellants and the bankrupts is void as to other creditors by reason of the foregoing statute. The trustee argues the appellants demanded and took possession of the entire stock of merchandise and books of record of the bankrupts, doing business as Houdyshell Men’s Wear, on December 81, 1962; that at the time possession was acquired the appellants knew the Houdyshells were insolvent; that on January 7, 1963, the bankrupts filed their voluntary petition in bankruptcy and were subsequently adjudged bankrupt. It is argued at no time did the bankrupts or the appellants give notice to the creditors of the bankrupts of the transfer or disposal as required by the Kansas Bulk Sales Law.
In Joyce v. Armourdale State Bank, 127 Kan. 539, 274 Pac. 200, it is held:
“Where a merchant borrows money, and to secure the same gives a chattel mortgage on his stock of goods and fixtures, and, finding himself unable to make the required payments, surrenders and delivers to the mortgagee all or a substantial portion of the goods and fixtures in compliance with the terms of the mortgage, it is such a disposal of the merchandise and fixtures as is contemplated to be within the meaning of the term ‘sale and disposal’ as used in the bulk-sales law and is a disposal otherwise than in the ordinary course of his trade or business as described in that law.” (Syl. ¶ 1.)
There the time elapsed between the giving of the chattel mortgage and the taking of possession by the mortgagee was seven months. The stipulation showed there were a number of creditors of the merchant when the mortgage was executed; that they continued as such; and that they and others were creditors when bankruptcy proceedings were instituted twelve months later.
G. S. 1949, 58-307 (now K. S. A. 58-307) provides:
“In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.”
In Wyatt v. Duncan, supra, the passing of title to the mortgagee upon the execution of a chattel mortgage was cited as material in disposing of a similar question under the Kansans Bulk Sales Law. This is not the law in many other jurisdictions.
The appellants rely upon Faeth Co. v. Bressie, 125 Kan. 425, 264 Pac. 1077, by quoting the following language:
“. . . Since Walton had a valid mortgage on the equipment, the taking possession of the mortgaged property under the terms of the mortgage and selling it do not constitute a sale in violation of the bulk sales law. That law does not apply to sales made under judicial process (R. S. 58-104), and should not apply to a sale by a mortgagee under the provisions of a prior mortgage. The facts in this case differ from those in Bank v. Davis, 103 Kan. 672, 175 Pac. 972, for there the chattel mortgage, in the form of a bill of sale, was given by the merchant on his stock of merchandise, and the grantee or mortgagee was placed in possession of the property. The controversy there was between the grantee in this bill of sale and a then existing creditor of the merchant.” (pp. 427, 428.)
The foregoing language is explained by the holding of the court as set forth in the syllabus of the case, as follows:
“The bulk sales law (R. S. 58-101 et seq.) does not apply to a sale by mortgagee, made under the terms of a valid mortgage, duly executed, delivered and recorded prior to the creation of the debt sought to be enforced under the provisions of the bulk sales law.” (Syl.) (Emphasis added.)
We think a case material to a decision on this point is Citizens State Bank v. Rogers, 155 Kan. 478, 126 P. 2d 214. After the court there recognized the rule stated in Joyce, it said:
“. . . Does the rale apply where the mortgagor retains possession of the goods and chattels? The bulk-sales law was designed to prevent the defrauding of creditors by the secret sale or disposal in bulk of substantially all of a merchant’s stock of goods or fixtures pertaining thereto. (27 C. J. p. 873.) The evasion of the statute would be as easy where the possession was retained as where possession was surrendered at the time the mortgage was given. It is clear that the chattel mortgage before us is a disposal of the property within the meaning of the bulk-sales act, and that it is void as to the claims of creditors of Rogers created and existing on or before the date of the filing of the chattel mortgage for record.” (Emphasis added.) (pp. 479, 480.)
On the facts in the instant case there were no creditors of the bankrupts, other than the appellants, existing on the date of the filing of the chattel mortgage of record. (This we must assume from silence of the record on the point, where the trustee has the burden of proof.) The Bulk Sales Law is designed to protect only those creditors existing as of the date the chattel mortgage which has been executed is recorded. The trustee in bankruptcy was not appointed until approximately two years after the recording of the chattel mortgage in the instant case, and he acquired no rights until the date of his appointment, long after the execution and recording of the chattel mortgage.
Under the foregoing facts the Kansas Bulk Sales Law did not apply to the transactions between the appellants and the bankrupts. The appellee in its brief contends “the taking of possession of the property was a ‘transfer’ within the meaning of section 60 (a) (2) [of the Bankruptcy Act] under the laws of Kansas because this was the act which ‘so far perfected’ appellant’s mortgage ‘that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the right of the trustee.’ ”
It has heretofore been stated that the language of Section 60 of the Bankruptcy Act must be read together with the language in Section 70 (a) of the Bankruptcy Act. Thus, if under the Bulk Sales Law there is a “sale and disposal” of the merchandise as of the date the chattel mortgage on such merchandise is recorded within the meaning of the Bulk Sales Law, a further reason is indicated why the appellees’ argument lacks merit; and this is true, notwithstanding the fact that the rights of attaching or lien creditors which may intervene after the recording of the chattel mortgage on the merchandise, and prior to the mortgagee’s taking actual possession thereof, are permitted under Kansas law to defeat the right of the mortgagee to the merchandise.
The judgment of the lower court is reversed.
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The opinion of the court was delivered by
Price, J.:
This is an appeal by defendant, Melvin Lee Burnett, from a conviction of the offenses of kidnapping in the first degree (G. S. 1961 Supp., 21-449) and forcible rape (G. S. 1949, 21-424).
As a result of events occurring on the night of August 20, 1962, six men were charged in the district court of Bourbon county with the offenses of kidnapping in the first degree and forcible rape. Among them were Gerald Lee Woods, Allan Davis, and this defendant, Burnett. Woods was the first to be tried and was found guilty by a jury on both charges. Upon appeal to this court the judgment was affirmed in State v. Woods, 191 Kan. 433, 381 P. 2d 533. Our opinion was filed on May 11, 1963. On February 17, 1964, the Supreme Court of the United States denied his petition for a writ of certiorari (376 U. S. 919, 11 L. ed 2d 615, 84 S. Ct. 676).
A brief narration of the horrible details of the case is contained in the opinion in the Woods appeal. They will not be repeated here.
It also appears that Davis has been tried and convicted.
In the meantime the defendant in the instant case, Burnett, hereafter referred to as defendant, had been confined in the county jail awaiting trial.
On November 6, 1963, the matter came on for hearing. Defendant was present in the court in person and by Chester I. Lewis of Wichita, his employed attorney. Whereupon, in open court, the following written stipulation was entered into:
“Stipulation
“Now on this 6th day of November, 1963, the same being a regular judicial day of the September, 1963, term of this court, the above entitled matter comes on for trial upon the charges alleged in the Information of First decree kidnapping and forcible rape. The State of Kansas appears by Charles M. Warren, County Attorney, and Howard Hudson, Special Prosecutor. The defendant appears in person and by his attorney, Chester I. Lewis.
“Thereupon, tire defendant in open court pleads not guilty to the charge of forcible rape and not guilty to the charge of first degree kidnapping. Thereupon, the parties in open court stipulate and agree that a trial by jury shall be waived upon trial of the charge of forcible rape and tire charge of first degree kidnapping and that said matter shall be submitted to the court.
“It is further stipulated and agreed that heretofore companion cases arising out of the alleged incidents were tried in the above named court before a jury, to wit: The State of Kansas, plaintiff, versus Gerald Lee Woods, defendant, # 4134, and the State of Kansas, plaintiff versus Allan Davis, defendant, # 4133.
“It is further stipulated and agreed that all of the evidence of all of the witnesses for the parties as presented in the trial of said two cases shall be considered as if the witnesses were personally present and presented such evidence subject to all objections, ruling on motions, motions, or other objections of every kind and nature presented in said trials, motions for new trials, or any other hearings had on the companion cases shall be considered by the court in the trial of this action.
“Counsel for the State and defendant further stipulate and agree that this Court which presided over the two trials aforementioned shall make its judgment in captioned case upon the evidence and law presented in the said two trials aforementioned taking into consideration all rulings on objections made.
“Counsel for the State and Counsel for defendant further stipulate and agree that it is expressly understood that the Court’s rulings on all objections made and instructions presented to the jury for all practical purposes would be the same if the captioned case was tried, and that the Court is relying on the instructions of law presented in the other two trials, noting all objections made, and rulings thereto in making its judgment and decree herein.
“It is further stipulated and agreed that if on a motion for a new trial or upon an appeal or other decision of any court, the retrial of the above entitled action shall be granted or become necessary, the defendant specifically reserves the right to trial by jury at any subsequent trial.
/s/ Charles M. Warren
Charles M. Warren Fort Scott, Kansas County Attorney
,/s/ Howard Hudson
Howard Hudson Fort Scott, Kansas Special Prosecutor
/s/ Chester I. Lewis
Chester I. Lewis Wichita, Kansas Attorney for Defendant
approved by:
/s/ Robert H. Miller
District Judge”
The record shows that on this date Dale Kinnell and Dennis Ayers, charged with the same offenses, also were present in court in person and by counsel, and that they also had entered into identical stipulations. We are concerned, however, with only the case of defendant Rurnett.
At the time the stipulation was entered into the record also shows the following:
The trial judge stated that he had carefully studied the stipulations and that on the previous day he had re-read the transcripts of the Woods and Davis trials. Defendant was asked if he had had an opportunity to read and examine the stipulation and to go over its terms with his attorney. He replied in the affirmative.
“Thereupon, the Court read said stipulation in open court.
“Thereupon, the Court inquired of the defendant, Melvin Burnett, if he had heard the reading of the stipulation, if said stipulation had been explained to him, and if he was in agreement in submitting his case to the court upon said stipulation. To the court’s inquiry, the defendant stated that he had heard the reading of the stipulation, that said stipulation had been fully explained to him by his attorney, and that he desired to submit his case to the court upon said stipulation.
“Thereupon, the Court after inquiring of the defendant concerning said stipulation approved said stipulation and ordered it filed and recorded.”
Mr. Lewis, his attorney, stated:
“I have no further statement to make to the Court. The statements made heretofore, I think, were clear to this defendant. He was here and heard them. Therefore, the Court may proceed, as far as we are concerned.”
and that the case was submitted on the record without additional evidence.
“Thereupon, the Court, after consideration of the evidence, law and all other matters presented in the State of Kansas, plaintiff, versus Gerald Lee Woods, defendant, No. 4134, and the State of Kansas, plaintiff, versus Allan Davis, defendant, No. 4133, both cases having been heard by this Court in Bourbon County, Kansas, and the Court being fully advised in the premises finds that the said defendant, Melvin Burnett, is guilty of kidnapping in the first degree under Section 21-449, 1961 Supplement to the General Statutes of Kansas, 1949, and guilty of forcible rape under Section 21-424 of the General Statutes of Kansas, 1949, as charged in the Information filed herein.”
Defendant was given until November 12, 1963, to file a motion for a new trial. On November 20, 1963, defendant was present in court in person and by counsel. His motion for a new trial was overruled. Upon being asked by the Court if he had any legal' cause to show why judgment and sentence should not be pronounced, defendant answered “No.”
Accordingly, on the charge of kidnapping in the first degree defendant was sentenced to confinement in the state penitentiary for life, and on the charge of forcible rape he was sentenced to confinement for a term of not less than five years nor more than twenty-one years, such sentences to run concurrently. It was further ordered that defendant be given credit on the sentences for the time he had been confined in the county jail awaiting trial.
Subsequently, defendant, pro se filed a notice of appeal. At defendant’s request Mr. W. C. Jones, a capable and experienced attorney of Olathe was appointed by the trial court to represent defendant in his appeal. Mr. Jones filed an abstract and brief and orally argued the appeal on November 2,1964.
Five specifications of error are asserted, the first being the order overruling defendant’s motion for a new trial. This specification is, however, for all practical purposes, abandoned — defendant’s contention being that he did not have a “trial” in the first instance.
The second and third specifications of error are that the trial court erred in assenting to a waiver of a jury being entered by de fendant when he stood charged with a capital offense punishable by death, and that the trial court erred in permitting defendant to submit his case on the records of the Woods and Davis cases, particularly after the conviction in the Woods case had already been upheld by this court.
It is contended that by waiving his right to a trial by jury defendant, among other things, “frittered away” his right to a voir dire examination of prospective jurors so as to ascertain their backgrounds and feelings in the matter; his right to insist that the rules of reasonable doubt, burden of proof, and the presumption of innocence, would prevail throughout the trial; that he thus was denied the opportunity to confront the witnesses, and that a jury trial would have required a verdict of all twelve of his peers. It also is contended that this court should denounce G. S. 1961 Supp., 62-1401 (quoted later herein) as being unconstitutional on the ground it is contrary to public policy. It further is argued that a jury trial cannot be waived on a plea of “not guilty” where, as here, the statute (G. S. 1961 Supp., 21-449) directs that the jury shall determine the punishment.
We believe that under the facts presented the foregoing contentions are without merit and cannot be sustained.
From 1868 until 1955 the statute (G. S. 1949, 62-1401) applicable to trial by jury in criminal cases read:
“The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court, except in cases of felonies. All other trials shall be by jury, to be selected, summoned and returned as prescribed by law.”
In State v. Scott, 156 Kan. 11, 131 P. 2d 664 (1942), one of the jurors become ill during the trial. The defendant consented that the trial proceed with the remaining eleven jurors, and that was done. Defendant was charged with a felony but was convicted of a misdemeanor, and appealed. It was held:
“The defendant in a criminal action for felony may intelligently and affirmatively, and with the consent of the prosecuting attorney and of the trial court, waive his right to trial by a jury of twelve persons and consent to trial by a lesser number.” (Syl. 1.)
In discussing the statute (62-1401, above) it was said in State v. Ricks, 173 Kan. 660, 250 P. 2d 773 (1952):
“The actual question now presented is not whether a defendant may waive trial by jury in a felony case or whether there may be a lawful trial in such a case if the parties agree to waive a jury and the court assents thereto. The specific and only question before us is whether a defendant’s waiver of trial by jury in a felony case compels the court to try the case alone over the objection of the state. Our answer is it does not.
“It is true a defendant in a criminal case enjoys the constitutional right or privilege of trial by jury. That is a personal right of which he may not be deprived against his will. Being a right personal to him he, of course, need not insist upon it for his own protection. In other words he may waive it insofar as he is personally concerned. It does not follow, however, that he, therefore, has a right to compel a court to try his case without the assistance of a jury. The constitution does not grant him such power over the trial court.” (p.664.)
In 1955 the legislature repealed the mentioned statute and enacted the following, which now appears as G. S. 1961 Supp., 62-1401:
“The defendant and prosecuting attorney, with the assent of the court, may submit the trial to the court. All other trials shall be by jury, to be selected, summoned and returned as prescribed by law.”
The language of this statute is clear, and simply means that a jury may be waived in any criminal trial, including one for felony— provided the defendant, the state, and the trial court, assent to such waiver. No exception is made for a capital case. On the question as to the validity of such statutes see the Annotation in 48 A. L. R. 767, at p.772.
At both his preliminary examination and in the trial court, defendant was represented by his own experienced attorney. Mr. Lewis also had represented both Woods and Davis, and thus was thoroughly familiar with the records of their trials. The facts before us are such that he could have entered a binding plea of guilty for defendant (State v. Spain, 193 Kan. 1, 4, 5, 391 P. 2d 1001). The record clearly discloses that defendant knew and understood what he was doing — he voluntarily entered a plea of not guilty, waived a trial by jury, and consented that he be tried by the court on the record of the Woods and Davis trials. No valid reason has been presented, and we know of none, why, under the circumstances, defendant and his counsel could not proceed as they did. It is true that the kidnapping statute (G. S. 1961 Supp., 21-449) provides that if there is a jury trial the jury shall determine the punishment, and that if there is a plea of guilty the court shall fix the punishment and in doing so shall hear evidence. It also is true that G. S. 1961 Supp., 62-1401, above, is silent on the subject of determining punishment. But, construing the two statutes together, it is clear that the trial judge, in a case where the plea is “not guilty” and a jury is waived — is empowered to fix the punishment. Who else could? In passing, we mention the fact that the trial judge in this case was the same trial judge who presided in the Woods and Davis trials — and thus was thoroughly familiar with the entire matter.
The fourth specification of error is that the trial court committed reversible error in failing to instruct in the Woods case concerning the testimony of an accomplice.
Defendant concedes — and the record shows — that no such instruction was requested in the Woods case. In view of the fact defendant submitted the case against him on the record of the Woods case— the question is not now before us for review.
In his fifth and last specification of error defendant contends that the entire proceedings in the lower court constitute an invasion of his constitutional rights and are contrary to public policy, and that this court should not place its stamp of approval upon such a “travesty of justice.”
In this connection it is argued that because the trial judge re-read the transcripts of the Woods and Davis trials on the day before defendant’s case came up for hearing, defendant was, in fact, tried in absentia in violation of G. S. 1949, 62-1411, which provides that no person can be tried for a felony unless he be personally present during the trial.
This contention likewise is without merit and cannot be sustained. Entirely aside from the fact that defendant, in open court, voluntarily stipulated to submit his case on the records of the Woods and Davis trials, it is clear that from a practical standpoint the trial judge did the only proper thing — on the day before defendant’s case was to be called he re-read the records of those cases so as to refresh his memory on all details. The trial was not ‘held” in defendant’s absence. Furthermore, defendant not only raised no objections to the entire procedure followed — he acquiesced in and agreed to it.
We find no error in the proceedings below and the judgment is affirmed.
Schroeder, J., dissents.
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The opinion, of the court was delivered by
Wertz, J.:
Plaintiffs (appellees) brought this action for the removal of a connecting sewer line which defendants (appellants) through their predecessors in title caused to be constructed on plaintiffs’ property. On a previous appeal to this court (Robbins v. Hannen, 190 Kan. 711, 378 P. 2d 1) it was held the petition stated a cause of action for the removal of defendants’ connecting sewer line.
The facts in this matter were amply narrated in Robbins v. Hannen, supra, and need not be restated other than where necessary for clarification of the issues to be determined.
The City of Burlington passed an ordinance requiring all property owners of buildings located near a sewer, or in a block within a sewer district, to make connections with the city sewer, and the failure of any property owner to so do gave the city the right to advertise for bids for the construction and making of such connection and to assess the costs thereof against the property.
In an attempt to comply with the terms of the ordinance, the defendants through their predecessors entered into a contract with plaintiffs through their predecessors for the purpose of permitting defendants to run a lateral sewer line through the wall of the building and across the city lots owned by plaintiffs and to connect such line into the existing connecting sewer line of plaintiffs leading to the city sewer. The agreement expressly provided, in pertinent part:
“. . . that if said sewer shall prevent said second party [plaintiffs] from at any time selling his above-described property, then in that event said first parties [defendants] shall remove the same from said premises after being notified in writing to that effect, but they shall have 60 days in which to remove same from said premises; . . .”
Subsequently, plaintiffs P. S. Robbins and his wife Josalyn entered into a contract with their adopted son, plaintiff, Dick Robbins, to sell and convey their property, clear of all encumbrances, by general warranty deed and to furnish an abstract showing a good merchantable title. In accordance with the mentioned written agreement, plaintiffs caused written notice requesting removal of the lateral sewer line from plaintiffs’ premises within sixty days to be served personally upon each defendant. Defendants refused to remove the sewer line and plaintiffs commenced this action against defendants, based upon the provisions of the mentioned contract, seeking to have defendants remove their connecting sewer line from plaintiffs’ premises so that merchantable title might be given by plaintiffs to the purchaser of their property.
In Robbins v. Hannen, supra, we held that plaintiffs’ petition stated a cause of action against defendants and that the existing sewer easement across plaintiffs’ property contracted to be sold by them constituted an encumbrance on plaintiffs’ property.
The defendants filed an answer setting up as a defense that the city ordinance required them to make connection with the sewer and that they did so with the approval of the board of health, and, therefore, the contract was in contravention of the ordinance and unenforceable. The plaintiffs’ motion to strike this defense from the answer on the grounds it was not a defense under the issues was sustained by the trial court.
The case proceeded to trial. The plaintiffs introduced their evidence consisting of the sewer agreement made by the parties; tihe contract between the plaintiffs, P. S. and Josalyn Robbins, and the purchaser of their property, Dick Robbins; die notice of the plaintiffs served on the defendants to remove the sewer line within sixty days from the date of the notice; evidence that the plaintiffs had entered into the contract for die sale of their property to Dick Robbins and had received a $500 down payment; the request by the purchaser that tire sewer easement be removed, as it constituted an encumbrance upon the property, and the defendants’ refusal to so remove the sewer line; and other evidence in support of the allegations of plaintiffs’ petition. The defendants demurred to plaintiffs’ evidence on the ground it was insufficient upon which to base recovery. The court overruled the demurrer and the defendants chose not to introduce any evidence but to stand on their demurrer. The court entered judgment in accordance with tire prayer of plaintiffs’ petition, from which order defendants appeal.
Defendants first contend the trial court erred in sustaining plaintiffs’ motion to strike from the defendants’ answer the city ordinance pleaded by them. They contend the ordinance is a valid exercise of police power and supersedes and voids the provisions contained in the sewer line agreement between the parties. Plaintiffs concede the validity of the ordinance but maintain it contemplates connecting with the city sewer line and not the lateral connection line of the plaintiffs. We think the trial court correctly sustained the motion to strike from the answer all reference to the ordinance, in that the wording of the ordinance obligating all property owners to connect with the sewer obviously means the city sewer system. There is nothing in the ordinance authorizing defendants to connect with the service line of an individual property owner leading to the city sewer system, such as in the instant case; moreover, there is nothing in the ordinance which in any manner would conflict with the terms of the sewer easement contract entered into between the plaintiffs and the defendants.
Defendants next contend the court erred in allowing plaintiffs’ attorney to act in the dual capacity of witness and attorney. The record discloses that the testimony of plaintiffs’ attorney dealt with a mere formal matter, i. e., the receipt of a letter. On this point the trial court said, “The circumstance testified to here was but the simple fact of receiving a letter in the ordinary course of mail and is of such a formal character as not to be within the conduct denounced by the decisions and proper standard of ethics.”
Canon 19 of the Canons of Professional Ethics (164 Kans. XV) adopted by the American Bar Association and the Kansas Bar Association provides:
“When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”
The decisions of this court are not at variance with the spirit and intent of the rule just quoted. With respect to merely formal matters, there is ordinarily no breach of professional ethics in a lawyer’s giving testimony in an action in which he is serving as an attorney. We are of the opinion that counsel’s testimony in the instant case was competent, as it related only to a merely formal matter, and his conduct in testifying was not a violation of the Canons of Professional Ethics or contrary to the prior decisions of this court.
Other matters raised have been considered and found to be without substantial merit to authorize a reversal, and the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a declaratory judgment action between two school boards to determine whether territory annexed to the City of Wichita should become subject to the jurisdiction of the Board of Education of the City of Wichita.
The question is whether “territory of an adjacent school district” found in the provisions of G. S. 1961 Supp., 72-5316a, et seq. (now K. S. A. 72-5316a, et seq.) means any and all adjacent school territory without regard to the class of the adjacent school district.
The Board of Education of the City of Haysville (plaintiff-appellant) hereafter referred to as the appellant, administered the public schools for grades one through eight for a defined territory located outside the city limits of Haysville, the same being attached territory, which is located adjacent to the city limits of Wichita, Kansas, on the south. The public high school grades nine through twelve for pupils residing in the appellant’s school district were and are administered by an independent high school district. Such high school district also included three additional common school districts within its territorial boundaries.
For many years the appellant’s school district was Common School District No. 187, Sedgwick County, Kansas, and its common school district territory included the City of Haysville and a1 rural or suburban county area surrounding such city. The City of Haysville is located approximately three miles south of Wichita, Kansas. In 1958 the City of Haysville, by reason of population growth, became classified as a city of the second class. This transition of the City of Haysville from the status of a city of the third class to a city of the second class also effected a change in classification of the common school district. It became a school district of a city of the second class. (G. S. 1961 Supp., 72-1611 and 72-1614 [now K. S. A. 72-1611 and 72-1614].) This transition from a common school district to a school district of a city of the second class did not affect the territorial boundaries of the former common school district and in the transition territory within the City of Haysville formed the basic territory of the school district and all territory of the former common school district outside the city limits of Haysville was “attached to such city for school purposes.” (G. S. 1961 Supp., 72-1614 [now K. S. A. 72-1614].) Following this change in the status of the appellant’s school district in 1958, the appellant continued to conduct and at the present time conducts public schools only for grades one through eight.
In the early part of 1963 the city limits of Wichita were extended by annexation and a portion of the territory annexed included a part of the attached territory of the appellant’s school district. The land or territory annexed to the City of Wichita was adjacent to the city limits of the City of Wichita prior to annexation. The territory annexed to the City of Wichita was situated wholly outside the corporate limits of the City of Haysville, Kansas.
The portion of the adjacent territory of the appellant’s school district annexed to the City of Wichita did not contain any school buildings used by the appellant for school purposes.
The Board of Education of the City of Wichita (defendantappellee) hereafter referred to as the appellee, maintains public schools through the twelfth grade for territory comprising the city limits of Wichita and “territory attached to such city for school purposes.” (G. S. 1961 Supp., 72-1611 [nowK. S. A. 72-1611].)
For school purposes the appellee claims it has a right to that portion of the territory located in the appellant’s school district which was annexed by the City of Wichita. It contends the property rights of the appellant and appellee should be determined under 72-5316a, et seq., supra.
The appellant contends its district is a second class school district, and that the statutes above referred to are not applicable to its school district; that it is not required to do any of the acts set out in said statutes because it is not an adjacent school district as defined and set out therein.
Thus, the issue presented by this action is whether or not the annexation ordinance adopted by the governing body of the City of Wichita, which extended the city limits of Wichita to include adjacent lands then a part of the attached territory of the appellant school district, effects a transfer of the annexed territory for public school purposes from the appellant’s school district to the appellee’s school district in accordance with 72-5316a, et seq., supra.
The trial court held the phrase “territory of an adjacent school district” as used in 72-5316a, et seq., supra, includes the territory annexed from the attached territory of the appellant’s school district, and that the rights between the parties are to be determined pursuant to such statutes.
By agreement and stipulation, dated the 28th day of June, 1963, as permitted by 72-5316b (a) (now K. S. A. 72-5316b [a]), the parties, without waiving their rights in the declaratory judgment proceedings, agreed that the annexation of territory of the appellant’s school district into the city limits of Wichita prior to June 30, 1963, be fixed and made “effective . . . for common-school and high-school purposes” as of June 30, 1965.
The legislative direction as to how school districts are affected when cities extend their boundaries into “an adjacent school district” is set out in 72-5316a, et seq. Section 72-5316a, supra, including preface, reads:
“Rights upon annexation of part of school district territory by extension of city limits. Whenever any city of the first or second class by the extension of its limits shall annex a part of the territory of an adjacent school district, the property rights and claims between the board of education of such city and the board of the adjacent school district shall be adjusted as provided in this act.”
It is the contention of the appellant that the legislature did not intend to include second class or first class school districts in the class of school districts referred to in the above statute. Here both the appellant and the appellee are boards of city school districts, the appellant having a school district of the second class, and the appellee having a school district of the first class, as defined by statute. (G. S. 1961 Supp., 72-1611 [now K. S. A. 72-1611].)
The appellant argues that nowhere in the statute does it refer to an adjacent school district as meaning a first or second class school district. The appellant quotes a portion of G. S. 1961 Supp., 72-5316b (a) (now K. S. A. 72-5316b [a]) as follows:
“The annexation of such territory shall not be effective for common-school or high-school purposes until June 30 . . . Provided, further, That the board of education of such city and the boards of the adjacent common-school district and tire adjacent rural high-school district may by mutual agreement determine and fix any other June 30 as the effective date of such annexation. . . .”
Ry reason of the foregoing it is argued that adjacent school districts are defined in the statutes as referring to adjacent common and rural high school districts.
The appellant also cites G. S. 1961 Supp., 72-1614 (now K. S. A. 72-1614) which reads in part as follows:
“. . . Whenever any city of the third class shall become a city of the second class, the territory of the common-school district in which such city is situated shall be and remain attached to such city for school purposes.”
The appellant also cites G. S. 1949, 72-302a (now K. S. A. 72-302a) which reads:
“All school districts, except community high-school districts, rural high-school districts, and schools located in cities of the first and second classes, shall hereafter be known as ‘common-school districts.’ Whenever in the statutes of this state school districts are referred to generally as such, or by a different term, such term shall be construed to mean common-school district as herein defined except when the context of such statutes clearly otherwise provides.”
The appellant concludes the provisions of 72-5316a, et seq., supra, refer to school districts generally. Therefore, the term “adjacent school district” should be construed and interpreted to mean common school districts and rural high school districts only.
While the foregoing analysis of the statutes by the appellant makes a good argument, we think such construction is too narrow.
It may be conceded the statutes in question have not been artfully drawn, but it is inconceivable that the legislature intended the territory of a school district of the city of the first class should be something less than co-extensive with the city boundaries.
By picking and choosing isolated portions of the various statutes the appellant has presented a plausible argument. On the other hand, the appellant’s argument is neutralized by the provisions of G. S. 1961 Supp., 72-1611 (now K. S. A. 72-1611) which read in part as follows:
“. . . (b) ‘city school district.’ The territory in any city of the first or second class together with the territory attached to such city for school purposes; (c) ‘board.’ The board of education of a city of the first or second class. . . .”
The foregoing language seems to be positive in its primary assertion that a city school district includes the territory within the limits of a given city.
We have been cited to no decision of this court construing the statutes in question on the point here presented.
Almost without exception a uniform pattern is indicated by the school laws in the State of Kansas that city school districts include territory which is at least co-extensive with the boundaries of the city. As cities grow by extending their territorial limits, the school laws seem to be designed to provide city school services for the children and families brought into the city. A philosophy has long existed in Kansas that when the city territory grows, the new residents of the city become full-fledged city residents for all governmental functions of the city, including the public schools, fire protection, police protection and other municipal services.
Except for a few words found in 72-5316b (a), supra, upon which the appellant places emphasis (where reference is made to the phrase “boards of the adjacent common-school district and the adjacent rural high-school district”) there is no reference in the statutes authorizing an exclusion of the attached territory of the appellant’s school district. This phrase upon which the appellant relies does not constitute a direct exclusion, but lends support to the appellant’s argument indirectly and by construction only.
In fact, a literal reading of 72-5316a, supra, seems to indicate clearly that the attached territory of the appellant’s school district is included within “the territory of an adjacent school district” as used in the statute.
The provisions of 72-5316a, et seq., supra, are primarily designed to cover situations encountered by two school districts whose rights are affected by the annexation of a part of an adjacent school district territory by a city ordinance enacted to extend the city boundaries. Other school laws enacted by the legislature which are not primarily designed to cope with this problem are not persuasive in construing 72-5316a, et seq., supra. In other words, they must yield to the construction of the primary statute dealing with this problem.
It has been held there are no vested rights in the existence of a school district. In State, ex rel., v. Board of Education, 173 Kan. 780, 252 P. 2d 859, the court said:
“Plaintiff also appears to argue that one school district is not permitted to attach the territory of another district. This cannot be true. Every foot of territory is within some school district. The result is that attachments of territory to any school district must involve the territory of some existing school district. It is well established by a long line of decisions that there are no vested rights in the existence of a school district and that the legislature has authority to extend or limit its boundaries, consolidate two or more as one,„or to abolish a district altogether. (State, ex rel., v. School District, 163, Kan. 650, 185 P. 2d 677, and cases therein cited.)” (p. 791.)
While not directly in point, a case involving a tug of war between the neighboring school boards of Pittsburg and Frontenac, respectively cities of the first and second class, over rural territory each sought to have attached to its school district for school purposes is State, ex rel., v. Board of Education, 128 Kan. 487, 278 Pac. 741. There the court said:
Plaintiff next argues that the board of education of a city of the first class has no authority to take territory outside of the corporate limits of the city for school purposes from territory already attached to a city of the second class for school purposes. It is argued that the legislature did not intend to authorize such action by a city of the first class. There is nothing in the statute from which this conclusion can be reached. If territory be added to the school district of a city of the first class it must of necessity be taken from some other school district, and the statute makes no distinction prohibiting the taking of territory from the school district of a city of the second class. If a city of the second class were so close to a city of the first class that a majority of the electors in the school district of the city of the second class desired to be annexed to a city of the first class for school purposes, there does not appear to be anything in the statute that would prohibit the electors from so petitioning, or that would prohibit the board of education of the city of the first class from acting on such a petition and annexing the entire territory of the city of the second class to the school district of the city of the first class.” (p. 491.)
We hold “territory of an adjacent school district” found in the provisions of 72-5316a, et seq., supra, includes the attached territory of the appellant’s adjacent school district, even though it is a part of the school district of a city of the second class.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action for damages resulting from injuries due to an alleged defective township road. The appeal is from an order of the district court of Reno County refusing to vacate a judgment of dismissal and permit the filing of an amended petition.
On December 31, 1963, the plaintiff filed her petition, which sets out the facts material to the controversy in that part, which reads:
“That on November 15, 1962, at about the hour of 7:30 o’clock P. M. on said date, Plaintiff was a passenger in a motor vehicle driven by her husband, A. W. Laokey, in a southerly direction on the township road situated between Section 36 of Little Valley Township and Section 31 of Superior Township, both townships being in McPherson County, Kansas; that said road runs North and South; that said road joins at right angles, and dead ends into the East and West roads running immediately North of and adjacent to Section 1, in Township 2, Range 4, Reno County, Kansas, which road is bounded on the South at said point by Medora Township.
“That said North and South road was maintained by the Defendants, and each of them, without any warning signs or other signals to warn drivers of the dead end corner immediately ahead; that immediately South of said intersection of said North and South road with said East and West road, was a road ditch approximately twenty-one inches in depth; that said road was dark in color and that the ditch and area immediately South of said road intersection was by reason of its dark color not distinguishable after dark from the road itself; that no barricade had been erected by the Defendants, or any of them, immediately to the South of said Ditch and intersection so as to warn drivers of said North and South road of said ditch; . . .”
The defendants, and each of them, challenged the petition with motions to dismiss because the petition failed to state a claim against the defendants upon which relief could be granted.
On March 4, 1964, the district court sustained the motions to dismiss, stating in a memorandum opinion that the conditions described in the petition did not constitute a defect within the meaning of K. S. A. 68-301.
Plaintiff then filed a motion for leave to file an amended petition. On April 3, 1964, the district court overruled the motion stating that after there had been a judgment of dismissal a petition could not be amended as a matter of course under the provisions of K. S. A. 60-215 (a).
On April 9, 1964, the plaintiff filed a motion to vacate the judgment and for leave to file an amended petition. The motion reads in part:
“Plaintiff states that my mistake and inadvertence, in said petition, she misstated the location of the ditch alleged to constitute a defect in said roads maintained by the Defendants and each of them, and desires to amend said petition so as to allege and state that said ditch was and is within the legal road limits at the point in the intersection where the Plaintiff’s injuries and damages were caused and occurred.”
The motion further stated that it was filed under the provisions of K. S. A. 60-260 (b) (1) and prayed that the court vacate and set aside the judgment of March 4, 1964. A copy of the amended petition was attached to the motion.
The district court overruled the motion and in a memorandum opinion stated:
“Plaintiff contends that by mistake and inadvertence the location of the allegedly defective ditch was misstated, and further adds that the defendants have installed a warning sign at the intersection of the roads alleged in the petition.
“A review of the authorities and an examination of the proposed amended petition and the applicable code provision compels the conclusion that the motion to vacate and for leave to amend should be overruled in its entirety. It is so ordered this 23rd day of June, 1964."
Thereupon the plaintiff perfected the instant appeal.
Appellant contends that her amended petition stated a cause of action and that therefore it was error for the trial court to refuse to vacate a judgment under the provisions of K. S. A. 60-260 (b)(1) which read:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . .”
Since the foregoing provision was lifted from rule 60 of the Federal Rules of Civil Procedure we may look to federal cases for its construction and application.
Relief under the provision quoted is not a matter of right, but is addressed to the sound discretion of the trial court. See, e. g., Fischer v. Dover Steamship Co., 218 F. 2d 682; Smith v. Kincaid, 249 F. 2d 243; and Petition of Pui Lan Yee, 20 F. R. D. 399. Discretion should ordinarily incline towards granting relief in order that judgments reflect the true merits of the case. (Barber v. Turberville, 218 F. 2d 34.) However, it is desirable that final judgments not be lightly disturbed and the motions and the grounds for that relief should be closely scrutinized.
If mistake or inadvertency forms the basis for a motion to set aside a judgment, the movant should make some showing as to why he was justified in failing to avoid the mistake or inadvertency. See Western Union Telegraph Co. v. Dismang, 106 F. 2d 362; Petition of Pui Lan Yee, supra; and Smith v. Kincaid, supra.
Appellant makes no explanation as to why the mistake or inadvertency occurred. She alleged in her original petition: “. . . that immediately South of said intersection of said North and South road with said East and West road, was a road ditch approximately twenty-one inches in depth; . . .”
This was the mistake or inadvertency. Appellant would now allege:
“That said East and West road, at the point where said North and South road joins it, is 57 feet in width, and that the traveled portion of said road is approximately 36 feet in width; that situated on the South side of the junction of the said roads, and within the road width of 57 feet as above mentioned, was a road ditch approximately 21 inches in depth. . . .”
The trial court was justified in concluding that the suggested change in language, in and of itself, did not establish a mistake or inadvertent error justifying the vacation of the judgment.
There is nothing to indicate abuse of discretion. An appellant claiming abuse of discretion has the burden of proving the claim. In tire absence of an abuse of discretion this court will not review the trial court’s action on appeal. See Western Union Telegraph Co. v. Dismang, supra; Smith v. Kincaid, supra; and Greenspahn v. Joseph E. Seagram & Sons, 186 F. 2d 616.
The judgment is affirmed.
Fontron, J., not participating.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from the district court of Montgomery County, Kansas, in a criminal action wherein the defendant was convicted by a jury on two counts of forgery in the second degree under G. S. 1949, 21-608 and 21-609.
The only question raised on appeal is whether the trial court erred in admitting evidence of prior convictions in the State’s case in chief.
In the lower court Ervin Sylvester Wright (defendant-appellant) was charged in an information containing two counts of forgery in the second degree, contrary to the provisions of 21-608 and 21-609, supra. In the first count he was charged with feloniously forging, and in the second with feloniously uttering, a check drawn on the First National Bank of Coffeyville, Kansas, on the 30th day of November, 1963. The check was made payable to Fred Morris and purportedly signed by Nerr Collins. The instrument contained the purported blank endorsement of Fred Morris and also an endorsement reading:
“pay to the order
of
first national bank
COFFEYVILLE, KANSAS
FOR DEPOSIT ONLY
karbe’s coffeyville1”
At the arraignment on the 6th day of April, 1964, counsel was appointed to represent the appellant and a plea of not guilty was entered to each of the counts. Subsequent to arraignment notice was served by the appellant upon the State that he intended to enter a plea of alibi, contending he was at Kansas City, Missouri, on the date in question, and expected to prove this fact by four witnesses who were endorsed on the notice.
Notice was also served by the State upon the appellant that in the event of his conviction an increased sentence would be requested pursuant to the provisions of G. S. 1949, 21-107a.
Trial was had on the 7th day of May, 1964, to a jury and the appellant was convicted. Subsequent to the trial a motion for a new trial was duly heard and overruled, and the appellant was sentenced to serve a term of fifteen years on each count for a third-time felony conviction, said sentences to run concurrently.
While the notice of appeal discloses the appellant perfected an appeal pro se, such appeal has been duly perfected, and the record discloses Charles D. Knapp represented the appellant both in the trial of the action and on appeal in this court. The motion for a new trial properly raised the only question urged by the appellant on appeal.
Briefly summarized, the evidence of the State consisted of the testimony of two employees of Karbe’s Super Market, both of whom positively identified the appellant as the passer of the check in question at Karbe’s Super Market on the 30th day of November, 1963. Nerr Collins, the purported maker of the check, testified that he did not make the check nor authorize anyone else to do so, and did not know anyone by the name of Fred Morris. He further testified that he never had an account at the First National Bank of Coffeyville. An assistant cashier at the First National Bank of Coffeyville testified that the bank refused to pay the check when presented for payment because Nerr Collins was not a depositor at the bank.
Over objection evidence was introduced in the State’s case in chief showing that in 1960 the appellant had been convicted of forgery in the second degree in the district court of Labette County, Kansas, in Case No. 1,646, entitled State of Kansas v. Ervin Sylvester Wright. A duly authenticated copy of the journal entry showing such conviction was introduced in evidence after being properly identified by a deputy clerk of the district court of Labette County. The deputy clerk testified that she was present at the time the case was determined in Parsons, Kansas, and identified the appellant sitting in the courtroom as Ervin Sylvester Wright— the party named in the journal entry.
The journal entry was read to the jury and disclosed that the appellant on the 15th day of April, 1960, entered a plea of guilty to each of two counts of forgery in the second degree in violation of G. S. 1949, 21-608; that the court accepted the pleas and sentenced the appellant to the Kansas State Penitentiary for a period of not less than two years nor more than twenty years on each count, said sentences to run concurrently.
In the instant case the appellant took the stand in the lower court to testify on his own behalf. He testified in substance that he was not in Coffeyville on the day in question; that he was last in Coffey-ville in the month of October, 1963; that he was on parole from the Kansas State Penitentiary; that he did not write the check in question and first saw it at the preliminary hearing; that he did not know Nerr Collins, Fred Morris or the bank employees who testified in the State’s case in chief.
On cross examination the appellant, among other things, testified he did not know where Karbe’s grocery store was located; that he had forged checks before; that he did not know how many; that he had spent time in the penitentiary; that he got out of the Kansas State Penitentiary on a forgery charge on June 3, 1963, spending two years, two months and eleven days, being released on probation.
No further witnesses were called by the appellant in the defense of his case.
The State called a rebuttal witness who testified she saw the appellant at a dance in Coffeyville on the night of November 29, 1963. She testified she knew the appellant a long time; that he lived in Parsons but used to come to Coffeyville often.
It is the appellant’s contention that the evidence of prior convictions was introduced for the sole and only purpose of proving the appellant’s “ ‘disposition to commit crime ... as the basis for an inference that he committed another crime ... on another specified occasion in direct violation of the general rule laid down in Section 60-455 of the Code of Civil Procedure.”
The Code of Civil Procedure, Laws 1963, Ch. 303, § 60-455, reads:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.)
Chapter 303, Laws 1963, is commonly referred to as the new code of civil procedure, but it must be noted the rules of evidence incorporated therein (article 4, rules of evidence) are designed to have application to every proceeding, both criminal and civil, conducted by or under the supervision of a court, in which evidence is produced, except to the extent to which they may be relaxed by other procedural rule or statute applicable to the specific situation. (Laws 1963, Ch. 303, § 60-402.)
The rule of evidence stated in 60-455, supra, as applied to criminal proceedings has not materially changed the case law as it has developed in Kansas prior to the enactment of 60-455, supra.
As early as the turn of the century the general rule was recognized that testimony as to the commission of offenses by a defendant in a criminal case, not in any way connected with that charged in the information, and which would tend to degrade and prejudice him, should be carefully excluded from the jury. (State v. Kirby, 62 Kan. 436, 63 Pac. 752.)
Exceptions, however, were recognized to the foregoing rule. It was held that evidence which legitimately tends to support the charge or show the intent with which it is committed is not to be excluded on the ground that it will prove other offenses. (State v. Kirby, supra.)
The general rule and the exceptions which developed have been repeatedly recognized and applied by many decisions of this court. (State v. Stephenson, 191 Kan. 424, 381 P. 2d 335; State v. Myrick, 181 Kan. 1056, 317 P. 2d 485; State v. Fannan, 167 Kan. 723, 207 P. 2d 1176; State v. Owen, 162 Kan. 255, 176 P. 2d 564; State v. Marshall, 152 Kan. 607, 106 P. 2d 688; State v. Harper, 137 Kan. 695, 22 P. 2d 454; State v. Frizzell, 132 Kan. 261, 295 Pac. 658; and State v. Robinson, 125 Kan. 365, 263 Pac. 1081.) In State v. Stephenson, supra, one of the most recent decisions prior to the enactment of the code, Syllabus ¶ 2 reads:
“The rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence should come under one of the well-recognized exceptions to the general rule, among which are identity of the person committing the offense, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme or system of operation, and to rebut a special defense.”
The sole contention advanced by the appellant in his brief for a reversal of the lower court is that the evidence of his prior convictions for forgery was not relevant under any of the exceptions to the general rule which makes such evidence inadmissible. The exceptions to which our attention must be directed are enumerated in the provisions of 60-455, supra. For convenience the portion of the statute setting forth the exceptions has been italicized.
In State v. Stephenson, supra, the appellant in the trial court asserted the defense of alibi, and in the opinion it was said:
“In the case at bar the county attorney prior to trial was served notice that the appellant intended to enter a plea of alibi at the trial of the case. It was therefore apparent the principal issue of fact in the case would be the matter of the identity of the person committing the offenses. . . .” (p. 430.)
One of the principal issues of fact in the instant case by reason of the appellant’s plea of alibi concerned the identity of the person committing the offenses charged. Under 60-455, supra, evidence of other similar offenses would be admissible to prove identity of the person committing the offense. We hasten to add, however, evidence of similar offenses of forgery committed by the appellant would tend to prove other elements of the crimes as well.
An essential element of forgery in the second degree under both 21-608 and 21-609, supra, is an intent to defraud. Under 21-609, supra, a guilty knowledge is required. To constitute a criminal offense the passing of the forged instrument must have been with knowledge that it was forged. Furthermore, the act must have been done in the absence of mistake or accident.
In submitting the case to the jury the trial court instructed the jury:
“(Instruction)
No. 10.
“You are instructed that evidence has been introduced by the state tending to show that prior to the time alleged in the information and on another occasion, the defendant committed other acts and crimes similar to those charged in the information; and in this connection you are instructed that even if you believe such evidence and testimony to be true, it is not to be considered by you as any evidence of the guilt of the defendant of the offenses charged and that tlie same is insufficient to support a verdict of guilty. This evidence is received and is to be considered by you only for its value, if any, as circumstances bearing upon the question of the defendant’s intent, knowledge, or absence of mistake or his identity as such matters relate and are relevant to the offenses charged. This evidence should be considered along with all the other evidence for that purpose only and should be disregarded for any other purpose.”
In addition to the foregoing, the trial court at the time it admitted the evidence of prior similar offenses orally instructed the jury substantially in accordance with the foregoing written instruction, both of which were correct instructions under the law of this state and upon the evidence adduced at the trial.
Evidence of the appellant’s previous convictions of forgery in the second degree by inference logically and naturally tend to establish various elements of forgery in the second degree which have been charged in both counts of the information. Under all of the facts and circumstances presented by the record on appeal in the instant case, evidence of prior convictions of the appellant for the crime of forgery in the second degree was relevant and properly admitted in the State’s case in chief.
The appellant contends the journal entry disclosing prior convictions of the appellant at Parsons, Kansas, does not disclose when the acts were committed; that presumably they were committed prior to the judgment of conviction on April 15, 1960; and that by reason thereof they are hardly related in time to the offenses charged in the instant case — November 30,1963.
It has been held that mere remoteness in time in cases of this type affects the weight to be given such evidence, rather than its admissibility. (State v. Fannan, supra, Syl. ¶ 3.) In this connection the jury was entitled to consider that a major portion of the time which lapsed between the prior convictions and the trial of the appellant in the instant case was spent by the appellant in the Kansas State Penitentiary.
The appellant argues the journal entry showing prior convictions of the appellant does not disclose exactly what offenses were committed by the appellant; that the provisions of G. S. 1949, 21-608 are sufficiently broad to encompass a number of offenses, all of which constitute forgery in the second degree.
While the county attorney in the prosecution of the case could have strengthened his case by showing specifically the facts upon which the appellant was convicted at a prior time, the appellant’s argument is one which affects only the weight of the evidence and not its admissibility. The statute does not require that the evidence of prior convictions disclose the appellant committed offenses in the past which are identical in nature. It is sufficient if they are similar offenses. Prior acts committed in violation of 21-608, supra, pursuant to which the instant offenses are charged, are similar offenses.
The appellant having failed to make it affirmatively appear the trial court erred in any respect, the judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Price, J.:
The sole question in this appeal is whether the district court of Sedgwick county had jurisdiction to enter an order increasing child support payments.
The facts are not in dispute.
In August 1953, in the district court of Sedgwick county, plaintiff wife was granted a divorce. She and defendant were the parents of a son three years of age, custody of whom was granted to plaintiff. Defendant was given reasonable visitation rights and was ordered to pay the sum of $125.00 per month for the child’s support.
As a result of the not uncommon bickering between divorced parents of a minor child, the case of Talbott v. Talbott, 177 Kan. 66, 276 P. 2d 293, reached this court. The case involved disputes over items of personal property, visitation rights of defendant father, and other matters not material to the question presented in the present appeal.
The parties continued to reside in Wichita — Sedgwick county. Plaintiff had custody o£ the child and defendant made the $125.00 monthly support payments.
In January, 1963, plaintiff moved to the state of California. She took the child — then thirteen years of age — with her. She obtained employment and enrolled the child in a boy’s boarding school.
At all times defendant continued to reside in Wichita.
During the summer of 1963 plaintiff filed a motion in the district court of Sedgwick county for an order increasing child support payments. Defendant countered with a motion, in the same court, for an order changing custody, alleging that for all practical purposes his visitation rights had been extinguished due to the removal of the child to California.
Following hearings at which testimony of the parties was taken, the court held that it was without jurisdiction to entertain defendant’s motion for change of custody and dismissed the motion. It further held that it had jurisdiction of plaintiff’s motion to increase child support payments and entered an order increasing the monthly payment from $125.00 to $225.00. Defendant also was ordered to pay $100.00 as plaintiff’s attorney fee and to pay the costs of the proceedings.
The material portion of the applicable statute (G. S. 1961 Supp., 60-1510) provides:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and, except as by this section limited, may modify or change any order in this respect whenever circumstances render such change proper.”
With respect to questions pertaining to custody, the statute, and its predecessor (G. S. 1949, 60-1510), have been construed as meaning that where in a divorce proceeding custody of a minor child is given to one of the parents, and later such parent leaves the state with the child and establishes a domicile in another state, the domicile of the child is the domicile of such parent, and the court which granted the divorce and made the custody order no longer retains jurisdiction to modify or change the custody of the child. Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849; Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Niccum v. Lawrence, 186 Kan. 223, 350 P. 2d 133; Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26, and Tompkins v. Garlock, 189 Kan. 425, 429, 430, 370 P. 2d 131.
Here the mother, to whom custody had been granted, moved to California and established a domicile in that state. She took the child with her and its domicile thus became that of the mother. Defendant concedes that under the above rule the trial court was correct in holding that it was without jurisdiction to entertain his motion for change of custody, and no appeal is taken from that ruling. He does, however, appeal from the order relating to child support payments and the order for payment of an attorney fee and costs.
It is contended that the above quoted language of the statute contains but one sentence — providing for the guardianship, custody, support and education of minor children of divorced parents. It is argued that each of the words relates to the welfare of the child; that support is as material to the welfare of a minor child as custody, and that the only logical construction of the statute is that if the child of divorced parents is no longer domiciled in this state the rule with respect to continuing jurisdiction as to support should be the same as that with respect to custody.
There is no occasion here to repeat the reasoning of the foregoing cases with respect to continuing jurisdiction of matters pertaining to custody. The question here is whether, under the facts and circumstances, the district court of Sedgwick county had jurisdiction of the child support phase of the matter.
In our opinion it did. Defendant, who was, and is, the one making the payments, at all times continued to reside in Wichita, and thus was within the court’s jurisdiction. Under the facts of this case, therefore, we hold that the district court of Sedgwick county had jurisdiction to make the order that it did.
The evidence as to the propriety and reasonableness of the amount of increase fixed by the court is not abstracted, and therefore, that question is not before us. The allowance of an attorney fee and the assessment of costs followed as a natural consequence of the order rendered.
We find no error and the judgment is therefore affirmed.
Wertz, J., not participating.
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The opinion of the court was delivered by
Parker, C. J.:
Defendant, Elmer Edward Young, was tried, convicted and sentenced, pursuant to G. S. 1961 Supp., 21-2611 and G. S. 1949, 21-107a, on a charge of having a pistol in his possession or under his control, after having been previously convicted of felonious assault — and appeals.
The facts required for a proper understanding of the limited issue involved are not in dispute and may be stated thus.
On November 22, 1963, defendant, who had been charged with commission of the crime above indicated, appeared before the magistrate court of Johnson County, without counsel, where the complaint was read to him. Thereafter defendant requested an immediate prehminary examination and both parties (the state and the defendant) announced they were ready to proceed with that hearing. The state then presented its evidence and the defendant adduced no evidence. Thereupon the examining magistrate, having announced that he found from the evidence the crime as set out in the complaint had been committed in Johnson County and that there was probable cause to believe the defendant had committed it, bound defendant over for trial to the district court of Johnson County on the charge contained in the complaint.
Following the action just related an information was filed in district court charging defendant with having committed the crime in question. On the same day defendant appeared before the district court and requested appointment of counsel as an indigent person. This request was granted and the court appointed James A. Pusateri, a competent and qualified attorney of Olathe, to represent and appear for defendant. Thereafter Mr. Pusateri represented defendant throughout all proceedings had in the case in the district court.
On December 13, 1963, defendant appeared in district court, waived the reading of the information charging him with the commission of the crime in question, and entered a plea of not guilty. Later the state asked for and was granted permission to amend the information. On January 6, 1964, defendant came before the court for arraignment on the amended information. At that time he again waived formal arraignment and entered a plea of not guilty.
Later, and on January 27, 1964, the case came on for trial by a jury which ultimately returned a verdict finding defendant guilty. This verdict was accepted and approved by the trial court which, after overruling defendant’s motion for a new trial, rendered judgment and imposed sentence as heretofore indicated.
After judgment and sentence the trial court advised defendant of his rights of appeal under this court’s Rule No. 56 (see 191 Kan. XII, Prefatory Rule No. 1 [/]), and Laws of 1963, Chapter 305, Section 1 [b]. Thereupon, having been informed and convinced that defendant desired to appeal to the Supreme Court from his judgment and sentence and was without means to either employ counsel or procure a transcript of the record for that purpose, the trial court appointed James A. Pusateri to represent him and conduct such an appeal and directed the court reporter to forthwith prepare a transcript of all proceedings had in the case and deliver the same to defendant and his court-appointed counsel.
Subsequently Mr. Pusateri perfected the instant appeal from defendant’s judgment and sentence, filed an abstract and brief in the case, and personally appeared in this court on appellant’s behalf upon oral argument of the cause.
In arguing the case on its merits counsel for appellant, with commendable candor, stated that tire all-decisive question presented for appellate review was whether an indigent defendant has a constitutional right to have counsel appointed by the court to represent him at a preliminary hearing.
This court, in a long and unbroken line of decisions, has fully demonstrated that under the law of this state an accused has no constitutional right to he furnished counsel at his preliminary hearing.
For one of our more recent decisions, where a like issue was presented and disposed of on the basis of facts, conditions and circumstances similar to those here involved, see State v. Cox, 193 Kan. 571, 396 P. 2d 326, where it is said and held:
“It is contended that defendant’s constitutional rights were violated in that he was denied due process of law because of the fact he was not represented by counsel at his preliminary examination, and that under the rule of Gideon v. Wainwright, 372 U. S. 335, 9 L. ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733, he was entitled to ‘the guiding hand of counsel at every step in the proceedings against him.’
“The purpose and function of a preliminary examination for one charged with a felony under the laws of this state has been discussed in many of our decisions. Its purpose is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. It is not a ‘trial’ in the ordinary sense of the word, and neither is it a trial in the sense that one may be found ‘guilty.’ A defendant is bound over for trial only when the state establishes that an offense has been committed and that there is probable cause for charging him with its commission — otherwise he is to be discharged. A defendant has the right to be assisted by counsel at a preliminary examination, but there is no statute requiring the appointment of counsel in such a proceeding, and it has been held many times that failure to appoint counsel at a preliminary examination is not error. (State v. Daegele, 193 Kan. 314, 316, 393 P. 2d 978, and cases cited in the opinion.)
In State v. Latham & York, 190 Kan. 411, 375 P. 2d 788 (cert. den. 373 U. S. 919, 10 L. ed. 2d 418, 83 S. Ct. 1310), the conviction of defendants of murder in the first degree and imposition of the death sentence was upheld. They subsequently petitioned for federal habeas corpus. It was denied. On appeal to the United States Court of Appeals, Tenth Circuit, it was contended they were entitled to have counsel appointed for them prior to their preliminary examination, and reliance was had on the Gideon case, above. The contention was rejected, and in the course of the opinion the court commented that the Gideon case concerned the right of an accused to counsel at trial — not at a preliminary examination. (Latham v. Crouse, 320 F. 2d 120, 122, cert. den. 375 U. S. 959, 11 L. ed 2d 317, 84 S. Ct. 449.)
“In the case before us the record does not show that defendant even requested that counsel be appointed to represent him at his preliminary examination, and no claim is made that at his trial evidence was introduced with respect to his testimony at his preliminary examination. In fact, the record is devoid of any showing that defendant’s rights were in any way prejudiced by the fact he was not represented by counsel at his preliminary examination. His contention with respect thereto, now urged in this appeal, is held to be without merit.” (pp. 572, 573.)
For other decisions of like import see State v. Daegele, 193 Kan. 314, 316, 393 P. 2d 978; State v. Jordan, 193 Kan. 664, 666, 396 P. 2d 342; White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333, and the numerous supporting decisions therein cited.
See, also, State v. Crowe, 190 Kan. 658, 378 P. 2d 89, and State v. Naillieux, 192 Kan. 809, 391 P. 2d 140, certiorari denied, _ U. S. _, 13 L. ed. 2d 67, 85 S. Ct. 131.
Although not assigned as error, and not actually here for purposes of appellate review because of failure to raise the point in the court below, it is suggested appellant did not have a preliminary examination on the charge which was filed against him in the district court. It must be remembered the record discloses that on the trial of the case in district court appellant, while represented by competent counsel, waived arraignment, pleaded not guilty, and went to trial on the amended information. Under such circumstances this court has long been committed to the rule that, thereafter, questions raised respecting lack of preliminary examination are no longer material and afford no sound basis for reversal of the judgment in a criminal action on appeal (State v. Majors, 182 Kan. 644, 323 P. 2d 917; State v. Osburn, 171 Kan. 330, 335, 232 P. 2d 451, and State v. Wallgren, 144 Kan. 10, 11, 58 P. 2d 74), or for the granting of a writ in a habeas corpus proceeding (Thomas v. Hand, 184 Kan. 485, 337 P. 2d 651, and Ramsey v. Hand, 183 Kan. 307, 309, 327 P. 2d 1080.)
Appellant’s second and final specification of error, to the effect the trial court erred in overruling his motion for a new trial, is neither briefed nor argued. Under these circumstances this claim of error presents nothing for review and it should be overruled. (White v. Crouse, supra, p. 680.) Be that as it may, it should perhaps be stated that we have carefully examined the record submitted and find nothing which warrants or permits a conclusion the judgment of the district court should be reversed.
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 decreeing that the issuance of trading stamps with the sale of goods, wares or merchandise and redeemable in United States Savings Bonds is not in violation of the trading stamp act. (K. S. A. 21-2801, et seq.)
The facts, which were stipulated, may be further summarized for the purpose of considering the limited issue here presented.
The defendant, American Savings Stamp Company, Inc., is incorporated under the laws of the State of Illinois and has been licensed to do business in the State of Kansas as a foreign corporation. It is engaged in the business of issuing stamps to merchants which are redeemable solely by United States Series E Savings Bonds. Under the plan of operation the defendant enters into a contract with an individual merchant pursuant to which the merchant is supplied with promotional and advertising materials. The merchant agrees to offer defendant’s trading stamps to his customers when cash purchases are made at the rate of one stamp for each ten cents worth of purchases. Prior to the issuance of stamps to the merchants the defendant deposits funds with the Merchandise National Bank of Chicago, Illinois, in sufficient sums to purchase the amount of United States Series E Savings Bonds that will be required for redemption. Defendant’s trading stamps are redeemed by the holders thereof sending the required number of completed stamp books and an executed application for a bond to the Merchandise National Bank. Defendant’s stamps have no value other than for the exchange of United States Series E Savings Bonds and the only permissible manner for their redemption is for such bonds.
On November 6, 1963, the Attorney General of the State of Kansas, in response to an inquiry, wrote a letter opinion which read:
“At your request this office has studied the trading stamp laws and has concluded that neither G. S. 1961 Supp., 21-2801 nor 21-2802 prohibits the issuance of trading stamps which would be redeemed solely in United States Savings Bonds. G. S. 1961 Supp., 21-2801, prohibits trading stamps distributed with the sale of goods, wares or merchandise which are to be redeemed in goods, wares or merchandise. G. S. 1961 Supp., 21-2802, prohibits the distribution of trading stamps with the sale of goods, wares or merchandise which are to be redeemed in cash. Since these statutes are of a criminal nature, they must be strictly construed.
“Accordingly, we must conclude that savings bonds being evidences of the indebtedness of the United States are not under any normal definition of either goods, wares or merchandise or cash. While they will be redeemed at some future time in cash by the United States, they would not be within the meaning of that term as defined in Webster’s International Dictionary, Second Edition:
“ ‘Money, especially ready money; strictly coin or specie, but also less strictly bank notes, sight drafts or demand deposits at a bank.’
“As can be seen, even under the less strict approach which itself would not probably be used in a criminal prosecution, these evidences of indebtedness are not cash.”
On or about December 8, 1963, after the issuance of this letter, defendant caused newspaper advertisements to be inserted in various Kansas newspapers announcing the availability of defendant’s plan to Kansas merchants. The advertisements were exhibited to the Attorney General and defendant was advised by him that despite objection to the plan by certain merchants and others he was satisfied that his opinion as expressed in the letter was sound and that he would adhere to it.
In reliance upon the oral and written assurances of the Attorney General, defendant established offices for conducting business at Topeka, Kansas City, Wichita, Salina, Chanute, Garden City, Hutchinson and Hays, all in the State of Kansas. In addition it employed 20 salesmen to present its plan to Kansas merchants and placed further ads in Kansas newspapers explaining the operation of its plan. Defendant expended large sums of money, time and effort in advertising, promoting and selling its plan to Kansas merchants. Defendant has entered into contracts with, and has sold stamps to, numerous merchants throughout the State of Kansas and large numbers of Kansas citizens have received stamps issued by said merchants and are saving them for the purpose of redemption.
Subsequently, on or about December 26, 1963, without prior notice to defendant, the Attorney General caused to be filed the petition instituting this action.
The petition requested the following relief:
“Wherefore, plaintiff prays that the Court declare and adjudicate the contentions and rights of the parties; that the Court issue such temporary orders and writs, restraining orders or otherwise, as are necessary and proper to preserve the issues in controversy in status quo pending the trial of this action and to preserve and protect the jurisdiction of this Court to hear, determine and adjudicate the issues by its judgment to be rendered and to grant to plaintiff judgment against the defendant for injunction or ouster as provided by law and for such other relief as may be proper in the premises including the costs of this action.”
The matter was presented to the trial court which concluded that United States Series E Savings Bonds are not included in the term “goods, wares or merchandise” as the term is used in K. S. A. 21-2801, nor are they included in the word “cash” as the word is used in K. S. A. 21-2802 and therefore all of the relief prayed for was denied.
The state has appealed.
The legislation which prohibits the use of trading stamps in Kansas is contained in K. S. A., Article 28 of Chapter 21, which is a part of the crimes act. Violators of the act, if found guilty, shall be fined not less than $100.00 for each day the act is violated or they may be imprisoned in the county jail for not less than 60 days or by both such fine and imprisonment. They may also be enjoined or ousted from continuing such violations (K. S. A. 21-2804).
The pertinent part of K. S. A. 21-2801 reads:
“. . . it shall be unlawful for any person, firm, association or corporation to use, issue, or distribute, or for any person, firm, association or corporation to furnish to any other person, firm, association or corporation to use, issue or distribute, in, with, or for the sale of goods, wares or merchandise, any stamps, coupons, tickets, certificates, cards, or other similar devices, which shall entitle the purchaser receiving the same with the sale of goods, wares or merchandise to procure from any person, firm, association or corporation, any goods, wares or merchandise upon the production of any number of such stamps, coupons, tickets, certificates, cards or other similar devices. . . .” (Emphasis supplied.)
K. S. A. 21-2802 uses the same language as is quoted from Section 21-2801 except it prohibits redemption of stamps, etc., in cash.
The appellant contends that United States Series E Savings Ronds are covered by the words “goods, wares, merchandise or cash” and with helpful frankness informs us that “once this question is answered the other points in controversy are similarly resolved.”
The appellee states:
“In the case at bar the Attorney General has construed the phrase ‘goods, wares or merchandise’ expressly to exclude United States Savings Bonds. Now he attempts to reverse himself and contends that the phrase does include such bonds. We submit that if the Attorney General, the chief law officer of the State, cannot decide what the phrase means, then persons of ordinary intelligence are not given sufficient notice by the statute of the acts proscribed thereby. Accordingly, unless the statute is given the reasonable construction which the defendant contends herein that it must be given, it must be deemed unconstitutional and void for vagueness.”
There is much merit to appellee’s contention.
It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. (State v. Waite, 156 Kan. 143, 131 P. 2d 708; State v. Six Slot Machines, 166 Kan. 361, 201 P. 2d 1039; State v. Hill, 189 Kan. 403, 369 P. 2d 365; State v. Wade, 190 Kan. 624, 376 P. 2d 915.) The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. (State v. Foster, 106 Kan. 852, 189 Pac. 953.) Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. (State v. Terry, 141 Kan. 922, 925, 44 P. 2d 258.)
The object of the rule is to establish a rule of certainty to which the individual may safely conform without fear of the statute being misinterpreted by a court or prosecutor. If we go beyond the fair meaning of the language used in the statute and attempt enlargement by implication or intention we have abandoned certainty. Courts are not at liberty to extend by intendment statutes creating and defining crimes. (State v. Bowser, 158 Kan. 12, 145 P. 2d 135.) Although the intention of the lawmakers is to be given effect (State v. Brown, 173 Kan. 166, 244 P. 2d 1190; State v. McGaugh, 180 Kan. 850, 308 P. 2d 85), the intention must be determinable from the words used in the statute to express intent. Aid cannot be sought from outside facts or circumstances, which would leave the results uncertain depending on the energy or the discretion of the investigator. Although the courts in determining the intention of the legislature may look to existing conditions, the causes which impelled the enactment and the object sought to be obtained (Craig v. Craig, 143 Kan. 624, 628, 56 P. 2d 464; Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 675, 63 P. 2d 165), such factors in considering a penal statute should be matters of common knowledge. (State v. Kelly, 71 Kan. 811, 81 Pac. 450.)
We adhere to the statement made in State v. Waite, supra, p. 145:
“Before considering the narrow issue before us a pertinent and well-established principle of statutory construction must be noted. We are dealing with a criminal statute to which a strict construction must be applied. For reasons which stem from our fundamental concepts of individual human rights a criminal statute should not be extended by courts to embrace acts or conduct not clearly included within the prohibitions of the statute. . . .”
Giving due regard to the rules announced for construing penal statutes, particularly giving ordinary words their common and ordinary meaning, we are forced to conclude that United States Series E Savings Bonds are not included in any of the words “goods, wares, merchandise or cash” as such words are used in the trading stamp act.
A bond is evidence of an indebtedness. Webster’s New Twentieth Century Dictionary Unabridged, Second Edition, defines bond in finance as:
“. . . an interest-bearing certificate issued by a government or business promising to pay the holder a specified sum on a specified date; it is a common means of raising capital.”
A bond is not cash. It is a promise to pay cash.
A bond is not commonly considered “goods, wares or merchandise.” It is more commonly used as evidence of the purchase price to be paid for “goods, wares or merchandise,” or a means of raising cash to pay the purchase price.
If, as appellant contends, the legislature intended to abolish trading stamps and absolutely prohibit trading stamp companies from operating in Kansas, the legislature can very easily so state. It need only prohibit the issuance of trading stamps or similar devises with the sale of goods, wares or merchandise which are “redeemable by anything of value.”
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal is from a judgment enforcing an oral contract to convey a one-half interest in a section of land in Wyandotte County; to dissolve the partnership of the appellants and the appellees, and for an accounting between the parties.
' The appellants, Henry U. Gerber and Evelyn L. Gerber, his wife, plaintiffs below, commenced this action on September 17, 1951. The amended petition alleged that they were the legal owners of 400 acres in Morton County and that the appellees, Harold K. Buehler and Laura J. Buehler, his wife, defendants below, were the owners of 640 acres of land in Wyandotte County; that on or about July 30, 1948, the parties orally agreed to become partners for the purpose of owning and operating the B & G Stock Farm, and that the defendants agreed to convey a one-half interest in the Wyandotte County section to the plaintiffs, both parties, however, reserving 20 acres upon which each would build a home, and the remaining 600 acres would be partnership real estate; that the Wyandotte County property was to be considered of the value of $100 per acre and the defendants agreed to accept the 400 acres in Morton County at a like figure per acre for a one-half interest in the Wyandotte County land plus the sum of $8,000 to be paid to the plaintiffs in addition to the value of the Morton County land; that the partners made certain contributions to the partnership of their separately owned personal property for which each was given credit, and that by mutual agreement of the parties Harold K. Buehler was to act as bookkeeper and treasurer of the partnership and keep a record of its affairs.
The amended petition further alleged that the defendants refused to convey a one-half interest in the Wyandotte County real estate to the plaintiffs, and the prayer was that the plaintiffs recover joint possession of the Wyandotte County property, except the two 20-acre tracts upon which residences had been constructed; that the Wyandotte County real estate be partitioned, and that the partnership be dissolved and that a referee be appointed to make a full accounting of all partnership transactions since its commencement in July, 1948, to its termination in August, 1951.
The defendants’ answer admitted the parties had entered into a partnership agreement for the purpose of operating a stock farm in Wyandotte County, but denied that they had orally agreed to convey a one-half interest in the real estate to plaintiffs; they admitted that they had taken title to the 400 acres in Morton County and had sold it to one Carl Brollier, of Hugoton, but alleged that they were acting only as agents for the plaintiffs and that the proceeds of the sale of the Morton County farm were paid to the plaintiffs.
With the issues thus framed, the case was tried to a jury which returned a finding in favor of the plaintiffs on their contention there was an agreement to convey a one-half interest in the Wyandotte County real estate to them. The district court then referred the accounting of the partnership affairs to a referee who heard considerable evidence.
None of the parties were satisfied with the jury’s verdict, and by mutual agreement a new trial was granted upon the district court’s stipulation that the case would be referred to a referee upon the same issues as then framed by the pleadings. The Honorable James D. Howell, a member of the Wyandotte County Bar, had been appointed referee by the district court following the jury’s verdict in 1953 and had heard considerable evidence with respect to the accounting. In view of that fact, the district court reappointed Mr. Howell as referee to try all the issues of law and of fact raised by the pleadings.
On January 14,1957, the referee commenced hearing the evidence, and the hearing continued for ten weeks. Later, on September 26, 1957, the court appointed a public accountant to assist the referee in the accounting features of the case.
On January 11, 1958, the referee filed an exhaustive and detailed report, together with the accountant’s summaries, and found generally in favor of the plaintiffs that there has been an oral agreement to convey to them a one-half interest in the 600 acres in Wyandotte County together with a 20-acre tract for their residence; that they had fully performed their part of the agreement for an exchange of property whereby they deeded the Morton County land to the defendants for an undivided one-half interest in the Wyandotte County real estate plus the sum of $8,000; that tire respective spouses of the parties had consented to and acquiesced in the partnership agreement; that the defendants should convey die one-half interest in the 600 acres together with the 20-acre tract upon which the plaintiffs had built their residence. The referee further found that the defendant Harold K. Buehler was the accounting partner, and placed the burden of proof upon him to prove all items of the accounting.
As previously indicated, the referee heard weeks of testimony and considered hundreds of exhibits all of which proceedings constituted some 7,000 pages of transcribed reporter’s notes. Many of the items for which the plaintiffs claimed credit were disallowed but the referee allowed numerous items claimed by them. He allowed numerous items claimed by the defendants but also disallowed many others. The accountant’s summaries reflected all of the items allowed to the plaintiffs and the defendants and also reflected the items which were proper charges against the respective partners.
From the date.of the filing of the referee’s report on January 11, 1958, to. April 6,1962, the records of the district court were cluttered with a multitude of plaintiffs’ motions, affidavits, objections, notices and so forth, and the, court held many hearings and heard lengthy and éxhaustive arguments on various matters relating to the appeal and on those not relating to it, all of which were fully abstracted.
On September 22, 1961, the district court filed a written opinion approving the findings of the referee that there was an oral agreement to convey a one-half interest in the Wyandotte County real estate to the plaintiffs and that the oral agreement had been fully performed to take it out of the statute of frauds. The court approved the accounting of the partnership with the exception of two items relating to the sale of the Morton County property which were allowed in favor of the defendants, one being an item of $5,000 due to the abatement of a portion of the sale price of the Morton County property and a $1,000 fee in connection with the sale thereof. Both items being brought about because of an encumbrance on the title of the Morton County property made by the plaintiffs and resulting in the reduction of the net sale price received by the defendants.
On December 8, 1961, the court again referred the matter to the public accountant to bring the accounting up to date with respect to items of taxes and mortgage and insurance payments which had been paid by the defendants subsequent to the original accounting report. Following the filing of the supplemental accounting, the plaintiffs again filed numerous and voluminous motions, objections and arguments, and on January 10, 1963, the court rendered judgment in accordance with the referee’s report as modified and approved by the district court and in accordance with the supplemental accounting.
Although the plaintiffs were successful in the main issue of the lawsuit, that is, the contention there was an oral agreement to convey a one-half interest in the Wyandotte County property to them, they were dissatisfied with items of the accounting which were allowed the defendants, and, accordingly, perfected this appeal. The defendants did not cross-appeal from any feature of the district court’s judgment.
There are more than 550 pages of the printed record on appeal containing thirty-five specifications of error. The plaintiffs’ brief presents twelve issues, none of which are identical with or follow in the same order of any of the thirty-five specifications of error. To marshall the evidence and state the reasons for the court’s conclusion would consume, with the utmost condensation, probably 60 to 80 pages of the Kansas Reports, and perhaps twice that number. In the end, the court would have done no more than review questions of fact neither novel in kind nor of any interest to anyone except the parties to the appeal. Generally speaking, no principle of law of striking interest and no new application of old principles are involved except as hereafter noted, and when the ultimate facts have been determined, as the referee and the district court did, the conclusions of law follow as a matter of course. Under these circumstances, the court does not believe that any useful purpose would be served by the preparation of a lengthy and detailed opinion.
The plaintiffs’ brief is replete with arguments of how the referee and the district court should have decided the evidence and with charges of coercive and oppressive conduct on the part of the district court against the plaintiffs, and with irregular proceedings to deprive them of their property and property rights in violation of due process of law. The record has been fully and carefully examined, and all of the plaintiffs’ charges against the district court are wholly unwarranted and completely refuted by the record. Furthermore, findings made by the referee including the original and supplemental accountings as approved by the district court, or as modified and approved by that court, are supported by substantial evidence and will not be disturbed by this court on appellate review. (Wichita Gas Co. v. Public Service Comm., 126 Kan. 220, 268 Pac. 111; In re Estate of Eckel, 191 Kan. 11, 379 P. 2d 346.)
Specifically, the plaintiffs complain of an order made on April 18, 1955, whereby both parties were enjoined from using the 600 acres in Wyandotte County to pasture their cattle or to grow hay except upon written lease duly made under the order of the district court. They contend they were entitled to full possession of the 600 acres from the time of the inception of the oral contract in July, 1948, by virtue of being cotenants with the defendants, which dated from the time of the oral agreement. They argue that all rental payments for possession and use of the property during the period they were awarded leases were illegally extracted and the court erred in not permitting them to recover the total of such amounts. In their brief they state:
“The trial court hammered the first $14,000.00 out of the Appellants by the coercive contracts against public policy, and in addition thereto used the sledge of oppression in contravention of due process in extracting the additional $3,000.00.
The plaintiffs leased the 600 acres under order of the court annually for several years and were required to pay rent for the use of the farm during such periods, and were further required to pay $3,000 into court to cover fees and expenses. The defendants likewise leased the land from September 1951 to June 1954, and the referee debited them $8,250 for rent in the original accounting and they were also required to pay $3,000 into court for suit money. The record shows that $20,091.82 in rentals and condemnation awards were paid into court during the period of this litigation. Of this amount, $10,916.32 was used for payment of reporters, auditors, referee, surveyor fees and an equal sum of $1,000 for the attorneys for both parties. With certain adjustments it was determined that there was a balance of $9,175.50 remaining and the referee found that the parties were each entitled to an equal interest in said fund.
The plaintiffs’ contention with respect to the recovery of the rental payments is not well taken. In the first place, all payments were voluntarily made -by the plaintiffs after bidding for each annual lease, and in the second place, the defendants, from the inception of the litigation, contended they did not enter into an oral agreement to exchange properties and convey a one-half interest in the Wyandotte County property to the plaintiffs. The main issue of the lawsuit was whether the oral agreement was entered into and that question was resolved in favor of the plaintiffs only when the district court entered its final judgment on January 10,1963. Until then the plaintiffs’ interest had not been determined. This question was carefully taken into account by the district court and was properly determined by its judgment.
The plaintiffs next contend the court erred in failing to permit them to file a second and third revised amended petition with supplements thereto. The record shows the plaintiffs sought to file the third amended petition and supplement which attempted to add to their cause of action a count in tort for additional damages of $100,000, some six and a half years after the case had first been tried to a jury. It was offered for filing several months after the referee had spent ten weeks hearing evidence in the case. This alone would tend to discount any claimed abuse of discretion on the part of the district court. Moreover, the plaintiffs knew they would not be permitted to file the third amended petition because the new trial was expressly granted on the district court’s stipulation that it be confined to the issues then raised by the second amended petition. We quote a portion of Judge Bentons statement:
“And I further stated to counsel if I did set aside, or sustain the motion to set aside the stipulation, the findings of fact of the jury — and this is the point I am making — that when the case was retried, it would be retried on the simple theory that was set out in the second amended petition; at least it was the one the jury tried an issue of facts on, and I attempted at least to make that position clear to counsel for the plaintiff so that he would make no mistake.”
Permission to file an amended petition after the issues have been made up is a matter of sound judicial discretion. (Birch v. Solomon Nat’l Bank, 125 Kan. 211, 263 Pac. 1044; Fiest v. Steere, 175 Kan. 1, 259 P. 2d 140; Harvey v. Palmer, 179 Kan. 472, 296 P. 2d 1053.)
The record demonstrates that the plaintiffs have completely failed to show affirmatively how or in what manner their substantial rights were affected.
The plaintiffs next fist a so-called fraud series and commence their argument on this point with the statement that, “Probably no other case in the history of Kansas has involved so many avenues of fraud as the instant action.” On the issue of fraud the record clearly shows that in answer to arguments of plaintiffs’ counsel, the court stated:
“The Court: I am not finding that he did fraudulently and I don’t like for you to make that reference, there has never been any finding of fraud in this action.
“Mr. Schmidt: Well, Your Honor Please—
“The Court: You have said so many times you have convinced yourself, but there has never been any finding by anyone there has been any fraud in this action.”
In this connection the plaintiffs discussed at length the matter of a $30,000 loan the defendants procured from the Prudential Insurance Company on the Wyandotte County property. The plaintiffs claim they should have credit for $21,290.59 for what they say was wrongfully charged in connection with the loan.
The plaintiffs’ amended petition alleged:
“About March 24, 1949, the partners agreed that in order to put them in funds for carrying on the partnership business, Harold K. Buehler should make a loan on the B & G Stock Farm for $30,000.00, which he did make about March 24, 1949 with the Prudential Insurance Company. He thereupon kept $15,000.00 of said loan and undertook to pay to his partner Henry U. Gerber the other $15,000.00, but in fact only paid to Henry U. Gerber $13,000.00, leaving a balance due of $2,000.00 from Harold K. Buehler to Henry U. Gerber.”
The referee gave full consideration to the circumstances of this loan and found that Harold K. Buehler should be debited with the receipt of the loan proceeds of $30,000. The final accounting showed that there was an entry made charging the $30,000 to Buehler. This item, like all other items, was charged to the proper person and was taken into consideration with all other items in arriving at the final balance.
Other points of which the plaintiffs complained deal with items of accounting which were considered by the referee after hearing weeks of testimony and which were approved by the district court or modified and approved in its final judgment. It is a familiar principle that the weight of the evidence is for the trier of the facts. This court has neither the time nor the jurisdiction to retry them. Those features of the controversy were determined upon the ultimate decision of the district court of factual issues it was called upon to decide. After a complete and exhaustive report by the referee, the district court resolved those issues as a matter of fact and this court approves the disposition made of them. There was substantial evidence to support the district court’s findings of fact and conclusions of law relating to the amount of money due to the defendants. The judgment of the district court was equitable and just, and it is affirmed.
It is so ordered.
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In a letter signed on November 20, 2009, addressed to the Clerk of the Appellate Courts, respondent Scott L. Ruther of Lenexa, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2009 Kan. Ct. R. Annot. 353).
At the time the respondent surrendered his license, a panel hearing was pending on a complaint in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The complaint concerns allegations of misconduct that Ruther violated Rules 1.1 (2009 Kan. Ct. R. Annot. 410) (competence), 1.4 (2009 Kan. Ct. R. Annot. 443) (lack of reasonable communication), 5.5 (2009 Kan. Ct. R. Annot. 580) (unauthorized practice of law while his law license was suspended), 8.1 (2009 Kan. Ct. R. Annot. 594) (failure to cooperate with the disciplinary process), and 8.4(c) (2009 Kan. Ct. R. Annot. 602) (engaged in conduct involving dishonesty, fraud, deceit or misrepresentation) of the Kansas Rules of Professional Conduct.
Additionally, two complaints were pending that alleged Ruther engaged in similar professional misconduct.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that Scott L. Ruther be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Scott L. Ruther from the roll of attorneys licensed to practice law in Kansas.
Dated this 1st day of December, 2009.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
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The opinion of the court was delivered by
Rosen, J.:
The State seeks review of a published opinion of the Court of Appeals in State v. Boyer, 40 Kan. App. 2d 318, 191 P.3d 357 (2008), holding that a prior juvenile adjudication for a sex crime could not be the basis for sentencing the defendant as a persistent sex offender under K.S.A. 21-4704(j). A separate panel of the Court of Appeals held in State v. Swisher, No. 94,705, unpublished opinion filed April 6, 2007, rev. denied 284 Kan. 951 (2007), drat a prior juvenile adjudication could be the basis of a persistent sex offender finding. This court granted the State’s petition for review in order to resolve the conflict.
The relevant facts of this case were set out by the Court of Appeals’ opinion this way;
“James Boyer was sentenced to 110 months in prison on his primary offense, which was double the sentence he would have received had he not been classified as a persistent sex offender. That classification was based on a juvenile adjudication, not an adult conviction. If that juvenile adjudication were not considered, Boyer would not have been classified as a persistent sex offender, and his maximum sentence would have been 55 months on the primary offense.” Boyer, 40 Kan. App. 2d at 318.
This case requires the interpretation of K.S.A. 21-4704(j), which mandates doubling of the maximum duration of imprisonment if an offender has “at least one [prior] conviction for a sexually violent crime.” K.S.A. 21-4704(j)(2). Specifically, the question is whether “conviction” in this statute also means “juvenile adjudication” or only contemplates adult convictions. Interpretation of a statute is a question of law over which this court’s review is unlimited. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009).
At issue are two sentencing statutes; K.S.A. 21-4710, which determines the criminal history score of an offender for purposes of sentencing under the Kansas Sentencing Guidelines Act, and the persistent sex offender provisions of K.S.A. 21-4704(j). K.S.A. 21-4710 determines an offender’s criminal history score for purposes of determining the sentence provided by the sentencing guidelines grid. The aggravated sentence provided by the grid is doubled under K.S.A. 21-4704(j)(2) for persistent sex offenders. The State maintains that the list of prior convictions in K.S.A. 21-4710, which includes certain juvenile adjudications, should be used to interpret a “prior conviction” for purposes of K.S.A. 21-4704. Boyer argues that if the legislature had intended juvenile adjudications to count as prior convictions for K.S.A. 21-4704(j), it could and would have clearly said so.
Any analysis of a statute must start with the language of the statute itself. The Court of Appeals opinion accurately describes and quotes K.S.A. 21-4710:
“K.S.A. 21-4710(a) determines which convictions are included for determining a defendant’s criminal-history score, and that score determines the range of potential sentences for a specific offense. Obviously, whether some past offense counts for this purpose is important. The statute has specific references to both convictions and to juvenile adjudications, including a specific reference to which juvenile adjudications will be counted:
“ ‘(a) Criminal history categories contained in the sentencing guidelines grid for nondrug crimes and the sentencing guidelines grid for drug crimes are based on the following types of prior convictions: Person felony adult convictions, nonperson felony adult convictions, person felony juvenile adjudications, nonperson felony juvenile adjudications, person misdemeanor adult convictions, nonperson class A misdemeanor adult convictions, person. misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications, select class B nonperson misdemeanor adult convictions, select class B nonperson misdemeanor juvenile adjudications and convictions and adjudications for violations of municipal ordinances or county resolutions which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor. A prior conviction is any conviction, other tiran another countin the current case which was brought in tire same information or complaint or which was joined for trial witir other counts in the current case pursuant to K.S.A. 22-3203 and amendments drereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to dre prior conviction occurred before or after the current offense or dre conviction in tire current case.’ [K.S.A. 21-4710(a).]
Later subsections define terms like ‘select misdemeanor,’ which is a weapons violation, K.S.A. 21-4710(b), or clarify whether convictions ever ‘decay’ or cease to be counted. K.S.A. 21-4710(c), (d). No adult felony convictions ever go away for purposes of criminal-history scoring, K.S.A. 21-4710(d)(2), (3), but juvenile adjudications that are equivalent to adult felonies are scored forever only if they fit certain categories, like person felonies or particularly serious felonies. K.S.A. 21-4710(d)(4), (5), (6).” 40 Kan. App. 2d at 320. • • • ■ '
K.S.A. 21-4704(j) provides:
“(1) The sentence for any persistent sex offender whose current convicted crime carries a presumptive term of imprisonment shall be double the maximum duration of die presumptive imprisonment term. The sentence for any persistent sex offender whose current conviction carries a presumptive nonprison term shall be presumed imprisonment and shall be double the maximum duration of die presumptive imprisonment term.
“(2) Except as otherwise provided in this-subsection, as used in tiiis subsection, ‘persistent sex offender’ means a person who: (A) (i) Has been convicted in this state of a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the conviction under paragraph (A) (i) has at least one conviction for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments drereto in this state or comparable felony under the laws of another state, the federal government or a foreign government; or (B) (i) has been convicted of rape, K.S.A. 21-3502, and amendments thereto; and (ii) at the time of the conviction under paragraph (B) (i) has at least one conviction for rape in this state or comparable felony under the laws of anotiier state, die federal government or a foreign government. •
“(3) Except as provided in paragraph (2)(B), the provisions of this subsection shall not apply to any person whose current convicted crime is a severity level 1 or 2 felony.”
Both the crime of which Boyer was convicted in this case and the crime of which he was previously adjudicated were sexually violent crimes, as defined in K.S.A. 22-3717.
Comparing and contrasting the two statutes, the Court of Appeals noted that K.S.A. 21-4704 refers only to convictions, while K.S.A. 21-4710 not only refers to both convictions and juvenile adjudications, it also specifies which types of juvenile adjudications will be counted in determining criminal history scores. The court stated:
“It seems significant that a persistent sex offender by definition must have ‘at least one conviction for a sexually violent crime.’ K.S.A. 21-4704(j)(2)(A)(ii). The juvenile system uses the term adjudication, not conviction. One might argue that adjudications are equivalent to convictions and, thus, the legislature’s reference to convictions should be read broadly to include any equivalent determinations.
“But that seems a weak inference when the legislature has so carefully distinguished between criminal convictions and juvenile adjudications in other statutes, such as K.S.A. 21-4710.” 40 Kan. App. 2d at 321.
The Court of Appeals then carefully reviewed one prior case of this court, In re W.H., 274 Kan. 813, 57 P.3d 1 (2002), and four of its own precedents, In re J.E.M., 20 Kan. App. 2d 596, 890 P.2d 364 (1995); State v. Fischer, 22 Kan. App. 2d 568, 919 P.2d 368 (1996); State v. Crawford, 39 Kan. App. 2d 897, 185 P.3d 315 (2008); and State v. Sims, 40 Kan. App. 2d 119, 190 P.3d 271 (2008), concluding that “[i]n each of these cases, courts have noted the care with which the statutes for both juvenile and adult proceedings have been written. In each of these cases, courts have declined to infer statutory coverage of situations not explicitly covered.” 40 Kan. App. 2d at 322.
In In re W.H., 274 Kan. 813, Syl. ¶ 3, this court examined the Kansas Juvenile Justice Code, including the absence in it of any reference to consecutive sentencing in juvenile cases, and concluded that the legislature did not authorize the imposition of consecutive sentences in juvenile cases. The court noted the comprehensive sentencing system set out by the Code including the detailed placement matrix based upon the unique history of a juvenile’s past and present offenses. It also noted the express inclusion of consecutive sentencing authority in the Kansas Sentencing Guidelines Act and concluded that had the legislature intended district courts to have the authority to impose consecutive sentences in juvenile cases, it would have said so explicitly. 274 Kan. at 819-23.
The question in In re J.E.M., 20 Kan. App. 2d 596, closely resembles that of this case. J.E.M. appealed the district court’s determination that his prior juvenile adjudications should be counted as convictions for purposes of enhancing a misdemeanor theft to a felony conviction. K.S.A. 1993 Supp. 21-3701 provided:
“Theft of property o.f the value of less than $500 is a class A nonperson misdemeanor, except that theft of property of the value of less than $500 is a severity level 9, nonperson felony if committed by a person who has, within five years immediately preceding commission of the crime, .been convicted of theft two or more times.” (Emphasis added.)
J.E.M. was adjudicated a juvenile offender for theft of property valued at less than $500, which the court determined to be a severity level 9 nonperson felony based on two prior theft adjudications. The Court of Appeals compared and contrasted the Juvenile Offenders Code and die Kansas Sentencing Guidelines Act and concluded:
“By specifically including juvenile adjudications in the guidelines statutes relating to criminal history computations and not including similar language in K.S.A. 1993 Supp. 21-3701, the legislature has demonstrated its intention that juvenile adjudications not be used to enhance the severity of a theft conviction.” 20 Kan. App. 2d at 600-01.
The effect of the persistent sex offender provision in K.S.A. 21-4704(j) is virtually the same as the effect of the provision in K.S.A. 1993 Supp. 21-3701 at issue in In re J.E.M.; it serves to enhance the severity of the covered sex offenses.
State v. Fischer, 22 Kan. App. 2d 568, looked at whether a juvenile probation for a juvenile adjudication that would have been a felony if the juvenile had been an adult is the same as being on probation for a previous felony conviction. The Court of Appeals concluded that it was not, based primarily on the reasoning set out in In re J.E.M. Fischer, 22 Kan. App. 2d at 570-71.
State v. Crawford, 39 Kan. App. 2d at 901-03, and State v. Sims, 40 Kan. App. 2d at 120-22, both review the three cases above and then reach the conclusion that an adult sentence may not be imposed consecutively to the sentence from a juvenile adjudication because K.S.A. 21-4603d(f) made no reference to juvenile adjudications at the time of the crimes in those cases. (The statute has since been amended; however, we note these cases reflect the law at the time of sentencing in this case.)
In each of the cases cited by the Court of Appeal’s decision in Boyer, the court applied the standard rules of statutory interpretation in reaching the conclusion that the legislature is well aware of the distinction between juvenile adjudications and adult convictions. After reviewing these cases, the Boyer court applied the same analysis to the statutes in this case:
“[G]eneral rules of statutory interpretation also support Boyer’s argument. First, the plain words of the statute reference juvenile adjudications in the general provision for calculating criminal-history scores but not in the specific provision determining who may be classified a persistent sex offender. Specific statutes generally control over more general ones. In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007). Second, as the Kansas Supreme Court recognized in In re W.H., the expression of one thing in a statute generally implies the exclusion of others. The juvenile-and adult-sentencing statutes are interrelated and have been carefully crafted. Juvenile adjudications are clearly referenced in several other adult sentencing statutes so we find the lack of explicit reference to them in the statute defining persistent sex offenders significant. It is unlikely that this omission was an accident. Third, under the rule of lenity, penal statutes are narrowly construed in favor of the defendant. State v. Zeit, 39 Kan. App. 2d 364, Syl. ¶ 3, 180 P.3d 1068 (2008); In re J.E.M., 20 Kan. App. 2d at 600. To the extent that K.S.A. 21-4704(j) is ambiguous about whether juvenile adjudications may be used to classify someone as a persistent sex offender, we construe the statute in the defendant’s favor . . . . It is within the legislature’s authority to say that juvenile adjudications may be used for this purpose. But such authority should be clearly granted, not implied from ambiguous language.” Boyer, 40 Kan. App. 2d at 322-23.
Boyer also deals with this court’s decision in State v. Allen, 283 Kan. 372, 153 P.3d 488 (2007). In Allen, the court considered whether the district court’s finding that a juvenile adjudication of aggravated incest was a sexually motivated crime and, therefore, could be used as the basis of a persistent sex offender sentence violated the protections of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). The issue arose because, at the time of Allen’s conviction, aggravated incest was not listed as a sexually violent crime in K.S.A. 2004 Supp. 22-3717(d)(2)(A) through (I) and so, in turn, could not serve as the basis of a persistent sex offender sentence under K.S.A. 2004 Supp. 21-4704(j)(l) without tire additional finding that it was a sexually motivated crime under K.S.A. 2004 Supp. 22-3717(d)(2)(L). Allen did not consider the issue whether a juvenile adjudication, as opposed to a conviction, for a sexually violent crime could serve as the basis of a persistent sex offender finding. The Boyer court dismissed the State’s argument based on Allen by stating: “There is no indication in AUen that the court considered — or the defendant presented — the issue raised here by Boyer.” Boyer, 40 Kan. App. 2d at 323.
Finally, the Boyer opinion reviews the opinion of a separate panel of the Court of Appeals in State v. Swisher, No. 94,705, unpublished opinion filed April 6, 2007, rev. denied 284 Kan. 951 (2007). That panel held that juvenile adjudications may serve as the basis for a persistent sex offender sentence. Although Swisher did argue that a juvenile adjudication is not the same thing as a conviction, tire Swisher panel was primarily considering whether use of a juvenile adjudication as a basis for a persistent sex offender sentence violated Apprendi. Swisher cited State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert denied 537 U.S. 1103 (2003) (Apprendi prior conviction exception encompasses juvenile adjudications and they need not be charged or proven to a jury before they can be used in calculating a defendant’s criminal history score), and Allen to support its finding that use of the juvenile adjudication did not violate Apprendi. Swisher, slip op. at 6-7. It also opined that “there is no indication the legislature intended K.S.A. 2006 Supp. 21-4704(j)(2) to have a different application than K.S.A. 21-4710(a), which explicitly includes juvenile adjudications as a type of prior conviction for criminal history purposes.” Swisher, slip op. at 6-7. The Boyer panel rejected this conclusion, stating:
“We believe that Swishers assumption that the prior convictions defined in K.S.A. 21-4710(a) apply in all contexts is misplaced. K.S.A. 21-4710(a) has no explicit application to anything but figuring the criminal-history score, a separate endeavor from classifying a person as a persistent sex offender. In K.S.A. 21-4710(a), the legislature certainly has carefully defined which past convictions and adjudications count in calculating a criminal-history score. But the past cases we have cited note how carefully the statutes for criminal sentencing have been constructed. For the reasons we have explained, we cannot add language to K.S.A. 21-4704(j) that is not present there — and the statute simply makes no reference at all to juvenile adjudications or, for that matter, to K.S.A. 21-4710(a).” 40 Kan. App. 2d at 324.
We find the reasoning of the Boyer panel thorough and persuasive. The State’s argument that there is no indication the legislature did not intend for juvenile adjudications to be the basis of a persistent sex offender determination ignores the plain language of K.S.A. 21-4704(j). The legislature did not include juvenile adjudications in the language of the statute as it did in K.S.A. 21-4710(a). On the contrary, there is no indication that the legislature intended the list of prior convictions set out in K.S.A. 21-4710(a) to apply to anything other than the determination of criminal history for the sentencing guidelines grid purposes. K.S.A. 21-4710(a) plainly states that ‘‘[c]riminal history categories contained in the sentencing guidelines grid for nondrug crimes and the sentencing guide-fines grid for drug crimes are based on the following types of prior convictions.” It does not say that the following types of prior convictions should be used for all purposes or even for the purpose of determining persistent sex offender status. Rather, the reference is evidently limited to determining criminal history categories for the sentencing guidelines grids.
The State’s reliance on State v. Armstrong, 276 Kan. 819, 80 P.3d 378 (2003), is misplaced. The statute at issue in Armstrong was the subject of a constitutional attack by the defendant, and the court found there was a constitutional threat of arbitrary or discriminatory enforcement presented by reading the statute literally. In keeping with the established duty of the court to uphold the constitutionality of a statute if at all possible, the court did so. 276 Kan. 819, Syl. ¶¶ 2, 6. This case does not present a constitutional attack on K.S.A. 21-4704.
The State also points to the Kansas Offender Registration Act, which includes in the definition of “sex offender” any person who “is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime,” K.S.A. 22-4902(b), and argues that it would be illogical to conclude that the legislature intended for a defendant to be treated with greater leniency when he reoffended simply because his prior offense was committed when he was a juvenile. While this argument has some appeal, it ignores the fact that the legislature has specifically included juvenile adjudications in K.S.A. 22-4902(b), proving yet again that when it wants to include juvenile adjudications as a consideration, it-is perfectly capable of doing so explicitly.
Finally, the State argues that State v. Allen, 283 Kan. 372, is an implicit affirmation that the inclusion of juvenile adjudications in persistent sex offender determinations is appropriate. This argument was addressed in the Court of Appeal’s opinion. The Aden court did not consider the issue. See Boyer, 40 Kan. App. 2d at 323.
This court and the Court of Appeals have repeatedly held that the legislature not only knows how to distinguish between juvenile adjudications and adult convictions, but it has done so in several statutes. To hold that a reference to convictions in K.S.A. 21-4704(j) now also encompasses juvenile adjudications would throw doubt on the application of other current statutes. Presumably, tire legislature has written the current statutes with the court’s prior interpretations in mind. See In re Adoption of G.L.V., 286 Kan. 1034, 1041-42, 190 P.3d 245 (2008). It is the prerogative of the legislature, not the court, to amend those statutes. We affirm the decision of the Court of Appeals in this case, holding that juvenile adjudications are not to be considered in the determination of persistent sex offender status under K.S.A. 21-4704(j).
Boyer’s prior juvenile adjudications were not included in the complaint, and the State was not required to prove their existence beyond a reasonable doubt. Boyer maintains that this violates his rights under Apprendi but concedes that this issue has previously been decided adversely to him by this court. Hitt, 273 Kan. 224, Syl. ¶¶ 1-2; State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002); see State v. Moore, 274 Kan. 639, 55 P.3d 903 (2002). Hitt controls this issue, and there is no need for further elaboration.
The decision of the Court of Appeals vacating Boyer s sentences is affirmed. The district court is reversed, Boyer s sentences are vacated, and the case is remanded to the district court for resentencing.
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The opinion of the court was delivered by
Johnson, J.:
Juan Jose Bello appeals his convictions and sentences for one count each of aggravated criminal sodomy and aggravated indecent liberties with a child. The district court imposed a hard 25 life imprisonment sentence, pursuant to K.S.A. 21-4643. Bello contends that the district court erred by excluding evidence on the basis of noncompliance with the time constraints of K.S.A. 21-3525; that the State failed to charge and the district court failed to instruct on an essential element of the crimes, violating his constitutional rights; and that his disproportionate sentence violates the Eighth Amendment to the United States Constitution and Section 9 of the Bill of Rights of the Kansas Constitution. We affirm the convictions but vacate the sentences and remand.
Highly summarized, the 7-year-old female victim, H.P.M., and her family were at the Bello home for a social visit. Eventually, H.P.M. found her way to a downstairs bed, where her brother was sleeping, while the adults were visiting upstairs. Bello made two unaccompanied trips downstairs. H.P.M. says that during each trip, Bello entered the bedroom, turned out the lights, pulled her pants and underwear to her knees, and both licked and touched her vaginal area. She pretended to be asleep and her brother remained asleep during both incidents. After the second incident, H.P.M. went upstairs and told her mother what had happened. A fight ensued and the police responded. After initially denying the allegations, Bello ultimately admitted that he had made contact with H.P.M.’s genitalia with his lips and tongue.
The State charged Bello with two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. At trial, Bello attempted to present evidence suggesting that H.P.M. had been previously molested by someone else, so that his expert could testily as to the effect of prior sexual abuse on victims. After a hearing on the motion, the trial court excluded the evidence, partially because it fell within K.S.A. 21-3525, the rape shield statute, and also because Bello had not complied with die 7-day notice requirement.
During deliberations, the jury requested several readbacks of testimony and asked for the definition of “lewd or lewd manner.” Bello was ultimately convicted of one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child. The trial court sentenced Bello under K.S.A. 21-4643, commonly referred to as Jessica’s Law, which requires a hard 25 life sentence on both counts. The court denied Bello’s motion for departure.
Bello filed this timely appeal, challenging his convictions and sentences. Our appellate jurisdiction is pursuant to K.S.A. 22-3601(b)(1).
EXCLUSION OF EVIDENCE
Bello contends that the district court erred in utilizing the notice provisions of K.S.A. 21-3525 to exclude evidence of H.P.M.’s prior sexual abuse. K.S.A. 21-3525(b) prohibits introduction of “evidence of the complaining witness’ previous sexual conduct with any person including the defendant,” except as the court may specifically order admitted pursuant to a motion “made at least seven days before the commencement of the proceeding unless that requirement is waived by the court.” Bello contends that the sexual conduct contemplated by the statute, commonly known as the rape shield law, should not include a prior incident where the complaining witness had been victimized. The suggestion is that the “sexual conduct” referred to in the statute contemplates a voluntary, consensual act by the complaining witness. Therefore, Bello argues that the rape shield statute, and its accompanying time constraints, did not apply to the proffered evidence of H.P.M.’s prior sexual abuse.
Bello poses an interesting question of statutory interpretation, which would be subject to an unlimited review. See State v. White, 279 Kan. 326, 331-32, 109 P.3d 1199 (2005). However, Bello failed to raise the issue before the district court. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (issues not raised before trial court cannot be raised on appeal).
Further, Bello appears to have invited the district court to apply the veiy statute that he now claims is inapplicable. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (party may not invite error and then complain of the error on appeal). In seeking admission of the evidence ultimately ex- eluded, Bello filed a pleading entitled “Motion to Allow Testimony of Complaining Witness’ Previous Sexual Conduct Pursuant to K.S.A. 21-3525.” Thus, contrary to his appellate argument, Bello requested that the trial court apply the provisions of the rape shield statute and specifically identified the testimony as relating to “previous sexual conduct.” Moreover, at the beginning of the in-chambers proceeding on Bello’s motion, the court stated that the motion “has to be [under] K.S.A. 21-3525.” In response, defense counsel stated, “Yes, that will be the rape shield statute Your Honor.” Bello invited the district court to consider the admissibility of the proffered evidence under the provisions of K.S.A. 21-3525 and he cannot now complain that die district court granted that request.
Perhaps more fundamentally, separate and apart from the ruling on the time constraints of K.S.A. 21-3525, the district court properly excluded Bello’s proffered evidence on the basis that it lacked relevance. Bello argued that the evidence was relevant to credibility, the theory being that H.P.M. was abused or observed another young girl being abused and transferred that experience into making the allegations against Bello, whose physical appearance was similar to the prior abuser. The disconnect in Bello’s theoiy is the absence of any evidence that H.P.M. suffered the prior trauma.
First, the assertion in Bello’s appellate brief that “the district court prevented Mr. Bello from presenting direct evidence regarding prior abuse and its effect” is belied by the record; there was no such direct evidence. Although Bello’s trial counsel asserted in opening statement that H.P.M. had been previously abused, after the State objected, defense counsel admitted to the trial court that “at this point in time we have no evidence that [H.P.M.] was actually abused.” At that point, the defense’s contention shifted to asserting a belief that H.P.M. might have witnessed another young girl being abused, but again, there was no direct evidence to support that contention either.
Ultimately, the only evidence the defense had to offer was circumstantial, consisting of an affidavit from Bello’s wife that she had observed H.P.M. kissing her brother inappropriately and dressing inappropriately and that H.P.M. had jumped on the defendant’s lap one time to play a game. Bello argued that such evidence es tablished an inference that the prior abuse had occurred, which was a necessary predicate for his expert’s opinion on abused children. The district court rejected the argument, stating:
“[Cjonduct such as wearing . . . inappropriate clothing, jumping on . . . the defendant’s lap, kissing her brother has been described as inappropriate in the affidavit. And that, of course, in my opinion is not sexual conduct under the terms of the statute. . . .
“Now, the Court has to decide whether or not that kind of activity can be brought in and subject to ... an analysis by an expert, Dr. Hough. Dr. Hough in his affidavit doesn’t address nonsexual conduct in his affidavit other than to say that observed behavioral changes may include greater interest in sexualized themes in conversation and play. He doesn’t draw the conclusion in his affidavit .. . that says that having had prior abuse visited upon this child may have triggered the transference that the defense is advancing.
“Consequently I see nothing of relevance in the nonsexual conduct of this child that would give rise to any relevant information that can be proved to the jury in this case.”
For evidence to be relevant, “ ‘there must be some material or logical connection between the asserted facts and the inference . . . they are intended to establish.’ ” State v. Reid, 286 Kan. 494, 502-03, 186 P.3d 713 (2008) (quoting State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 [2006]). Bello’s evidence simply did not support a reasonable inference that H.P.M. had been previously abused or traumatized. Without that foundation, the expert’s opinion regarding the behavior of previously abused children had no relevance. The district court correctly excluded the evidence.
DEFENDANTS AGE
Bello points out that neither the charging document nor the jury instructions specifically addressed the fact that he was age 18 years or older at the time he committed the offenses, which he contends is an essential element of an aggravated crime under K.S.A. 21-4643(a)(1). Therefore, he argues that his conviction and sentence violated the Sixth Amendment to the United States Constitution, Section 10 of the Kansas Constitution Bill of Rights, and the Kansas statute.
Bello’s arguments implicate jurisdiction, statutory interpretation, and constitutional interpretation. Our review is unlimited. See Fos ter v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006) (existence of jurisdiction a question of law subject to unlimited review); State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006) (statutory interpretation a question of law subject to unlimited review); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) (constitutionality of a sentencing statute is a question of law subject to unlimited review).
Bello bases his arguments on K.S.A. 21-4643(a)(l), which provides, subject to certain exceptions not applicable here, that “a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years.” Among the listed crimes to which the hard 25 sentence applies are aggravated indecent liberties with a child (K.S.A. 21-3504) and aggravated criminal sodomy (K.S.A. 21-3506), the crimes for which Bello was convicted. Bello asserts that K.S.A. 21-4643 essentially establishes an aggravated form of the enumerated crimes, so that a defendant being age 18 or older becomes an essential element which must be proved for a conviction of that aggravated crime.
For the underlying principle governing this issue, Bello directs us to the holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Bello then proffers two approaches to the omitted age problem: (1) By not alleging that Bello was age 18 or older in the charging document, the State only validly charged Bello with committing the lesser severity level of the offenses, requiring that we vacate the hard 25 life sentences and remand for imposition of tire appropriate Kansas Sentencing Guidelines Act (KSGA) sentences corresponding to the crimes for which Bello was actually charged and convicted; or (2) by omitting an essential element of the aggravated form of the crime, i.e., the defendant’s age, the jury instructions were clearly erroneous, requiring a reversal of the convictions and remand for a new trial.
Although perhaps immaterial to our ultimate disposition, we pause to question Bello’s characterization of K.S.A. 21-4643 as the statute which establishes the separate, “aggravated form” of the crimes in this case. Here, the statutes defining the crimes in the first instance describe differing severity levels and specifically set forth the fact which triggers the higher severity level, i.e., the offender’s age.
The elements of aggravated indecent liberties with a child are contained in K.S.A. 21-3504, which states in relevant part:
“(a) Aggravated indecent liberates with a child is:
(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both; . . .
“(c) Except as provided further, aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. . . . When the offender is 18 years of age or older, aggravated indecent liberties with a child as described in subsection (a)(3) is an off-grid person felony.” (Emphasis added.)
Similarly, the elements of aggravated criminal sodomy are set forth in K.S.A. 21-3506, which provides in relevant part:
“(a) Aggravated criminal sodomy is:
(1) Sodomy with a child who is under 14 years of age;
“(c) Except as provided further, aggravated criminal sodomy is a severity level 1, person felony. Aggravated criminal sodomy as described in subsection (a)(1) or (a)(2), when the offender is 18 years of age or older, is an off-grid person felony.” (Emphasis added.)
Moreover, the sentences for off-grid crimes are set forth in K.S.A. 21-4706, which provides, in relevant part:
“(d) As identified in K.S.A. . . . 21-3504, 21-3506, . . . and amendments thereto, if the offender is 18 years of age or older and the victim is under 14 years of age, such violations are off-grid crimes for the purposes of sentencing. Except as provided in K.S.A. 21-4642, and amendments thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments thereto.” (Emphasis added.)
In other words, each of the statutes defining the crimes involved in this appeal, aggravated criminal sodomy and aggravated indecent liberties with a child, sets forth two separate levels of the offense which can apply to the act which Bello committed: one a KSGA nondrug grid box offense, and the other an off-grid offense. The determination of which offense applies turns on whether the offender was age 18 or older when committing the criminal act.
The structure of the crime-defining statutes here is akin to that of the theft statute, K.S.A. 21-3701, which describes varying levels of offenses based upon the additional fact of the stolen property’s value. See State v. Stephens 263 Kan. 658, Syl. ¶ 2, 953 P.2d 1373 (1998) (degree of a theft crime determined by the value of the property stolen); State v. Piland, 217 Kan. 689, Syl. ¶ 3, 538 P.2d 666 (1975) (where value of stolen property is in issue, trial court should instruct the jury with respect to the element of value and require a jury finding as to value). Thus, while K.S.A. 21-4643 reiterates the age factor which elevates the sentence for aggravated criminal sodomy or aggravated indecent liberties with a child to a hard 25 life sentence, that severity-enhancing factor is initially identified in the statutes defining the respective crimes.
The State responds to Bello’s arguments by first arguing that its statutory citations in the charging instrument gave Bello sufficient notice of the penalties he could face, and, therefore, Bello was afforded adequate procedural due process. We have previously held that “[a] citation in the complaint to the statute involved cannot substitute to supply a missing element of the charge. [Citation omitted.]” State v. Christiansen, 258 Kan. 465, 466, 904 P.2d 968 (1995).
However, for its second argument, the State contends that Bello’s age was not an element of the offenses charged under K.S.A. 21-3504 and 21-3506, but rather it was simply “an element in a sentencing statute,” i.e., K.S.A. 21-4643. Moreover, the State asserts that Bello “cites to no legal authority as to why [offender’s age] is an element” of the offenses. Not only does die State ignore the explicit language of K.S.A. 21-3504 and 21-3506, discussed above, but it fails to grasp the significance of Bello’s citation to Apprendi.
In Apprendi, the Supreme Court clarified that merely because a state legislature places a sentence enhancing factor within the sentencing provisions of the criminal code does not mean that the factor is not an essential element of the offense. Apprendi, 530 U.S. at 495. If a “sentencing factor” is used to increase a defendant’s sentence beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict. Apprendi, 530 U.S. at 494 n.19; see Ring v. Arizona, 536 U.S. 584, 602, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002).
“[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations omitted.] In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Blakely v. Washington, 542 U.S. 296, 303-04, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).
A defendant’s right to a jury trial is violated where the judge makes the sentence enhancement factfinding, rather than the jury. See Cunningham v. California, 549 U.S. 270, 288-89, 166 L. Ed. 2d 856, 127 S. Ct. 856 (2007).
At Bello’s trial, the State presented no evidence as to his age, and the trial court did not instruct the jury to make a finding that Bello was age 18 years or older. Therefore, based on the facts reflected in the jury verdict, without the sentencing judge finding the additional fact of Bello’s age, the statutory maximum sentences prescribed for the crimes of aggravated indecent liberties of a child and aggravated criminal sodomy were to be found in the KSGA nondrug offense sentencing grid along the lines for a severity level 3 felony and a severity level 1 felony, respectively. See State v. Gould, 271 Kan. 394, Syl. ¶ 4, 23 P.3d 801 (2001) (“A judge may not impose a more severe sentence than the maximum sentence authorized by the facts found by the jury.”). To increase the penalty beyond that, i.e., to sentence Bello for an off-grid offense under K.S.A. 21-4643, the fact that Bello was age 18 years or older at the time he committed the offense needed to have been submitted to the jury and proved beyond a reasonable doubt. See Gould, 271 Kan. 394, Syl. ¶ 2.
Accordingly, the sentence imposed upon Bello under K.S.A. 21-4643 is vacated, and the case is remanded for resentencing the convictions as on-grid felonies pursuant to the KSGA. Given our decision to vacate Bello’s sentence under K.S.A. 21-4643, we need not address his contention that his sentence was disproportionate and violated the Eighth Amendment and Section 9 of die Kansas Constitution Bill of Rights.
Convictions affirmed, sentences vacated, and case remanded for resentencing.
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The opinion of the court was delivered by
Beier, J.:
A jury convicted Karlan D. Ransom of two counts of felony murder and two counts of attempted aggravated robbery. On this direct appeal Ransom argues that evidence seized from his house should have been suppressed because his girlfriend either did not consent or consented involuntarily, or because law enforcement did not seek his consent; that evidence regarding items found in the house was irrelevant and unduly prejudicial; and that he should have been permitted to strike a prospective juror for cause.
Factual and Procedural Background
On the evening of March 20, 2006, Ransom; Christopher Gant; Jeremy Miles; and Ransom’s cousin, Kendrall, attempted an aggravated robbery, which led to the death of Donta McDonald. Later that evening, Ransom and two of the others attempted a second aggravated robbery of a drug house, which led to the death of Christopher Spain Bey. We previously discussed events leading up to and immediately following the two attempted aggravated robberies and felony murders in State v. Gant, 288 Kan. 76, 201 P.3d 673 (2009), and State v. Ransom, 288 Kan. 697, 207 P.3d 208 (2009). Another complete recitation of these events is not necessary here.
Two days after the crimes, Detective Jason Pfeiffer of the Wichita Police Department (WPD) received an anonymous tip, leading officers to a house rented by Ransom’s girlfriend, Sharondi Washington. There, officers conducted a warrantless search, finding several weapons. The State charged Ransom with two counts of felony first-degree murder under K.S.A. 21-3401(b) and two counts of attempted aggravated robbery under K.S.A. 21-3301 and K.S.A. 21-3427.
Ransom filed a motion to suppress the evidence seized from the house, arguing that the officers lacked Washington’s consent. At the motion hearing, Washington testified that, on the evening of the search, 9 or 10 officers surrounded her house, pounded on her door and windows, and yelled that they wanted to talk about a homicide. Washington testified that she called her grandmother and informed the officers that she would not step outside until her grandmother arrived. According to Washington, the officers nevertheless continued to pound on the windows of the house, yelling that they would get a search warrant.
Washington testified that she finally saw her grandmother arrive, stepped out of the house, and had a friend lock the door behind her. An officer immediately approached and asked if she would talk to him in a patrol car. She agreed, sitting in the passenger seat. One officer sat in the driver seat and another in the back seat.
Washington insisted throughout her testimony that, despite the officers’ persistence, she never consented to a search of her house. She acknowledged that she admitted there was marijuana in the house and that she provided false names of the people inside. Washington also testified that she informed the officers twice that she needed to use the bathroom. Eventually, she said, one of the officers left the car and another came back. That officer told her that she could use the bathroom in the house as long as an officer accompanied her. Washington testified that she agreed to this arrangement because she “really had to go”; Washington then returned to the house and asked her friend to open the door. As the door opened, she said, officers pushed her to one side and ran in. Washington said that she was then escorted back to the car.
Several officers also testified at the motion to suppress hearing, disputing certain elements of Washington’s evidence.
WPD Detective Patrick Leon testified that six to eight detectives and officers surrounded Washington’s house and knocked on the door. Washington walked outside and agreed to talk with Leon and Detective Brad Elmore in an unmarked car. Washington admitted there was marijuana in the house. Soon thereafter, Elmore left the car, and Leon asked Washington for her consent to search the house; Washington consented. Officers then accompanied Washington to the house so she could inform the individuals inside to open the door. Leon explained that Washington did not go into the house at that time, but he believed that she was permitted to use the bathroom after officers completed their search.
Elmore also testified, saying detectives asked Washington to talk in the car only because it was snowing at the time. Elmore also stated that he left the car because he wanted to inform his supervising lieutenant, Jeff Easter, that Washington had admitted there was marijuana in die house. Elmore testified that he and Easter agreed they should seek a search warrant for the house. Elmore then returned to the car, where he learned that in his absence Washington had consented to a search of the house. Elmore said he then confirmed Washington’s consent; “I asked is it okay if we do that, if we go in. We want to search for weapons, we want to look for anybody that might be in the house, and we would also like to talk with them, if that’s okay and she said it was.”
Pfeiffer also testified, describing the entry into the house and the search. Once Pfeiffer came through the door, he said, he immediately discovered Ransom and Miles walking down stairs to the main level. Both men were patted down and seated on a couch. Pfeiffer then went into the kitchen and walked down the stairs leading to the basement. There, he lifted a mattress and discovered two handguns and a sawed off shotgun. Pfeiffer said Ransom and Miles were then handcuffed and taken to be interviewed. On cross-examination, Pfeiffer admitted that officers and detectives knocked on Washington’s doors and windows for 10 minutes before she came outside.
Easter testified that Elmore had approached him about applying for a search warrant because of Washington’s admission about the marijuana in the house. Easter disputed Washington’s story that she waited to step outside until her grandmother arrived, testifying that Washington’s grandmother did not come to the scene until officers were entering the house.
Washington’s grandmother testified that she drove to Washington’s house to drop off Washington’s sister, Sasha Beard. The grandmother said that Washington had not called her, and she was unaware officers were at Washington’s house until she arrived.
Beard testified that Washington had called her and said that several officers were surrounding the house. Once Beard arrived at the house, she said, she called Washington and told her to come outside. Am officer then approached the car in which the grandmother and Beard were sitting and asked Beard if she lived in the house. Beard said yes, and the officer asked her to sit in a police car. Beard testified that she and Washington were eventually placed in the same car. While together, she heard officers ask Washington for consent to search the house. Washington said no. Beard also testified that at some point Washington asked to use the bathroom; the officers agreed; they took Washington to the door and then rushed into the house.
Ransom testified that he stayed six out of seven nights at Washington’s house and kept clothes, shoes, a toothbrush, and hygiene products there. He said his mail was delivered to another address. Ransom also testified that he helped Washington pay rent and for food and medicine. He also claimed that he was not aware officers were beginning to search the house while he sat on the couch.
The district judge determined that Ransom had standing to pursue the motion to suppress but rejected the motion on its merits. The judge ruled:
“This is very much a credibility issue. The Court finds that the police officers under the circumstances are more credible with regard to this. And the Court finds that . . . Washington did verbalize consent to search. With regard to the issue of voluntariness, the Court finds under the facts and circumstances of the case the consent was given voluntarily.
“[U]nder the circumstances, the Court finds . . . Ransom could have stepped forward and should have in order to stop the [police search].”
The case proceeded to trial where, during voir dire, a prospective juror, employed ás a home health nurse, admitted that she might have trouble presuming Ransom’s innocence:
“[Ransom’s counsel]: . . . [W]ould you say you recognize the problem you have looking at him and saying he’s presumed innocent?
“[Prospective Juror C]: Yes.
“[Ransom’s counsel]: And when you consider the evidence, will you be able to sit there and say, you know, Pm going to make sure I have that in mind, try to be the best juror I can?
“[Prospective Juror C]: Honestly, I would try, yes.
“[Ransom’s counsel]: So that’s making it probably hard for you to look at him and say I’m presuming him innocent, even though I’m going to have heard some-dung that sounds lilce he might be involved, it’s not adding up, right?
“[Prospective Juror C]: Right.
“[Ransom’s counsel]: . . . Will you be able to be fair to him . . . and be fair to him in the trial?
“[Prospective Juror C]: I would try. Yes.
“[Prospective Juror C]: My concern is I said that tilings that I’ve seen dealing with the other side of the family and about that also that I would be a little bit judgmental seeing the family.
“[Ransom’s counsel]: It sounds to me like it’s your work experience that’s land of really affecting the way you’re going to look at this case?
“[Prospective Juror C]: Right.”
Ransom later requested that this prospective juror be removed for cause. When the district judge refused to remove the panel member for cause, Ransom used one of his peremptory challenges to remove her. The district court judge did remove for cause two jurors who had said they could not honor the presumption of Ransom’s innocence.
During trial, Jeri Lema, a WPD crime scene investigator, described lie pictures she took at Washington’s home, briefly mentioning that she (1) took a picture of an air gun found in a closet and (2) collected bloodstained clothing, including a hooded sweatshirt and shoes, to prove who lived in the house. Ransom sought and obtained a continuing objection, arguing that the evidence was obtained through an unlawful search. His counsel asked several questions on Lema’s cross-examination about the bloodstained clothing, and Washington later testified that the blood on the hooded sweatshirt had come from a car accident. WPD Detective Heather Bachman testified that the blood on the shoes came from the car accident.
The juiy convicted Ransom on all counts.
Ransom filed a motion for new trial, arguing that the district court’s refusal to remove Prospective Juror C for cause led the members of his jury to believe that they did not have to presume his innocence. The district court overruled Ransom’s motion, ruling that Instruction Nos. 1 and 10 would have cured any misconception. Jury Instruction No. 1 stated in relevant part:
“In your fact finding you should consider and weigh everything admitted into evidence. This includes testimony of witnesses, admission or stipulations of the parties, and any admitted exhibits. You must disregard any testimony or exhibit which I did not admit into evidence.
“Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. If any statements are made that are not supported by evidence, they should be disregarded.
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty unless you are convinced from the evidence that he is guilty.”
Jury Instruction No. 10 stated in part: “Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions.”
Motion to Suppress
Regarding his motion to suppress, Ransom first argues that the search was unlawful because Washington never consented to it. In the alternative, Ransom asserts that, even if this court determines Washington consented, her consent was neither knowing nor voluntary because several detectives and officers surrounded her house; she was placed in a patrol car; it was cold; she was pregnant; and she needed to use the bathroom.
The State responds that this court must give deference to the district court’s decision and refrain from reweighing witness credibility. The State also contends that Ransom’s alternative argument challenging the voluntariness of Washington’s consent is inconsistent with Washington’s testimony that she never consented to a search. The State also argues that Washington’s consent was voluntary. In the State’s view, officers asked Washington to sit in the police car only because of the bad weather, and it would have been more coercive to force her to remain outside; the number of law enforcement officers at the house was necessary for safety, and Washington spoke with only two officers in the car; Washington’s pregnancy did not prevent her from making voluntary decisions; and Washington did not request to use the bathroom until after the search.
This court has. long held that “[w]hen reviewing a motion to suppress evidence, an appellate court determines whether the factual underpinnings of the district judge’s decision are supported by substantial competent evidence. The ultimate legal conclusion to be drawn from those facts raises a question of law requiring application of a de novo standard.” State v. Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008). An appellate court does not weigh evidence to find facts. See State v. Fewell, 286 Kan. 370, Syl. ¶ 2, 184 P.3d 903 (2008). In addition, “[t]he State has the burden of establishing the scope and voluntariness of the consent to search. These questions present issues of fact” that appellate courts review for substantial competent evidence to support them. State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007). “Substantial evidence is evidence that possesses both relevance and substance and that furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.]” Wilkins v. State, 286 Kan. 971, 980, 190 P.3d 957 (2008).
A warrantless search is per se unreasonable under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights unless it falls within a recognized exception to the search warrant requirement, such as consent. Fitz gerald, 286 Kan. at 1126-27. “For a consent to search to be valid, two conditions must be met: (1) There must be clear and positive testimony that consent was unequivocal, specific, and freely given and (2) the consent must have been given without duress or coercion, express or implied. [Citations omitted.]” Thompson, 284 Kan. at 776.
Here, substantial competent evidence supports the district court’s factual findings that Washington expressly consented to the search of the house and that her consent was voluntary.
On the existence of an express consent, two officers testified that Washington consented to the search. According to their testimony, Washington’s first statement of consent to one officer was confirmed soon after by another. Although Washington contradicted the officers on this point, the district judge made an explicit credibility judgment we are neither equipped nor authorized to make. He regarded the officers’ version of events as the rehable one and discounted Washington’s.
Once the district judge’s credibility assessment judgment was made, the question became whether die consent was voluntary — whether it was “freely given,” and “without duress or coercion, express or implied.” See Thompson, 284 Kan. at 776. The State is correct that Washington never testified that she was compelled to consent to the house search. She insisted there was no consent, period. But the nature of her testimony did not preclude counsel’s argument that any consent about which the officers testified was inadequate as matter of law. It is at least theoretically possible that circumstances existed or police tactics were employed that coerced Washington’s cooperation in a way she did not appreciate and would not be able to describe. Many witnesses are not sophisticated, and most are not learned in the law.
Unfortunately for Ransom, the record as a whole does not support his counsel’s effort. Although there were several officers at the scene, most of them had no role in the questioning in the car. The officers’ decision to converse with Washington in the relative shelter and warmth of the car was sensible, perhaps even merciful. According to dates and other information from Washington’s testimony, she could have been only 1 or 2 months into her pregnancy at the time. This was long before her condition would have been obvious to the police. She never testified that she informed the police of her condition or its presumed effect on the urgency of her need to use the bathroom. Indeed, she did not testify that such an effect existed in her particular case, and the officers never testified even to knowledge of Washington’s pregnancy. In short, this simply was not a situation in which the officers callously disregarded the needs of a woman whose advanced pregnancy demanded a quick resolution of their interaction so that she could arrive at a bathroom before it was too late.
Ransom next argues that the house search was unlawful because he was not provided an opportunity to refuse consent. The State contends that the officers were not required to solicit Ransom’s views once they had Washington’s voluntary consent. The State also argues that Washington had been untruthful about whether she lived alone and who was in the house at the time.
Both parties cite Georgia v. Randolph, 547 U.S. 103, 164 L. Ed. 2d 208, 126 S. Ct. 1515 (2006), to support their positions. Randolph involved a domestic disturbance. Janet Randolph informed police officers that they could find evidence of her husband’s drug abuse in the house the couple shared. A sergeant asked the husband, Scott, for his permission to search the house. He refused it. The sergeant then asked Janet for her permission. She consented. The ensuing search uncovered evidence of drug use, and the State charged Scott with possession of cocaine. Scott filed a motion to suppress, arguing that the search was unlawful because he had expressly refused to consent to it.
The United States Supreme Court ruled in Scott’s favor, holding that one resident’s consent does not “prevail over the express wishes of another.” 547 U.S. at 114. Under Randolph, law enforcement officers may not lawfully search a house if one resident consents but another who is present expressly refuses. 547 U.S. at 114-17, 121-23. The Randolph holding was qualified, however. It stated that it did not affect cases in which a defendant was not on the premises or did not expressly object to a search:
“[W]e are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.
“ ... So long as there is no evidence that the police have removed the potentially objecting tenant from the entrance for the sake of avoiding a possible objection, there is practical value in the simple clarity of complementary rules, one recognizing the co-tenant’s permission when there is no fellow occupant on hand, the other according dispositive weight to the fellow occupant’s contrary indication when he expresses it. . . . There is no ready reason to believe that efforts to invite a refusal would make a difference in many cases, whereas every co-tenant consent case would turn into a test about the adequacy of the police’s efforts to consult with a potential objector.” 547 U.S. at 121-22.
Several courts have since distinguished Randolph, including a panel of our Court of Appeals in State v. Chilson, 38 Kan. App. 2d 338, 165 P.3d 304 (2007). Defendant Jared Chilson lived with his father, Robert. Robert discovered marijuana in Jared’s room and called the police. Officers arrived at the scene, designated by the dispatcher as a “domestic disturbance,” and separated Robert and Jared, as they did in all domestic disputes. Robert informed officers that he flushed the marijuana down the toilet. The officers then asked Robert for his permission to search the house. Robert consented, and the officers discovered two or three fragments of marijuana in the toilet. The officers never asked Jared for his consent to search.
Jared filed a motion to suppress, which the district judge granted. Evaluating Randolph, the district judge ruled that it would not have been unreasonable to ask Jared for his consent or to obtain a search warrant based on Robert’s statements; thus the search was unlawful.
The State appealed, and the Court of Appeals reversed, stating:
“The prohibition [against warrantless searches of a home] does not apply ... to situations in which voluntary consent has been obtained, either from the individual whose property is searched [citation omitted], or from a third party who possesses [citation omitted], or who reasonably appears to possess [citation omitted], common authority over the premises. [Citations omitted.]
“In [United States v.] Matlock, [415 U.S. 164, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974),] the defendant, a suspect in a bank robbery, was arrested in the yard of a house where he lived with a woman named Gayle Graff and her relatives. Defendant was detained in a squad car while officers went to the door. Graff answered the door, dressed in a robe with a baby in her arms, and consented to a search of the house. 415 U.S. at 166. When defendant contested the trial court’s denial of his motion to suppress evidence discovered during the search, the Court held that ‘the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.’ 415 U.S. at 170.
“The Court reiterated and clarified this tenet in [Illinois v.] Rodriguez[, 497 U.S. 177, 111 L. Ed. 2d 148, 110 S. Ct. 2793 (1990)]. There, the defendant had severely beaten his girlfriend. She called police from her mother’s home and took police to the defendant’s apartment. She told them that she lived there with him, unlocked the door with a key, and gave them permission to enter. Police discovered the defendant asleep in a bedroom and seized drug evidence which formed in part the basis for the defendant’s charges. Unbeknownst to the police, the girlfriend had in fact moved out of the apartment several weeks earlier and did not have actual authority to consent to the search of the defendant’s apartment. 497 U.S. at 179-80. The Supreme Court nonetheless held the warrantless entry would be valid if police, at the time of entry, reasonably believed the girlfriend had common authority over the premises-objective reasonableness being the critical inquiry. 497 U.S. at 188-89.
“Kansas has absorbed the holdings of Matlock and Rodriguez and adopted the third-party consent to search exception to the warrant requirement. [Citations omitted.] . . .
“The facts of this case[, however,] fall somewhere along the continuum of reasonableness established by Matlock and Randolph. Here, the co-occupant defendant was not absent, as was the defendant in Matlock. But, unlike the co-occupant defendant in Randolph, he did not stand at the door and object to the search. However, the district court did not find the officers removed the defendant ‘for the sake of avoiding a possible objection’; rather, they removed him pursuant to protocol. Nor did the evidence indicate the defendant voiced an objection despite the officers’ failure to inquire. Moreover, if the defendant had been asked for his consent to search, it is not a foregone conclusion that he would have refused: suspects often consent, albeit imprudently. [Citations omitted.]
“In determining where this case falls on the continuum, we find guidance in recent post -Randolph cases from other jurisdictions with similar factual circumstances.
“For instance, in United States v. DiModica, 468 F.3d 495, 497-98 (7th Cir. 2006), a wife, who was not present at the home, reported a domestic assault and told police her husband, DiModica, was a felon who possessed guns and drugs. She gave police a key to their house and consent to search. Armed with an arrest warrant, officers knocked on the door, confirmed DiModica’s identity, arrested him, and removed him from the home. They did not ask his permission to search. The wife met officers at the home afterward, and police discovered items that formed the basis of charges unrelated to the domestic abuse. DiModica argued that had he not been arrested and removed from the scene, he would have refused to allow the police to search his home. The Seventh Circuit [Court of Appeals] distinguished the case from Randolph, noting that unlike the defendant and his wife in Randolph, DiModica and his wife were not standing together at the doorway, one consenting to the search while the other refused. The officers did not ask DiModica for permission to search, and DiModica did not advise the officers they could not do so.
“The Seventh Circuit found DiModica’s case was not materially distinguishable from Matlock. The officers did not remove DiModica to avoid his objection; they legally arrested DiModica based on probable cause he had committed domestic abuse. Once DiModica was arrested and removed from the scene, the wife’s consent alone was valid and permitted the officers to legally search the residence. See also United States v. Wilburn, 473 F.3d 742 (7th Cir. 2007) (no Fourth Amendment violation where officers, after arresting defendant and placing him in squad car outside his apartment, received consent from defendant’s girlfriend to search apartment where defendant lived with girlfriend; defendant was not physically present when girlfriend consented to search, made no objection, and officers had not deliberately removed him from area to avoid hearing him invoke objection to the search); United States v. Parker, 469 F.3d 1074, 1077 (7th Cir. 2006) (where there was no evidence that the defendant was asked for consent to search and refused, or that he objected in any way, court distinguished case from Randolph).
“Similarly, in United States v. Uscanga-Ramirez, 475 F.3d 1024 (8th Cir. 2007), officers responded to a mother’s report that her son-in-law was holding her daughter against her will in their home. Police arrived at the residence and found the mother sitting in a parked car in front of the home. The daughter then walked out the front door. In response to police questions, the daughter said she was not being held against her will; she was leaving with her mother; her husband had locked himself in a bedroom with a gun because he was upset that she was leaving; but he had not threatened to harm anyone, including himself. The police asked for her permission to enter the residence and check on her husband, and she consented. Officers found the locked bedroom and the husband opened the door. He advised officers he didn’t have a gun, but police discovered a loaded gun under a pillow in the middle of the bed. He was charged with being an illegal alien in possession of a firearm and ammunition.
“The Eighth Circuit [Court of Appeals] in Uscanga-Ramirez distinguished Randolph based upon the lack of any evidence that defendant expressly refused the officers’ entry into the home.
“Federal district courts and other state courts also have concluded that absent a defendant co-occupant’s express objection, third-party consent to a search is a valid exception to the warrant requirement. See, e.g., United States v. Church, 2007 WL 689890, at 2 (W.D. Mich. 2007) [unpublished opinion] (Randolph distinguishable where present defendant raised no objection to entry, which co-occupant girlfriend invited); United States v. Groves, 2007 WL 171916, at 6 (N.D. Ind. 2007) [unpublished opinion] (defendant refused to consent to search on night shots fired from his house; police returned 2 weeks later and obtained consent from defendant’s live-in girlfriend who had actual and apparent authority to consent; court held police did not procure defendant’s absence and his earlier objection was insufficient to invalidate girlfriend’s later consent); United States v. McCurdy, 480 F. Supp. 2d 380, 390 n. 9 (D. Me. 2007) (Randolph’s holding expressly limited to defendants who are physically present and expressly refuse consent; it does not extend to absent but potentially reachable defendants who, if reached, might refuse consent); Starks v. State, 846 N.E.2d 673, 682 n. 1 (Ind. App. 2006) (Randolph distinguishable where, when co-tenant consented, defendant was not physically present, and was physically present for another portion of search but did not express refusal to consent to the search); but see United States v. Henderson, 2006 WL 3469538 (N.D. Ill. 2006) [unpublished opinion] (wife gave officers responding to her domestic battery call a house key; they entered home she shared with defendant, who told officers to ‘get the fuck out of my house’; officers acted unreasonably under Randolph in removing defendant and searching home based on wife’s consent given defendant’s explicit objection).
“As the Utah Court of Appeals noted in State v. Udell, 141 P.3d 612, 613 (Utah App. 2006), Randolph ‘ “invites a straightforward application of the rule that a physically present inhabitant’s express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant.” ’
“Here, in the absence of evidence that Chilson expressly objected to the search, or that officers specifically removed him from the home ‘for the salce of avoiding a possible objection,’ we hold dre consent given by the defendant’s father satisfied the consent exception to the Fourth Amendment’s prohibition against warrandess searches and seizures. We believe our decision is consistent with Matlock and Rodriguez and, under these facts, does not offend the holding in Randolph.” Chilson, 38 Kan. App. 2d at 341-47.
We approve of the Court of Appeals’ analysis and application of Randolph in Chilson. Moreover, we are guided by it in reaching a conclusion here.
Certainly, law enforcement officers are not free to ignore a resident’s refusal of consent to search a dwelling and then seek a more welcoming response elsewhere, and they are not free to manipulate an uncooperative or potentially uncooperative resident’s presence or absence to silence him or her. But officers are not required to seek out consent or refusal of another resident once one resident’s voluntary consent has been obtained.
In this case, we see no evidence that Ransom expressly objected to the search or that officers removed him from the house for the sake of avoiding a possible objection. In fact, they initially seated Ransom on a couch inside the house. He was free to speak up about his occupancy and to prevent or stop the search. It is important to remember that the police already had a voluntary consent from Washington, who had denied that anyone lived in the house with her. At the time the police searched pursuant to her consent, there was no reason for them to believe they needed to consult Ransom.
Because the State prevails on its arguments that Washington consented, that her consent was voluntary, and that provision of an opportunity for Ransom to refuse consent was not necessary, we hold that the district judge’s disposition of Ransom’s motion to suppress was correct. Washington’s consent satisfied any Fourth Amendment concern.
In closing our discussion of this issue, we need not fully address the State’s additional assertion of the inevitable discovery doctrine to save the search. The applicability of the doctrine here is questionable; Washington’s admission that there was marijuana in the house may have made an application for a search warrant inevitable, but it did not make the granting of a warrant from a neutral and detached magistrate a foregone conclusion.
Admission of Evidence Regarding Bloodstained Clothes and Air Gun
During trial, Ransom objected to the admission of evidence about the bloodstained clothes and the air gun, arguing that such evidence was derived from an unlawful search. Now Ransom argues that this evidence was irrelevant and highly prejudicial because neither the clothes nor the air gun was connected to the charged crimes. Ransom acknowledges that he did not object on relevance or undue prejudice at trial.
The State argues first that Ransom failed to preserve this issue for appeal. It also asserts that Ransom invited any error on admission of evidence about the clothes because his counsel asked several questions about them on cross-examination. In addition, the State maintains the clothes were relevant to connect Ransom to Washington’s house. The State also argues that evidence about the clothes was not prejudicial because the State readily admitted they were connected to the car accident rather than the homicides or attempted aggravated robberies before the jury. Finally, the State asserts that Ransom has failed to support his claim that evidence about the air gun was irrelevant or prejudicial.
A party may not object at trial to the admission of evidence on one ground and then argue a different ground on appeal. State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005). Regardless of this rule, Ransom’s arguments on this issue would not merit reversal.
Relevant evidence is “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). The concept encompasses both the existence of probative value and materiality. See State v. Vasquez, 287 Kan. 40, 50, 194 P.3d 563 (2008); State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008). The standard of review on whether evidence is probative in a particular case is abuse of discretion, and the standard of review on whether evidence is material is de novo. Reid, 286 Kan. at 507-09. If error has occurred in a district court ruling on the admissibility of evidence, that error must be further evaluated for harmlessness. See State v. Gonzalez, 282 Kan. 73, 99-100, 145 P.3d 18 (2006). “Reversal is required only where an erroneous admission of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice.” State v. Garcia, 282 Kan. 252, 270, 144 P.3d 684 (2006); see also K.S.A. 60-261 (reversal required only if refusal to reverse inconsistent with substantial justice).
The evidence regarding the bloodstained clothes found in Washington’s house was neither irrelevant nor unduly prejudicial. The State is correct that the clothes connected Ransom to Washington’s house, where evidence of the charged crimes was found. Although the evidence about the air gun was not probative or material, neither was it unduly prejudicial. It constituted a speck of debris in an otherwise clean and clear case against Ransom. We are confident its admission was not inconsistent with substantial justice; it did not affect Ransom’s substantial rights; and there is no likelihood that it affected the outcome of the trial.
Refusal to Strike Jury Panel Member for Cause
Ransom’s last argument is that the district judge’s refusal to remove Prospective Juror C for cause “improperly [led] the jury panel ... to believe that [Ransom] was not entitled to the presumption of innocence.” He does not accept the district judge’s belief or the State’s insistence that Instruction Nos. 1 and 10 cured any potential problem.
The State also responds that the district judge did not abuse his discretion in refusing to remove Prospective Juror C for cause because: The panel member never stated that she could not follow the presumption; “the district court clearly stressed the importance of the presumption to all the prospective jurors”; Ransom’s counsel, during a posttrial hearing, stated that he was not unhappy with the juiy; and Prospective Juror C did not ultimately sit on the jury.
The parties disagree on the applicable standard of review. Ransom urges us to employ a de novo review on a ruling he regards as a question of law. The State contends that we may not disturb a district judge’s determination that a prospective juror is qualified to sit unless the judge has abused his or her discretion.
The State is correct. This court has long held that a “[district] judge is in a better position than an appellate court to view the demeanor of prospective jurors as they are questioned”; thus, appellate courts review decisions on challenges for cause under an abuse of discretion standard. State v. Franklin, 280 Kan. 337, 346, 121 P.3d 447 (2005). Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by a district judge, then it cannot be said that the judge abused his or her discretion. State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006). The party asserting abuse of discretion bears the burden of showing it. State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007). Also, “[t]he failure to excuse a juror for cause is not a ground for reversal unless the defendant was prejudiced as a result.” Franklin, 280 Kan. at 346.
Ransom has not demonstrated an abuse of the district judge’s discretion in refusing to remove Prospective Juror C for cause. Prospective Juror C did not say that she would be unable to presume Ransom was innocent; she merely acknowledged difficulty in doing so. The judge removed two other jurors for cause because they went farther than Prospective Juror C; they stated they could not presume Ransom was innocent. Moreover, the district judge instructed the jurors who actually were selected from the venire that “[they] must presume that [Ransom] is not guilty unless [they] are convinced from the evidence that he is guilty.” We are skeptical that the district judge’s refusal to strike Prospective Juror C for cause could have caused any misunderstanding of the presumption of innocence among Ransom’s eventual jury. But, even if we are wrong about that, the judge’s other strikes and instructions would have remedied any problem.
Affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to recover damages for personal injuries received by a patient, Roy W. McCoy, while in the defendant hospital where he was permitted to fall from a bed on February 18,1956, while under the influence of sedation and anesthetics.
Subsequent to the patient’s death on the 20th day of January, 1959, the action was revived in the name of the administrator of his estate, Greston T. McCoy, who filed a second amended petition. The theory of the plaintiff’s action was framed in two counts, one in tort and the other, in the alternative, in contract. The trial court sustained a demurrer to both counts of the second amended petition on the ground that the action was barred by the statute of limitations.
The foregoing decision of the trial court on the admitted facts presented gives rise to various questions.
While the appellee contends a demurrer to a pleading searches the record and is applied to the first defective pleading (Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P. 2d 258), it has no application here because we construe the second amended petition to be merely an enlargement and amplification of the averments of the original petition. (Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444, and cases cited therein.)
For purposes of our decision, therefore, the action was instituted on May 6, 1958, when the original petition was filed, since the allegations of the second amended petition relate back to that date.
The second amended petition alleges that on February 16, 1956, Roy W. McCoy (hereafter referred to as the decedent) was admitted to the Wesley Hospital and Nurse Training School in Wichita, Kansas, (hereafter referred to as the hospital or appellee) where on February 18, 1956, he underwent an operation for the removal of his prostate gland. Immediately following this surgery the decedent was returned to his room in an unconscious condition, being under the influence of sedation and anesthetics, and while in this condition, fell from the bed upon which he was placed. As a result thereof, he suffered a broken hip causing him to sustain severe and lasting disability, for which injury and damage suit is brought.
Appropriate allegations are set forth in the second amended petition defining the duty of the hospital and describing the specific acts of negligence with which it is charged. It then alleged:
“VII.
“When decedent fell from the bed, as aforesaid, he was so under the influence of sedation and anaesthetics that he was unaware of the fall. Decedent was, by the agents, servants and employees of defendant, placed back in his bed and was thereafter examined by the agents, servants and employees of said defendant. Said examination was cursory in character and took place immediately after decedent’s fall. Because of decedent’s semi-conscious state he did not recognize the agents, servants and employees of defendant who placed him back in his bed. Decedent alleges, however, on information and belief, that a Mrs. lohnson, the head nurse, on duty at the time aforesaid, and a licensed practical nurse, whose name decedent does not know, placed him back in his bed. Plaintiff further alleges that defendant’s own records, which are not available to plaintiff of revivor disclose or should disclose to defendant the names of the agents, servants and employees who placed plaintiff back in his bed and examined him thereafter. At no time was the physician who was caring for decedent informed by defendant of said fall nor was decedent so informed. Decedent was not examined by defendant for a broken hip, or if such examination was made, it was a simple, cursory examination, negligently made so as not to disclose said broken hip. Notwithstanding that defendant knew that an elderly person was likely to break a hip in a fall such as decedent suffered, and notwithstanding defendant owed a duty to examine decedent to determine the exact nature and extent of his injuries, defendant did not examine decedent by x-ray or other proper means to determine if decedent had any broken bones. Defendant owed a duty to inform decedent and decedent’s treating physician, of decedent’s fall, but failed, neglected and refused to do so, at all times concealing the fact of said fall.
“VIII.
“By reason of defendant’s concealing said fall as aforesaid, decedent’s injury was unknown to him and to his treating physician and neither had any suspicion or knowledge that decedent had fallen from bed and that he might have been injured or was injured as a result thereof. Decedent’s treating physician was Vem L. Pauley, M. D. Decedent exercised reasonable diligence in attempting to ascertain the cause of his disability by complaining to the agents, servants and employees of defendant, of pain in his hip. He was assured that ir was caused by phlebitis and was at no time informed of any fall or injury to his hip. Decedent does not know the names of the agents, servants and employees who were on duty at the time he made complaints. Decedent, however, alleges that it was several days after his fall before he made complaints because he was during that period of time under heavy sedation. When decedent recovered his consciousness, several days after the fall, he complained constantly to all hospital personnel whom he could contact. Decedent alleges that defendant’s own records disclose the names of those agents, servants and employees who were on duty and who attended plaintiff and to whom these complaints were made. These complaints were verbal in form and no written complaint was made. Defendants, agents and servants in the course of their employment, ignored plaintiff’s complaints of pain, and insisted that he follow the usual hospital daily routine for ambulatory patients. This routine consisted of moving decedent about in his bed, walking decedent to the bathroom, placing him under the care of defendant’s physical therapists for walking and other muscle exercises, rubbing and manipulating decedent’s legs and hips. By reason of such daily manipulation of decedent’s fractured hip the bones therein were prevented from forming a proper union. The aforementioned acts of defendant by and through its agents and servants, continued daily up until May 13, 1956, causing decedent intense pain and suffering.
“IX.
“Decedent post-operative recovery from the prostate removal proceeded and on May 13, 1956, he was released from defendant hospital and went to his home in Eureka, Kansas. Defendant was under a continuing duty to inform decedent, and decedent’s treating physician, of decedent’s fall and consequent injury or probability thereof. Notwithstanding the defendant’s continuing duty to do so, it failed, neglected and refused so to inform and continued to conceal the fact of said fall, and continued to daily manipulate decedent’s legs and hips, causing decedent to suffer injuries and damages herein more specifically alleged. Decedent, upon returning to his home in Eureka, Kansas, continued to suffer pain in the region of his hip. He contacted a physician in Eureka who examined him, made x-rays, and informed plaintiff that he had a broken hip. Decedent so informed his treating physician, and the treating physician checked with the hospital and determined, from the records thereof, that decedent had suffered the fall complained of herein and decedent’s treating physician so informed’ decedent.
“X.
“As a direct and proximate result of defendant’s negligent failure to inform decedent and decedent’s attending physician, of the fact of said fall, and defendant’s continued concealment of said fact, decedent’s injury was not timely diagnosed or treated. As a direct and proximate result thereof said hip healed in an unnatural and improper position, leaving decedent’s injured leg approximately one and one-half inch shorter than the other, the hip stiff and the foot turned outward at an approximate angle of forty-five degrees. As a direct and proximate result thereof decedent became permanently disabled and was unable to walk unassisted.
“XI.
“After decedent left the hospital he continued his post-operative recovery at his home in Eureka, Kansas. On or about June 2,1956, after decedent had continued and repeated difficulty walking, he was examined by a local physician, x-rays were taken and for the first time decedent discovered his broken hip. At the time of discovery the healing process had proceeded to the point that it was not possible to set decedent’s hip properly. As a consequence it has healed as aforesaid.
“XII.
“Decedent, prior to his injuries as aforesaid, was a healthy, active male of the age of 71 years, with a life expectancy of 9.8 years, who was self-employed. As a result of defendant’s negligence as aforesaid, decedent has been totally and permanently disabled from gainful employment. Decedent’s estate has become liable for the $3,000.00 for medical, hospital and nursing care. Decedent suffered intense pain of body and anguish of mind up until the time of his death all to decedent’s damage in the sum of $100,000.00.” (Emphasis added.)
The foregoing allegations of the first count, except paragraph numbered XII, were incorporated by reference in the second count, which further alleged that upon the decedent’s admission to the defendant hospital he entered into a contract for hospital services, by the terms of which the hospital agreed to furnish the decedent with adequate, safe and proper care and nursing facilities during the decedent’s stay at the hospital. A copy of the admission agreement was attached and incorporated by reference, the pertinent part providing:
“In Consideration of the admission and care of above named patient the undersigned hereby agree to pay to the Wesley Hospital at Wichita, Kansas, the sum as hereinafter provided for room service, and also all obligations incurred for use of operating room, X-ray department, laboratory, and extra services rendered said patient by direction of the attending physician, or representative of tire patient.”
The second amended petition in count II then alleged:
“I.
“Notwithstanding said agreement defendant failed, refused and neglected to provide adequate, safe and proper care and facilities in that defendant provided no recovery room, attendant or bed rails for decedent’s protection after his surgery, as aforesaid, and instead breached its contract with decedent, causing him to fall from his bed on February 18, 1956, and suffer injury as aforesaid.
“II.
“The contract aforesaid required the defendant hospital, as a parí of the care of the decedent for which defendant contracted, inform decedents physician of any incident or occurrence which might in any way affect decedents health, well-being or recovery during his stay in the hospital, and that the hospital would exercise due and proper care for the safety and well-being of plaintiff.
“Notwithstanding its agreement defendant hospital wholly failed, refused and neglected to inform decedent’s physician of decedent’s fall as aforesaid, and in fact concealed said fall from decedent and from his physician, causing aggravation of decedent’s injury as aforesaid, and defendant failed, refused and neglected to use due care in the course of decedent’s admission and tenure in defendant hospital.
“Whekefobe, plaintiff prays judgment against defendant in the sum of $100,000.00, plus the costs of this action either on Count I of his cause of action or on Count II.” (Emphasis added.)
Appeal has been duly perfected by the administrator of the decedent’s estate (hereafter referred to as the appellant) from the adverse ruling of the trial court on the demurrer. Upon the record presented the second amended petition is entitled to a liberal construction.
The appellee’s sole contention is that the second amended petition shows on its face the statute of limitations is a complete bar to the cause of action.
Regarding the statute of limitations applicable to count I, G. S. 1949, 60-306, reads in part:
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
“Third. Within two years: An action for trespass upon real property; an action for talcing, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action for relief on the ground of fraud — the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” (Emphasis added.)
The appellant relies upon the doctrine of equitable estoppel in pais to prevent a resort to the statute of limitations, citing Rex v. Warner, 183 Kan. 763, 332 P. 2d 572, and authorities cited therein at page 771, but concedes to invoke the doctrine the appellee must have done something that amounted to an affirmative inducement to delay bringing the action. While the decedent’s fall from bed was concealed, the alleged concealment ceased to operate on the 2nd day of June, 1956, when his fall from bed was discovered. After that date there was ample opportunity to institute an action within the two-year period from the date of the fall. Under these circumstances the doctrine of equitable estoppel is not available to interrupt the running of the statute of limitations.
The appellant contends that concealment of the decedent’s fall from bed until the 2nd day of June, 1956, tolled the running of the statute until such date, and that the action which was filed on the 6th day of May, 1958, was therefore within the period of two years.
In an action for relief on the ground of fraud the statute of limitations does not start to run until the plaintiff discovers the fraud, or until he learns such facts as would lead a reasonably prudent person to investigate. (Dalton v. Lawrence National Bank, 169 Kan. 401, 219 P. 2d 719; and McWilliams v. Barnes, 172 Kan. 701, 242, P. 2d 1063.) Rut the cause of action in count I is on the ground of negligence, the negligence of the hospital in permitting the decedent to fall from his bed, and not on the ground of fraud.
Under the present law of Kansas fraud and concealment toll the running of the statute of limitations only when relief is sought on the ground of fraud. The rule applies only when the party against whom the bar of the statute is interposed is required to allege fraud in pleading his cause of action, or to prove fraud to entitle him to relief. In State, ex rel., v. McKay, 140 Kan. 276, 36 P. 2d 327, it was said:
“. . . Our statutes do not make concealment one of the grounds for tolling the statute of limitations. Perhaps that should be done, but it is the function of the legislature and not of the courts to do it. (Railway Co. v. Grain Co., 68 Kan. 585, 587, 589, 75 Pac. 1051; McAllister v. Fair, 72 Kan. 533, 535, 84 Pac. 112; Baxter v. Krause, 79 Kan. 851, 853, 101 Pac. 407; Caspar v. Lewin, 82 Kan. 604, 627, 109 Pac. 657,)
“Concealment does not toll the statute of limitations for an action founded on contract (Railway Co. v. Grain Co., supra; Pickens v. Campbell, 98 Kan. 518, 522, 159 Pac. 21; Rucker v. Hagar, et al., 117 Kan. 76, 79, 230 Pac. 70), nor for an action founded on liability created by statute (City of Coffeyville v. Metcalf, 134 Kan. 361, 5 P. 2d 807) . . .” (p. 280.)
The above rule has been applied in an action for malpractice against a physician, which is a tort, in Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475. There the two-year statute of limitations was held applicable and the physician’s concealment of the tort did not toll the running of the statute. It was said the action accrued when the wrongful act was committed rather than when the consequential damages arose.
Harsh as the rule may seem, it has been firmly established in this jurisdiction. The appellant concedes Graham v. Updegraph, supra, must be overruled to sustain his position on this point. It is argued the rule is open to question when compared with Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P. 2d 847, and McWilliams v. Barnes, supra. An analysis of these cases does not support the appellant.
In the Russell case quarrying operations were conducted under the plaintiff’s premises for seven years prior to the plaintiff’s discovery of the trespass. The action was founded upon the ground of fraud and trespass, and it was held the action was brought within two years from the time the fraud and trespass were first discovered. It does not appear from the opinion that the issue of concealment, present in the instant case, was before the court for consideration, the action being within the fraud provision of 60-306, Third, supra.
In the McWilliams case the action was to recover damages for misrepresentations made in connection with a sale of real estate. It was represented to the plaintiffs that the drain pipes in the house situated on the real estate were connected to and emptied into the city’s sewer system at the time they entered into the purchase contract. More than two years after the purchase it was discovered the drain pipes were not so connected but drained into a pit on the rear of the property. The court held the plaintiff’s cause of action accrued when they discovered the fraud.
The situation presented in Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64, is to be distinguished. There an action for damages sustained by the explosion of an automatic hot water heater oc curred more than two years after it had been negligently serviced or installed by the defendant, and it was held the plaintiff’s cause of action for personal injuries did not accrue until the plaintiff had suffered damages. Therefore, the statute of limitations did not commence to run until the explosion occurred. The decision is founded upon the proposition that actionable negligence does not occur until three essential elements exist: (1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains; (2) a failure by the defendant to perform that duty; and (3) an injury to the plaintiff from such failure of the defendant. It is improbable the legislature intended that the statute of limitations should operate against the accrual of rights of action, rather than merely as a bar to rights of action after accrual. Under these circumstances, the hazard created by the negligent conduct was continuous, but the statute of limitations did not commence to run until the damages resulted. (See, Polzin v. National Cooperative Refinery Ass’n, 175 Kan. 531, 266 P. 2d 293.)
The appellant contends the hospital, by reason of its relationship of trust and confidence with the decedent, had a duty to disclose the facts concerning his fall, and silence on the part of the hospital’s agents and servants constituted a fraudulent concealment of the decedent’s cause of action which tolled the statute of limitations.
If the relationship between the decedent and the hospital was one of trust and confidence giving rise to fiduciary obligations, authority for this proposition is found in McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892. There the secretary of a building and loan association defaulted and an action was instituted on his bond more than six years after default. The petition alleged that the secretary “artfully and fraudulently concealed his misappropriations by making false entries in the books and by failing to make entries in the books of moneys received by him, as well as by making false entries and statements in his written reports of the transactions of his office.” (p. 305.) The question was whether the cause of action accrued when the fraud was committed, or when the fraudulent concealment and defaults were discovered. It was held the defendant’s fraud and concealment of a cause of action postponed the running of the statute of limitations until such time as the plaintiff discovered the fraud.
While the McMullen case has not been overruled, Graham v. Updegraph, supra, recognized that the case had been cited a number of times and distinguished, saying “Indeed, it is doubtful if that case has ever been followed since it was written.” ' (p. 51.) (See, State, ex rel., v. McKay, supra.)
Here we think the McMullen case has no application because the relationship between a hospital and its patients is not a fiduciary relationship. This point was not considered in Becker v. Borter, 119 Kan. 626, 240 Pac. 584, where a patient brought an action against a dentist. (See, Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093, [opinion denying a rehearing, 187 Kan. 186, 354 P. 2d 670].) The court simply held the provision of our statute, which provides that an action for relief on the ground of fraud shall not be deemed to have accrued until discovery of the fraud, has no application to an action in tort based upon negligence of the defendant which resulted in personal injury to the plaintiff.
The appellant argues the negligence of the hospital in the instant case was a continuing act of negligence until such time as the decedent was released from the hospital on the 18th day of May, 1956. This date is within two years prior to the filing of the petition.
For this proposition the appellant relies upon malpractice decisions from foreign jurisdictions, and contends the liability of a hospital should be no different. On this point, however, the Kansas malpractice decisions are to the contrary. (Becker v. Floersch, 153 Kan. 374, 110 P. 2d 752; and Coulter v. Sharp, 145 Kan. 28, 64 P. 2d 564.)
In Blackburn v. Security Benefit Ass’n, 149 Kan. 89, 86 P. 2d 536, the plaintiff contended the defendants’ tortious wrongdoing was of a continuous nature which lasted until the defendants turned the plaintiff out of the hospital, but the court was not required to specifically pass upon this question because the evidence presented at the trial of the case was insufficient to make a prima facie case of negligence against the defendant.
Another case which may be confused with the continuing negligence theory is Morris v. Dines Mining Co., 174 Kan. 216, 256 P. 2d 129. There the plaintiff alleged he was employed by the defendant from July, 1946, to February 20, 1950, in its underground lead and zinc mines where, by reason of the negligent operation of the mines, he inhaled and breathed silica dusts in harmful quantities over such period of time, and that by reason of such inhalations and absorptions, the same varying from day to day, and by reason of the latent, gradual, cumulative and progressive effect thereof, during all that period of time he was caused to be injured and contracted fibrosis, silicosis and silica-tuberculosis. It was held the theory upon which the petition was drawn indicated the plaintiff contracted the disease in question about February 20, 1950, which was less than two years from the date on which the action was instituted. The Morris case tends to fall in the category of Kitchener v. Williams, supra.
Our Kansas decisions do not support the appellant’s continuing negligence theory on the facts presently before the court.
On count II of the second amended petition the trial court held the gravamen of the appellant’s alleged cause of action was in tort, notwithstanding the form in which it was stated, and therefore barred by the two-year statute of limitations.
Basically, count II alleges that pursuant to the admission agreement the hospital agreed to care for the decedent and that his fall from the bed, coupled with concealment from the decedent and his physician the fact that he had fallen, constitutes a breach of the contract. The appellee argues no complaint is made that it failed to furnish care equal to the express terms of the contract.
The appellant readily concedes the decisions of Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955, and Coulter v. Sharp, supra, hold that notwithstanding the petition by a patient against a surgeon for damages was in form one for breach of contract to perform the operation in accordance with proper surgical practice, the gravamen of the action was malpractice, which is a tort, and the action was barred by the two-year statute of limitations. The appellee interprets this as a concession by the appellant that the Kansas law does not support the appellant’s attempt to invoke the three-year statute of limitations to the case at bar. We do not agree.
The theory upon which malpractice actions are held to sound in tort is that the contract, which the patient makes with a physician to perform an operation according to good surgical practice, is nothing more than a duty which the physician is obligated to follow in any event without a contract. In other words, the duties imposed upon a physician by law require him to perform an operation in accordance with good surgical practice. This was stated in Travis v. Bishoff, supra, where the patient is said to have suffered the damages which characteristically flow from malpractice. (But see, Becker v. Porter, supra.)
The instant case is not an action against a physician for malpractice. We think there is a distinction.
It must be conceded that the acts of the hospital through its agents, servants and employees in permitting the decedent to fall from his bed was an act of negligence, and within the two-year period of the statute of limitations could be instituted as a tort action.
In the early case of K. P. Rly. Co. v. Kunkel, 17 Kan. 145, Justice Rrewer, speaking for the court, stated:
"... A second position of counsel is, that the cause of action is not one arising from contract, but is founded upon tort, and that therefore it was barred any way, even if August instead of March was the time of the injury. This claim cannot be sustained. While the distinction between actions on contract and those for tort is plain and broad, yet, as is well said in the case of Staley v. Jameson, 46 Ind. 159, on which counsel mainly rely, and in which is quite a full discussion of the question, it is not always easy to determine from the allegations of the petition in which class the action must be placed; for contracts are often alleged in actions which clearly sound in tort, and as often tortious acts and conduct of the defendant are averred in actions purely ex contractu. And often the plaintiff has his election upon the same state of facts, whether to bring an action ex contractu, or one ex delicto. Here the pleader alleges that the defendant was a common carrier, that it made a certain contract of carriage, and received its pay therefor, and then alleges that defendant broke said contract, and how it broke it. True, in showing how defendant broke the contract it discloses wrongful acts done by defendant; but still the manifest gist of the action is the breach of the contract, and the tortious acts are simply the manner of the breach. . . .” (p. 166.)
The foregoing was quoted with approval in Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986, which at page 506 also quoted Pomeroy on Code Remedies, 5th ed., § 464, to which we make reference. (See, also, Kipp v. Carlson, 148 Kan. 657, 84 P. 2d 899.)
In the Crabb case it was held that when a party binds himself by contract to do a work or peform a service, in the absence of an express agreement, there is an implied agreement or warranty, which the law annexes to the contract, that he will do a workmanlike job and will use reasonable and appropriate care and skill. The court further held that a breach of such implied warranty may result from negligence or failure to use due care and skill in performing the particular work.
Language used by the court in the Crabb case indicates that the plaintiff there had an election whether to proceed in tort or contract, but the petition there under attack on demurrer did not disclose which theory the plaintiff had elected. The court said:
“While good practices require the plaintiffs initial pleading to proceed on a single and definite theory, under modem code systems, his pleading may be held sufficient if it states a cause of action on any theory. . . .” p. 504.)
In addition to the cases cited on this point in Crabb v. Swindler, Administratrix, supra, see Fernco, Inc., v. Kennedy, 181 Kan. 25, 309 P. 2d 400; Richey v. Darling, 183 Kan. 642, 331 P. 2d 281; Kansas Bankers Surety Co. v. Ford County State Bank, 184 Kan. 529, 338 P. 2d 309, 75 A. L. R. 2d 600; Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186; Otto v. Swartz, 186 Kan. 689, 352 P. 2d 12; Wycoff v. Winona Feed & Grain Co., 187 Kan. 98, 353 P. 2d 979; and Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829.
We think it also clear under code practice in Kansas that a plaintiff may plead a cause of action in the alternative where the alternatives are not repugnant. (Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359.) In 1 C. J. S., Actions, § 47, pp. 1103,1104, it is said:
“The same act or transaction may, however, constitute both a breach of contract and a tort, in which case, but subject to the limitation that he cannot recover twice for the same wrong, the injured party may sue either in contract or in tort, as, for example, where the act complained of consists of the violation of some duty merely incident to, or arising out of, a contract.”
This court in Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887, recognized the right of a plaintiff to plead two causes of action growing out of the same transaction, one in tort and the other in contract for breach of an implied warranty. Reference is made to that opinion for a discussion of many authorities touching the question presently before the court.
It has been held a hospital must exercise toward a patient such reasonable care as his known condition may require, and that degree of care is in proportion to his known physical and mental ailments. Therefore, the extent and character of the duty owed by the hospital will depend on the circumstances of each case. (Marks v. St. Francis Hospital & School of Nursing, supra; and Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638.)
For the violation of such duty in permitting the decedent, while under the influence of sedation and anesthetics, to fall from his bed causing him to sustain injury, an action in tort could be instituted within two years after the injury to recover the consequential damages sustained. Rut, confronted with these circumstances, the hospital through its agents, servants and employees had an immediate obligation to notify and inform the decedent’s physician, and when the patient had sufficiently recovered from the anesthetics to inform him, of his fall from the bed to fulfill its implied obligation under the contract which it had undertaken to perform. The implied contract is simply the fictitious promise which the law infers from the tortious acts themselves.
The very facts which are alleged in the tort action are the facts from which the promise is inferred, and in count II it was necessary to state those facts to allege a cause of action ex contractu. They were so alleged, and we hold a cause of action was stated on the theory of contract which is not barred by the statute of limitations.
In an action for breach of an implied obligation under the contract the hospital can be held to account for consequential damages which are the natural, direct and proximate result of the wrongful act. (Crabb v. Swindler, Administratrix, supra.)
We therefore hold the trial court properly sustained the demurrer to count I of the second amended petition, but erred in sustaining the demurrer to count II thereof.
The judgment of the trial court sustaining the demurrer to count I of the second amended petition is affirmed, but as to count II thereof it is reversed.
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The opinion of the court was delivered by
Parker, C. J.:
Defendant Harold Glen Armstrong, Jr., was charged with the crime of manslaughter in the first degree (G. S. 1949, 21-407) and appeals to this court from a conviction of the crime of manslaughter in the fourth degree (G. S. 1949, 21-420).
Highly summarized, and without extended detail, the salient facts on which the defendant was convicted, as gleaned from the evidence of record adduced at the trial, may be stated thus:
On Saturday, June 20, 1960, the defendant, while driving his automobile, was involved in a fatal accident at the uncontrolled intersection of West Third Street and Willow Street in the City of Coffeyville, Kansas. The accident, to which there were no witnesses, occurred at approximately 1:30 p. m. on such day. Just prior to its occurrence, Mrs. Mary Louise Douglas was driving her automobile on the west side of Willow Street at a speed not exceeding fifteen miles per hour with one passenger, her daughter Debra, who was nineteen months old. The defendant was driving east on West Third Street, alone, at a speed which, according to his own admission, was between twenty-five and thirty miles an hour. Mrs. Douglas entered the intersection first and a portion of her automobile was south of the intersection when the rear portion thereof was hit by the defendant’s automobile, who had entered the intersection from the west, the point of impact being, according to investigating officers, seven feet and nine inches north of the south edge of the intersection and thirty feet and four inches south of the north edge of the intersection. The force of the impact turned the Douglas automobile in a half circle and it started to roll over. As it did so the child was thrown out of the open window on the driver’s side, between her mother and the steering wheel. Immediately thereafter such automobile landed on its left side on top of the child, inflicting injuries which caused her death. The location of the Douglas automobile after the accident was thirty feet south of the intersection, headed in a northwesterly direction. The location of the defendant’s automobile, a 1948 Chevrolet, was forty-six feet east of the point of impact. Neither automobile left skid marks prior to the impact. After the collision the only skid marks visible to investigating officers were those made by the Douglas automobile.
Other evidence adduced by the state during the trial of the case was to the effect that the hydraulic brakes of the defendant’s automobile were checked and it was found that the brake peddle would depress to the floor board; that the master brake cylinder was empty of fluid and this was not the result of the accident, as no damage had been done to either the cylinder or brake linings; that the automobile could not have stopped with these brakes, as they would not have any stopping power upon such vehicle; that in admissions to investigating officers defendant stated that he was on his way to the service station to have his brakes fixed; that he had had difficulty stopping at several stop signs prior to reaching the intersection of Third Street and Willow Street; and that he had experienced trouble with his brakes sometime prior to the accident.
Evidence adduced by defendant, who did not testify as a witness in his own behalf, came from several witnesses who had 'driven or ridden in defendant’s automobile within two weeks prior to the collision. Each testified that the brakes were working satisfactorily when they were in, or driving, the automobile. An expert witness also testified that hydraulic brakes could go out suddenly and without warning and that it is possible to stop at one corner and have normal brakes and the next time have the brakes go out completely, within a block or half a block.
Following the close of all the evidence and arguments by counsel for the respective parties the jury, which had been empaneled and sworn to try the cause, was given written instructions and then directed to retire to the jury room for consideration of its verdict. On the same day it returned with its verdict finding defendant guilty of manslaughter in the fourth degree (G. S. 1949, 21-420). This verdict was accepted by the trial court and the jury was discharged. After the overruling of his motion for a new trial, and his subsequent sentence as prescribed by law, defendant perfected the instant appeal in which, in utter disregard of the requirements of Rule No. 5 (See 186 Kan. XI; G. S. 1949, 60-3826 “Rules of the Supreme Court No. 5”), with an abstract of record containing no specifications of error whatsoever, he now seeks to have this court review divers questions raised by him as affording grounds for reversal of the trial court’s judgment and sentence.
So far as here pertinent the provisions of Rule No. 5, supra, which under our decisions are applicable to both criminal and civil cases, read “The appellant’s abstract shall include a specification of the errors conjplained of, separately set forth and numbered.”
The fact, as heretofore pointed out, that appellant has wholly failed to comply with the requirements of Rule 5, requires the court to direct attention to what is now its definitely established rule when faced with such a situation on appeal. Simply stated that rule is that where — as here — an appellant has failed to comply with the quoted requirements of Rule 5, by failing to set forth in his abstract a specification of errors complained of, he precludes himself from appellate review and his appeal will be dismissed.
It is neither necessary nor required to again labor the reasons responsible for this court’s enunciation and application of the rule just mentioned. It suffices to say the reasons have been considered and discussed, and the rule applied, under divers conditions and circumstances, in many decisions, both criminal and civil, to which we adhere. For more recent cases, where the rule has been stated and applied, see e. g., (criminal cases) State v. Bednark, 187 Kan. 236, 356 P. 2d 848; State v. Lewis, 187 Kan. 221, 356 P. 2d 845; State v. Jones, 187 Kan. 318, 356 P. 2d 843; State v. Trinkle, 186 Kan. 809, 352 P. 2d 937; State v. Morrow, 186 Kan. 342, 349 P. 2d 945; State v. Combs, 186 Kan. 247, 350 P. 2d 129; State v. Hamilton, 185 Kan. 101, 340 P. 2d 390, 361 U. S. 920, 4 L. Ed. 2d 188, 80 S. Ct. 265; State v. Turner, 183 Kan. 496, 328 P. 2d 733, 359 U. S. 206, 3 L. Ed. 2d 759, 79 S. Ct. 739; State v. Owen, 161 Kan. 361, 168 P. 2d 917; (civil cases) Blevins v. Daugherty, 187 Kan. 257, 356 P. 2d 852; In re Estate of Rosey, 187 Kan. 254, 356 P. 2d 849; Hughes v. Hanlen, 186 Kan. 30, 348 P. 2d 634; Messmore v. Hand, 185 Kan. 774, 347 P. 2d 402; Green v. State Highway Commission, 184 Kan. 525, 337 P. 2d 657, Rehearing 185 Kan. 36, 340 P. 2d 927; Ford v. Morrison, 182 Kan. 787, 324 P. 2d 140; Jeffers v. Jeffers, 181 Kan. 515, 517, 313 P. 2d 233; McIntyre v. Dickinson, 180 Kan. 710, 307 P. 2d 1068; North American Finance Corporation v. Circle-B, Inc., 180 Kan. 34, 299 P. 2d 576; Rice v. Hovey, 180 Kan. 38, 299 P. 2d 45; Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; State, ex rel., v. Miller, 177 Kan. 324, 329, 330, 279 P. 2d 223; Gilley v. Gilley, 176 Kan. 61, 268 P. 2d 938; Miller v. Rath, 173 Kan. 192, 244 P. 2d 1213; City of Independence v. Wendorff, 169 Kan. 14, 16, 216 P. 2d 820; Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975; Lambeth v. Bogart, 155 Kan. 413, 125 P. 2d 377.
For earlier decisions dealing with the same subject see Hatcher’s Kansas Digest, [Rev. Ed.], Appeal & Error, §§ 175 to 182, inch; West’s Kansas Digest, Appeal & Error, §§ 719 to 722, inch; Hatcher’s Kansas Digest [Rev. Ed.], Criminal Law, §418; West’s Kansas Digest, Criminal Law, §§ 1129(1), 1134(8).
“It is quite true that under G. S. 1949, 62-1701, an appeal to this court may be taken by a defendant as a matter of right from any judgment against him. The statute, however, does not mean that a defendant is entitled to a review of every matter involved in his trial and sentence without compliance with well-established rules of procedure relating to appellate review. In other words, while in this case defendant did appeal from the order overruling his motion for a new trial, his failure to specify that order as error precludes a review of alleged irregularities and errors occurring during the trial.” (State v. Hamilton, p. 103, supra.) And so here, although appellant did appeal from several rulings made by the trial court his failure to specify such rulings as error in his abstract is fatal and precludes their appellate review.
Under the related facts and circumstances adherence to Rule No. 5, and the decisions heretofore cited, requires that the instant appeal be dismissed.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
The action was to construe the will of Frances Solomon, deceased, and to quiet title in the plaintiffs to 180 acres of land in Woodson County. Trial was by the court which construed the will and entered judgment for the defendants. The plaintiffs have appealed.
The facts are not in dispute, and the sole question presented is the proper construction of the decedent’s will.
Frances Solomon executed her will on October 29, 1908, and died on April 1, 1923, the owner of the real estate in question. She was survived by her seven children: Minnie Solomon, Albert Solomon, Ida Morse, John Solomon, Lillie Stauffer, Frederick Solomon, and Nellie Kimzey. On April 6, 1923, the decedent’s will was admitted to probate in Woodson County, and her executor was discharged June 25, 1925. The pertinent provisions of the will read:
“Second: I give, devise and bequeath to my beloved daughter, Minnie Solomon, my home described as follows, to-wit: (property described) all in Wood-son County, Kansas, she the said Minnie Solomon to have said premises above described her life time only, and to keep up the repairs and pay the taxes on said property from year to year, and is not to sell mortgage or in any way dispose of said property during her life time. At her death, it is my will that said property be sold and divided equally share and share alike between my then surviving heirs, all of whom are hereinafter named, I further will devise and bequeath to my said daughter, Minnie Solomon, the sum of $300.00 in cash or its equivalent same to be paid as soon as convenient after my death out of the proceeds of my then personal property.
“Third: I give devise and bequeath to my beloved children Albert Solomon of Chanute, Kansas, Ida Morse of Benedict, Kansas, John Solomon and Lillie Stauffer and Frederick Solomon all of Ridge, Kansas, and Nellie Kemcey (Kimzey) of Anadarko, Oklahoma, all the residue of my property both real and personal of which I may die possessed, share and share alike.”
Minnie Solomon, the life tenant, died January 4,1959. Ida Morse, John Solomon, Lillie Stauffer, and Nellie Kimzey died prior to January 4, 1959, each leaving surviving children who are the appellees.
The appellants, Albert Solomon and Frederick Solomon, are the only surviving children of the testatrix. They contend the correct interpretation of their mother’s will requires the conclusion that she intended only those of her children who survived the life tenant to have the remainder, and since they are the only two “surviving heirs” they should take to the exclusion of descendants of deceased children.
The appellees contend that the testatrix used the word “heirs” in the second paragraph of her will in its ordinary legal sense so as to include descendants of her deceased children, and that upon the death of the life tenant they are entitled to their per stirpes share.
In the second paragraph of her will the testatrix gave her daughter Minnie a life estate in the real estate and provided she was not to sell, mortgage or in any way dispose of it during her lifetime. She then provided that at Minnie’s death, the “property be sold and divided equally share and share alike between my then surviving heirs, all of whom are hereinafter named. . . .” The third paragraph provided: “I give devise and bequeath to my beloved children (naming them, except Minnie), all the residue of my property both real and personal of which I may die possessed, share and share alike.”
At the time this case was decided, the learned judge of the district court filed a memorandum decision, and as it clearly sets forth the issues and the reasons for the decision, it is quoted in full:
“In the construction of the will of Frances Solomon it must first be determined what significance her use of the word ‘heirs’ in paragraph Second has in ascertaining her intent. It is clear that the identity of those who are to take the proceeds from the sale of the land cannot be determined until after the death of Minnie Solomon, the life tenant. Distribution goes to tiróse (whether heirs or children is the question) who are living at the time of the death of the life tenant. It must be assumed that the testatrix used the word “heirs’ rather than ‘children’ in its ordinary legal sense so as to include descendants of her deceased children. There is nothing in die will to clearly indicate a contrary intent. In leaving the property to her ‘then surviving heirs’ she follows with the language, ‘all of whom are hereinafter named.’ It is clear that by the use of those words she did not intend to describe those who in the distant future would constitute the class of ‘then surviving heirs’, but she only intended to describe those who were her living potential heirs at the time of making the will. The Court cannot find from the language of this will that the testatrix intended to exclude her grandchildren from the benefits of paragraph Second.
“The second question is: What did the testatrix intend when she directed that the property be sold and the proceeds divided between her then surviving heirs ‘equally share and share alike?’ The most reasonable construction to give the will, and the one which probably reflects the true intent of the testatrix is that she was describing her children as the branches from the common stem as the basis for a per stirpes distribution after the death of the life tenant. That is the construction which will be adopted by the Court.”
In harmony with the court’s memorandum decision judgment was entered that the real estate was owned in fee simple as tenants in common and in the fractional interests by the parties as set forth in the pleadings, and partition was ordered.
We think the district court correctly interpreted and construed the decedent’s will. It is clear from a reading of the will that upon the death of the life tenant the real estate was to be sold and the proceeds divided equally, but it is not clear among whom the proceeds are to be divided. The crux of the problem is that the use of the word “heirs” and the phrase that follows, “all of whom are hereinafter named,” must be reconciled. We think that, as the district court found, the proper construction to be given the will is that the testatrix used the word “heirs” in its ordinary legal sense so as to include descendants of her deceased children. To adopt the appellants’ contention would in effect change the word “heirs” to the word “children” which the testatrix could easily have done, but she did not do so. Again, as found by the district court, we think by the phrase “all of whom are hereinafter named,” the testatrix intended to designate her living potential heirs at the time of making her will. Moreover, no provision is made in the will in case any of the children named in the third paragraph should predecease the testatrix, and there is no language to indicate any intention on her part to disinherit anyone or to divide the property otherwise than equally among those sharing. Construing all the language of the will, we think it must be said the testatrix did not intend to exclude children of her deceased children from sharing in the proceeds of the sale of the land as directed in the second paragraph of her will.
We have not overlooked tihe authorities cited by the appellants, but in view of the conclusion just announced, it is unnecessary to discuss them.
We find no error in the record and the judgment is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the findings and award of the trial court in a workmen’s compensation proceeding (G. S. 1949, 44-501 et seq.) in favor of claimants, the surviving widow and children of a deceased workman, and against respondents, the deceased’s employers and their workmen’s compensation insurance carrier.
Decedent, Norvin Henry Price, Sr., forty-six years of age, was superintendent in charge of the golf course and picnic grounds at the Victory Hills Golf and Country Club which his employers owned. He had been in their employ for twenty-two years.
On Sunday, June 28, 1959, decedent had done his regular work at the club from 5:00 a. m. to 9:00 a. m. and had gone home. His employers called him by telephone and asked him to come back to the club and help them. He said, “I’m awful tired, but I’ll go.” He went back and hustled wooden picnic tables with benches attached in the picnic area and finally returned home at 7:00 p. m. and went to bed at 8:30 p. m. because he said it had been a long, hard day and he was tired.
At about 5:45 a. m. on Monday, June 29, 1959, decedent adjusted the blades on the mowing machines, which weighed about 125 pounds. They were reel type, self-propelled, eighteen inch power mowers and had to be turned by wrist, arm and body manipulation of the operator. Decedent assigned certain men to mow certain greens on the golf course and he then took his usual three greens (Nos. 1, 2, and 11) which were on the west side of the course. No. 1 green was stipulated to be 300 yards from the shop and twenty-five yards from No. 11, which was stipulated to be 375 yards from No. 2. There was some conflict as to how much of the course was up and down hill in this area but respondent Harold McSpaden, who found decedent lying face down with apparently no life in his body between No. 11 green and No. 2 green, testified that No. 11 is west of No. 1 and drops off slightly. In twenty-five yards it might go down six or eight feet and then it would go up again. Eetween No. 11 and No. 2 the ground sloped down into a little “swell” and then sloped up again on the other side in about the same proportion.
Since decedent had the responsibility he did he was subject to twenty-four hour call if some emergency arose at the golf course. Just prior to being found by McSpaden he had been mowing the greens, servicing and adjusting all the machines and equipment, and caring for the rest of the golf course wherever care was needed. He had constantly complained to his family of being tired and on Sunday his son had had to drive the family car when they went for a little ride because decedent was too tired to drive. However, he continued to do his work until the morning of June 29, 1959, when he was discovered by one of his men sitting at the edge of No. 2 green, with the green half mowed, and the power mower shut off. He told the workman to finish the No. 2 green because he was too sick to do so. Decedent started toward the club house but never arrived there.
Doctor William E. Laaser, the Price family physician for five years, who was also a deputy coroner for Wyandotte county, was called to the scene and he testified that in early June, 1959, decedent had been in the hospital for the first time because of an acute stomach disorder but there had been no indication of heart trouble and consequently no specific check was made therefor.
Neither the death certificate nor the pathological report determined the cause of death. The pathology report showed that an autopsy had taken place but arterial embalming had been done prior thereto.
Six members of the medical profession testified as to whether decedent died of a cardiac failure caused by his work. Two of them could not tell or explain what had caused death. Two testified that decedent died of cardiac failure and that his work was a contributing or aggravating factor that could have and probably did cause, or contribute to, his death. Two were of the opinion his work was in no way a causative factor or responsible for his death. On this state of the record the commissioner found that decedent’s sudden collapse and death arose out of and in the course of his employment within the meaning of G. S. 1949, 44-501, that the work performed required extreme exertion on his part which considered with conditions found on postmortem pathology precipitated his death. Decedent not only performed manual labor guiding the mower, but he also had responsibilities as grounds superintendent to see that the work was quickly and properly done. The fact that he personally adjusted the cutting height of the several' mowers, assigned the work to be done that particular day, undertook the mowing of several of the greens himself, although com plaining of being tired out the previous day, were all indicative that the managerial responsibilities increased the exertion required for the performance' of his work.
The commissioner made an award in favor of claimants in the sum of $12,500.00 payable at the rate of $34.00 a week and awarded the statutory minimum of $450.00 for burial allowance.
An appeal was taken to the district court of Wyandotte county and that court on January 11, 1961, having read and considered the transcript of the testimony and the arguments of counsel, together with their briefs, approved, affirmed and adopted the findings, order, and award of the commissioner and judgment was so entered from which this appeal was taken by the respondents.
While there are some eight specifications of error urged, the first six involve the question of whether there is any evidence to support the judgment of the trial court. This court in Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P. 2d 672, fully discussed the established rules relating to appellate consideration and review of judgments in workmen compensation cases. The first established rule, which answers the contention of appellants here in regard to the evidence, is that enumerated as (1) where the court said,
“. . . it is the function of the trial court not that of the appellate court to pass upon the facts. . . .” (p. 425.) (Our emphasis.)
Appellants’ contention there was no competent, substantial evidence to support the trial court’s judgment is not borne out by the record in view of the facts narrated which show there is an abundance of substantial, competent evidence to sustain that judgment. Under rule (2) of the Weimer case, any question of law will be determined by this court on appeal. It reads:
“. • . whether the judgment is supported by substantial competent evidence is a question of law as distinguished from a question of fact. . . (p. 425.) (Our emphasis.)
It may be admitted the evidence, especially that consisting of medical testimony, is highly conflicting and perhaps could have sustained a contrary finding by the trial court, but since the trial court made the findings it did in this case, under rule (3) of the Weimer case (p. 425), this court on appellate review will not disturb that judgment.
Briefly, appellants have undertaken to have this court review the evidence under the guise of a question of law, hoping for a result that would reverse the findings of die trial court. In this endeavor, under our rules, they cannot succeed. We have considered other authorities and decisions of this court cited by the parties, but we think it would add nothing to this discussion to list them herein.
The recent case of Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 623, 358 P. 2d 676, reiterates the elementary and longstanding rule of this court which states that what happened to decedent here was a personal injury by accident arising out of and in the course of his employment.
Appellants’ two contentions of error in regard to the commissioner’s consideration of depositions of three witnesses and also as to his rulings on objections to evidence were not argued and will be considered as having been waived.
The trial court did not err in accepting, approving, affirming and adopting the findings and award of the commissioner, and further, did not err in entering such award as its judgment.
Affirmed.
Price, J., dissents.
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The opinion of the court was delivered by
Holmes, J.:
Several Johnson County property owners appeal from an order of the district court affirming action by the Board of County Commissioners of Johnson County (Board), which authorized the annexation of a 7.8 square mile area by the City of Overland Park (Overland Park or the City). The action was originally instituted by Overland Park pursuant to K.S.A. 12-521. Overland Park was allowed to intervene as a party in the district court and is the appellee in this court. This case was transferred from the Court of Appeals upon motion pursuant to K.S.A. 20-3017.
On May 1, 1985, Overland Park filed its petition for annexation. On May 23, 1985, city officials conducted a public meeting to explain the annexation. Public hearings were held by the Board on July 9, 1985, and July 23, 1985. On August 8, 1985, the Board filed an order authorizing annexation of the entire 7.8 square mile area with the exception of one 40-acre tract which the Board found would suffer manifest injury. The property owners have appealed asserting three issues: (1) The City of Overland Park was required to exhaust its ability to annex pursuant to K.S.A. 1986 Supp. 12-520 before petitioning under K.S.A. 12-521; (2) the Board failed to conduct a fair and open hearing, resulting in a denial of procedural due process of law; and (3) the Board improperly determined that annexation would not cause manifest injury.
First, the petitioners argue that the City was required to exhaust its ability to annex the land pursuant to K.S.A. 1986 Supp. 12-520 before it could petition the Board for annexation pursuant to K.S.A. 12-521. K.S.A. 12-520 was amended in 1986 after these annexation proceedings were completed, however, the amendments are immaterial to our discussion of this statute in this case. (L. 1986, ch. 70, § 2.) Hereinafter we will refer to the statutes simply as 12-520 and 12-521.
The two statutes provide different methods of annexation. Under 12-520, a city may unilaterally annex land if it meets any of seven criteria set forth in the statute. Procedurally, among other things, the city adopts a resolution regarding the contemplated annexation, gives notice of a public hearing to be held on the annexation, and mails a copy of the resolution providing for a public hearing by certified mail to property owners of property to be annexed. Following the hearing, the city effects annexation by passing and publishing an annexation ordinance covering the land in question. K.S.A. 1986 Supp. 12-520a
When proceeding under 12-521, the city presents a petition to the board of county commissioners of the county where the land sought to be annexed is located. Again, a public hearing is required and a copy of the notice providing for the public hearing is mailed by certified mail to owners of property to be annexed. However, it is the board of county commissioners which determines whether to grant the annexation and, to do so, it must find that the annexation will cause no manifest injury to the property owners. If the board grants the annexation, the city then must pass and publish an annexation ordinance covering the land in question. Thus, it is obvious that the procedure under 12-520 is much simpler and more direct from the city’s standpoint.
K.S.A. 12-521 provides in part:
“Whenever the governing body of any city deems it advisable to annex land which such city is not permitted to annex under the authority of K.S.A. 12-520 and amendments thereto, the governing body in the name of the city may present a petition to the board of county commissioners of the county in which the land sought to be annexed is located.” (Emphasis added.)
The appellants argue that the quoted language required the City to first unilaterally annex all property in the 7.8 square mile area which met any of the criteria of 12-520 and, therefore, the 12-521 petition is defective. While the record is not clear, we will accept, for purposes of this decision, that there were several areas within the 7.8 square miles which could have been annexed under 12-520. The district court stated in its opinion that, “[although there was no direct testimony or evidence presented to the court which would support the contention that there was K.S.A. 12-520 eligible land in the annexation request, a perusal of the maps provided would seem to substantiate that contention.” Our examination of the maps which were part of the record before the Board leads us to the same conclusion.
The City argues the district court correctly decided that a city is not required to exhaust all possible unilateral annexations pursuant to 12-520 before petitioning the board of county commissioners for a 12-521 annexation. The district court found the entire 7.8 square mile area could not be annexed under 12-520, so the City could elect to proceed under 12-521, which provided the property owners with additional safeguards. Furthermore, under the definitions of “land” and “tract” in K.S.A. 12-519(b) and -519(a), the district court found the use of the word “land” in 12-521 meant an area which consists of a number of units of real property under different ownership. Therefore, the court found it is the legal description of the entire area which must be ineligible for annexation under 12-520 as a condition precedent to use of 12-521. We agree.
No Kansas case has previously addressed an annexation involving 12-520 and 12-521 lands together in the same proceeding. However, there are cases where successive ordinances have been passed by the city to sequentially and unilaterally annex land in a piecemeal fashion pursuant to 12-520. See McDowell v. City of Topeka, 239 Kan. 263, 718 P.2d 1308 (1986); Banzer v. City of Wichita, 237 Kan. 798, 703 P.2d 812 (1985); City of Lenexa v. City of Olathe, 233 Kan. 159, 660 P.2d 1368 (1983); State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974). Under the typical procedure used in these cases, land that meets 12-520 criteria is unilaterally annexed by passing an ordinance. After that ordinance is published and effective, unilateral annexation proceedings are begun to annex an area of land that can then be reached by 12-520 due to the first annexation. Each subsequent annexation depends on the validity of the preceding annexation. Thus, over a period of time, a city can unilaterally bootstrap in a large area of land, which, in its entirety, did not initially meet the criteria of 12-520. The procedure is time consuming, expensive, and not without serious problems. In Banzer v. City of Wichita, 237 Kan. 798, ten parcels of land were sequentially annexed by the City of Wichita, pursuant to 12-520, based upon one initial resolution. The City gave the requisite notice of public hearing, which included a copy of the one resolution covering the entire land to be annexed, to the property owners. Following only one public hearing which covered all ten parcels, the City proceeded in a weekly sequential manner to adopt the ten successive annexation ordinances annexing the whole of the territory. Each succeeding ordinance was dependent upon the validity of the annexation ordinance immediately preceding it. In the opinion we stated:
“It is clear that the language of K.S.A. 12-520 does not provide a method for a municipality to use multiple sequential annexation ordinances for tracts of land that do not adjoin the city when the annexation procedure is commenced. For a municipality to annex land under K.S.A. 12-520(a), such land must actually adjoin the city when the annexation procedure is commenced.” 237 Kan. at 805.
The first parcel of land was held to be properly annexed; the annexation of the remaining nine, however, was ruled ineffective because they did not adjoin the City when the annexation proceedings were commenced as required by 12-520(a), under which the City had proceeded.
In Board of Riley County Comm’rs v. City of Junction City, 233 Kan. 947, 667 P.2d 868 (1983), this court ruled the entire annexation ordinance passed by a city was invalid where that ordinance described the land in question in one parcel and only part of that parcel was lawfully subject to annexation. However, pursuant to the specific provisions of 12-520, if one ordinance is used and it describes each separate parcel involved, and one of those parcels does not meet the statutory criteria, the annexation of the remaining parcels which do meet the criteria is not invalidated.
The first time K.S.A. 12-519 et seq. were considered by this court was in State, ex rel. v. City of Coffeyville, 211 Kan. 746, 749, 508 P.2d 1007 (1973), where it was stated regarding 12-520:
“The proviso that a city by one ordinance may annex one or more separate tracts or lands each of which conforms to any one of the prescribed conditions for annexation (last paragraph of 12-520), permits consolidation of separate annexations in one procedure, thereby saving time and expense. The procedure is permissive but is not intended to permit annexation of any lands which depend on the completion of other pending annexations before the conditions for annexation exist .... These views appear harmonious with the statutory language and worthy of consideration as reflection of legislative intent.” (Emphasis added.)
Thus, it is clear that when considering annexation of an area which includes only 12-520 land, that land must meet the statutory qualifications on the date the annexation proceedings are begun. Here, the concern involves some land that may satisfy the 12-520 requirements and some land that clearly does not. There is nothing in the statutes to indicate that in such an instance 12-520 and 12-521 are mutually exclusive and that annexation of the entire area cannot be brought pursuant to 12-521. K.S.A. 12-521 affords the property owners considerably more protection than unilateral annexation under 12-520. Pursuant to 12-521, it is the board of county commissioners who must decide if the annexation is advisable and it must find the property owners will not suffer manifest injury by the annexation. Additionally, a more comprehensive approach to land development is allowed when the entire territory comprised of 12-520 and 12-521 land can be considered together in one proceeding. Such a process can save time and expense while affording the property owners more protection. It is also clear that in many cases the initial annexations under 12-520 may result in additional property becoming eligible under the statute and, under the appellants’ theory, the city would then be required to again proceed on a piecemeal basis as to the new 12-520 property. We conclude the City was not required to first exhaust annexation proceedings pursuant to 12-520 before petitioning the Board pursuant to 12-521.
Next, appellants assert they did not receive procedural due process in the proceedings before the Board. They argue their rights were violated when the Board allowed only six hours for hearings on the annexation and failed to allow the appellants to cross-examine witnesses.
When a board of county commissioners carries out its functions under 12-521, it has two roles: It acts in a legislative capacity when it determines the advisability of annexation, and it acts in a quasi-judicial capacity when it determines whether the annexation will cause manifest injury. In re Appeal of City of Lenexa, 232 Kan. 568, Syl. ¶ 1, 657 P.2d 47 (1983). However, the full rights of due process present in a court of law do not automatically attach to a quasi-judicial hearing. See Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1975). The concept of due process is flexible in that “not all situations calling for procedural safeguards call for the same kind of procedure.” Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). The basic elements of procedural due process of law are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. U.S.D. No. 461 v. Dice, 228 Kan. 40, Syl. ¶ 1, 612 P.2d 1203 (1980). In the early case of Callen v. Junction City, 43 Kan. 627, 23 Pac. 652 (1890), an attack on the constitutionality of certain annexation proceedings was asserted, including a claim that the statutes authorizing annexation violated the requirements of due process of law. The court stated:
“[I]t is only necessary to say that the change of the status of a tract of land from a farm to city lots, by the exercise of a power granted cities to extend their limits, is not a deprivation of property without due process of law.” p. 630.
Callen was cited with approval in State, ex rel., v. City of Overland Park, 215 Kan. 700. Be that as it may, in the present case every landowner who wished to be heard was given an opportunity to present his or her views at one of the two hearings and, in fact, the landowners who were protesting this annexation utilized the major portion of the six hours of hearings on the matter.
Here, the appellants’ rights to procedural due process were not violated because they were not allowed to cross-examine witnesses. Statements at an annexation hearing are not made under oath but are generally broad expressions of opinion made by those in favor of or against the annexation. To allow cross-examination in contested annexation proceedings where the number of property owners who express their views is likely to be great would result in increased time, expense, and delay to all parties concerned. The proceeding could degenerate into utter chaos. The appellants were given the opportunity to present written questions to the City and its witnesses after the first hearing, all of which were considered by the Board. We conclude the appellants were afforded a hearing which was fair, open, and impartial, and the decision of the Board met the requirements of procedural due process. Suburban Medical Center v. Olathe Community Hosp., 226 Kan. 320, 597 P.2d 654 (1979).
The appellants also argue their due process rights were violated by ex parte communications between the City and the Board after the close of the hearings. The ex parte communications of which the appellants complain consist of letters exchanged between the Board and the City concerning the minimum lot size for septic tank purposes, a letter containing a copy of an editorial on the annexation from a local paper, and a phone call between the mayor and a commissioner prior to the inception of the annexation proceeding.
The Board set July 29,1985, as the deadline for the submission of evidence. Two letters of which the appellants complain, a letter from Mayor Eilert amplifying his comments from the hearings, and a letter to the Board which enclosed an editorial from a local paper, were discovered by appellants, according to their brief, on July 26, 1985. Therefore, appellants had time to respond in kind to the Board by the July 29 deadline. Additionally, the subject matter of certain letters complained of was the City’s five-acre minimum lot size for septic tank purposes, which was raised and objected to by appellants at the first hearing before the Board. This was not a new issue but had been addressed by the mayor at the public hearings, with the appellants present, where he indicated a study on the feasibility of amending the five-acre minimum would be performed in order to satisfy appellants’ objections. Such communications resemble “status reports” rather than attempts by an interested party to unduly influence a commissioner. See Raz Inland Navigation Co., Inc. v. I.C.C., 625 F.2d 258 (9th Cir. 1980). Finally, the telephone conversation between one commissioner and the mayor prior to the beginning of the annexation proceeding, appears to have been a courtesy call to inform the county commissioner from the district wherein the land was located of the City’s annexation intentions, and there is no indication the context of the conversation was intended to, or did, influence the Board’s actions. The district court properly concluded the ex parte communications and lack of cross-examination did not violate the appellants’ due process rights. We also note that numerous ex parte communications were received by the Board or its individual members from several landowners.
Finally, the appellants argue the district court improperly upheld the Board’s determination that the annexation of the area would not cause manifest injury to the property owners of the land being annexed.
In re Appeal of City of Lenexa, 232 Kan. at 575-76, set forth the scope of judicial review in a 12-521 appeal. In that case it was stated:
“[W]hen a district court is called upon to review the action of the board in determining the judicial issue of manifest injury, the reviewing court is limited to considering whether, as a matter of law, (1) the board acted fraudulently, arbitrarily, or capriciously, (2) the board’s order is supported by substantial evidence, and (3) the board’s action was within the scope of its authority. See Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968); Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 539 P.2d 1 (1975). In reviewing the district court’s judgment, this court must first determine whether the district court observed the requirements and restrictions placed upon it, and then make the same review of the Board’s action as does the district court. Kansas Dept. of Health & Environment v. Banks, 230 Kan. 169, 172, 630 P.2d 1131 (1981).”
The term “manifest injury” was first defined by this court in City of Lenexa as the “imposition of material or substantial burdens upon the landowners without accompanying material or substantial compensating benefits.” 232 Kan. at 584. For the Board to have acted arbitrarily and capriciously in finding no manifest injury, there must be a lack of substantial evidence supporting its action. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. It is not the function of the appellate court to reweigh the evidence; this court is concerned only with the evidence which supports the findings below, and not the evidence which might have supported contrary conclusions. If there is substantial evidence in the record to support the Board’s determination of no manifest injury, that decision must be affirmed and the annexation allowed. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 21, 687 P.2d 603 (1984).
Without going into detail, there is substantial evidence in the voluminous record before this court from which the Board could, and did, find that the annexation would not result in manifest injury to the landowners and appellants herein.
After detailing the evidence and findings in his memorandum opinion, the trial judge stated:
“The Court will, therefore, find when the possible benefits and liabilities of annexation are weighed that the Board’s finding of a lack of manifest injury was supported by substantial evidence.”
We agree with the trial court.
No error having been shown, the judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This action involves a dispute as to the boundary line between adjoining lands of the parties. Plaintiffs originally owned all the land in question. The defendants purchased from plaintiffs Lots 4, 5 and 6 and a triangular part of Lot 3, all in Block 4 of Angier’s Addition to the City of Paola, Kansas. There were no definite markings to determine the exact property line of the purchased part of Lot 3. The parties did make some measurements which were furnished to the scrivener who prepared the deed.
The plaintiffs brought this action by filing a petition in which, in the first cause of action set forth in such pleading, they alleged that the deed prepared by defendants’ scrivener did not correctly or sufficiently express the agreement of the parties as to the boundary line; charged mutual mistake of the parties, or mistake on the part of plaintiffs and fraud on the part of defendants in the description of the part of Lot 3 to be conveyed, and set out what they contend to be the true description. As to the first cause of action the prayer of the petition asks that the deed be reformed to properly describe the premises, that the boundary line be permanently established, and that the court decree the true boundary line to be that described in the plaintiffs’ petition.
In order to avoid possible misunderstanding it should be stated at this point that our failure to refer to the second and third causes of action contained in the petition is due to the fact, as counsel in oral argument finally concede, that the record here presented is limited to proceedings in the court below pertaining to the first cause of action only.
Pertinent portions of the defendants’ answer assert that:
1. Dortha A. Ford, one of the plaintiffs and a tenant in common of the realty sold to defendants, is estopped from maintaining this action due to a quiet title action in which she was named as a defendant.
2. The boundary line was definitely fixed by agreement and understanding of the parties as described in the deed of conveyance.
The defendants also filed a motion for judgment on the pleadings as to the plaintiff, Dortha A. Ford.
With issues joined as related the cause came on for trial by the court which, after hearing the evidence adduced by the parties and arguments by their respective counsel, made findings of fact and conclusions of law and then rendered judgment in which it established the boundary line about half way between the two lines for which the parties contend and overruled the motion for judgment on the pleadings. Thereupon defendants perfected the instant appeal.
At the outset, we are confronted with plaintiffs’ contention that the motion for a new trial was filed before the rulings of the court upon which defendants’ base their alleged error and that in the absence of a motion for a new trial the alleged errors cannot be reviewed. This contention must be disposed of before the merits of the appeal can be considered.
Whether the motion for a new trial as filed covered the later rulings of the trial court need not be considered because there was no appeal taken from the order overruling the motion and it was not specified as error. Moreover, defendants have appealed from the judgment only and limit their specifications of error to charges that the trial court erred (1) in overruling their motion for judgment on the pleadings; (2) in locating the involved boundary line; and (3) in rendering judgment for plaintiffs on their first cause of action.
We have repeatedly held that failure to appeal from an order overruling a motion for a new trial or failure to specify the order as error limits the review of this court to the question whether the pleadings, findings of fact and conclusions of law support the judgment. Both subjects are thoroughly discussed and laid to rest in McCarty v. Kansas-Nebraska Natural Gas Co., 176 Kan. 386, 271 P. 2d 264, where it is said and held:
“Defendant filed a motion for a new trial which was considered by the court and overruled and judgment was rendered for plaintiff upon the general verdict of the jury. In due time defendant filed its notice of appeal. This appeal was only from the judgment rendered by the court upon the general verdict. There was no appeal taken from the order of the court overruling the motion for a new trial, or from any other ruling of the court adverse to the defendant.
“This is an appellate court. In cases tried in the district court there may be many questions passed upon which the party appealing does not, for some reason, care to ask this court to review. The appeal is necessarily limited to the questions from which an appeal is taken. The result is that the appeal brought to us is on the judgment of the court. Examining the judgment in this case we find nothing wrong with it unless it is some of the trial errors set out by the defendant in its motion for a new trial. Since no appeal has been taken from that order we are unable to review it. Our cases on that point are numerous.
“In Mathis v. Public School District No. 103, 175 Kan. 453, 264 P. 2d 1082, it was held:
“ ‘Where the action of the trial court in overruling a motion for new trial is not specified as error, trial errors are not subject to appellate review.’ (Syl. 1.)
“and in the opinion p. 456 it is said:
“ ‘Long ago this court announced the rule, to which it has consistently, adhered, that where the overruling of a motion for a new trial is not specified as error, trial errors will not be reviewed. See e. g., Gas Co. v. Dooley, 73 Kan. 758, 84 Pac. 719; Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531; Holmes v. Kalbach, 173 Kan. 736, 742, 252 P. 2d 603; and numerous other decisions cited in Hatcher’s Kansas Digest, Rev. Ed., Appeal & Error, § 181; West’s Kansas Digest, Appeal & Error, § 719 (10).’
“In Weede v. Bannon, 175 Kan. 569, 570, 265 P. 2d 1025, it is said:
“ ‘In passing, it is noted that defendant does not specify as error the order overruling his motion for a new trial. That being the case, alleged trial errors, such as rulings on the admissibility of evidence and concerning instructions, are not open to appellate review. (Brewer v. Harris, 147 Kan. 197, 75 P. 2d 287; Heniff v. Clausen, 154 Kan. 717, 121 P. 2d 196; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531; and Holmes v. Kalbach, 173 Kan. 736, 742, 252 P. 2d 603.)’
“In Crowder v. Lindberg, 175 Kan. 671, 265 P. 2d 851, it is said:
“ ‘Appellant contends the court committed various trial errors and rendered an erroneous judgment. Appellant, however, has appealed only from the judgment rendered and not from the order overruling its motion for a new trial. It follows alleged trial errors are not reviewable. (Hardman Lumber Co., v. Spitznaugle, 130 Kan. 346, 286 Pac. 235; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553.)’ (p. 672.)
“In Murphy v. Cole, 175 Kan. 822, 267 P. 2d 959, it is said:
“ ‘It may be observed that specifications 2 and 3 refer to trial error. Appellants did file a motion for a new trial which was overruled but that ruling is not specified as error. We have repeatedly held that errors íelating to matters occurring at the trial, for which a new trial is asked, cannot be considered on appeal unless the action of the trial court in overruling the motion is specified as error. See cases collected in West’s Kansas Digest, App. & E., § 719 (10) and Hatcher’s Kansas Digest, App. & E., § 181.’ (p. 822.)” (pp. 388, 389.)
This court has had the same questions before it in more recent decisions. See, e. g., Reger v. Sours, 181 Kan. 423, 424, 311 P. 2d 996; Jeffers v. Jeffers, 181 Kan. 515, 518, 313 P. 2d 233; Marshall v. Bailey, 183 Kan. 310, 312, 327 P. 2d 1034; Shelton v. Simpson, 184 Kan. 270, 336 P. 2d 159; Green v. State Highway Commission, 184 Kan. 525, 337 P. 2d 657, and has carefully adhered to the rule as announced in the McCarty case, supra. See, also, Baker v. Maguire’s Inc., 176 Kan. 579, 272 P. 2d 739; State, ex rel., v. Miller, 177 Kan. 324, 279 P. 2d 223; McIntyre v. Dickinson, 180 Kan. 710, 307 P. 2d 1068.
The record will be examined for the purpose of determining whether the judgment is supported by the pleadings and tire trial court’s findings of fact and conclusions of law.
We will first consider defendants’ contention that the motion for judgment on the pleadings should have been sustained as to the plaintiff Dortha A. Ford.
On this question the court found:
“. . . Soon after the defendants purchased the land from the plaintiffs the defendants in order to make the title acceptable for a loan conducted a quiet title suit in which Dortha A. Ford, one of the plaintiffs in this action, was made one of the defendants in the quiet title action. This apparently for the purpose of correcting a spelling of the name of Dortha A. Ford. . . .”
The court, citing Robinson v. Mutchmore, 128 Kan. 419, 278 Pac. 18, as authority, made the following conclusion of law:
“The quiet title action heretofore mentioned does not bar the plaintiffs in this action from asserting possession of the land up to the ornamental fence. One of the jurisdictional facts necessary to a quiet title action is that plaintiff have actual possession of the land to which the title is quieted.
“This quiet title action is not a bar to plaintiffs asserting their claim for the land in question.”
The parties by joint effort shortly after the deed was made built a substantial ornamental fence at a line about midway between the points contended for by the parties. It was built of gas pipe set in concrete and painted white and left a gateway at both the north and the south ends of the fence. Each of the parties held possession of the land up to the ornamental fence.
Under the state of record we are not inclined to disturb the judgment of the court overruling the motion for judgment on the pleadings. The defendants have set up as a defense a quiet title action in which Dortha A. Ford was named as one of the defendants. The answer alleges that the petition in the quiet title action described the property using the description as contended for by defendants in this action, and a decree quieting title was entered April 30, 1957. Plaintiffs replied alleging that the quiet title action was “filed for the purpose of clearing some discrepancies in the chain of title to the property and was not intended to be and was not an adjudication of the issues involved in this action.”
In the opening statement of counsel for defendants the court inquired as to why Dortha A. Ford was made a party to the quiet title action and not Floyd E. Ford. Counsel answered: “The fact there was a difference in her signature.” It would appear that if it was intended to settle the boundary dispute in the quiet title action the other tenant in common would have been made a party.
Ordinarily a quiet title action is brought to remove a cloud from the title, not to determine a boundary dispute. In the absence of the record in the quiet title action, particularly the pleadings and the judgment, this court should not attempt to determine whether the boundary dispute was concluded by the judgment.
The question whether the pleadings, findings of fact and conclusions of law support the judgment fixing the boundary along the line of the ornamental fence jointly constructed by the parties must be answered in the affirmative.
The court made findings of fact in part as follows:
“This suit involved the findings and fixing of property lines between adjoining lands of the parties located in the City of Paola.
“1. The plaintiffs originally owned all of the land in question. Defendants operated a business across the street and desired to purchase plaintiffs’ land for the purpose of building and operating a lunch stand and a gasoline and automobile service station. Plaintiffs owned all of Lots 3, 4, 5 and 6 of Block 4. The lots fronted east on a public street. Lot 3 was the north lot of the four lots.
“2. The defendants made as a condition to their purchase of Lots 4, 5 and 6 that they also have a three-cornered tract on the east end of Lot 3, giving more access to their business on Lots 4, 5 and 6. At the time plaintiffs had a mobile home on Lot 3. Plaintiff was operating a shop on the lot also. December 28, 1953 a bargain was made and a deed executed conveying Lots 4, 5 and 6 and a portion off the east end of Lot 3 to the defendants. It is the triangular tract on Lot 3 and the line between Lots 3 and 4 that are involved in this suit.
“3. There were no definite markings to determine the exact lines of the property. Plaintiff and defendant went to the property and made some measurements, whether it was by tape line or stepped off is not certain. Plaintiffs’ evidence is that there being no marking at the northeast comer of Lot 3 they went to the permanent curb line on the west line of the improved street and. started the measurements at that point. The defendants’ evidence is that they located and started on the northeast corner of Lot 3. They measured south to the supposed south line of Lot 3 and then measured west. At a point near a growing tree the plaintiff stopped and indicated that the line could go no further west and that the tree would be on plaintiff’s land. That tree is seen in Plaintiffs’ Exhibit K and Defendants’ Exhibit 4.
“4. From measurements furnished the scrivener prepared the deed, a copy of which is attached to plaintiffs’ petition. This deed starts the measurements at the northeast corner of Lot 8.
“5. A rough plat of the land in controversy is prepared by the Court. Line ‘A’ is contended for by plaintiff. Line ‘B’ is contended for by defendant and line ‘C’ is the location of the fence built by the joint efforts of both. The parties were all friendly at this time.
“7. At the time of the deed plaintiff only had a trailer house on the Lot. Later he built onto the trailer and now has a substantial home. After the building of the home the plaintiff began using the south opening in the fence. A gate was discussed between tire parties but none built. Of late years a preacher has been parking a trailer in this gate-way and holding meetings and this may be ‘the bug under the chip.’
“8. The south line of Lot 3 was never definitely fixed or known until recent survey but defendant in filling his lots filled over on Lot 3 some 5 or 6 feet. Plaintiff riprapped the side of the fill to prevent washing and the fill line was treated as the property line. No one knew exactly where that line was and did not make an issue of it.”
Finding number 6 is omitted because it was later stricken by the court and a definite description added as follows:
“The land owned by the defendants in Lot 3 is a tract of land described as follows: Beginning at the southeast corner of Lot 3, running thence north along the east line of Lot 3 to a point 18 feet and 6 inches south of the northeast corner of said Lot, thence in a southwesterly direction along the center line of an ornamental fence to a point on the south line of Lot 3 which is located on the extension of a line through the center of the said ornamental fence to the south line of said Lot 3, then east feet to the point of beginning, all in Block 4, Angiers Addition to the City of Paola, Miami County, Kansas.”
The trial court’s conclusions of law on this issue are as follows:
“The true line between the land owned by the plaintiffs in Lot 3 and that conveyed to the defendants of Lot 3 is along the ornamental fence built by the parties. The rule of law relating to the establishment of both the east line and the line between Lots 3 and 4 are found correctly stated in Kyte vs. Chessmore, 106 Kan. 394-398:
“ ‘Where there is a dispute as to the dividing line the adjoining owners may by agreement establish a boundary which will be binding upon themselves and their successors in interest, regardless of whether or not it corresponds with the true location. (9 C. J. 230; 4 R. C. L. 126; see, also, 2 C. J. 137.) And it is said that the existence of such an agreement may be inferred from circumstances, such as the maintenance of a fence (4 R. C. L. 129) or long acquiescence. (9 C. J. 232; see, also, p. 242.) By the weight of authority, however,
“ Where the intention was to establish the line according to the true boundary, and by mistake the parties agreed on a line which does not conform to such boundary, the line so agreed on is not conclusive, and the agreement may be set aside by either party unless equitable reasons exist for adhering to the erroneous line.’ (9 C. J. 237.)
“An additional authority with reference to the east line is found in Schlender vs. Maretoli, 140 Kan. 533.
“A case in point is found in Blanford vs. Biven, 123 Kan. 269:
“ ‘Boundaries — Ascertainment and Establishment — Agreement of Parties Conclusive. When one who owns a tract of land sells a part of it to another, and the seller and purchaser go upon the land, and agree to the location of the fine dividing the property sold from that not sold, the line so agreed upon becomes the line between the parties, although a subsequent survey or measurement of the premises may disclose that it should have been a few feet one way or the other.’ ”
In the face of the record presented we find no reasonable basis for a contention that the judgment of the trial court is not supported by the pleadings, findings of fact and conclusions of law. Therefore what has been heretofore stated and held requires an affirmance of such judgment.
It is so ordered.
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The opinion of the court was delivered by
Luckert, J.:
Edward Johnson and Chase Collins (Petitioners) filed a pro se petition for writ of habeas corpus pursuant to K.S.A. 60-1501 in Pawnee County District Court, seeking release from the custody of the Department of Social and Rehabilitation Services (SRS) and the Sexual Predator Treatment Program (SPTP) at Lamed State Hospital (Lamed). Petitioners allege that the SPTP, as applied to them, is constitutionally inadequate to “cure” their conditions and lead to their eventual release.
The State filed a motion for summary dismissal, arguing primarily that, as a matter of law, the Petitioners have failed to establish conduct that is shocking to the conscience and cannot succeed in establishing a continuing constitutional violation. More specifically, the State noted it is uncontroverted that Johnson and Collins have not complied with the program because they disagree with the treatment regimen and, as a result, Johnson and Collins cannot establish that the SPTP will not lead to their eventual release.
We agree with the State’s argument and affirm the summary dismissal of the petition, concluding Johnson and Collins (1) have failed to allege conduct that is shocking to the conscience and (2) cannot establish a continuing constitutional deprivation regarding the efficacy of the program because they (a) lack standing to raise issues regarding the adequacy of the treatment program as applied to others and (b) raise only a hypothetical question of whether the treatment program could be effective if they fully participated.
Factual and Procedural Background
Johnson and Collins’ petition originally alleged several additional constitutional violations, including that the Lamed staff have retaliated against them for making complaints about the SPTP, have denied resident-initiated proposals, and have failed to provide the least restrictive environment by denying access to cable television in residents’ rooms and requiring residents to remain in their rooms at night. The focus of the petition, however, was the inadequacy of the treatment program.
In liberally construing the pro se K.S.A. 60-1501 petition, the district court determined that the petition presented substantial questions of law and/or triable issues of fact warranting Johnson and Collins’ request for appointed counsel. After counsel was appointed to represent Johnson and Collins, discovery was conducted and pretrial questionnaires were filed in which the Petitioners indicated that they were narrowing their issue to the following question:
“Does the SPTP program offer treatment sufficient to cure Petitioners’ condition, leading to eventual release, or is the program a form of ‘warehousing’ Petitioners through a civil commitment process?”
The State filed a motion to dismiss for failure to state a claim upon which relief may be granted. The State first observed that Johnson and Collins, by their own admission, had not been compliant in the treatment program. Further, by alleging that security conditions are too excessive and that they are not obtaining enough help from their therapists, Johnson and Collins raised a substantive due process claim, which is judged by a less stringent standard for individuals who are civilly confined, and a commitment under the Kansas Sexually Violent Predator Act (SVPA), K.SA,. 59-29a01 et seq., is clearly civil in nature, not criminal or punitive. With regard to training or rehabilitation in a civil commitment setting, the State argued that it has considerable discretion in determining the scope and nature of its responsibilities, and with regard to conditions, the State is only required to provide minimal necessities to insure Johnson and Collins have a reasonable opportunity to have “safety and freedom from undue restraint.”
Second, the State contended Johnson and Collins failed to satisfy their burden of showing that the conditions or restrictions imposed on them bear no rational basis to the purpose of their confinement in Lamed. Citing Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003), the State observed that under the Due Process Clause of the United States Constitution, a facility such as Lamed is required to provide humane conditions including adequate food, shelter, clothing, and medical care, as well as reasonable steps to insure the residents’ safety. The State noted that Johnson and Collins failed to raise this type of claim; rather the State pointed to specific allegations raised by Johnson and Collins, such as the “[denial] of cable TV in rooms,” “keeping [residents] in their rooms at night,” and “denying resident-initiated projects/proposals.” Due process is not implicated by these allegations, according to the State.
In their response to the State’s motion to dismiss, Johnson and Collins argued that since the SPTP was initiated in October 1994, only two residents have been released from treatment, while as of June 2007, more than 150 have been admitted to the program. Their source of information is unclear. The Petitioners claimed that “[t]wo patients in thirteen years is not a strong indicator of an effective program.” For general support, Johnson and Collins cited an article coauthored by Dr. Austin DesLauriers, the program clinical director for the SPTP at Lamed, which indicated that a “legitimate program should be expected to have graduates.” See DesLauriers & Gardner, The Sexual Predator Treatment Program of Kansas, The Sexual Predator: Law, Policy, Evaluation, and Treatment, p. 11-21 (Schlank & Cohen eds. 1999).
The district court held a hearing on the State’s motion to dismiss on February 11, 2008. At the hearing, Johnson and Collins presented the testimony of Dr. DesLauriers, which the court allowed to the extent the testimony went to the conditions and duration of the Petitioners’ confinement and treatment.
The SPTP, according to Dr. DesLauriers’ testimony, is a seven-phase program which includes both group and individual therapy, with an emphasis on group therapy. The first four phases comprise the intensive inpatient treatment portion of the program. Phase 1 is the orientation phase, Phase 2 is the academic phase in which the resident completes a 1-year curriculum aimed at “key principals of sexual behavior change.” Phase 3 is the applied phase. Phase 4 was described by Dr. DesLauriers as a phase “for completing the relapse prevention plan and tying up in-patient issues.”
Before a resident can move to the final three phases of the program — the transition phases — the resident must appear before a transition panel. The panel may either accept or reject the recommendations of the treating staff. Once it is determined by the transition panel that the resident is ready to enter the phases of transition treatment, the resident enters Phase 5 where he or she is escorted at all times and introduced to a graduated series of experiences on the grounds of Osawatomie State Hospital. From there, in Phases 6 and 7, the resident gradually becomes more independent by living in a cottage house on the grounds of Osawatomie, obtaining a job, attending outpatient therapy, and gaining conditional release for a minimum of 5 years.
Dr. DesLauriers testified that, as of the date of the hearing, there were 160 SPTP residents on the grounds of Lamed. Six individuals have completed the final, seventh, phase of treatment, three of whom have gained final release, which entails no supervision. Dr. DesLauriers further testified that an additional 10 or 11 individuals are currently in the transition, or final, phases of treatment. He indicated that he “would like to see more people who are ready to graduate from the program,” but the small number of individuals who have obtained final release is not unreasonable given the “growing pains” of the SPTP in its development.
After hearing the testimony of Dr. DesLauriers and the arguments of counsel, the district court issued a journal entry in which it found, in part:
“The evidence reflects that the Petitioners have a disagreement with the type of treatment that they received and are receiving at the [SPTP]. Some of those concerns deal directly with the applicability or availability of individual therapy versus group therapy. Others deal with rules of the program, [or] the manner in which those rules are implemented by the treatment team. Those types of decisions are all professional decisions to be made by a treatment team of mental health professionals.”
The district court also found there was no allegation or showing of any deliberate indifference by any member of the mental health team or treatment team of the SPTP. In addition, the district court found no allegation that would “shock the conscience” of a reasonable person. Pointing to the State’s wide range of latitude in determining and developing an appropriate treatment program, the district court found no allegation or evidence of unconstitutional treatment. Accordingly, the district court granted the State’s motion to dismiss the Petitioners’ request for relief under K.S.A. 60-1501.
Johnson and Collins now bring a timely appeal and argue the district court erred in dismissing their K.S.A. 60-1501 petition rather than permitting a full evidentiary hearing. The appeal was transferred to this court. See K.S.A. 60-2101(b); K.S.A. 20-3018(b).
Standard of Review 6- General Principles of Law
K.S.A. 60-1501 allows “any person” confined in Kansas to prosecute a writ of habeas corpus in the county in which such restraint is taking place. Based on the broad language of K.S.A. 60-1501, a person confined in the SPTP is included within the purview of K.S.A. 60-1501 and, as a result, may bring a habeas corpus petition alleging due process violations. Williams v. DesLauriers, 38 Kan. App. 2d 629, 636, 172 P.3d 42 (2007).
In this case, the district court issued a writ, the State answered, and the district court conducted summaiy proceedings as allowed by K.S.A. 60-1505(a), which states in part: “The judge shall proceed in a summary way to hear and determine the cause and may do so regardless of whether the person restrained is present.” The district court then granted the State’s motion to dismiss. Consequently, we must determine if summary dismissal was appropriate.
To avoid summary dismissal of a K.S.A. 60-1501 petition, the petitioner’s allegations must be of shocking and intolerable conduct or continuing mistreatment of a constitutional stature. Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998) (applying same standard under K.S.A. 60-1501). Summary dismissal is appropriate if, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from uncontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists. See Barrett v. Hunter, 180 F.2d 510, 514, cert. denied 340 U.S. 897 (1950) (stating standard); Bankes, 265 Kan. at 349 (ordinary rules of civil procedure do not apply in habeas corpus proceeding). An appellate court reviews a summary dismissal de novo. Bankes, 265 Kan. at 349; see Breier v. Raines, 221 Kan. 439, 439, 559 P.2d 813 (1977).
The first alternative for stating a claim under K.S.A. 60-1501— establishing shocking and intolerable conduct — derives from the Fourteenth Amendment to the United States Constitution, which prohibits the states from depriving persons of “life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1; see County of Sacramento v. Lewis, 523 U.S. 833, 847, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998); Levier v. State, 209 Kan. 442, 451, 497 P.2d 265 (1972). Regarding the second alternative for stating a claim under K.S.A. 60-1501 — continuing mistreatment of a constitutional stature — the Petitioners in this case rely once again on the Fourteenth Amendment; they argue the inadequacy of treatment is a substantive due process violation.
A determination of whether a due process claim is stated requires a two-step analysis. First, a court must analyze whether the State has deprived the petitioner of life, liberty, or property. If so, the court next determines the extent and the nature of the process due. Hogue v. Bruce, 279 Kan. 848, 850-51, 113 P.3d 234 (2005). The question of whether an individual’s constitutional rights have been violated is a question of law over which an appellate court exercises unlimited review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001).
With regard to the question of whether Johnson and Collins have a “liberty interest” at stake, the United States Supreme Court, in determining the SVPA was facially constitutional, stated that “freedom from physical restraint ‘has always been at the core of the liberty protected by the Due Process Clause from arbitraiy governmental action.’ [Citation omitted.]” Kansas v. Hendricks, 521 U.S. 346, 356, 371, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997); see In re Care & Treatment of Ward, 35 Kan. App. 2d 356, Syl. ¶ 4, 131 P.3d 540, rev. denied 282 Kan. 789 (2006) (recognizing that civil commitment as sexually violent predator involves a protected liberty interest). Accordingly, Johnson and Collins, as civilly committed residents in Kansas’ SPTP, have the right to bring a claim regarding an alleged violation of their liberty interest to be free from physical restraint.
The existence of a liberty interest does not mean there cannot be restraint or confinement, however. Both the United States Supreme Court and this court have recognized that, consistent with substantive due process requirements, the State may involuntarily commit individuals who, as the result of mental impairment, are unable to care for themselves or are dangerous to others because the State’s compelling interest in providing treatment and protecting the public prevails over the individual’s interest in being free from compulsory confinement. See Hendricks, 521 U.S. at 358; In re Care & Treatment of Hay, 263 Kan. 822, 832-33, 953 P.2d 666 (1998). This court has further explained that the legislature has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether it is a mental abnormality, a personality disorder, or a mental illness as statutorily defined. In re Hay, 263 Kan. at 833.
Sexual attraction to children and a propensity to act upon it are defining symptoms of a recognized mental illness — pedophilia. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 527-28 (4th ed.1994) (302.2-Pedo-philia). Further, the Kansas Legislature and the United States Supreme Court have decided that a diagnosis of pedophilia can be among the justifications for indefinite restriction of an offender’s liberty to ensure the provision of treatment to him or her and the protection of others who could become victims. K.S.A. 59-29a01 et seq.; Kansas v. Crane, 534 U.S. 407, 409-10, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002); Hendricks, 521 U.S. at 356-60; see State v. Prine, 287 Kan. 713, 200 P.3d 1 (2009).
The SVPA, K.S.A. 59-29a01 et seq., was enacted for the “potentially long-term control, care and treatment of sexually violent predators,” as well as for the protection of the public. K.S.A. 59- 29a01; see K.S.A. 2008 Supp. 59-29a07(a). Once it has been determined that a person is a sexually violent predator, he or she shall be committed to the custody of SRS for control, care, and treatment “until such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large.” K.S.A. 2008 Supp. 59-29a07(a). Because the SVPA narrows the class of persons eligible for confinement to those who find it difficult, if not impossible, to control their dangerousness, the SVPA was found to be facially constitutional by the United States Supreme Court in Hendricks, 521 U.S. at 356-60.
Recognizing this, Johnson and Collins do not contend that the SVPA is facially punitive or unconstitutional. Rather, what Johnson and Collins argue, in essence, is that the treatment program implemented under the SVPA is inadequate to provide a “cure” and, therefore, is punitive “as applied.” As we consider this argument, it is important to note that Johnson and Collins only have standing to assert constitutional infirmities in the program as applied to them; they lack standing to assert how the program impacts others. As we explained in Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 110 P.3d 438 (2005):
“ ‘A party has standing to challenge constitutionality of a statute only insofar as it has an adverse impact on his own rights. As a general rule, if there is no constitutional defect in the application of [the] statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations.’ ” 279 Kan. at 508 (quoting Ulster County Court v. Allen, 442 U.S. 140, 154-55, 60 L. Ed. 2d 777, 99 S. Ct. 2213 [1979]).
Consequently, the issue framed by Johnson and Collins must be focused on whether the SVPA is inadequate to “cure” Johnson and Collins.
Synthesizing these general rules into a statement of the issue before us, we must determine whether, in light of their admitted failure to comply with the program because of their personal disagreement with the regimen, Johnson and Collins have stated a claim that either (1) the conditions of their confinement are “so egregious, so outrageous that it may fairly be said to shock the contemporary conscience” (Lewis, 523 U.S. at 848 n.8; see also Levier, 209 Kan. at 451), or (2) there is continuing mistreatment of a constitutional stature (Bankes, 265 Kan. at 349).
Shocking Treatment?
As to the first alternative of estabkshing a due process violation, the Supreme Court has explained:
“[T]he threshold question is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience. That judgment may be informed by a history of liberty protection, but it necessarily reflects an understanding of traditional executive behavior, of contemporary practice, and of the standards of blame generally applied to them.” Lewis, 523 U.S. at 847 n.8.
The Court further observed that the context of the executive action determines the standard against which the action would be measured; in particular, the standard varies based on whether there is the opportunity for deliberation. In Lewis, the issue was raised in the context of a federal claim pursuant to 42 U.S.C. § 1983 (which we do not have in the present case) arising from a high-speed chase initiated by law enforcement officers. In that context, the United States Supreme Court held that because a high-speed chase requires an immediate response from personnel, meaning there is no opportunity for deliberation, there can be no liability without an “intent to harm suspects physically or to worsen their legal plight.” Lewis, 523 U.S. at 854. However, this standard is “sensibly employed only when actual deliberation is practical.” Lewis, 523 U.S. at 851.
The Supreme Court contrasted that situation to one more similar to that in this case, i.e., “the custodial situation of a prison, [in which] forethought about an inmate’s welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare.” Lewis, 523 U.S. at 851. In that context, there is “time to make unhurried judgments, upon the chance for repeated reflection, largely uncomplicated by the pulls of competing obligations. When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” Lewis, 523 U.S. at 853.
Hence, in this setting, the indifference analysis must focus on the challenged abuse of power by officials in allegedly denying Johnson and Collins the treatment regimen that was statutorily mandated. See Leamer v. Fauver, 288 F.3d 532, 546 (3d Cir. 2002). Here, the SPTP personnel were compelled to carry out a prescribed course of sex offender treatment, and if they were indifferent to that statutory obligation, the failure to act could be deemed shocking.
However, there is nothing in the record establishing that the failure to apply the program to Johnson and Collins is the result of indifference by SPTP personnel; rather it is because Johnson and Collins have refused to fully comply with the treatment program, stating they disagree with the regimen. In other words, there is no allegation that “shocks the conscience.” See DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005) (in order to shock the conscience, conduct must at the very least be “extreme and egregious”); Pers. Restraint of Dyer, 164 Wash. 2d 274, 189 P.3d 759 (2008) (holding that repeated denials of parole did not shock the conscience, and, thus, did not violate inmate’s substantive due process rights; inmate was sex offender who had been ineligible for treatment because he would not take responsibility for crimes).
Continuing Mistreatment of Constitutional Stature?
Alternatively, the Petitioners can establish a due process violation by showing they have suffered continuing mistreatment of a constitutional stature. However, the parties disagree regarding the standard that Johnson and Collins would have to meet to establish that the SPTP as applied to them was unconstitutional. Indeed, the standard has not been established by the United States Supreme Court and has been a subject of debate by legal analysts. See, e.g., Seling v. Young, 531 U.S. 250, 266, 148 L. Ed. 2d 734, 121 S. Ct. 727 (2001) (explicitly stating issue of standard not before Court in case dealing with Washington’s sexually violent predator commitment scheme); Hendricks, 521 U.S. 346 (stating that treatment may be an “ancillary goal” of the civil commitment of sex offenders and not specifying standard for testing adequacy of regimen); Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) (standard discussed in analogous but distinguishable context of developmentally disabled person with profound disability); Jackson v. Indiana, 406 U.S. 715, 738, 32 L. Ed. 2d 435, 92 S. Ct. 1845 (1972) (standard discussed in analogous but distinguishable context of whether State may indefinitely confine criminal defendant who is mentally incompetent to stand trial); see also Lieb & Nelson, Treatment Programs for Sexually Violent Predators — A Review of States, 2 The Sexual Predator: Legal Issues, Clinical Issues, Special Populations, p. 5-1 (Schlank ed. 1999) (discussing uncertainty of standard in wake of Hendricks); Smith, The Constitutionality of Civil Commitment and the Requirement of Adequate Treatment, 49 B.C. L. Rev. 1383,1384 (Nov. 2008) (suggesting that “[w]ithout adequate treatment providing a path to an individual’s potential release, civil commitment becomes state-imposed criminal punishment”); Pearce, Civilly Committing Criminals: An Analysis of the Expressive Function of Nebraska’s “Dangerous Sex Offender” Commitment Procedure, 85 Neb. L. Rev. 575, 577 (2007) (arguing that “the civil commitment of convicted sex offenders can, under certain circumstances, distort the interrelationship between criminal responsibility and psychological impairment that underlies the basic institutions of criminal justice and civil commitment in the United States”); Note, The Newly Found “Compassion” for Sexually Violent Predators: Civil Commitment and the Right to Treatment in the Wake of Kansas v. Hendricks, 32 Ga. L. Rev. 1261 (1998) (discussing Hendricks and lower courts’ application).
In the wake of this lack of direction from the Supreme Court, lower courts have understandably developed their own frameworks for evaluating the constitutionality of civil commitment programs and varying standards have developed. See, e.g., Allison v. Snyder, 332 F.3d 1076, 1081 (7th Cir. 2003) (applying Youngberg and holding [a] committed individuals are entitled to some treatment, and [b] what that treatment entails must be decided by mental health professionals); Sharp v. Weston, 233 F.3d 1166, 1172 (9th Cir. 2000) (holding that due process requires that civilly committed persons be provided “a realistic opportunity to be cured or improve the mental condition for which they were confined”); Ohlinger v. Watson, 652 F.2d 775, 777-78 (9th Cir. 1980) (stating civilly com mitted persons are entitled to mental health treatment that gives them a realistic opportunity to be cured and released; standard is one only required to provide a “ ‘reasonable level of treatment based upon a reasonable cost and time basis’ ”); Cross v. Harris, 418 F.2d 1095, 1107 (D.C. Cir. 1969) (due process commands that conditions and duration of confinement bear some reasonable relation to its civil purpose — treatment—without which incapacitation serves as mere preventive detention, “a warehousing operation for social misfits”).
In the present case, the district court applied a standard of whether the treatment fell within the range of treatment recognized by reasonable professionals. Johnson and Collins suggest that, if this is the standard to be applied, a question of fact exists regarding whether professionals agree with the SPTP regimen, and this question of fact entitles them to a full hearing. Moreover, they seek a more exacting standard that would essentially guarantee eventual release from the program, or a “cure.”
Nevertheless, this case turns on a narrower issue because, as the State points out, even if the exacting standard is required, Johnson and Collins could not satisfy their burden of proving the program failed to meet the standard as applied to them. The State’s argument is correct that Johnson’s and Collins’ noncompliance with the program hinders the ability to ascertain whether the SPTP, as applied to them, has been or will be effective. And this is true regardless of the level of treatment required — adequate, minimal, exacting, or some other standard. In other words, Johnson and Collins cannot establish that the program as applied to them would not achieve the goal of the SPTP.
In essence, what the Petitioners ask us to consider is the hypothetical question of whether the program would fail to provide constitutionally adequate treatment if they complied with the treatment program. Answering the hypothetical question of whether the SPTP would cure the Petitioners if they were to comply would require an advisory opinion, and in the context of an action pursuant to K.S.A. 60-1501 courts are constitutionally prohibited from providing purely advisory opinions. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 210 P.3d 105 (2009); State ex rel. Morrison v. Sebelius, 285 Kan. 875, 897, 179 P.3d 366 (2008).
Yet, mere noncompliance does not always prohibit bringing an “as applied” attack on the constitutional adequacy of a treatment program. Indeed, if treatment was so lacking that it could be deemed the personnel were indifferent or the requirements of the program were otherwise egregious and shocking, a refusal to participate would not bar relief. In addition, if noncompliance was minimal, disputed, or alleged to be of a nature as to not interfere with the treatment regimen, a petition could not be dismissed as a matter of law. Here, however, the treatment — or lack thereof— is not shocking to the conscience. Johnson and Collins merely disagree with the treatment regimen, and mere disagreement with reasonable and prescribed treatment does not establish a constitutional deprivation. See Allison v. Snyder, 332 F.3d 1076, 1080 (7th Cir. 2003).
In summary, to establish a claim entitling relief, Johnson and Collins must be able to show the lack of efficacy of the program as applied to each of them. Because of their noncompliance — noncompliance that is based on personal disagreement— that progress cannot be measured, nor can it be determined if Johnson and Collins would be able to successfully advance in the program. Moreover, the Petitioners have admitted to their noncompliance, making the fact uncontrovertible and subject to determination without further evidentiary hearing, and the noncompliance is not based on a legally justifiable basis such as shocking treatment. Because Johnson and Collins cannot establish the program is ineffective as applied to them, the uncontrovertible facts establish, as a matter of law, that there is no cause for granting the writ of habeas corpus. The district court correctly dismissed the K.S.A. 60-1501 petition.
Affirmed.
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The opinion of the court was delivered by
Miller, J.:
The plaintiffs bring these appeals from the entry of summary judgment and the sustaining of motions to dismiss in two related personal injury, wrongful death and survival actions, brought by the heirs of two victims and one of the witnesses to a shooting incident which occurred at the University of Kansas Medical Center emergency room on March 20, 1981. The separate actions were consolidated on appeal, and the appeals were transferred to this court under the provisions of K.S.A. 20-3018. The issues presented on appeal are: (1) Whether a state agency is considered a “person” under 42 U.S.C. § 1983 (1982) in an action for damages in a state court proceeding; (2) whether the University of Kansas Medical Center is immune from liability under the “discretionary function” or “police protection” exceptions to the Kansas Tort Claims Act, K.S.A. 75-6104(d) or (m); (3) whether, under the facts of this case, the trial court erred in treating the Kansas Adult Authority’s motion to dismiss under K.S.A. 60-212 as a motion for summary judgment under K.S.A. 1986 Supp. 60-256; and (4) whether the Kansas Adult Authority is immune from liability under the discretionary function exception to the Kansas Tort Claims Act, K.S.A. 75-6104(d). The issues are applicable to both of the consolidated cases.
These cases arose when Bradley R. Boan, a disturbed former prisoner of the Kansas State Penitentiary and a former mental patient, entered the Kansas University Medical Center emergency room about 10 o’clock p.m. on March 20, 1981, fired three shotgun blasts, and then left the building. His first shot killed Marc R. Beck, a second-year resident physician. The second shot hit a wall but struck no persons. The third shot killed Ruth Rybolt, a visitor who was awaiting the results of a medical examination performed on her mother. Ruby Shannon, Ruth Rybolt’s sister, witnessed the shooting incident from a nearby examination room.
THE CASE HISTORY
Plaintiffs timely commenced actions against the defendants here named, and others, in the United States District Court for the District of Kansas. For reasons not here material, plaintiffs dismissed the federal court actions against these defendants and within six months of the dismissal commenced these actions in the district court of Wyandotte County. Although more than two years elapsed between the time of the shooting and the commencement of these actions, they were timely filed. K.S.A. 60-518.
The Beck case was filed by Rodney D. Beck and Janice C. Beck, surviving father and mother and surviving heirs at law of Marc R. Beck, deceased; the administrator of his estate; his parents, individually; and his sisters, individually. The Williams case was filed by Myrtle A. Williams, surviving mother and heir at law of Ruth Rybolt, deceased; the administratrix of her estate; Ruby Shannon, individually; and Ruby Shannon, Harold Williams, Harrison Williams, Jr., and Harry Williams, individually and as the surviving sister and brothers of Ruth Rybolt, deceased. Remaining defendants in both cases are the Kansas Adult Authority, the Board of Regents, and the University of Kansas Medical Center. The Board of Regents and the Medical Center are treated as one entity, and we will refer to them both as the Medical Center in this opinion.
The petitions in the two actions consist of 80 or more paragraphs each, and are not the “short and plain statement of the claim” familiar in our notice pleading. However, we need not include here detailed summaries of the allegations contained in the petitions. We will first state briefly the basic claims advanced, and then refer to specific allegations later in this opinion as the need arises.
Count I in each of the petitions is a claim asserted under 42 U.S.C. § 1983, seeking damages against all of the defendants because of claimed acts, errors, and omissions, under color of state law, which deprived Dr. Beck and Ruth Rybolt of rights protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution. Count II is a claim for wrongful death by the surviving heirs at law of each decedent against all defendants based upon negligence. The contention is advanced that the Kansas Adult Authority negligently released Boan without conditions and necessary treatment and control; that the Medical Center negligently and carelessly failed to maintain and operate the emergency room facility in a condition reasonably safe for its use by personnel, staff, patrons, visitors, and others, and failed to warn them against known and foreseeable dangers; and that the medical center maintained or permitted to exist a public nuisance, the emergency room. Count III seeks damages for the personal injuries, emotional and psychological distress, mental anguish, anxiety, humiliation, degradation, pain, and suffering sustained by Dr. Beck and Ruth Rybolt during the time of survival. It seeks both actual and punitive damages against all defendants.
Count IV, found only in the Williams petition, is based on negligence. It seeks both compensatory and punitive damages on behalf of Ruby Shannon for the emotional and psychological distress, pain, and suffering which she sustained as a result of observing the killing of the two victims, one of whom was her sister.
All defendants filed motions to dismiss. Plaintiffs responded to the motions to dismiss, and in their response requested the opportunity to supplement their responses in the event the court decided to consider matters outside the pleadings in the determination of the motions and thus to treat them as motions for summary judgment. The trial judge notified counsel that he intended to rule on all motions to dismiss as motions for summary judgment. Plaintiffs immediately noticed up twenty-one individual deponents. Defendants moved for a protective order, and at a hearing held on April 4, 1985, all counsel being present, the trial court ruled that the motions to dismiss would be considered and ruled upon as motions to dismiss only and not as motions for summary judgment. The plaintiffs’ notices to take depositions were then withdrawn and quashed, given the court’s determination that the motions to dismiss would not be ruled upon as motions for summary judgment. No depositions were taken in this case.
By a letter dated June 28, 1985, the trial court ruled upon and disposed of the motions. The letter reads, in pertinent part, as follows:
“I. Plaintiffs’ claims under 42 USC 1983.
“An action under USC 1983 requires two allegations. First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of a federal right acted under color of State or territorial law. Beck v. Kansas University, Psychiatry Foundation, 580 F. Supp. 527 ([D. Kan.] 1984) (the sister case to these actions pending in the federal court). The 10th Circuit has held that the University of Kansas, its teaching hospital and the hospital administrators, in their official capacities, are immune from lawsuits for money damages under 42 USC 1983. Wrenn v. State of Kansas, 561 F. Supp. 1216, 1219-20 (D. Kan. 1983). This trial Court so held and was affirmed in [Chism v. University of Kansas Coll. of Health Sciences, 237 Kan. 330, 699 P.2d 43 (1985)]. The plaintiffs have cited Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 513 (1982) as standing for the proposition that the University is a person, however, Gumbhir is limited to the situation where prospective injunctive relief is sought. It does not apply where money damages are sought. Thus, while damages may be a permissible remedy against some State officers individually (where the officer acted beyond the scope of his authority), a plaintiff can seek no damages from the public treasury by suing State agencies. Beck, 580 F. Supp. 527, 538 (1984) (citing Myers v. Anderson, 238 U.S. 368, 35 S. Ct. 932 [1915]). The University of Kansas Medical Center is specifically excluded as a person under 42 USC 1983 in a claim for money damages because it is a governmental entity under the control of the State. . . .
“Whether the KAA is a person under Section 1983 has not been specifically addressed by Kansas, therefore it is necessary to look to decisions outside of this State. The Federal District Court of Pennsylvania has held that the State Board of Pardon and Parole is not a person under 42 USC 1983. Reiff v. Pennsylvania, 397 F. Supp. 345 (E.D. Pa., 1975) (minor shot during robbery by parolee). In a more broadly sweeping rejection of State agency liability, the Federal District Court in Delaware held that the State and its agencies are not persons within the meaning of Section 1983. The Court stated that the principal inquiry in determining whether a State agency is a person must be whether exposure of the particular entity to liability will substantially burden the State treasury or otherwise substantially hinder those operations over which the State has retained control. Garr v. Delaware State Hospital, 543 F. Supp. 268 (D.C. Del. 1982). In so much as the claim in the instant case is against the KAA as a State agency and not against its members in their individual capacity, recovery of monetary damages would necessarily come out of the State treasury. Consequently the KAA is not a person under Section 1983.
“The defendants in this action are all not ‘persons’ under 42 USC 1983 and therefore the motions to dismiss as to the Section 1983 claims against the defendants are granted. By so determining the question of various plaintiffs’ ‘standing’ to bring this claim under 42 USC 1983 becomes moot.
“II. Plaintiffs’ claims under State law.
“Plaintiffs also claim that the defendants are liable under State tort law pursuant to the Kansas Tort Claims Act. Each defendant’s liability shall be considered separately.
“A. The Kansas Adult Authority.
“Duty: The KAA claims that it did not owe a duty to the plaintiffs and thus there is no actionable claim for negligence. This position does not conform to the current law in Kansas. The Kansas Supreme Court has specifically adopted the Restatement (Second) of Torts Section 319, which states:
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm. Cansler v. State, 234 Kan. 554 (1984).
It is true that the injury did not occur in the instant case until after Boan would have been statutorily released, however, the full discharge of Boan on March 5, 1981, was effectuated by the determination of the KAA board that Boan’s release was ‘not incompatible with the best interest of society.’ K.S.A. 22-3722. In making this decision the KAA owed a duty to the class of society as a whole, of which the plaintiffs are members. There exists then a question of fact as to whether the KAA breached that duty and knowingly or negligently released a dangerous individual prematurely into society. It is a question for the jury to determine whether those thirteen days between March 5, 1983 (the date of his full discharge) and March 18, 1983 (the date of his statutory discharge) are relevant to the injury which occurred on March 20, 1983.
“Immunity: The Kansas Supreme Court has stated that the Kansas Tort Claims Act, K.S.A. 1981 Supp. 75-6101, et seq., makes liability the rule and immunity the exception. K.S.A. 75-6103(a) states the general rule:
“Subject to the limitations of this act, each governmental entity shall be liable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this State.
There are limitations to this rule, however, and it is these under which the KAA claims immunity.
“The KAA claims immunity from liability under K.S.A. 75-6104(c)(d) and (m). K.S.A. 75-6104(c) provides immunity for actions of a governmental entity or employee acting within the scope of the employee’s employment, where damages result from the ‘enforcement of or failure to enforce a law . . . including, but not limited to, any statute, regulations, ordinance, or resolution.’ The KAA argues that the release of Boan under the authority granted by the statutes and regulations of the State of Kansas is simply the enforcement of the valid laws of the State of Kansas. Such argument ignores, however, the fact that the authority granted is discretionary in nature and [is] governed specifically by K.S.A. 75-6104(d). Extension of K.S.A. 75-6104(c) to discretionary decisions would make subsection (d) mere surplusage which is contrary to statutory interpretation. American Fidelity Ins. Co. v. Employers Mutual Casualty Co., 3 Kan. App. 2d 245 (1979).
“K.S.A. 75-6104(d) provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused.
“The conditional release of Boan was determined by mathematical equation and involved no discretionary decision making. The conditional release is the enforcement of K.S.A. 22-3718 and thus protected by K.S.A. 75-6104(c). Although the actual release is not discretionary, the statute provides that the released inmate ‘shall be subject to such written rules and conditions as the authority may impose . . .’ and furthermore, K.S.A. 22-3722 provides that ‘When an inmate on . . . conditional release has performed the obligations of his release for such time as shall satisfy the authority that his release is not incompatible with the best interests of society and the welfare of the individual, the authority may make a final order of discharge.’ The KAA then is granted discretionary power to impose conditions upon the conditional release and to determine whether the inmate should be finally discharged before the maximum term or terms for which he was sentenced. In a Federal District Court ruling on this very case, Judge Saffels held that parole board members are entitled to qualified immunity. Beck v. Kansas University Psychiatry Foundation, 580 F. Supp. 527 ([D. Kan.] 1984). This means that the KAA does have a right to err, but not to act in bad faith. Therefore, if on the facts alleged before this Court, there is sufficient showing of possible bad faith then summary judgment must be denied. However, viewing the facts in the light most favorable to the plaintiffs, there is no material question of fact as to the propriety of the KAA’s action. There was no evidence before the board indicating any actions by Boan while on conditional release which would impute to the board any degree of bad faith in its discretionary decision.
“The KAA did not act in bad faith, thus it is protected from liability under the provisions of K.S.A. 75-6104(d). The motion of KAA for summary judgment is granted.
“B. University of Kansas Medical Center.
“Plaintiffs claim that the University is liable due to the negligence of Dr. Charles Hartman, the Hospital Administrator, and Jack C. Pearson, Director of the University Police Department in failing to prevent an armed criminal from killing plaintiffs’ decedents. An exception to such liability, however, can be found in K.S.A. 75-6104(m) which precludes claims based on the ‘failure to provide or the method of providing police protection.’ Since the University maintains a statutorily recognized law enforcement division, it is entitled to the same exception from liability as any municipal or State law enforcement agency. This is explicitly set forth in K.S.A. 76-726 which states that ‘university police officers shall have the same rights, protections and immunities afforded to other law enforcement officers.’ The University is entitled to immunity pursuant to K.S.A. 75-6104(m).
“Furthermore, the University is immune from liability pursuant to K.S.A. 75-6104(d). The alleged liability is based on the actions of two department heads within an agency of the State of Kansas. There is no claim that either was acting outside the scope of his employment. Such governmental officials are shielded from liability ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 102 S. Ct. 2727, 2738 (1982). The University then is immune from liability and the dismissal motion is granted.
“Concluding, the motions to dismiss the various State agencies are sustained. This opinion will serve as the Journal Entry in both cases and be effective this date.” (Emphasis supplied.)
It is from this order that plaintiffs appeal.
I. THE 42 U.S.C. § 1983 CIVIL RIGHTS CLAIM
The first claim advanced by the plaintiffs is that the Kansas Adult Authority and the Kansas University Medical Center have violated their civil rights, and for this violation plaintiffs claim monetary damages under 42 U.S.C. § 1983 (1982). The first issue which we face, then, is whether a state agency is considered a “person” pursuant to 42 U.S.C. § 1983 in an action for damages commenced in the state courts. The trial court, as noted above, held that these state agencies were not persons under 42 U.S.C. § 1983, and therefore the trial court sustained the motions to dismiss as to the Section 1983 claims.
In the case of Gumbhir v. Kansas State Board of Pharmacy, 231 Kan. 507, 646 P.2d 1078 (1982) (Gumbhir II), we held that the Kansas State Board of Pharmacy, a state agency, was a “person” under the provisions of 42 U.S.C. § 1983, and was subject to suit in an action thereunder in which the plaintiffs sought only prospective injunctive relief. In the same action, we had earlier held unconstitutional a portion of the Pharmacist Registration Statute, K.S.A. 1979 Supp. 65-1631(a), and we directed the Board of Pharmacy to reconsider Gumbhir’s application for leave to take the examination for registration as a pharmacist, or to be admitted by reciprocity. Gumbhir v. Kansas State Board of Pharmacy, 228 Kan. 579, 618 P.2d 837 (1980) (Gumbhir I).
In Gumbhir II, we discussed in some detail the decisions of the federal courts holding that state agencies were or were not “persons” under Section 1983. See 231 Kan. at 512-13.
We have never held that state agencies were persons under 42 U.S.C. § 1983 for the purpose of suits seeking damages thereunder. The State has consented to suit for damages under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., but that act does not contain the consent of the State to the filing of actions for damages against it under Section 1983. (The State of Kansas has not waived its sovereign immunity from suits seeking monetary damages under 42 U.S.C. § 1983.) We have reviewed many of the opinions of our sister state courts dealing with this issue, and find them sharply divided. A review of those opinions would add length but not substance to this opinion. We have carefully considered the issue, and hold that, while the State of Kansas is a person for the purposes of Section 1983 actions wherein injunctive relief is sought, the State has not waived its sovereign immunity from suits seeking damages under that section. The trial court was correct in dismissing the Section 1983 claims as against these defendants.
II. LIABILITY OF THE MEDICAL CENTER
The second issue on appeal is whether the Medical Center is immune from liability under the “discretionary function” or the “police protection” exceptions to the Kansas Tort Claims Act, K.S.A. 75-6104(d) or (m). The trial court, in the two paragraphs immediately following the heading “B. University of Kansas Medical Center,” in its order quoted above, found that the Medical Center was immune under both exceptions. K.S.A. 75-6104(d) and (m) read as follows:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion be abused;
“(m) failure to provide, or the method of providing, police or fire protection.”
The petitions allege that the Medical Center and its agents, the director of emergency services and the director of security, failed to maintain and operate the emergency room facility in a condition reasonably safe for its use by personnel, patients, visitors, and guests; failed to warn them of known or foreseeable dangers; and failed to take necessary or proper precautions to prevent the violent and foreseeable acts of Boan.' Plaintiffs' emphasize that this claim is based upon a violation of the premises doctrine; that Dr. Beck as an employee, and Ruth Rybolt and Ruby Shannon as visitors, were business invitees, and thus the Medical Center owed them a duty to use ordinary care to keep the premises in a reasonably safe condition, and to warn the invitees of dangerous conditions upon the premises of which the Medical Center knew, or should have known by the exercise of ordinary care. See Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593 (1978).
Before a governmental entity can be liable for damages, there must be (1) a negligent or wrongful act or omission by one of its employees; and (2) the employee (a) must be acting within the scope of his or her employment, and (b) under circumstances where the government or entity, if a private person, would be liable under the laws of this state. K.S.A. 75-6103; Hopkins v. State, 237 Kan. 601, 609, 702 P.2d 311 (1985). There is no claim that any of the Medical Center’s employees acted outside of the scope of their employment.
This is not a case in which the damage is alleged to have been occasioned by the physical condition of the premises. There was no slippery substance on the floor, no loose tread on the stair, no dangerous hole into which a person fell. The negligent acts complained of consist only of the failure to provide more adequate police protection, and the failure to warn. As to the failure to warn, Boan entered the emergency facility, fired three shots, and left. There is no claim in the petition that the employees of the hospital knew Boan was coming or saw Boan coming in with the shotgun and had time to warn plaintiffs’ decedents. The case is somewhat like that of Harvey v. Van Aelstyn, 211 Neb. 607, 319 N.W.2d 725 (1982), where the assailant, immediately after entering a tavern, attacked the plaintiff without warning. The owner, a private person, had no reasonable opportunity to restrain the assailant or to give warning.
As to the duty to warn, plaintiffs rely on Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), which held that the failure of the State to give prompt warning to nearby law enforcement agencies upon the escape of seven dangerous and armed convicts from the Kansas State Penitentiary constituted a breach of a common-law duty and was not a failure to provide “police protection,” exempt under Section 6104(m). In that case, however, we held that the duty to warn was not solely a law enforcement or police protection function, but was a common-law duty imposed upon all who take charge of persons extremely dangerous to others.
In the present case, the Medical Center did not take charge of Boan and did not have custody or control over him at any time after his release from the penitentiary or at the time he entered the Medical Center with shotgun in hand. Therefore, the common law did not impose upon the Medical Center the duty to warn which was found applicable in Cansler.
Similarly, simply because Boan had assaulted Medical Center personnel some years before, such remote acts would not form a basis upon which the Center could reasonably be expected to have anticipated this occurrence, taken steps to prevent or forestall it, or warned all persons who came into its building that Boan might strike at any time. Gould v. Taco Bell, 239 Kan. 564, 722 P.2d 511 (1986), is distinguishable upon the facts.
Security at the Medical Center is maintained by University police officers, as provided by K.S.A. 76-726. That statute provides that University police officers shall have the power and authority of law enforcement officers on property owned or operated by the state educational institution. In the performance of their duties, such officers have the same rights, protections, and immunities afforded to other law enforcement officers.
The trial court found that since the Medical Center maintains a statutorily recognized law enforcement division, it is entitled to the same exceptions from liability as any municipal or state law enforcement agency. The police protection exception, quoted above, excepts from liability the “failure to provide or method of providing police or fire protection.” We discussed the aims of the police and fire protection exception in Jackson v. City of Kansas City, 235 Kan. 278, 292, 680 P.2d 877 (1984), saying:
“We believe subsection (m) is aimed at such basic matters at the type and number of fire trucks and police cars considered necessary for the operation of the respective departments; how many personnel might be required; how many and where police patrol cars are to operate; the placement and supply of fire hydrants; and the selection of equipment options. Accordingly, a city is immunized from such claims as a burglary could have been prevented if additional police cars had been on patrol, or a house could have been saved if more or better fire equipment had been purchased. We do not believe subsection (m) is so broad as to immunize a city on every aspect of negligent police and fire department operations. Should firemen negligently go to the wrong house and chop a hole in the roof thereof, we do not believe the city has immunity therefor on the basis the negligent act was a part of the method of fire protection.”
The determination of how to provide police protection is immunized. The Medical Center is not liable because of the methods it adopted for police protection. Unlike Cansler, if the officers at the Medical Center were aware of a risk of injury from Boan, any duty to warn would have been a law enforcement or police protection function. It would be the function of the University police to implement a warning system effective in warning all individuals in the Medical Center. Nothing in the petitions indicates that Boan was a patient or visitor in the Medical Center at any time after his release from the penitentiary until the fatal day. Boan threatened to commit or committed acts of violence at the Medical Center some years before the present incident, but there is no claim that the University police or any other employees of the Medical Center knew or should have known, immediately prior to the March 20 shooting incident, that Boan was armed and approaching the emergency facility. Both the duty to protect and the duty to warn, on the facts alleged, thus fall within the police protection exception, and we hold that the trial court was correct in finding the Medical Center immunized from liability pursuant to K.S.A. 75-6104(m). In light of this holding, we need not reach the discretionary function exception in relation to the claims against the Medical Center.
III. THE ORDER OF SUMMARY JUDGMENT
The third issue is whether the trial court erred in treating the Kansas Adult Authority’s motion to dismiss as a motion for summary judgment. K.S.A. 60-212(b)(6) provides for the filing of a motion to dismiss for failure to state a claim upon which relief can be granted. The statute also provides that:
“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by K.S.A. 60-256.”
K.S.A. 60-256, now K.S.A. 1986 Supp. 60-256, provides for the service of a motion for summary judgment with or without supporting affidavits. The adverse party may serve opposing affidavits. The statute then 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.”
The rule governing the disposition of motions to dismiss was discussed in the case of Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 998, 667 P.2d 879 (1983):
“The dismissal in this case was pursuant to K.S.A. 60-212(b)(6), failure to state a claim upon which relief can be granted. The case of Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 2, 479 P.2d 875 (1971), states the standard for this type of dismissal:
“ ‘Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in his favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.’
The court is under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. Monroe v. Darr, 214 Kan. 426, 430, 520 P.2d 1197 (1974). It is not necessary to spell out a legal theory of relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 199, 563 P.2d 467 (1977).”
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court must give the benefit of all inferences which may be drawn from the admitted facts to the party against whom summary judgment is sought. The trial court must search the record to determine whether issues of material fact do exist. A mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon trial, will not justify refusing that party his day in court. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Moore v. State Bank of Burden, 240 Kan. 382, 385-86, 729 P.2d 1205 (1986); Barnhart v. McKinney, 235 Kan. 511, Syl. ¶¶ 1, 2, 682 P.2d 112 (1984); McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶¶ 1, 2, 3, 4, 662 P.2d 1203 (1983); Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974); Lawrence v. Deemy, 204 Kan. 299, 301-02, 461 P.2d 770 (1969).
The important distinction between the handling of a motion to dismiss on the one hand and a motion for summary judgment on the other is that in the former the trial court is limited to a review of the pleadings, while in the latter, the trial court takes into consideration all of the facts disclosed during the discovery process — affidavits, depositions, admissions, and answers to interrogatories. Thus, a party opposing a motion for summary judgment may point to or provide depositions, affidavits, or other documents to demonstrate that there are genuine issues of material fact, necessitating a trial.
In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. As the United States Supreme Court recently said in Matsushita Elec. Ind. Co. v. Zenith Radio, 475 U.S. 574, 585-87, 89 L. Ed.2d 538, 106 S. Ct. 1348 (1986):
“To survive petitioners’ motion for summary judgment, respondents must establish that there is a genuine issue of material fact ....
“Second, the issue of fact must be ‘genuine.’ Fed Rule Civ Proc 56(c), (e). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. [Citations omitted.] In the language of the Rule, the non-moving party must come forward with ‘specific facts showing that there is a genuine issue for trial.’ [Citations omitted.] Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ”
We expressed a similar point of view in Moore v. State Bank of Burden, 240 Kan. 382. There, although the party opposing the motion disagreed over some minor factual detail, the material facts were undisputed and we upheld the entry of summary judgment.
Ordinarily a motion for summary judgment should not be sustained so long as discovery is incomplete. Lostutter v. Estate of Larkin, 235 Kan. 154, 165, 679 P.2d 181 (1984); Brick v. City of Wichita, 195 Kan. 206, 211, 403 P.2d 964 (1965).
Plaintiffs contend that they were prejudiced by the trial court’s ruling of April 4, 1985, that the motions would be treated as motions to dismiss, when in fact the court ruled on the motions as motions for summary judgment. The trial court viewed the facts in the light most favorable to the plaintiffs, and found that there was no material question of fact as to the propriety of the Authority’s action. The court also found that there was no evidence before the Authority indicating any actions by Boan while on conditional release which would impute to the Authority any degree of bad faith in its discretionary decision. Plaintiffs argue that the facts which were before the Authority were never developed, since plaintiffs, in reliance upon the trial court’s order, withdrew their deposition notices, and there was no discovery in this case to develop those facts.
The Authority contends that the trial court was correct for the wrong reason. Basically, the Authority argues that the trial court’s finding of qualified immunity was based on Judge Saffels’ opinion in Beck v. Kansas University Psychiatry Foundation, 580 F. Supp. 527 (D. Kan. 1984). Judge Saffels found that the members of the Adult Authority were entitled to qualified immunity, but his analysis was made under the common law as it applied to the civil rights claims under 42 U.S.C. § 1983 (1982), and not under the discretionary function exception to the Kansas Tort Claims Act. The Authority contends that the trial court here found that the Authority did not have a right to act in bad faith when, it claims, it is not liable for any claim based on the discretionary function, whether or not discretion is abused.
Our cases do not agree that the discretionary function exception grants absolute immunity. In Hopkins v. State, 237 Kan. 601, 611, 702 P.2d 311 (1985); we said:
“Neither the courts nor our legislature, in passing the act, extended the mantle of immunity beyond the boundaries of protection previously recognized under the common law. Under the common law, personal liability was imposed on officers who maliciously or wantonly injured a person or his property even though the officers were engaged in a governmental function.”
Plaintiffs argue that if their claims were to be dismissed on the basis that there was no evidence before the Authority, the trial court should have known what was in fact before the Authority. Further, they contend that if the Authority failed to consider any of the criteria set forth in the statute, it is a question of gross negligence from which the Authority is not immune, and that is a fact question for the jury. Plaintiffs also contend that their depositions, subsequently taken in the federal companion case, provide substantial evidence of bad faith. Those depositions were not before the trial court, and we do not reach them here.
In the petitions, plaintiffs allege:
“45. On or about August, 1977, Bradley R. Boan had been convicted and sentenced to prison for the commission of an aggravated assault against a staff member of the defendant University of Kansas Medical Center.
“46. From on or about October, 1977 and until on or about March, 1980, Bradley R. Boan was confined at the Kansas State Penitentiary at Lansing, Kansas and was under the care, custody and control of the Department of Corrections for the State of Kansas.
“47. On or about March, 1980, the defendant Kansas Adult Authority granted Bradley R. Boan a release from his incarceration.
“48. The defendant Kansas Adult Authority allowed and ordered said release of Bradley R. Boan to occur, despite the fact that they knew or should have known of his foreseeable propensity for violence, his inability to function in open society, his need for and apparent lack of treatment while incarcerated, his recurrent loss of contact with and distortion of reality, and his danger to himself and the public in general and the University of Kansas Medical Center, its emergency room, its staff, personnel, agents, servants, employees, patients, patrons and visitors, in particular.
“49. In so releasing Bradley R. Boan, the defendant Kansas Adult Authority specifically failed, refused to fulfill or inadequately fulfilled their individual, official and other duties, as previously set forth herein, and each of them, in allowing, refusing or failing to prevent, intervene or protect against, the commission of aforesaid violent acts or omissions, acted in bad faith, with reckless and callous disregard for the rights of others, were grossly and wantonly negligent and exhibited intentional and deliberate indifference to the foreseeable violent and dangerous propensities posed by Bradley R. Boan and to the rights of the above-named plaintiffs, and each of them.”
The Authority filed a motion to dismiss, and later an amended motion to dismiss. These motions simply ask for dismissal of the claims of tort and constitutional violations alleged by the plaintiffs against the Authority. The motion is supported by a written brief or memorandum. No answer has been filed by the Authority, and no affidavits accompany the motions to dismiss. Thus the claims asserted in the petitions, as set forth above, have not been specifically denied.
Under the circumstances, we hold that the trial court erred in entering summary judgment, based upon the insufficiency of the facts and the “evidence before the Board,” prior to the time the facts had been developed by discovery or otherwise. Our ruling on this issue is not, however, dispositive.
IV. LIABILITY OF THE KANSAS ADULT AUTHORITY
We turn now to the final issue, whether the Kansas Adult Authority is immune from liability under the discretionary function exception to the Kansas Tort Claims Act, K.S.A. 75-6104(d). The trial court, in granting summary judgment, found that the Authority was not liable because its decision fell within the “discretionary function” exception to the Kansas Tort Claims Act. The trial court correctly noted that Boan’s conditional release was determined by mathematical computation, involving no discretionary decision-making on the part of the Board. Conditions of release and final discharge prior to the expiration of an inmate’s term, however, are discretionary. K.S.A. 1986 Supp. 22-3718, -3722.
K.S.A. 1986 Supp. 22-3717 fixes parole eligibility dates. These vary, depending upon the severity of the offense, the classification of the crime, and the credits to which an inmate is entitled. “Good time credits” are credits, formerly established by rules and regulations of the Kansas Adult Authority and now provided by statute, K.S.A. 1986 Supp. 22-3717(o). These consist of one day’s credit for every three days served, and one month for every year served, awarded on an earned basis pursuant to the rules and regulations adopted by the Secretary of Corrections. Additionally, certain meritorious good time credits may be earned. K.S.A. 1986 Supp. 22-3717(p). Once an inmate has served to his parole eligibility date, he is entitled to meet with the Kansas Adult Authority and may, at the discretion of the Authority, be placed on parole.
Conditional release, however, is distinguishable from parole. An inmate who serves the maximum term or terms of his sentence, less “such work and good behavior credits as have been earned,” is entitled to be released from custody. Boan was such an inmate. He was not granted a parole by the Kansas Adult Authority; instead, he was required to serve to his conditional release date, and he was then released from custody. K.S.A. 22-3718, in effect at that time, read as follows:
“An inmate who has served his maximum term or terms, less such work and good behavior credits as have been earned, shall, upon release, be subject to such written rules and conditions as the authority may impose, until the expiration of the maximum term or terms for which he was sentenced or until he is otherwise discharged.”
Thus, at the time Boan was placed on conditional release, the Authority was authorized by statute to require him to be subject to such written rules and conditions as the Authority might choose to impose, up until the expiration of the maximum term or terms for which he was sentenced, or until he was otherwise discharged. The release of an inmate on parole is discretionary with the Authority; the release of an inmate on conditional release is not discretionary but is required by law, once the maximum term of imprisonment, less earned credits, has been served. However, the Authority is authorized to impose written rules and conditions upon a prisoner placed upon conditional release; the determination of whether or not to impose conditions and the extent of such conditions is discretionary.
We have discussed the discretionary function exception several times. In Robertson v. City of Topeka, 231 Kan. 358, 644 P.2d 458 (1982), the issue was whether police officers were exercising a discretionary function when they refused to remove a drunken trespasser from the owner’s property. We rejected the “planning level-operational level test,” and held that the determining factor was the nature and quality of the discretion exercised rather than the status of the employee. We held that the decision of the officers was an on-the-spot exercise of discretion, and thus plaintiffs’ claim fell within the discretionary function exception.
In Carpenter v. Johnson, 231 Kan. 783, 649 P.2d 400 (1982), we again held that whether an act is discretionary depends upon the totality of the circumstances. We held in that case that a placement of warning signs on a roadway was an exercise of professional judgment within established guidelines, rather than the exercise of discretion, and thus the discretionary function ex ception was not applicable. In Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984), we considered the plaintiff s claim for injuries resulting from the escape of armed and dangerous prisoners from the penitentiary. No warning was given to law enforcement officers in neighboring communities. We held that the duties to confine and to warn were imposed by law and were ministerial, not discretionary. The plaintiff s claim was not based on how the State decided to confine or warn, but the State’s failure to do so. We held the claim was not barred by the discretionary function exception. In Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984), we considered an action arising upon a collision between two city fire trucks on an emergency run to the same fire. We found that the duty of the fire truck drivers is set forth in various statutes, regulations, and ordinances of the city. Disregard of those statutes, departmental policies, and regulations was not within the discretionary function exception. See Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986); Finkbiner v. Clay County, 238 Kan. 856, 714 P.2d 1380 (1986); Hopkins v. State, 237 Kan. 601; Toumberlin v. Haas, 236 Kan. 138, 689 P.2d 808 (1984).
We set out earlier in this opinion the specific allegations that plaintiffs make in their claims against the Kansas Adult Authority. They contend that the Authority allowed and ordered the release of Boan, despite the fact that it knew or should have known of his foreseeable propensity for violence; his inability to function in open society; his need for and apparent lack of treatment; his recurrent loss of contact with and distortion of reality; and his danger to himself and the public in general, and the Medical Center, its emergency room and its patients, personnel, and visitors, in particular. They contend that the Authority specifically failed to fulfill its official duties, and that its actions were in bad faith, with reckless disregard for the rights of others, and were grossly and wantonly negligent.
The regulations relating to conditional release, adopted by the Kansas Adult Authority and in effect at the time of Boan’s release, provided as follow:
“Article X. Conditional Release
“45-10-1. General provisions, (a) An inmate shall be granted conditional release when he or she has served the maximum sentence less statutory authorized good time credits as provided under K.A.R. 45-2-l(b).
“(b) Conditional releasees may be placed under mandatory in-state parole supervision for approximately ninety (90) to one hundred eighty (180) days, as determined by the authority and upon the recommendation of the unit team or designated institutional officials. Extended supervision may be allowed, but not to exceed the maximum term, on approval of the authority and based on the supervising parole officer’s recommendation. Conditional releasees may be subject to the same terms and conditions as all other parolees while under supervision. If probable cause is established that a conditional releasee has violated the conditions of release, he or she may be returned to confinement upon determination of the secretary and thereafter, subject to the final hearing and order of the authority, considered in the same manner as a parole violator.
“(c) Institutional staff shall notify the authority of any conditional releasee who has not been discharged from mandatory supervision and is returned to confinement with a new felony crime, and the authority shall determine whether or not he or she shall be docketed for a violator hearing.” K.A.R. 45-10-1.
K.A.R. 45-ll-l(c) also provided:
“(c) Conditional release cases. Inmates who have been ordered to serve to conditional release shall be considered for discharge, unless adverse reports are received, one (1) year after release unless the maximum sentence date expires sooner.”
The plaintiffs admit that the trial court’s ruling that the actual physical release of Boan by the Authority was protected by the “enforcement of laws” exception was correct, if Boan’s release time was correctly calculated. Plaintiffs argue that the release was not properly calculated. However, the granting of good time and meritorious good time credits, and the calculation of the time actually served by an inmate in the custody of the Department of Corrections are the functions of the Secretary of Corrections, not the Kansas Adult Authority. Neither the Secretary of Corrections nor the Department of Corrections are defendants in this action. We conclude that the calculation of Boan’s conditional release date is not an issue in this litigation. His release by the Authority upon conditional release was not discretionary but was required by law. It is therefore excepted from liability by K.S.A. 75-6104(c), as the “enforcement of or failure to enforce a law.”
As we noted earlier, the matter of the imposition or nonimposition of conditions is a discretionary matter. The discretionary function exception, K.S.A. 75-6104(d), exempts from liability “the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion be abused.” (Emphasis added.)
In Hopkins v. State, 237 Kan. at 611, we said:
“The exceptions to liability of a governmental entity or employee set out in 75-6104 are not without limitations. Only negligent or wrongful acts or omissions of employees are excepted from liability by 75-6104, while acts or omissions involving more than the lack of ordinary care and diligence are not.
“Neither the courts nor our legislature, in passing the act, extended the mantle of immunity beyond the boundaries of protection previously recognized under the common law. Under the common law, personal liability was imposed on officers who maliciously or wantonly injured a person or his property even though the officers were engaged in a governmental function.”
Negligence is the lack of ordinary care under the existing circumstances. It is the failure of a person to do something that an ordinary person would do, or the act of a person in doing something that an ordinary person would not do, measured by all of the circumstances then existing. The degree of care must be equal to the danger reasonably to be anticipated, measured by all of the facts and circumstances. PIK Civ. 2d 3.01, 13.01.
A willful act involves an intentional act and intentional injury. A wanton wrong involves an intentional act but not an intentional injury; the act is intentional and purposeful, but the consequences of the act are not. Wanton conduct is distinguished from a mere lack of due care by the fact that the actor realizes the imminence of injury to others from his acts and refrains from taking steps to prevent the injury. This reckless disregard or complete indifference rises substantially beyond mere negligence. Bowman v. Doherty, 235 Kan. 870, 876, 686 P.2d 112 (1984) (citing PIK Civ. 2d 3.02 and Kniffen v. Hercules Powder Co., 164 Kan. 196, 188 P.2d 980 [1948]).
The plaintiffs’ complaint against the Authority, quoted at length earlier in this opinion, is simply that the members of the Authority released Boan from custody “when they knew or should have known of his foreseeable propensity for violence”; his mental condition; his lack of treatment while in the penitentiary; and his danger to himself, the general public, and the Medical Center and its occupants in particular. The Authority had no choice but to release Boan from custody. Whether it imposed conditions upon that release, such as use of medication, referral to mental health practitioners or hospitals, and directives that he not visit the Medical Center, was discretionary with the Authority. K.S.A. 22-3718.
A somewhat similar case is that of Payton v. United States, 679 F.2d 475 (5th Cir. 1982). A federal prisoner, alleged to be a homicidal psychotic, was released on parole by the United States Board of Parole. He murdered three women, including plaintiffs’ decedent. The Fifth Circuit heard the matter en banc. The issue before the court, insofar as material here, was whether the alleged conduct by personnel of the United States Board of Parole comes within the provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680 (1976) or is exempt as a “discretionary function.” The court held: (1) the actual decision to grant or deny parole is within the complete discretion of the parole board; (2) the terms of the parole are within the discretion of the parole board (while the board could have provided for continued supervision of [the parolee] during his parole, and although failure to do so might appear to be an abuse of discretion, the decision was discretionary and therefore is excluded from the FTCA by 28 U.S.C. § 2680); and (3) a claim that the board failed to acquire, read, or give adequate consideration to the prisoner’s records is inexplicably tied to the board’s ultimate decision, and thus addresses the board’s exercise of its discretionary function. The court concluded that all three claims against the parole board were exempt. In discussing the third claim, the court said:
“To withstand a motion to dismiss, an allegation challenging the Board’s performance of any ministerial act must be sufficiently distinguishable from a complaint disputing the Board’s exercise of its discretionary function. The plaintiff must therefore allege that the Board breached a duty sufficiently separable from the decision-making function to be nondiscretionary and outside of the exception. The plaintiff may not withstand a motion to dismiss by alleging that the Board’s decision was wrong.
“We therefore find insufficient the allegation that the Parole Board failed to acquire, read, or give adequate consideration to these records. The acquisition and examination of the records on which the Board bases its ultimate decision necessarily implicates its discretionary function. In fulfilling this task, the Board must exercise its judgment by determining the materiality of certain studies and documents and the propriety of relying thereon in reaching its final assessment. Further, the manner and degree of consideration with which the Board examines these materials is inextricably tied to its ultimate decision. This allegation thus addresses the Board’s exercise of its discretionary function. For these reasons we hold that the trial court properly dismissed Count III.” 679 F.2d at 482.
The issues in Payton, like those presented by the case before us, were obviously difficult for the Court. There were strong differences of opinion. The trial judge, Chief Judge Virgil Pittman of the Southern District of Alabama, dismissed for lack of jurisdiction. Payton v. United States, 468 F. Supp. 651 (S.D. Ala. 1979). A panel of the Fifth Circuit reversed and remanded. Payton v. United States, 636 F.2d 132 (5th Cir. 1981). Rehearing en banc was granted, resulting in a reversal in part, an affirmance in part, and a remand to the trial court. The majority opinion was written by Judge Joseph W. Hatchett, now of the 11th Circuit. Five separate opinions, each dissenting in part and concurring in part, and some joined in by other judges, were written by Judges Roney, Tjoflat, Fay, Kravitch, and Clark. These may be found in 679 F.2d at 483-94.
Another case bearing some similarity to the case at hand is Lloyd v. State, 251 N.W.2d 551 (Iowa 1977), 6 A.L.R.4th 1143. This was an action by two persons who had been injured by a former state prisoner who had allegedly been negligently released by the Iowa Director of the Bureau of Adult Correction. The action was brought under the Iowa Tort Claims Act. Section 25A.14(1) of that act provides that the act shall not apply to:
“Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a state agency or an employee of the state, whether or not the discretion be abused.” Iowa Code Ann. § 25A.14(1) (West 1978).
The Iowa statutes contained a provision that when the state director has reason to believe that a prisoner whose sentence has expired is mentally ill, the director should cause the prisoner to be examined, and thereafter the director could cause the prisoner to be transferred to a mental hospital or be confined in the Iowa security medical facility. Plaintiffs claimed that the director was negligent in releasing the prisoner from custody. The Iowa Supreme Court held that the courts lack jurisdiction to hear a claim which falls under one of the exceptions to the Iowa Tort Claims Act. It then determined that the decision of whether to commit a prisoner and where to have him committed is within the director’s descretion. Since the release, rather than a transfer to a mental hospital, was discretionary, the claim falls under the discretionary function exception. The court concluded that the trial court had no jurisdiction, and the case must be dismissed.
There have been a number of recent cases in other jurisdictions, and the rulings are diverse. See Annot., 5 A.L.R.4th 773; Annot., 6 A.L.R.4th 1155; Note, Parole Board Liability for the Criminal Acts of Parolees, 8 Cap. U. L. Rev. 149 (1978). Further review of the cases from other jurisdictions would not be particularly helpful here.
Although plaintiffs characterize the actions or omissions of the Authority as reckless, grossly and wantonly negligent, and as exhibiting intentional and deliberate indifference to the consequences, the claim is founded upon the Authority’s release of Boan from custody, without imposing conditions upon him and without attempting to enter him in a mental hospital or otherwise securing mental treatment for him. The failure of a parole authority to carefully review all of the available records, the failure to send for other records which could have been secured, and the failure to take action which a thorough post-release review of the records would indicate were warranted, if true, may be negligence, but it is simply an exercise or failure to exercise a discretionary function or duty. It is the kind of activity of a state agency which is specifically exempted from the provisions of the Kansas Tort Claims Act.
We do not believe that the legislature, in enacting the Kansas Tort Claims Act, intended to subject parole or probation decisions of the authorities, whether the Kansas Adult Authority or the sentencing judge, to litigation in order to determine whether the Authority or judge turned every tap and jumped through every hoop in arriving at a decision to place an inmate on parole or to impose conditions on a conditional release. It is these discretionary functions of state agencies or employees which the legislature intended to place beyond the pale of tort litigation.
The possibility of harm to third persons exists every time a prisoner convicted of violent crime is released from custody and placed back into society, yet the time always arrives when release must be effected. A decision as to the imposition of conditions, if any, must be made. Such a decision involves the exercise of great discretion. Boan had to be released, under state law. Whether conditions might have been imposed which would have prevented this catastrophe is an open question. Hindsight, always better than foresight, indicates some conditions might have had some effect. But such a decision, made now, would merely second-guess the parole authority, the agency in whose hands the legislature entrusted the discretion.
The plaintiffs have suffered an enormous wrong. We do not overlook their plight and we cannot but sympathize with them. However, fashioning a remedy to permit the State to be sued when a probationer, parolee, or conditional releasee appears to have been either improvidently released or released with insufficient safeguards and conditions, and while on such release commits a tort, is a matter for the legislature and not the courts.
The trial judge, at the conclusion of his letter memorandum and order, stated that he was sustaining the motions to dismiss the various state agencies. The petitions, read in the light most favorable to the plaintiffs, claim an abuse of discretion by the Kansas Adult Authority in releasing Boan. Such an action is not viable in light of K.S.A. 75-6104(d), the discretionary function exception.
The judgment of the trial court is affirmed.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Lockett, J.:
The plaintiff, Nancy S. Bohman, appeals the decision of the Wyandotte County District Court which held that Kansas does not recognize the doctrine of equitable adoption, and that, therefore, Bohman was not the adopted daughter of the deceased. She also appeals the decision denying her claim against the estate for expenses incurred while caring for the deceased during the deceased’s last illness.
Will Florence Robbins died intestate December 28, 1985, at the age of 75. She had been a prominent member of the Kansas City community and had been the recipient of numerous professional and civic honors. Her first husband, Harold E. Robbins, died in 1968. Mrs. Robbins later married and subsequently divorced Adolphus Hudgins. Both marriages were childless.
Nancy S. Bohman was born on January 23, 1926, in Lexington, Mississippi, the daughter of Theodosia and Arthur Smith. In 1933, Mrs. Smith left her husband and moved with Nancy and her other two children to Kansas City, Kansas. In 1934, Nancy met Will Florence and Harold Robbins while attending the YWCA in Kansas City. Through the ensuing years, Nancy had a continuing close relationship with Mrs. Robbins.
Upon Robbins’ death, Nancy Bohman returned to Kansas City to make funeral arrangements. The funeral took place on December 31, 1985. A petition for the appointment of an administrator was filed. The petition stated that the deceased was survived by Ewell Clemons and Kneeland Clemons, cousins, and that Nancy Bohman was an interested party.
The court appointed Ewell Clemons as administrator. Clemons filed an inventory and valuation of the estate, which was valued at $223,321.23. Nancy Bohman filed a claim against the estate for $9,201.86. In her affidavit, Bohman stated that she was the “God-daughter” of Will Florence Robbins and that the amounts claimed against the estate were for services she performed between 1981-85. The services included telephone calls, travel to Kansas City, monies expended accompanying Robbins on a cruise, and salary/time loss.
After Ewell Clemons filed a petition for final settlement of the estate, Nancy Bohman filed a petition for determination of heir-ship, alleging that she was the adopted daughter of Will Florence Robbins. The petition was filed after the four-month period prescribed by the nonclaim statute, K.S.A. 1986 Supp. 59-2239, had expired. Nancy claimed that the Robbinses had proposed an adoption of Nancy to her mother in 1940, that the proposal had been accepted, and that she, Nancy, thereafter moved into the Robbins home and was treated in all respects as the Robbins’ natural daughter. Nancy also alleged that Will Florence Robbins had told her that she would leave a will through which Nancy would inherit.
At the hearing on plaintiff s motion for determination of heir-ship, Nancy Bohman informed the court that under the doctrine of equitable adoption she was the adopted daughter of the deceased. The court then ruled as a matter of law that the State of Kansas does not recognize the doctrine of equitable adoption, and that Nancy, therefore, could not have been equitably adopted. After hearing the evidence on Bohman’s claim for reimbursement for services rendered the deceased during her last illness, the court denied her claim.
Bohman argues that the district court erred in denying her $9,201.86 claim for expenses and monies expended on behalf of the deceased.
In order to recover for services rendered a deceased, the claimant must affirmatively show either an express contract for remuneration existed, or that the circumstances under which the services were rendered were such as exhibited a reasonable and proper expectation that there would be compensation. In re Estate of Nicholson, 167 Kan. 14, 16, 204 P.2d 602 (1949) (quoting Nelson v. Peterson, 147 Kan. 507, 78 P.2d 20 [1938]). Such a claim, in order to be valid, need not be based on an express contract but may rest on an implied obligation to pay arising from facts and circumstances. In re Estate of House, 164 Kan. 610, Syl. ¶ 2, 192 P.2d 179 (1948). The burden of proving a claim against a decedent’s estate is on the claimant and the claim must be established by evidence clear and convincing to the triers, or trier, of fact. In re Estate of Brown, 189 Kan. 193, Syl. ¶ 4, 368 P.2d 27 (1962).
At the hearing on her claim against the estate, Bohman testified that she had no agreement with the deceased to be reimbursed for her expenses, nor did she want to be reimbursed on the basis of her services to Robbins. It was her “impression” that a sum would be forthcoming from the administrator because she was the adopted daughter of the deceased. Based on Bohman’s statements, neither an express nor implied contract existed between the decedent and Bohman to pay for services rendered. The trial judge properly denied her claim against the estate for services and expenses incurred.
Bohman next argues that prior Kansas law has established a right to enforcement of an unperformed contract to adopt. She contends that because of an oral contract between Robbins and Bohman’s natural mother, she is the adopted daughter of Will Florence Robbins and, as such, is entitled to inherit from Robbins’ estate under the doctrine of equitable adoption.
The English common law followed the maxim that “only God, not man, can make an heir.” The concept of adoption of children originated in the Roman and civil law systems and was unknown to English jurisprudence. In the United States, both the right to adopt and the legal consequences of adoption are dependent upon state law. Courts in nearly 30 states have applied the doctrine of equitable adoption to allow a child to inherit from his or her “parents” despite the total lack of formal adoption proceedings. See Annot., 97 A.L.R.3d 347. See generally Bailey, Adoption “By Estoppel”, 36 Tex. L. Rev. 30 (1957); Note, Equitable Adoption: They Took Him Into Their Home and Called Him Fred, 58 Va. L. Rev. 726 (1972); Comment, Equitable Adoption: A Necessary Doctrine?, 35 S. Cal. L. Rev. 491 (1962); Comment, Virtual Adoption and Rights of Inheritance, 21 Wash. & Lee L. Rev. 312 (1964). These state courts have recognized that when an individual who is legally competent to adopt a child enters into a valid contract to adopt, and there is consideration supporting the contract in the form of past performance falling short of the statutory requirements for adoption, the contract to adopt may be enforced in equity to the extent of allowing the child to occupy the status of a legally adopted child for certain purposes.
In the most common case, the. natural parents give up their child to foster parents who agree to adopt the child. The child is reared in the foster parents’ home and assumes the de facto status of an adopted child. However, statutory adoption procedures are never carried out. Upon the death of the foster parents, the child claims an inheritance from the estate. Other courts, in attempting to avoid harsh results by the application of the intestacy statutes, have allowed the child to inherit, applying general equitable principles, principles of estoppel, or general contract law. The courts reason that one who is legally competent to adopt another as his child may enter into a valid and binding contract to do so, and if such contract is not performed by the promisor during his lifetime, it may be enforced in equity against his estate at the instance of the intended adoptee. 2 Am. Jur. 2d, Adoption § 13, pp. 870-71.
Those jurisdictions which have refused to recognize the doctrine of equitable adoption have based their decisions on reluctance to interfere with legislative decisions. The right of any person to base his claim of inheritance upon an oral agreement for adoption is a legislative matter, and in the absence of legislation authorizing the enforcement of an oral contract alleged to have been made prior to the death of a property owner, courts should not judicially create such a doctrine. Ladd v. Estate of Kellenberger, 64 N.C. App. 471, 307 S.E.2d 850 (1983), aff'd 314 N.C. 477, 334 S.E.2d 751 (1985). See Wilks v. Langley Adm’r, 248 Ark. 227, 451 S.W.2d 209 (1970); In re Est. of Fox, 164 Ind. App. 221, 328 N.E.2d 224 (1975); Clarkson v. Bliley, 185 Va. 82, 38 S.E.2d 22 (1946).
We do recognize that under proper facts and circumstances an equitable contract can be enforced as a claim against the estate of a deceased. We have held that where a claimant has performed services under an oral contract during the life of a decedent and as consideration for such services the decedent has promised to leave specific property at death to the claimant, at the death of the promisor, the claimant may file a claim against the estate for specific performance of the contract. In the event the promisor conveyed the property promised prior to death, making specific performance of the contract impossible, the claimant is entitled to recover in quantum meruit for the reasonable value of the services rendered during the life of the promisor. In re Estate of Ray, 180 Kan. 634, 306 P.2d 190 (1957). In order to enforce an equitable contract against the estate, that claim, like all other claims, must be filed within the period prescribed by the non-claim statute, K.S.A. 1986 Supp. 59-2239.
This court has considered contracts for adoption on several occasions. In each case we have declined to recognize the doctrine of equitable adoption, but have stated that an individual who has no right to take as an heir may under proper facts and circumstances claim under an equitable contract and seek damages or specific performance against the promisor’s estate.
In Malaney v. Cameron, 99 Kan. 70, 161 Pac. 1180 (1916), plaintiff brought an action for ejectment and to recover an interest in land to which she maintained she was entitled by virtue of an unperformed adoption agreement. The court held that, at most, the agreement to adopt between plaintiff s father and the deceased gave her a right to assert a contract claim against the estate, but could not convey upon plaintiff the status of “heir.” The mere contract to adopt is not itself sufficient to make the child a legal heir of the promisor, because the right to take as an heir exists only by operation of law. 99 Kan. at 71-72.
In Hickox v. Johnston, 113 Kan. 99, 213 Pac. 1060 (1923), 27 A.L.R. 1322, plaintiff brought an action for specific performance of a contract to adopt between plaintiff s mother and the Johnstons. This court again recognized that one could not be adopted until the necessary legal steps had been completed. While one could not claim by right of inheritance under such a relationship, one could establish a contract for an adoption and enforce the rights of a child against the estate of the foster parents. 113 Kan. at 102.
At issue in the Hickox case was the disposition of insurance proceeds from a benefit certificate issued by the Brotherhood of American Yeomen and payable to decedent’s legal heirs. The case was remanded to the district court and, after the proceeds were awarded to plaintiff, defendants appealed again. In Hickox v. Johnston, 115 Kan. 845, 224 Pac. 905 (1924), in an opinion by Justice Burch, the court reaffirmed that a court of equity could give relief for a breach of a contract to adopt. Where an obligor dies intestate, the court under equitable principles may give relief out of the estate, measured by the statute of descents and distributions; but it cannot make one person an heir of another. One can be a legal heir entitled to inherit as a child under two circumstances: (1) having been born the natural child, or (2) having been legally adopted. 115 Kan. at 850.
Our recognition of “equitable adoption” would open the doors of the courthouse for individuals claiming as the equitably adopted child to contest the adoptive parent’s will, to bring actions for wrongful death of an adoptive parent, to claim life insurance or death benefits due the heirs of a deceased parent, and to claim support from the adoptive parent as well as the right to inherit under the law as any natural or statutorily adopted child. Persons claiming to be the parent of an “equitably adopted” child could also obtain legal status and the rights of a parent.
Rather than open our courts to the various claims available under “equitable adoption,” we again decline to recognize this doctrine. The right to take as an heir exists only by grant of the legislature. Where proper facts and circumstances exist, an indi vidual who has no right to take as an heir may seek damages or specific performance of an equitable contract against the deceased promisor’s estate. The request to enforce an equitable contract must be filed as a claim in the deceased’s estate within the period prescribed by the nonclaim statute, K.S.A. 1986 Supp. 59-2239.
Affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the tidal court’s judgment in a declaratory judgment action where the facts were uncontroverted.
On June 2, 1949, Arthur G. Stockman by warranty deed conveyed to his daughter, Mabel I. Stockman, later Mabel I. Reach, the 240 acres of land in question reserving a life estate to himself.
On August 11, 1959, Arthur, while living with his only other child, Stella Sprick, and her husband, conveyed his life estate to Stella’s husband, plaintiff herein. In September, 1959, plaintiff actively engaged in farming the land. He entered the premises and using his own labor, equipment and seed, and preparing the land, planted fifty acres of wheat and seven acres of winter barley.
On February 22, 1960, Arthur died and on March 25, 1960, defendant notified plaintiff he had no further right to enter the land. She claimed full right and ownership to the growing crops. In July, 1960, the wheat and barley crops in controversy were harvested by plaintiff.
The trial court’s judgment was stated as follows in its formal journal entry:
“The Court being of the opinion that the termination of the life estate does not destroy the right of the Plaintiff to go upon the lands for the sole purpose of tending and harvesting and gathering the crop of wheat and barley and that such right is hereby declared. The Court further finds and declares that the Plaintiff shall have the right to bale the straw from said wheat crop. That the wheat harvested shall be delivered to the nearest and best market and sold and the proceeds divided five-sixths to the Plaintiff and one-sixth to the Defendant and the straw when baled shall be divided in the same proportion with the share of the Defendant being left on the premises.”
Hence this appeal and cross appeal which present the question of who owns the growing crops as between the grantee of a life estate and the remainderman, when the life tenant and grantor of the life estate dies.
Authorities are scarce on the point as to the protection afforded the remainderman after a life estate (Kimberlin v. Hicks, 150 Kan. 449, 455, 94 P. 2d 335) and this appears to be especially true in our jurisdiction because plaintiff challenges the applicability of the cases mentioned by defendant which we find are somewhat difficult to harmonize or apply. Furthermore, our research has produced no past decisions of this court that are particularly helpful in answering the question before us.
Defendant’s first mentioned case is Wyandt v. Merrill, 107 Kan. 661, 193 Pac. 366, where we find plain and unambiguous rules announced. However, in the second case defendant cites (Snodgrass v. Carlson et al., 117 Kan. 80, 230 Pac. 83), a rule was announced which at that time was not considered by the court to overrule entirely the pronouncements in the Wyandt case because of this language:
“To the extent that Wyandt v. Merrill tends to support a view in opposition to that herein expressed, it is disapproved.” (p. 83.)
Defendant’s last cited case is Cooper v. Cyr, 141 Kan. 236, 40 P. 2d 375, where this court quoted that which we have just quoted above from the Snodgrass case, and added,
“It appears that the case of Wyandt v. Merrill was expressly overruled.” (p. 239.)
Deleting reference to the Wyandt case, the opinion in the Cooper case stated,
“. . . the life tenant has an interest in the crop after it has commenced to grow which he might sell or which the owner might sell or mortgage and that his contract would be protected. It was a share that would descend or pass to the real owner whoever he might be.
“The life tenant’s share may be apportioned by the district court in accordance with the laws of the state and the growth of the crop. The crop had grown from September to December 28, and may be apportioned and paid to the life tenant or the executor of his estate.” (p. 239.)
The judgment in the Cooper case was accordingly reversed and the cause remanded with directions to apportion the rental in accordance with the rules expressed in the Snodgrass case. The trial court in our case apparently was trying to follow the apportioning theory of the Cooper case.
The cases defendant cites are different from our case because they involved leases and not outright sales. It appears a more definite rule than a theory of apportionment should be established for deciding these cases.
The doctrine of emblements pertaining to corn, wheat or other annually produced crops of the earth is of common law origin, and is one yardstick to be used in determining rights of the remainder interests as against assignees, lessees, grantees, personal representatives, etc., of the holder of a life estate at the time of the death of such life tenant. The following statements may be helpful:
“Under the common law, if the life tenant sows a crop and dies before its maturity, it goes to Iris personal representatives under the doctrine of emblements. . . . However, where the lessee’s estate is terminated by the death of the life tenant, and he has planted a crop prior thereto, the lessee is entitled to harvest it under the doctrine of emblements. ... To avail himself of this right the lessee must have some right of entry on the land itself and if the tenancy is determined by the death of the life tenant soon after the planting of the crops, this right may of necessity be continued for some months. This right of a lessee is not affected in any way by the fact that he 'had good reason to believe, or in fact did believe, that the estate would terminate before the crop could be harvested.” (15 Am. Jur., Crops, § 26, p. 219.)
And further:
“The doctrine or right of emblements entitles one who holds land for a period subject to termination at a time which 'he cannot ascertain beforehand to remove from the land after the termination of his tenancy the annual crops or emblements which he has planted thereon prior to such termination, if the termination is brought about without any fault on his part or without any act of his intended to bring about such a result. The doctrine allows the tenant to enter upon the land, to cultivate his immature crops, and harvest them when they become mature, but this right is merely one of ingress and egress for necessary purposes. It does not constitute a right to the possession of the land. . . . The basis of the doctrine is the justice of assuring to the tenant compensation for his labor, and the desirability of encouraging husbandry as a matter of public policy.” (15 Am. Jur. Crops, § 24, pp. 216, 217.)
In connection herewith, see, also, 31 C. J. S., Estates, § 40, p. 47.
Plaintiff seeks to have us apply and use the doctrine of emblements and cites Bradley v. Bailey, 56 Conn. 374, 15 Atl. 746, where it was held:
“The executor of a tenant for life is entitled to crops sown during his lifetime but maturing after his death.
“And it does not affect this right that the tenant for life was rapidly failing in health and had reason to expect his early death when the land was sown.” (Syl.)
We believe that the foregoing is the most practical rule and adopt it for this jurisdiction. Anything stated in Cooper v. Cyr, supra, contrary to the views herein expressed is disapproved.
Applying the doctrine of emblements to our present case, we conclude that upon the death of the holder of the life estate, Arthur G. Stockman, after he had conveyed his life estate to plaintiff, plaintiff owned and had the right of entry to the land to harvest the mature wheat, barley and straw which had been planted prior to the death of Stockman.
The judgment is reversed and remanded with directions to enter judgment for plaintiff according to the views expressed herein.
Reversed and remanded with directions.
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The opinion of the court was delivered by
Schroeder, J.;
This is a judicial review action to determine the validity of a State Corporation Commission order and rule directed to gas purchasers, rather than gas producers, requiring them to purchase ratably from all wells within the common source of supply to which each purchaser is connected.
The petition for judicial review was filed on February 19, 1960, by Northern Natural Gas Company (hereafter referred to as Northern or appellant) in the district court of Finney County, Kansas. Thereafter, on the 8th day of April, 1960, the district court having heard argument of counsel entered its judgment confirming the Commission’s order of February 3, 1960, and the Commission’s promulgation of Rule 82-2-219 thereby. The lower court found the rule and order of the State Corporation Commission to be lawful, valid and reasonable.
After the trial court overruled Northern’s motion for a new trial, appeal was duly perfected to this court.
In a companion case, Northern Natural Gas Co. v. State Corpo ration Commission, 188 Kan. 355, 262 P. 2d 599, No. 42,128, decided this date, Northern was directed by the State Corporation Commission to show cause why it should not take ratably from the wells to which it was connected in the Hugoton Field in Kansas. As a result of proceedings therein Northern was directed by an order of the Commission “to take gas ratably from its connections in the Kansas Hugoton Gas Field.” As a part of such order the Commission retained jurisdiction of the subject matter and the parties for the purpose of entering such further order or orders and promulgating and implementing such further rules and regulations as from time to time it deemed proper.
In Northern’s petition for rehearing before the Commission, filed November 6, 1959, Northern contended, among other things, the order directed against it was unlawful in that:
“(d) It purports to amend said Commission’s Basic Proration Order for the Hugoton Gas Field insofar only as it affects one (Northern Natural Gas Company) of the seven principal purchasers of gas therein and in a proceeding not noticed to any party as being a proceeding for the amendment of said Basic Proration Order all in violation of the due process clause of the Constitution of die United States.”
Northern’s petition for rehearing in the “show cause” case was denied and judicial review proceedings concerning the Commission’s order dated October 7, 1959, were filed in the district court of Finney County, Kansas, now on appeal in the Supreme Court as Case No. 42,128, heretofore noted as the companion case.
The Commission, in apparent recognition of Northern’s objection heretofore quoted, sought to bolster its position in the case against Northern, which arose from circumstances applying only to that company, and on November 12, 1959, on its own motion ordered an investigation and hearing for the purpose of considering the adoption of a rule to require that companies take gas ratably from all wells in the same common source of supply to which they are connected. In issuing such order the Commission found:
“I. That G. S. 1949, 55-703, as amended, imposes the following duty on this Commission:
“ ‘The commission shall so regulate the talcing of natural gas from any and all such common sources of supply within this state as to prevent the inequitable or unfair taking from such common source of supply by any person, firm or corporation. . .’
“2. Evidence presented to the Commission indicates that some companies have been and are producing certain wells at higher rates than other wells in the same common source of supply; that this disparity in rates of production has resulted in the accumulation of sizeable underages by many wells while others are producing their current allowables; that such situation, if permitted to continue, would violate correlative rights, and the statutory provisions above set forth.
“3. That in effectuating its statutory duty in the premises, an investigation should be instituted and a public hearing held thereon for the purpose of considering the adoption of a Rule to require that companies take gas ratably from all wells in the same common source of supply to which they are connected.”
Pursuant to such findings the Commission ordered:
“. . . That an investigation be and it is hereby instituted herein for the purpose of considering the adoption of a Rule to require companies to take gas ratably from all wells to which they are connected in the same common source of supply.”
Notice was duly published on December 5, 1959, in the Topeka Daily Capital and a copy of such notice was mailed to all interested parties. Pursuant thereto a hearing was conducted in which the interested parties entered an appearance to present evidence and arguments on the matter.
The Commission, recognizing that it was prompted to conduct the instant proceedings by its docket in the matter of Northern to show cause (Docket No. 60,740-C), in which considerable evidence was taken, ordered the testimony and exhibits in Docket No. 60,740-C incorporated and made a part of the record. Therefore, the facts upon which the rule was promulgated in the instant case are in all material respects identical and present the same issues as the companion “show cause” case.
As a result of the hearing the Commission found pursuant to its duty under G. S. 1949, 55-703, as amended, that it was necessary to promulgate and adopt a rule requiring all companies to take natural gas ratably from all wells within the same common source of supply to which each is connected, and by its order dated February 3, I960, adopted Rule 82-2-219, which reads:
“Ratable Production of Gas from Common Source of Supply.
“In each common source of supply under proration by this Commission, each purchaser shall take gas in proportion to the allowables from all the wells to which it is connected and shall maintain all such wells in substantially the same proportionate status as to overproduction or underproduction; provided, however, this rule shall not apply when a difference in proportionate status results from the inability of a well to produce proportionately with other wells connected to the purchaser (Authorized by G. S. 1959 Supp. 55-703; Effective February 8, I960).”
In promulgating such rule the Commission found it met the mandate of the statute and enabled the Commission “to regulate production of natural gas in such a manner as to require companies to produce ratably from all wells within the same common source of supply to which they are connected.”
The Commission’s general rules and regulations for the conservation of crude oil and natural gas were amended by adding Rule 82-2-219, and the Commission directed that its order and rule be filed with the Revisor of Statutes on February 8, 1960, at which date it was to be published and become official.
The contentions of the appellant are presented in its brief by what it denominates “Questions Involved.” They are as follows:
“I.
“Said order and the rule promulgated thereby, approved by the trial court, and each of the findings of fact therein purporting to be in support thereof are not supported by substantial, competent, relevant evidence, and are unauthorized by and contrary to the Kansas Statutes dealing with the production and conservation of natural gas, the basic proration order for the Kansas Hugo-ton Gas Field and Commission’s state-wide gas conservation rules and regulations.
“II.
“Said order and the rule promulgated thereby as approved by the trial court are arbitrary, unreasonable and discriminatory, have no relation to pro-ration or conservation of gas, burden interstate commerce and take appellant’s property and contract rights all in violation of the Commerce Clause, the Contract Clause and the Fourteenth Amendment to the Federal Constitution, and the Kansas Bill of Rights, Sections One, Two and Eighteen, and Section Seventeen, Article Two of the Kansas Constitution.
“HI.
“Said order and the rule promulgated thereby as approved by the Court under the evidence as applied to appellant violates the provisions of the Natural Gas Act (15 USCA, 717 et seq) and invades the jurisdiction of the Federal Power Commission thereunder.”
The foregoing contentions are identical with those advanced by Northern in the companion “show cause” case, No. 42,128, where they have been considered and answered by the court, upholding the power of the Kansas Corporation Commission to regulate the production of natural gas in such a manner as to require Northern to take gas ratably from all gas wells in the Kansas Hugo-ton Gas Field to which its lines were connected.
It follows that if the Commission has authority pursuant to G. S. 1949, 55-703, as amended, (now G. S. 1959 Supp., 55-703) to law fully issue such order with respect to one company, a fortiori, the Commission may lawfully promulgate and adopt a rule requiring all gas purchasing companies to take natural gas ratably from all wells' within the same common source of supply to which each is connected.
We therefore hold Rule No. 82-2-219 and the order promulgating it are valid and lawfully adopted pursuant to the power conferred upon the State Corporation Commission by the provisions of G. S. 1949, 55-703, as amended.
The judgment of the lower court is affirmed.
Schroeder, J., dissents.
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The opinion of the court was delivered by
Parker, C. J.:
This case stems from an action for damages for alleged malpractice on the part of a hospital. The appeal is from orders of the district court denying a motion to quash the service of summons and overruling a demurrer to the amended petition.
The facts necessary to present the issues may be stated briefly. On June 24, 1963, the plaintiff, Josephine Skeen, filed a petition for injuries alleged to. have occurred on July 3, 1961, of which she was fully aware on July 9, 1961. The allegations of the petition identifying the defendant read:
“. . . that the defendant, St. Joseph Hospital and Rehabilitation Center, is a Kansas Corporation and maintains its hospital and office and principal place of business in Wichita, Sedgwick County, Kansas, . . .”
The praecipe for summons, so far as here material, states:
“Issue Summons in the above entitled cause, returnable according to law and direct the same to the sheriff of Sedgwick County, State of Kansas, to or for the defendants St. Joseph Hospital and Rehabilitation Center, a Corporation, by serving Mother Mary Ann, Administrator, 3400 Grand, Wichita, Kansas . . .”
Summons was issued and served in accord with the request in the praecipe on June 26, 1963. A motion to quash the service of summons was filed July 23, 1963, and sustained on August 5, 1963. The court’s action with respect to the motion is reflected by a journal entry which reads:
“The defendant appeared specially and for no other reason whatsoever, contesting the jurisdiction of the court.
“The court having examined the file, being advised in the premises and hearing arguments of counsel pertaining to jurisdiction found that there exists no such corporation as St. Joseph Hospital and Rehabilitation Center and the Service of summons is void and of no force and effect.”
Plaintiff filed an amended petition on August 12, 1963, containing the same allegations as the original petition except “The Sisters of St. Joseph of Wichita, Kansas, a corporation,” was named as the defendant. An alias summons was issued and served on the newly designated defendant on August 19, 1963. A motion to quash the service of the alias summons was filed on September 11, 1963, and overruled on September 30, 1963. Subsequently, and on October 11, 1963, a demurrer was filed by the defendant attacking the petition on the ground that the action was barred by the statute of limitations. This demurrer was overruled on October 21, 1963. Thereupon the defendant perfected the instant appeal presenting the following points as grounds for reversal of the trial court’s rulings:
“(1) Alias process was not procedurally available to the appellee because the original summons had not been returned ‘Not Summoned’ as required by G. S. 1949, 60-2505.
“(2) The Statute of Limitations ran on this cause of action no later than July 9, 1963, and as of that date, no action had been commenced against this appellant.”
We shall first consider whether the statute of limitations ran on appellee’s cause of action as of July 9,1963. If so, the determination of that question will dispose of the entire controversy.
It would seem clear that a petition filed against one party defendant cannot be amended after the running of the statute of limitations to name an entirely new party as defendant.
The fact that the two year statute of limitations (G. S. 1949, 60-306, Third.) applies is not disputed. Since the injury occurred not later than July 9, 1961, the action must have been commenced on or before July 9, 1963. An action cannot be deemed commenced until a petition is filed (G. S. 1949, 60-301) naming a defendant upon which service of summons is to be had. (G. S. 1949, 60-308.)
Appellee contends that since she filed her original action on June 24, 1963, the amended petition filed August 12, 1963, which substituted “The Sisters of St. Joseph of Wichita, Kansas, a corporation” for “St. Joseph Hospital and Rehabilitation Center, a corporation” as defendant, related back to the original, petition preventing a bar by the statute of limitations. Appellant relies upon the case of Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P. 2d 847, where the name of the defendant was changed from “J. A. Tobin” to “J. E. Tobin.” In that case this court stated:
“There is nothing irregular about the correction of the name of the party to a lawsuit. In fact the court has a wide discretion in this matter and it has long been settled in this jurisdiction that such a correction or amendment relates back to the date of the filing of the original petition.” (p. 897.)
The above case, permitting the correction of the middle initial of a defendant, cannot be regarded as authority for amending a petition to add an entirely different named defendant.
This court has approved the general rule that where there is an amendment of a petition bringing in new parties defendant the statute of limitations continues to run in their favor until thus made parties. (Challis v. Hartloff, 133 Kan. 221, 223, 299 Pac. 586.)
The question now under consideration was before this court in Wyckoff v. Bennett, 191 Kan. 180, 380 P. 2d 332, where early decisions were reviewed as follows:
“. . . It is well settled in this state that G. S. 1949, 60-759 does not permit tire naming of another defendant after the statute of limitations has run as to plaintiff’s cause of action. This point was decided in the recent case of Logan-Moore Lumber Co. v. Black, 185 Kan. 644, 347 P. 2d 438, where it was held:
“ ‘It is clear that a pleading, though filed in time against one party under the foregoing statute, cannot be amended after the expiration of the statute of limitations to name another party as a defendant. (Anderson v. Railroad Co., 71 Kan. 453, 80 Pac. 946; Garrity v. Board of Administration, 99 Kan. 695, 162 Pac. 1167; Challis v. Hartloff, 133 Kan. 221, 299 Pac. 586; see, also, Garney v. Railroad Co., 112 Kan. 823, 212 Pac. 659; Lukens v. Bayne, 118 Kan. 547, 235 Pac. 841; and Commercial Nat’l Bank v. Tucker, 123 Kan. 214, 254 Pac. 1034.)’ (l. c. 651.)
“In Challis v. Hartloff, supra, it was said:
“ ‘The filing of a petition against A reciting facts which would authorize an action to be maintained against B will not toll the statute as to B, if he is not made a defendant until after the statute has run.’ (Syl. f 2.)
“In Challis v. Harloff, supra, it was said:
“ ‘The general rule is well settled that, where new parties defendant are brought in by amendment, the statute of limitations continues to run in their favor until thus made parties. The suit cannot be considered as having been commenced against them until they are made parties.’ (1. c. 223.)
“In Anderson v. Railroad Co., supra, it was held:
“ ‘In an action against a railroad company for permanently appropriating a street in front of plaintiff’s lots by laying its track therein, stopping his ingress and egress, damages were claimed as for a guasi-condemnation for the property by the wrongful use of the street. After the action had been pending for more than ten years plaintiff, by amendment, sought to bring in another railway company as defendant, charging it with conspiring with the first to appropriate the street. Held, that any recovery against the new defendant was barred by the statutes of limitations.’ ” (p. 185.)
Under the authority of the long line of decisions cited in Wyckoff v. Bennett, supra, and what is there stated and held, we are impelled to conclude there was such a dissimilarity in the named defendants that the amended petition did not relate back to the original and the cause of action against the defendant, “The Sisters of St. Joseph of Wichita, Kansas, a corporation,” was barred by the statute of limitations before it was ever named as a defendant in the action.
The judgment is reversed with instructions to sustain the demurrer to the amended petition.
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The opinion of the court was delivered by
Hatcher, C.:
This was an action to enforce specific performance of an agreement to exchange real property.
On October 11, 1961, Zoe J. and Mary L. Hollabaugh, husband and wife, entered into an agreement with C. W. and Lillian Hubbard Pickering, husband and wife, for the exchange of real properties. The contract read in part as follows:
“First parties agree that they will, by a warranty deed and bill of sale, convey to second parties the Cubana Apartment Building, including the business building upon the ground floor, . . . It is understood and agreed that the street address of said Cubana Apartment Building is 237 and 239 South Main Street in the City of Wichita, Sedgwick County, Kansas, and the exact legal description covering said property shall be used in the deed.
“Second parties agree to transfer to first parties approximately 221 acres, located in Section One (1), Township Nine (9), Range Seven (7) East, Pottawatomie County, Kansas, including water, shore and access easements to Tuttle Creek Dam and Reservoir and, including grantors and previous owners of said described real estate reversionary and preferred tenant rights growing out of and appertaining to the creation and erection of what is described as the Tuttle Creek Dam and Reservoir by the United States Government and any of its agencies or divisions. This being an approximate acreage of 221 acres, but it is understood and agreed that there may be a slight variation of more or less than the definite acreage of 221 acres, but this is definitely understood to be all the real property owned by second parties in the above described Section 1.
“It is further understood and agreed that should possession be taken before final approval of title that the mere taking thereof shall not release either party from meeting title requirements which may be reasonably required to perfect a merchantable title.”
It became apparent after a time that the defendants did not intend to comply with the agreement and an action was brought by the Pickerings to enforce specific performance.
We will be unable to supply any dates as the record sets out an amended petition, an answer, a reply, a stipulation and a motion for judgment without giving any dates as to when such instruments were filed or served.
The substance of the petition was to the effect that plaintiffs are ready, willing and able to comply with the terms of the contract but that defendants refused to execute a conveyance and abide by the terms of the agreement.
The answer denied that the plaintiffs had performed any of the conditions imposed upon them by the agreement and denied that they were able to perform. It was further alleged that the plaintiffs were guilty of laches in the prosecution of the action.
Tire reply was a general denial.
The parties entered into a stipulation, the material parts of which will be considered later.
The defendants then filed a motion for judgment on the pleadings and the stipulation for the reason that it was shown plaintiffs were unable to perform. The motion was overruled.
Zoe J. Hollabaugh died November 6, 1963, and his executor was substituted as a defendant in the action.
The case was Hied to the court which made findings of fact and conclusions of law and decreed specific performance of the contract.
Defendants have appealed.
Appellants first contend that the court erred in overruling their motion for judgment on the pleadings and stipulation.
Appellants support their contention with the argument that the appellees agreed to convey approximately 221 acres located in section 1 (more specifically described):
“. . . This being an approximate acreage of 221 acres, but it is understood and agreed that there may be a slight variation of more or less than the definite acreage of 221 acres, but this is definitely understood to be all the real property owned by second parties in. the above described Section 1.”
They further suggest that it was stipulated:
“Tire parties further stipulate and agree that the records of the County Clerk of Pottawatomie County indicate that C. W. Pickering and Lillian Hubbard Pickering, own lands in Section 1, Township 9 South, Range 7 East, and that said lands contain 172.78 acres.
“There is attached hereto Xerox copy of a letter written by Robert W. West, who estimates the acreage from the description only without actual survey, to be 199.25 acres.”
The appellants argue that the stipulation establishes the fact that the appellees were not in position to deliver the acreage covered by the agreement.
We are not informed on what ground the trial court overruled the motion for judgment. It must be assumed that it either felt that the stipulation as to the acreage was ambiguous or that the discrepancy in the acreage was immaterial at that stage of the proceeding. Either ground would have been valid.
The stipulation tended to confuse rather than make definite the amount of acreage. According to the stipulation the records of the county clerk indicate the Pickerings owned 172.78 acres in section 1, while the surveyor estimated the acreage, from the description only, to be 199.25 acres. The stipulation left much to be explained.
It may also be suggested that the phrases “approximate acreage of 221 acres” and “more or less” constituted words of description which merely served to identify the property owned by the appellees in section 1. The words were not a warranty of the acreage conveyed. The land could only be described accurately by metes and bounds because of the Tuttle Creek Reservoir. The scrivener was attempting to reach all of the appellees’ land in section 1.
We had the same question before us in Martin v. Ott, 114 Kan. 419, 219 Pac. 275. In the Martin case the land was conveyed as 'lots 1 and 2 in S. W. fractional quarter of 32-12-21 East, containing 65 acres more or less.” The farm in fact contained only 35.6 acres. It was held:
“A recital in a deed of conveyance describing the property, viz: ‘Lots 1 and 2 in S. W. fractional quarter of 32-12-21 East, containing 65 acres more or less/ merely serves to identify the property which is the subject of the grant, and is not a warranty of the acreage conveyed.” (Syl. 3.)
The same rule was announced in Brewer v. Schammerhorn, 183 Kan. 739, 332 P. 2d 526, at page 745 of the opinion:
“The words ‘more or less’ when used in a deed with reference to the description of the property are to be construed with reference to the particular circumstances involved. Generally they relieve a stated distance or quantity of the attribute of exactness. Further, such words generally indicate a sale in gross, unless the words are qualified or defined. Such words negative the idea of exact knowledge and import that the actual quantity is a mere approximation to that named, but allow for a reasonable excess or deficiency. (See Armstrong v. Brownfield, 32 Kan. 116, 4 Pac. 185; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589; Martin v. Ott, 114 Kan. 419, 219 Pac. 275; 1 A. L. R. 2d, § 30, p. 89; 26 C. J. S„ Deeds, § 102b, p. 892; 91 C. J. S., Vendor & Purchaser, § 93c, pp. 978, 979, and cases cited therein.)”
If there was any ambiguity because of the language used it was clarified by testimony covering the particular circumstances involved and presented in connection with other issues to be discussed.
The appellants next contend that evidence of statements made by Zoe J. Hollabaugh, now deceased, should have been excluded as hearsay. Zoe J. Hollabaugh died after the contract was made and before the case came to trial. During the trial C. W. Pickering, one of the appellees, was permitted to testify:
“We talked over the income of the Cubana Apartments and we talked over the income of the pasture and Mr. Hollabaugh said he was interested more in development of the Tuttle Creek property than in the pasture.”
The appellants contend that the testimony was hearsay. However, declarations against interest have always been one of the recognized exceptions to the hearsay rule. Admissions against interests are always admissible if otherwise competent and presented by a competent witness. G. S. 1949, 60-2804 which prohibited a person from testifying respecting transactions or communications had personally with a person since deceased was not incorporated into the new Code of Civil Procedure and has therefore been repealed. This was the only prohibition against a party to a transaction with a person since deceased testifying as to his statements or declarations. In Hurley v. Painter, 182 Kan. 731, 324 P. 2d 142, we stated at page 733 of the opinion:
“. . . Moreover, in the exhibit, Ellen by declaring that she had given all her property to her son disavowed her proprietary interest in the property. The note was therefore admissible under the well-recognized declaration against interest exception to the hearsay rule. In Mentzer v. Burlingame, 85 Kan. 641, 643, 118 Pac. 698, we said:
“ ‘The declarations of a deceased person made against his pecuniary or proprietary interest concerning facts within his knowledge which are material and relevant to the issue, are admissible in evidence ... (1 Ell. Ev. § 434 et seq.; 1 Greenl. Ev., 16th ed., §§ 147-149; 1 Wharton, Ev., § 226; 2 Wig. Ev. §§ 1455-1470.) The admissibility of the evidence rests upon the improbability that one will admit that which it is for his pecuniary interest to deny.’” (See, also, 31A C. J. S., Evidence §205, p. 575.)
Testimony such as we are now considering is specifically made admissible by the new Code of Civil Procedure. K. S. A. 60-460 provides in part as follows:
“Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
“(/) Declarations against interest.
Subject to the limitations of exception (f), a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest . . . that a reasonable man would not have made the statement unless he believed it to be true; . . .”
Appellants next contend that confidential communications between Zoe J. Hollabaugh and his attorney were improperly admitted in evidence and should have been excluded as privileged.
Mr. Walter F. McGinnis, an attorney residing at El Dorado, Kansas, prepared the contract in controversy. He testified that he did not know whether it was Mr. Zoe J. Hollabaugh or his broker that first talked to him, it was very possible the broker. He was not sure who gave him tibe information that went into the contract. The testimony to which the objection is addressed was summarized as follows:
“There’s a provision in the contract that the acreage was approximately 220 acres but it was understood and agreed that there would be slight variation either more or less. It was definitely understood that it was to be all of the real estate owned by the second party in Section 1. It was talked to me in my presence that they couldn’t set the exact number of acres. They had no way of knowing at that time as I understood it. They said put it in there some way so there could be a variation and that is the reason it is that way.
“The reason for the variation was due to the number of acres in the government easements. . . .”
We find nothing in the record to indicate a confidential communication. It would appear that the attorney was acting as a mere scrivener in drafting the contract. There was no basis for applying the lawyer client privilege as that rule is announced in K. S. A. 60-426. In Cunningham v. Cunningham, 107 Kan. 318, 191 Pac. 294, we stated at page 323 of the opinion:
“One of the contentions urged by the plaintiffs is that the testimony concerning communications between the attorney and client was incompetent under section 321 of the civil code (Gen. Stat. 1915, § 7223). We think the objections to his testimony and the motion made to strike out were properly overruled. In addition to the fact that many of the things the attorney testified to were corroborated by other testimony, it has been decided that an attorney who acts as a scrivener in the preparation of a contract regarding property or in the drawing of a will may testify to communications with the deceased at the time the deed or will was prepared or executed, because under such circumstances the communications are not privileged. (Black v. Funk, 93 Kan. 60, 143 Pac. 426; Sparks v. Sparks, 51 Kan. 195, 32 Pac. 892; Lumber Co. v. Cox, 94 Kan. 563, 566, 147 Pac. 67; 4 Wigmore on Evidence, § 2297.)
“In Durant v. Whitcher, 97 Kan. 603, 156 Pac. 739, the rule was applied that ‘in an action to set aside a will the lawyer who drew it may testify to the conversation had at the time between himself and the testator’ (syl. ¶ 1), and also that the scrivener and subscribing witnesses of a will are competent witnesses as to the mental condition of the testator.”
In Cranston v. Stewart, 184 Kan. 99, 334 P. 2d 337, we held:
“In order for a communication from a client to his attorney to be confidential and to impose upon the attorney the duty of not disclosing the same it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure.
“Where an attorney serves merely as a scrivener to draft and put in legal form a contract for the transfer of title to real estate, communications concerning the drafting of the contract or the contract itself are not privileged.” (Syl. 2 and 3. See, also, Hutton v. Hutton, 184 Kan. 560, 337 P. 2d 635.)
It is contended that evidence varying the terms of the written contract should have been excluded as a violation of the parole evidence rule. Appellants state:
“As previously noted, the parties’ written contract provided for the exchange of approximately 221 acres located in section 1 for the Cubana Apartments. Appellees’ amendment at the close of their evidence would vary this written agreement by including land located in section 2 and varying the number of acres from approximately 221 acres to ‘the particular piece of ground that was pointed out to him’ which was to be exchanged for the Cubana Apartments.”
The evidence clearly disclosed that there had been a mutual mistake in the description of the land. The description covered only the land in section 1. There was also approximately 27 acres of adjoining land in section 2 which was intended to be conveyed. When this situation was called to the attention of a court of equity it was its responsibility to correct the mutual mistake before decreeing specific performance. The addition of the 27 acres from section 2 resulted in appellants’ benefit. They are hardly in position to claim prejudicial error.
The appellants contend that there was no substantial evidence to support the trial court’s findings of fact and conclusions of law; that appellants’ motion for directed verdict should have been sustained, and that there was no substantial evidence to support the judgment.
The reasonable limits of a judicial opinion will not permit a review of all the findings and the evidence to support them.
Appellants’ specific complaint is, first, it was impossible for appellees to perform their obligations under the contract because of acreage shortage and second, appellees made no tender of performance.
The court found the facts and concluded:
“The court concludes as a matter of law that there was error in the legal description of the plaintiffs’ land in the contract and also in the stipulation entered into between the parties prior to trial; that said error consisted of 27 acres of said land being situated in a different Section than the balance of said land.
“. . . the parties were dealing' at arm’s length; that the defendants had pointed out to them all of said land, and that, whether or not it was all lying in one Section or two Sections, the defendants'knew what they were purchasing, and that the failure of the proper description did not void the contract.
"... if the error did exist it was the fault of the defendants in that the defendants had the contract prepared by the attorney, Walter McGinnis.
“. . . the motion of the plaintiffs at the conclusion of the evidence to amend to conform to said evidence, which the court sustained, any error as to the description of the property or the amount of acreage was corrected at the time of trial.
“. . . the plaintiffs, after ascertaining that the defendants did not intend to comply with their part of the contract, were relieved of further obligating themselves in obtaining release of the mortgages, extending their abstract of title, or having the survey of their land completed. (The law will not require one to do an act which is useless.)
“. . . that there is no fault on the part of the plaintiffs; that they did everything reasonable and legal that they could do to comply with the terms of the contract, but, to the contrary, the defendants failed to comply therewith, and all the fault lies with the defendants.”
There was substantial competent evidence to support the basic findings and conclusions material to the determination of the issues.
The appellants’ chief complaint stems from their error in construing the words approximately 221 acres more or less to be words of guarantee rather than description.
We have carefully considered the record, reviewed the contentions of appellants and find no trial errors which would justify the granting of a new trial.
Judgment is affirmed.
approved by the court.
Wertz, J., not participating.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order denying defendant’s motion to dismiss an action, or in the alternative to stay its prosecution, because of a prior pending action in the United States District Court for the District of Kansas, involving the same parties and the same controversy.
The procedural facts may be briefly stated.
On or about February 6, 1959, the defendant, Grain Dealers Mutual Insurance Company of Indianapolis, Indiana, issued its five-year policy of insurance to the plaintiff, The Farmers Union Cooperative Elevator and Shipping Association, Kirwin, Kansas, insuring it against loss or damage to its elevator caused, among other things, by an explosion. An explosion was defined in the policy as the rapid combustion of a volatile or combustible substance.
On August 15, 1962, the plaintiff sustained a loss by virtue of the rupture of one of its elevator bins. Thereafter, on or about June 3, 1963, plaintiff filed an action in the district court of Phillips County, Kansas, against the insurance company in the sum of $10,500 alleging the rupture of its elevator was caused by an explosion. Whereupon defendant took appropriate and timely steps and secured the removal of the action to the United States District Court for the District of Kansas. After removal the action was dismissed by the plaintiff without prejudice pursuant to Rule 41 (a) (1) of the Federal Rules of Civil Procedure.
The defendant then filed a declaratory judgment action in the United States District Court for the District of Kansas on July 2, 1963, seeking a determination that it was not liable under its policy of insurance to the plaintiff for the events occurring on August 15, 1962. On July 5, 1963, plaintiff refiled its action against defendant in the district court of Phillips County, Kansas in the sum of $9,500. After the declaratory judgment action was commenced in the United States District Court for the District of Kansas the plaintiff filed its motion to dismiss the action on the ground, among others, that it had commenced the state court action to determine the same controversy between the same parties. In overruling the motion to dismiss the federal court action on September 11, 1963, the United States District Court found “the ends of justice would be better served in this Court.”
Defendant filed its motion in the state court to dismiss plaintiff’s action on the grounds of the prior pending action in the federal court involving the same parties and the same controversy. On September 16, 1963, the state court overruled defendant’s motion.
Defendant then filed a renewal of its motion to dismiss because of the prior pending action or, in the alternative, requested a stay of prosecution of the action. On October 23, 1963, the defendant’s renewed motion was denied. The court then gave the defendant 10 days in which to file its answer or file a notice of appeal. In case of appeal the proceedings were to be stayed. The defendant has appealed.
The appellant asks the question, “does a motion to dismiss lie where a prior pending action between the same parties all in the same cause is pending in the United States District Court for the District of Kansas, . . .?”
The answer is that a motion to dismiss under such circumstances does not lie as a matter of right. The federal and state courts that have concurrent jurisdiction over civil actions are to be considered as courts of separate jurisdictional sovereignties and the pendency of a personal action in either a state or federal court does not entitle the defendant to abatement of a like action in the other. This rule has been well settled. It is announced in 1 C. J. S., Abatement and Revival, § 67 a, p. 101:
“As a general rule, the pendency in a federal court of a personal or transitory action, although between the same parties and for the same cause of action or relief, is not ground for abating a subsequent action in a state court, and, conversely, the pendency of such an action in a state court cannot be pleaded in abatement of a subsequent similar action in a federal court; for the reason that each court derives its authority from a separate and distinct sovereignty. . . .”
Again under the same section at page 103 we find the additional statement:
“Even though both courts have the same territorial jurisdiction, that is they both sit in the same state, and the state court is within the district covered by the jurisdiction of the federal court, by the weight of authority, they belong to foreign jurisdictions in that each derives its authority from a different sovereignty, and the pendency of a prior action, between the same parties for the same cause of action, in either the state or federal court cannot be pleaded in abatement of a subsequent action in the other. . . (See; also, 1 Am. Jur. 2d, Abatement, Survival, and Revival, § 18, p. 58.)
Where the judgment sought in a federal and in a state court of concurrent jurisdiction is strictly in personam for the recovery of money both courts may proceed with the litigation, at least until judgment is obtained in one court which may be set up as res judicata in the other. (Mandeville v. Canterbury, 318 U. S. 47, 87 L. ed. 605, 63 S. Ct. 472.) The recent case of Allegheny County v. Mashuda Co., 360 U. S. 185, 3 L. ed. 2d 1163, 79 S. Ct. 1060 fully disposed of the question beginning on page 197 of the opinion as follows:
“. . . But it has been firmly established under the language of § 2283, which has, in substance, been in force since first enacted in § 5 of the Act of March 2, 1793, that a federal suit is not barred merely because a holding in the case might be res judicata on the same parties litigating the same issue in a state court and thereby moot the state proceeding. Kline v. Burke Construction Co., 260 U. S. 226, settled the governing principle. In that case diversity jurisdiction had been invoked to adjudicate an alleged breach of contract. The defendant in the federal court proceeding had initiated a suit in a state court to adjudicate the same issue. The Court of Appeals ruled that the Federal District Court should have issued a requested injunction to stay the state court proceedings. This Court held that a statute similar to present § 2283 barred the injunction, but that the District Court could adjudicate the breach of contract issue even though its holding would be decisive of the state case. The Court stated that “the rule . . . has become generally established that where the action first brought is in personam and seeks only a personal judgment, another action for the same cause in another jurisdiction is not precluded.” 260 U. S. at 230. Congress in enacting § 2283 expressed no intention to modify this firmly established principle. Thus there is no reason to expand the plain wording of § 2283 which bars only injunctions designed to stay state court proceedings. The respondents’ suit in the District Court was for a judgment of ouster. They abandoned the claim for an injunction against the state court and against the County. It follows that § 2283 would not bar the relief requested in the District Court.”
We agree with the appellant that the recognition of the rule of comity between courts of concurrent jurisdiction is most beneficial. The rule rests upon the principle of wisdom and justice, to prevent vexation, oppression and harassment, and eliminate unecessary litigation and multiplicity of suits. A state court should exercise its discretion with care in refusing to stay the prosecution of an action where a prior action has been filed in the federal district court between the same parties, involving the same issues, and capable of authorizing the same relief. However, a consideration of the facts in this case discloses no abuse of discretion.
The defendant states in its brief that being advised of the intention of the plaintiff to prosecute its alleged claim under the policy in the state court, the defendant filed a declaratory judgment action in the federal district court. It might be suggested that the defendant knew that if the plaintiff filed an action in the state court for a sum in excess of $10,000 that it could remove the case to the federal court and but one case would be pending. It might also be suggested that the defendant knew that if the plaintiff filed suit against it in the state court for a sum less than $10,000 that the plaintiff would be bound by the amount of damages alleged and the federal court would be without jurisdiction.
The defendant by its action is seeking a declaratory judgment in the federal court on the question of whether or not it was liable to the plaintiff under its insurance policy. This presented purely a question of fact, i. e., what caused the bin to rupture? Once this question was determined there would still be left for determination the additional factual question of the amount of damages if the defendant were found to be liable under the policy. This court has long adhered to tie rule that the purpose of the declaratory judgment act is to adjudicate questions of law and not questions of fact. A declaratory judgment action cannot be prosecuted in this state where tire object of the proceedings is to try a question of fact as a determining issue. The question was fully covered in the recent case of Alliance Mutual Casualty Co. v. Bailey, 191 Kan. 192, 380 P. 2d 413, where it is stated beginning at page 200 of the opinion:
“. . . A proceeding for a declaratory judgment cannot be used where the object of the proceeding is to try issues of fact as the determinative issue. A declaratory judgment proceeding may be maintained although such proceeding involves the determination of questions of fact. This is anticipated by the declaratory judgment act. (G. S. 1949, 60-3130.) However, the questions of fact must be incidental to the determination of the main issue and not the main issue in the case. As the issues developed in this action, the factual questions of constructive fraud and mutual mistake where the determinative issues presented. These issues presented questions of fact which were seriously disputed.
“The last rule stated appears to be one of very general application. In the case of Ennis v. Casey, 72 Idaho 181, 238 P. 2d 435, 28 A. L. R. 2d 952, we find the following statement:
“ ‘While it has been held that a declaratory judgment proceedings may be maintained, although such proceedings involve the determination of a disputed question of fact, Hamilton Corporation v. Corum, 218 Cal. 92, 21 P. 2d 413; Sec. 10-1209, I. C., it cannot be used where the object of the proceedings is to try such fact as a determinative issue, 1 C. J. S., Actions, p. 1031, § 18, and a declaratory judgment should be refused where the questions presented should be tire subject of judicial investigation in a regular action. Heller v. Chapiro, 208 Wis. 310, 242 N. W. 174, 87 A. L. R. 1201; Oldham County ex rel. Woodridge v. Arvin, 244 Ky. 551, 51 S. W. 2d 657.’ (p. 185.)
“The primary purpose of the declaratory judgment act is to adjudicate questions of law not questions of fact.”
A district court of this state should be slow in denying its jurisdiction to a citizen of this state in order to permit a prosecution under a procedure which has been repudiated by this court.
Neither do we find anything in the record to refute the trial court’s conclusion that the matter could be tried more expeditiously in the state court. We are, therefore, forced to conclude that the trial court did not abuse its discretion in refusing to enjoin the prosecution of the action in the district court of the state.
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 an action based on fraud wherein the plaintiffs recovered a jury verdict in the sum of $416.75 actual damages and $1,500 punitive damages. Judgment was entered on the verdict and an appeal was duly perfected.
The primary question to be determined is whether the evidence supports the verdict.
Willard C. Reeder and Joyce Reeder (plaintifEs-appellees) brought this action in the district court of Wyandotte County, Kansas, on the ground that they were fraudulently induced to purchase a deepfreeze unit and a food plan from Guaranteed Foods, Inc. (defendant-appellant).
The petition alleged that on or about the 10th day of October, 1960, the appellant, acting by and through its duly authorized agents, servants and employees, contacted the appellees and by false and fraudulent representations induced the appellees to purchase from the appellant an eighteen-foot deepfreeze unit for which the appellees gave a promissory note in the amount of $869 payable in equal monthly installments of $28.99 until paid. It alleged the appellant represented to the appellees that anyone who purchased the deepfreeze unit and food from the appellant was entitled to membership in the appellant’s food plan; that members of the food plan were eligible to purchase their groceries from the appellant at prices lower than they could be purchased at chain stores such as Kroger, Safeway and A & P stores; that membership in the food plan and purchases from the food plan in the amounts and quantities which the appellees had been in the custom of purchasing to meet their needs, would result in monthly savings to the appellees in an amount which would equal the monthly payments on the deepfreeze unit; and the appellant represented that the retail value of the deepfreeze unit was $686.75.
The petition further alleged that the representations were believed to be true and relied upon to the detriment of the appellees; that said representations were false and fraudulent and known by the appellant to be false and fraudulent; that such statements were intentionally made by the appellant to induce the appellees to purchase the deepfreeze unit and for the purpose of inducing the appellees to execute the promissory note, whereupon the appellees alleged they were damaged and prayed actual damages in the sum of $416.75 and punitive damages in the sum of $2,500.
Upon joinder of issues the case was tried and the only witness who testified for the appellees was Willard C. Reeder, one of the appellees. Joyce Reeder, the wife, was called and testified as a witness for the appellant, among other witnesses called by the appellant in defense of the action.
The rule in this state is that one who asserts fraud, in an action such as this, has the burden of proving it by a preponderance of the evidence; that such evidence should be clear, convincing and satisfactory; and it does not devolve upon the party charged with committing the fraud to prove that the transaction was honest and bona fide. (Wyatt v. Taylor, 166 Kan. 453, 457, 201 P. 2d 647; and Jones v. Coate, 180 Kan. 597, 306 P. 2d 148.)
Our review of the evidence will be made to determine whether there is clear, convincing and satisfactory evidence to support a finding that actionable fraud had been committed by the appellant.
The appellees’ evidence established that they were man and wife and had a family consisting of themselves and two minor children. Mr. Reeder was a college graduate with a responsible semi-executive position at Hallmark Cards, Inc., at Kansas City, Missouri. He is an administrative assistant in the building director’s office, with a degree in business administration.
On October 15, 17 and 19, 1960, the appellees were visited at their home by a salesman of the appellant, who explained a food freezer plan to the couple, and informed them that the appellant operated a wholesale grocery business in Kansas City, Kansas, selling in conjunction therewith deep freezers.
The plan as initially proposed by the salesman was that a deep-freeze unit could be purchased from the appellant, along with meats and foodstuffs at special prices, generally cheaper than could be purchased at supermarkets.
On the 19th day of October, 1960, after having examined a true copy of the promissory note and chattel mortgage to be signed by them, sample copies having been left with them on a previous trip by the salesman, the appellees signed the contract and entered into the plan.
Mr. Reeder testified that he insisted everything be put in writing.
The written order form signed by the parties, and dated October 20, 1960, discloses that Willard C. Reeder ordered an eighteen cubic foot freezer for a total cash sale price of $686.75. Immediately below this entry on the form it reads:
“The following services are extended to Guaranteed Foods, Inc. freezer customers at no cost and no additional charge has been or will be made.
“Food Spoilage Insurance * ................................ Included
“2 Year Free Service (Unlimited) .......................... Included
“5 Year Compressor Warranty * ............................ Included
“Unlimited Meal Planning and Processing Instruction.......... Included
“Guaranteed Foods Home Training ......................... Included
“Life Time Membership .................................. Included
“Membership Guarantees the Privilege of Continued Repurchasing of Food at Prevailing Quantity Prices.” i
Also included on this order form is the following:
“All Food
“Unconditionally Guaranteed
“This order includes: Food Supply No. _ payable at the rate of $17.35 per week which includes all carrying charges.
"The Freezer Payments are at the rate of $6.83 per week, which includes all carrying charges as more fully set forth in the chattel mortgage agreement to be executed.”
The following also appears on the order form:
“This order together with a chattel mortgage to be executed, constitutes the entire understanding and is not subject to written or verbal alteration except as provided therein and no other agreement, representation or understanding has been made, entered into or will be recognized.
“this merchandise was not bought on trial or approval.”
At the bottom of the form appear the following entries:
“Your Approximate Weekly Cost for The Food and Freezer is $24.18.
“You Previously Were Spending Approximately $25.00 Per Week for Our Type of Foods alone.
“Your Monthly Cost for The Freezer is $28.99 Starting Nov. 20 for 30 Mo.
“Your Approximate Monthly Cost for Food is $73.75 Starting Nov. 20 for 4 Mo.”
The chattel mortgage on a form entitled “Kansas Retail Instalment Contract” was dated October 25, 1960, and indicates Willard C. Reeder was the buyer and Guaranteed Foods, Inc. the seller. The goods are described as a Zenith freezer, giving the model and serial numbers, and it sets forth a cash sale price of $686.75 with a total down payment of $16.75. To the difference of $670 was added insurance cost of $21.75, making a principal balance of $691.75. The finance charge was $177.95, making a total time balance of $869.70. The time sale price was $886.45.
The installment contract discloses the above time balance was payable in thirty successive monthly installments of $28.99 each, with the first installment due on November 20, 1960. The contract was signed by the parties and a promissory note attached at the bottom of the retail installment contract, also dated October 25, 1960, was executed by Willard C. Reeder and Joyce Reeder to cover payments in accordance with the terms of the contract.
On the reverse side of the promissory note is an endorsement of the note to Murphy Finance Company of Kansas City, Kansas, dated October 29,1960.
While the ultimate question to be determined by this court is relatively simple; it is necessary to consider the evidence and go through a process of elimination to properly present the case.
Mr. Reeder testified:
“No, we didn’t sign anything that evening. I told Mr. Mulloy that what he said — his proposition — could have some merit and we wanted to think about it, and we wanted to do some checking, and Mr. Mulloy bid us good night and we advised him that if we would be interested further, we would call him.
“And did the salesman come back?
“Yes, sir, he did.
“At that time, was there further discussion between you and this corporation salesman?
“Yes, sir, we again stated that we wanted to be sure that we understood the proposition that this was certainly a benefit; we understood that food would be delivered to our home, which would be a convenience. We understood that food would be sold to us at a discount of around 28 percent — it works out to that effect — and we wanted to make sure that we understood correctly regarding these matters, and we wanted to make sure we had these matters in writing because this was pertinent to us as far as this particular proposition was concerned. Otherwise, we are very well satisfied with the type of food that we were eating. We were very well satisfied with our diet, and we had no desire to change it.”
Mr. Reeder testified the agent of the appellant stated the value of the freezer was $686.75 as indicated by the document, and based upon the representations of the appellant he signed a promissory note form which was attached to the Kansas Retail Instalment Contract, which he also signed.
He testified he was interested in the plan proposed by the agent of the appellant from the standpoint of omitting certain marketing and distribution costs by selling food direct from the appellant to the customer, and at the same time give the customer a good quality merchandise at a lower price. He said the agent did point out that in order to make this type of thing work they would have to have a place to store food, such as a basement where shelving could be built, and that they would need a freezer in order to receive and store the frozen products that where available today from the appellant’s firm.
Mr. Reeder testified he and his wife kept records of the'amounts spent for food over the past several years and they knew what kinds of food they bought. Eased upon these figures he was able to tell the appellant’s salesman what was spent from month to month and year to year, and at the particular time the deepfreeze was purchased they were spending on an average $140 to $150 per month for all of the food they used.
Mr. Reeder told the appellant salesman they had been spending around $100 per month for the type of foods the appellant was selling; that is, meats, canned goods and staples. He testified the appellant’s agent represented he could sell them similar merchandise for $73.75 per month. He said the appellant’s agent told him about the additional benefits enumerated on the order form which he would receive by reason of buying the appellant’s food.
The appellant’s food plan called for the purchase of foods in quantity to cover a period of four months, and deliveries on $100 orders or more were made free of charge. There is testimony the appellant’s salesman agreed he would personally make deliveries on smaller orders without charge to them.
After the purchase of the deepfreeze unit the appellees placed only three orders for merchandise with the appellant. The first order was on October 21, 1960, for $139.44. This produce was delivered on the 27th day of October. The second order was placed on November 15, 1960, for $17.40, and the third and final order placed on or about December 15, 1960, in the amount of $11.40.
Mr. Reeder testified he was satisfied with the quality of the food; that a home economist was sent to their home by the appellant; and that upon inquiry by the home economist as to whether the appellees had been coerced into going into the agreement or whether they had been high-pressured into the contract, Mr. Reeder answered in the negative. Sometime after December 15, 1960, when the third order for merchandise was made, Mr. Reeder went to various stores and looked at freezers, called freezer dealers, looked at literature and catalogs, and found a comparable freezer, in his opinion, could be purchased for $250. Thereupon, in March, 1961, Mr. Reeder informed the appellant they were dissatisfied with the plan, and in reply, Mr. Reeder said, an agent of the appellant informed him he had purchased the deepfreeze unit for $686.75 and he was stuck with it.
Mr. Reeder then testified between April 28 and May 28, 1962, he made a detailed study of their grocery buying and compared 1962 supermarket prices with the appellant’s 1960 prices which show that instead of being able to save about 28 percent, they in fact were only saving 2M percent on the purchase of their groceries.
On cross examination Mr. Reeder admitted the appellant’s agent went into detail on the benefits of what the Guaranteed Foods plan was, and what he would receive under it; that such benefits were set out in wilting in the contract. He further stated on cross examination the deepfreeze unit purchased was a good quality freezer, just the recommended type, and was a good unit fully guaranteed; that he shopped around for other household items before purchasing from the appellant and compared prices with the prices of food purchased from the appellant. He testified he did not go out and check the prices of other freezers at the time he bought the freezer from the appellant; that he was not to pay for the freezer out of his funds; that he was supposed to pay for it out of savings that he would make on food.
Mr. Reeder further testified on cross examination he could not save 28 percent or make a $29 freezer payment from his savings. He admitted, however, that he made only three orders in six weeks and did not follow the contract plan of a four-month order.
Mr. Reeder on cross examination also admitted that a price list was furnished by the appellant’s agent to him prior to the purchase of the deepfreeze unit which was complete except for the prices of meat. After using this price sheet to check against supermarket prices as compared to the appellant’s prices, Mr. Reeder then called the appellant’s salesman to return to his home for the third time when the contract was consummated. Mr. Reeder stated he knew that prices would vary and change from time to time.
It was in the latter part of January, 1961, that Mr. Reeder first contacted the appellant and stated he was dissatisfied with the plan.
Mr. Reeder further testified on cross examination that he could not buy food at the prices indicated on the price list he had first received and had shopped around with. On re-cross examination, however, Mr. Reeder admitted the price list furnished him had nothing to do with his taking out or purchasing the plan.
On cross examination Mr. Reeder stated that in the early part of January, 1961, a representative from the appellant came out to see them and interviewed the wife, at which time the wife signed an affidavit and made a report to the appellant’s home economist who talked to Mrs. Reeder about how to use the freezer, use of leftovers and beneficial use in buying, in particular, sale items. He admitted there was a second report made to the appellant by his wife when he was not present. In this second “Home Economist Report” signed by Mrs. Reeder, dated January 4, 1961, and admitted into evidence, Mrs. Reeder answered questions on the form as follows:
“Complaint None.
“Remakes — Food Everything real good. Meat real good.
“Remakes for Office Using Freezer. Real happy with Everything.”
On the reverse side of the form which was entirely blank Mrs. Reeder volunteered the following statement:
“Since using the freezer, I have hardly missed a day baking or cooking. The freezer was especially helpful over Christmas for advanced preparation for company for meals and visitors.
Mrs. Willard C. Reeder”
On cross examination Mr. Reeder admitted it was in the summer, approximately July and August, 1961, that he went to Montgomery Ward and General Electric in the Fairfax District, and called several appliance dealers, and by looking in Sears’ and Ward’s catalogs he determined in his own mind the freezer’s value to be fixed at $250. He also admitted he had the Montgomery Ward and the Sears Roebuck catalogs in his house at the time he entered into the contract in question.
Mrs. Reeder, called as a witness by the appellant, said the figures quoted by the appellant’s agent were on a four-month purchase order basis, and that she understood the appellant would not make deliveries on orders under $100 without charge, but she expected the salesman to make the deliveries. She said by January 4, 1961, she and her husband had not made up their minds if the plan would operate for them.
Testimony of other witnesses called by the appellant did not add anything to the appellees’ case.
The appellees’ theory of the case is best summed up by the following excerpt from their counter abstract as follows:
“Mr. Reeder understood he was paying $686.75 which represented the value of the freezer and that the other benefits were free and were not included in the value of the freezer.
“Mr. Reeder did not go out and check the value of freezers during the period of time Mr. Mulloy came back on three occasions because he was more interested in what he could save on buying food from Guaranteed Foods; and, in any event, what he would save would pay for the freezer.
“It was not Mr. Reeder’s understanding he had to buy four months groceries at a time from the defendant.”
It has recently been held a verdict cannot be upset if there is any evidence in the record to support it, where such issue is clearly presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross examination of the party. (Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305, Syl. ¶ 2.)
In this action the appellees seek to rely upon the representation that food would be sold to them by the appellant at a discount of around 28 percent, and based upon such savings the freezer payments could be made. Under this theory the actual overall cost of the freezer was immaterial to them, although they now assert on appeal another theory with regard to the freezer, hereafter to be considered.
It is apparent Mr. Reeder understood the savings on food purchased was not a 28 percent discount based upon the retail price of groceries which they had previously been paying at other food stores. This is indicated when he said, “We understood that food would be sold to us at a discount of around 28 percent — it works out to that effect.” (Emphasis added.) He further realized that storage facilities would have to be constructed in his basement to store the food purchased in large quantities, and that a deepfreeze would have to be installed to store frozen foods. The written order form executed by Mr. Reeder set forth in writing the monthly cost of food starting November 20,1960, for a four-month period. It was in writing as he demanded. Thus, the evidence establishes that it was necessary to purchase food in large quantities from the appellant in order to effect substantial savings in the purchase. Instead of paying the supermarkets for the storage of food, the storage facilities would be in his own home, thus avoiding the storage and packaging costs.
Further admissions by the appellees indicate the conclusion upon which they seek to rely in this lawsuit is not substantiated by the evidence. In the first place, they had not given the food plan a fair chance to operate in that no quantity purchase pursuant to the plan for a period of four months had been made. Only one purchase amounting to more than $100 was made and this was the 20th day of October, 1960, the day after they agreed to purchase the deepfreeze unit. The evidence discloses this purchase was made up largely of meat. There is no evidence to indicate how long this supply lasted except the voluntary statement made by Mrs. Reeder in her second report to the appellant wherein she admitted the freezer was especially helpful during the Christmas holidays of 1960 for the advanced preparation of meals for visitors.
Both Mr. and Mrs. Reeder checked comparable food prices from the appellant’s price list with other supermarkets prior to calling the appellant’s salesman back to their home for a third time, and yet when they charge that the prices indicated on such price list were misleading, they are confronted with another admission of Mr. Reeder to the effect that they did not rely upon the price list furnished in taking out or purchasing the plan.
Three weeks after the last small purchase of food was made from the appellant, Mrs. Reeder in her second courtesy report had no complaint and was “Real happy with Everything.” Her only explanation for this statement was that “confusion reigned in the home” at the time she filled out the courtesy reports.
When the foregoing admissions are considered, together with other evidence in the record, it is apparent the appellees have not sustained the burden of proof by clear, convincing and satisfactory evidence as to false and fraudulent representations concerning savings on the purchase of foods from the appellant as the basis of an action for fraud.
On appeal the appellees contend they purchased a freezer which was represented to them as having a value of $686.75, and were told that the savings they would realize from buying groceries from the appellant would pay for the freezer. Later the appellees discovered that the freezer had no such value as represented and they were saving considerably less than represented.
Having failed to sustain the burden of proof with respect to fraudulent representations concerning the savings on the purchase of food, the appellees are left with the naked proposition that they purchased a deepfreeze which was falsely represented to them as having a value of $686.75, and that they later discovered the freezer had no such value.
It is the appellant’s position that the appellees purchased a “package deal” or that they purchased a “freezer-food plan;” that the food membership plan was worth $300, and the appellees knew they were paying this. The appellant points to the order form which discloses freezer customers at no cost and no additional charge received numerous services specifically set forth in writing.
The actual damages sought by the appellees in their petition represent the difference between the actual value of the freezer (in Mr. Reeder’s opinion $250) and the contract price of the freezer ($686.75). Actually, this figures $436.75, but the prayer in the petition requests only $416.75.
The jury returned a verdict for the full amount of $416.75 actual damages upon a special finding that the $686.75 to be paid by the appellees pursuant to the contract was for a deepfreeze only.
The simple answer to this question is found in the Kansas law. Where one party to a contract or transaction has superior knowledge, or knowledge which is not within the fair and reasonable reach of the other party and which he could not discover by the exercise of reasonable diligence, or means of knowledge which are not open to both parties alike, he is under a legal obligation to speak, and his silence constitutes fraud, especially when the other party relies upon him to communicate to him the true state of facts to enable him to judge of the expedience of the bargain. (Jenkins v. McCormick, 184 Kan. 842, 339 P. 2d 8.)
Conversely, an action for damages on the ground of fraud cannot ordinarily be based on representations of value, or of the price paid for the property by the seller, where there is no relation of confidence between the parties, and the property is subject to full inspection by the purchaser. (Elerick v. Reid, 54 Kan. 579, 38 Pac. 814, Syl. ¶1.)
In the opinion of the Elerick case the court said:
“. . . Ordinarily, where the goods are open to the inspection of the buyer, he is presumed to be as competent to judge of their value as the seller. ‘Venditor vendit quam máximo potest emptor emit quam mínimo potest,’ is the maxim of the law stating the usual and permissible course of dealing, where there is no fraud or relation of trust or confidence. On the one hand, it is held to be permissible for the seller to puff and extol the commodity, and on the other, for the buyer to disparage and detract. However wrong in morals it may be for either party to express anything other than an honest opinion, the courts deem it the wiser and better rule to require each party to a trade to rely on his own judgment rather than to be permitted, after having made a bad bargain, to come into court on the claim that he relied on the judgment and opinion expressed by the adverse party.” (pp. 581, 582.)
In the instant case a deepfreeze unit was the subject of purchase. This is an appliance readily available on the market from various stores selling household appliances.
Mr Reeder had no difficulty in determining what he considered to be the reasonable market value of the freezer by checking with various appliance stores, including the Montgomery Ward and Sears Roebuck catalogs which he had in his home prior to the purchase. Had Mr. Reeder been interested in the value of the deepfreeze prior to making the purchase, he could readily have ascertained its value just as he did after the purchase was made. There was no relationship of confidence between the agent of the appellant and the appellees concerning the transaction in question. It therefore follows that a representation of the value of the deep- freeze unit in the instant case did not constitute actionable fraud, and evidence tending to support such charge is insufficient to sustain the burden of proof in an action based upon fraud.
Not having sustained the burden of proof to establish actual damages in this case, the appellees cannot recover punitive damages. Before exemplary or punitive damages may be awarded, the party upon whom the burden of proof is cast must establish actual damages and the right to recover therefor. (Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999; Schumock v. Meerian, 175 Kan. 8, 259 P. 2d 173; and Watkins v. Layton, 182 Kan. 702, 324 P. 2d 130.) Other rules concerning exemplary or punitive damages may be found in Watkins v. Layton, supra; Jensen v. Sierra Petroleum Co., 189 Kan. 472, 370 P. 2d 425; and Kohler v. Kansas Power & Light Co., 192 Kan. 226, 387 P. 2d 149.
Upon the foregoing reasons we hold the lower court erred in its failure to sustain a motion for a directed verdict, and in entering judgment upon the verdict.
The judgment of the lower court is reversed.
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The opinion of he court was delivered by
Hatcher, C.:
This is an appeal from a judgment of a district court reversing an order of a probate court. The order of the probate court set aside an order of final settlement in the administration of a decedent’s estate.
Edna Charles Latshaw died intestate on November 26, 1956, a resident of Johnson County, Kansas, and was survived by her husband, Robert W. Latshaw, and her daughter, Martha Jane Humphreys, nee Latshaw. On November 27, 1956, Robert W. Latshaw filed a petition for probate of the estate of Edna Charles Latshaw. He was appointed administrator on December 21, 1956, and gave bond as administrator in the penal sum of $169,000.00 with Maryland Casualty Company as surety. The inventory filed in the estate listed property appraised at an aggregate value of $153,457.44. On May 14, 1959, an assignment dated September 25, 1958, whereby Robert assigned all of his interest in the estate to Martha, was filed in the probate court. On May 21,1959, Robert filed his Petition for Confirmation of his account as administrator of the estate.
On June 16, 1959, Martha filed a petition for partial distribution of the estate, and also filed her petition for discharge of her guardian ad litem alleging that she had attained the age of majority on the 1st day of March, 1957. On June 16, 1959, the probate court entered its order discharging Martha’s guardian ad litem and also entered an order denying confirmation of the account of Robert as administrator with certain exceptions therein noted.
On June 30, 1959, Martha filed a release in the probate court releasing Robert, her father-, and his corporate surety from liability to her for discrepancies which came to light by virtue of the accounting of the administrator and its denial by the probate court. This release was drawn by the attorney for the estate; was explained to Martha, and was executed by her in the office of the attorney before a notary.
On the 21st day of September, 1959, Martha petitioned the court for partial distribution. The order allowing partial distribution was entered on the same day with the additional order that the administrator pay all outstanding obligations and close the estate within thirty days. On November 2,1959, Robert filed his petition for final settlement of the estate in the probate court. The petition was acknowledged before the probate judge. Attached to the petition was a waiver of accounting by the administrator signed by Robert and Martha, the sole heirs at law of Edna Charles Latshaw, and acknowledged before the probate judge. On December 9, 1959, after due notice to all interested parties, the probate court entered an order of final settlement in the estate.
Martha filed her petition to set aside the order of final settlement and for other relief on August 16, 1961, in the Probate Court of Johnson County, Kansas. Proper service on the interested parties was obtained. As grounds for setting aside the order of final settlement the petition alleged:
“. . . On the occasions of executing said documents petitioner did not know, and Latshaw fraudulently and with wrongful intent, and in violation of his fiduciary duty as administrator of the estate and father of petitioner, concealed from her the following facts: that he had failed to properly discharge his trust as administrator of the estate, including a proper accounting for all monies and properties coming into his possession as such administrator; that, without the authorization of the court, he had withdrawn funds from the estate; that without tire authorization of the court, he had converted certain assets to cash; that without the authorization of the court, he had made numerous other disbursements of the funds of the estate; and that the court had made and entered an Order Denying Confirmation of his account as administrator.”
The district court made findings of fact and conclusions of law in which it found against the petitioner and concluded:
“The Release filed on June 30, 1959 was effective to release the Administrator and his surety for discrepancies which had taken place prior to that date, and the Waiver and Release signed on November 2d was effective to waive an accounting and release the Administrator and the surety for discrepancies occurring prior to the Order of December the 9th, 1959.
“The Order of October 9, 1962 should be reversed insofar as it sets aside and renders void the Final Settlement entered by the Probate Court on December 15, 1959.”
The petitioner has appealed.
Appellant contends that the trial court’s findings are clearly erroneous in their failure to find that the appellee, Robert W. Latshaw, obtained the order of final settlement by extrinsic fraud. Appellant alleged in her petition that the appellee, Latshaw, was guilty of actual fraud in obtaining the release and the waiver of accounting. The actual fraud consisted of concealment from the appellant, with wrongful and fraudulent intent, the fact that he had converted certain assets to cash and withdrawn funds from the estate without authorization of the court. That such concealment would constitute actual fraud is not disputed. (Beneke v. Bankers Mortgage Co., 135 Kan. 444, 10 P. 2d 825; Larrick v. Jacobson, 139 Kan. 522, 32 P. 2d 204; Jenkins v. McCormick, 184 Kan. 842, 339 P. 2d 8.)
However, the district court found contrary to appellant’s contentions. It specifically found:
“The Court finds that Martha J. Latshaw was present at the hearing for the confirmation of the account and was duly informed that the confirmation was denied for the reason that the Administrator had paid certain claims which had not been allowed by the Court and had made large and substantial withdrawals from the estate to his personal account and to the joint account of Robert W. Latshaw and Martha J. Latshaw, without authorization by the Court. And for the further reason that certain assets of the estate had been disposed of without authorization of the Court.
“The Court further finds that Martha J. Latshaw was aware at this time of what the money withdrawn from the estate was being used for and that she affirmatively acquiesced in her father’s representation that the estate belonged to them, the Latshaws, and that they should be able to do with it as they saw fit.
“On June 30, 1959, Martha Jane Latshaw filed her Release in the Probate Court, releasing her father and his corporate surety from liability to her for discrepancies which had come to light by virtue of the accounting of the Administrator and its denial by the Probate Court. This Release was drawn by Elmer Hoge, the attorney for the estate and was explained to the said Martha J. Humphreys and was executed by her in the office of said Elmer Hoge before a Notary.”
It would serve no useful purpose to review the somewhat lengthy testimony presented in the record. It should suffice to say that, even though conflicting, there was substantial competent evidence to support the trial court’s findings, and that the findings were contrary to the existence of actual fraud as alleged in appellant’s petition.
There was evidence that the appellant was informed at the time, or soon thereafter, when funds were withdrawn from the estate by her father who was serving as administrator, and that she participated in the use of the withdrawn funds through a joint bank account, joint investments in securities and joint trading agreements.
This court will not weigh conflicting evidence on appeal but will examine the record only for the purpose of determining whether there is substantial and competent evidence to support the findings and judgment. (Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Matson v. Christy, 194 Kan. 174, 398 P. 2d 317.)
Actual fraud is never presumed but must be established by clear and convincing evidence. (Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; Hoch v. Hoch, 187 Kan. 730, 359 P. 2d 839.) The burden of proving actual fraud is upon the party asserting it. (McWilliams v. Barnes, 172 Kan. 701, 242 P. 2d 1063; In re Estate of Anderson, 175 Kan. 18, 259 P. 2d 180; Jones v. Coate, 180 Kan. 597, 306 P. 2d 148.)
It appears that the appellant would now attempt to shift the burden of proof by claiming constructive rather than actual fraud and rely on the absence of consideration. Appellant contends that the appellee, Latshaw, stood in a fiduciary relationship with the appellant, and that where there is an abuse of a confidential or fiduciary relationship the absence of consideration raises a presumption of fraud and the burden is on the person receiving the benefit to show the absence of undue advantage or overreaching.
Appellees challenge the sufficiency of the petition to support this contention. They call our attention to the rule of this court that when fraud is pleaded there must be a specific statement of facts constituting the alleged fraud. (Bank of Pleasanton v. Howard, 131 Kan. 616, 293 Pac. 407.) They also call our attention to the rule announced in First National Bank v. Mense, 135 Kan. 143, 10 P. 2d 19, as follows:
“Rule followed that one who pleads certain alleged fraudulent acts as a defense to an obligation which he had executed is bound by his pleadings and cannot upon trial avail himself of other facts not pleaded.” (Syl. 1.)
Although we adhere to the above rule we do not find occasion to apply it in this controversy. Presumptive or constructive fraud will not support the relief requested.
Appellant seeks to set aside a judgment of a probate court. The probate code, K. S. A. 59-2213, provides for the control of judgments as follows:
“. . . The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by section 605 of the code of civil procedure.”
The order of final settlement which the appellant would have set aside was filed the 9th day of December, 1959. The petition to set aside the order of final settlement was not filed until sometime in August, 1961. The thirty day period having expired we must look to the code of civil procedure for the relief available to appellant, if any. Appellant concedes that she must rely on the provision of G. S. 1949, 60-3007 which provides, insofar as material here, as follows:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made:
“Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order.”
However, fraud which will support a petition to set aside a judgment under the above provision must be actual. Constructive fraud is not sufficient. In Wagner v. Beadle, 82 Kan. 468, 108 Pac. 859, it was held:
“The fraud for which a judgment may be set aside must be actual fraud, involving intentional wrong, as distinguished from legal or constructive fraud.” (Syl. 1.)
It was stated beginning on page 470 of the opinion:
“. . . But we need not now determine whether one who has had no actual notice of the pendency of an action against him may attack the judgment for fraud in a matter directly involved therein. Assuming such to be the case, the appellant can derive no benefit from the principle, for he has failed to bring himself within its operation. The fraud for which a judgment may be set aside by action must be of the same kind referred to in the statute (Code 1909, §596, subdiv. 4) permitting such relief on motion, of which it was said in Laithe v. McDonald, 7 Kan. 254:
“ ‘The word “fraud” in this statute is used in its common, direct sense. It means “fraud in fact,” not “fraud in law.” It embraces only intentional wrong —those acts done by the successful party with a knowledge of their criminality, and with the purpose of thereby depriving his adversary of some right.’ (Page 264.)”
The constructive fraud which appellant would now have us consider as a basis for setting aside the judgment of final settlement is presumptive fraud arising from the relationship of the parties to a transaction or from the circumstances under which it takes place, so that when the relationship or circumstances are established the burden shifts to the one receiving the benefit to prove himself free of over-reaching or fraud. This type of fraud will not support the relief requested by appellant.
We are constrained to hold that the trial court properly concluded that appellant’s evidence did not support her claim of fraud justifying relief under the provisions of G. S. 1949, 60-3007 Fourth.
Judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.;
The appellee, August Longo, asks for a rehearing and modification of the decision previously rendered affirming, as modified, this appeal. (Longo v. Longo, 193 Kan. 386, 395 P. 2d 302.) We have examined the record and the former opinion and the arguments made in support of the motion for rehearing, and in our opinion the motion should be denied.
Further consideration of the record and the former opinion convinces this court that the amount of permanent alimony awarded the appellant, Mary Longo, in the sum of $18,500 should be modified by reducing that amount $2,000, thereby making a total award of permanent alimony in favor of Mary Longo in the sum of $16,500. Other than as here modified, the former opinion stands and the district court is directed to enter judgment in favor of Mary Longo in the total sum of $16,500 as permanent alimony with directions to enforce payment of said sum as set forth in the former opinion. With the exception of this modification, the motion for rehearing is denied.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This is a declaratory judgment action (G. S. 1949, 60-3127 to 60-3132, inclusive) brought by chiropractors suing in their own behalf and in behalf of others similarly situated, attacking certain provisions of Chapter 344, Laws of 1957, appearing at G. S. 1961 Supp., 65-2112 to 65-2125, known as the Basic Science Act, and certain provisions of Chapter 343, Laws of 1957, appearing at G. S. 1961 Supp., 65-2801 to 65-2890, known as the Healing Arts Act.
It is alleged that certain provisions of the acts in question are unconstitutional and amount to an invasion of plaintiff’s personal rights and deprive them of equal protection under the law. The action seeks to enjoin defendant attorney general from enforcing the alleged unconstitutional provisions in question.
The case has been here before in State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042 (1960), in which it was held that a demurrer to the amended petition was erroneously sustained.
Following that decision issues were joined and the case was submitted to the trial court on the pleadings and stipulations of fact, two of which were:
“That there are material differences between the concepts of medicine and osteopathy on the one hand and chiropractic on the other as to the diagnosis, cause, treatment and cure of bodily ills and diseases in humans.
“That there are points in the basic sciences for which examination is required of all applicants for Healing Arts licenses under Chapter 344, Laws 1957, where such sciences as taught in the University of Kansas, or Universities or colleges of equivalent standing differ materially from such sciences as taught in various schools of chiropractic. That such difference in the teaching of such sciences is wide and substantial.”
The trial court upheld the validity of both acts in question and plaintiffs have appealed, alleging five specifications of error.
In their brief plaintiffs state that their case is not an attempt on the part of chiropractors to expand their practice beyond the limits which existed prior to the enactment in 1957 of the two acts in question; that it is not an action to avoid all regulation or supervision of the profession by the state, but that the controversy has its roots in the radical differences in the basic concepts of the treatment and cure of human ills between medical doctors and modern-day osteopaths on the one hand, and chiropractors on the other. It is contended that both of the acts are unreasonable and arbitrary; that they do not contain adequate standards whereby the exercise of discretion may be measured; that they amount to an unlawful delegation of power, and that they deprive plaintiffs of equal protection under the law. It is conceded by plaintiffs that the action actually amounts to an effort by them to keep the chiropractic profession from being “regulated” out of existence.
Refore discussing the specific grounds relied on by plaintiffs, we mention a few principles applicable to actions of this nature which are so basic as to require no citation of authority.
Where acts of the legislature are under attack on constitutional grounds, courts must resolve all presumptions and doubts in favor of their validity and are not concerned with their policy or wisdom. With respect to an individual practitioner’s right to practice any branch of the healing arts, the right is a mere privilege and is subject to such reasonable and lawful regulations pertaining to qualifications and the licensing of those persons who wish to hold them selves out to the public as practitioners, as the legislature, in the exercise of its inherent police power for the protection of the health and welfare of the people, sees fit to enact.
Unless otherwise noted, all references are to G. S. 1961 Supp.
It first is contended that the two acts in question are so unreasonable and arbitrary as to chiropractors as to be unconstitutional. In this connection plaintiffs concede that public health and welfare require regulatory medical control acts, but contend the regulations must be reasonable, and not prohibitive under the guise of regulation, and must have reference in fact to the welfare of society. Specific reference is made to the composition of the State Board of Healing Arts (65-2813) which provides that it shall consist of five doctors of medicine, three doctors of osteopathy, and three chiropractors, all of whom shall have been actually engaged in the practice of their respective professions for a period of at least six consecutive years immediately preceding their appointment by the governor, which appointments are made by and with the consent of the senate (65-2812). 65-2836 (d) provides that a license may be revoked or suspended when the licensee is guilty of the use of untruthful or improbable statements, or flamboyant, exaggerated or extravagant claims in advertisements concerning such licensee’s professional excellence or ability, and it is argued that such provision is unreasonable and arbitrary in that it places the “fate” of chiropractors in the hands of a board, eight of whose eleven members subscribe to concepts concerning the' diagnosis, cause, treatment and cure of bodily ills and diseases which are materially different from those concepts held by chiropractors.
To uphold this contention would require this court to deny to all present and future members of the State Board of Healing Arts— except chiropractic members — the presumption of reasonableness and good faith to which they are and would be entitled. Absent an affirmative showing to the contrary, we refuse to indulge in any such presumption, and plaintiffs’ contention as to this point is held to be without merit.
The second and third specifications of error are that the trial court erred in concluding that the acts do not unlawfully delegate legislative powers, and in concluding that the acts contain adequate standards.
Plaintiffs concede that in this day and age, with governmental functions becoming more and more complex, more and more powers are of necessity being delegated to administrative officials, and that the advisability of vesting more power in boards and agencies is solely a question for legislative decision. It also is conceded that many of the powers delegated to the two boards in question are proper. It is contended, however, that an arbitrary discretion is vested in an administrative official if the statute fails to prescribe a uniform rule of action, or if it fads to lay down a guide or standard whereby the exercise of discretion may be measured, and that there are certain limitations which must be respected.
Among other things, our attention is directed to 65-2825, which gives to the board authority to determine what schools shall be accredited; to 65-2836, which provides that a license may be revoked or suspended for the failure of a licensee to take some form of post-graduate work each year as required by the board; to 65-2119, which requires an applicant for a basic science certificate to submit evidence satisfactory to the board that he is a person of good moral character, and to 65-2876, which provides that for the purpose of the act an accredited school of chiropractic shall be a legally incorporated school teaching chiropractic which the board shall determine to have a standard not below that of the national college of chiropractic of Chicago, and that all such schools shall be approved by the board.
We see nothing wrong with the sections under attack. In the very nature of things, when dealing with the broad field of treatment of human ills and the protection of die health and welfare of the public, the legislature necessarily must delegate much discretion to the two boards in question. As was said in State, ex rel., v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 440, 296 P. 2d 656, die legislature may enact general provisions but leave to diose who are to act certain discretion in “filling in the details” so to speak, provided, of coruse, it fixes reasonable and definite standards which govern the exercise of such authority. On die same subject see State, ex rel., v. Fadely, 180 Kan. 652, (Syl. 7), 308 P. 2d 537. Furthermore, the standards here established, pertaining to educational background, moral character, regular postgraduate work, approval of chiropractic schools, and the like— certainly may not be said to contain inadequate standards and guideposts, and likewise may not be said to constitute an unlawful delegation of legislative powers.
And finally, it is contended the trial court erred in concluding that enactments of the legislature creating legislative boards must be upheld, absent a showing that such boards have acted arbitrarily or capriciously against the individuals complaining.
This specification of error apparently has reference to a statement contained in the trial court’s memorandum decision. Plaintiffs place too much emphasis on the isolated sentence for it is clear the trial court’s judgment was not based solely on the fact that plaintiffs, as individual chiropractors, had failed to show specific arbitrary or capricious action on the part of the boards. The point requires no further discussion.
This case was submitted to the trial court on the pleadings and stipulations of fact, and therefore, the last specification of error— that the plaintiffs’ motion for a new trial was erroneously overruled —likewise is without merit and calls for no- discussion.
On oral argument of this appeal it was conceded that as of now no chiropractor has been “hurt” by operation of the acts or by action of either of the boards. Admittedly, as plaintiffs frankly state, the case was filed in an attempt to keep the chiropractic profession from “being regulated out of existence.” It is contended that certain provisions of the acts make it “possible” for an injustice to result to a chiropractor and plaintiffs are afraid of what “might” happen under the operation of the acts. This contention, of course, overlooks and ignores the presumption that, until the contrary is shown, public officials, such as here the members of the board, will act fairly, reasonably and impartially in the performance of their duties. If such officials fail to so act, and thus abuse the discretion reposed in them, coruts are not powerless to step in and to determine whether the procedure employed in reaching a decision, or whether the decision itself as rendered, is unreasonable, arbitrary or oppressive under the facts and circumstances of a particular case. (Marks v. Frantz, 183 Kan. 47, 52 [Syl. 3], 325 P. 2d 368). In other words, these plaintiffs, and others similarly situated, are in no sense foreclosed from having their day in court for the redress of wrongs committed.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether a creditor can reach the cash surrender value of a debtor’s ordinary life insurance policy by garnishment proceedings in aid of execution.
On the 17th day of February, 1960, judgment was taken by the National Surety Corporation (appellant) against Vern Gillette, d/b/a Parsons Roofing Company (appellee) for the sum of $11,-433.03 and costs.
On the 3rd day of October, 1963, an order of garnishment in aid of execution was served upon the Equitable Life Assurance Society of the United States.
On the 30th day of October, 1963, the Equitable Life Assurance Society of the United States answered as follows:
“That according to the records of the Society at the Kansas City Office, Policy No. 15,263,993 was issued by the Society on December 21, 1956, to Vern F. Gillette in the face amount of $10,000. Premiums are payable quarterly and have been paid to continue tire policy in force to September 14, 1963, as of which date the cash value of the policy, including dividend accumulations and interest thereon, was $1,879.87 subject to an existing indebtedness in the sum of $1,245.47, with interest due thereon at the rate of 5%
“That this amount is payable subject to the terms, provisions and conditions of the policy including an appropriate request for surrender by all parties in interest, the physical surrender of the policy, and to any statutory exemptions which may be claimed by the defendant.”
The net value over and above the loan indicated by the foregoing answer is $634.40, which is the amount the appellant seeks to reach by these proceedings.
Upon motion of the appellant, Equitable was ordered to pay the net proceeds of the cash value under the policy into court for the benefit of the appellant.
The appellee later attacked this order by motion, and the trial court subsequently, after hearing, reversed itself and set aside its previous order, from which appeal has been duly perfected.
Prior to the issuance of the garnishment, the appellee had testified at an asset hearing that he still operated his roofing business as a contractor, but that he had no bank account, and that his wife owned a 1949 Dodge truck, a 1959 Dodge truck, a 1961 Chrysler Imperial automobile and a 1959 outboard motor boat. The appellee further testified that he knew of no way he could pay the appellant’s judgment.
The appellee contends that, absent a written request for payment, the cash value of a policy of ordinary life insurance owned by the appellee is not subject to garnishment by the appellant.
The appellant, on the other hand, contends the cash value of a policy of ordinary life insurance is property of the debtor, and as such there is no reason why it cannot be levied upon, unless it is exempt by statute.
Since the facts giving rise to this appeal occurred prior to January 1, 1964, the provisions of the old code of civil procedure apply.
G. S. 1949, 60-3494 provides in part:
“The judge may order any property of the judgment debtor not exempt by law, in the hands either of himself or any other person or corporation, or due to the judgment debtor, to be applied toward the satisfaction of the judgment, and may enforce the same by proceedings for contempt, in case of refusal or disobedience; . . .”
G. S. 1949, 60-3485 provides:
“When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he may have in real estate as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge or other joint-stock company, or any interest he may have in any money, contracts, claims or choses in action, due or to become due to him, or in any judgment or decree, or any money, goods or effects which he may have in the possession of any person, body politic or corporation, shall be subject to the payment of such judgment by action, or as hereinafter prescribed.
The insurance policy in question is no part of the record presented on appeal, and we do not therefore have the benefit of its terms to assist in this opinion.
The question here presented is one of first instance in this court.
Long ago Justice Brewer, speaking for the court in B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180, 1 Pac. 622, stated the basic principles to be applied in garnishment proceedings. He said:
. . Garnishee proceedings mean this: the creditor takes the place of the debtor. ‘Only this and nothing more.’ The former takes only that which the latter could enforce. That which the garnishee owes, whether due or not, is appropriated; but the process has no future effect. . . .” (p. 196.)
Under the statutes heretofore quoted, to subject the property or equitable interest of a debtor to a judgment, the property or interest must be due or become due. Where garnishment process has been issued any after-acquired property or interest may not be subjected to such garnishment.
In this case there is no existing debt payable to the appellee by Equitable. The amount payable as the cash surrender value of the policy is payable only after the terms, provisions and conditions of the policy are met by all of the parties in interest. It is not contended by the appellant that the appellee has complied with any of the conditions of the policy which create a liability or an- indebtedness on the part of Equitable to the appellee.
The universally accepted rule is that an insurance policy is a contract. The cash surrender value, or the loan value, of an ordinary life insurance policy is a part of the contract, and whether the insured will comply with the provisions of the policy to receive the cash surrender value, or its- loan value, is a matter completely in his discretion. He has a right to make that decision without the interference of a court of equity. There was no debt due from the insurance company to the insured, under the facts, that could be reached at law by the process of garnishment; nor can equity bring to bear any force to compel the debtor to perform acts which he does not desire to perform in order to convert a contingency into an actual debt upon the part of the insurance company. The nature itself of the loan value precludes its being held to be a debt due the insured by the company. Until steps have been taken by the insured to effect a loan, in case he should desire to take ad vantage of the provision in the policy relating to a loan, and until the loan transaction is completed, the insurer is not in any sense indebted to the insured; and the provision as to the loan value of the policy is a mere privilege to the insured, to be taken advantage of by him upon terms and conditions prescribed in the policy.
(Farmers &c. Bank v. National Life Ins. Co., 161 Ga. 793, 131 S. E. 902, 44 A. L. R. 1184; annotation, 44 A. L. R. 1188, 1190.)
The answer of Equitable, garnishee herein, shows that the value of the policy is not payable unless an appropriate written request for surrender is made by all parties in interest, and there is a physical surrender of the policy.
In 6 Am. Jur. 2d, Attachment and Garnishment, § 171, it is stated:
“Even though a life insurance policy has a cash surrender value which is available to the insured at his option, it is generally held that where the insured has not exercised his option to surrender the policy for its cash surrender value, a creditor of the insured cannot obtain such cash surrender value by attachment or garnishment. In such a case there is no fixed liability or existing indebtedness on the part of the insurer. There are some cases, however, in which a creditor of a life insured has succeeded in subjecting the surrender value of the policy to attachment or garnishment, even though the insured has not elected to surrender the policy.” (pp. 682, 688.)
In 38 C. J. S., Garnishment, § 110c, the following is stated:
“. . . On the other hand, there is authority that the cash surrender value of a policy is not subject to garnishment, unless all of the terms on which payment of the surrender value is conditioned have been met, including conditions to be performed by insured, such as default in payment of the premiums, surrender of the policy, and demand for payment of the surrender value. . . .” [This is the general rule in the United States, citing Connecticut, Georgia, Illinois, Michigan, Pennsylvania, Texas and Florida cases.] (p. 318.)
The appellant relies upon a Missouri case, Industrial Loan & Inv. Co. v. Mo. State Life Ins. Co., 222 Mo. App. 1228, 3 S. W. 2d 1046, as authority that the cash surrender value of a life insurance policy is property which may be garnished.
In a subsequent Missouri decision on facts analogous to those in the instant case in Shawver v. Shawver, 372 S. W. 2d 916 (Mo. 1963), the court explained and restricted the application of its former decision (cited above). The court in Shawver said:
In the annotation, 37 A. L. R. 2d 284, a Missouri case, Industrial Loan & Investment Co. v. Missouri State Life Ins. Co., 222 Mo. App. 1228, 3 S. W. 2d 1046, is cited as not in accord with the general rule, stating the view that cash surrender value could be attached and collected by a court-appointed receiver. However, when a policy gives the insured an option to take either paid-up insurance or cash surrender value, we doubt the authority of a court to authorize the choice by anyone else. The opinion used the analogy of an assignment or a pledge but in such situations the insured has voluntarily transferred his rights. Furthermore, the court’s views in that case were in the nature of dictum because the actual decision was that the sale of the insurance policy involved, under an execution, was void and the judgment of the trial court, denying plaintiff’s right to recover its cash surrender value, was affirmed. . . .” (pp. 918,919.)
In the Shawver case the Missouri Supreme Court held a former wife, who had possession of the insured’s life insurance policy, was not entitled to the cash surrender value of the policy from an insurer-garnishee on the basis of a judgment obtained by the former wife against the insured, where surrender of the policy as required by its terms had not been made or tendered. The court said:
“It is our view that the option was not exercised in this case, so as to make tire cash surrender value subject to garnishment, because there had not been compliance with the provisions of the policy which required ‘legal surrender’ of the policy by ‘submission ... to the Home Office’ as well as a ‘proper written application.’ No tender of the policy was made by defendant at anytime before he withdrew his application or even by plaintiff after inquiry was made of her where the policy was. . . .” (p. 919.)
For the reasons heretofore stated, we hold the cash surrender value of an ordinary life insurance policy cannot be reached by a creditor of the insured by garnishment proceedings.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the director of revenue from an adverse ruling in the lower court under the Kansas income tax law as .applied to a multi-state corporation whose gross income is derived from property located and business transacted in part within and in part without the state of Kansas.
Hie principal question involves the proper method of determining the corporation s income allocable to Kansas for income tax purposes.
In accordance with the facts hereafter stated, the director of internal revenue of the state of Kansas assessed additional income tax to the appellant for the fiscal year 1958. This assessment was approved by the board of tax appeals, and the taxpayer appealed to the district court. In the district court the parties agreed upon and read a stipulation of facts into the record. The stipulation, with some omissions, reads:
"This proceeding arises on appeal of Webb Resources, Incorporated, formerly known as Anschutz Drilling Company, Inc., a Colorado corporation, from Order number six of the Board of Tax Appeals of the State of Kansas dated June 20, 1962, as supplemented by supplemental order 6-A, dated August 16, 1962, assessing additional income tax against the appellant Webb Resources Incorporated in the amount of $4,858.33 or $3,877.64, whichever the case may be for appellant’s tax year 1958, which is a fiscal year ending June 30, 1958. Appellant has no principal place of business within the state of Kansas ....
“Appellant in preparing and filing its 1958 Kansas State Income Tax return allocated its income and losses to the State of Kansas under the formula allocation provided for in G. S. 1949, 79-3218, as amended. The assessment of additional corporate income tax which is here appealed from arises by virtue of the Director’s insistence that the appellant should have allocated its income to Kansas under the direct accounting method provided for by G. S. 1949, 79-3217. Appellant contends here, and contended below that it was and is a unitary company and is thus required to apportion its income as provided by our 79-3218. Although the Director contends that the appellant here may not change from the direct method to the formula method of allocation which was the basis for its 1958 return, it is conceded by the Director that in the event it is determined and adjudged by the Court that appellant’s 1958 return was properly filed under G. S. 1949, 79-3218, as amended, the orders of the Board of Tax Appeals should be reversed and the additional corporate income tax here appealed from should be abated in full.
“At all times material hereto appellant was duly authorized to carry on its business within the State of Kansas and within the states of Montana, North Dakota, Utah, Wyoming and Nebraska. The nature of the business carried on by appellant, both within and without Kansas, is exploring for, drilling for, finding, producing and selling oil and gas and other liquid hydrocarbons. The appellant’s home office is located in Denver, Colorado, from which its business and operations are managed. There are located its geologists, landmen, production supervisors, company officers and clerical staff. There are made decisions as to all company operations, including whether to undertake the exploration for and the drilling of oil and/or gas wells, whether within the State of Kansas or without. There are retained and used its bank or file of leases of developed and undeveloped acreage located throughout all of the several states in which appellant does business.
“The products which appellant produces and sells, oil, gas and other liquid hydrocarbons, are wasting natural resources. It is necessary for appellant to follow a constant program of exploration, drilling for, finding and producing such products. Oil or gas are where you find them. The company undertakes to pursue its operations, not only in Kansas but throughout the several states in which it does business.
“The nationwide ratio of wells drilled to wells which encounter sufficient reserves of oil or gas to pay back the initial expense of drilling and completing is approximately forty to one. Appellant’s average has been better. On the average it has found one producer for every ten holes drilled; in other words on the average of nine out of ten holes drilled are and have been dry holes. In other words an average of nine dry holes must be drilled before one producer will be found, whether such dry holes are drilled in Kansas or not.
“All of the oil and gas which appellant produced and produces was and is sold to other companies. No oil which it produced within the State of Kansas was moved by it across Kansas borders.
“In its fiscal year 1958, ending June 30, 1958, appellant filed its Federal income tax return reflecting no taxable income for such year. In every other state, with the exception of Kansas, where appellant realized income from oil operations in the fiscal year 1958, appellant was recognized and accepted as a unitary company, and required to apportion its income and losses to such state for tax purposes under a formula apportionment similar to G. S. 1961 Supplement 79-3218. Appellant’s return to the State of Kansas for fiscal year 1958 apportioned its income and costs to the state under the provisions of G. S. 1949, 79-3218, as amended. It was this return which the State Department of Revenue contends did not correctly allocate income to the State of Kansas for the asserted reason that such income should have been directly allocated under G. S. 1949, 79-3217.
“Appellant can determine its gross income by state lines in that it knows the exact number of barrels of oil produced from each well. It knows the location of each well. Appellant can determine the exact cost of drilling and the exact cost of equipping each well as well as direct costs of operation by state lines.
“Appellant was incorporated in December of 1955 in Colorado. At that time it was primarily a producer with drilling rigs and exploration, and substantially all of its income was derived from contract drilling. For the years 1955, 1956 and 1957 appellant’s returns to the State of Kansas allocated income and costs to the state under the direct accounting statute, G. S. 1949, 79-3217. In the first month starting the new fiscal year of 1958, the appellant disposed of all its rigs, . . . In the fiscal year 1958 appellant’s primary source of income was derived from disposing of the drilling rigs, plus the sale of an oil payment, and some additional income from the production and sale of oil and gas.
“Under the date of December 11, 1957, which, of course, was within the 1958 fiscal year, with the effective date being December 1, 1957, at 7:00 A. M. the appellant, in order to raise the sum of $600,000.00, assigned its oil payment loan of eighty percent of proceeds at the well of all oil and gas, as, if and when produced, saved and marketed from its interests in all of the oil and gas leases which it at that time held both within and without the State of Kansas. The payment burdened all of the producing properties in the states of Colorado, Kansas, Wyoming, Nebraska and North Dakota. In 1958 the company had oil and gas production in all of the states in which it did business except New Mexico, Utah and Montana. In the state of New Mexico in the fiscal year 1958 it continued a contract drilling operation through a wholly owned subsidiary. That was a workover-type rig, which contracted for various compames needing to complete wells.
“During the fiscal year 1958 appellant had twenty-six wells in all other states than in Kansas. It had 110 wells within Kansas. Of the approximately 110 wells the appellant operated within the State of Kansas 84 wells were strippers, a marginal type of production. Because of the cash poor position of appellant it proved necessary to continue to operate those wells as long as they yielded a profit over and above their operating expense, even though the wells did not produce enough to make their depreciation. It was testified to that in the year 1958 the appellant realized an average gross profit out of a barrel of oil produced within the State of Kansas of only sixty-eight cents. For appellant’s operations within the State of Colorado the average figure per barrel is ninety-one cents. For appellant’s operations within the State of Nebraska, the figure is $1.14 per barrel, and in Wyoming $1.08 per barrel. This cost is on a unit basis and, of course, it takes just as long to record entries and billings off of a stripper as it does off of a 300 or 400 barrel well, and other operating expenses are similar. It was necessary to continue operating the Kansas wells, because of the fact that appellant needed profit wherever it could get it, and the profit from the Kansas operations was essential to appellant’s multi-state business.
“Prior to 1958 appellant’s Denver office employed approximately twenty or twenty-two people, including ten in the Accounting Department. Because of the necessity of cutting back, appellant in 1958 had only eleven employees, including the President, two of whom were in the Accounting Department. These also included two geologists, one production man, two engineers and three secretaries. In the fiscal year 1958 appellant employed a production man in Great Bend, Kansas, and also one at Casper,, Wyoming, which last office tenninated upon the sale of the rigs. If there were production problems, like work-overs, no matter where they were, or completions, etc., the production man from Kansas might be sent to supervise it or it might be supervised by a man sent out from the Denver office.
“The job of the Production Superintendent at Denver was primarily connected with the production of appellant’s wells. The actual completion was done by independent contractors, with appellant’s Production Superintendent acting in an advisory capacity, no matter where the well was drilled. The production man in Great Bend reported directly to the Denver office and his only responsibilities were to carry out direct orders and requirements issued from the Denver office with respect to seeing to it that the production from appellant’s wells within the State of Kansas was kept at the maximum efficient rate permitted by the Kansas State Corporation Commission.
“Tire principal duties of the Denver office are supervision of production and exploration for new reserves. This includes the assembling of acreage or acquisition of leases for drilling. While production goes on continually, exploration is somewhat more intermittent. Although appellant employed during the fiscal year 1958 two engineers full time, it also consulted an engineering firm regularly. It is veiy necessary to know the engineering figures, reserves, etc. In the fiscal year 1958 appellant spent $517,360.13 on exploration for new reserves of oil and gas in the states in which it did business. In that same year $18,499.27 was expended by appellant for exploration within the State of Kansas. All of the findings from the exploration work were developed and evaluated in the appellant’s Denver office.
“Appellant’s Denver office provided all legal services throughout the whole operation of appellant in all states, with the exception that local counsel were as a practice employed by the Denver office on certain local matters. All accounting work for appellant was performed in the Denver office, although consulting accounting firms were employed for auditing purposes.
“Key personnel were hired or fired only by the executives in the Denver office. As new problems arose, the best qualified man to do the job, regardless of where he had worked before was assigned thereto. All employees were paid out of the Denver offices, and all primary payroll records were maintained there, and all insurance and employee benefits were controlled and supervised there.
“The district production man had jurisdiction to supervise the wells in the surrounding geographical area, limited not by state boundaries but by what he could practically supervise. He had limited jurisdiction to purchase lesser amounts of supplies in bulk. All other services, equipment and supplies were contracted for through the Denver office. Such central buying resulted in price advantages or other favorable treatment.
“Appellant’s activities were financed by income from all sources, including the state of Kansas. In the fiscal year 1958 there was no separation as between states of earnings and surplus. On the company’s books maintained in Denver there was maintained only one account for all its multi-state business, such as revenue, accounts payable, receivable, etc., none of which was broken down or totaled on a state by state basis. However, gross revenues, direct drilling costs, and direct lease operating costs could be determined by state fine from supplemental records kept by appellant. The total amounts of gross revenues, direct costs, both within the State of Kansas and without, are necessary in order to calculate the net taxable income allocated under either method; 79-3217, direct accounting, or 79-3218, formula allocation.
“The company’s executive officers exercised tight fiscal control throughout all areas of operation. Sales of all products were negotiated or approved before sale by the executive officers in Denver.”
The foregoing facts, as stipulated by the parties, were accepted by the trial court as true and correct and adopted as its findings of fact. It thereupon made the following conclusions of law:
“Conclusions of Law
“i.
“Appellant is a multi-state -unitary company operating as one integral business rather than several business entities.
“n.
“Appellant’s books of account and records do not clearly reflect the net income subject to tax within the State of Kansas. The direct allocation method of reporting income tax for Kansas income tax purposes is impracticable.
“in.
“Appellant was required to use the ‘factor formula’ method of allocating its income for Kansas for income tax purposes under G. S. 1949, 79-3218 as amended.
“rv.
“Appellee’s order levying additional income tax against appellant does not comply with the above statute.
“v.
“Appellant was not required by statute to first obtain approval from the Director of Revenue prior to changing its method of allocation.
“vi.
“interstate as well as intrastate commerce is here involved. A state tax which subjects interstate commerce to the risk of a double tax burden to which intrastate commerce is not exposed is a forbidden ‘multiple’ taxation upon interstate commerce and constitutes a violation of the commerce clause of the United States Constitution.
“vn.
“The additional assessment required under the orders of the Board of Tax Appeals is arbitrary, capricious, illegal and invalid constituting a violation of the Fourteenth Amendment to the United States Constitution.
“vm.
“Judgment is hereby entered in favor of plaintiff reversing order number 6 of the Board of Tax Appeals as supplemented by order 6-A of that board in whole and the tax abated.”
Under Kansas law an income tax is levied upon corporations whose income is derived from property located and business transacted within the state of Kansas during the tax year. The statute applicable to the facts in the instant case is G. S. 1957 Supp., 79-3203, which reads in part as follows:
“. . . (b) Corporations. Corporations shall pay annually a tax with respect to carrying on or doing business of three percent (3%) on the entire net income, as herein defined, derived from property located and business transacted within this state during the taxable year. . . .”
Where a corporation does business in more than one state, the problem is to determine what portion of the corporation’s income is derived from property located and business transacted within the state of Kansas during the tax year in question. Constitutionally, the state may only tax the income from the taxpayers business within a state. It cannot attempt to tax income earned in another state, nor by the same token is it required to allow a taxpayer to attribute income earned in this state to its out-of-state activities, nor is it required to allow as a deduction losses or other deductions incurred in other states.
The legislature has given attention to the method of determining what income and expenses are attributable to the taxpayer’s operations in Kansas by enacting two statutes. The first, hereafter referred to as the direct method of income allocation, is contained in G. S. 1949, 79-3217 (repealed L. 1963, ch. 485, § 24). It reads:
“In the case of nonresident individuals whose gross income is from sources in part within and in part without the state, and corporations the gross income of which is derived from property located and business transacted in part within and in part without this state, direct allocation of such income may be made where practicable on the books of account and records of the taxpayer, together with the deductions applicable thereto, where such methods clearly reflect the net income, and returns made on such basis shall be accepted in computing the tax.”
The second, hereafter referred to as the apportionment or formula method of income allocation, is set forth in G. S. 1957 Supp., 79-3218 (repealed L. 1963, ch. 485, §24). Insofar as the statute is material to the present discussion it provides where the nature of the business is such as to render direct allocation impracticable, or where the books of account and records do not clearly reflect the net income subject to tax, the net income allocated to Kansas shall be computed by taking the arithmetical average of the following factors: (1) The ratio of costs of Kansas property to costs of property everywhere used in connection with the business carried on; (2) the ratio of costs of Kansas manufacturing or selling to the costs of manufacturing or selling everywhere during the taxable year; and (3) the ratio of Kansas gross sales or revenue to gross sales or revenue everywhere in connection with the business carried on during the taxable year. By applying the arithmetical average ratio or percentile thus obtained to the net income of the entire business, the income attributable to Kansas is determined.
The two statutes in question leave much to be desired, and this perhaps accounts for their repeal by the legislature in 1963. These statutes were before the court in Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, 304 P. 2d 504. There the manufacturing company allocated its net income to Kansas by the direct method, and the director of revenue assessed an additional tax against the company on the theory that it was required to report its income under the formula method of allocation. It was ultimately determined on appeal to this court that the taxpayer did not sustain the burden of showing that the formula method, ordered by the director to be applied, did not clearly reflect a just and equitable allocation of net income to Kansas.
Basic considerations in appealed cases of this type were stated in the Crawford decision. In the opinion the court said:
“The duty to administer and enforce the Kansas Income Tax Law is cast upon the Director of Revenue under the supervision and direction of the commission, and the legislature has given him full jurisdiction to accomplish this purpose. (G. S. 1949, 74-2415, 74-2422, 79-3209, 79-3219.) This is an administrative duty and not a judicial one. (Montgomery Ward & Co. v. State Tax Comm., supra [151 Kan. 159, 98 P. 2d 143].) In carrying out this duty he must guard against being arbitrary or capricious, and where the provisions of the statute are clear, he must follow them. It is his duty to see that the proper method of allocation is justly and equitably applied but arithmetical accuracy is not generally possible in this difficult field. All methods of allocation, direct or separate accounting as well as the factor formula, contain estimates and, in varying degrees, are applied by the exercise of human judgment. If the method adopted accords with our statutes and regulations and produces an allocation approximately correct, although not meticulously precise, and is arrived at by the exercise of fair human judgment so that it reasonably attributes income allocable to property owned and business transacted within this state, it meets the test of being just and equitable. So long, therefore, as he acts within the scope and intent of the statutes and regulations, free from arbitrary, unreasonable or capricious action, his determination, subject to the supervision and direction of the commission, of questions arising out of the administration of this lasw, is final and conclusive and on appeal the only question for review is whether he so acted.” (p. 362). (Emphasis added.)
In Crawford it was also held in computing the net income of a multi-state corporation whose gross income is derived from property located and business transacted in part within and in part without the state of Kansas, the direct method of allocating income prescribed by 79-3217, supra, could not be employed if the business is of a unitary character. Where the business is unitary in character net income should be determined by the application of the formula method set forth in 79-3218, supra, thus giving weight to the different factors responsible for earning the income so as to apportion it from the entire business among the states in which it was earned.
It was said a multi-state business is a unitary business for income tax purposes when the operations conducted in one state benefit and are benefited by the operations conducted in another state or states. If its various parts are interdependent and of mutual benefit so as to form one integral business rather than several business entities, it is unitary.
It was further said whether a multi-state business is separate or unitaiy depends upon the manner in which its business is conducted. The essential test to be applied is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such relationship, the business is unitary.
The trial court held, in effect, the action of the director in the instant case, in allocating the income of the taxpayer (appellee) under the direct method (79-3217, supra), was arbitrary, capricious and unlawful.
We must look to the stipulated facts to determine as a matter of law whether the trial court’s conclusion on this point is correct.
Authorities in other states which have addressed themselves to allocation of income from oil and gas production for income tax purposes are not uniform in their holding as to which method is to be employed in allocating income of a multi-state corporation to the state.
On facts substantially similar to those presented in the instant case the state of California has held the business of a corporation, engaged in the exploration for, and extraction and sale of oil and gas in fifteen states and the Dominion of Canada, was unitary in nature and thereby entitled to compute state franchise taxes by the formula method in allocating a portion of the overall income of the business to the taxing state. (Honolulu Oil Corp. v. Franchise Tax Bd., 60 Cal. 2d 417, 34 Cal. Rptr. 552, 386 P. 2d 40; and Superior Oil Co. v. Franchise Tax Bd., 60 Cal. 2d 406, 34 Cal. Rptr. 545, 386 P. 2d 33.) These decisions may be attributable to the narrow issue presented. In Superior it was said:
“The narrow issue herein, in terms of tire statute, is whether Superior’s income is ‘derived from or attributable to sources both within and without the State.’ (Rev. & Tax. Code, §24301.) If such income can be so categorized then an allocation of total net income would naturally follow from the mandatory language of section 24301, and a separate accounting, as sought by the board, could not be approved.” (pp. 410, 411.)
The Honolulu case, immediately following Superior in the California official reports, followed the holding in the Superior case. Within the foregoing issue the question was whether the taxpayer’s operations in several jurisdictions, including California, were unitary in nature and thus subject to local taxation on a basis which allocated a portion of the overall net income to California (citing the statute) or whether, on the other hand, the local operations were sufficiently separate to justify local taxation on the net income derived from such separate, local operations.
The taxpayer (appellee) relies on these decisions as “bay horse” cases and controlling, while the director contends they are based strictly upon the California statute and, therefore, distinguishable.
The Supreme Court of Louisiana in Texas Company v. Cooper, 236 La. 380, 107 So. 2d 676, held an oil company conducting operations on a world-wide scale was not of such a unitary nature that it was impossible and inequitable to attribute any direct profit to its Louisiana production operations, which consisted solely of the gathering of crude oil for shipment outside the state. Hence the separate accounting method for state income tax purposes was held feasible.
Similarly, the Supreme Court of Oklahoma in Magnolia Petroleum Co. v. Oklahoma Tax Com., 190 Okla. 172, 121 P. 2d 1008, held an income tax assessable to a foreign corporation producing crude oil in the state, and shipping the same to itself and others in other states, based upon direct allocation of gross profit determined by costs of production and market price at time of shipment was held to be a practicable method for the assessment of net income derived from oil. There the Oklahoma tax commission sought to assess the tax under the formula method. In the opinion the court said:
“The commission takes the position that the income reflected by the books of the crude purchase and storage department was ‘derived from property located and business transacted in part within and in part without this state/ as defined in the statute, and that the gross profit thereon for income tax purposes was not subject to direct allocation by any practicable method, but the resort to indirect methods was the only practicable solution whereby Oklahoma could properly tax its portion of the net income derived from all oil received by the department in question.
“On the other hand, the taxpayer insists that its gross profit from the oil produced here, and the expense connected with its production and sale, were easily ascertainable by a practicable direct method of allocation, and that the net income therefrom had been so ascertained, and had been reported to the commission and paid.
“In our opinion, the intention as expressed in the statute is that direct allocation be made in all cases of this character where practicable, and that indirect allocation be made only in those instances where the same would prove more practicable than direct allocation. The statute clearly favors direct allocation. The purpose in such case can be only to tax profits actually made in this state. To extend the operation of the statute beyond that point and tax profits arising beyond the jurisdiction of the state would violate the due process clause of the Federal Constitution. Therefore, direct allocation is entitled to first consideration. Where direct allocation can be employed, all suspicion of unconstitutional taxation is dispelled.
“The above is in accord with the decisions of other courts. In cases where the books of account and records of the taxpayer substantially reflect the net income derived from the business transacted and property located within the state, the income tax assessment must be limited thereto. Standard Oil Company of Indiana v. Wisconsin Tax Commission, 197 Wis. 630, 223 N. W. 85; Fisher v. Standard Oil Co., 12 Fed. 2d 744. If the business of the taxpayer transacted within the state is separable from its other business, no allocation is necessary. The rule is stated in the last-cited case as follows:
“ ‘Theories of allocation have no place in determining income tax on corporation, if net income within state can be distinguished from outside business.’” (p. 175.) (Emphasis added.)
The Oklahoma statutes are substantially the same as the Kansas statutes here in question.
Other cases holding the direct method of allocating income proper are Standard Oil Co. v. Wisconsin Tax Comm., 197 Wis. 630, 223 N. W. 85; Standard Oil Co. v. Thoresen, 29 F. 2d 708 (8th Cir.); and Fisher v. Standard Oil Co., 12 F. 2d 744 (8th Cir.). (See, also, Skelly Oil Company v. Commissioner of Taxation, 131 N. W. 2d 632 [Minn. 1964]; and Roch Island Ref. Co. v. Oklahoma Tax Com., 194 Okla. 349, 147 P. 2d 1000.)
The taxpayer’s Kansas income tax return for the fiscal year 1958 was admitted in evidence by stipulation of the parties. On the basis of this return, computed under the formula method, 34% of the taxpayer’s property is located in Kansas; 25% of its manufacturing costs are incurred in Kansas; and its sales in Kansas constitute 43% of its total. Also, during the tax year involved the taxpayer sold an oil payment which burdened 80% of all its properties. Under the existing law the sale of such oil payment constitutes income in the year of sale. The taxpayer’s return shows that 71% of the oil payment would be obtained from Kansas properties. The taxpayer’s return under the formula method discloses 34% of the taxpayer’s income and deductions is attributable to this state, in spite of the fact that 43% of its gross income is earned in Kansas, while only 29% of its direct costs is incurred in this state.
It must be conceded that Kansas, having the right to collect a tax imposed on net income, has the right to determine what that income is in relation to the business transacted within the state, if it meets the test of being just and equitable. This is true even though the net income by the direct accounting method is more than what would be the states aliquot portion of the earnings based on the formula method of income allocation.
The United States Supreme Court has held the entire net income of a corporation, generated by interstate as well as intrastate activities, may be fairly apportioned among the states for tax purposes by formulas utilizing instate aspects of interstate affairs; and that the commerce clause and the due process clause are not violated by state statutes levying nondiscriminatory net income taxes on that portion of a foreign corporation’s net income earned from and fairly apportioned to business activities within the taxing state, even though these activities are exclusively in furtherance of interstate commerce. (Northwestern Cement Co. v. Minn., 358 U. S. 450, 3 L. Ed. 2d 421, 79 S. Ct. 357, 67 A. L. R. 2d 1292 [1959].) Where the direct method of income allocation can be employed, all suspicion of unconstitutional taxation is dispelled. (Magnolia Petroleum Co. v. Oklahoma Tax Com., supra.)
When the provisions of 79-3203(b), supra, are construed with 79-3217 and 3218, supra, it is apparent the direct method of allocation or accounting is the favored one. It is first mentioned in the statutory scheme and corresponds most nearly to 79-3203(b), supra, which imposes the tax. The formula method of allocation may only be used where “the nature of the business is such as to render direct allocation impracticable or where the books of account and records do not clearly reflect the net income subject to tax by this act.” Where direct accounting is employed it assigns to this state the actual income from property owned and business transacted within this state as required by 79-3203(b), supra.
On the facts the instant case is stronger than the Magnolia case because it was stipulated that all of the oil produced in Kansas by the taxpayer was and is sold to other companies; and that no oil which it produced within the state of Kansas was moved by it across Kansas borders.
Whether the taxpayer’s multi-state business is a unitary business for income tax purposes under the test laid down in Crawford requires attention.
On the facts in Crawford the director levied an additional income tax against the manufacturing company by applying the formula method for allocating income to Kansas. The taxpayer used the direct method. In the instant case tire situation is reversed. In Crawford the directors action was held to reasonably attribute income allocable to property owned and business transacted within this state, and met the test of being just and equitable. He was said to be free from arbitrary, unreasonable or capricious action in applying the formula method. Under these circumstances, it was simple to expound on the unitary character of a taxpayers business. But application of the definition in accordance with the test to determine whether the business of a multi-state corporation is unitary, as there stated, must be tempered by the foregoing basic construction of the statutes involved (79-3203 [&]; 79-3217 and 79-3218, supra), and the facts which gave rise to its pronouncement. This, of necessity, restricts its application to businesses which are clearly unitary.
In Texas Company v. Cooper, supra, it was said:
. . An example of a unitary business where it would seem to be impossible to make a separate accounting of income within the boundaries of a state would be an express company, a telephone or telegraph company, in which the whole operation “constitutes but a single plan, made so by the very character and necessities of the business.” . . (p. 396.)
A text discussing the subject is Altman and Keesling, Allocation of Income in State Taxation (1946) at pages 74 and 102.
In our opinion on the facts here presented, the portion of the taxpayer’s business conducted within the state of Kansas is not dependent upon or contributory to the operation of the taxpayer’s business outside the state. Whether the taxpayer could conduct its wildcatting operations in other states without the profits derived from the production of oil and gas in Kansas is not the question or the test.
In our opinion the director of revenue acted well within the scope and intent of the statutes here involved in allocating income of the taxpayer pursuant to the direct method of accounting. Within the meaning of 79-3217, supra, direct allocation of income was practicable on the books of account and records of the taxpayer, together with the deductions applicable thereto, and such method clearly reflects the net income of the taxpayer attributable to Kansas. It cannot be said the business of the taxpayer of exploring for, drill ing for, finding, producing and selling oil and gas and other liquid hydrocarbons is of such a unitary character in its multi-state operations as to require application of the formula method of income allocation to Kansas under 79-3218, supra.
It was specifically stipulated that the direct method of allocation for reporting income tax to the state of Kansas was used in the returns filed by the taxpayer within the state for the years 1955,1956 and 1957. Further, the gross revenues, drilling costs and operating costs could be determined by state lines from supplemental records of the taxpayer. It was stipulated the taxpayer can determine its gross income by state lines in that it knows the exact number of barrels of oil produced from each well; it knows the location of each well; the taxpayer can also determine the exact cost of drilling and the exact cost of equipping each well, as well as the direct costs of operation within the geographical area of Kansas.
The only part of the taxpayers Kansas business which is conducted beyond the borders of this state is the management functions of the home office in Denver, wherein are located its geologists, land men, production supervisors, company officers and clerical staff. Hence, the decision making and bookkeeping transactions are maintained without the state. These expenses are ordinarily considered to be general or overhead type of expenses which are required in any type of business which crosses state fines.
Kansas Income Tax Regulation 92-4-85 (revoked January 1,1964) provides that in the use of separate accounting methods, separate records must be kept of sales, cost of sales and expenses for Kansas business as distinct from the remainder of the business. Overhead items of income and expense, which cannot be directly allocated on the books and records as provided in 79-3217, supra, must then be allocated to the business within and without Kansas. It further provides the method of allocating these overhead items of income by types of businesses.
The taxpayer argues its total income for fiscal year 1958 under the federal return was $114,642.99. Using the formula method of income allocation the total income assessable by the various states in which its operations are conducted for income tax purposes would represent 100% of such total income. On this basis there would be allocated to the state of Colorado 11.43%; to Montana 13.52%; to North Dakota 8.07%; to Utah 5.55%; to Wyoming and Nebraska (no income tax) 26.88%; and to Kansas 34.55%.
Under the direct method of allocating income to Kansas, the taxpayer argues the total income, as adjusted, attributable to Kansas is $157,172.29, which amounts to 137.10% of its total income as computed under die federal return. By using the formula method in other states, income taxable by such other states would be $75,034.98 which amounts to 65.45% of its total income. It is therefore argued the total income being taxed under the direct method as proposed by the director of revenue in the instant case is $232,207.27, which amounts to 202.55%.
This argument, of course, has some fallacies. Wyoming and Nebraska, which impose no income tax, have attributed to them 26.88% of the income. Furthermore, under tire stipulation, the taxpayer’s profitable business is located within the state of Kansas by reason of the fact that it has 110 producing wells in Kansas. This is in proven fields and where oil production has been or is being developed. Its expense figures show that its wildcatting or exploration expenses are being incurred primarily in other states. Obviously, under these circumstances otirer states where income tax returns must be filed do not object when the taxpayer files its return under the formula method in their state. Other fallacies in the argument have already been touched upon.
In conclusion we hold as a matter of law upon the stipulated facts that each and every conclusion of law made by the district court is erroneous.
The judgment of the lower court is reversed.
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The opinion of the court was delivered by
Fontron, J.:
The State of Kansas brings this appeal, on a question reserved by it, from the sentence pronounced against the defendant, James Rurney, in the district court of Pawnee county.
The facts are not in dispute and are summarized briefly, as follows: The defendant was charged with stealing an automobile of the value of $1400.00, in violation of G. S. 1961 Supp., 21-533. Upon his arraignment in district court, at which his court-appointed counsel was present, the defendant Rurney, after being fully advised of his rights, pleaded guilty to the charge made against him and was sentenced to confinement in the state penitentiary at Lansing, Kansas, for a period of not less than five nor more than fifteen years, pursuant to the provisions of G. S. 1949, 21-534.
After this sentence was pronounced, the defendant’s counsel orally moved that it be vacated. The trial court sustained this motion, set its previous sentence aside, and proceeded to re-sentence the defendant to be confined in the state penitentiary for not to exceed five years. The instant appeal is from the sentence thus imposed.
The sole question presented in this appeal is whether the sentence of “not to exceed five years” is a valid sentence under the law. This requires consideration of the pertinent statutes.
The statute under which the defendant was charged, G. S. 1961 Supp., 21-533, reads as follows:
“Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of fifty dollars ($50) or more, shall be deemed guilty of grand larceny.”
The penalties for grand larceny are found in G. S. 1949, 21-534, which provides:
“Persons convicted of grand larceny shall be punished in the following cases as follows: First, for stealing any automobile or motor vehicle, by confinement at hard labor for not less than five years and not more than fifteen years; second, for stealing a horse, mare, gelding, colt, filly, neat cattle, mule or ass, by confinement at hard labor not exceeding seven years; third, in all cases of grand larceny, except as provided in the two succeeding sections [*], by confinement at hard labor not exceeding five years.”
Construing these two statutes together, the conclusion would appear to be justified that the present statutory penalty for theft of an automobile or motor vehicle of a value of fifty dollars ($50) or more is confinement at hard labor for not less than five nor more than fifteen years, and, consequently, that the sentence originally imposed against Burney was a legal and valid sentence.
However, it is argued by the defendant, and this argument apparently appeared plausible to the trial court, that when, in 1959, the legislature passed the present statute defining grand larceny, which is now G. S. 1961 Supp., 21-533, and is the statute under which the defendant was charged and convicted, it repealed, by implication, that part of G. S. 1949, 21-534, which provides imprisonment for not less than five nor more than fifteen years for theft of an automobile or motor vehicle. This contention, as we understand defense counsel, is based, on certain differences which exist between the 1959 enactment (the present 21-533) and two predecessor statutes. In General Statutes of Kansas, 1949, 21-533 appeared as follows:
“Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of twenty dollars or more, or any automobile, or motor vehicle, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, goat, hog, or in the nighttime any domestic fowls, harness, or saddles, belonging to another, shall be deemed guilty of grand larceny.” ’
In 1957, the Kansas legislature, obviously giving heed to the ever declining value of the dollar, amended 21-533 in one particular, and one only, i. e., by inserting “fifty dollars ($50)” in lieu of the more humble “twenty dollars” so that Section 21-533 then read as follows:
“Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of fifty dollars ($50) or more, or any automobile, or motor vehicle, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, goat, hog, or in the nighttime any domestic fowls, harness, or saddles, belonging to another, shall be deemed guilty of grand larceny.”
In 1959, as we have indicated, the legislature again amended the statute, this time enacting 21-533 in its present form. In the present statute all reference to specific types or kinds of property is omitted, and grand larceny is predicated solely on the value of the property stolen, regardless of its form.
Because value, rather than form, is now the distinguishing characteristic of property subject to grand larceny, the defendant would infer an intent on the part of the 1959 legislature to delete from 21-534, which defines the punishment for grand larceny, that provision which imposes a more severe penalty for theft of motor vehicles than for theft of other types of property. This reasoning, if sound, would apply as well to the specific provision in 21-534 which provides a somewhat greater punishment for theft of certain animals than for other personal property.
In approaching the solution to the question posed by the defendant, we are to be guided by the well-settled rule that the law does not favor repeals by implication. In Wolff v. Rife, 140 Kan. 584, 38 P. 2d 102, this court held:
“Repeals by implication are not favored in the law, and a former act will be held to have been repealed by implication by a later act only when the later enactment is so repugnant to the provisions of the first act that both cannot be given force and effect.” (Syl. f 1.)
This rule has been followed consistently in this jurisdiction. (Marshall v. Marshall, 159 Kan. 602, 156 P. 2d 537; McCall v. Goode, 168 Kan. 361, 212 P. 2d 209; Tague v. Hudspeth, Warden, et al., 171 Kan. 225, 231 P. 2d 209; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P. 2d 786.)
We see no actual repugnancy between G. S. 1961 Supp., 21-533 and G. S. 1949, 21-534. Under the terms of 21-533, the theft of an automobile, or motor vehicle, valued at fifty dollars ($50) or more, constitutes grand larceny. Under the provisions of 21-534, the penalty for grand larceny of an automobile, or motor vehicle, is declared to be not less than five nor more than fifteen years. There is no inconsistency in, or essential conflict between, these two statutes. Roth may operate effectively within their respective spheres; 21-533 defining grand larceny, and 21-534 providing its penalties. So it is, that a person who has been convicted of stealing an automobile, or motor vehicle, of the value of fifty dollars ($50) or more is guilty of grand larceny, and he is to be punished for his crime by confinement at hard labor for not less than five nor more than fifteen years.
It is true that 21-534 sets harsher penalties for stealing certain property, i. <?., automobiles, horses, etc., if their value be sufficient to make their theft grand larceny, than for stealing other kinds of property of equivalent worth. However, no contention is made by the defendant that the classification is arbitrary or beyond the power of the legislature to create. Indeed, identical classifications have appeared in our statutes without challenge for many years, long before the present 21-533 was passed in 1959.
In 52 C. J. S., Larceny, § 158, it is said:
“. . . Special, and generally more severe, penalties are prescribed in many jurisdictions on conviction of larceny depending on the circumstances, such as . . . the theft of certain kinds of property, such as horses, cattle, automobiles. . . .” (p. 1015.)
Such is the situation in Kansas. In Edwards v. Hudspeth, 159 Kan. 37, 151 P. 2d 698, this court recognized the existence of such distinctions and, on page 38, said:
“It will be noticed that the lawmakers have seen fit to provide that one who steals an automobile shall be punished more severely than had his offense been that of stealing some other form of property. . . .”
Our purpose, in the interpretation of statutes, is to arrive at the real intention of the legislature. (White v. Kansas City, 102 Kan. 495, 170 Pac. 809.) In so doing, statutes are to be read together and harmonized, if at all possible, to the end that all may be given force and effect. (In re Estate of Park, 147 Kan. 142, 75 P. 2d 842; Marshall v. Marshall, supra.)
Recause there is no basic inconsistency between 21-533 and 21-534, as they are now constituted, we are not entitled to infer, from the passage of the present statute, any intent on the part of the 1959 legislature to do away with increased penalties for grand larceny when the property stolen was either a motor vehicle or a certain favored animal.
It is obvious that in 1959 the legislature did intend to abolish the form or kind of property taken as a factor in the definition of grand larceny. However, we believe it equally clear that the legislature had no intention of emasculating 21-534, insofar as increased penalties for grand larceny are concerned, when the purloined articles are either motor vehicles or various barnyard animals of the required value.
We must assume that members of the 1959 legislature were well aware that for many years Kansas statutes had made provision for penal sentences of longer duration for the larceny of certain forms of property, specifically motor vehicles and livestock, than for others. Had any change in that legislative policy been intended, such a change could have been accomplished easily and explicitly by the amendment of 21-534 in the desired particulars. That no change was made indicates the legislative recognition of a continuing need for the imposition of harsher sentences for grand larceny, when the subject of the larceny is property which is more mobile or easier of access than other forms of property of equivalent value.
The defendant points to various decisions of this court in support of the sentence imposed, but, upon examination, we find they do not sustain his position. The cases which are cited announce the rule that where statutes are in irreconcilable conflict, the one last enacted will prevail. We are in agreement with this rule of law, but it has no application in the case before us. As we have previously stated, there is no contradiction between 21-533 and 21-534, as they are read and construed together.
We conclude that the trial court erred in imposing its sentence against the defendant, and that this case must be reversed with directions to impose a legal sentence in accordance with the views herein expressed.
It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court of Johnson County, Kansas, denying appellant’s motion under K. S. A. 60-1507 to vacate, set aside or correct a prior judgment and sentence of that court in a criminal action.
During the course of the proceeding appellant was given a full and complete hearing. He was present in person and represented by court-appointed counsel at all times and was given an opportunity to bring in all witnesses he desired to testify in his behalf. In fact the record discloses the testimony of the witnesses consists of one hundred ninety-three pages.
At the close of the hearing the trial court made extensive and comprehensive findings of fact and conclusions of law which, except for some differences between the parties as to the sufficiency of the evidence sustaining them, disclose the informative facts required to give readers of this opinion a full and complete understanding of the factual picture and issues on which contentions made by the parties in this case must stand or fall. Therefore we quote at length from the journal entry.
“Findings of Fact”
“1. In January, 1955, a preliminary hearing was held in the Magistrate Court of Johnson County, Kansas, on a complaint and warrant charging the defendant, Ray R. Tipton, and a co-defendant, Mary Callahan, with the crime of murder in the first degree. The Magistrate Judge appointed Lyndus A. Henry, a duly licensed and regularly practicing attorney in Johnson County, Kansas, to represent the defendant Tipton at the preliminary hearing. Mr. Henry was present and participated in said hearing. The defendant Tipton, along with the co-defendant Mary Callahan, was bound over for trial to the District Court of Johnson County, Kansas.
“2. An information was filed by James H. Bradley, County Attorney, charging the defendant Tipton and Mary Callahan with the crime of murder in the first degree. At the arraignment in the District Court Mr. Henry was reappointed to represent the defendant Tipton. Tipton entered a plea of not guilty.
“3. Henry held frequent conversations with Tipton after the preliminary hearing. Henry advised Tipton that the County Attorney and Sheriff had developed a substantial case against him; that under the State’s evidence he alone could be convicted for the crime; and possibly the death penalty would be warranted. Henry advised Tipton of the possible penalties for conviction of the crime of murder in the first degree.
“4. Henry advised Tipton that if he had a good defense, he should tell his full story, plead guilty and throw himself on the mercy of the Court.
“5. Several days after the conversation related in Finding No. 4, Tipton told Henry he wanted to tell the truth and proceeded to tell his story to Henry. Henry advised Tipton that the facts as related, in his opinion, made him guilty as an accessory before the fact.
“6. After a discussion between Henry and Tipton and at Tipton’s request, Henry told him that he would see Bradley and ascertain if the State would consider a lesser plea if he (Tipton) told the truth like he had to Henry.
“7. After some conversation between Bradley and Henry in which Bradley said he was going to try Tipton for first degree murder before Mrs. Callahan and ask for the death penalty, Bradley said if Tipton would cooperate with the State, tell the truth and testify against Mrs. Callahan, he would try Mrs. Callahan’s case first and not ask for the death penalty for Tipton. Bradley further stated that after Tipton had served some time, and in the event he applied for executive clemency, that Bradley would be willing to write a letter on Tipton’s behalf regarding Tipton’s participation and cooperation in the trial of Mrs. Callahan.
“8. Henry then conveyed to Tipton the contents of his conversation with Bradley as related in Finding No. 7 above.
“9. Tipton told Henry he was willing to tell his story and testify against Mrs. Callahan at her trial. He also told Henry he was willing to throw himself on the mercy of the Court and enter a plea of guilty. This information was conveyed to Bradley by Henry.
“10. Tipton testified as a State’s witness in the first trial of Mrs. Callahan held March 28 through April 6, 1955. Mrs. Callahan was convicted of the crime of murder in the first degree. At the trial, Tipton, in his cross-examination by Mrs. Callahan’s attorney, testified that he had been promised nothing for testifying against Mrs. Callahan and that he had no hopes of obtaining leniency for so testifying.
“11. Tiptons case was called for trial on April 11, 1955, and at that time he asked leave to withdraw his plea of not guilty and enter a plea of guilty to the charge of murder in tire first degree. Before accepting his plea of guilty, the Court heard evidence for the purpose of determining punishment, which evidence included Tipton’s own testimony. He testified that he had told the truth regarding his participation in the crime, had done so freely and without hope of reward or fear of punishment. Bradley recommended to the Court that the death penalty not be imposed. Tipton’s plea of guilty was accepted by the Court and he was sentenced to life imprisonment.
“12. At the second trial of Mrs. Callahan, held September 10 through September 19, 1956, Tipton again testified as a State’s witness. In response to questioning on cross examintaion by Mrs. Callahan’s attorney, Tipton said no promises had been made and no consideration was given him for turning State’s evidence, and that there were no ‘deals before or after.’
“13. Tipton by and through his attorney, Henry, filed several applications for executive clemency since the time of his conviction. All of the applications have been denied.
“14. On October 5, 1962, Bradley sent a letter to Mr. Charles McAtee, Pardon and Parole Attorney for the Governor, in which Bradley outlined Tipton’s participation in the crime and also the fact that Tipton testified for the State in both of Mrs. Callahan’s trials (see State’s Exhibit No. 2).
“15. Tipton’s plea of guilty, entered on April 11, 1955, was not made in reliance upon any promise of the county attorney, Bradley, or his own attorney, Henry, that he would be granted executive clemency. At the very most, Tipton was told by Henry that he (Henry) would attempt to obtain executive clemency for Tipton and that Bradley would write a letter regarding Tipton’s participation and cooperation such as is related in Finding No. 7 above.”
“Conclusions of Law”
“1. Tipton’s plea of guilty on April 11, 1955, was freely and voluntarily entered by him with full knowledge of the probable consequences thereof.
“2. Tipton’s plea of guilty was not induced by promises and misrepresentations on the part of the County Attorney, Bradley, or his own attorney, Henry, as to the probable or collateral consequences of said plea.
“3. There was no fraud perpetrated upon Tipton by either the County Attorney, Bradley, or his own attorney, Henry, in respect to his entering a plea of guilty.
“4. Tipton, from the time of his preliminary hearing up to and including the time of his sentence, was represented by Lyndus A. Henry. Mr. Henry was and is a competent, well-qualified attorney, and at all times represented Tipton in a reasonably proper manner.
“5. The Court had jurisdiction to accept Tipton’s plea of guilty and sentence said defendant to life imprisonment.
“6. Tipton’s plea of guilty and his sentence to life imprisonment did not violate the 5th, 6th and 14th Amendments to the Constitution of the United States or the Bill of Rights to the Constitution of the State of Kansas.
“7. The defendant Tipton’s Motion to Vacate Judgment and Sentence is denied, and the costs of this proceeding are taxed against the movant.
“Dated this 13th day of March, 1964.”
Following the adverse findings, conclusions and judgment, heretofore set forth at length, appellant’s motions to amend the trial court’s findings of fact and for a new trial on all issues were denied. Thereafter he gave notice of his appeal from the court’s decision and judgment of March 13, 1964. Later, and on March 27, 1964, his motions for free records and appointment of counsel for purposes of review of the judgment on appeal were overruled, without prejudice to future action, and, at the same time, Wilson E. Speer, court-appointed counsel, who had represented appellant in the district court throughout the entire (60-1507) proceeding, was relieved from further appointment in the case.
Subsequently, and on June 15, 1964, the district court made an order authorizing appellant to proceed in the case on appeal in forma pauperis, pursuant to Rule 6(m) of this court. Still later, and on October 22,1964, such court, on its own motion, set aside its prior ruling denying appellant’s motion for appointment of counsel and, pursuant to this court’s Rule 121(m), sustained appellant’s prior motion for appointment of counsel on appeal. On the same day the court appointed Wilson E. Speer as counsel for appellant for purposes of prosecuting his appeal from its order denying him relief under 60-1507, supra. Mr. Speer fulfilled this obligation by filing a proper record and brief and by orally arguing the cause on the date appellant’s appeal was heard by this court on its merits.
The nature of the grounds on which appellant based his right for relief in his motion under 60-1507, supra, appear from the heretofore quoted findings and conclusions of the trial court and need not be labored. The points relied on by him in his appeal from the ruling on that motion, which will be presently considered and disposed of in the order in which they are identified in his statement of points, read:
“1. The evidence does not support but contradicts the Court’s findings of fact.
“(a) that appellant’s court appointed counsel accurately conveyed to appellant the contents of his conversation with the county attorney,
“(b) that appellant informed his counsel that he was willing to throw himself on the mercy of the court,
“(c) that appellant’s plea was not made in reliance upon any promise of the county attorney or his own court-appointed defense counsel.
“(d) that appellant had full knowledge of the probable consequences of his plea,
“(e) and that his court appointed counsel represented him in a reasonably proper manner.
“2. The Court erred in omitting to find that appellant’s plea was changed to guilty upon his court appointed counsel’s recommendation and pledge to obtain clemency, and as a result of appellant’s belief that clemency would in fact result if he continued his cooperation.
“3. The Court erred in ruling as a finding of law that appellant’s rights under the Fifth, Sixth and Fourteenth Amendments of the Constitution of the United States and the Kansas Bill of Rights were not violated when the evidence showed that appellant changed his plea from not guilty to guilty in a capital case through the inducement of his own misunderstanding of the sentence to be imposed as a result of remarks or conduct of his court-appointed counsel and the failure of such counsel to afford full disclosure of the nature and duration of the sentence and the limitations upon any means of minimizing the effect of such sentence.
“4. The Court erred in admitting any evidence offered by the appellee when the appellee failed to file any responsive pleading to* appellant’s motion under section 60-1507 of the Code of Civil Procedure.”
Subsections (a) to (e) incl., of appellant’s point 1, are all based upon tbe premise the evidence does not support but contradicts the findings of the trial court. These findings, it is to be noted, were made by the same district judge who was called upon to preside and pass sentence upon the appellant at the time he entered the 1955 plea of guilty to murder in the first degree. Nothing would be gained by here laboring the evidence of record. It suffices to say we have carefully reviewed a long, tedious and confusing transcript and are convinced appellant’s position “the evidence does not support but contradicts the trial court’s findings of fact” lacks merit and cannot be upheld. Indeed, based upon our examination of the entire record the very most that can be said for appellant’s position with respect to the claims of error now under consideration is that, while there may have been some evidence to the contrary, the record discloses an abundance of substantial competent evidence to support the findings, hereinabove identified as (a) to (e) incl. — thus bringing appellant’s claims of error regarding such findings squarely within the long-established and decisive rules, recently reiterated in one of our latest decisions. See Finnell v. Patrons Co-operative Bank, 193 Kan. 354, 394 P. 2d 116, where it is held:
“Where the trial court’s findings are attacked because of insufficiency of the evidence, the power of a reviewing court begins and ends with the determination of whether there is any substantial evidence to support the findings.
“It is the function of the trier of facts, not a reviewing court, to determine which witness and what testimony it should believe.” (Syl. ¶¶[ 1, 2.)
From a factual standpoint the difficulty with appellant’s claims with respect to his second point is twofold. In the first place the record does not warrant a conclusion his plea of not guilty was changed to guilty upon the recommendation of Henry, his court-appointed counsel. On the contrary its fair import is, that after being fully advised by Henry as to what could well happen if in view of the evidence known to be in the hands of the prosecuting authorities he were to stand trial on his plea of not guilty, appellant concluded it would be to his best interests to enter a plea of guilty to murder in the first degree with the understanding the state would not ask for imposition of the death penalty. With this in mind he changed his original plea and, as is obvious, the death sentence was not imposed. Secondly, the record before us does not disclose that Henry ever unqualifiedly promised appellant he would obtain clemency for him. The utmost that can be said for this phase of the claim is that Henry told appellant he would try to obtain clemency. In this connection it is interesting to note that following appellant’s conviction and sentence Henry more than fulfilled that promise by making several unsuccessful attempts through the proper state authorities, to obtain clemency for him. In view of what has been heretofore stated it cannot be successfully argued the court erred in failing to make the finding referred to in the point now under consideration.
What has been stated and held up to his point could well dispose of this appeal. However, we are not averse to giving consideration to the two remaining points on which appellant relies as grounds for reversal of the judgment.
In point 3, wherein appellant challenges the trial court’s finding and conclusion No. 6, supra, to the effect his plea of guilty and sentence to life imprisonment did not violate any of his constitutional rights, the gist of all complaints raised by appellant seems to be that Henry, his court-appointed counsel was incompetent and failed to adequately represent him. The reasonable limits of a judicial opinion will not permit a review of all of the evidence supporting the trial court’s conclusion. It suffices to say the record discloses that at the time Henry was appointed counsel in the criminal action resulting in the involved judgment and sentence he was an able and experienced practicing attorney who had represented other criminals and was familiar with the criminal law of this state and that after he had accepted the appointment, as appellant’s counsel, he diligently, faithfully, conscientiously, and competently performed the duties required of him under such appointment. Moreover, the record further discloses that all insinuations and contentions of appellant to the contrary lack merit and cannot be upheld.
Appellant’s fourth and final point is that the court erred in admitting any evidence offered by the appellee (state) when the appellee failed to file any responsive pleading to his 60-1507 motion. There are at least two sound reasons for denying appellant’s claim on this point. In the first place there is nothing in this record to indicate, in fact it is not even suggested, that appellant made any objection to the evidence offered by appellee during the hearing on the motion. In that situation the long established rule of this court is that he cannot now complain because appellee’s evidence was either offered or admitted. In the next place — as we construe the provisions of 60-1507 — when a full and complete evidentiary hearing is afforded a plaintiff under its terms it is neither necessary nor required that the defendant answer or otherwise plead to the plaintiff’s motion in order to refute the allegations of the motion or the evidence offered by the plaintiff in support thereof. See Gard’s Kansas Code of Civil Procedure Annotated § 60-1507 [b], p. 707.
We find nothing in the record or in arguments advanced by appellant with respect thereto which either warrants or permits a reversal of the trial court’s judgment and it must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the State in a proceeding initiated pursuant to K. S. A. 60-1507, wherein a prisoner in custody under sentence of a court of general jurisdiction claimed the right to be released upon the ground that he was denied due process of law and was unjustly, unlawfully and illegally confined in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. The trial court after granting the petitioner an evidentiary hearing, vacated and set aside the sentence which it originally imposed, and ordered the petitioner’s discharge from imprisonment.
The underlying question in the case is whether the petitioner’s constitutional rights have been violated.
The provisions of 60-1507, supra, are new to Kansas law, having been enacted as a part of the Laws of 1963, Chapter 303, commonly referred to as the new code of civil procedure, which became effective January 1, 1964. It follows the language of a federal statute, 28 U. S. C., §2255 (originally enacted in 1948). It may therefore be said the body of federal law which has developed under § 2255, supra, should be given great weight in construing the provisions of 60-1507, supra, in the Kansas law. (See, Webb v. Comm'rs of Butler Co., 52 Kan. 375, 34 Pac. 973; and Hanson v. Hoffman, 150 Kan. 121, 91 P. 2d 31.)
The provisions of K. S. A. 60-1507(a) read:
“Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.”
Unless the motion and the files and records of the case conclusively show that a prisoner is entitled to no relief, section (b) of 60-1507, supra, directs the trial court which imposed the sentence to grant a prompt hearing upon the motion, determine the issues and make findings of fact and conclusions of law with respect thereto.
To implement proceedings under 60-1507, supra, this court on the 16th day of October, 1964, promulgated Rule No. 121 (now appearing in 194 Kan. p. xxvii). Procedurally this rule is quite extensive in that it embodies the substance of many federal decisions determined pursuant to § 2255, supra, of the federal code.
Prior to the adoption of the foregoing rule, J. Richard Foth and Arthur E. Palmer wrote an article entitled “post conviction motions UNDER THE KANSAS REVISED CODE OF CIVIL PROCEDURE” published in 12 Kan. L. Rev. 493 (May, 1964). This article is well written and should serve to enlighten the legal practitioner coming to grips with 60-1507, supra, for the first time.
The provisions of 60-1507, supra, may be invoked only by one in custody claiming the right to be released. Section (a) authorizes the prisoner by a motion to make a collateral attack upon the judgment in the court where it was rendered. The motion to vacate is a civil remedy. It is to be noted Rule No. 121(a) states:
“Nature of Remedy. Section 60-1507 is intended to provide in a sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in districts courts in whose jurisdiction the prisoner was confined. A motion challenging the validity of a sentence is an independent civil action which should be separately docketed, and the procedure before the trial court and on appeal to the Supreme Court is governed by the Rules of Civil Procedure insofar as applicable. No cost deposit shall be required.”
While the motion attacks the judgment in the criminal case it is separate from the criminal case and is, in fact and theory, a new case. The motion should be given a separate docket number and be captioned in a manner which will describe the new case and not cause confusion with the previous criminal case.
In Heflin v. United States, 358 U. S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 (1959), it was said the motion under 28 U. S. C., § 2255, attacks a judgment in a criminal case, but in fact and in theory it is a new case; that since a proceeding under this section is in the nature of a civil action, regular pretrial procedure could be utilized.
In the case presently before the court the motion was filed in the original criminal action as docketed in the district court of Johnson County, Kansas, but the sentencing court considered it an independent civil action. Under the circumstances, we do not regard this variance to be fatal. We will consider the motion as having initiated an independent civil action to which the rules of civil procedure apply.
Rule No. 121(h) of the Supreme Court regarding presence of the prisoner states:
“Presence of Prisoner. The prisoner should be produced at the hearing on a motion attacking a sentence where there are substantial issues of fact as to events in which he participated. The sentencing court has discretion to ascertain whether the claim is substantial before granting a full evidentiary hearing and requiring the prisoner to be present.”
The foregoing rule regarding the presence of the prisoner is substantially the decision of the United States Supreme Court in United States v. Hayman, 342 U. S. 205, 96 L. Ed. 232, 72 S. Ct. 263 (1952), under § 2255, supra, of the federal code.
While the motion in this case was heard by the sentencing court prior to the promulgation of Rule No. 121 of the Supreme Court, it may be said the trial court conducted the proceeding in substantially the manner outlined by Rule No. 121. The prisoner was granted an evidentiary hearing at which he was present and testified. It was apparent the motion presented substantial questions of law and triable issues of fact, by reason of which the trial court appointed counsel to assist the movant, an indigent person. (See, Rule No. 121 [¿]; and Townsend v. Sain, 372 U. S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 [1963].) The appointment of counsel to represent the indigent prisoner was no doubt designed by the sentencing court to meet the standards of a “fair” hearing set out in Townsend.
On the issues raised by the prisoner in this case only a full and fair post conviction hearing in the sentencing court would render it unnecessary to relitigate the issues in full, first in a state action and again in a federal forum.
In speaking of the proceeding conducted pursuant to § 2255, supra, of the federal code, the United States Supreme Court in Sanders v. United States, 373 U. S. 1, 10. L. Ed. 2d 148, 83 S. Ct. 1068 (1963), said:
“. . . the imaginative handling of a prisoner’s first motion would in general do much to anticipate and avoid the problem of a hearing on a second or successive motion. The judge is not required to limit his decision on the first motion to the grounds narrowly alleged, or to deny the motion out of hand because the allegations are vague, conclusional, or inartistically expressed. . . .” (p. 22.)
On this point see K. S. A. 60-1507(c) of the Kansas code and Rule No. 121(d) of this court.
We shall turn now to the proceedings before the trial court in the instant case.
The petitioner alleged in his motion to vacate the sentence that he was unjustly, unlawfully and illegally detained by the superintendent at the Kansas State Penitentiary, Lansing, Kansas. He alleged that agents of the sheriff and county attorney of Johnson County, Kansas, told him he was guilty of forging and falsely offering numerous checks which were in the possession of the county attorney’s office, and which were written and tendered in violation of the laws of the state of Kansas; that the petitioner was further advised unless he entered a plea of guilty to one of the check charges, he would undoubtedly be sentenced for a period of 30 to 50 years in the state penitentiary as an habitual by reason of two prior felony convictions. The petitioner further alleged he was additionally informed that unless he entered a plea of guilty, his wife, who was a minor at the time, would be prosecuted and imprisoned.
He alleged that after a long period of interrogation he finally agreed to plead guilty to one of the charges against him upon the promise that charges would not be brought against his wife, and that the State would ask the court for a 1 to 10-year sentence against him; that during all interrogation by the officers of Johnson County and the agents of the State of Kansas, and during all negotiations with said petition, the petitioner was not afforded the assistance of legal aid or counsel. He then alleged:
“5. That on the 17th day of June, 1968, petitioner was arraigned before Judge William S. Allen and the Journal Entry of said arraignment states that the defendant was charged with two counts of forgery and the preliminary hearing was set for July 8, 1963, at 3:30 p. m. The petitioner was not represented by counsel at the preliminary hearing nor did he have the opportunity to talk to counsel, have legal assistance before or during said preliminary hearing. Petitioner had no knowledge of criminal law or procedure and was not informed of any rights he may have up to and including the time for the preliminary hearing.
“6. Thereafter, on the 28th day of June, 1963, petitioner again appeared before Judge William S. Allen and on motion of the State’s representative, James A. Wheeler, Count Two of the amended complaint, which is attached and made a part of this petition and marked Exhibit A was dismissed. At said time petitioner waived a preliminary hearing on Count One of the said complaint. Petitioner was bound over to The District Court of Johnson County, Kansas, for trial on felony charges as set out in Count One of the amended complaint. Bond was set at One Thousand and 00/100 ($1,000.00) Dollars. Petitioner was not represented by counsel at this stage of the proceedings and was not informed of the consequences and ramifications of waiving the preliminary hearing. Petitioner is not versed, cognizant nor familiar with the intricacies of criminal law and procedure and therefore could not understand the effect that such a waiver would have on his constitutional rights without the assistance and aid of legal counsel.
"7. On the 28th day of June, 1963, petitioner herein was brought before the Honorable Clayton Brenner. Petitioner at this time was represented by Court-appointed counsel who waived a formal reading of the information. Petitioner’s Court-appointed counsel entered a plea of guilty to Count One of the amended complaint in behalf of the petitioner. At said sentencing Mr. James Wheeler, Assistant County Attorney of Johnson County, Kansas, asked that the normal sentence for forgery which will not be for more than ten (10) years as set out in K. S. A. 21-631 be disregarded and that petitioner should be sentenced for a period of two (2) to twenty (20) years as set out in K. S. A. 21-107(a). At all times prior to said sentencing petitioner had been informed and was under the impression that if he pleaded guilty, he would be sentenced for a period of not more than 1-10 years. Petitioner did not have ample opportunity to talk to the aforementioned Court-appointed counsel; that the total time spent with the Court-appointed counsel was between three (3) to five (5) minutes; that said Court-appointed counsel did not inform him of Iris constitutional rights nor did he inform petitioner that the State intended to ask the Court for a 2-20 year sentence.”
Petitioner further alleged that he was indigent; that he was induced to plead guilty by reason of the erroneous promises and misrepresentation made by the agents of the State of Kansas, by reason of which he has been denied due process of law and is unjustly, unlawfully and illegally confined in violation of the Constitution of the United States. Wherefore, he prayed that the sentence be vacated and set aside, and that he be discharged from sentence and imprisonment.
The information pursuant to which the petitioner was tried alleged that he forged a check in the amount of $125, constituting forgery in the second degree. (K. S. A. 21-608.)
The justiciable issues suggested by the foregoing motion under 60-1507, supra, are: (1) Was the plea of guilty entered by the petitioner in the criminal case voluntarily made and free from coercion and misrepresentation; and (2) was the petitioner adequately represented by competent counsel in the criminal case. They present triable issues of fact and substantial questions of law.
The record on appeal discloses the petitioner was not represented by counsel until he was brought before Judge Brenner in the district court of Johnson County, Kansas, for arraignment on the 28th day of June, 1963. At that time Lawrence T. Loftus, an attorney, was appointed to represent the petitioner.
At the hearing in the lower court a transcript of the proceedings at the arraignment, plea and sentencing was presented in evidence. The transcript discloses that court-appointed counsel for the petitioner waived formal reading of the information and indicated the petitioner’s intention to enter a plea of guilty to the charge.
The transcript then discloses the following:
“The Court: How old are you?
“The Defendant: Twenty-seven.
“The Court: You understand that your attorney has for you waived the formal reading of the Information, which is the formal charge setting out the crime of forgery under Section 21-609 [sic, 21-608] of the 1949 General Statutes of Kansas? This is forgery of a check, and he has entered a plea of guilty for you. Do you understand that?
“The Defendant: Yes, Your Honor.
“The Court: Do you have any legal reason to state why the sentence of the Court should not be imposed upon you at this time on your plea of guilty to forgery under this statute?
“The Defendant: No.
“The Court: The penalty provision is Section 21-631. It provides that penalty shall not be more than ten years. Do you have any reason why the normal penalty should not be imposed, Mr. Wheeler?
“Mr. Wheeler: Yes, we do, Your Honor. On May 2, 1955, Raymond Walton Richardson was convicted of forgery in the second degree and was sentenced to Lansing, Kansas, for one to ten years. This gives him a prior conviction under 21-107a. We ask that the second provision of 21-107a be applied here and the sentence be not exceeding twenty years.
“The Court: Have you had notice of this request, that the State was going to ask for it?
“Mr. Loftus : Yes, Your Honor, we have.
“Mr. Wheeler: And I believe the defendant also had notice, did you not, Mr. Richardson?
“The Defendant: Yes.
“The Court: The penalty under the statute which I just related, Section 21-631, sets forth not more than ten years, and 21-107a of the General Statutes of Kansas, that on a second conviction of a felony the penalty shall be not less than double the normal penalty. Do you have any legal reasons to state why this sentence of the Court should not be imposed upon you at this time?
“The Defendant: I don’t.
“The Court: It is the order, judgment, and sentence of the Court that you be confined at hard labor in the Kansas State Penitentiary for a period of not more than twenty years, and that you pay the costs of this action including a fee of $10.00 hereby allowed to Mr. Loftus as your attorney in this case. Commitment is ordered issued. You are remanded back to the custody of the Sheriff.”
The State’s Exhibit No. 1, being the forged instrument, was also introduced in evidence.
Thereupon testimony of the petitioner was taken. He testified in substance that he was arrested on June 17,1963, and arraigned in the magistrate court of Johnson County. The charges were read to him and bond was set. The date for his preliminary hearing was scheduled. He had no money to put up a bond and he was not represented by counsel. Later in the week of June 17th Mr. Ed Hays, county probation officer, talked with him while he was in jail. Mr. Hays was not iiie petitioner’s parole officer. The nature of this conversation was essentially that if the petitioner did not plead guilty, the prosecution was going to ask for a 30-year to life sentence in the penitentiary. The petitioner was not represented by counsel during this conversation with Mr. Hays.
Also during the week of June 17, 1963, Mr. James Wheeler, assistant county attorney for Johnson County, Kansas, and Mr. Charles Lane of the sheriff’s patrol conversed with the petitioner. Petitioner informed both parties that he was not guilty of the charges, and that he would therefore not plead guilty. In the conversation Mr. Wheeler indicated that he would “throw the big bitch” at the petitioner (which in more formal language means the maximum sen tence authorized pursuant to the habitual criminal act for a third time felony conviction) but that if the State did not have to go through the expense of trying him, Mr. Wheeler would recommend a 2 to 10-year sentence to the court. The petitioner was not represented by counsel during these conversations with the county attorney’s office and its agents, and the petitioner did not have a chance to confer with counsel prior to these negotiations.
While the petitioner was incarcerated in the Johnson County jail for failure to post bond, papers were served upon him giving him notice that charges of forgery were being brought against his minor wife in the Johnson County probate court. Petitioner’s wife was eighteen years of age and it was the petitioner’s belief that his wife could be sent to the women’s state penitentiary if found guilty of such charges.
After further negotiations with the county attorney’s office and its agents, the petitioner was promised that two of the three charges would be dismissed against him and that a 1 to 10-year sentence would be recommended to the court if the petitioner would change his plea to guilty. Since the petitioner was facing a possible life imprisonment, and since he did not know what the State could or would do with respect to his minor wife, he decided to change his plea. He was told that if he would plead guilty they would not press charges in the district court on his wife. These negotiations with the county attorney’s office extended over a 12-day period, and at no time during these negotiations was the petitioner represented by legal counsel, nor did he have funds with which to employ an attorney.
On the 28th day of June, 1963, the petitioner was again brought before the magistrate court. Petitioner testified that no mention was made of a preliminary hearing on this second appearance before the magistrate court, and that he never requested a preliminary hearing. He testified that he asked for a lawyer at this time and he also waived preliminary hearing. He was told he would be represented by counsel when he was arraigned in the district court.
Shortly after the petitioner was bound over to the district court on the 28th day of June, 1963, by the magistrate court, he was taken before the Hon. Clayton Brenner, judge of the district court of Johnson County, Kansas, division No. 2, where Lawrence T. Loftus, was appointed to represent him as counsel.
At this time the petitioner was in the courtroom in the presence of two other indigent defendants whom Mr. Loftus was also ap pointed to represent. When the petitioner conferred with Mr. Loftus, all three defendants were conferring with him simultaneously or for brief periods of time individually in the presence of each other.
The petitioner testified on direct examination concerning his consultation with Mr. Loftus, his counsel, as.follows:
“The first time I had, an opportunity to talk with an attorney was when I was arraigned before this court. They called my case to docket and they appointed Mr. Loftus as my counsel. Then they stopped proceedings of the other hearing so I had appropriate time to speak with my counsel. At that time he had three of us to speak with. We were all on the bench here in the courtroom. I spoke with Mr. Loftus approximately twenty to thirty seconds at four different periods. He asked me if I was going to plead guilty and I said, ‘Yes, I was going to plead guilty to a two-to-ten-year sentence.’ That is what had been promised me. He told me I couldn’t receive a two-to-ten-year sentence. He said I could only receive a one-to-ten. This was something to do< with the statute. He explained that a check charge is one-to-ten.
“I was not given a copy of the information or the charges at this time. I received a copy of a complaint and a warrant on the three different charges. I was not presented with a copy of the information to know what actually I was being charged with during the eleven-day period. Mr. Wheeler just told me I had waived preliminary on this check charge and I would be brought before the court tire same afternoon and plead guilty to that charge. I was primarily concerned with the number of years I was going to serve. If I am going to plead guilty to a charge I want to know how many years I am going to do.
“Mr. Loftus really gave me no advice. He asked me if I had any prior record. I told him “Yes.’ He asked what the prosecution was going to do. I told him about the two-to-ten-year sentence. Then he informed me that this wasn’t the proper sentence. He said, ‘The prosecution isn’t going to bring the habitual act?’ I told him they were not. I am familiar with the habitual criminal act. We did not talle about the facts of my case. I didn’t ask him if he felt these facts constituted forgery. I didn’t ask him anything.
“When I was before Judge Brenner I felt the sentence would be one-to-ten. This was one of the primary reasons I entered a plea of guilty. I am not an attorney. I have no knowledge of the law that I feel would enable me to represent myself in a criminal matter. I have had formal education through the first six weeks of the 10th grade.”
On cross examination tbe petitioner stated that he did not request to plead guilty but after the conversation he had with Mr. Lane and Mr. Wheeler, he communicated through Mr. Lane to Mr. Wheeler that he desired to plead guilty after Mr. Wheeler had explained the habitual criminal act to him. He further testified he had two or three prior convictions. He admitted two of these convictions were prior felony convictions in the state of Kansas, in one of which he was sentenced to the State Industrial Reformatory and in the other he was sentenced to the state penitentiary at Lansing. He further testified on cross examination:
“I tallied with Mr. Loftus in the courtroom sitting on the bench with Mr. Berles and Mr. Mayes. I tallied with Mr. Loftus myself about three or four different times. I advised him that I had already made my own deal. I had all the conversations personally with the county attorney’s office and the sheriff’s office. I really didn’t want to get thirty-to-life. I said if they would not ask for what they termed the “big bitch’ I would plead to a one-to-ten.
“I do not deny that I said on the twenty-eight day of June 1963, what the court reporter has certified to but my mind wasn’t in this court at that time. I was just more or less a statue standing there. My memory would have been better then than now. Mr. Wheeler told me before I ever came to Judge Brenner’s court that the normal sentence is one-to-ten for forgery in the second degree. I believe he told me that the second time, which they call the little bitch, I would be doubled up and it would be two-to-twenty. He told me that if it was the big one that it would be not less than fifteen to life or something like that . He advised me that if the state of Kansas was put to the expense of trying me for this that he was going to ask that the third habitual criminal section be applied. I told him that I wasn’t guilty of the charge. Nobody wants the third habitual criminal section to be applied. I requested to come down and plead guilty after I made arrangements with Charles Lane. The arrangements were two-to-ten.”
The petitioner also denied writing the check in question on cross examination.
Upon interrogation by the court concerning his testimony at his criminal trial the petitioner testified:
"... I made the answers contained in the reporter’s transcript. I answered it that way but meaning actually not knowing this habitual criminal was going to be involved. I did not know that I was going to be sentenced under the habitual criminal act.”
Mr. Loftus testified on direct examination concerning the representation of the petitioner at the criminal trials as follows:
“I reside in Olathe, Kansas, and I am an attorney at law; and I was an attorney at law on June 28, 1963, duly qualified and licensed in the state of Kansas. I confine my practice to Johnson County. I was appointed by Judge Brenner to represent one, Raymond Walton Richardson, on June 28, 1963, in Division 2, Johnson County, Kansas. I spoke to Mr. Richardson and to Mr. Wheeler individually concerning the question of his plea of guilty.
“Question: And concerning what, would you tell the court?
“Answer: The conversations that were had that particular day of my appointment consisted more in the punishment provision of the statute involved in forgery in the second degree as to which particular section of the habitual criminal act was going to be applied.
“When I first talked to Mr. Richardson, I saw the copy of the charges filed against him. That is the information. I had been given a copy of it from the file. In my first cónversation with him, I told him that this carried a one-to-ten. I subsequently found out in talking to Mr. Wheeler and Mr. Richardson that he had a previous conviction, and I talked with Mr. Richardson several times in this short interval of time; at no great length of time was there a long conversation. In fact, we did not leave the courtroom. I subsequently found out there was going to be the habitual criminal act used. I believe that Mr. Richardson was informed of that fact. It was a question at this particular time as to which section of the habitual criminal act was to be used. It is my recollection that Mr. Wheeler told me to tell Mr. Richardson if he did not plead guilty that the third section or the fifteen-to-life section would be used. If he did plead, that the second section would be used. Whether I told him that that carried a two-to-ten, I do not recollect; but I remember that he was notified of the fact that the second section of the habitual criminal act would be used. That was just prior to the time that he entered his plea of guilty. As I said, the actual time involved was very short. I can remember some conversation about his wife, but what the conversation was I do not remember. I do not remember whether I had a conversation with Mr. Wheeler concerning the fact that she would be handled by the juvenile court. When we conferred, Mr. Richardson and I, we did not leave the room. It really wasn’t too private. We were not in separate room together. We were at all times on the bench in the front of the courtroom. I did confer with him individually.”
On cross examination Mr. Loftus testified:
“I talked to Mr. Richardson before I talked to Mr. Wheeler. My recollection of this is all rather vague. It is my recollection that Mr. Richardson told me he wanted to plead guilty. I had a copy of the information in my hand at that particular time. As I remember, I looked at it; and I said, ’This carries one-to-ten, is that what you want to plead to?’ My recollection is that he said, “Yes.’ It was definitely my impression at that time that Mr. Richardson had made his own deal. Essentially, I was just the man to go through the formalities to dispense with the deal. I don’t recall whether I left the information with Mr. Richardson when I was talking to Mr. Wheeler, but I know that he did see it because I had it in my hand at that particular time. We did not discuss his offense at all, because he was talking then about pleading guilty. When I found out that he had a previous conviction for the same particular crime, it was my estimation then that he knew pretty well what his constitutional rights were concerning this particular crime.
“I doubt if I explained to him the niceties or distinctions between the various degrees of forgeries. It was my understanding that he wanted to plead guilty and that all of the preliminary negotiations had been made and that this was just the means to the end which was his plea of guilty.
“I had three defendants sitting over there on the bench. I don’t remember what order I talked to them in but I do remember I would talk to one, then I would talk to them initially as to what the charge was. As I remember, I showed them the information, then I would talk to them. What we talked about, I do not remember. I doubt that I would have had time to explain every minute innuendo of the law and the ramification of it in the particular time I had. It was my understánding that all of this had been explained to them in their negotiations with the county attorney’s office and that they knew full well, especially this particular defendant, at that time what was going on and what their particular rights were at that time, especially since this defendant had had two previous convictions of the same crime. I did not take part in any of these negotiations with the defendant. It was all between the county attorney’s office and the defendant to my knowledge. I was just brought in at the last minute after the deal was made. I don’t know what deals were made beforehand. I did not have a chance to talk to the defendant so I could offer any argument to the Court in way of mitigation of the sentence. I did not know anything about the defendant’s background to tell the Court; for example, that two of these sentences were when he was very young and that type of thing.”
On examination by the court Mr. Loftus testified:
“I do not remember whether I asked him whether or not he was guilty. That is the standard procedure on something like this and whether or not at that time these questions were asked and what words were used I do not remember. I remember that there was conversation just ‘are you guilty or not guilty, you can plead not guilty,’ and what the actual words involved were I do not remember, but I think to the best of my recollection that he was apprised substantially of his rights.
“Cross-Examination.
“I don’t have an independent recollection of the exact conversation that was had but to the best of my knowledge there was a conversation that he didn’t have to plead guilty and along this particular line. Whether I went down and explained individually what his rights were and what the trial would be, I don’t remember.
“Re-Direct Examination.
“I believe he substantially knew what his rights were and was apprised of them. I don’t remember just exactly what caused me to feel this. I remember feeling that this was all very rapid. I believe I felt that because of his prior forgery convictions he understood his situation.
“Re-Cross-Examination.
“The time involved was very short. I came in, I was appointed; and I don’t imagine that there was at the most thirty to forty-five minutes between that time and the time of sentencing.
“Examination by the Cowt.
“All negotiations between the defendant and the county attorney’s office or any of the officers were carried out prior to the time of my appointment, to the best of my knowledge.”
The trial court took the matter under advisement, and on the 3rd day of June, 1964, entered the following order vacating sentence:
“Order Vacating Sentence.
“The court finds:
“The defendant is an indigent person.
“The defendant maintains he is not guilty of the crime with which he is charged.
“The defendant was arrested on June 17, 1963, and his preliminary hearing set for July 8, 1963. He was arraigned. He appeared in the magistrate court on June 28th, 1963, and waived preliminary hearing. At that time and prior thereto he was not represented by counsel.
“The arraignment and preliminary hearing in the magistrate court are critical states of a criminal proceeding, and that an attorney should have been appointed [for] the defendant prior thereto.
“The defendant was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty in the district court of June 28, 1963.
“The sentence imposed on the defendant on June 28, 1963, is hereby vacated and set aside. The defendant is ordered discharged from imprisonment.
“Dated this 3rd day of June, 1964.”
K. S. A. 62-1304, provides that counsel should be appointed for indigent persons about to be arraigned upon an indictment or information for any offense against the laws of the state of Kansas.
The order of the trial court vacating the petitioners sentence states that “The arraignment and preliminary hearing in the magistrate court are critical states of a criminal proceeding, and that an attorney should have been appointed [for] the defendant prior thereto.” The petitioner testified that he was not represented by counsel at the time he waived preliminary hearing. He also testified that he requested counsel be appointed for him at that time. Counsel was first appointed for him prior to his arraignment in the district court upon the information filed against him in that court.
Under the law of Kansas, it is well settled that failure to appoint counsel at a preliminary examination is not error. In so holding this court said in State v. Daegele, 193 Kan. 314, 393 P. 2d 978 (cert. den. January 18, 1965, 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686):
“In the first place, under the laws of Kansas a preliminary examination is not a ‘trial’ in the ordinary sense of the word. (State v. Badders, 141 Kan. 683, 42 P. 2d 943.) The purpose of a preliminary examination for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a trial in the sense that one may be found ‘guilty.’ A defendant is bound over for trial only where the state establishes that an offense has been committed and that there is probable cause for charging him with its commission — otherwise he is to be dis charged. (G. S. 1949, 62-618.) Under the provisions of G. S. 1949, 62-615, a defendant has the right to be assisted by counsel at a preliminary examination, but there is no statute requiring the appointment of counsel in such a proceeding, and it has been held many times that failure to appoint counsel at a preliminary examination is not error. (Fry v. Hudspeth, 165 Kan. 674, 676, 197 P. 2d 945; Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791; State v. Crowe, 190 Kan. 658, 378 P. 2d 89, and State v. Naillieux, 192 Kan. 809, 391 P. 2d 140.) Moreover, the well-established rule is that any so-called alleged (irregularity) pertaining to a preliminary examination is deemed to be waived where a defendant enters a voluntary plea of guilty in tire district court. (Cooper v. Hudspeth, 166 Kan. 239, 240, 199 P. 2d 803; Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987 [petition for writ of certiorari dismissed on motion of petitioner, 340 U. S. 940, 95 L. ed 678, 71 S. Ct. 503]; Plasters v. Hoffman, 180 Kan. 559, 560, 305 P. 2d 858, and Thomas v. Hand, 184 Kan. 485, 337 P. 2d 651.)” (p. 316.)
As early as 1932, the Supreme Court of the United States recognized that an accused in a capital case requires the guiding hand of counsel at every step in the proceedings against him. For many years, this hard and fast rule was imposed upon federal court system, but was not held applicable to the states. State courts followed the “rule of thumb” propounded in the case of Betts v. Brady, 316 U. S. 455, 86 L. Ed. 1595, 62 S. Ct. 1252 (1942), which essentially held that indigent defendants were entitled to court-appointed counsel under the due process clause of the Fourteenth Amendment only under those circumstances where failure to appoint counsel would amount to a “denial of fundamental fairness shocking to the universal sense of justice.”
The landmark case of Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733 (1963), overruled Betts v. Brady, supra, and held that it was no longer necessary for the defendant to show that his rights had been flagrantly violated, but that an indigent defendant was entitled to appointed counsel in all criminal cases unless the right is competently and intelligently waived. The Sixth Amendment to the Federal Constitution which guaranteed the accused in a criminal case the assistance of counsel in federal courts was made obligatory upon the states by the Fourteenth Amendment.
The foregoing doctrine was extended by Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963), which held the Fourteenth Amendment guarantees an indigent criminal defendant the assistance of counsel on appeal in a state court when he has the appeal as a matter of right. Failure to appoint counsel for the indigent was held to be a discrimination between the rich and the poor which violates the Fourteenth Amendment.
Recent decisions o£ the United States Supreme Court have considered the question of when the right to appointed counsel should accrue to an indigent defendant in a criminal case. Under the Federal Constitution, the accused’s right to counsel does not arise in a preliminary hearing unless that hearing constitutes a “critical stage” in the criminal proceeding. The Kansas preliminary hearing, as it is ordinarily conducted, has been held not to be a critical stage in the criminal proceeding. Thus, a waiver of the preliminary hearing may be made without the appointment of counsel. (Latham v. Crouse, 320 F. 2d 120, 122 [10th Cir. 1963], cert. den. 375 U. S. 959, 11 L. Ed. 2d 317, 84 S. Ct. 449 [1963].)
The decisions of the United States Supreme Court indicate that a critical stage is that point in the proceedings when there is at least a reasonable possibility of prejudice to the defendant later at his trial. The possibility of such prejudice was the basis of four recent decisions on this point. In Hamilton v. Alabama, 368 U. S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157 (1961), the defendant was not represented by counsel at the arraignment when vital defenses could be lost. In White v. Maryland, 373 U. S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050 (1963), the defendant entered a plea of guilty at a preliminary hearing, which could be used against him at his trial, at a time when he was not represented by counsel. In Massiah v. United States, 377 U. S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199 (1964), a defendant under indictment made incriminating statements which were surreptitiously listened to by a federal agent and used against him at his trial. These statements were made in the absence of retained counsel. In Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), a prime suspect in a murder case made incriminating statements after he had requested and been denied an opportunity to consult with his retained attorney and without being warned of his right to remain silent. The court held:
“. . . that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as made obligatory upon the States by the Fourteenth Amendment,’ Gideon v. Wainwright, 372 US, at 342, 9 L ed 2d at 804, 93 ALR2d 733, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.” (p---)
The foregoing federal decisions indicate a sharp contrast with the facts in the instant case where at the preliminary hearing no defenses were lost, no plea was taken, and no incriminating statements were made in the absence of counsel.
It is therefore held under both the state and the federal law the lower court erred in holding the appointment of counsel was necessary at the preliminary hearing. It is not a critical stage of the criminal proceeding under Kansas law.
In the petitioner’s motion to vacate the sentence he claims he was induced to plead guilty on the false promise of the prosecution that the habitual criminal act would not be invoked and his sentence would be 1 to 10 years. This allegation is supported only by his own uncorroborated testimony. It is therefore insufficient as a matter of law to form the basis of an order releasing him. (Williams v. Crouse, 193 Kan. 526, 530, 394 P. 2d 96.)
Rule No. 121(g) of the Supreme Court reads:
“Burden of Proof. The movant has the burden of establishing his grounds for relief by a preponderance of the evidence. The uncorroborated statements of the movant shall be insufficient to sustain the burden of proof.”
Furthermore, the petitioner’s claim on this point is contradicted both by the record of the criminal proceedings at which he entered a plea of guilty and by the testimony of Mr. Loftus, his counsel in the criminal proceedings, given at the hearing on the instant motion. When the State asked that the sentence be doubled to not more than 20 years for a second felony conviction under G. S. 1949, 21-107a (now K. S. A. 21-107a) both the petitioner and his counsel stated in open court they had been given prior notice this request would be made by the prosecution. These statements were made immediately after the petitioner’s plea of guilty. Thus, the petitioner knew the sentence would be 20 years when he entered his plea of guilty. Mr. Loftus, his court-appointed attorney in the criminal proceedings, testified pursuant to the hearing on this motion that he had himself conveyed to the petitioner immediately before his plea the intention of the State to seek a sentence for a second felony conviction under the habitual criminal act if he would enter a plea of guilty. He further explained it was the State’s position that if the petitioner did not plead guilty, and was later convicted, the State would request a sentence for a third felony conviction under the habitual criminal act, providing 15 years to life imprisonment.
The lower court’s order vacating the petitioner’s conviction states as a second ground for the decision that the petitioner was not fully nor adequately advised of his constitutional rights at the time of his arraignment and plea of guilty. In effect, the court concluded on the basis of the record that the petitioner’s court-appointed counsel did not completely represent him, thus rendering the proceedings void.
The petitioner’s conviction carries a presumption of regularity. (Andrews v. Hand, 190 Kan. 109, 121, 372 P. 2d 559.) The burden rests upon the petitioner to show that his counsel was so incompetent and inadequate in representing him that the total effect was that of a complete absence of counsel. (Hicks v. Hand, 189 Kan. 415, 417, 369 P. 2d 250; Converse v. Hand, 185 Kan. 112, 115, 340 P. 2d 874; and Miller v. Hudspeth, 164 Kan. 688, 708, 192 P. 2d 147.) The burden is never sustained by the unsupported and uncorroborated statements of the petitioner. (Williams v. Crouse, supra.)
The only evidence introduced on this point was introduced by the petitioner. The petitioner testified that Mr. Loftus spoke with him only twenty to thirty seconds on four different occasions just before his plea. He said he was never shown a copy of the information and that his counsel did not inform him the prosecution intended to double the ordinary 1 to 10-year sentence if he would enter a plea of guilty.
This is contradicted by the testimony of Mr. Loftus that the petitioner was shown a copy of the information, and that he explained to the petitioner that the state intended to use the third felony conviction section of the habitual criminal act unless he would plead guilty, in which event it would use only the second felony conviction section of the act. That the petitioner understood the charge is borne out by his testimony that he had two prior convictions of second degree forgery. That counsel informed him of the State’s intent to use the habitual criminal act is further shown by the statements in the transcript of the criminal proceedings. At that time both counsel and the petitioner, after entering the plea of guilty, stated they had been previously notified that the act would be invoked so as to make the sentence not more than 20 years.
Under circumstances very similar to these, this court in Miller v. Hudspeth, supra, where the petitioner claimed his counsel did not advise him of the meaning of a plea of guilty nor of the possible penalties, said:
“The testimony of Miller with respect to the things he said Harris did not tell him is in conflict with that of Harris, his own witness. Miller’s uncorroborated testimony that he did not know . . . the meaning of a plea of guilty or that he might receive the death penalty is also directly contrary to what the court record discloses the district judge told him. The records of courts are not set aside upon the unsupported statements of a defeated litigant. . . .” (p. 704.)
Also, in Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, this court noted:
“The petitioner makes the specific charge that his court-appointed counsel did not fully explain the significance of a plea of guilty or fully inform him as to the offenses with which he was charged. Here, again, there is only the uncorroborated statement of the petitioner as to this matter and the transcript clearly shows that he advised the district court that, contrary to what he now claims, he had opportunity to counsel with his attorney and that he had done so.” (p. 698.)
. The court holds upon the record here presented the petitioner has not sustained his burden of proof. What the record reveals is that the petitioner agreed to plead guilty on the understanding that only one of his several prior felony convictions would be introduced. He informed his counsel of this intention. Counsel could not under these circumstances seek to change the petitioner’s plan, and risk an increased sentence. Nor did counsel have to explain in detail the elements of the charge, when the petitioner had two prior felony convictions for the same crime. He could only warn his client that he did not have to plead guilty, inform him of the consequences, and ascertain whether he desired to do so. All these things counsel for the petitioner did.
The judgment of the lower court is reversed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment sustaining a demurrer to the plaintiff's evidence in an action for damages resulting from a collision between an automobile and a harvester-thresher combine on an unimproved highway.
The salient facts may be stated thus.
On October 24,1961, at approximately 6:00 p. m. the plaintiff was driving a 1958 Oldsmobile automobile south in the 400 block on South Main Street, in Haysville, Kansas. The street was not improved. The weather conditions were clear and dry. It was dark and the street was dusty. It was necessary to use lights but, even then, the visibility was limited. Plaintiff’s speed was approximately twenty miles per hour. As she proceeded on the west half of the roadway, the traveled portion thereof being approximately twenty-two feet wide, plaintiff observed two lights on the east half of the roadway, which appeared to her to be two bicyclists. It developed the lights were from the front of a Ford Tractor which, driven by the defendant, was pulling an unlighted combine north on the roadway. Unknown to the plaintiff the combine extended approximately four feet beyond the tractor wheels and onto her lane of traffic. As plaintiff passed the lighted tractor she collided with the combine and sustained personal injuries.
At the close of plaintiff’s evidence defendant demurred to such evidence for the reason it failed to show facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, and affirmatively showed plaintiff guilty of contributory negligence.
The trial court sustained the demurrer without stating any particular reason for its ruling and order. Thereupon plaintiff perfected the instant appeal.
Appellee contends that the demurrer was properly sustained for two reasons which, as stated in his brief, said:
“1. Plaintiff’s [appellant’s] evidence fails to show defendant [appellee] guilty of actionable negligence.
“2. Plaintiff [appellant] is guilty of negligence as a matter of law which bars recovery.”
In support of his contention that appellant’s evidence fails to show him guilty of actionable negligence appellee makes rather a unique and ingenious argument. He concedes that appellant’s evidence established the two acts of negligence on which she relies. In this connection appellee states:
“In seeking to establish negligence on behalf of defendant, plaintiff relies on two acts—
“1. Failure to have lights on the combine.
“2. Having a portion of defendant’s combine on plaintiff’s side of the road. There is no question but that the evidence most favorable to the plaintiff establishes both of these facts (albeit, tire record contains contradictory evidence. )
“The question then arises as to whether this is a violation of a duty owed by defendant to plaintiff.”
Appellee next contends that the legislature has completely exempted those operating implements of husbandry on highways from common law negligence and that a farm implement may with impunity be pulled down a highway at night without lights and ex tending over the center of the road. In support of this position he relies on K. S. A. 8-580 (b) which exempts implements of husbandry from the application of the provisions pertaining to equipment and lights and K. S. A. 8-5,113 (c) which exempts implements of husbandry from the provisions of the act governing size, weight and load.
The statutes may exempt farm machinery from certain fixtures, specific types of lights and the over-all size required of motor vehicles by the uniform act regulating traffic on highways. It would be quite impossible for farm machinery to conform to the size of motor vehicles and maintain its usefulness. It would serve no useful purpose to place lights on farm machinery to conform to motor vehicles. Lights must be on the outer-most edge of the equipment or vehicles on the highway to be effective. It was for these reasons that the act regulating traffic on highways exempted implements of husbandry from the operation of the act. However, the act did not exempt those taking implements of husbandry upon the highways from the application of the law of the road which is a general rule that the common law duty of due care for the safety and rights of others rests upon anyone taking machinery or vehicles upon the highway. The exemption was not an open invitation to go upon the highways and commit mayhem with reckless abandonment.
We are cited to and know of no case in this jurisdiction passing on the specific question now under consideration, hence we adhere to the general rule announced in 60 C. J. S., Motor Vehicles, § 371, p. 923, which reads:
“The exemption granted under particular statutes and ordinances is not absolute, but is based on certain conditions, and the fact that a particular vehicle is either expressly or impliedly exempted from the operation of traffic regulations does not relieve the operator of such vehicle from the duty of exercising due care to prevent injury to others, or to himself, nor, under a statute so providing, does it protect the driver from the consequence of an arbitrary exercise of the privileges granted, or a reckless disregard of the safety of others.”
The rule has also been announced in 7 Am. Jur. 2d, Automobiles and Highway Traffic, § 358, p. 904, as follows:
“In a number of jurisdictions, regulatory provisions granting special highway privileges to operators of emergency vehicles do not wholly exempt them from liability for negligence, but require that such operators exercise at least some degree of care while enjoying the privileges conferred. In some instances, operators of emergency vehicles are required to operate them with due re gard for the safety of others using the street. In some jurisdictions this has been held to mean that the conduct of emergency vehicle operators should be measured by exactly the same yardstick as that of other drivers, and although the urgency of their missions demands that they respond to calls with celerity, and when giving audible signals they are, within limitations, relieved from various traffic regulations, they are bound to exercise reasonable precautions against the extraordinary dangers of the situation that the proper performance of their duties compels them to create, reasonable care being a relative term depending upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably impose. It has been held that the requirement of due regard for the safety of others using the street is not satisfied by merely giving an audible signal.”
Appellee relies heavily on the case of Thompson v. Ford, 164 Ohio St. 74, 128 N. E. 2d 111. That case dealt with a statute permitting automobiles to be parked on lighted streets without displaying lights and has no application to the facts before us.
Finally appellee contends that appellant’s evidence shows her guilty of contributory negligence as a matter of law. In support of this contention he relies on our numerous decisions holding a driver guilty of contributory negligence, who rammed into the rear of a stopped or slow moving vehicle, because of failure to correlate speed and ability to stop with ability to see. (Anastasi v. McAllister, 189 Kan. 390, 369 P. 2d 244; Home Insurance Co. v. Boehm, 170 Kan. 593, 228 P. 2d 514; Harrison v. Travelers Mutual Cos. Co., 156 Kan. 592, 134 P. 2d 681; Wright v. Nat'l Mutual Cas. Co., 155 Kan. 728, 129 P. 2d 271; Goodman v. Wisby, 152 Kan. 341, 103 P. 2d 804; Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870; and Chance v. Murry, 143 Kan. 476, 54 P. 2d 981.) We are forced to conclude that the rule announced in the foregoing decisions has no application to the facts presented in the case at bar.
Appellant did not collide with a vehicle which was stopped or proceeding slowly down the highway. She was struck by a vehicle or a machine which was proceeding down her side of the road, in the wrong direction, at night and without lights. True there were lights on the tractor but there were no lights on the combine it was pulling and the combine extended over on the wrong side of the highway. The record fails to disclose how appellant’s correlation of her speed and ability to stop with her ability to see would have avoided the accident. During the course of her examination as a witness appellant was asked questions to which she made answers as follows:
“Q. Through her headlights how far down the road could she see?
"A. I could see the two little lights on the east side of the road that I drought was a bicycle with a couple of boys on because they were real small and close together. They were not car lights.
“Q. Now, as nearly as you can tell me, can you tell me how far down the road you could see in your best judgment?
“A. As I saw the lights.
"Q. As you were traveling down through the dust?
“A. Well, I would say it was about a car length ahead of me as the lights came around the bend that I saw.
“Q. I am not trying to quarrel with you. I am trying to find out how far ahead of your car could you see your headlights?
“A. About a car length ahead of me.” (Emphasis supplied.)
From the foregoing evidence it would appear that even though appellant had come to a complete stop she would have been struck by the oncoming combine. Under such circumstances we must conclude that the evidence did not establish contributory negligence on the part of the appellant as a matter of law.
While appellant was proceeding along the highway she had the right to assume it was safe and that there were no hidden undisclosed defects, such as an unlighted machine approaching on the wrong side of the road without lights.
What has been heretofore stated and held compels a conclusion the demurrer to appellant’s evidence was erroneously sustained.
The judgment is reversed with instructions to grant a new trial.
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The opinion of the court was delivered by
Hatcher, G:
This is an appeal from a judgment in an action brought by the United States and seven Fort Riley Housing Corporations to enjoin the collection and assessment of a personal property tax levied against such corporations by Riley County, Kansas. The corporations were formed at the direction of the Secretary of Defense pursuant to the terms of the Capehart Act.
The Capehart Act provides a means of financing the construction of housing facilities for military and civilian personnel through the medium of government guaranteed loans. Its salient features are government operation and ownership of military housing through the use of private financing as opposed to current appropriations.
The procedure for procuring the financing and construction of the Capehart housing, insofar as here material, may be summarized. The Secretary of Defense, after determining a need for military housing at Fort Riley, Kansas, issued an invitation for bids. The contractor submitting the lowest acceptable bid received a letter of acceptability from the secretary. The letter, in part, required the successful bidders to establish private “mortgagor-builder” corporations under the law of Delaware with paid in capital stock of $1,000, qualified to do business in the State of Kansas, where the housing was to be built; to arrange for a piivate lender acceptable to the Federal Housing Commissioner to finance loans under terms outlined by the letter of acceptability; to cause the mortgagor-builders and the mortgagee-lender to enter the building loan agreements, the form for which was supplied by the United States; to cause the mortgagee-lender to apply for mortgage insurance and take the necessary steps to cause the Federal Housing Commissioner to issue a commitment for insurance to provide insurance during and after construction; to cause the mortgagor-builders to execute leases, the form for which was supplied by the United States, to the United States; to be prepared, at the closing, to execute a performance and payment bond and to enter at that time all documents, including the housing contract, required to be executed by the contractor; and to cause the mortgagor-builders and the mortgagee-lender at the time of closing to execute all the documents required to be executed by them at that time. The documents and contracts required to be executed by the letter of acceptability and the housing contract at the closing were executed in the form prescribed for each of them by the United States.
The mortgagor-builder corporations were each capitalized at $1,000. Pursuant to the letter of acceptability, the contractor purchased the stock of these corporations, elected for each a board of directors and appointed their officers. The stock of the corporations, together with the resignations of their officers and directors, were, in accordance with the terms of the housing contract, placed in escrow with the mortgagee-lender at the time of the delivery of the housing contract. The escrow agreement provided that the stock and the resignations of the officers and directors are to be delivered to the United States either on completion and acceptance of the project, upon termination of the project by the United States at its convenience, upon default of the mortgagor-builder corporations or the contractors, or upon the completion date set forth in the simultaneously executed building loan agreement if none of the other listed events have occurred at that time. The escrow agreement makes no provision for redelivery of the stock and resignations back to the contractor, and the mortgagee-lender, as the depository, is given no discretion, but is required only to make delivery to the United States upon the happening of any of the above-mentioned conditions.
The $1,000 required by the letter of acceptability to be paid by the contractor for the stock of a mortgagor-builder corporation is, in turn, paid over by these corporations to the United States in consideration of the execution of a 55-year lease of government land upon which the military housing is to be built. Under the terms of the lease it is provided, in part, that the leased premises are “to be used solely for the purpose of constructing thereon an Armed Services Housing Project. . . ,” “That the Lessee shall place each housing unit in the Project under the control of the Department . . .,” and “That the buildings, fixtures, and other improvements comprising the Project, including all items required to be furnished as a part of the Project in accordance with the Drawing and Specifications shall be and become real estate and part of the leased premises and property of the United States. . . .” The mortgagor-builder corporations are given no title or right of occupancy of the improvements, but only the use of the premises for the construction of the improvements — a task which is done solely by the constructors.
This leasehold was then mortgaged, the mortgagee-lender agreeing to lend an amount sufficient to finance the construction of the desired improvement which loan was insured by the Federal Housing Commissioner during and after construction of the improvement. While the mortgagor-builder corporation signed the note as primary debtor it was never contemplated that the advance by the mortgagee-lender will be repaid by the mortgagor-builders, for the United States undertakes to repay the note upon completion of the project for its termnation by the United States at its convenience, and the mortgagor-builder was entirely without funds or income.
The bonded contract entered by the United States, the mortgagor-builder and the contractor provided for the construction of the project under governmental supervision and for progress payments to be advanced as needed only on the request of the contractor and the approval of the United States. In addition to the provision in the lease, mentioned above, providing that the improvements are real estate and the property of the United States, it: is stated in the contract that “‘title to all material and work for which progress payments have been made shall, on such payment vest in the Department. . . .”
While the mortgagor-builders, pursuant to the building loan agreement, are to receive the advances from the mortgagee-lender, they have a corresponding duty to “pass on to the eligible builder undiminished and without delay any and all advancements received from mortgage proceeds under the Building Loan Agreement.
. . .” None of the mortgagor-builder corporations has engaged in, suffered or performed any act or conduct other than that prescribed by the housing contract and related documents.
The statute authorizes the Secretary of Defense to redeem the mortgages by the use of current rental and quarters allowances payable to military personnel and that the mortgagor-builder corporations will be dissolved upon redemption of the mortgages.
On January 1, 1962, no part of any of the improvements then in existence had been determined to ibe available for occupancy and no part of any improvements was occupied for dwelling purposes.
Riley County through its authorized officers has levied personal property taxes under K. S. A. 27-102b et seq., for the improvements existing on January 1, 1962, against the mortgagor-builder corporations.
The lower court found that the mortgagor-builder corporations were private corporations and the owners of the uncompleted improvements, which were found to be “housing projects” and held that the Kansas statute was applicable and that its application was not in violation of the Federal Constitution.
The plaintiffs have appealed.
The appellants contend that the property in question was exempt from taxation under that part of G. S. 1949, 79-201 which exempts “All property belonging exclusively to this state or to the United States. . . .”
The appellees contend that the taxes were properly levied under the provisions of K. S. A. 27-102b which reads:
“The property of any private corporation engaged in the business of owning or operating housing projects upon United States military reservations in this state shall be assessed and taxed annually, and the county in which the housing project lies geographically as determined by the descriptions set out in chapter 18 of the General Statutes of 1949 shall have jurisdiction over such housing projects for the purposes of taxation."
and the provisions of K. S. A. 27-102c which states:
“For the purposes of valuation and taxation, all buildings, fixtures and improvements of such housing projects on such military reservations are hereby declared to be personal property and shall be assessed and taxed as such, and the taxes imposed on such buildings, fixtures and improvements shall be collected by levy and sale of the interest of such owner, in the same manner as provided in other cases for the collection of taxes on personal property."
The limited question for determination would appear to be whether under the terms of the above quoted statutes, were the mortgagor-builder corporations “private corporations” and were they “engaged in the business of owning and operating housing projects?”
We were forced to conclude that they were not. The mortgagor-builder corporations were created to function solely for governmental purposes serving no purpose independent of those of the United States, and being beneficially owned by the United States, they were instrumentalities of the government.
At most the mortgagor-builder corporations held only naked legal title to the improvements. They could never operate the improvements as a housing project nor could they receive any income therefore or benefit in any way.
The mortgagor-builder corporations, while formed by the contractors, were formed at the direction of the United States and were tailored by it to serve merely as vehicles to aid in the procurement of the financing for the desired housing. These corporations served no purpose of the contractor or the mortgagee-lender, but were created only to facilitate the financing of the housing through the medium of government guaranteed loans without utilizing current appropriations. While the mortgagor-builder corporations signed the notes as primary debtors, the funds used to páy the contractor were obviously advanced by the lending institutions on the strength of the government’s credit and not. on the credit of the corporations themselves, which had neither assets nor the prospect of obtaining assets. The funds advanced are, pursuant to the .contract, to be repaid to the lender by the United States and it is never contemplated that they will be repaid by the corporations. A review of the specific function of these corporations in the Capehart Housing scheme reveals that they are merely conduits through which the United States, by effectively committing its credit, has obtained the use of private funds and avoided a direct appropriation.
The corporations organized at the government’s insistence and according to government prescribed forms are almost empty shells. As has been stated, the original paid-in capital of $1,000 is paid over to the government prior to construction in exchange for a 55-year leasehold under which the lessee has no right of use or possession. This is their only asset pursuant to the housing contract and related documents, and they are expressly prohibited from acquiring any other. They are also prohibited from incurring any other liabilities beyond those relative to the housing contract and related documents and these are assumed or guaranteed by the United States or the contractor.
The mortgagor-builder corporations, being mere instrumentalities • of the United States Government, partake of the same tax immunity as the United States under the provisions of K. S. A. 79-210 Fifth.
The judgment is reversed with instructions to grant relief as prayed for in the petition.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court of Johnson County, Kansas, denying appellant’s motion under K. S. A. 60-1507 to vacate, set aside or correct a prior judgment and sentence of that court in a criminal action.
The facts required for a proper understanding of the issue involved on appellate review will be related as briefly as the state of the record permits.
On March 23, 1956, appellant, who at all times was represented by competent court-appointed counsel, was convicted by a jury in the district court of Johnson County of the crime of robbery in the first degree, as defined by G. S. 1949, 21-527 (now K. S. A. 21-527), which was alleged in the amended information to have occurred on November 17, 1954.
On April 2, 1956, his motion for a new trial having been overruled, appellant appeared before the court for sentencing and, pursuant to appellee’s notice to proceed under the Habitual Criminal Act (G. S. 1949, 21-107a [now K. S. A. 21-107a]), the court received in evidence, without objection, an authenticated copy of appellant’s conviction, on December 14, 1954, of the crimes of burglary and grand larceny, in the district court of Sedgwick County.
Thereupon, in view of his previous felony conviction in Sedgwick County, appellant was sentenced by the district court of Johnson County to confinement and hard labor in the Kansas State Penitentiary under G. S. 1949, 21-530 (now K. S. A. 21-530) and 21-107a, supra, for not less than twenty nor more than forty-two years, and took no appeal from his judgment and sentence.
In passing we note there is nothing in the record disclosing the date upon which the crimes resulting in the Sedgwick County conviction were committed. However the record does definitely reflect that appellant’s conviction and sentence in the Sedgwick County court occurred approximately a month after the date on which he was charged with having committed the Johnson County offense. Thus it becomes obvious that the commission of the Johnson County offense of November 17, 1954, antedated the Sedgwick County conviction and sentence of December 14, 1954.
On May 4, 1964, pursuant to the provisions of K. S. A. 60-1507, appellant filed a motion in the district court of Johnson County to vacate, set aside and correct his judgment and sentence of April 2, 1956. This motion was overruled on May 6, 1964. On May 28, 1964, appellant filed a petition for rehearing which was overruled on the same day. Later, and on June 25, 1964, appellant filed a notice of appeal from the court’s order of May 6, 1964, an affidavit to proceed in forma pauperis, and a motion for court appointment of counsel. On the same day the court entered an order wherein it authorized appellant to proceed in forma pauperis, and appointed James M. Brewster, a competent attorney of Mission, to represent him for the purpose of this appeal. Mr. Brewster accepted that responsibility and since his appointment has filed a proper record and brief and orally argued the cause on the date appellant’s appeal was heard by this court on its merits.
Boiled down the over-all issue raised by appellant in the instant case may be stated thus:
That at the time of sentencing appellant in the Johnson County court it was erroneous and improper for that court to apply the Habitual Criminal Act (K. S. A. 21-107a) where the authenticated copy of a prior conviction in Sedgwick County, which was relied upon by the sentencing court as requiring the application of such act, affirmatively disclosed that such prior conviction had been obtained, as shown by the amended information and the verdict of the jury in the Johnson County case, after the commission of the offense resulting in the second conviction.
From the foregoing issue, supported by an uncontroverted record from the standpoint of controlling facts on which it is based, it appears that we are confronted with a question of law that, contrary to contentions advanced by appellee, can properly be raised by motion pursuant to existing provisions of K. S. A. 60-1507 which, so far as here material, read:
“(a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the . . . laws of the State of Kansas, ... or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.
“(b) Hearing and judgment ... If the court finds . . . that the sentence imposed was not authorized by law or is otherwise open to collateral attack, . . . the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.”
“(d) Appeal. An appeal may be taken to the supreme court from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.”
For an interesting discussion, supporting what has just been stated and dealing at length with the right afforded to prisoners under the provisions of 60-1507, supra, as implemented by this court’s Rule No. 121 (now appearing in Volume 193, Advance Sheet No. 4 of the Kansas Reports), see the first three pages of the opinion in State v. Richardson, 194 Kan. 471, 399 P. 2d 799.
The issue, to which we have previously referred, requires consideration and construction of our Habitual Criminal Act, K. S. A. 21-107a, which reads:
"Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the penalty of the second conviction, and if convicted a third time of felony, he shall be confined in the penitentiary for a period of not less than fifteen years. Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record and other com petent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
Inherent in the over-all issue involved, when it is stripped of all excess verbiage, is the decisive question whether, in order to enhance punishment under the Habitual Criminal Act, the offense on which a second or subsequent conviction is based (here the Johnson Connty offense of November 17, 1954) must, from the standpoint of die date of its commission, follow the date of the first conviction (here the Sedgwick County conviction of December 14,1954).
With commendable candor, counsel for the respective parties concede they have been unable to find any Kansas decisions wherein the foregoing decisive question has been either considered or determined and oür extended research has failed to disclose any. However, it may be stated, this court has frequently dealt with the subject of the fundamental purpose and objective of the Habitual Criminal Act.
In the early case of State v. Woodman, 127 Kan. 166, 272 Pac. 132, where the validity of the act, as it existed in 1928, was first challenged, the court made the following statement:
“. . . Formerly the imposition of the sentence was left to the discretion of the trial judge within limitations, and it was common for old offenders and hardened criminals to receive severe sentences while first offenders convicted of the same crime were leniently dealt with. And it is a salutary provision of law that criminals whom the law’s discipline has hitherto failed to reform by prior conviction and punishment should form a class to be more severely punished than first offenders. . . .” (p. 171.) (Emphasis supplied.)
Later, and with respect to the same subject, Justice Jochems, concurring specially, in the case of State v. Close, 130 Kan. 497, 287 Pac. 599, had this to say:
“Our legislature evidently had the above act [referring to a somewhat similar law of the State of New York, commonly referred to as the ‘Baumes’ law] before it. While it saw fit to change the language and to enact a more severe law by providing life imprisonment for a third conviction of felony, instead of a fourth conviction, as the New York law does, yet it had in mind the same purpose and object as the New York legislature, namely, to provide additional penalties for the commission of felonies subsequent to the first one, and thereby strive to deter the criminally inclined from repeated felonies.” (p. 503.) (Emphasis supplied.)
In a more recent case, State v. Ricks, 173 Kan. 660, 250 P. 2d 773, we held:
“The increased punishment for a second and third conviction of a felony, provided by our habitual criminal law, G. S. 1949, 21-107a, is imposed as a disciplinary measure for those whom previous conviction and punishment have failed to reform.” (Syl. f 1.)
And in the opinion said:
“The avowed purpose and salutary provisions of the habitual criminal law as a disciplinary measure for those whom previous conviction and punishment have failed to reform were stated early in State v. Woodman, supra, and need not be repeated here.” (p. 661.) (Emphasis supplied.)
Still later in Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, we said:
“. . . Our habitual criminal act merely provides a more severe penalty for tire commission of a felony by an habitual criminal than by one who is a first time offender. . . .” (p. 700.)
Although, as heretofore indicated, there are no cases from this jurisdiction dealing with the precise question now under consideration, there is no occasion here to write a thesis on the subject for it has been dealt with elsewhere on numerous occasions. For a recent and comprehensive annotation, entitled, “Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes,” see 24 A. L. R. 2d, Anno., pp. 1247 to 1280, inch, citing numerous cases from foreign jurisdictions, where the following general statement appears:
“A review of the cases herein reveals, as might be expected, a difference in the phraseology of habitual criminal statutes of the various jurisdictions or states. For instance, some statutes provide for the enhanced penalty upon conviction of a subsequent ‘offense,’ and do not expressly provide that, in order to be available for enhancement of the penalty, the subsequent offense be committed after the conviction of the prior offense. Other statutes provide for the increased penalty for a previous ‘conviction,’ or words of similar import, and also fail to specify particularly as to the chronological order of the commission and conviction of the previous offenses. Still other statutes specifically stipulate that the principal offense for which defendant is convicted be committed ‘after’ previous conviction or convictions. But, regardless of the difference in phraseology, the preponderance of authority supports the view that the prior convictions, in order to be available for imposition of increased punishment of one as a habitual offender, must precede the commission of the principal offense, that is, the latest prosecution in point of time. In this connection, it has been brought out in numerous cases that, although differing somewhat in language, the same principle is inherent in a habitual criminal statute, namely, that the legislature in enacting such a statute intended it to serve as a warning to first offenders and to afford them an opportunity to reform, and that the reason for the infliction of severer punishment for a repetition of offenses is not so much that defendant has sinned more than once as that he is deemed incorrigible when he persists in violations of the law after conviction of previous infractions.” (pp. 1248, 1249.)
After correlating all known cases dealing with the subject the annotator reaches the conclusion that, as applied by the courts of the United States, there is a majority rule and a minority rule.
With respect to the majority rule the following statement appears in the annotation:
“The general rule, embodied in specific terms in some statutes and implied from the phraseology of others referring in more general terms to previous convictions or subsequent offenses, is that it is a prerequisite that the prior conviction or convictions precede the commission of the principal offense in order to enhance the punishment under habitual criminal statutes.” (p. 1249.)
As to the minority rule it is said:
“A few cases subscribe to the rule that conviction of the previous offense or offenses does not have to antedate the commission of the primary offense.” (p. 1252.)
For further annotations supplementing 24 A. L. R. 2d. Annotations, pp. 1247 to 1280, incl., see 2 A. L. R. 2d Supplement Service For Annotations (1960) and subsequent Supplement Service For Annotations (1962), (1963) and (1964). See, also, 25 Am. Jur., Habitual Criminals, §§ 10,12, pp. 265, 266.
Nothing would be gained by extended analysis of the many decisions listed and discussed in the foregoing annotations. It suffices to say, we have carefully reviewed such decisions, especially those dealing with habitual criminal statutes similar to our own (21-107a, supra), and have concluded that the great weight of authority, as well as the better reasoned cases, hold it is a prerequisite that the prior conviction or convictions precede the commission of the principal offense in order to enhance the punishment under the habitual criminal statutes. Moreover, in this a case of first impression, and particularly in view of what it has said and held in its decisions dealing with the subject of the fundamental purpose and objective of our Habitual Criminal Act, this court is in accord with the majority rule as previously announced, to which we adhere. Therefore, we are impelled to hold that, since the undisputed facts of record are that the prior conviction here involved did not precede — but followed — the commission of the principal offense, the trial court’s action in invoking the act to increase the punishment for the principal offense was not warranted and cannot be upheld.
The conclusion just announced does not mean that appellant is entitled to be released from custody. The record is clear that in the Johnson County case the information charged, and the defendant was convicted by a jury of, the crime of robbery in the first degree, as defined by 21-527, supra, and that proper sentence should have been imposed under 21-530, supra.
Therefore, under the authority of Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837; Johnson v. Hand, 189 Kan. 103, 367 P. 2d 70; Wiles v. Board of Probation & Parole, 191 Kan. 705, 383 P. 2d 969; McQueen v. Crouse, 192 Kan. 821, 391 P. 2d 68, it is ordered and directed that the appellant be taken by the proper authorities before the district court of Johnson County and that such court impose a proper sentence in accord with the provisions of K. S. A. 21-530, in the original case.
Finally it should be stated that it cannot be said the original sentence in the district court, although irregular, furnishes no purpose whatsoever. It does fix the time at which the corrected sentence begins to run. See e. g., State v. Cox, 194 Kan. 120, 397 P. 2d 406, where it is said:
“. . . However, it may be stated that although the original sentence is void the corrected sentence commences to run from the time of the commitment under the void sentence. And added that where time has been served under a void sentence it necessarily results that the amount of time so served must be credited on the corrected sentence.” (p. 124.)
The order denying appellant’s motion to set aside and correct his prior sentence is reversed and the trial court is directed to re-sentence appellant in the original case in accord with the views herein expressed.
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The opinion of the court was delivered by
Price, J.:
This is an appeal from a conviction of robbery in the first degree as defined by G. S. 1949, 21-527, which now appears as K. S. A. 21-527.
Highly summarized, the evidence established that on the evening in question one Jacques entered a cafe in Wichita. He had a large roll of currency in his pocket amounting to $580. When paying for beer and cigars he exhibited his “roll.” A woman by the name of Spann was in the cafe at the time and observed the roll of bills. Shortly thereafter she went to defendant’s apartment and told him that there was a man in the cafe who had “a lot of money on him.” Later in the evening defendant went to the cafe. Jacques and defendant were not personally acquainted, but Jacques knew defendant by sight. Later on Jacques left, and as he started to get into his truck which was parked in the street, defendant confronted him. Defendant drew a knife and demanded the money — "all of it.” In the ensuing scuffle defendant ripped a pocket from Jacques’ pants which contained the money. Defendant then disappeared into the night.
Mrs. Spann saw the scuffle in the truck. She later went to defendant’s apartment and found him counting “a lot of money.” She “helped” him count it and he gave her $133.00, but she returned all but $20.00.
Defendant was charged with the offense of robbery in the first degree. We are advised that he was represented by counsel at his preliminary examination. Upon being bound over for trial the district court appointed counsel to represent him, and counsel so appointed represented him throughout the trial. He was found guilty as charged, and, having previously been convicted of burglary and larceny, sentence was imposed under the habitual criminal statute (G. S. 1949, 21-107a), now appearing as K. S. A. 21-107a.
In this appeal, in which defendant is represented by court appointed counsel, only two questions are raised.
It first is contended that defendant was not properly identified.
We understand this contention to be that there was insufficient evidence as to the identity of defendant to support the conviction.
The contention is without merit and cannot be sustained. Without detailing the testimony of the witnesses, it is sufficient to say that Jacques, the complaining witness, positively identified defendant in a police lineup, and also in the court room during the trial, as his assailant. He also was positively identified by Mrs. Spann.
On the question as to the function of a jury, the trial court, and this court on appellate review, where, in a criminal prosecution, it is contended the evidence is insufficient to support a verdict, see State v. Osburn, 171 Kan. 330, Syl. 1, 232 P. 2d 451; State v. Crosby, 182 Kan. 677, Syl. 5, 324 P. 2d 197, 76 A. L. R. 2d 514, and State v. Ellis, 192 Kan. 315, 318, 387 P. 2d 198.
The other contention made by defendant is that he was deprived of his rights in that he, being unskilled and unversed in such matters, did not request that a motion for a new trial be filed, and that his court appointed counsel failed to file a motion. In other words, we understand this contention to be that defendant’s rights were prejudiced by the alleged incompetency of his counsel.
In recent years it has been quite common for convicted felons to contend that they were inadequately represented by counsel at their trial. The law does not guarantee the assistance of the most brilliant and experienced counsel, but it does require the honest, loyal, genuine and faithful representation by counsel, be he employed or court appointed. Hindsight always is better than foresight, and probably no two attorneys would conduct a defense in precisely the same manner. The record in this case does not indicate why counsel for defendant elected not to file a motion for a new trial. It does establish, however, that such a motion undoubtedly would have been unavailing, for our attention has been called to nothing of a prejudicial nature. It may well be that trial counsel realized there was no error in the trial and for that reason elected not to file a motion for a new trial. It also is noted that in this appeal defendant raises no questions concerning alleged trial errors — a review of which could be had if such a motion had been filed. Trial counsel was a capable and experienced attorney of the Wichita bar, and the record establishes that he diligently and faithfully performed his duties. Under such circumstances this court will disregard irresponsible and unlicensed accusations. As bearing on the point see Miller v. Hudspeth, 164 Kan. 688, 707, 192 P. 2d 147; Hicks v. Hand, 189 Kan. 415, 417, 369 P. 2d 250, and State v. Carter, 192 Kan. 440, 442, 388 P. 2d 594.
No error being shown, the judgment is affirmed.
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The opinion of the court was delivered by
Fontbon, J.:
This is an appeal by the plaintiff, John C. Heise, from adverse rulings entered by the trial court on four motions which had been filed in the action.
In view of the disposition which we have concluded must be made of this appeal, the facts alleged by plaintiff in his petition are of no present concern and will not be related. It need only be said that the petition contained four causes of action: The first to determine heirship, the second to partition real and personal property, the third to require an accounting, and the fourth to quiet title to real property.
To plaintiff’s petition two answers were filed; one by the defendant, The Peoples State Bank óf Sharon Springs, which traversed certain material allegations, and one in the form of a general denial by James E. Taylor, the court-appointed guardian ad litem and attorney under the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended.
The plaintiff thereupon directed a motion against the bank’s answer to make the answer definite and certain, while Taylor countered with a motion for a pretrial conference. After oral argument, the trial court overruled plaintiffs motion to make definite and certain and sustained Taylor’s motion for pretrial conference.
On the day following the court’s action on the foregoing motions, plaintiff filed two additional motions; tire first to set aside the court’s order for a pretrial conference, and the second for judgment on the pleadings. Roth motions were overruled, and this appeal followed.
At .the outset we are confronted by the appellees’ contention that none of the foregoing rulings are appealable, and in this we believe the appellees are correct. The jurisdiction of this court to reverse, modify or vacate a district court order is limited, so far as the instant action is concerned, to a final order. (G. S. 1949, 60-3302.) A final order, for present purposes, is defined in G. S. 1949, 60-3303 as . . an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment
Neither of the two orders relating to the pretrial conference can be said to be a final order within the purview of the statute. In itself, an order which merely provides for such a conference determines no issues of fact or law nor does it in anywise finally determine the action. We think it clear that under our decisions no appeal will lie from an order of such a character. (Fincham v. Fincham, 171 Kan. 120, 231 P. 2d 232; Smith v. Wright, 180 Kan. 584, 305 P. 2d 810; Cheney v. Cheney, 186 Kan. 743, 352 P. 2d 959.)
Nor does an appeal he from the order overruling plaintiff’s motion to make definite and certain. A ruling on a motion such as this lies within the sound discretion of the court and is not subject to independent appeal unless it affects a substantial right and, in effect, determines the lawsuit. (Klepikow v. Wilson, 189 Kan. 66, 366 P. 2d 800.) In no sense will the challenged order result in a final determination of this action.
Finally, the order overruling plaintiff’s motion for judgment on the pleadings is not appealable under the circumstances shown to exist in this case. The answers of both the bank and Taylor raised issues of fact to be determined. Those issues were untried at the time of the court’s order, and have remained untried to this date. Hence, the court’s order overruling the motion was not a final order. (Crow v. Hershberger, 170 Kan. 492, 226 P. 2d 846.)
This appeal presents nothing for our determination at this time and is, therefore, dismissed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying injunctive relief in an action by a taxpayer seeking to enjoin the acquisition of land for courthouse and jail purposes.
On June 21, 1963, the Board of County Commissioners of Reno County adopted a resolution under the provisions of K. S. A. 19-1569 levying a tax “for the purpose of creating and providing a special fund to be used in acquiring a site for, and the building, equipping and furnishing of a jail . . On the same date the Board adopted a resolution under the provisions of K. S. A. 19-1590 for the issuance of bonds “for the purpose of acquiring sites for the erection of necessary additions to the existing courthouse and buildings and the equipping and maintenance of such additions and buildings; and for the further purpose of making necessary capital improvements and alterations to the existing courthouse. . . .” Both resolutions were published for three consecutive weeks and no petitions in opposition were filed. Following publication of the resolutions the Board purchased four parcels of land under the provisions of K. S. A. 19-1569 and contracted for the purchase of additional land which was to be paid for from bonds issued under the provisions of K. S. A. 19-1590.
On June 16, 1964, plaintiff filed an action in the Reno County District Court asking that all of the purchase contracts be declared illegal and void; that the Board be enjoined from paying out funds on the contracts; that the Board be enjoined from levying any tax or issuing any bonds for payments under the contracts, and from carrying on further negotiations for the purchase of property for courthouse and for jail purposes. The case came regularly on for trial to the court on July 27, 1964. After plaintiff had completed the introduction of his evidence defendants moved for a summary judgment on the ground that plaintiff had shown no right to relief; the motion was sustained.
The plaintiff has appealed.
Before taking up the specific questions raised by appellant it will be well to consider a few general principles of law which will apply to all of the contentions.
It should first be understood that the courts have no supervisory power over administrative matters which the legislature has left to the discretion of public bodies. Where there is no constitutional impediment to the action taken or lack of legislative authority, a court can review the discretionary action of a public administrative body only for the purpose of determining whether the action taken is fraudulent or so arbitrary, capricious or unreasonable as to amount to fraud.
In Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154, we stated at page 359 of the opinion:
“So, here, the duty and discretion placed in the board of review being administrative in character and nonjudicial, the court is not warranted in substituting its judgment for that of the board. If the board should act fraudulently, or so arbitrarily and capriciously as to amount to fraud, a resort to the courts may be had, and as against such action an aggrieved party may have redress. (Silven v. Osage County, 76 Kan. 687, 92 Pac. 604.) In The State, ex rel., v. Mohler, 98 Kan. 465, 158 Pac. 408, cited by plaintiff, this doctrine was recognized, and speaking of the acts of administrative boards it was said:
“ ‘The exercise of such power is merely the exercise of administrative discretion. If this power is abused, the courts are open to the aggrieved party, if not by some statutory review, then by the extraordinary and prerogative remedies of injunction or mandamus.’ (p. 472.)
“The: e have been repeated holdings that the decisions of a board or other tribunal upon which the legislature has conferred the exercise of nonjudicial power, if made in good faith, are not open to judicial control or review, and that in such a case a court may go no farther than to prevent the abuse of the power so vested. In respect to the powers conferred on a municipal body it has been said that ‘the courts have no supervisory power over the policy of municipal legislation. They can only interfere to curb action which is ultra vires because of some constitutional impediment or lack of antecedent legislative authority, or because the action is so arbitrary, capricious, unreasonable and subversive of private right as to indicate a clear abuse rather than a bona ■fide exercise of power.’ . . .”
The Roard o£ County Commissioners is vested with discretion to determine the necessity and the amount of land to be acquired for a given project. In Breedlove v. Wyandotte County Comm'rs., 127 Kan. 754, 275 Pac. 379, we stated beginning at page 756 of the opinion:
“. . . In a case where commissioners acquired land by condemnation for the purpose of widening and altering a road so as to care for a deep ditch or waterway in order to eliminate dangerous places in tile road, the plaintiffs insisted that the proposed improvement was unnecessary and illegal, that the purpose could be accomplished without appropriating any of plaintiff’s land, and he sought to stop the improvement by injunction. The court held that the law gave the board authority to make the alteration and improvement, that it was vested with discretion in the matter, and where they acted after consulting such expert advice as was available and exercised their best judgment and discretion, there could be no interference with their action where it was free from fraud, abuse of discretion or other gross impropriety. The conclusion was that the plaintiffs were not entitled to maintain injunction. (Balliet v. Clay County, 115 Kan. 99, 222 Pac. 132.) Here there being no proof of fraud or gross impropriety on the part of the commissioners, it must be assumed they acted in good faith, and their action if within legislative authority cannot be stayed or prevented by injunction. See, also, Shanks v. Pearson, 66 Kan. 168, 71 Pac. 252; Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154; Evans v. Edelbrock, 106 Kan. 233, 187 Pac. 664; Smith v. Reno County Comm'rs, 121 Kan. 444, 247 Pac. 1046.”
The burden of proof is on the complaining party to establish arbitrary and capricious conduct, and mere inferences of innuendo is not sufficient to overcome the burden. (Kindley v. Rogers, 85 Kan. 645, 118 Pac. 1037.)
Appellant first contends in his statement of points relied upon that:
“G. S. 1961, [K. S. A.] 19-1569, does not authorize these Defendants to buy more ground than they can possibly use for a county jail, and with the avowed intention of acquiring a site and equipping a jail for use by the City of Hutchinson, Kansas.”
The resolution in connection with K. S. A. 19-1569 reads in part:
“Whereas, Pursuant to the provision of G. S. 1961, Supp. [K. S. A.] 19-1569, any County may make an annual tax levy of not to exceed one (1) mill upon all the tangible property of the County for the purpose of creating and providing a special fund to be used in acquiring a site for, and the building, equipping and furnishing of a jail.
“Whereas, said Board of County Commissioners of Reno County, Kansas, have determined the total amount necessary to be raised for the above described purpose is $129,000 and does not exceed two and one-half per cent (2K%) of all assessed tangible valuation of Reno County, Kansas.
“Whereas, said Board of County Commissioners, Reno County, Kansas, recognizes the present Reno County Jail is wholly lacking in the facilities for women inmates, juveniles, and persons of mental disorders; that remodeling of the present jail is impractical and does not provide a solution to the above described problem; that a new and modem jail, properly equipped to handle all prisoners, including women inmates, juveniles, and persons of mental disorders, and located within a close proximity to the present Courthouse, offers the only practical and proper solution to the above described problem.”
There is nothing in the resolution to indicate that the Board of County Commissioners intended to acquire a site and equip a jail for use by the city of Hutchinson and the record is void of any evidence to establish such contention.
The testimony of the architect-engineer, Arbuckle, disclosed the need for an additional 60,000 square feet of ground for courthouse purposes, exclusive of space for expansion of jail facilities, to meet the needs of the county during the next twenty years. The Board has purchased and contracted to purchase 76,230 square feet of land to meet all needs.
There is nothing in the record to indicate any abuse of discretion in the determination of the amount of land necessary.
The appellant next contends that K. S. A. 19-1590 only authorizes tihe appellees to acquire sites for necessary additions to existing buildings. They argue that since land is being acquired across the alley from the existing structures that buildings constructed thereon will not be attached to existing structures. It might be suggested that if the appellees acquire the entire block for courthouse and jail facilities, as appellant suggests they intend, then the elimination of the alley will present no problem. However, we believe the appellant places too narrow a construction on the statute.
The resolution which follows the provisions of K. S. A. 19-1590 provides in part:
“Whereas, pursuant to the provisions of G. S. 1961, Supp., [K. S. A.] 19-1590, any County, having a population of not less than fifty thousand (50,000) and not more than eighty thousand (80,000), when it is deemed advisable, may issue bonds of the County in a total amount of not to exceed K of one percent (%%) of the assessed taxable tangible valuation of the County for the purpose of acquiring sites for the erection of necessary additions to the existing courthouse and buildings, and the equipping and maintenance of such additions and buildings; and for the further purpose of making necessary capital improvements and alterations to the existing courthouse.
“Whereas, the population of Reno County, as of June 20, 1963, is 60,725.
“Whereas, the Board of County Commissioners, Reno County, recognize that the crowded and scattered conditions of various departments of Reno County, including, but not limited to the Welfare Department, Reno County Extension Council, Reno County Probate Court, will within the forseeable future require the acquisitions of sites for the erection of necessary additions to the existing courthouse, for buildings and equipment and maintenance of such additions and buildings, and for the further purpose of making necessary capital improvements to the existing courthouse.”
The phrase “for the purpose of acquiring for the erection of necessary additions to the existing courthouse and buildings,” is not to be interpreted to mean that additions must be attached to existing buildings.
New buildings erected on a courthouse site but not attached to the main courthouse or jail are additions thereto. A new modern jail, properly equipped to handle all prisoners, including women inmates, juveniles and persons of mental disorders, as covered by and provided for in the resolution, may well require separate buildings, but such separate building would be an addition to the courthouse and jail.
Appellant last contends:
“If this Court chooses to hold the Trial Court was right in finding:
“(1) That 19-1569 allows these Defendants to acquire land for purposes of a city-county jail; and
“(2) That 19-1590 allows the Defendants to acquire buildings without any showing of necessity, and no showing that additions are necessary; then this Plaintiff respectfully submits that the Statutes, as so construed, are unconstitutional, as being so vague and indefinite as to not be susceptible of any definite notice to the taxpayers of the contemplated action.”
Appellant’s suggestions are without merit. Appellees make no such claims as are stated by appellant and there is no evidence to support a finding of such intentions on the part of appellees.
After a careful consideration of the record and all of the contentions of appellees no error is found which would justify the granting of a new trial or a reversal of the judgment.
The judgment is affirmed.
APPROVED BY THE COURT
Fontron, J., not participating.
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The opinion of the court was delivered by
Nuss, J.:
Kimberly Sharp was convicted of felony murder and kidnapping and received concurrent sentences of life without the possibility of parole for 20 years for the murder and 61 months for the kidnapping. She now directly appeals her convictions. Our jurisdiction is under K.S.A. 22-3601(b)(l) (conviction of an off-grid crime). The convictions and sentences of one of her codefendants, Carl Lee Baker, who was tried separately, were affirmed by this court in State v. Baker, 287 Kan. 345, 197 P.3d 421 (2008).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in denying Sharp’s motion to suppress her confession? No.
2. Did the trial court err in hmiting the defense’s cross-examination of an accomplice witness? No.
. 3. Did the trial court err in admitting into evidence statements from two codefendants under the coconspirator exception to the hearsay rule? No.
4. Did cumulative error deny Sharp a fair trial? No.
Accordingly, we affirm Sharp’s convictions.
FACTS
As an advocate for the homeless, David Owen used unconventional methods. These methods included offering the use of his phone cards and cell phones for them to call their loved ones. Owen also tried to force them to return to their families by destroying their camps and taking their equipment and supplies. He often photographed the destroyed camps and carried the pictures while visiting other camps.
Owen had been reported missing for several weeks when on July 2, 2006, a canine search team found his body in a heavily wooded area on the bank of the Kansas River in Topeka. No personal property, including identification, shoes, socks, or eyeglasses, was located on or around Owen’s body. The officers recovered an axe and some pieces of rope when they searched the surrounding area. The coroner opined drat Owen had been dead for several weeks or months, and he listed the manner of death as homicide. Approximately 10 days after discovery of Owen’s body, defendant Kimberly Sharp and three other homeless people — her boyfriend Charles Hollingsworth, Carl Lee Baker, and John Cornell — were arrested and subsequendy charged with kidnapping and felony murder.
Sharp and Hollingsworth were seated on a bench near the river when detectives first encountered them. Detective Bryan Wheeles noticed that Sharp was scared, so he walked her further down the street, away from Detective Mike Barron and Hollingsworth. Wheeles explained that diey needed to talk to her about their investigation into Owen’s death. Wheeles and Barron then separately transported Sharp and Hollingsworth to the Topeka Police Department to be interviewed.
Wheeles was informed on the way to the station that there was an outstanding warrant for Sharp out of Emporia, Kansas. When they reached the station, Sharp was put in an interview room where Wheeles Mirandized her after telling her that she was under arrest. Wheeles did not tell her specifically why she had been placed under arrest.
Wheeles then conducted a fully recorded interview with Sharp. The interview contained three basic parts: (1) an initial interview lasting 20 or 30 minutes in which Sharp described most of tire events surrounding Owen’s kidnapping; (2) a re-enactment of the crimes with Wheeles at the homeless camp; and (3) a final interview at the station.
During Sharp’s initial interview, she told Wheeles that on Thursday, June 15, 2006, she was sitting around a campfire with Hollingsworth, Baker, and Cornell. Around 7 p.m., Owen walked into the camp and told these homeless people that they should not camp and should call their families. Everyone was upset by his remarks, especially when he said he would have burned their camp if they had not been there.
Sharp told Wheeles that Baker began arguing with Owen, who then said he was going to call the police. When Owen reached for his phone, Baker and Hollingsworth knocked him to the ground. Hollingsworth then struck Owen and dragged him into the woods.
According to Sharp, she also headed into the woods to see what was going on. There she saw Owen on his lotees and Hollingsworth with “an axe that he was going to [use to] kill him like that.” Sharp told Hollingsworth, “[N]o, don’t do that, don’t do that. I can’t be an accessory to this shit, you know. I can’t do that. I got two kids . . . .” She said Cornell then brought Hollingsworth a rope which was used to tie up Owen. Baker stuffed a rag in Owen’s mouth, and the two men continued to beat him. Sharp told Wheeles that Cornell then burned all of Owen’s possessions, including his pictures, notebooks, shoes, and socks. Hollingsworth and Baker then dragged Owen into the woods, and Sharp never saw Owen again.
After additional discussion during which Sharp continued to deny any participation, Wheeles specifically asked if she helped burn Owen’s possessions. She denied helping burn or having Owen’s phone or bag at any point. Sharp eventually admitted that she helped bum. When Sharp then asked if she was going to jail, Wheeles responded, “No, no, no, no, no, no, no, no. You are a witness to this thing as long as you do not do something dumb and jam yourself.” He further explained that if she had been scared she should tell him and, “Just don’t tell me no if I ask you something.” Sharp then detailed her role in burning Owen’s phones and notebooks.
After Sharp informed Wheeles that her two lads were with Baker at another homeless camp, he left the interview. Upon his return he told her they were going to work together to get her kids “out of harm’s way.” He advised that Baker was a registered sex offender and had an outstanding arrest warrant for a parole violation. They then left together, retrieved the lads, and brought them back to the station within the hour to be with Sharp.
Approximately 1 hour later Wheeles escorted Sharp to the camp where she re-enacted the events surrounding Owen’s kidnapping and murder. During the re-enactment, Sharp told Wheeles that when Hollingsworth was standing over Owen with an axe, she had said to him, “No, don’t kill him.” Wheeles requested clarification, “Did you say ‘No, don’t kill him,’ or did you say, ‘No, don’t kill him here?’ ” Sharp responded, “Don’t lull him here.” (Emphasis added.) Sharp also admitted that Hollingsworth had then asked her to bring him some rope, and she told Cornell to go get it. She further admitted that it was her idea to burn Owen’s things so there would not be any evidence to tie her to the events. “I said we have to burn it ‘cause I don’t need the evidence. I don’t want to be tied to this.”
Following the re-enactment, Wheeles brought Sharp back to the station. He asked her a few more questions and then left her alone in the interview room with her children. Approximately 1 hour after returning to the station, Wheeles was notified that-the district attorney’s office had decided to charge Sharp. When Wheeles told her that she was going to be placed under arrest, she became angry and upset. Sharp accused Wheeles of lying to her and said that he had tricked her, telling him, “This is bullshit.” .
Sharp later moved to suppress her statements. After a hearing, the trial court denied her motion. Her recorded statements were subsequently played to the jury.
Sharp testified at trial. Consistent with her initial interview and re-enactment, she admitted to burning two of Owen’s phones, his picture album, and some loose papers. Also consistent with her reenactment, she admitted that Hollingsworth asked her to bring some rope, and she told Cornell to go get some. However, while during the re-enactment she had admitted telling Hollingsworth, “[D]on’t kill him here” she testified to simply saying, “Don’t toll him.” (Emphasis added.)
Pursuant to a plea bargain, codefendant Cornell also testified at trial, painting a slightly different picture of Sharp. According to Cornell, Sharp got angry when she opened Owen’s bag and saw the pictures Owen had taken of other destroyed camps. She then grabbed the phone and threw it in the incinerator. Sharp got madder and madder, and then threw Owen’s entire bag in the fire.
Cornell admitted that he took the rope from Baker and gave it to Hollingsworth. He testified that Sharp had followed Hollingsworth into the woods with Owen, and she stood by as Cornell handed over the rope. At that time Sharp told Cornell that they were going to make Owen sleep outside with the mosquitoes. According to him, Sharp said, “Were not gonna kill him, we’re just gonna tie him up to a tree, have him spend the night outside.” Consistent with Sharp’s statement about her belief that when she saw Owen on his knees and Hollingsworth with “an axe, that he was going to kill him like that,” Cornell testified that Sharp said she ¿ought Hollingsworth “was gonna chop [Owen] up.”
Cornell further testified that Owen was brought back to the camp briefly before Hollingsworth and Baker dragged him out of sight to the levee. He said that after they left, Sharp asked him to dump the incinerator in the next camp because it was smoldering and smelled bad. Cornell and Sharp remained in the camp burning Owen’s items while the others were gone.
According to Cornell, when Hollingsworth and Baker returned to the camp without Owen, Sharp asked them how Owen was doing. Hollingsworth responded by saying, “[P]robably dead by now” and “He was turning blue when we left.” Later ¿at night while hunting for firewood, Baker told Cornell that Hollingsworth had “lynched” Owen.
The jury found Sharp guilty of kidnapping and felony murder. She was sentenced to concurrent sentences of life imprisonment without the possibility of parole for 20 years on the felony-murder conviction, and 61 months for the kidnapping conviction.
Additional facts will be provided as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not err in denying Sharp’s motion to suppress her confession.
Sharp argues that her confession should have been suppressed because it was involuntary and unreliable. She primarily argues that her confession, including her re-enactment at the crime scene, was exchanged for “an explicit promise of leniency.” Specifically, Sharp contends that Detective Wheeles promised her she would not go to jail in connection with Owen’s murder and that this promise, combined with his assurances that he would help her and her children, as well as her “particularly vulnerable position,” all worked to overcome her will.
Sharp argues that these factors combined to lead her to make two critical, involuntaiy admissions to Wheeles during the subsequent re-enactment: (1) that she told Hollingsworth, “Don’t kill him here,” which suggests she had no objection to Owen being killed elsewhere, and (2) that it was her idea to burn Owen’s items: “Z said we have to burn it ‘cause I don’t need the evidence. I don’t want to be tied to this.” (Emphasis added.)
The State primarily counters that the evidence does not support Sharp’s claim that she was improperly induced to malee her confession.
Standard of Review
When analyzing a trial court’s denial of a motion to suppress a defendant’s confession, an appellate court reviews “the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.” An appellate court does not “reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.” State v. Harris, 284 Kan. 560, Syl. ¶ 9, 162 P.3d 28 (2007); State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 (2005). The determination of whether a confession is voluntaiy is a legal conclusion requiring de novo review. Swanigan, 279 Kan. at 31; see Arizona v. Fulminante, 499 U.S. 279, 287, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991).
We have held that “the voluntariness of a confession must be determined under the totality of circumstances.” State v. Brown, 285 Kan. 261, Syl. ¶ 2, 173 P.3d 612 (2007). “The State has the burden of proving that a confession is admissible, and the required proof is by a preponderance of the evidence. The essential inquiiy is whether the statement was the product of the accused’s free and independent will. [Citation omitted.]” Brown, 285 Kan. at 272. Other courts have described the question as whether the authorities overbore the defendant’s will and critically impaired his or her capacity for self-determination. See, e.g., United States v. Lopez, 437 F.3d 1059, 1064-65 (10th Cir. 2006); United States v. LeBrun, 363 F.3d 715, 725 (8th Cir. 2004).
Our analysis must acknowledge that “coercive police activity is a necessary predicate to the finding that a confession is not vol untaiy.” Colorado v. Connelly, 479 U.S. 157, 167, 93 L. Ed. 2d 473, 107 S. Ct 515 (1986). We must also recognize that the United States Supreme Court has used a “coerced confession” interchangeably with an “involuntary” one. See Fulminante, 499 U.S. at 288 (detailing facts of Payne v. Arkansas, 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844 [1958]). Thus, coercion can include inducing by promise, as well as by threat.
Numerous factors are to be considered when determining if a statement is involuntary, which this court has consolidated into the following nonexclusive list based on previous Kansas case law:
“(1) the accused’s mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused’s age, intellect, and background; (5) tire fairness of the officers in conducting the interrogation; and (6) the accused’s fluency with the English language.” State v. Johnson, 286 Kan. 824, 836, 190 P.3d 207 (2008) (citing to State v. Walker, 283 Kan. 587, 596-97, 153 P.3d 1257 [2007]).
On appeal, Sharp concedes that she primarily relies upon the fifth factor: Detective Wheeles’ fairness in conducting the interrogation, i.e., because of his purported promises. We do not, however, form our conclusion by simply listing this one factor as possibly favoring involuntariness and enumerating all those other factors possibly favoring voluntariness. As one court has explained:
“[T]hese factors are not to be weighed against one another on a balance scale, with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. See Brady [v. United States], 397 U.S. [742,] 754, [25 L. Ed. 2d 747,] 90 S. Ct. [1463 (1970)]. Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect’s will was overborne and the confession was not therefore a free and voluntary act. [Citation omitted]” Green v. Scully, 850 F.2d 894, 902 (2d Cir. 1988).
Cf. State v. Thompson, 284 Kan. 763, 803-04, 166 P.3d 1015 (2007) (in considering totality of circumstances to determine whether a consent to search is voluntary, “we do not expect courts to merely count the number of factors weighing on one side of the determination or the other”).
Alleged promise of leniency/immunity
More than 100 years ago, this court addressed the then “well-settled law” of confessions:
“It is well settled that an extrajudicial confession will not be received in evidence unless it has been freely and voluntarily made. If it has been extorted by fear or induced by hope of profit, benefit, or amelioration, it will be excluded as involuntary. However, the advice or admonition to the defendant to speak the truth, which does not import either a threat or benefit, will not make a following confession incompetent.” State v. Kornstett, 62 Kan. 221, 227, 61 P. 805 (1900) (cited with approval in State v. Harris, 284 Kan. 560, 579, 162 P.3d 28 [2007]).
This basic approach was clarified by the United States Supreme Court in Fulminante, 499 U.S. at 285:
“Although the Court noted in Bram [v. United, States, 168 U.S. 532, 42 L. Ed. 2d 568, 18 S. Ct. 183 (1897)] that a confession cannot be obtained by ‘ “any direct or implied promises, however slight, nor by the exertion of any improper influence” . . . this passage from Bram . . . under current precedent does not state the standard for determining the voluntariness of a confession . . . .” (Emphasis added.)
On the issue of promises of leniency to the accused, this court has most recently stated
“that in order to render a confession involuntary as a product of a promise ofsome benefit to the accused, including leniency, the promise must concern action to be taken by a public official; it must be such that it would be likely to cause the accused to malee a false statement to obtain the benefit of the promise; and it must be made by a person whom the accused reasonably believes to have the power or authority to execute it. [Citations omitted.]” (Emphasis added.) Broum, 285 Kan. at 276.
See K.S.A. 60-460(f)(2)(B).
Motion to suppress
At the suppression hearing, the trial judge remarked that he observed Sharp’s courtroom demeanor, observed Detective Wheeles testify, watched Sharp’s recorded interviews with Wheeles and her recorded re-enactment, and heard the arguments of counsel. The court then found:
“[S]he was given her Miranda rights, she voluntarily gave up her Miranda rights, shetalked, I saw her in that interview room, I saw her with a bottle of water . . . . In addition, there’s times when she stretches out in the law enforcement room when he [Wheeles] leaves, she stretches from one chair to another one. She appears to be very relaxed, very candid. Her responses are very clear. Occasionally maybe have to ask a question or what’s meant. At no time does she appear that she’s under duress. At no time does she appear that she’s under the influence of anything in so far as her responses to any questions. At no time and definitely you can see it when she’s walking in the area down by the river during the re-enactment she has no trouble positioning herself in different positions, positions Detective Wheeles in different positions where people were at given times allegedly when this alleged crime or crimes occurred. Um, she indicated eventually what participation she had in the alleged crime, or at least a portion of it if not all that, I do not know.
“Um, they got the lads, the kid[s] were in the room with her, she was appropriate in so far as the kids were concerned, in so far as trying to get them to quiet down . . . .At no time did she appear she was under duress, coercion, operating under amj promises. Wheeles talked to the detective and the length of [detention] wasn’t unusual, she was given things to drink, she was even taken out — she took them out to the scene of re-enactment. They went to two different camps while they were there. She was able to do that, she was able to walk around, her demeanor was fine. As the officer testified, she was cooperative, which comes across on the video.” (Emphasis added.)
After making these findings, the court concluded that Sharp’s statements were freely and voluntarily given:
“Therefore, the Court denies the motion to suppress and the statements in this court’s opinion [were] freely, voluntarily and intelligently made and could be used at trial.”
On appeal, Sharp highlights an excerpt of her digitally recorded interview — observed by the trial judge — -as proof of Detective Wheeles’ promise of leniency. Thirty-one minutes into the interview, and 25 pages into its transcript, Sharp tells Wheeles that while Baker and Hollingsworth were taking Owen to the river, a Mark Greene and a man named Joel came back to the campsite and noticed Cornell burning things. Sharp points to the italicized language:
“[Detective]: They just saw John [Cornell] burning stuff?
“[Sharp]: John — it was already melted. He had a fire going, I mean,
real big and they just thought it was fire, you know. They just thought it was a fire.
“[Detective]: If you were scared and you were helping him [Cornell]
bum things because you were afraid they were going to hurt you if you didn’t go along, you need to tell me that right now. Are you picking up on what I’m telling you?
“[Sharp]: Uh-huh.
“[Detective]: “[Sharp]: You cannot, cannot hold anything back in this thing at all, Kim, you can’t. This is as serious as it comes. I know, I know, I know.
“[Detective]: Okay.
“[Sharp]: Yeah, I helped bum.
“[Detective]: Okay. Now —
“[Sharp]: Am I going to jail?
“[Detective]: “[Sharp]: No, no, no, no, no, no, no, no. You are [only] a untness to this thing as long as you do not do something dumb and jam yourself. If you were scared, explain to me that you were scared— I was very.
“[Detective]: —when you did what you did. I understand the whole situation.
“[Sharp]: Okay.
“[Detective]: Just don’t tell me no if I ask you something.
“[Sharp]: Okay.
“[Detective]: Okay.
“[Sharp]: They [Mark and Joel] left. Charles [Hollingsworth] told me, ‘Bum everything,’ told me and John [Cornell], ‘Bum everything.’
“[Detective]: Okay.
“[Sharp]: I said, T ain’t touching nothing,’ you know and he said, ‘You’ll [not] be burnt, don’t worry about it.’ I took the phone, I took the phones, I burned those first and then we took and we looked in the notebook and stuff and burned those and we had two — there was two fires going and there was one in like a little camp fire thing, like a trash thing that you’re supposed to really have for a camp and we burnt that, we bum that and then I told John to get the other fire pit going.” (Emphasis added.)
At the suppression hearing, Wheeles testified about this exceipt and other parts of the interview. For example, he acknowledged that he told Sharp that she could stop talking to him if she ever felt uncomfortable. According to the transcript, at the outset he advised her of her Miranda rights, e.g., her right to remain silent, right to an attorney, and that anything she said “can and will be used against you in a court of law.” Immediately afterward, the interview transcript clearly reveals:
“[Detective]: Do you want to talk to me or answer questions at least until you don’t feel comfortable doing it anymore?
“[Sharp]: Yeah, I’ll do it.”
Wheeles also testified at the hearing that he made no promises or threats to Sharp. He was particularly asked on cross-examination about the first portion italicized above. He explains that he did not recall using the words “I promise you”:
“[Defense Counsel]: You told [the prosecutor on direct examination] that you made him [sic] no promises?
“[Detective]: Right.
“[Defense Counsel]: Let me ask you this: When she asked you if she was going to jail and you said, ‘No, no, no, no, no, no, I promise you,’ is that a promise?
“[Detective]: I don’t recall. Did I say ‘I promise you?’ If it — yeah, that would be considered to be a promise. I thought she was going to be a witness in this case, as I’ve stated earlier.” (Emphasis added.)
Wheeles was also cross-examined about the second portion italicized above, i.e., “Just don’t tell me no if I ask you something.” He explains that this was simply another admonition to Sharp to tell him the truth because he had already caught her being untruthful:
“[Defense Counsel]: You did tell her ‘just don’t tell me no if I ask you;’ you did say that, didn’t you?
“[Detective]: I told her to tell me the truth and not to lie. To my recollection, that’s what I told her, and I told her not to keep anything back and to tell me everything she knew about the case. And I was very specific about that from the beginning to the end, and there were times when I had to gently confront her about stuff that she was telling me that was not the truth, and that’s what was taking place [there].
“[Defense Counsel]: Did you say to Miss Sharp after your conversation with the other detective that you went in the hall and talked to, ‘Just don’t tell me no if I ask you’; did you say that?
“[Detective]: I don’t remember the exact quote on that. I explained to you that I told her to tell me the truth about the incident.’’ [Emphasis added.)
Wheeles’ explanation that he was actually “gently confronting” Sharp about her malting untruthful statements, and exhorting her to now tell the truth, is supported by the record. According to the recorded interview, near its beginning Sharp had admitted telling one previous he to him:
“[Sharp]: • I thought you might be really pissed at me because I lied
[because she did not tell officers she knew Hollingsworth was giving a false name until separated from him by the officers],
“[Detective]: Because you lied, no.”
Moreover, given Sharp’s admission later in the interview that she did help burn — set forth above — clearly she had been lying to Wheeles earlier in the interview when she had initially denied helping. The following transcript excerpt establishes that he:
“[Detective]: Now, here’s an important part where you and I got to figure out. I know this is a scary deal for you. I appreciate everything that you’ve been honest with me about and I want you to answer this question for as honestly too even — because I understand you’re in a bad situation here where you just see something like this happen and you’re really probably very scared as to not go along could mean major problems for you.
“[Sharp]: Oh, yeah.
“[Detective]: Right? Like you could be in danger?
“[Sharp]:. Oh, yeah.
“[Detective]: Did you help bum the stuff?
“[Sharp]: No.
“[Detective]: Did you have his phone and his bag at any point?
“[Sharp]: No, I didn’t.
“[Detective]: Okay.
“[Sharp]: I didn’t.
“[Detective]: And this whole time John is burning all the personal property?
“[Sharp]: Right, I’m [just] sitting there flipping out.” (Emphasis added.)
Wheeles was also cross-examined about his interview question to Sharp stated above: “Are you picking up on what I’m telling you?” He explained that the statement is still another example of his catching her in a he, i.e., denying to help bum when she had, then “gently confronting” her, and exhorting her to tell the truth because it would be “in her best interests”:
“[Defense Counsel]: And you also indicated to Mrs. Sharp that, or do you recall just making the statement, ‘Are you picking up on what I’m telling you?’
“[Detective]: That was the first time when I confronted her with the information that she — that was the first time that I knew for certain that she was not telling me the entirety of the truthful account, yes.
“[Defense Counsel]: And did she pick up on what you were telling her?
“[Detective]: It was a gentle way of confronting her with the fact that 1 knew [she] wasn’t telling me the truth [about helping bum], and yes she did, she changed her statement at that point [to admit helping].
“[Defense Counsel]: And she changed the statement because you had indicated to her that it would be in her best interests to do that?
“[Detective]: No, I indicated to her it was in the best interests to tell me the truth, and that’s why she changed her statement.” (Emphasis added.)
Defense counsel himself appeared to characterize Wheeles’ statements as simply telling Sharp to “just tell the truth,” rather than trying to get her to incriminate herself. He asked on cross-examination:
“[Defense Counsel]: And would it be fair to say, I believe you said this, but my words, that you were just looking for the objective truth about what she knew?
“[Detective]: I was looking for a complete and truthful account of what she knew about this incident, yes.
And is it your sworn testimony, officer, that it was never your purpose to get Mrs. Sharp to try and incriminate herself? “[Defense Counsel]:
My question or my statement is that I was there to get the truth of what she knew about this incident, and if that did incriminate her, then that was a decision — those actions took place long before I got involved. I just needed a truthful statement of what she knew.” (Emphasis added.) “[Detective]:
Discussion
As indicated earlier, the trial judge made a number of findings -as required by our case law regarding the factors which form a substantial part of the calculus for determining voluntariness, i.e., the “totality of the circumstances.” Johnson, 286 Kan. at 836. These case law factors include, but are not limited to, Sharp’s mental condition; the manner and duration of the interrogation; her ability to communicate on request with the outside world; Sharp’s age, intellect, and background; and the fairness of Wheeles conducting the interview. Johnson, 286 Kan. at 836.
In recent years this court has reviewed the record on appeal for substantial competent evidence to support the findings regarding these factors. Substantial competent evidence is that which possesses both relevance and substance and which furnishes a substantial basis in fact from which the issues can reasonably be resolved. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). See, e.g., State v. Ransom, 288 Kan. 697, 706, 207 P.3d 208 (2009) (substantial competent evidence supports the trial court factual findings, e.g., that defendant was not impaired by drugs or alcohol, that there were no signs of physical or psychological coercion, and that the manner and duration of interrogation were reasonable); Johnson, 286 Kan. at 834-35, 838 (substantial competent evidence supports trial court’s factual findings, e.g., defendant had capacity to understand his rights); State v. Farmer, 285 Kan. 541, 551, 175 P.3d 221 (2008) (on factor of fairness of officers’ interrogation, substantial competent evidence supported finding that officer was unaware of any religious beliefs defendant held, whether he attended church or regularly read the Bible); State v. Kirtdoll, 281 Kan. 1138, 1147, 136 P.3d 417 (2006) (substantial competent evidence supports the district court findings, e.g., of defendant’s age, intellect, and background); State v. Mattox, 280 Kan. 473, 484, 124 P.3d 6 (2005) (substantial competent evidence supports findings that defendant was properly advised of Miranda, he understood those rights, he was 22 years old, had 2 years of college education, and was not under the influence of alcohol or drugs).
In short, our past application of this substantial competent evidence test establishes that district court determinations of these factors described in Johnson have been treated as findings of fact. See Johnson, 286 Kan. at 835 (“In reviewing a trial court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard.”). This approach appears consistent with the United States Supreme Court’s in Fulminante. 499 U.S. at 286-87 (great deference given to factual findings of lower court, e.g., “ ‘because Fulminante was an alleged child murderer, he was in danger of physical harm at the hands of other inmates’ ”).
As mentioned, Sharp primarily challenges one trial court finding — “At no time did she appear she was under . . . coercion, operating under any promises” — to dispute the court’s ultimate legal conclusion that her statements were “freely, voluntarily and intelligently made.” See Johnson, 286 Kan. at 835; Swanigan, 279 Kan. at 31; Fulminante, 499 U.S. at 287. We reject her argument for a number of reasons, as more fully discussed below.
Promise not go to jail and “don’t tell me no if I ask you something”
On tire particular issue of whether promises of leniency were made, this court has considered those determinations as findings of fact. In Swanigan, 279 Kan. at 25-26, we held that substantial competent evidence supported the finding that although defendant was told several times that if he cooperated his cooperation would be conveyed to anybody who might pursue the case, no promises of leniency were made. Similarly, in State v. Pham, 281 Kan. 1227, 1242, 136 P.3d 919 (2006), we later held that substantial competent evidence supported the finding that “ ‘there were ... no promises made by the agent as to any leniency or deals.’ ”
The Tenth Circuit Court of Appeals reviews judicial determinations regarding alleged promises of leniency in a similar fashion. In United States v. Lopez, 437 F.3d 1059, 1064 (10th Cir. 2006), the court expressly rejected the prosecution’s argument that a district court determination that an agent’s actions constituted a promise of leniency was not a factual finding. The Tenth Circuit also held in United States v. Morris, 247 F.3d 1080, 1089 (10th Cir. 2001), that a district court’s finding — that officers’ actions showing a suspect photos of “past criminals” and telling him that the ones who cooperated had received more lenient sentences— was not a promise of leniency. As in Lopez, that determination was also reviewed on appeal as a factual finding.
Under this deferential standard of review, we determine that substantial competent evidence certainly exists in the present record to support the district court’s factual finding that Sharp was not “under . . . coercion, operating under any promises.”
First, substantial competent evidence exists to support a finding that there was no promise made. In Wheeles’ testimony at the suppression hearing, he expressly denied malting any threats or promises to Sharp. This testimony is supported by the transcript of the interview: neither the words “promise” nor “threat” appear there. We acknowledge that promises can be implicit. However, Wheeles testified repeatedly that he was only trying to get Sharp to tell the complete truth because he kept catching her in lies and because telling the truth would be in her best interests.
Per the interview transcript, Wheeles told Sharp, “You cannot hold anything back in this thing at all ... . This is as serious as it comes.” She replied, “I know, I know, I know.” He testified that reiterating to Sharp that she needed to tell die complete truth was his purpose in asking, “Are you picking up on what I’m telling you?” She replied, “Uh-huh.”
According to Wheeles, he was again exhorting her to tell the truth when he told her, “Just don’t tell me no if I ask you something.” He testified he used this remark because “I had to gently confront her about stuff that she was telling me that was not the truth.” At the time Wheeles told her this, he had already caught her in two lies. He testified that he again told her “not to keep anything back and tell me everything she knew.” He was “very specific about that from beginning to end.”
We acknowledge that Wheeles answered her question “Am I going to jail?” with a comment which can be readily construed as negative: “No, no, no, no, no, no, no, no. You’re a witness to this thing as long as you do not do something dumb and jam yourself.” But there is sufficient evidence in the record for the trial court to have determined — from Wheeles’ express denial that he made any promises and from the overall context of this statement — that Wheeles was again simply admonishing Sharp to tell the truth. We observe that there was certainly enough evidence to lead Sharp’s counsel into accepting Wheeles’ explanation about the specific pur pose behind all of his questions and statements: “It would be fair to say . . . that you were just looking for the objective truth about what she knew.”
The trial court may have relied upon this same evidence that Sharp’s counsel found persuasive. It was certainly entitled to draw reasonable factual inferences from the evidence which we are not permitted to dispute by an inappropriate use of de novo review. See State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007) (appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence); U.S.D. No. 233, 275 Kan. at 320 (appellate court accepts as true all inferences to be drawn from the evidence which support or tend to support the findings of the district court). Exhortations to tell the truth in this particular context do not make Sharp’s statements involuntary. See State v. Harris, 284 Kan. 560, 162 P.3d 28 (2007).
Second, it could be argued that the trial court implicitly found that a promise had actually been made but that Sharp simply was not “operating under” that promise. Nevertheless, this too would be a factual finding subject to a review for substantial competent evidence. See State v. Ransom, 288 Kan. at 706, (substantial competent evidence supports the trial court factual findings that defendant was not impaired by drugs or alcohol and that there were no signs of physical or psychological coercion); Mattox, 280 Kan. at 484-85 (substantial competent evidence supported finding that defendant was not “under the influence of’ alcohol or drugs); State v. Hansen, 199 Kan. 17, 20, 427 P.2d 627 (1967) (“Appellant principally emphasizes he was not in possession of his faculties [during confession] due to lack of insulin. The court found against him on this factual issue.”). Cf. State v. Ralls, 216 Kan. 692, 693-94, 533 P.2d 1294 (1975) (defendant testified that during police questioning he was suffering from running nose, watering eyes, and headache; State admitted he was affected by tear gas, but no testimony as to his condition at either of the times he waived constitutional rights; court stated that great reliance must be placed upon finder of fact in confessions and could not say trial court erred in permitting admission of confession).
Similarly, the trial court factual finding that Sharp was not “operating under a promise” is also supported by substantial evidence showing that any actual promise by Wheeles was conditional and that Sharp had not met its conditions. See Green v. Goble, 7 Kan. 297, 302 (1871) (for a conditional promise, a party “cannot avail himself of the benefit of it without complying with the conditions”). These determinations involve questions of fact. Cf. Nungesser v. Bryant, 283 Kan. 550, 566, 153 P.3d 1277 (2007) (“When the evidence pertaining to the existence of a contract or the content of its terms is conflicting or permits more than one inference, a question of fact is presented.”).
According to Wheeles’ testimony in the record, he made it very clear that based upon what he knew so far, Sharp was merely a “witness to this thing.” Accordingly, she was not going to jail “as long as you do not do something dumb and jam yourself.” In other words, if Sharp did “jam” herself, i.e., inculpate herself in criminal activity, she could veiy well still go to jail. Sharp did in fact proceed to inculpate herself, as evidenced by her desire to exclude two specific incriminating points she told Wheeles during the later reenactment at the campsite. First, she told Wheeles that she had told Hollingsworth, “Don’t kill him [Owen] here,” suggesting she had no problem with his being killed elsewhere. (Emphasis added.) Second, she told Wheeles that it was her idea to bum Owen’s items: “Z said we have to burn it 'cause Z don’t need the evidence. Z don’t want to be tied to this.” (Emphasis added.) Sharp was arrested only after making these additional statements. As a result, even assuming Wheeles did make a promise of leniency, substantial competent evidence exists to support a finding that the promise was a conditional one: conditioned upon Sharp not “jamming” herself with incriminations.
Sharp herself argues that Wheeles’ purported promise of leniency is comparable to a promise, or grant, of immunity from prosecution. These, of course, can be conditional. In People v. Kennedy, 36 Cal. 4th 595, 115 P.3d 472 (2005), the court held that a grant of immunity from prosecution was conditioned on testimony being in conformity with an earlier statement to police. In a conditional grant of immunity case containing further parallels to the instant one, a Tennessee court held that the grant was conditioned upon, among other things, the defendant later testifying truthfully, assisting in the investigation of the victim’s murder, and not having been the person who actually killed the victim. State v. Brooks, 1998 WL 299267 (Tenn. Crim. App. 1998) (unpublished opinion).
The concept of conditional promises occurs throughout the criminal law. In addition to conditional grants of immunity from prosecution, the granting of pardons can be conditional. In State v. Wolfer, 53 Minn. 135, 138, 54 N.W. 1065 (1893), the defendant was pardoned on the condition that in the future he “ ‘take up his residence out of the state, and maintain the same outside of the state during the balance of his life.’ ” He later failed to abide by this condition and was taken into custody. The court observed:
“It is, of course, well settled that if a person be pardoned upon a condition, either precedent or subsequent, -which he neglects to perform, the pardon is void, and he may be remanded to suffer his original sentence.” (Emphasis added.) 53 Minn, at 138-39.
In Kansas, the granting of probation and parole and the entering into of plea bargains are also clearly based upon the defendant subsequently performing under the same type of conditional promise. See State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996) (a probationer may have his or her probation revoked, and conditional freedom ended, when he or she “has failed to comply with the conditions of probation”); In re Tabor, 173 Kan. 686, 250 P.2d 793 (1952) (upon violation of conditions of parole, court is authorized to revoke and cause the convict to be imprisoned under sentence as though no parole had been granted); cf. State v. Branning, 271 Kan. 877, 881, 26 P.3d 673 (2001) (in plea bargain, State agreed not to prosecute murder charge against accomplice on condition he pled guilty to aggravated robbery and aggravated burglary and testified truthfully in the codefendants’ trials).
Here, any purported promise of immunity — Sharp’s not going to jail — was clearly conditioned upon her not later doing something to “jam” or inculpate herself. See Brooks, 1998 WL 299267 at * 1 (“not having been the person who actually killed the victim”).
Promise to help Sharp and her kids
Sharp also argues that part of her coercion, by promise of benefit, was Wheeles’ statement that he would help her and her kids find a place to live. After he advised that he and Sharp would leave the interview to bring her lads from Baker’s campsite back to the station and then return for the re-enactment scene, she asked if there was any way to “go to a battered women’s shelter or something?” He repliéd, “We’ll work out some place for you to go,” and “[L]et me handle one thing at a time, but I promise we’ll get that worked out.” The earlier discussion regarding Wheeles’ purported promises for Sharp’s benefit applies here as well. After listening to defense counsel argue at the suppression hearing about this purported promise to find them living arrangements, the trial court nevertheless found that Sharp was not “operating under any promises.” That factual finding is supported by substantial competent evidence.
Moreover, for this particular purported promise, substantial competent evidence exists to indicate there was no exchange of Sharp’s statement for a place to stay. Instead, in this context considerable evidence indicates that rather than bargaining quid pro quo, Wheeles was merely trying to expeditiously rescue two small children who were left alone in a homeless camp with a registered sex offender, who reportedly had an outstanding arrest warrant for violating parole. See State v. Farmer, 285 Kan. 541, 554, 175 P.3d 221 (2008) (“[T]he detectives made no promise of leniency for Farmer’s honesty. Although Detective Richstatter’s comments ‘be honest and help yourself and ‘the truth will set you free’ may imply a benefit, when viewed in the totality of the circumstances, the comments do not indicate any promises in return for Farmers confession.”); see also Swanigan, 279 Kan. at 40 (there must be a link between the coercive conduct of the State and the confession).
Additionally, the purported promise about helping the children concerns a collateral benefit. Accordingly, “a more stringent test is applied.” State v. Kanive, 221 Kan. 34, 38, 558 P.2d 1075 (1976). As we stated in State v. Holloman, 240 Kan. 589, 597, 731 P.2d 294 (1987):
“A confession induced by a promise of a collateral benefit, with no assurance of benefit to accused loith respect to the crime under inquiry, is generally considered voluntary and admissible in evidence, unless the circumstances surrounding the promise of the collateral benefit were such as to render the confession untrustworthy or the promise could reasonably be calculated to produce a confession irrespective of its truth or falsity.” (Emphasis added.) (Quoting State v. Churchill, 231 Kan. 408, Syl. 1, 646 P.2d 1049 [1982]).
The Holloman court held that appellant did not contend he was ever promised any personal benefit if he confessed. Nor was there any contention the circumstances surrounding the alleged collateral benefit — that brother L.C. would be released from jail if defendant confessed — were such as to render the confession untrustworthy. 240 Kan. at 597.
Similarly, in State v. Pittman, 199 Kan. 591, 433 P.2d 550 (1967), there was evidence that the chief of police told the defendant during questioning that if he was holding back through fear of what would happen to his family, the chief would see that the proper authorities were contacted and the family would be cared for. This court held: “This is not the sort of promise, either in phraseology or content, which would overcome a defendant’s free and unfettered will.” 199 Kan. at 596; see also Kanive, 221 Kan. 34, Syl. ¶ 4 (promise by law enforcement was at most a promise of some collateral benefit, i.e., to discontinue further investigation of the rape of defendant’s grandmother; it assured no benefit to defendant concerning the crime under inquiry, i.e., the murder).
Sharp was “particularly vulnerable”
Finally, Sharp claims that her personal circumstances — “young, homeless, recently divorced, with two small children” — placed her in a “particularly vulnerable position.” Without her elaboration, arguably these relate to her mental condition during the interview. See Brown, 285 Kan. 261. The trial court specifically found, however, that (1) “[a]t no time did she appear that she’s under duress”; (2) “[a]t no time did it appear she was under duress, coercion, operating under any promises”; and (3) “she appears very relaxed [and] candid,” “[h]er responses were very clear,” “she was cooperative.” These findings are supported by substantial competent evidence, e.g., the audio and visual recording of her interviews and re-enactment.
In sum, Sharp primarily alleges only one factor stated in Brown as bearing on the question of the voluntariness of her confession: unfairness of Wheeles in conducting the interview. That factor was in two parts: (1) promise of leniency/immunity, i.e., no jail; and (2) promise to help her and her lads find a place to stay. She also makes general references to her “vulnerability.” As mentioned, the trial court findings rejecting the presence of these factors are supported by substantial competent evidence.
The trial court also made findings regarding other factors in the “totality of circumstances” calculus for reviewing voluntariness. For example, it found that Sharp was Mirandized; she voluntarily gave up her Miranda rights; she did not appear to be under the influence of anything; the detention length was not unusual; she was given things to drink; and she was cooperative. Sharp does not argue on appeal that these findings are not supported by substantial competent evidence.
Accordingly, under the totality of the circumstances, Sharp has failed to establish that Wheeles’ conduct unfairly deprived her of her free and independent will. Her statements were properly admitted at trial as voluntarily made.
Issue 2: The trial court did not err in limiting the defense’s cross-examination of a witness.
Sharp next contends that the trial court erred by not allowing her to elicit during Cornell’s cross-examination that in addition to the State’s reduction in charges in return for his testimony, he also hoped to receive a downward departure sentence. The State counters that Sharp was given sufficient leeway, since her counsel was allowed to ask Cornell about his plea agreement with the State.
Like Sharp, Cornell was originally charged with felony murder and kidnapping. As the result of a plea agreement, Cornell agreed to testify against Sharp, and the State reduced the charges against him to involuntary manslaughter. At the time of trial, Cornell had not béen sentenced.
In addition to establishing the plea bargain’s reduced charges and their consequent lesser sentences in general, defense counsel sought to cross-examine Cornell on whether he would be requesting either a dispositional or durational departure at sentencing. The trial court barred the question:
“[Y]ou can’t go into downward departures, durational departures. That’s up to a Judge, that’s not up to a jury. I’m not going to have the jury listen to that. They’re tiying Ms. Sharp, not Mr. Cornell. Mr. Cornell testified that he received a deal— that he went from first degree murder down to involuntary manslaughter."
Standard of Review
Our standard of review is for abuse of the trial court discretion:
“ ‘The credibility of an accomplice is subject to attack and great leeway should be accorded the defense in establishing the witness’s subjective reason for testifying. [Citations omitted.] On the other hand, it lies within the sound discretion of the trial court to determine the propriety and scope of the examination and, absent a showing of a clear abuse of the exercise of the power of discretion, there is no prejudicial error. [Citations omitted.]’ ” State v. Branning, 271 Kan. 877, 882, 26 P.3d 673 (2001) (quoting State v. Davis, 237 Kan. 155, 157-58, 697 P.2d 1321 [1985]).
As the party who asserts abuse of discretion, Sharp bears the burden of showing it. State v. Angelo, 287 Kan. 262, 271, 197 P.3d 337 (2008).
Discussion
A synthesis of Kansas case law indicates that the trial court did not abuse its discretion. The case of State v. Davis, 237 Kan. 155, 697 P.2d 1321 (1985), provides guidance. There, codefendant Coty was originally charged with aggravated robbery but pled guilty to a reduced charge of attempted aggravated robbery. At Davis’ trial, defense counsel sought to question Coty about the reasons he pled guilty, the plea negotiations, and the potential penalty he faced for the original and reduced charges. The State objected to questions about the penalties, arguing this would allow the jury to hear possible penalties for Davis if it found him guilty of the same original charge against Coty: aggravated robbery. The trial judge barred the questions:
“I would think that by allowing you to make a big deal about the reduction and what all the possible consequences and ramifications of that plea are, it takes away from the question in this case, and that is the innocence or guilt of your client, and puts in some information that the jury may or may not consider about the disposition of Mr. Coty’s case.” 237 Kan. at 157.
The Davis court found no abuse of trial court discretion in limiting Coty’s examination. It pointed out that the jury was informed that Coty was charged as a codefendant and resolved his case through plea bargaining. Accordingly, the jury knew that Coty “had thereby avoided the risk of conviction of the more serious charge.” 237 Kan. at 158. The court also cited its prior decisions holding that “inquiry into whether the witness was offered any ‘arrangement or deal’ by the State in exchange for his testimony is crucial.” 237 Kan. at 158. Consistent with this case law, the court noted that defense counsel had been allowed to inquire whether Coty had made any such deal.
Similarly, 10 years later in State v. Rinck, 256 Kan. 848, 854, 888 P.2d 845 (1995), the defendant argued he should have been allowed to cross-examine a juvenile accomplice witness about the sentence he could have received if he had been tried as an adult. The court acknowledged that a proper and important function of the right to cross-examination is the exposure of the witness’ motivation in testifying, but that the trial court has broad discretion in controlling the examination. 256 Kan. at 854. It observed that defendant Rinck was allowed to cross-examine the juvenile about his plea bargain and to point out that in exchange for his testimony the State had dropped one of the charges and agreed not to try him as an adult. Additionally, the witness acknowledged that his juvenile punishment was a “slap on the wrist” compared to an adult prosecution.
Finding Davis directly applicable, the Rinck court held that although defendant had been barred from questioning the witness about a sentence he could have received if tried as an adult, nevertheless he “was allowed reasonable latitude in inquiring as to the nature of the bargain he had made with tire State.” 256 Kan. at 855. Accordingly, there was no abuse of discretion.
Six years later, this court in State v. Branning, 271 Kan. 877, 26 P.2d 673 (2001), addressed defendant’s argument that he should have been allowed to cross-examine his codefendant about his possible sentencing range under his plea agreement. He was allowed to elicit that the State dropped the murder charges in exchange for guilty pleas to aggravated robbery and aggravated burglary charges. The court noted that Branning had been allowed to go beyond the permitted inquiry in Davis to also question his codefendant as to any special sentencing arrangement that had been made. Citing Davis and Rinck, this court held the trial court did not abuse its discretion in limiting the cross-examination. 271 Kan. at 882.
Sharp cites several cases from other jurisdictions, but each is readily distinguishable. In State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002), the witness had not yet reached a plea agreement with the prosecution — a situation in which the witness is much more likely to engage in biased testimony to please the prosecution. Similarly, in Boone v. Paderick, 541 F.2d 447, 451 (4th Cir. 1976), the court was discussing the testimony of witnesses who had yet to be charged or enter a plea agreement. By contrast, here Cornell had already entered into a plea agreement with the State and had only to be sentenced — a length not left up to the State, as the trial court correcdy observed.
Here, the jury was informed that Cornell had originally been charged with kidnapping and felony murder, but in exchange for his testimony had pled guilty to a lesser charge: involuntary manslaughter. See Davis, 237 Kan. at 157-58 (inquiry into whether the witness was offered any “ ‘arrangement or deal’ ” by the State in exchange for his testimony is crucial; juiy knew that through plea bargaining, codefendant had avoided the risk of conviction of the more serious charge). The jury was also informed Cornell generally would receive some sort of lesser sentence as a result. See Rinck, 256 Kan. at 855 (codefendant acknowledged that his juvenile punishment was a “slap on the wrist” compared to an adult prosecution). Contrast Branning, 271 Kan. 877 (within trial court discretion to deny questioning on possible sentencing range). Additionally, Sharp’s jury was instructed to “consider with caution the testimony of an accomplice” like Cornell pursuant to PIK Crim. 3d 52.18.
Under these circumstances, Sharp has not met her burden of showing the trial court abused its discretion in refusing her inquiiy of Cornell about his hopes or requests for downward departures on a sentence for involuntary manslaughter.
Issue 3: The trial court did not err in allowing into evidence statements from two coconspirators.
Sharp next argues that three purported hearsay statements were improperly admitted into evidence. Specifically, Cornell testified that he overheard Hollingsworth tell Sharp that Owen was “probably dead by now” and that “he [Owen] was turning blue when we left.” Hollingsworth did not testify at trial. Defense counsel objected, arguing that because neither of these two statements had been made outside Sharp’s presence they could not qualify under the coconspirator’s statement exception to tire hearsay rule, K.S.A. 60-460(i)(2).
The third statement Sharp argues was improperly admitted is Cornell’s testimony relating that Baker told him that Hollingsworth “had lynched [Owen].” Baker did not testify at trial. Defense counsel made no objection.
Each statement will be analyzed in turn, as not all share the same standards of review.
Bakers Statement to Cornell
Because defense counsel made no objection to the admission of Cornell’s testimony that Baker had told Cornell that Hollingsworth lynched Owen, we will not consider this issue on appeal. “As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.” State v. Bryant, 285 Kan. 970, Syl. ¶ 6, 179 P.3d 1122 (2008); see K.S.A. 60-404.
Hollingsworth’s statements to Sharp
Cornell testified about comments he heard Hollingsworth make to Sharp after Hollingsworth and Baker left Owen at the dike and returned to the camp:
‘[Prosecutor]: Now, once [Charles Hollingsworth], [Carl Baker], and [David Owen] is [sic] taken from camp, how long are they gone?
“[Cornell]: Fifteen, no more than 20 minutes.
“[Prosecutor]: Who came back to the camp?
“[Cornell]: [Hollingsworth] and [Baker].
“[Prosecutor]: Was [Owen] with them?
“[Cornell]: No.
“[Prosecutor]: All right. What did [Sharp] ask them?
“[Cornell]: ‘How’s [Owen]?’
“[Prosecutor]: What did [Hollingsworth] say?
“[Cornell]: Well, he looked at his — well, he didn’t wear a watch, he was being facetious, I guess, ‘Probably dead by now.’
“[Prosecutor]: Did he say anything else when he said, ‘He’s probably dead by now?’
“[Cornell]: Yeah, he said, ‘He was turnin’ blue when we left.’” (Emphasis added.)
Sharp argues there are five prerequisites to admittance of a coconspirator statement under K.S.A. 60-460(i)(2), including that the statement must be made “outside the presence” of the defendant. Repeating defense arguments at trial, Sharp claims since these italicized statements were made in her presence they should not have been admitted. The State responds that the judge’s rejection of the “outside the presence of the defendant” requirement was well reasoned, supported by case law, and consistent with the statute.
Sharp does not argue that these statements were testimonial and therefore barred by the Confrontation Clause. See State v. Jackson, 280 Kan. 16, 34-35, 118 P.3d 1238 (2005) (Court in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 [2004], specifically noted that statements by coconspirators are not testimonial). Nor does she claim that they are anything but hearsay. Rather, the disagreement between the parties focuses on whether “outside the presence” is an element required under K.S.A. 60-460(i)(2). Accordingly, our review of this issue is de novo. See State v. White, 279 Kan. 326, 331, 109 P.3d 1199 (2005) (review is de novo of evidence admissibility decision when interpreting statute and determining if judicial discretion was guided by erroneous legal conclusions).
The hearsay statute, K.S.A. 60-460, states in relevant part at subsection (f)(2):
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(i) Vicarious admissions. As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
Sharp acknowledges that the “outside the presence of the accused” element does not appear in the statute. Nevertheless, she relies upon State v. Bird, 238 Kan. 160, 175-76, 708 P.2d 946 (1985), where this court stated:
“This exception to tire rule against admitting hearsay establishes five prerequisites to its application: (1) the person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of tire coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of the coconspirator must have been made while the conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter.” (Emphasis added.)
Bird cites no authority for this proposition. We independently observe, however, that this uncited requirement also appeared in State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977). There, defendants attempted to keep a witness from testifying about what she had heard in the presence of conspirators. The court stated:
“AppeEants have misinterpreted the statute and its case law. K.S.A. 60-460(i) addresses a diird party situation. Its requirements apply when the party (defendant) and die declarant (coconspirator) are participating in a plan to commit a crime and a third person (witness) is later called to testify as to die coconspirator’s statements made outside the presence of the defendant concerning the conspiracy for die purpose of establishing defendant’s participation in the conspiracy and crime.” (Emphasis added.) Roberts, 223 Kan. at 60.
As in Bird, the Roberts court cited no authority for the “outside the presence of the defendant” requirement. Regardless, the court held that the hearsay exception in K.S.A. 60-460(i)(2) did not apply because tire “statements here were made in the presence of all conspirators. The statements were not made to a third party.” 223 Kan. at 60. The court then explained that the testimony was nevertheless admissible for another reason:
“[Statements of persons present when the conspiracy is being consummated are admissible as matters accompanying an incident to the transaction or event; as such they are part of the res gestae. Such statements by which the agreement was reached may be established by the testimony of anyone present when the agreement was alleged to have been entered into.” 223 Kan. at 60.
Obviously, there is “no outside the presence of the defendant” requirement on the face of the statute. Additionally, the doctrine relied upon by the Roberts court to actually admit the evidence— res gestae instead of K.S.A. 60-460(i)(2) — has now been interred in Kansas. See State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). Finally, we observe that numerous Kansas decisions since Roberts have not even mentioned the “outside the presence of defendant” requirement. See State v. Nguyen, 281 Kan. 702, 715-16, 133 P.3d 1259 (2006); State v. Jackson, 280 Kan. 16, 33-35, 118 P.3d 1238 (2005); State v. Sherry, 233 Kan. 920, 933-34,667 P.2d 367 (1983). Contra State v. Flynn, 274 Kan. 473, 509, 55 P.3d 324 (2002).
For these reasons, this requirement articulated in Roberts and reiterated by its progeny is expressly disapproved.
Sharp asserts that this court should consider two other reasons not expressly argued at the trial level to brand these statements as inadmissible hearsay. First, she contends that the statements did not relate to the plan or subject matter of the conspiracy. Second, she argues that the statements were made after the termination of the conspiracy. Sharp acknowledges that the contemporaneous objection rule would typically bar consideration of her arguments but contends it should be waived in order to protect her confrontation rights.
The State responds there is no reason to waive the contemporaneous objection rule, but the statements are admissible under the exception anyway.
We have held that a defendant’s failure to timely object at trial to alleged hearsay statements precludes raising the issue on appeal, even where contending a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208 (2004). Moreover, it is well established that a party “ ‘cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.’ ” State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005). Accordingly, Sharp’s failure to object on these particular bases typically would bar our consideration on appeal.
However, because of Sharp’s understandable and sole reliance at trial upon a longstanding line of Kansas cases which today we disapprove, and because of the involvement of a fundamental right — confrontation—we will consider her alternate arguments. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (consideration necessary to serve ends of justice or prevent denial of fundamental rights). On these argued bases, our review of the court’s ruling is for abuse of discretion. State v. Brown, 285 Kan. 261, 294, 173 P.3d 612 (2007) (generally, an appellate court reviews a trial court’s determination that hearsay is admissible under a statutory exception for abuse of discretion).
Statements relating to plan or subject matter of conspiracy
Sharp does not dispute the existence of a conspiracy. Rather, she argues that tire State merely established to the trial court’s satisfaction a conspiracy to kidnap; and Hollingsworth’s two statements instead relate entirely to a conspiracy to kill. The State responds that the kidnapping and murder were a single continuing conspiracy. Specifically, “the murder occurred during the commission of the kidnapping and was a means of concealing the kidnapping.” We generally agree with the State.
There need not be any formal agreement to constitute a conspiracy. “[I]t is enough if tire parties tacitly come to an understanding in regard to the unlawful purpose, and this may be inferred from sufficiently significant circumstances.” State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995). Sharp admitted Hollingsworth told her to get a rope, and she told Cornell to get one for tying up Owen. More important, she also told Wheeles that she had told Hollingsworth — when she was afraid he was going to chop up Owen — “Don’t kill him here.” The admission suggests she approved of his being killed elsewhere. She further admitted it was her idea to bum Owen’s possessions because “I don’t want to be tied to this.” Accordingly, it can be inferred that “this” was Owen’s death, and not merely his kidnapping. Indeed, burning the possessions of a dead man in order to prevent ties to his death makes more sense than burning the notebooks and cell phones of a live man to prevent permanent detection of his kidnapping. Additionally, evidence indicates that Sharp helped burn after Hollingsworth said Owen was “probably dead” and “turning blue.” Specifically, although different from Sharp’s statement to Wheeles, she testified at trial that Hollingsworth told her that Owen’s shoes, socks, and glasses were burned after Hollingsworth and Baker returned from dragging Owen toward the dike, i.e., after Hollingsworth’s hearsay statements were made.
As the State suggests, we have held that “a conspiracy is not terminated when an attempt to conceal the offense is made.” State v. Campbell, 210 Kan. 265, 277, 500 P.2d 21 (1972). Therefore, a conspiracy exists “to the disposition of its fruits, and to acts done to preserve its concealment.” Campbell, 210 Kan. at 277 (citing State v. Borserine, 184 Kan. 405, 411, 337 P.2d 697 [1959]). It can be inferred from the evidence that Hollingsworth killed Owen because Hollingsworth wanted to stop him from reporting the crimes already committed against him, e.g., the kidnapping and battery. It can also be inferred from the evidence that Baker, as a sex offender purportedly on parole with an outstanding arrest warrant, similarly did not want Owen to be able to contact the authorities after his forcible restraint, which had originally been performed to prevent Owen from calling the police. Consequently, even if, as Sharp contends, she could have only conspired to kidnap — which conspiracy arguably ended with Owen’s death — it can be established that she also participated in the conspiracy to kill, by helping bum Owen’s possessions after Hollingsworth’s statements. In short, she likely knew the kidnapping victim was dead, and she was helping cover up that crime.
Hollingworth’s two statements meet the requirement of relating to the subject matter of the conspiracy to commit kidnapping— and resultant murder — because they dearly concern the physical status of the kidnapped victim: “turning blue” and “probably dead.”
Termination of conspiracy
Sharp next argues that the statements are not admissible because the conspiracy had terminated before they were made. See State v. Nguyen, 281 Kan. 702, 716, 133 P.3d 1259 (2006); K.S.A. 60-460(i). We again observe that a conspiracy is not terminated when an attempt to conceal the offense is made and a conspiracy exists to acts done to preserve its concealment. Here, Hollingsworth’s comments were made as he and Baker were entering the camp after taking Owen to the dike and tying him up. Sharp testified that Hollingsworth told her that Owen’s shoes, socks, and glasses were burned after this point, i.e., to conceal the crime. Accordingly, the conspiracy had not yet ended when Hollingsworth told her that Owen was turning blue and was probably dead.
Issue 4: Cumulative error did not deny Sharp a fair trial.
Sharp finally argues that cumulative error requires reversal of her conviction and remand for a new trial. Because we have found no error, none can accumulate. See State v. Mays, 277 Kan. 359, 385, 85 P.3d 1208 (2004).
The convictions are affirmed.
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The opinion of the court was delivered by
Johnson, J.:
Robert W. Richardson, II, appeals his convictions and sentences for two counts of exposing another to a life-threatening communicable disease. Richardson claims the statute defining the crime, K.S.A. 21-3435, is unconstitutionally vague; that the district court erred in failing to treat K.S.A. 21-3435 as a specific intent crime; that, alternatively, the evidence was insufficient to convict him of violating K.S.A. 21-3435; and that the use of his criminal history to increase his sentences violated the Sixth Amendment to the United States Constitution.
For more than a decade, Richardson has known that he is infected with the human immunodeficiency virus (HIV), a viral infection that attacks the immune system of the body, malting it susceptible to infections. HIV can advance into acquired immunodeficiency syndrome (AIDS), where the immune system begins to fail and renders the body susceptible to a number of other diseases and conditions. If an immune system is weak enough, severe infections can result in death. Neither HIV nor AIDS is currently curable.
In October 2005, Richardson had sexual intercourse with two females, M.K. and E.Z. At the time, Richardson was being treated to lower the number of HIV particles in his blood, which is measured by a “viral load” test. A February 2005 viral load test had revealed 11,700 parts per milliliter, which was characterized as a medium level of the virus. Prior to that time, Richardson had consistently measured very low levels of HIV, and, accordingly, Richardson was prescribed a new medication. The next viral load test occurred in November 2005, after the incidents of sexual intercourse. The result was a viral load level of less than the minimum which could be measured, i.e., less than 50 parts per milliliter.
In separate cases filed in May and June 2006, the State charged Richardson with violating K.S.A. 21-3435 for having sexual intercourse with M.K. and E.Z. Over Richardson’s objection, the district court consolidated the two cases. The district court denied Richardson’s motion to dismiss based upon a claim that K.S.A. 21-3435 is unconstitutionally vague because it does not define what it means to “expose” someone to a disease and it does not clarify what makes a disease “life threatening” or “communicable.” Richardson then waived his right to a jury trial and proceeded to a bench trial, which included the parties’ stipulations that Richardson knew he was infected with HIV; that he engaged in sexual intercourse with M.K. on or about October 17,2005, and he engaged in sexual intercourse with E.Z. between October 1, 2005, and October 30, 2005, both in Lyon County; and that the term “sexual intercourse” meant “penetration of the female sex organ by the male sex organ.”
Other than the parties’ stipulations, the evidence submitted during Richardson’s bench trial consisted entirely of the testimony of two medical doctors: Dr. Christopher Penn called by the State and Dr. Chiton Jones called by the defense. Dr. Penn had been Richardson’s treating physician from 2003 to the end of 2005. The testimony of both doctors concentrated on whether HIV may be transmitted when a viral load level is low or undetectable and the effect of the virus on an infected individual’s lifestyle.
Richardson defended on the basis that the State had failed to establish that HIV is always a life-threatening disease; that he had actually exposed the victims to the disease because of the lack of evidence that bodily fluids were exchanged during intercourse; or that he had the specific intent to expose his sexual partners to HIV. The district court found Richardson guilty on both counts and sentenced him to consecutive prison terms. Richardson appealed, and this court transferred the case from the Court of Appeals on its own motion.
SPECIFIC INTENT CRIME
We take the liberty of rearranging the order in which we address the issues, first considering whether K.S.A. 21-3435 is a specific intent crime. The district court did not specifically say that it was interpreting K.S.A. 21-3435 as only requiring a general criminal intent. However, Richardson insists that the district court must have applied that interpretation because it found Richardson guilty without the State presenting any evidence of a specific intent to expose the victims to HIV. The State counters that, despite the language of the applicable statute, the legislature intended to create a general intent crime.
Except for limited instances described in K.S.A. 21-3204, “a criminal intent is an essential element of every crime defined by [the criminal] code.” K.S.A. 21-3201(a). The requisite general criminal intent must be established by proof that the defendant’s conduct was intentional, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner. K.S.A. 21-3201(a).
However, in addition to the nearly omnipresent general criminal intent requirement, some crimes require an additional, specific intent. See State v. Sterling, 235 Kan. 526, 527, 680 P.2d 301 (1984). The distinction between general intent and specific intent crimes is “whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.” State v. Cantrell, 234 Kan. 426, Syl. ¶ 7, 673 P.2d 1147 (1983), cert. denied 469 U.S. 817 (1984). When a crime requires a specific intent, that specific intent element “must be included in the charge and in the instructions of the court covering the separate elements” of the crime. Sterling, 235 Kan. at 528.
Whether a criminal statute establishes a general intent or a specific intent offense is a legal question over which appellate courts exercise unlimited review. See State v. Maass, 275 Kan. 328, 330, 64 P.3d 382 (2003) (statutory interpretation is a question of law requiring de novo review); Sterling, 235 Kan. at 530 (interpreting K.S.A. 21-3720 [Ensley 1981] to determine whether criminal damage to property is a specific intent offense). The analysis must begin by looking at what the legislature said when it defined the crime. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003) (“When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]”). In relevant part, the statute provides:
“(a) It is unlawful for an individual who knows oneself to be infected with a life threatening communicable disease knowingly:
(1) To engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life threatening communicable disease.” K.S.A. 21-3435(a)(l).
Clearly, the prohibited conduct is engaging in sexual intercourse or sodomy with another, when the defendant knows that he or she is infected with a hfe-threatening communicable disease. The statute requires the defendant to “knowingly” engage in that prohibited conduct. Therefore, pursuant to K.S.A. 21-3201(a), the general criminal intent must be established by proof of intentional conduct because the crime-defining statute does not criminalize reckless conduct. Just as clearly, K.S.A. 21-3435(a)(l) “identifies or requires a further particular intent which must accompany the prohibited acts,” i.e., the intent to expose the sex partner to the life-threatening communicable disease. See Cantrell, 234 Kan. 426, Syl. ¶ 7.
The State acknowledges that, on its face, K.S.A. 21-3435(a)(l) purports to be a specific intent crime. However, the State does not acknowledge that this state’s appellate courts have consistently interpreted statutes that define a crime by using the phrase “with intent to” as requiring a specific intent element. See, e.g., State v. Harper, 235 Kan. 825, 827, 685 P.2d 850 (1984) (burglary, [K.S.A. 2143715(a)], defined as entering a building “with intent to commit a felony, theft or sexual battery therein,” is a specific intent crime); State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977) (indecent liberties with a child, [K.S.A. 21-3503(a)(l)], providing that prohibited conduct be done with “intent to arouse or satisfy the sexual desires of the either the child or the offender, or both,” is a specific intent crime); State v. Meinert, 31 Kan. App. 2d 492, 499, 67 P.3d 850, rev. denied 276 Kan. 972 (2003) (criminal threat, [K.S.A. 21-3419(a)], defined as “any threat to . . . [c]ommit violence communicated with intent to terrorize another,” requires “a specific intent such as the intent to terrorize”); State v. Ferris, 19 Kan. App. 2d 180, 183, 865 P.2d 1058 (1993) (contributing to child’s misconduct or deprivation under K.S.A. 21-3612[a][4], defined as “sheltering or concealing a runaway with intent to aid the runaway in avoiding detection or apprehension by law enforcement officers,” requires the State to prove specific intent to aid the child in avoiding detection).
Instead, without proffering any authority, the State contends that giving effect to the statute’s plain specific intent language would actually thwart the legislature’s intended purpose of preventing the intentional exposure of others to HIV. The State argues that any act of sexual intercourse or sodomy by an. HIV positive person, even utilizing a condom, creates some element of risk that the virus will be transmitted to the sex partner, so that total abstinence is the only means by which an infected person may avoid exposing another to HIV. Accordingly, the State suggests that the specific intent to expose another to HIV is inherently included in the defendant’s general intent to engage in sexual intercourse. Under the State’s interpretation, a person infected with HIV must be totally abstinent or risk being prosecuted for a felony each and every time he or she engages in sexual intercourse or sodomy, regardless of whether the act is between two consenting (perhaps married) adults with full knowledge of the virus and utilizing prophylactic measures. We disagree.
The parties did not address whether the State’s interpretation might be constitutionally suspect. A person’s decision to engage in private, consensual sexual conduct is protected by the United States Constitution. See Lawrence v. Texas, 539 U.S. 558, 156 L. Ed. 2d 508, 123 S. Ct. 2472 (2003); Griswold v. Connecticut, 381 U.S. 479, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). Nevertheless, if the legislature intended to criminalize all acts of sexual intercourse or sodomy by any person infected with HIV, it could certainly have said so without employing specific intent language. The State’s public policy arguments cannot be reconciled with the plain language of K.S.A. 21-3435(a)(l), and we find that the statute creates a specific intent crime. The State was required to prove that Richardson, knowing he was infected with HIV, intentionally engaged in sexual intercourse with M.K. and E.Z. with the specific intent to expose them to HIV.
CONSTITUTIONALITY OF KS.A. 21-3435
Richardson also renews his argument that K.S.A. 21-3435 is unconstitutionally vague. Specifically, he contends that the statute fails to give adequate warning as to what is meant by a “life threatening” disease and what constitutes “expos[ing]” someone to such a disease. He argues that a person of ordinary intelligence would be unsure of what conduct is prohibited by the statute, rendering it void for vagueness.
The constitutionality of a criminal statute is a legal question over which this court exercises unlimited review. State v. Moore, 274 Kan. 639, 652, 55 P.3d 903 (2002). A statute is generally “presumed constitutional and all doubts must be resolved in favor of its validity.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008). Appellate courts have both the authority and the responsibility to “construe a statute in such a manner that it is constitutional,” if such an interpretation can be achieved without contorting the legislature’s intent for enacting it. 285 Kan. at 629-30.
A claim that a statute is void for vagueness necessarily requires a court to interpret the language of the statute in question to determine whether it gives adequate warning as to the proscribed conduct. See State v. Adams, 254 Kan. 436, 444-45, 866 P.2d 1017 (1994) (considering the meaning of the term “misconduct” as employed by a statute prohibiting official misconduct). Courts in this state have long recognized that under the constitutional guarantee of due process of law, a criminal statute must “convey[] a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.” State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983); see City of Wichita v. Wallace, 246 Kan. 253, 258, 788 P.2d 270 (1990). A statute that “either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application” violates the Fourteenth Amendment to the United States Constitution and is thus void for vagueness. Dunn, 233 Kan. at 418. “At its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
The rationale behind prohibiting vague statutes is twofold:
“First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972).
Moreover, the need for clarity of definition and the prevention of arbitrary and discriminatory enforcement is heightened for criminal statutes because criminal violations result in the loss of personal liberty. “The standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.” City of Wichita, 246 Kan. 253, Syl. ¶ 3. Still, the determinative question in such cases is “whether a person of ordinary intelligence understands what conduct is prohibited by” the statutory language at issue. Adams, 254 Kan. at 445.
Richardson devotes a great deal of his brief arguing that the term “expose” is ambiguous as to the conduct which is prohibited. He suggests that it could mean engaging in conduct which might present any risk of transmission of HIV or it could mean that the prohibited conduct must involve causing bodily fluids to actually come into contact with the other person. He also suggests that a person infected with HIV must speculate on what viral load level might be sufficient to trigger a criminally prohibited exposure or guess as to whether the exchange of bodily fluids during intercourse could constitute exposing another to the virus.
The flaw in those arguments is that the statute does not define the prohibited conduct as exposing another to the life-threatening disease, but rather it criminalizes sexual intercourse or sodomy with the specific intent to expose the sex partner to the known life-threatening communicable disease. One need not ruminate on exactly how the act must be performed to meet the legal definition of “expose” or even know that a transmittal of the disease is possible. It is enough that the defendant intended to expose his or her sex partner to the disease. That state of mind is certainly a matter well within the common understanding of a defendant.
This court has previously recognized the importance of a specific intent when addressing whether a statute is unconstitutionally vague. State v. Bryan, 259 Kan. 143, Syl. ¶¶ 2-3, 5, 910 P.2d 212 (1996), found that a 1994 “stalking” statute was unconstitutional because it failed to provide an objective standard by which the unlawful behavior could be measured. The statute at issue in Bryan, K.S.A. 1994 Supp. 21-3438, prohibited engaging in a course of conduct that “ ‘seriously alarms, annoys or harasses’ ” someone else. 259 Kan. at 146. Bryan reasoned that the acts constituting “annoying” conduct could vary greatly because the prohibited conduct was measured by the subjective response of the victim, not the conduct of the offender. However, after holding that the statute was unconstitutionally vague, Bryan noted that its conclusion might have been different if “K.S.A. 1994 Supp. 21-3438 . . . require[d] that the person specifically intend to alarm, annoy, or harass the victim.” (Emphasis added.) 259 Kan. at 155-56. That specific intent is present in K.S.A. 21-3435.
Richardson also complains that K.S.A. 21-3435 does not specifically define the term, “life threatening.” Ironically, however, he states in his brief that “[t]he common sense definition of the term ‘life threatening’ is ‘something that poses a threat to life.’ ” We wholeheartedly agree with that assessment and believe that it effectively refutes the contention that the statute is unconstitutionally vague on that point. A person of ordinary intelligence would understand what the statute means by the term “life threatening.”
Moreover, Richardson’s example that such common diseases as influenza can be life threatening does not support his argument. If, during a swine flu pandemic, a person knowingly has sexual intercourse or sodomy with another with the intent to expose the sex partner to the life-threatening influenza, then the offender has subjected himself or herself to prosecution under K.S.A. 21-3435. Of course, in that instance, the prosecutor’s burden of establishing the requisite specific intent may be more difficult to cany. Nev ertheless, that does not make the fact that influenza may be a life-threatening communicable disease any less amenable to common understanding.
In short, we find that K.S.A. 21-3435 conveys sufficient definite warning to our citizenry as to the conduct which is proscribed and provides explicit standards for those that apply the law. The statute is not unconstitutionally vague.
SUFFICIENCY OF THE EVIDENCE
As an alternative to his argument that K.S.A. 21-3435 creates a specific intent crime, Richardson argues that the evidence was insufficient to support his convictions because the State presented no evidence on the requisite element of specific intent, i.e., that he engaged in sexual intercourse with the intent to expose M.K. or E.Z. to HIV. We review a sufficiency of the evidence challenge in a criminal case to determine “whether, after review of all of the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).
A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Garcia, 285 Kan. 1, 22, 169 P.3d 1069 (2007). Accordingly, if there is evidence to support a finding that each of the elements of a crime has been met, this court should uphold a defendant’s convictions even when the evidence was entirely circumstantial. State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). However, “[c]onvictions based upon circumstantial evidence . . . can present a special challenge to the appellate court” because “ ‘the circumstances in question must themsélves be proved and cannot be inferred or presumed from other circumstances.’ ” State v. Williams, 229 Kan. 646, 648-49, 630 P.2d 694 (1981) (quoting 1 Wharton’s Criminal Evidence § 91, pp. 150-51 [13th ed. 1972]).
To establish a violation of K.S.A. 21-3435(a)(l) in this case, the State was required to prove beyond a reasonable doubt (1) that Richardson knew that he was infected with a life-threatening communicable disease; (2) that Richardson knowingly engaged in sex ual intercourse with M.K. and E.Z.; (3) that Richardson engaged in this conduct with the intent to expose M.K. and E.Z. to the life-threatening communicable disease; and (4) that the conduct took place in Lyon County on or about the alleged dates. At trial, the parties stipulated that Richardson knew he had HIV and that he had sexual intercourse with M.K. and E.Z. in Lyon County on or about the dates alleged in the criminal complaint. The State produced evidence by way of Dr. Penn’s testimony that HIV is a life-threatening communicable disease. Thus, the only element that can be seriously disputed is Richardson’s specific intent.
The State argues that the mere fact that Richardson engaged in sexual intercourse while knowing that he was infected with HIV was enough to prove that he intended to expose M.K. and E.Z. to the virus. According to the State, “there is no conceivable means by which the State could prove, apart from the act of sexual intercourse itself, that an HIV positive individual who knowingly engages in sexual intercourse with another acts with ‘intent to expose’ the other to the virus.” We disagree. Prosecutors are routinely called upon to prove a defendant’s specific intent in committing a prohibited act and normally must cany that burden with circumstantial evidence. Here, the State simply made no attempt to prove the requisite circumstances.
Interestingly, at the prehminary hearing, the State presented evidence that M.K. and E.Z. did not know that Richardson had HIV when they had sex with him; that Richardson did not use a condom; and that Richardson had falsely represented to E.Z. that he was free from sexually transmitted diseases. These are prime examples of proven circumstances that could support an inference that Richardson intended to expose M.K. and E.Z. to HIV. Inexplicably, the State chose not to present any of this information at trial, and those facts were not included in the parties’ stipulation.
The State attempts to rectify the evidentiary oversight by arguing that condom use and disclosure of the defendant’s infection are irrelevant to proving an “intent to expose” because K.S.A. 21-3435 is silent on those points, unlike similar statutes in other jurisdictions. For example, Missouri’s statute, Mo. Rev. Stat. § 191.677(4) (2008 Supp.), specifically states that “[t]he use of condoms is not a defense” to a violation of that statute. However, Missouri’s statute, unlike K.S.A. 21-3435, criminalizes reckless sexual intercourse by a person infected with HIV. See Mo. Rev. Stat. § 191.677(2) (2000). K.S.A. 21-3435(a)(l) not only requires proof that the defendant knowingly engaged in sexual intercourse, but it also requires evidence of a specific intent to expose the defendant’s sexual partner to a life-threatening communicable disease. Thus, under our statute, condom use can be germane to the defendant’s specific intent.
Likewise, the State points to laws in other states which make consent or lack of consent an element of criminal exposure to HIV and argues that the Kansas Legislature’s failure to include such language in K.S.A. 21-3435 indicates that consent is not an “affirmative defense.” Again, the State misses the point. Proof that M.K. or E.Z. did not knowingly consent to engage in sexual intercourse with an HIV infected partner would not be offered to refute an affirmative defense, but rather it would merely be a circumstance in furtherance of establishing Richardson’s specific intent to expose his partners to HIV.
Further, the State attempts to shift the burden of proof by arguing that Richardson “presented no direct evidence of his own belief that a low viral load could not transmit or expose another to the virus” and that he failed to demonstrate at trial that the sex with either of these women was consensual. Of course, the State has the burden of proving beyond a reasonable doubt each and every element of the crime, including Richardson’s specific intent to expose M.K. and E.Z. to HIV. Richardson had no burden to disprove specific intent.
Finally, at oral argument, the State asserted that the trial testimony of Richardson’s treating physician established that Richardson had been thoroughly educated on the risks of transmitting HIV through sexual intercourse. That knowledge, the State argues, is a circumstance which would support the specific intent element. However, Dr. Penn’s testimony was less than definitive on that point. When asked by the prosecutor whether he had discussed with Richardson “safe or acceptable practices for engaging in sexual contact,” the doctor replied, “I think we did early on, but I— I can’t give you a time.” Subsequently, when questioned by defense counsel, the doctor conceded that his records did not reflect such counseling for Richardson, even though the doctor maintained comprehensive records which should have reflected such a conversation with a patient. In short, the doctor’s testimony did not establish the circumstance which the State now asserts.
In conclusion, the record reveals that, at trial, the State failed to prove circumstances from which a rational factfinder could reasonably infer that the defendant had the specific intent to expose either M.K. or E.Z. to HIV. Instead, the State has asked us to infer or presume the requisite circumstantial evidence of specific intent from other circumstances or inferences. Such a presumption upon a presumption is insufficient to carry the State’s burden. Accordingly, we find the evidence was insufficient to support the convictions and reverse in both cases.
CRIMINAL HISTORY SCORE
Richardson argues that his sentence violates his right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution because the prior convictions used in calculating his criminal history score were not included in the complaint and were never proved to the factfinder beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Richardson acknowledges that this argument was rejected in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), but includes the claim to “preserve [it] for federal review.” Given our decision to reverse his convictions, we need not discuss this issue further.
Reversed.
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The opinion of the court was delivered by
Nuss, J.:
This appeal results from the decision by the Board of County Commissioners of Wabaunsee County (Board) to amend its zoning regulations. Specifically, the Board prohibited the placement of Commercial Wind Energy Conversion Systems (CWECS, i.e., commercial wind farms) in the county. Plaintiffs and plaintiff inteivenors (Intervenors) are owners of land and of wind rights, respectively, in the county.
The district court granted the Board’s various motions to dismiss. Plaintiffs and Intervenors appeal, and the Board cross-appeals. Our jurisdiction is pursuant to K.S.A. 20-3017 (transfer from Court of Appeals on our motion).
The parties’ issues on appeal, and our accompanying holdings, are as follows:
PLAINTIFFS’ AND INTERVENORS’ SHARED ISSUES:
1. Did the district court err in determining that the Board’s decision amending the zoning regulations was lawful, i.e., that it did not violate the procedures outlined in K.S.A. 12-757? No.
2. Did the district court err in determining that the Board’s decision amending the zoning regulations was reasonable? No.
3. Did the district court err in precluding Plaintiffs and Intervenors from conducting discovery or submitting evidence on tire reasonableness of the zoning regulation amendments? No.
4. Did the district court err in dismissing the claim alleging that the decision amending the zoning regulations violated the Contract Clause of the United States Constitution? No.
INTERVENORS’ ISSUES:
5. Did the district court err in dismissing Intervenors’ claim alleging preemption of the zoning regulation amendments by state law? No.
6. Did the district court err in dismissing Intervenors’ claim alleging preemption of the zoning regulation amendments by federal law? No.
BOARD’S ISSUE ON CROSS-APPEAL:
7. Was the Intervenors’ action under K.S.A. 12-760(a) commenced in a timely manner? Yes.
Concurrent with the release of this opinion, this court has ordered the parties to submit supplemental briefs on certain questions raised in the issues originally presented on appeal by both Plaintiffs and Intervenors. Those original issues are: whether the district court erred in dismissing the claims alleging that the Board’s decision amending the zoning regulations violated the Takings Clause and the Commerce Clause of the United States Constitution.
Our order requiring supplemental briefing on takings necessarily stays our resolution of the following issues originally presented on appeal by Intervenors: whether the district court erred in dismissing their claims under 42 U.S.C. § 1983 (2006) and inverse condemnation.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs are owners of land in Wabaunsee County who have entered into written contracts for the development of commercial wind farms on their properties. Intervenors are the owners of wind rights concerning other properties in the county.
Defendant is die three-member Board of County Commissioners of Wabaunsee County. The county is roughly 30 miles long and 30 miles wide, containing approximately 800 square miles and 7,000 people. It is located in the Flint Hills of Kansas, which contain the vast majority of the remaining Tallgrass Prairie that once covered much of the central United States.
In October 2002, the county zoning administrator told the Board that he had been contacted by a company desiring to build a wind farm in the county. At that time, the county had no zoning regulations relating specifically to wind farms. The next month, the Board passed a temporary moratorium on the acceptance of applications for conditional use permits for wind farm projects until the zoning regulations could be reviewed. The moratorium was extended on at least five occasions.
The following month, December 2002, the county planning commission conducted its first public meeting to discuss amending zoning regulations regarding commercial wind farms.
On July 24,2003, the planning commission held a public hearing for discussion of the proposed zoning regulations which included regulations of small and commercial wind farms. A month later, the Board ordered the planning commission to review and recommend updates to the 1974 Wabaunsee County Comprehensive Plan (Plan) because it did not address changes that had occurred in the county in intervening years. After the Plan had been reviewed, the Board intended to consider the new proposed regulations regarding wind turbines.
On February 15, 2004, after input from the public, including a county-wide survey and focus groups, the planning commission formally recommended the adoption of the revised Comprehensive Plan 2004.
On April 26,2004, the Board adopted the planning commission’s recommended changes to the Plan and adopted the Comprehensive Plan 2004. It included the goals and objectives previously recommended to the Board. The Comprehensive Plan 2004 provides in relevant part that the county would endeavor to:
A. Establish an organized pattern of land use with controlled and smart growth that brings prosperity to the county while also respecting its rural character.
B. Maintain the rural character of the county with respect to its landscape, open spaces, sceneiy, peace, tranquility, and solitude.
C. Develop moderate and slight growth of businesses, industries, and services with small-scale employment.
D. Develop realistic plans to protect natural resources such as the agricultural land, landscape, scenic views, and Flint Hills through regulatoiy policies.
E. Promote historic preservation, which protects and restores historic properties, old limestone buildings, and landmarks in the county.
F. Attract small retail businesses and encourage clustering of retail and service businesses.
G. Improve school system and other public utilities to address the existing deficiencies and needs.
H. Develop tourism programs involving historic properties, nature of rural character, and scenic landscape.
I. Provide affordable and good quality housing with respect to current deficiencies and future needs.
J. Attract new population, a stronger labor force, and retain youth.
On May 20, after the Board’s adoption of the Comprehensive Plan 2004, the planning commission held a public hearing to discuss proposed amendments to the zoning regulations regarding small and commercial wind farms. At its next meeting, the commission voted 8-2 to recommend that the Board approve the proposed zoning amendments which would allow CWECS (commercial wind farms) as a conditional use, subject to certain conditions.
The following month, on June 28, the Board voted 2-1 to adopt in part and override in part the planning commission’s recommended zoning changes. Specifically, the Board adopted the commission’s recommendations regarding regulation of Small Wind Energy Conversion Systems (SWECS, i.e., small wind farms). It rejected, however, the commission’s recommendations regarding regulation of CWECS and prohibited commercial wind farms in the county.
The Board’s decision was formally reflected in Resolution No. 04-18, passed 2 weeks later on July 12, 2004. The Resolution articulated the following basis for the Board’s decision:
“The basis of the amendments to the Zoning Regulation is that Commercial Wind Energy Conversion Systems would not be in the best interests of the general welfare of the County as a whole. They do not conform to the intent and purpose of the Zoning Regulations. In light of the historical, existing and anticipated land uses in the County, they would adversely affect the County as a whole. They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan, including the goals and objectives that were identified by the citizens of the County and incorporated as part of the Plan. They would be detrimental to property values and opportunities for agricultural and nature based tourism. Each reason stands on its own. This motion is based upon what has been presented at public hearings, public meetings, letters and documents that have been produced, as well as experience and personal knowledge of the issues involved.”
The Resolution also added the following definitions to Article 1-104 of the zoning regulations passed in 1995:
“207. Wind Energy Conversion System (WECS). The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy. Wind Energy Conversion systems consist of the turbine apparatus and any buddings, roads, interconnect facilities, measurement devices, transmission lines, support structures and other related improvements necessary for the generation of electric power from wind.
“208. Commercial Wind Energy Conversion System: A Wind Energy Conversion System exceeding 100 kilowatt or exceeding 120 feet in height above grade, or more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system. (Commercial Wind Energy Conversion Systems are specifically prohibited as a use in Wabaunsee County.) (Emphasis added.)
“210. Small Wind Energy Conversion System. A wind energy conversion system consisting of wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 100 kilowatt, which is less than 120 feet in height and which is intended solely to reduce on-site consumption of purchased utility power.”
A new paragraph (30) was added to Article 31-105 reiterating that commercial systems were prohibited in Wabaunsee County:
“30. Commercial Wind Energy Conversion Systems are not a use that may be approved or permitted as a Conditional Use in Wabaunsee County and are specifically prohibited.”
Article 31-109 was amended to include parameters for SWECS. These restrictions include a minimum parcel size (no system shall be located on a parcel of less than 20 contiguous acres); density (no more than one system shall be located on each 20 acres of parcel); spacing (no system may be located within 300 feet of another system or a commercial wind energy conversion system); setback (a setback from the nearest property line a distance equal to twice the height of the system, including the rotor blades and a setback from the nearest public road right-of-way a distance equal to the height of the system, including the rotor blades, plus an additional 50 feet); blade height (the lowest point of the rotor blades shall be at least 50 feet above ground level at the base of the tower); and advertising restrictions (no advertising of any kind shall be located on the system).
Article 31-112 (Prohibited Uses') was amended to include a new paragraph (5):
“5. No Commercial Wind Energy Conversion System, as defined in these Regulations, shall be placed in Wabaunsee County. No application for such a use shall be considered.” (Emphasis added.)
Plaintiffs sued the Board in district court, seeking a judicial declaration that the Board’s action in passing Resolution No. 04-18 be null and void. Plaintiffs also sought damages under a number of different theories.
Without filing an answer, the Board filed a motion to dismiss for failure to state a claim and for lack of jurisdiction. In decisions dated February 23 and July 22,2005, the district court, Judge Klinginsmith, held the Board followed the proper procedures under K.S.A. 12-757(d) in adopting Resolution 04-18 and dismissed Count II. It also dismissed four more of Plaintiffs’ claims. These were Count I: state preemption; Count IV: violation of the Contract Clause of the United States Constitution; Count V: violation of the Commerce Clause of the United States Constitution; and Count VI: federal preemption. It reserved judgment on the remaining Count III (unconstitutional taking) and Count VII (42 U.S.C. § 1983 [2000]) holding that their consideration was premature until the court could determine the reasonableness under K.S.A. 12-760 of the Board’s adoption of Resolution No. 04-18.
The court then ordered the Board to prepare, and file by October 3,2005, the record of its proceedings “whereby it considered, and eventually adopted, resolution 04-18.”
On August 7, 2005, after court approval, Intervenors filed their petition. Their claims duplicated all of those brought by Plaintiffs, but Intervenors also brought a claim for inverse condemnation. Despite this new petition, the district court refused to reconsider its earlier rulings dismissing those Plaintiffs’ claims now also brought by Intervenors.
On November 15, 2005, the Board submitted the records from the planning commission to the district court. The following month it filed an amended record.
Plaintiffs then requested to depose each of the three Board members. The Board objected, arguing that its members were performing a legislative function and their thought processes should not be examined. The district court eventually denied the deposition requests on March 2, 2006, apparently based upon its holding that the Board’s action was legislative.
Plaintiffs also sought to supplement the record with notices of public hearings and court reporter transcripts from several planning commission meetings. This request was later granted on March 2.
Also on March 2, 2006, the district court rejected the record submitted by the Board several months earlier. Although it found the Board’s action was legislative, it also found that the Board’s given basis for adopting the resolution was “wholly conclusory.” In other words, the record did not contain findings of fact upon which the court could determine the reasonableness of the Board’s decision. Judge Klinginsmith remanded the matter to the Board with orders to make findings of fact and conclusions supported by those findings. In response, the Board ordered the county’s zoning ad ministrator to review the record of the proceedings regarding the adoption of the Resolution, gather information from those involved in the hearings before the Board and planning commission, and prepare a report which would set forth the facts tire zoning administrator determined to be relevant to die Resolution.
The zoning administrator filed a report, which the Board formally adopted at its September 18, 2006 meeting. On October 6, the Board submitted these 13 findings of fact and 6 conclusions to the court.
On October 12, Judge Ireland, as successor to the now-retired Judge Khnginsmith, issued a Memorandum Decision again remanding the matter to the Board. Judge Ireland acknowledged the Board’s findings of fact and conclusions but found that the Board had not fully complied with Judge Klinginsmith’s March 2 order because the submitted facts were conclusory and did not consider the factors in Golden v. City of Overland Park, 224 Kan. 591, 584 P.2d 130 (1978). He noted that the Board had the responsibility to produce evidence that it had acted reasonably.
The Board then asked Judge Ireland to reconsider his October 12 decision. In its motion, it pointed out that it had submitted 391 pages of transcript and findings in response to the court’s multiple orders. The Board argued that while the court had determined that the Resolution was a legislative zoning decision, it had “required the County to produce a level of evidence, supporting its decision, which is inapplicable to the standard of review of legislative zoning decisions.” While still maintaining its position drat it had sufficiently complied, on November 16, 2006, the Board supplemented the record with additional findings of fact.
The additional findings are simply a list of each of the 11 reasons specified in the Resolution. Each reason then is accompanied by a representative sampling of evidence in the record in alleged support, complete with citations to the records which are attached as exhibits. The Board’s 11 listed reasons are: general welfare; zoning regulations; quality of life; history and culture; environment, wildlife, tallgrass ecosystem; surface and subsurface water; infrastructure, roads and bridges; aesthetics; Comprehensive Plan 2004; property values in the county; and tourism.
Plaintiffs then sought to strike the Board’s findings of fact because they were based upon a report prepared by the zoning administrator, who had not been hired until after the Resolution had passed.
The court later held a hearing where the parties discussed the various motions and the applicability of the Golden factors to the Board’s decision. Judge Ireland agreed with the Board, and Judge Klinginsmith, that the passage of the Resolution was a legislative action. In a Memorandum Decision on February 28, 2007, the judge ruled that the Plaintiffs’ motion was moot given the court’s acknowledgment of its own error in reciting an incorrect legal standard (presumably the applicability of Golden given the court’s determination that the passage of the Resolution was a legislative action). Judge Ireland also held that the Board’s motion to reconsider was moot because the Board had already “filed the necessary clarifications requested by the Court.” He concluded that “[i]t appears the county has complied with Judge Klinginsmith’s remand to identify each fact they relied upon in making their decision regarding zoning.”
Judge Ireland then dismissed Plaintiffs’ and Intervenors’ three remaining claims based upon unreasonableness, taking, and 42 U.S.C. § 1983 (2006), as well as the Intervenors’ claim of inverse condemnation. He first determined that the Board’s action was reasonable and that there was “substantial evidence which a reasonable mind might accept as adequate to support the conclusions reached by the County.” He ruled that the “County has taken into account the benefit or harm involved to the community at large and has exercised a decision on that basis which is not so-wide of the mark that its unreasonableness is outside the realm of fair debate.”
Judge Ireland next concluded that “[ojnce the district court determines the zoning action was reasonable there is no taking.” He determined that the Board did not take away any existing rights; it just “refused to expand the existing rights including wind rights.”
As for the taking claims under 42 U.S.C. § 1983, Judge Ireland applied a similar rationale. He held that because there was no dep rivation of an existing federal right, i.e., no taking under the Fifth Amendment to the’ United States Constitution, the claim failed.
As for the claim of inverse condemnation, Judge Ireland held that it too depended upon an unreasonable exercise of the police power. Because he had held that the Board’s amendment of the zoning regulations was reasonable, this claim too failed.
ANALYSIS
The parties present numerous issues in their briefs. However, the Plaintiffs and the Intervenors candidly conceded at oral arguments that their strongest claims were that the Board’s Resolution to amend the county’s zoning regulations was (1) unlawful and (2) unreasonable. The number of pages in.the briefs of all three parties devoted to these two claims further supports the view that these two issues are primary. We agree with the parties’ assessment. Consequently, the largest portion of our analysis addresses them.
THE PLAINTIFFS’ AND THE INTERVENORS’ SHARED ISSUES
Issue I: The district court did not err in determining that the Board’s zoning decision was lawful.
Plaintiffs and Intervenors argue that because the Board failed to follow the procedural requirements of K.S.A. 12-757(d), Judge Klinginsmith erred in holding as a matter of law that the Board acted lawfully and therefore erred in dismissing their claim. Specifically, they contend that the Board unlawfully amended the zoning regulations to prohibit commercial wind farms without first resubmitting it to the planning commission which had recommended approval and regulation of all wind farms. The Board responds that K.S.A. 12-757(d) allows a board to modify a regulation submitted by the planning commission without returning the proposal if it has a two-thirds super-majority. Determining the lawfulness of the Board’s action is within the scope of review of the district court. Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980).
We note that “ ‘ ,“[d]ismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.” ’ ” Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 381, 834 P.2d 1344 (1992).
K.S.A. 12-757(d) outlines the procedure to be followed when amending a zoning regulation. A planning commission must first recommend approval or denial of a rezoning request. The statute then requires:
‘When the planning commission submits a recommendation or approval or disapproval of such amendment and the reasons therefore, the governing body may: (1) Adopt such recommendation by . . . resolution in a county; (2) override the planning commission’s recommendation by a % majority vote of the membership of the governing body; or (3) return such recommendation to the planning commission with a statement specifying the basis for the governing body’s failure to approve or disapprove. If the governing body returns the planning commission’s recommendation, the planning commission, after considering the same, may resubmit its original recommendation giving the reasons therefor or submit new and amended recommendation. Upon the receipt of such recommendation, the governing body, by a simple majority thereof, may adopt or may revise or amend and adopt such recommendation by the respective . .. resolution, or it need take no further action thereon.” (Emphasis added.)
This court has held that “ ‘the power of a city government to change the zoning of property . . . can only be exercised in conformity with the statute which authorizes the zoning.’ [Citation omitted.] As a result, a city’s failure to follow the zoning procedures in state law renders its action invalid.” Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1033, 181 P.3d 549 (2008). The same requirements apply to counties when they adopt or modify zoning regulations.
Several additional standards of review apply here. First, “[interpretation of a statute is a question of law,... and our review is unlimited. Accordingly, when determining a question of law, we are not bound” by the trial court’s interpretation of a statute. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 819, 104 P.3d 378 (2005). “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” 278 Kan. at 822.
Second, “[t]he fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.” Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007). “When language is plain and unambiguous, there is no need to resort to statutoiy construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.” 284 Kan. 380, Syl. ¶ 2.
Plaintiffs and Intervenors argue that K.S.A. 12-757(d) only allows the Board to revise or amend the recommendation after it has been returned to the planning commission and resubmitted to the Board. According to them, without remand the Board can only adopt or reject the Resolution in whole. They point to the definition of the statute’s “override,” which is “to set aside,” “annul,” or “veto.” Plaintiffs contend that these words imply complete rejection. Intervenors argue that if the legislature intended to authorize the Board to revise or amend, it would have used the words “revise or amend” rather than “override.”
Plaintiffs and Intervenors also point to the previous version of the statute, K.S.A. 12-708 (Ensley 1982), which gave the Board only two options — adopt the recommendation or return it to the planning commission. In support, they cite City of Manhattan v. Ridgeview Building Co., Inc., 215 Kan. 606, 527 P.2d 1009 (1974), a case decided under the old statute. In Ridgeview, the court held that the city, as governing body, could not amend the recommendation: it had to either adopt it in full or return it to the planning commission. 215 Kan. at 610.
The Board responds that the whole purpose of the super-majority two-thirds requirement is to authorize the Board to take some action other than that recommended by the planning commission. The Board also argues that the legislature’s intention in replacing K.S.A. 12-708 with 12-757 was to expand the options available to the Board.
This issue is resolved by the guidance provided in Manly v. City of Shawnee, 287 Kan. 63, 194 P.3d 1 (2008). There, the Manlys objected to the school district’s request for a special use permit for a proposed lighted softball facility near their home. The planning commission for the City of Shawnee recommended denial of the permit, and the city council later remanded to the planning commission for further review to consider certain additional items. On remand, the planning commission again recommended denial. The city council then reconsidered the request for the permit. On a 5-4 vote, the council passed a motion “to grant the special use permit in contravention of the planning commission recommendation and to modify any conflicting portion of the City’s comprehensive plan.” 287 Kan. at 66.
After the Manlys filed a petition in district court pursuant to K.S.A. 12-760(a), the judge found that the City’s action in “overriding the planning commission’s renewed recommendation with a simple majority was unlawful” because it contravened K.S.A. 12-757(d). 287 Kan. at 66. More specifically, the judge found that a super-majority vote of two-thirds was required under the statute, just as would have been required had the city overridden the commission’s initial recommendation before remand. 287 Kan. at 69.
This court reversed the district court on a number of bases, several of which are of particular assistance in analyzing the instant case.
The Manly court first looked at the three options available to the governing body under K.S.A. 12-757(d) after its initial receipt - of the planning commission’s recommendation regarding a proposed zoning amendment. Those “clearly established]” options, 287 Kan. at 68, and the Manly court’s choice of the following language in describing them, particularly Option 2, are of importance.
Option 1: “Adopt such recommendation by ordinance in a city or by resolution in a county.” 12-757(d). As the Manly court described this option, the governing body can “take the recommended action by a simple majority vote.” 287 Kan. at 68.
Option 2: “[Ojverride the planning commission’s recommendation by a % majority vote of the membership of the governing body.” 12-757(d). As the Manly court described this option, the governing body can “take action contrary to the recommendation by a two-thirds majority vote.” (Emphasis added.) 287 Kan. at 68.
Option 3: “[Rjetum such recommendation to the planning commission with a statement specifying the basis for the governing body’s failure to approve or disapprove .... Upon the receipt of such recommendation [from the planning commission], the governing body, by a simple majority thereof, may adopt or may revise or amend and adopt such recommendation by the respective ordinance or resolution, or it need take no further action thereon.” 12-757(d).
As the Manly court described this third option, the governing body can “return the proposal to the planning commission with a statement specifying the basis for the City’s failure to follow the recommendation, i.e., remand the proposal to the planning commission for reconsideration.” 287 Kan. at 68-69.
The Manly court examined the language of the statute to reverse the district court’s ruling regarding Option 3:
“As noted, 12~757(d) plainly gives the City the authority to ‘revise or amend and adopt’ a planning commission [renewed/resubmitted] recommendation by a simple majority vote. To circumvent that plain language, the Manlys attempt to convince us that the City’s authority to ‘revise or amend’ a recommendation does not include the right to reject or overrule the recommendation. However, that contention defies logic. Obviously, when the City revises or amends a recommendation before taking action, it has implicitly rejected or overruled that part of the recommended action which was not followed. Moreover, where the recommendation is to completely deny a special use permit, i.e., to tell the applicant no,’ it is difficult to imagine how one revises or amends that recommendation without overriding it to some extent, i.e., the only way to revise or amend ‘no’ is to say ‘yes’ to something.’’ (Emphasis added.) 287 Kan. at 71.
Although the court was addressing Option 3, it used similar language in identifying Option 2, the one at issue here: die statutory “override the recommendation” was interpreted as any “action contrary to the recommendation.” 287 Kan. at 68. Accordingly, Manly’s equation of “reject,” “overrule,” and “override to some extent” with “revise or amend” indicates drat in the instant case the Board was within its statutory power to “override” when it “revised and amended” the recommendation of the planning commission. See 287 Kan. at 71.
. The Manly court also reviewed the history of the planning commission statutes. Like some of the parties in the instant case, it observed that prior to the passage of K.S.A. 12-757(d) in 1991, “the City would have had no option upon initially receiving a planning commission recommendation with which it did not agree. It had to return the proposal to the planning commission.” 287 Kan. at 72. The former statute, K.S.A. 12-708 (Weeks 1975), generally provided what we have referred to as Options 1 and 3: “The governing body may either [1] approve such recommendations by the adoption of the same by ordinance or [2] return the same to the planning commission for further consideration, together with a statement specifying the basis for disapproval.]” (Emphasis added.) The Manly court further noted that under the former statute, “[t]he procedures upon remand to the planning commission and upon its return to the City were the same as in the current statute.” 287 Kan. at 72.
After this historical review, the Manly court concluded that the addition of the third option — our Option 2 — supported its holding. 287 Kan. at 72-73. In articulating this point, the court again allowed that the statutory “override” of the planning commission’s recommendation could include more than just total rejection or complete overruling. Override could include any contrary action, i.e., varying degrees of “contravention,” if the governing body felt that obtaining further planning commission input was pointless:
“In [adding] K.S.A. 12-757(d), the legislature gave the City another option upon receiving an initial recommendation with which it did not agree. Rather than remanding to the planning commission for reconsideration, a City could move forward with taking action in contravention of the recommendation if two-thirds of the governing body did not feel the need for further input from its advisory commission. That option eliminates the need for a pointless remand.” (Emphasis added.) 287 Kan. at 72-73.
Accordingly, Manly’s continued acknowledgment that “override” can be something less than total rejection certainly indicates that here the Board was within its statutory power to override when it modified, i.e., took action in some degree of contravention to the recommendation of the planning commission.
In its analysis, the Manly court also considered the doctrine of separation of powers. It reiterated that a planning commission is created to fulfill an advisory function while “ ‘the final authority in zoning matters rests with the governing body possessing legislative power.’ ” 287 Kan. at 71. Accordingly, “[i]f the legislature intended to allocate the ultimate authority to grant or deny a zoning amendment to the planning commission, it would be impermissibly shifting the City’s governance from the elected City Council to an appointed advisory commission.” 287 Kan. at 70-71. It observed that requiring a two-thirds vote on the commission’s resubmitted recommendation to the City Council impermissibly “would permit a simple majority of the planning commission to govern over a simple majority of the City Council.” 287 Kan. at 71.
In short, Manly’s guidance indicates that a governing body with a super-majority is not required to return a recommendation to the planning commission for review. As a result, the district court correctly ruled that the Board complied with the procedural requirements of K.S.A. 12-757(d) when it modified the commission’s initial recommendation by a 2-1 vote.
Issue 2: The district court did not err in determining that the Board’s decision was reasonable.
Plaintiffs and Intervenors next argue that Judge Ireland erred in holding as a matter of law that the Board’s Resolution banning all commercial wind farms was reasonable and therefore erred in dismissing this claim. They correctly point out that because he disposed of their claim after considering matters outside of the pleadings, the disposition is characterized as a summary judgment. See K.S.A. 60-212(b)(6) (if matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in K.S.A. 60-256).
The Board responds it acted reasonably. Determining the reasonableness of its action is also within the scope of review of the district court. See K.S.A. 12-760(a) (any person aggrieved “may maintain an action in the district court to determine the reasonableness of such final decision.”); Combined Investment Co., 227 Kan. at 28.
We first observe that this court “concisely stated” the rules governing the scope of judicial review of zoning matters in Combined Investment Co., 227 Kan. at 28, particularly on the issue of reasonableness:
“(1) The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning.
“(2) The district court’s power is limited to determining
(a) the lawfulness of the action taken, and
(b) the reasonableness of such action.
“(3) There is a presumption that the zoning authority acted reasonably.
“(4) The landowner has the burden of proving unreasonableness by a preponderance of the evidence.
“(5) A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.
“(6) Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.
“(7) Whether action is reasonable or not is a question of law, to be determined upon the basis of the facts which were presented to the zoning authority.
“(8) An appellate court must make the same review of the zoning authority’s action as did the district court.”
See Golden v. City of Overland Park, 224 Kan. 591, 595-96, 584 P.2d 130 (1978).
As a threshold question, however, the Intervenors and the Board argue whether the Board’s regulation-amending action was legislative or quasi-judicial. Judge Klinginsmith ruled that the Board was acting in a legislative capacity because the zoning decision “was an amendment to the existing zoning ordinances of the county, resulting in county wide exclusion of [CWECS] rather than to a specific tract of land.” Judge Ireland eventually agreed. As noted, the county is approximately 30 miles long and 30 miles wide.
Intervenors argue the court erred in its holding because the Board’s decision was quasi-judicial, committed “under the guise of a county wide ban” but actually “seeking to prohibit the CWECS on specific tracts of land.” They cite McPherson Landfill, Inc. v. Shawnee County Comm’rs, 274 Kan. 303, 305, 49 P.3d 522 (2002); see also Golden, 224 Kan. at 597 (“When . . . the focus shifts from the entire city to one specific tract of land for which a zoning change is urged, the function becomes more quasi-judicial than legislative.”). Intervenors conclude that, as a result, “the eight factors articulated in Golden should be considered when examining the reasonableness of the planning authority’s decision.”
Plaintiffs essentially join in the Intervenors’ conclusion by applying Golden s factors to the facts of this case. The factors recited in Golden, as listed in McPherson, are as follows:
“ T. The character of the neighborhood;
“ ‘2. the zoning and uses of properties nearby;
“ ‘3. the suitability of the subject property for the uses to which it has been restricted;
“ ‘4. idle extent to which removal of tire restrictions will detrimentally affect nearby property;
“ ‘5. the length of time the subject property has remained vacant as zoned;
“ ‘6. the relative gain to the public healdr, safety, and welfare by tire destruction of the value of plaintiff s property as compared to the hardship imposed upon the individual landowner;
“ ‘7. the recommendations of a permanent or professional planning staff; and
“ ‘8. The conformance of the requested change to the city’s master or comprehensive plan.’ Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 677, 952 P.2d 1302 (1998) (citing Golden, 224 Kan. at 598).” McPherson, 274 Kan. at 306.
In the Board’s response to the Intervenors’ argument, it contends that it acted legislatively because the Resolution on its face plainly applies to the County as a whole. Accordingly, the Board argues, the eight factors contained in Golden — a “specific tract rezoning” that the Golden court characterized as quasi-judicial— should not be considered in determining reasonableness.
The Board further argues that because the action was not quasi-judicial, the zoning body does not “conduct the hearing in a manner similar to a court proceeding, and then weigh the evidence presented, balance the equities, apply rules, regulations and ordinances to facts, and resolve specific issues.” Instead, “the zoning body has complete discretion to do what it thinks to be best in the interests of tire jurisdiction as a whole,” and the decision only has to bear a rational relationship to the protection of the public safety and “general welfare of the jurisdiction.”
In short, the Board argues we should apply to this case’s countywide rezoning the standards “prior to Golden,” i.e., when “the courts in Kansas reviewed all zoning decisions, even site specific rezonings as here, as legislative acts.” See, e.g., Union Quarries, Inc. v. Board of County Commissioners, 206 Kan. 268, 273, 478 P.2d 181 (1970) (“Generally speaking, the enactment and amendment of zoning regulations are primarily legislative rather than judicial in character.”) The Board candidly admits that our application of the pre-Golden standard would benefit it greatly:
“[I]t was almost impossible for a court to overturn a legislative act, because the zoning authority was not required to clearly enunciate its reasons for that decision, and the decision could be based on policy and politics as much as facts, as long as the decision bore a reasonable relationship to the safety or welfare of the public.”
The Board’s position is not entirely without some basis. We independently note that 11 years after Golden, this court in Landau v. City Council of Overland Park, 244 Kan. 257, 767 P.2d 1290 (1989), acknowledged that the view expressed in its prior decision, Arkenberg v. City of Topeka, 197 Kan. 731, 734-35, 421 P.2d 213 (1966),
“conformed with the majority of jurisdictions which consider acts of rezoning to be legislative in character. Because of the legislative character, rezoning decisions are given much deference and are only overturned on a showing of clear error or abuse. 2 Rathkopf, The Law of Zoning and Planning § 27A.04 (4th ed. 1988).” (Emphasis added.) Landau, 244 Kan. at 271.
In the current edition of the treatise cited in Landau, Rathkopf s The Law of Zoning and Planning, the author elaborates. He states that “the greatest benefit of the quasi-judicial approach to rezonings is that it requires local governments ... to engage in reasoned decision making based on articulated standards” and to “afford enhanced procedural rights to the proponents and opponents of a rezoning.” 3 Rathkopf, The Law of Zoning and Planning, Rezonings: Substantive Validity and Standards for Judicial Review § 40.18, p. 40-35 (4th ed. 2005). We acknowledged the enhanced procedural rights, i.e., the procedural due process benefit, in McPherson Landfill, Inc., 274 Kan. at 317, where we held: “The proceedings before the Board with regard to [plaintiff s conditional use permit for 45 acres] were quasi-judicial. Thus, due process attached to the proceedings and those proceedings must have been fair, open, and impartial.”
The other main benefit of a quasi-judicial characterization, closer judicial scrutiny, is further described by Rathkopf:
“Characterization of a rezoning as quasi-judicial enables reviewing courts to scrutinize the merits of a grant or denial of rezoning more closely. Where rezonings are considered legislative, courts usually conduct their review under highly deferential standards, overturning a zoning designation only if it can be said that the designation is ‘arbitrary and capricious’ or “beyond the realm of fair debate.’” (Emphasis added.) 3 Rathkopf, Rezonings: Validity and Review § 40.25, pp. 40-59 to 40-60.
As Rathkopf explains, this high degree of deference is due to the historically evolved principles of the separation of powers of the branches of government. 3 Rathkopf, Rezonings: Validity and Review § 40.6, p. 40-10.
We independently observe, however, that Kansas appellate courts have also frequently used this highly deferential language as our standard of review even in cases where governing body decisions were quasi-judicial. See, e.g., McPherson Landfill, Inc., 274 Kan. at 304-05 (conditional use permit); Board of Johnson County Comm’rs, 263 Kan. at 681-83 (rezoning for particular tract); Combined Investment Co., v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.2d 533 (1980) (rezoning for particular tracts).
For example, as recited earlier, those eight rules from Golden, 224 Kan. at 598, include the rule that clearly exemplifies one of the chief characteristics of a legislative action’s highly deferential review:.
Rule (6): “Action is unreasonable when it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.” (Emphasis added.) Combined Investment Co., 227 Kan. at 28.
See 3 Rathkopf, Rezonings: Validity and Review § 40.25, pp. 40-59 to 40-60 (legislative rezoning decision not overturned unless “arbitrary and capricious” or “beyond the realm of fair debate.”)
Other Golden rules also appear to be appropriate for reviewing legislative actions. One example is Rule (3): “There is a presumption that the zoning authority acted reasonably.” Conjoined Investment Co., 227 Kan. at 28. Compare 3 Rathkopf, Rezonings: Validity and Review § 40.8, pp. 40-16 (“Since in most states rezonings are considered legislative acts they are held by courts to be entitled to a strong presumption of validity” under the separation of powers doctrine.). Other examples include Rule (1): “The local zoning authority, and not the court, has the right to prescribe, change or refuse to change, zoning” and Rule (5): “A court may not substitute its judgment for that of the administrative body, and should not declare the action unreasonable unless clearly compelled to do so by the evidence.” Combined Investment Co., 227 Kan. at 28. In comparison, Rathkopf states that because rezonings generally are considered legislative acts,
“various cases stress that communities are entitled to decide for themselves how they shall be zoned or rezoned and that elected representatives from within the community are more likely than the courts to be familiar with the pertinent facts and to reflect the community’s will. In this vein, appellate courts have frequently warned, trial courts against substituting their judgment for that of a community’s elected representatives merely on the basis of their differing opinion as to what is the better policy in a given instance.” (Emphasis added.) 3 Rathkopf, Rezonings: Validity and Review § 40.8, pp. 40-16 to 40-17.
In short, Kansas’ approach cannot truly be labeled as purely quasi-judicial, even in specific tract zoning. Indeed, many of these Golden rules themselves came from Arkenberg, 197 Kan. 731; see Golden, 224 Kan. at 595-96. As mentioned, in Landau we later described the Arkenberg view as “conforming] with the majority of jurisdictions which consider acts of rezoning to be legislative in character.” 244 Kan. at 271.
Rathkopf shares this view, based upon his examination of our decision in Landau. He opines that although Kansas “at one time expressly adopted a quasi-judicial characterization of individual parcel rezonings,” (citing Golden), that Kansas, along with several other states, “subsequently either overruled or substantially limited the doctrine’s application.” 3 Rathkopf, Rezonings: Validity and Review § 40.20, pp. 40-43 to 40-44. Rathkopf writes:
“[L]ater decisions have made clear that the Golden decision has little procedural or substantive impact beyond direct judicial review and the requirement that governing bodies should henceforth supply written findings in support of their decision to grant or deny a rezoning. The standard for validity is still one of reasonableness.” 3 Rathkopf, Rezonings: Validity and Review § 40.20, pp. 40-42 to 40-43 n.U (citing Landau, 244 Kan. at 271.)
See also 6 Rohan, Zoning and Land Use Controls, Adoption and Amendment of Zoning Ordinances § 38.04[1], p. 38-114.9 (2007) (Kansas and other states “later rejected or substantially limited” the use of quasi-judicial doctrine, citing Landau).
In light of this background, we easily hold that the Board’s rezoning to prohibit commercial wind farms in its entire county— approximately 800 square miles — was a legislative action. We need not now definitively decide, however, the specific parameters of our resultant standard of review. As more fully explained below, even utilizing what has been characterized as “the scope of review” and the “reasonableness factors” in quasi-judicial cases, e.g., Golden, we hold that the Board acted reasonably.
The district court several times ordered that the Board provide more information because its basis for passing tire Resolution was purportedly conclusory. Although the Board believed that at least some of the orders were unnecessary because the court had found the action was legislative, it provided findings of fact and conclusions which allegedly supported the Resolution’s adoption. In eventually holding the Board’s action reasonable, Judge Ireland reviewed the record and then characterized the Board’s action as being based upon three factors: (1) aesthetics of the county; (2) nonconformance of the commercial wind farms with the county’s Comprehensive Plan 2004; and (3) the wishes of the county’s citizens.
Plaintiffs apply a number of the Golden zoning factors — almost none of which were addressed by Judge Ireland — to argue the Board’s decision was unreasonable. However, if theoretically these factors can be applied, practically we find that many are simply of little assistance here. For example, “the character of the neighborhood,” “the zoning and uses of nearby properties,” and “the length of time the subject property has remained vacant as zoned” appear to have no application to a county rezoning its entire jurisdiction of approximately 800 square miles. See Manly, 287 Kan. at 76-77.
Indeed, we have held the Golden factors are nonmandatory, even in cases that are clearly quasi-judicial. As we stated in Board of Johnson County Comm'rs, 263 Kan. at 677: “These are suggested factors only. Other factors may be important in an individual case.” See also Landau, 244 Kan. at 262 (Golden factors are suggestions). We observe that even when concerning a conditional use permit on a single tract of land, i.e., clearly a quasi-judicial action, the Court of Appeals has essentially examined only aesthetics as a factor. See Gump Rev. Trust v. City of Wichita, 35 Kan. App. 2d 501, Syl. ¶¶ 3, 5, 131 P.3d 1268 (2006). Aesthetics obviously is not even a Golden factor; at least in the “individual case” of Gump, aesthetics was therefore regarded as “more important” than Goldens factors. Gump, 35 Kan. App. 2d at 509-12; see Board of Johnson County Comm’rs, 263 Kan. at 677.
While Intervenors join the Plaintiffs in arguing the Golden factors should apply, they primarily attack the three bases characterized by Judge Ireland as forming the basis for the Board’s decision. We need not determine whether, as the Board argues, it also relied upon other bases, e.g., commercial wind farms would harm the county infrastructure. As explained below, we hold the bases identified by Judge Ireland are sufficient to sustain the Board’s action.
Aesthetics
As the court held in Gump, Kansas appellate courts have long allowed aesthetics to be considered in zoning matters. 35 Kan. App. 2d at 509-10; see, e.g., Ware v. City of Wichita, 113 Kan. 153, 157, 214 P. 99 (1923) (recognizing in a zoning case that “[tjhere is an aesthetic and cultural side of municipal development which may be fostered within reasonable hmitations. [Citations omitted.] Such legislation is merely a liberalized application of the general welfare purposes of state and federal constitutions.”). As our court acknowledged 60 years later: “[T]he current trend of the decisions is to permit regulation for aesthetic reasons. See Metromedia, Inc. v. San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 [1981]).” Robert L. Rieke Bldg. Co. v. City of Overland Park, 232 Kan. 634, 642-43, 657 P.2d 1121 (1983).
In addition to our long-standing case law, we further observe that K.S.A. 12-755(a) expressly provides that “[t]he governing body may adopt zoning regulations which may include, but not be limited to, provisions which: ... (4) control the aesthetics of redevelopment or new development.” As tire Court of Appeals has observed when citing this statute, “regulation of redevelopment or new development is permitted for aesthetic reasons. K.S.A. 12-755.” Blockbuster Video, Inc. v. City of Overland Park, 24 Kan. App. 2d 358, Syl. ¶ 2, 948 P.2d 179 (1998).
Judge Ireland relied heavily on Gump. There, the city-county zoning code allowed construction of new communication facility towers up to 85 feet by administrative permit. According to the facts of that case, there was no prohibition against building new towers higher than 85 feet, but such towers required a conditional use permit approved by the city of Wichita.
Gump requested a conditional use permit to build a tower with an initial height of 135 feet, with a possible extension to 165 feet. The city denied the request, and Gump argued that the denial of the conditional use permit was unreasonable. The district court upheld the, denial and a Court of Appeals panel affirmed, essentially holding that aesthetics alone was a reasonable basis for the city’s action. See 35 Kan. App. 2d at 509-12, 515-16.
There are aesthetics considerations alleged in the instant case. The Board’s Findings of Fact filed with the district court on October 6, 2006, included, inter alia:
“10. The facts presented at various meetings indicate that Wind Farms would likely consist of complexes of a dozen or more turbines, located on ridge lines -within the county. A single complex could have a footprint of 7500-20,000 acres. The turbines themselves would be from 260 to over 300’ tall, with blades 125’ in length. The mounting pad would be 14’ x 14’ x 28’ deep and made of concrete. The complexes could probably be seen from a distance of 20, or more miles. Wabaunsee County is approximately 30 miles, east to west, and 30 miles, north to south. The Zilkha Map (CR-270) shows potential sites drat were being actively pursued by developers. These sites are located south of K-4 Highway between Alta Vista and Eskridge along the ridge line.
“11. The Flint Hills of Kansas, of which Wabaunsee County is a part, contain the vast majority of the remaining Tallgrass Prairie, which once covered much of the central United States. The Tallgrass Prairie is considered one of the most endangered ecosystems in North America.
“12. Wind Farms could have a detrimental effect on the ecology of the area. Prairie Chicken habitat may be altered so as to affect flight patterns, breeding grounds, nesting areas and feeding areas. Flora and Fauna may also be affected by industrial concentration of Wind Farms.” (Emphasis added.)
The Board’s Conclusions filed on October 6 included, inter alia, the following determinations regarding aesthetics and the closely related areas of ecology, flora, and fauna:
1. “The location of Wind Farms within Wabaunsee County would not be in the best interests of tíre general welfare of the County as a whole. In arriving at this conclusion, the Board is mindful of the fact that ‘general welfare’ includes a broad spectrum of values, including aesthetics. . . . Placing complexes of Wind Farms, of the size and scope necessary to accomplish their intended purpose, upon the ridge lines of the County would have a dramatic, and adverse, [effect upon all of those general welfare issues [e.g., aesthetics].
2. “. . . The size, and scope, of the proposed Wind Farms make them objectionable and unsightly, partly as evidenced by the overwhelming opposition by the public. There is no question that the location of Wind Farms will have an adverse effect on the scenic areas of the County. There is also evidence that their presence will have an adverse effect on wildlife.
3. “. . . In addition to tire support set forth in the preceding paragraphs, the Board would note that there was evidence presented that: . . . (b) they [Wind Farms] would be harmful to the environment and the tallgrass ecosystem; . . . [and] (d) they would have a negative impact on unldlife.
4. “Wind Farms would be incompatible with the rural, agricultural, and scenic character of the County.
6. ‘Wind farms would be detrimental to property values and opportunities for agricultural and nature based tourism. The Flint Hills are unique in their ecology, heritage and beauty. The adverse effect Wind Farms will have on all of these things will also have an adverse effect on property values and tourism.” (Emphasis added.)
Judge Ireland found that “[tjhere is no doubt the County looked at the aesthetics of having the wind generators as a compatible or incompatible use with the Flint Hills area.” We agree, particularly when the Board has cited its finding to the record for our review. We also agree that these Board’s findings could reasonably have been found to justify its decision: that the commercial wind farms would adversely, if not dramatically, affect the aesthetics of the county and for that reason should be prohibited. See Golden v. City of Overland Park, 224 Kan. 591, 596, 584 P.2d 130 (1978) (“ ‘[A] court is not free to make findings of fact independent of those explicitly or implicitly found by the city governing body, but is limited to determining whether the given facts could reasonably have been found by the zoning body to justify its decision.’ ”).
Nonconformance with comprehensive plan and other considerations
More than aesthetics considerations are alleged in the instant case. The Board’s submitted Findings of Fact first referenced specifics of the county’s Comprehensive Plan 2004:
“9. The final adopted Plan, Wabaunsee County Comprehensive Plan 2004, includes the following goals and objectives, which were developed as a direct result of a county-wide survey and focus groups by the Plan Preparation Class:
“b. Maintain the rural character of the county with respect to its landscape, open spaces, scenery, peace, tranquility and solitude.
“d. Develop realistic plans to protect natural resources such as the agricultural land, landscape, scenic views, and Flint Hills through regulatory policy
“h. Develop tourism, programs involving historic properties, nature of rural character, and scenic landscape.” (Emphasis added.).
In the Board’s Conclusions, it then determined that tire commercial wind farms were not in conformance with the Comprehensive Plan 2004 for numerous reasons:
“5. The location of Wind Farms in Wabaunsee County would not conform to the Wabaunsee County Comprehensive Plan 2004, including the goals and objectives that were identified by the citizens of the County and incorporated as a part of the Plan. The goals and objectives set forth in the Plan make it clear that maintaining the rural character of the County, and protecting the landscape, open spaces, scenery, peace, tranquility, and solitude of the County is of paramount important to the citizens. The size, scope and location of Wind Farms would be inconsistent with those goals.” (Emphasis added.)
Judge Ireland found that “[t]he County also looked at the comprehensive plan... [and] found that placing the complexes of wind farms, of the size and scope necessary to accomplish their intended purpose, would have a dramatic, and adverse, effect upon all of the general welfare issues found in the comprehensive plan.” We essentially agree with the judge, particularly when the Board has cited its finding to die record for our review.
We also agree that these Board findings could reasonably have been found to justify its decision: that the commercial wind farms would not be in conformance with the Comprehensive Plan 2004, e.g., to “maintain the rural character of the County with respect to its landscape, open spaces, peace, tranquility and solitude” and to “develop tourism programs involving .. . [the] nature of rural character and scenic landscape.” Consequently, the commercial wind farms should be prohibited. See McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs, 274 Kan. 303, 331, 49 P.3d 522 (2002). As aesthetics have been a valid consideration for a governing body’s zoning decisions since at least 1923 (see Ware, 113 Kan. at 157) conformance with the governing body’s comprehensive plan has been a valid consideration since at least 1978. See Golden, 224 Kan. at 598.
Wishes of the residents
We agree with Judge Ireland that the Board not only took into consideration the commercial wind farms’ impact upon county aesthetics and their nonconformance with the Comprehensive Plan 2004, but also considered the wishes of the citizens of Wabaunsee County. The Board’s Findings of Fact reveal, inter alia:
“4. In December 2002, the Planning Commission conducted its first meeting to discuss the pros and cons of wind farms. The Planning Commission conducted numerous public meetings on this topic from December 2002 until June 2004. In all, between the Planning Commission and the Board, this topic was discussed, in one form or another, at approximately 54 meetings over this period.
“5. The first extensive public hearing on this issue was conducted by the Planning Commission on July 24, 2003. This meeting was well attended by the public and a majority of the public attending expressed their opposition to allotving Wind Farms in Wabaunsee County. . . .
“8. On December 11,2003, the Planning Commission conducted a public hearing on the Comprehensive Plan, and approximately 200 people attended this hearing.
“9. The final adopted Plan, Wabaunsee County Comprehensive Plan 2004, includes . . . goals and objectives, which were developed as a direct result of a county-wide survey and focus groups by the Plan Preparation Class. . . .
“13. In public meetings where the issue of Wind Farms was discussed, the majority of those in attendance opposed allowing them. The vast majority of letters received by the Planning Commission and the Board expressed opposition to Wind Farms.” (Emphasis added.)
The Board’s Conclusions provided to the district court included the following:
“2. . . . The size, and scope, of the proposed Wind Farms make them objectionable and unsightly, partly as evidenced by the overwhelming opposition by the public.
“5. The location of Wind Farms in Wabaunsee County would not conform to the Wabaunsee County Comprehensive Plan 2004, including the goals and objectives that were identified by the citizens of the County and incorporated as a part of the Plan.” (Emphasis added.)
In the words of Judge Ireland, “[o]ne can review the meetings and correspondence which the County conducted in its attempt to determine the wishes of the citizens of Wabaunsee County, Kansas. A large portion of the community’s wishes were against the wind farms as proposed by the plaintiffs.” Based upon our own examination of the record, including those places cited in support of the Board’s findings, we agree. We also agree that these Board findings, while alone insufficient, could reasonably have been found to help justify its decision. See McPherson Landfill, Inc., 274 Kan. at 331.
Intervenors take particular exception, however, to either the amount of the evidence presented in support of the commercial wind farm ban based on aesthetics or to the arguably greater amount of evidence presented in opposition to the ban. For example, they state: “Granted, some of the testimony and letters cited by the Board support finding CWECS may impact the aesthetic and scenic value of the Flint Hills. Nonetheless, the record also reveals an abundance of evidence CWECS would have minimal impact.” They also acknowledge the Board’s reliance upon a “Memorandum Re: Industrial Scale Wind Turbine Development Presented by the Tallgrass Ranchers, “which states that a landscape architect/attomey “has analyzed the visual impact of wind turbine complexes and . . . determined that they would be harmful to the stability and identity of the Flint Hills.” But Intervenors then argue that a power point exhibit referenced in the Tallgrass Memorandum was not included. As a result, the Intervenors conclude that “[a] reasonable zoning regulation would have accounted for the conflicting views by acknowledging CWECS can be placed in areas in which the current aesthetics would not be negatively impacted.”
Intervenors misunderstand our limited review on this issue. Even if the Board’s action were quasi-judicial, we would still be limited to determining whether the given facts could reasonably have been found by the Board to justify its decision. McPherson Landfill, Inc., 274 Kan. at 331. We could not substitute our judgment for that of the Board, and we should “not declare the action unreasonable unless clearly compelled to do so by the evidence.” (Emphasis added.) Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan. 17, 28, 605 P.3d 533 (1980).
The Intervenors also take exception to the Board’s reliance upon the alleged nonconformance with the Comprehensive Plan 2004. They again, however, appear to make an argument that would require us to reweigh the evidence presented there. For example, they argue that the “Board’s Findings of Fact cites testimony from the July 24, 2003, Planning Commission hearing of Roger Badeker and Larry Patton as evidence that CWECS would not conform to the . . . Comprehensive Plan 2004.” They acknowledge “these individuals concluded these systems were not consistent with the Comprehensive Plan” but argue “their statements are mere conclusions and not actual evidence of nonconformance.”
We must again disagree. Intervenors take no exception to the fact that these individuals provided testimony. Accordingly, their testimony is obviously evidence. Moreover, Badeker has written professionally on the subject of zoning. Consequently, the Board may have considered his “mere conclusions” as carrying additional weight, i.e., approaching that of an expert witness. See Badeker, “Tell it to the Judge: Appealing a Zoning Decision.” 67 J.K.B.A. 33 (September 1998); K.S.A. 60-456 on expert witnesses. In any event, this testimony clearly supports the Board’s finding of fact which could reasonably have been found by the Board to justify its decision: that the commercial wind farms were inconsistent with the Comprehensive Plan 2004 and therefore should be prohibited.
The Intervenors also take particular exception to the third factor relied upon by the Board as characterized by Judge Ireland: the concerns of county residents. Intervenors point out that the evidence reveals that some residents were for the commercial wind farms, others were against. They acknowledge that the Board should consider the objections of county residents but, quoting Gump, 35 Kan. App. 2d at 511, argue that “ ‘[zjoning is not to be based upon a plebiscite of the neighbors.’ ” Intervenors argue that “ ‘although their wishes are to be considered, the final ruling is to be governed by consideration of the benefit or harm involved to the community at large.’ ” Gump, 35 Kan. App. 2d at 511. They argue the Board did not consider the community at large because it failed to consider “the impact upon [the] parties seeking to take advantage of their property rights.”
Judge Ireland found that after reviewing the documents and the minutes of numerous meetings in the record, “the pros and cons of wind farms were discussed.” He concluded that “the County has taken into account the benefit or harm involved to the community at large.” We agree, and reject the position of the Intervenors.
Overall, we must acknowledge that several key points of appellate review dictate our result. We recognize that the Board — and not the court — has the right to change the zoning; that there is a presumption that the Board acted reasonably; that the Plaintiffs and Intervenors have the burden of proving the unreasonableness by a preponderance of the evidence; that this court may not substitute its judgment for the Board and should not declare the zoning amendment unreasonable unless clearly compelled to do so by the evidence; and that an act is unreasonable when “it is so arbitrary that it can be said it was taken without regard to the benefit or harm involved to the community at large, including all interested parties, and was so wide of the mark that its unreasonableness lies outside the realm of fair debate.” Combined Investment Co. v. Board of Butler County Comm’rs, 227 Kan.17, 28, 605 P.2d 533 (1980). With these precepts in mind, we cannot hold that the Plaintiffs and Intervenors have met their burden of showing the Board acted unreasonably. See Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 683, 952 P.2d 1302 (1998) (reciting and applying many of these precepts to reverse trial court’s holding of unreasonableness).
Finally, Plaintiffs’ and Intervenors’ repeated arguments that a county-wide ban on all commercial wind farms was unreasonable implies that the overall scope of the ban was somehow unreasonable per se and therefore improper.
We acknowledge that some, mainly older, authority appears to support this view. One commentator has stated: “Generally, it is unwise to enact provisions that will exclude lawful occupation or use from an entire township or city.” (Emphasis added.) 1 Yokley, Zoning Law and Practice § 3-14[e], p. 3-158 (4th ed. 1978). The treatise cites several cases, including Gust v. Township of Canton, 342 Mich. 436, 70 N.W.2d 772 (1955) (disallowing the prohibition of trailer camps anywhere in the township); see also Mandelker, Land Use Law § 5.37 (5th ed. 2003) (citing cases).
The contrary view is also acknowledged in Mandelker, Land Use Law § 5.37, p. 5-38. That treatise recognizes that a total ban can be appropriate: “Courts review the total exclusion of one type of commercial use from a community on a case-by-case basis to decide whether the exclusion advances legitimate zoning purposes.” See, e.g., Beacon Falls v. Fosick, 212 Conn. 570, 583, 563 A.2d 285 (1989) (“Connecticut courts have upheld prohibitions of certain activities within municipalities through zoning after determining that the prohibitions were rationally related to the protection of the municipalities’ public safety, health and general welfare.”); see also Lambros, Inc. v. Town of Ocean Ridge, Fla., 392 So. 2d 993, 994 (Fla. 1981) (“The appellate courts in Florida have acknowledged the authority of a municipality to exclude certain uses of property entirely from a city.”). We observe that in Village of Belle Terre v. Boraas, 416 U.S. 1, 39 L. Ed. 2d 797, 94 S. Ct. 1536 (1974), the United States Supreme Court upheld a zoning ordinance that restricted land use to one-family dwellings for an entire village of 700 people.
In our view, however, the situation in the instant case does not involve such an absolute: The Board is allowing some wind farms, i.e., small ones, and disallowing only the large, commercial wind farms.
The Kansas Legislature indicates that such distinctions can be validly made. K.S.A. 12-753(a) states:
“The . . . board of county commissioners of any county, by adoption of a resolution, may provide for the adoption or amendment of zoning regulations in the manner provided by this act.... Such regulations may include, but not be limited to, provisions restricting and regulating the height, number of stories and size of buildings; the percentage of each lot that may be occupied; the size of yards, courts and other open spaces; . . . the location, use and appearance of buildings, structures and land for residential, commercial, industrial and other purposes; the conservation of natural resources, including agricultural land; and the use of land located in areas designated as flood plains and other areas, including the distance of any buildings and structures from a street or highway.”
Here, as authorized by K.S.A. 12-753(a), the Board has restricted sizes. More particularly, it allows a “Small Wind Energy Conversion System” (SWECS) consisting of a wind turbine, a tower and controls, which has a rated capacity of not more than 100 kilowatt and which is less than 120 feet in height and intended solely to reduce on-site consumption of purchased utility power. See Zoning Regulations, Article 1-104 (210); Article 31-109(i), (f).
By contrast, the Board has disallowed systems that exceed 100 kilowatt, exceed 120 feet in height, or that consist of more than one system of any size proposed or constructed by the same person or group of persons on the same or adjoining parcels or as a unified • or single generating system. Zoning Regulations, Article 1-104 (208); Article 31-112(5). Consistent with this statutory authority, the Board further limits the small wind energy conversion systems by specifying parcel size, density, spacing, setback distance, blade height and advertising.
As for any argument that the important distinction is based not upon size, but rather upon commercial versus noncommercial, i.e., so that any-sized commercial system is banned, we nevertheless believe that such a distinction, and therefore such restriction, is valid. See Beacon Falls, 212 Conn. at 584, and cases cited there from various jurisdictions.
In sum, the Plaintiffs and Intervenors have not established that the Board acted unreasonably in amending its zoning regulations to prohibit commercial wind farms in its county.
Issue 3. The district court did not err in precluding Plaintiffs and Intervenors from conducting discovery or submitting evidence.
Plaintiffs and Intervenors next argue that the district court abused its discretion in applying the discoveiy and evidentiary standards for determining the reasonableness of a zoning decision. Between them they generally place their complaints about the district court in three categories: (1) granting a protective order denying them the right to take the county commissioners’ depositions; (2) refusing to consider or accept as evidence anything other than in formation submitted by the county; and (3) permitting the county to “manufacture evidence and reasons for its decision over two years after it adopted the zoning amendment.”
We begin by observing that the apparent basis for Judge Klinginsmith’s denial of the request to depose the commissioners was because he embraced the Board’s argument that their decision was legislative. We know that the Board argued the depositions should be prohibited because the commissioners were elected officials making a legislative decision; that the judge held that the decision was legislative; and that he then barred the depositions. As was earlier discussed, we agree with this labeling because the zoning amendment concerned the entire county of approximately 800 square miles. See Mandelker, Land Use Law § 6.69, p. 6-83 (“Comprehensive rezoning is legislative ... in a majority of states.”); Landau v. City Council of Overland Park, 244 Kan. 257. 271-72, 767 P.2d 1290 (1989) (acknowledging the change in character from legislative to quasi-judicial for specific tract rezoning in Golden, 224 Kan. 591, in 1978).
We acknowledge that taking the depositions of the elected members of a governing body who made a legislative decision to comprehensively rezone could arguably violate the separation of powers. As mentioned, the high degree of deference afforded by a court to a legislative decision is due to the historically evolved principles of the separation of powers of the branches of government. 3 Rathkopf, Rezonings: Validity and Review § 40.6, p. 40-10. Accordingly, it is not totally unwarranted for Judge Klinginsmith to believe that these legislatively acting commissioners could not be deposed. Cf. Kan. Const., art. 2, § 22 (“For any speech, written document or debate in either house, the [legislative] members shall not be questioned elsewhere.”)
As the Plaintiffs and Intervenors also essentially acknowledge, the district court is vested with broad discretion in supervising the course and scope of discovery. In re Care & Treatment of Hay, 263 Kan. 822, 839, 953 P.2d 666 (1998). Accordingly, Plaintiffs admit that the issuance of a discovery protective order-here, prohibiting the commissioners’ depositions — is within the discretion of the district court. See In re Tax Appeal of City of Wichita, 277 Kan. 487, 513, 86 P.3d 513 (2004) (“Orders concerning discovery will not be disturbed on appeal in the absence of a clear abuse of discretion.”) They also acknowledge that the admission of evidence in the district court in such proceedings is within the court’s discretion. Landau, 244 Kan. 257, Syl. ¶ 5; Combined Investment Co. v. Bd. of Butler County Comm’rs, 227 Kan. 17, 27, 605 P.2d 533 (1980) (“Records of prior proceedings and also relevant evidence not presented to the commission are admissible subject to judicial discretion.”).
They point out, however, that the county commissioners were allowed to be deposed in Landau and McPherson Landfill, Inc. v. Board of Shawnee County Comm’rs, 274 Kan. 303, 49 P.3d 522 (2002). They also argue that where some indication of a commissioner’s prejudgment of the issue is present, as they allege here, discovery has been allowed, citing Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm’rs, 32 Kan. App. 2d 1168, 95 P.3d 1012 (2004). The fundamental difference between those cases and the instant case is that their governing bodies were making quasi-judicial decisions, not legislative. Landau concerned a denial of a request to rezone 16 acres; McPherson and Tri-County concerned conditional or special use permits for a landfill.
The Plaintiffs and Intervenors also argue that they were not permitted to provide input, i.e., the district court refused to consider or accept as evidence anything other than information submitted by the county. The Board correctly points out that they were allowed to submit verbatim transcripts on four meetings of die planning commission held in the spring and summer of 2004, where a court reporter was present. More important, they fail to appreciate the fundamental nature of a court’s review of a Board’s legislative action. One commentator goes so far as to state that governing bodies performing legislative functions do not even have to make findings of fact or give reasons for their zoning decisions. Mandelker, Land Use Law § 6.26, p. 6-28. The complaining parties’ limited rights are also demonstrated in the quasi-judicial case of Landau, 244 Kan. at 274. There, the court held that if the trial court believed the findings of fact and conclusions of law are deficient and inadequate for a reasonableness determination, the court may “select the alternative of remanding the case to the local governing authority for further findings and conclusions.” (Emphasis added.) Landau does not give the opposing party the right to participate in drafting the Board’s findings and conclusions.
Nor does Landau give the complaining party the absolute right to provide input to the court. We acknowledge Intervenors’ position that the Landau court rejected the city’s cross-appeal that essentially contended, as a matter of law, that the court was limited to reviewing the administrative record in making its reasonableness determination. See 244 Kan. at 274. We also acknowledge the accuracy of their reference to Landau which states that, as a result, “additional evidence may be considered by the trial court when reviewing a zoning decision providing the additional evidence meets the requirements of relevancy as to the issue of reasonableness.” Landau, 244 Kan. at 271. We again point out, however, that the admission of such evidence in these proceedings is within the discretion of the district court. Combined Investment Co., 227 Kan. at 27.
The Plaintiffs and Intervenors also argue the district court permitted the county to manufacture evidence and reasons for its decision over 2 years after it adopted the zoning amendment. We first note that they again fail to appreciate the nature of a court’s review of a Board’s legislative action. As stated, drafting the findings and conclusions for the court is the Board’s function. See Landau, 244 Kan. at 274. Moreover, absent the order by Judge Klinginsmith, formal findings of fact are not required, even in a quasi-judicial matter. See McPherson Landfill, Inc., 274 Kan. at 322. As that court stated: “It is more important that there exists a record of what the Board considered before making its decision so that the reviewing court is not left in a ‘quandary’ as to why the decision was made.” 274 Kan. at 323 (citing Board of Johnson County Comm’rs v. City of Olathe, 263 Kan. 667, 679, 952 P.2d 1302 [1998]). We next note that in McPherson Landfill, Inc., the company that received a denial of its application for a’ conditional use permit complained that the Board failed to make timely formal findings of fact: approximately 4 months elapsed from the time of the Board’s quasi-judicial decision until drafted. The court favor ably compared the situation to Landau, 244 Kan. 257, where the findings of fact in that quasi-judicial case (rezoning application for 16 acres) were not made until 6 months after the decision by the governing body and after an appeal had been filed. The Landau court was nevertheless able to determine that several Golden factors had been considered. It also noted that the meeting minutes showed that the citizens’ views at the public hearing addressed additional Golden factors.
The McPherson Landfill court concluded that, as in Landau, the citizen’s views addressed additional Golden factors. As in Landau, the record did not leave the McPherson Landfill court in a “quandary” as to what motivated the Board to act. The court also rejected the argument that the findings were inadequate because they were made after the Board’s decision was made. McPherson Landfill, Inc., 274 Kan. at 323.
We fully recognize that we may not have made the identical decisions as did the district court. However, we cannot declare that it abused its discretion, particularly when addressing a legislative decision by elected county commissioners. See Vorhees v. Baltazar, 283 Kan. 389, 393, 153 P.3d 1227 (2007) (discretion is abused when no reasonable person would take the view adopted by the district court). The salient point for any court is that it not be left in a quandary from the record as to the bases for the Board decision. McPherson Landfill Inc., 274 Kan. at 323.
Here, Judge Ireland clearly was not in a quandary, based upon his review and conclusions. According to his February 28, 2007, Memorandum Decision, he reviewed the “certified record” of 388 pages. He concluded that the county’s findings of fact demonstrated which documents found in the record were considered by the county in its decision: “[T]he county has complied with Judge Klinginsmith’s remand to identify each fact they relied upon in making their decision regarding zoning.” As mentioned, the findings of fact are cited to the record. Moreover, the legitimacy of the given reasons is further supported by Commissioner Steuwe. Although he had voted against the Resolution, he nevertheless supported “the motion to adopt the document presented [Findings of Fact and Conclusions of Board] because I believe it sets forth the facts and conclusions that were relied upon by a majority of the Commission when it voted 2-1 in favor of the resolution to ban industrial wind turbines in Wabaunsee County.”
After review of the record, which Judge Ireland found revealed that the “pros and cons of wind farms were discussed,” he seized upon several of the Board’s given reasons which he felt predominated: banning commercial wind farms because of aesthetics and nonconformance with the Comprehensive Plan 2004. There was no judicial quandary.
On a closely related issue, Plaintiffs specifically argue that Judge Ireland erred in dismissing their claim alleging unreasonable action because a court cannot determine reasonableness under K.S.A. 12-760 without facts. And Plaintiffs were not allowed to discover, or provide to the court, any facts.
Their argument appears to proceed as follows. First, because Judge Ireland considered matters outside of the pleadings, e.g., the certified record, the motion to dismiss this claim is more properly characterized as a motion for summary judgment. See K.S.A. 60-212(b)(6). Second, they argue that summary judgment “ordinarily” cannot be granted without discovery. See Bell v. Kansas City, Kansas Housing Authority, 268 Kan. 208, 220, 992 P.2d 1233 (1999) (“Ordinarily, summary judgment should not be granted when discovery is incomplete.”). Third, without considering these yet-undiscovered facts, a court cannot make a reasonableness determination under K.S.A. 12-760. Fourth, the judgment on this claim therefore must be reversed and the matter remanded.
We return to our earlier response. The district court judges considered the Plaintiffs’ position to be an attack on a legislative decision made by elected officials. Additionally, the issue before the court was narrow: reasonableness. The evidence needed under the court’s limited standard of review to examine this particular type of attack on the decision was likewise limited. The record before the court clearly did not leave the court in a quandary as to why the Board’s decision was made.
Issue 4: The district court did not err in dismissing the claim alleging that the zoning amendment violated the Contract Clause.
Plaintiffs and Intervenors next briefly argue that Judge Klinginsmith erred in dismissing as a matter of law their claim alleging violation of the Contract Clause of the United States Constitution, U.S. Const., Ajrt. 1, § 10, cl. 1. Plaintiffs contend that they entered into wind leases prior to the adoption of the Board’s ban and that the county cannot pass a law that interferes with the enforcement of a contract. They set forth the standard expressed in Energy Reserves Group v. Kansas Rower & Light, 459 U.S. 400, 74 L. Ed. 2d 569, 103 S. Ct. 697 (1983), and summarily conclude their contractual rights were impaired. They do not discuss how.
Intervenors argue that the Board’s action was intended to frustrate the purpose of the contract. Like the Plaintiffs, they set forth the Energy Reserves Group standard but, unlike the Plaintiffs, do argue how that standard was allegedly met.
The Board provides numerous responses and cites a number of cases dealing with issues identical, or similar, to those in the instant case. We need not address all of its arguments; several will resolve the parties’ controversy.
We begin our analysis with the standard upon which all parties agree:
“ ‘The test for determining whether a state law violates the Contract Clause of the United States Constitution is: (1) whether the state law has, in fact, operated as a substantial impairment of a contractual relationship; (2) whether there is a significant and legitimate public purpose behind the legislation; and (3) whether the adjustment of the contracting parties’ rights and responsibilities is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.’ ” U.S.D. No. 443 v. Kansas State Board of Education, 266 Kan. 75, 84, 966 P.2d 68 (1998) (quoting Federal Land Bank of Wichita v. Bott, 240 Kan. 624, Syl. ¶ 4, 732 P.2d 710 (1987) (in turn relying, in part, upon, Energy Reserves Group, 459 U.S. 400).
If an impairment is not substantial, our analysis ends and there is no violation of the Contract Clause. See U.S.D. No. 443, 266 Kan. at 79; 729, Inc. v. Kenton County Fiscal Court, 515 F.3d 485, 493-94 (6th Cir. 2008); Alliance of Auto. Mfrs. v. Gwadosky, 430 F.3d 30 (1st Cir. 2005); Flanigan's Enterprises, Inc. v. Fulton County, Ga., 242 F.3d 976 (11th Cir. 2001). If the impairment is substantial, the legislation may still be upheld provided both other conditions are met. See U.S.D. No. 443, 266 Kan. at 85 (citing Bott, 240 Kan. at 636); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987); CFCU Community Credit Union v. Hayward, 552 F.3d 253, 267-68 (2d Cir. 2009); Campanelli v. Allstate Life Ins. Co., 322 F.3d 1086 (9th Cir. 2003).
The Supreme Court has articulated other considerations when dealing with the Contract Clause issue. “Although the language of the Contract Clause is facially absolute [‘No State shall . . . pass any . . . Law impairing the Obligation of Contracts’] its prohibition must be accommodated to the inherent police power of the State ‘to safeguard the vital interests of the people.’ [Citation omitted.]” Energy Reserves Group, 459 U.S. at 410; see Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 241-42, 57 L. Ed. 2d 727, 98 S. Ct. 2716, reh. denied 439 U.S. 886 (1978) (general listing of these interests protected under the police power, including lives, health, morals, comfort, and general welfare of the people).
On the threshold issue of whether a regulation has, in fact, operated as a substantial impairment of a contractual relationship, the Court has stated: “In determining the extent of the impairment, we are to consider whether the industry the complaining party has entered has been regulated in the past. [Citations omitted.]” Energy Reserves Group, 459 U.S. at 411. This is because “ ‘[o]ne whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them.’ ” [Citation omitted.] 459 U.S. at 411.
Next, “[i]f the regulation does constitute a substantial impairment, then the State, in justification, must have a significant and legitimate public purpose behind the regulation, [citation omitted] such as the remedying of a broad and general social or economic problem.” 459 U.S. at 411. The Energy Reserves Group Court held that “[t]he requirement of a legitimate public purpose guarantees that the State is exercising its police power, rather than providing a benefit to special interests.” 459 U.S. at 412.
For the third step, i.e., whether the adjustment (or impairment — see Bott, 240 Kan. at 636-37) of rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption, the Court noted that its standard of review de pended upon whether the State was a party to the contract and altered its own contractual obligations:
“Unless the State itself is a contracting party, [citation omitted], . . . ‘[a]s is customary in reviewing economic and social regulation,. . . courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.’ [Citation omitted.]” 459 U.S. at 412-13.
See also Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 505, 94 L. Ed. 2d 472, 107 S. Ct. 1232 (1987) (“[W]e have repeatedly held that unless the State is itself a contracting party, courts should properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.’ [Citation omitted.] . . . We refuse to second-guess the Commonwealth’s determinations that these are the most appropriate ways of dealing with the problem.”).
The Energy Resources Group Court held that the Kansas Natural Gas Price Protection Act, K.S.A. 55-1401 et seq., did not violate the Contract Clause. In holding that the Act did not substantially impair the contractual rights of Energy Resources Group (ERG), the Court noted: “Significant here is the fact that the parties are operating in a heavily regulated industry,” i.e., regulation of natural gas. 459 U.S. at 413. It further held that “[t]o the extent, if any, the Kansas Act impaired ERG’s contractual interests”, the Act was prompted by “significant and legitimate state interests. Kansas has exercised its police power to protect consumers from the escalation of natural gas prices caused by deregulation.” 459 U.S. at 416-17. In short, “[t]here can be little doubt about the legitimate public purpose behind the Act.” 459 U.S. at 417. As for the third step, die Court stated: “Nor are the means chosen to implement these purposes deficient, particularly in light of the deference to which the Kansas Legislature’s judgment is entitled.” (Emphasis added.) 459 U.S. at 418.
Here, even without further factual development, we hold for the Board. First, when considering whether a contractual relationship is substantially impaired, we focus on whether the subject matter of the contract is regulated. We observe that the land use field is heavily regulated in Kansas. See, e.g., K.S.A. 12-701 et seq. Addi tionally, as more fully discussed later on the issue of state preemption, Intervenors themselves argue that commercial power, e.g., electric power, is also regulated by the Kansas Corporation Commission. When regulation already exists, it is foreseeable that changes in the law may alter contractual obligations. See Energy Reserves Group, 459 U.S. at 416. Accordingly, we can find no substantial impairment. See also Schenck v. City of Hudson, 997 F. Supp. 902, 907 (N.D. Ohio 1998) affd without opinion, 208 F.3d 215 (6th Cir. 2000) (“Land use and building regulation have long existed in [the town]. Plaintiffs entered their contracts aware that government regularly affected zoning and building issues.”); Kittery Retail Ventures, LLC v. Town of Kittery, 856 A.2d 1183, 1195 (Me. 2004) (Contractual relationships not substantially impaired in rezoning case because “[i]n Maine, land use is an area that has traditionally been regulated by the state and municipalities.”).
We also note that according to the dates provided in the briefs of Plaintiffs and Intervenors, all of their relevant contracts were entered into after the Board had declared its first moratorium in November 2002. Accordingly, they were on notice that Board action could be taken contrary to their future contracts. Cf. Energy Reserves Group, 459 U.S. at 416 (Contract provision suggested “that ERG knew its contractual rights were subject to alteration by state price regulation. Price regulation existed and was foreseeable as the type of law that would alter contract obligations.”); Alliance of Auto. Mfrs., 430 F.3d at 42 (Contracts entered into after the law was passed were not substantially impaired because they were “executed with the knowledge and expectation of pervasive state regulation.”).
Second, even assuming that the Resolution substantially impaired the contractual interests, we hold that it served significant public purposes. These purposes included “aesthetics” and consistency with the county’s comprehensive plan and, although not relied upon by the district court, also the environmental, ecological, and surface and subsurface water concerns expressed by the Board as bases for its Resolution. See Northwestern Nat. Life Ins. Co. v. Tahoe Regional, 632 F.2d 104, 105 (9th Cir. 1980) (under a Contract Clause analysis, court noted that restrictive zoning to dis courage urbanization of open areas is legitimate exercise of state’s police power.); Schenck, 997 F. Supp. at 907 (“Land use is a legitimate matter of concern for [town].”); cf. Keystone Bituminous Coal Assn., 480 U.S. at 505 (The State’s “strong public interest” in the environment “transcendfed] any private agreement between contracting parties.”).
Third, the means chosen by the Board to implement tírese significant public purposes are not deficient, i.e., they are reasonable and necessary. See U.S.D. No. 443, 266 Kan. at 79; see also Keystone Bituminous Coal Assn., 480 U.S. at 505. In forming this conclusion, we are guided by the Supreme Court’s acknowledgment that “courts should ‘ “properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” ’ [Citation omitted.]” 480 U.S. at 505. The evidence in the record reveals that the Board has drawn a reasonable line — based in part upon size, power, and use — -between those wind farms that are allowed and those that are not. See, e.g., Houlton Citizens’ Coalition v. Town of Houlton, 175 F.3d 178, 191 (1st Cir. 1999) (Court deferred to town council’s judgment that the waste management system created by the ordinance was a “moderate course designed to achieve the permissible purposes stated in the ordinance’s preamble.”). Like the United States Supreme Court in Keystone Bituminous Coal Assn., 480 U.S. at 505, “[w]e refuse to second-guess” the Board’s “determinations that these are the most appropriate ways of dealing with the problem.”
We find one of the Board’s many cited cases to be particularly on point: Schenck, 997 F. Supp. 902. In Schenck, developers and homeowners appealed an entry of summary judgment on their claim alleging a town’s violation of the Contract Clause. More specifically, the town had passed a zoning ordinance pursuant to its plan for land use, which included a limitation on town growth. Some developers joined other plaintiffs and sued because they did not receive allotments for constructing housing on town lots in the town’s lottery. These particular developers complained that the ordinance impaired their contract rights because they would be unable to repay loans incurred to build streets and other improvements in their subdivisions.
The Schenck court first noted that the Contract Clause does not operate to obliterate the police power of the States:
“ ‘It is the setded law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power is an exercise ofthe sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.’ ” (Emphasis added.) 997 F. Supp. at 907 (quoting Manigault v. Springs, 199 U.S. 473, 480, 50 L. Ed. 274, 26 S. Ct. 127 (1905).
See Keystone Bituminous Coal Assn., 480 U.S. at 503.
It then recited the three-step test from Energy Reserves Group. Citing that case, the court observed that for the first step, determining whether the legislation has, in fact, operated as a substantial impairment of a contractual obligation, “this court needs to consider whether the industry the complaining party has entered has been regulated in the past.” Schenck, 997 F. Supp. at 907 (citing Energy Reserves Group, 459 U.S. at 411.) It noted that “[l]and use and building regulation have long existed in [the town]. Plaintiffs entered their contracts aware that government regularly affected zoning and building issues. In such circumstances, the government has greater discretion in legislating even where such legislation may affect contract rights. [Citation omitted.]” Schenck, 997 F. Supp. at 907. Accordingly, the court appeared to hold that there was no substantial impairment of contract rights.
For the next step, determining whether the State has a significant and legitimate public purpose behind the legislation, the Schenck court then held that land use was “a legitimate matter of concern for [the town].” 997 F. Supp. at 907. As for the third step, the court also acknowledged that if the State advances a sufficient public purpose, the “ ‘courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.’ ” 997 F. Supp. at 907 (quoting Keystone Bituminous Coal Assn., 480 U.S. at 505). “Even if there is a substantial impairment, the state retains the right to remedy broad and general social or economic problems.” Schenck 997 F. Supp at 907 (citing Allied Structural Steel Co., 438 U.S. at 247). The court then held that “the zoning at issue here is a proper exercise of the City’s police power,” Schenck, 997 F. Supp. at 907 (citing Schenck v. City of Hudson, 114 F.3d 590, 595 [6th Cir. 1997]). Accordingly, the Schenck court appeared to hold that the zoning was necessary and reasonable.
INTERVENORS’ ADDITIONAL ISSUES:
Intervenors joined the Plaintiffs in their earlier arguments; they also malee several unique to themselves.
Issue 5: The district court did not err in dismissing Intervenors’ claim alleging preemption by state law.
Intervenors argue that Judge Khnginsmith erred in dismissing their claim and holding as a matter of law that the county zoning regulation was not preempted by the Kansas Electric Public Utilities Act (KEPUA), K.S.A. 66-101 et seq. He held that KEPUA was only meant to preempt local zoning in two situations: (1) the placement or siting of nuclear power plants; and (2) the placement or siting of electrical transmission lines of a certain size. According to the judge, because there was no clear expression of intent to regulate commercial wind farms, KEPUA did not preempt the Board’s actions.
Intervenors argue that the authority of the Kansas Corporation Commission (KCC) to regulate electric public utilities is extremely broad and that it has the exclusive power to regulate commercial wind farms. As they summarize their discussion of this issue in their brief, “the KEPUA preempts the Board’s authority to completely ban CWECS within Wabaunsee County.” They specifically assert that the KCC’s preemption is “clearly stated” by the legislature or, in the alternative, implied by KEPUA.
The Board essentially adopts the rationale of Judge Klinginsmith: the Intervenors cannot show that the legislature clearly intended to preempt all local regulation and reserve exclusive jurisdiction for the State. It contends that a legislative regulatory scheme of a particular field, as here, does not necessarily bar a county from adopting zoning regulations affecting that field.
Our review of this issue is unlimited because whether a resolution is preempted by statute is a question of law, as is the interpretation of statutes and resolutions. See Steffes v. City of Lawrence, 284 Kan. 380, 385, 160 P.3d 843 (2007).
This court has routinely, if not always clearly and consistently, rejected the argument that state law preemption of a particular field can be implied rather than expressed by a clear statement in the law. See, e.g., City of Junction City v. Griffin, 227 Kan. 332, 336, 607 P.2d 459 (1980); City of Junction City v. Lee, 216 Kan. 495, Syl. ¶ 9, 532 P.2d 1292 (1975) (legislative intent to reserve to the state exclusive jurisdiction to regulate must be clearly manifested by statute). Based upon our review of KEPUA, we agree with Judge Klinginsmith that the legislature did not include clear language in the statutory scheme to preempt the Board’s ability to amend its zoning regulations in the instant case. Contrast, e.g., K.S.A. 79-4702 (“The power to regulate, license, and tax the management, operation and conduct of and participation in games of bingo is hereby vested exclusively in the state.”).
Like Judge Klinginsmith, we also observe that the legislature has defined two specific circumstances when state-level regulation by the KCC does preempt local zoning. The first is the placement or siting of nuclear power plants. K.S.A. 66-1,162 provides:
“Upon the issuance of such permit [by the KCC], no local ordinance, resolution or regulation shall prohibit the construction of the nuclear generation facility, and the electric utility may proceed with such facility notwithstanding any requirement to obtain any building permit under any local zoning ordinance, resolution or regulation.”
The second specific preemption is the placement or siting of electricity transmission lines above a certain size. According to K.S.A. 66-1,182(b): “No city or county shall have jurisdiction or control over the siting or construction of any electric transmission line exempted from the provisions of this act by subsection (a)”.
As Judge Klinginsmith reasoned, if the legislature had truly intended for the State to preempt all local authority regarding such public utilities, there would be no need for these two specific preemptions. See Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006) (“ There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ”).
Moreover, even if this court were to wholly embrace the doctrine of “implied preemption” by state law, Intervenors could not prevail. Once the legislature has expressly stated that no local governing bodies will have jurisdiction in only two specific areas of a statutory scheme, we find it difficult to imply the existence of any other areas where they have no jurisdiction. Cf. Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d 384 (2003) (We can presume that when the legislature expressly includes specific terms it intends to exclude terms not expressly included.). Implying preemption is further unlikely when we additionally observe that the legislature has also expressly prohibited counties from regulating the production and drilling of any oil or gas well “which would result in the duplication of regulation by the state corporation commission.” (Emphasis added.) See K.S.A. 19-101a(a)(19). That statute also expressly prohibits counties from requiring any license, permit, fee, or charge for the drilling or production of any oil or gas well. In short, the legislature has demonstrated that it knows how to preempt with the KCC. Its failure to do so in our scenario strongly suggests it did not so intend.
In sum, KEPUA does not preempt the Board’s ability to amend its zoning regulations to prohibit commercial wind farms.
Issue 6: The district court did not err in dismissing Intervenors’ claim alleging preemption hy federal law.
Intervenors next argue that Judge Klinginsmith erred in dismissing their claim and holding as a matter of law that the county zoning regulation was not preempted by the Public Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. § 2601 (2000), et seq. As mentioned, preemption is a question of law over which we exercise de novo review. Steffes, 284 Kan. at 380.
We articulated several additional standards relevant to our review of this issue in Doty v. Frontier Communications, Inc., 272 Kan. 880, Syl. ¶ 4, 36 P.3d 250 (2001):
“Absent an express statement by Congress that state law is preempted [, federal] preemption occurs where [1] there is an actual conflict between federal and state law; [2] where compliance with both federal and state law is, in effect, physically impossible; [3] where Congress has occupied the entire field of regulation and leaves no room for states to supplement federal law; or [4] when the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress.”
Intervenors admit that Congress has not made an express statement of preemption. We therefore start our analysis with an acknowledgment that “[i]n the absence of express preemption in a federal law, there is a strong presumption that Congress did not intend to displace state law.” Doty, 272 Kan. 880, Syl. ¶ 5; see also New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 131 L. Ed. 2d 695, 115 S. Ct. 1671 (1995) (“[D]espite the variety of these opportunities for federal preeminence, we have never assumed lightly that Congress has derogated state regulation, but instead have addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law.”).
Intervenors appear to make two basic arguments. First, they contend that “federal law regulating wind energy is so pervasive, it can reasonably be inferred that Congress did not leave room for states to supplement it.” Perhaps stated another way, they argue; “Given that the federal government has exercised such a purview into the area of wind energy, Kansas is implicitly prohibited from legislating in this area. When federal law occupies a field, it preempts state action in that area.”
We observe that Intervenors cite five laws to purportedly demonstrate the federal government’s “extensive reach into the area of wind energy,” e.g., The Energy Policy Act of 2005, 42 U.S.C. § 15801 (2006) et seq. However, they do not explain how; they merely list. In our view, this approach is insufficient to overcome the strong presumption that Congress did not intend to displace state law. See Doty, 272 Kan. 880, Syl. ¶ 5.
Second, Intervenors point out that following the adoption of PURPA in 1978, the Kansas Legislature enacted K.S.A. 66-1,185, which gave the KCC the jurisdiction required to comply with and carry out the requirements of PURPA. They argue that PURPA therefore sets forth a “shared regulatory scheme” between the state and federal governments. Consequently, they conclude that “to the extent regulatory authority over utility generating power within the State is retained by the State, the legislature has clearly stated that authority over electric generation is vested in the KCC,” citing K.S.A. 66-101 et seq.
Intervenors implicitly acknowledge, however, that this argument is based upon their contention that “the State of Kansas has exclusively regulated electric public utilities since the early 1900’s.” Since we earlier held that the county’s zoning regulation amendment was not preempted by state law because Intervenors had not demonstrated that the KCC had exclusive jurisdiction, we must reject this second argument.
Judge Klinginsmith properly held that PURPA did not preempt local zoning of commercial wind farms.
BOARD’S ISSUE ON CROSS-APPEAL:
Issue 7: The Intervenors’ action under K.S.A. 12-760(a) was commenced in a timely manner.
On cross-appeal, the Board contends that Intervenors’ appeal should be dismissed because their petition to intervene was untimely filed. The Board points out that the Resolution was adopted on June 24, 2004, and contends that K.S.A. 12-760(a) requires that the intervention — like the Plaintiffs’ petition — be commenced within 30 days, i.e., by late July, 2004. It emphasizes that the Intervenors did not file a motion to intervene until more than 1 year later, August 1, 2005, and their petition was not filed until August 17, 2005. The Board concludes that the district court therefore had no jurisdiction to allow the intervention.
Intervenors respond that in Maurer v. Miller, 77 Kan. 92, 96-97, 93 P. 596 (1908), the court held that the 2-year statute of limitations was no defense to an intervening petition when the original action contesting a will commenced within 2 years because the will was indivisible and the original action inured to the benefit of the Intervenors.
We observe that in a much more recent case landowners filed suit against a city under a precursor to K.S.A. 12-760: K.S.A. 12-712 (Ensley 1982). In Hukle v. City of Kansas City, 212 Kan. 627, 512 P.2d 457 (1973), the landowners alleged that the City’s failure to rezone a tract of land to allow construction of a townhouse complex was unreasonable and arbitrary. The district court agreed. Fourteen days later a motion to intervene was filed by neighbors opposed to the rezoning; the motion was denied. More than 6 months later a second motion to intervene was filed; it too was denied. This court then held that the district court erred in denying the second motion to intervene. 212 Kan. at 632-33.
Although the Hukle court’s reason for reversing the district court is not an issue in this appeal, its allowance of a motion to intervene filed more than 6 months after the cause of action accrued is of guidance. Specifically, if the district court indeed had no jurisdiction over the motion, the Hukle court most likely would have said so. See State v. Denney, 283 Kan. 781, 787, 156 P.3d 1575 (2007) (appellate court has duty to question jurisdiction on its own initiative. When record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal). In any event, the Hukle court certainly would not have reversed the district court to allow intervention, heard the intervenors’ appeal on the merits, and then ordered judgment on their behalf; see also Moyer v. Board of County Commissioners, 197 Kan. 23, 415 P.2d 261 (1966) (plaintiffs sued county alleging decision to change zoning was unreasonable; 3 and Yz months later trial court agreed; county declined to appeal; adjoining landowners opposed to the zoning change requested intervention; denied by court; Supreme Court held intervention should be allowed.)
We conclude the district court had jurisdiction to determine whether to allow intervention and within its discretion chose to permit it. See Montoy v. State, 278 Kan. 765, Syl. ¶ 1, 102 P.3d 1158 (2005) (intervention within trial court’s discretion). The Board’s cross-appeal is denied.
Affirmed in part, and cross-appeal denied; several issues stayed pending receipt of supplemental briefs and oral argument.
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The opinion of the court was delivered by
Beier, J.:
This is a sentencing appeal after defendant Roy Seward entered guilty pleas to two of eight charges, one count of rape and one count of aggravated criminal sodomy. The victim was Se ward’s young stepdaughter. Seward received concurrent hard 25 sentences under K.S.A. 21-4643 (Jessica’s Law).
This appeal originally asserted that the sentences under Jessica’s Law were cruel and/or unusual under the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. Since our decisions in State v. Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008), and State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009), Seward has filed two Supreme Court Rule 6.09 (2008 Kan. Ct. Rule Annot. 47) letters of additional authority; he now seeks remand to the district court for factual findings and conclusions of law under the rubric set forth in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). Seward also challenges the district judge’s decision denying his motion for a downward durational departure.
The parties agreed on the record before the district judge that Seward made clear during plea negotiations that he intended to preserve his right to appeal the constitutionality of off-grid sentencing under Jessica’s Law.
Seward’s departure motion before the district court argued that he should receive a downward durational departure to a guidelines sentence because: (1) There were only two misdemeanors on his criminal record and those convictions had occurred more than 10 years ago; (2) he accepted responsibility for his crimes by pleading guilty and confessing to law enforcement; (3) he has a strong desire to receive treatment; (4) he “has demonstrated extreme remorse and regret for his actions”; and (5) “[t]he life imprisonment sentence provided for by ‘Jessica’s Law,’ K.S.A. 21-4643, is disproportionate and cruel and unusual under the state and federal constitutions.”
Seward’s motion also recited the results of a sex offender evaluation conducted by A. Elissa Hilyard. Hilyard relied upon a clinical interview and results from administration of several tests — the Static 99, the Level of Service Inventory — Revised (LSI-R), and the Sex Offender Needs Assessment Rating (SONAR). Hilyard’s report stated that the Static 99 placed Seward in the medium-low risk category, with a 16 percent chance that he would reoffend in the next 15 years. The LSI-R placed Seward in the moderate risk/ needs categoiy. The SONAR also rated Seward as a moderate risk. Hilyard’s report recounted that Seward admitted the victim performed oral sex on him two times but Seward denied having sexual intercourse with her.
Hilyard recommended that Seward:
“1. Enter into a sex offender treatment program and successfully complete it.
“2. Have no contact with minors.
“3. Take monitoring polygraphs to ensure his compliance and safety in the community.
“4. Increase his positive, social activities and have more positive interactions with peers his own age.
“5. Have no sexually explicit materials; no internet access.
“6. Take frequent and random [urinalyses] for substance use.”
At the sentencing hearing, defense counsel repeated the arguments from the written motion and entered Hilyard’s report into evidence pursuant to stipulation. No further evidence was offered. Counsel made only the following brief reference to the alleged unconstitutionality of Jessica’s Law:
“And lastly, I would make an objection, and as part of the plea agreement, the State stated that the Defense could object to the oppressive nature of the life imprisonment that goes along with this statute, the constitutionality, and we do intend to appeal that and that was part of the plea agreement so I would like to make that part of the record so we are able to appeal that issue.”
Seward, for his part, apologized for his actions and sought leniency.
In response, the State argued that there were no substantial and compelling reasons to depart. The prosecutor argued several aggravating factors: (1) the nature of the abuse; (2) Seward’s position of authority as the victim’s stepfather and his caution that she tell no one; and (3) the existence of a medical finding that the victim had experienced an injury to her hymen. The State also contended that Hilyard’s assessment of Seward’s future likelihood of reoffending was inaccurate because Seward had been untruthful during his evaluation, minimizing and omitting the fact that he had engaged in sexual intercourse with the victim and had penetrated her rectum.
The district judge determined that there were no substantial and compelling reasons for a downward durational departure. The judge said nothing in response to Seward’s constitutional challenges to Jessica’s Law.
The record before us reflects no subsequent oral or written defense motion for additional district court findings and conclusions on the constitutional claims under Supreme Court Rule 165 (2008 Kan. Ct. Rule Annot. 235).
Constitutional Challenges to Jessica’s Law
Ordinarily, constitutional challenges to a statute raise questions of law subject to unlimited appellate review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007). But two preliminary questions require attention before the merits can be reached here. The first is whether Seward and his counsel preserved these questions for appeal. The second is whether the factual record before this court is adequate to support any legal ruling by us.
In Ortega-Cadelan, we reinvigorated the rule that a constitutional issue generally cannot be asserted for the first time on appeal, specifically examining the justification for an exception to that rule when the issue was a similar challenge to Jessica’s Law. The defendant conceded that he had not raised the issue in the district court. We determined that no exception applied and refused to consider the issue. Ortega-Cadelan, 287 Kan. at 161; see also State v. Spotts, 288 Kan. 650, Syl. ¶ 1, 206 P.3d 510 (2009) (constitutional challenge to Jessica’s Law not properly before this court when raised for first time on appeal).
This case is different. Seward’s federal and state constitutional challenges to Jessica’s Law are no surprise to the State. They evidently were mentioned during plea negotiations, included in his written motion for downward durational departure, and restated on the record at his sentencing hearing. He and his counsel cannot be faulted for failure to call the district judge’s attention to these issues. Lack of preservation through objection in the district court is no bar to appellate consideration.
The second question, however, poses a more significant obstacle to any decision we might make on the merits. Seward and his coun sel stopped short of moving under Rule 165 to prompt the district judge to place specific findings of fact and conclusions of law on the constitutional challenges in the record. In Ortega-Cadelan, we recognized that the analysis of whether a sentence qualifies as cruel or unusual “includes both factual and legal questions” and listed the three relevant factors from our decision in Freeman, 223 Kan. at 367:
“ ‘(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiiy are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“ ‘(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“ ‘(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.’ ” 287 Kan. at 160-61.
We then observed that the first of the three factors was “inherently factual, requiring examination of the facts of the crime and the particular characteristics of the defendant.” Ortega-Cadelan, 287 Kan. at 161.
In Ortega-Cadelan, because the issue had never been raised before the district court, neither party had presented relevant evidence or arguments on this factor. Although we acknowledged that the two other Freeman factors depended on legal determinations, we stated:
“[0]ne consideration is not necessarily controlling over the other considerations; in fact, in Freeman the three considerations were referred to as ‘the three pronged test.’ [Citation omitted.] Ultimately, one consideration may weigh so heavily that it directs the final conclusion. Before that conclusion is reached, however, consideration should be given to each prong of the test. Particularly where arguments focus upon proportionality,. . . the factual aspects of the test are a necessary part of the overall analysis.” Ortega-Cadelan, 287 Kan. at 161.
In Thomas, as in Ortega-Cadelan, we ruled that the defendant had not adequately addressed his constitutional challenge to Jessica’s Law before the district court. In addition, in response to the defendant’s argument that the appellate record was nevertheless sufficient for this court to rule on the merits, we said: “This argument ignores the role of this court: Appellate courts do not make factual findings but review those made by district courts. [Citation omitted.] Here, no factual findings were made upon which this court can base an analysis of whether the sentence is cruel or unusual.” Thomas, 288 Kan. at 161.
The same is true here. There are no district court findings and conclusions on the Freeman factors. Although rejection of Seward’s constitutional challenges to Jessica’s Law may be implied by the district judge’s silence, such silence cannot supply a sound foundation for our appellate review. See Thomas, 288 Kan. at 161; see also State v. Easterling, 289 Kan. 470, 487, 213 P.3d 418 (2009) (although district court’s detailed recitation in ruling on departure motion included certain factual findings, findings cut against rather than supported defendant’s position on first factor from Freeman; no argument made on third Freeman factor; issue not before court “in a posture to be effectively decided”).
In this case, the district judge and Seward and his counsel share responsibility for the absence of adequate findings and conclusions in the record. Our Rule 165 places the primary duty for arriving at such findings and conclusions on the district judge. It states simply that “[i]n all contested matters submitted to a judge without a jury . . . , the judge shall state the controlling facts required by K.S.A. 60-252, and the legal principles controlling the decision.” 2008 Kan. Ct. R. Annot. 235. Numerous past decisions of this court and the Court of Appeals have characterized this duty as mandatory. See, e.g., Hanks v. Riffe Constr. Co., 232 Kan. 800, 802, 658 P.2d 1030 (1983); State v. Carver, 32 Kan. App. 2d 1070, 1078, 95 P.3d 104 (2004); University of Kansas Mem. Corp. v. Kansas Power & Light Co., 31 Kan. App. 2d 177, 181, 61 P.3d 741 (2003); Jack v. City of Wichita, 23 Kan. App. 2d 606, 610, 933 P.2d 787 (1997); In re Marriage of Case, 18 Kan. App. 2d 457, 464, 856 P.2d 169 (1993); Dillons Food Stores, Inc., v. Brosseau, 17 Kan. App. 2d 657, 659, 842 P.2d 319 (1992); Elite Professionals, Inc. v. Carrier Corp., 16 Kan. App. 2d 625, 629, 827 P.2d 1195 (1992); Pottratz v. Firkins, 4 Kan. App. 2d 469, 470, 609 P.2d 185 (1980). Yet we have also held that a litigant who fails to object to inadequate Rule 165 findings and conclusions in the district court is foreclosed from making an appellate argument that would depend upon what is missing. See Blair Constr., Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002); Tucker v. Hugoton Energy Corp., 253 Kan. 373, 378, 855 P.2d 929 (1993).
In view of the tension produced by these authorities, the newness of the constitutional issues raised by Jessica’s Law, and our recognition that the efforts made by Seward and his counsel to keep the issues alive beyond sentencing substantially outstripped those of defendants and counsel in Ortega-Cadelan, Thomas, Spotts, and Easterling, we are willing to remand this case to the district court for entry of sufficient factual findings and conclusions of law. On remand, the district judge shall also be empowered to decide, in her discretion, whether she requires any further hearing, evidentiary or otherwise, to enable her to discharge her Rule 165 duty.
We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessary.
Downward Durational Departure
Our standard of review on the denial of a sentencing departure is abuse of discretion. Judicial discretion is abused “ ‘ “when no reasonable person would take the view adopted by the district judge.” ’ ” Thomas, 288 Kan. at 164 (quoting Ortega-Cadelan, 287 Kan. at 165).
On appeal, Seward points to several facts that he contends constitute substantial and compelling reasons for departure from the Jessica’s Law hard 25 sentences: his lack of a prior felony, his own sexual victimization between the ages of 7 and 10, his mother’s and his own bipolar disorder, his housing in a “boy’s home” during his formative years, other family dysfunction, and his low intelligence and status as a high school dropout. Seward also argues that he has expressed a strong desire for treatment, has shown extreme re morse, and has saved his victim from the trauma of testifying by pleading guilty. By his calculation, even with a departure sentence, he would still serve 176 months and be subject to lifetime post-release supervision.
K.S.A. 21-4643(d) provides:
“[T]he sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. . . . [M]itigating circumstances shall include, but are not limited to, the following:
“(1) The defendant has no significant history of prior criminal activity.
“(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“(3) The victim was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“(4) The defendant acted under extreme distress or under the substantial domination of another person.
“(5) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
"(6) The age of the defendant at the time of the crime.”
This court has defined “substantial” as “something that is real, not imagined; something with substance and not ephemeral,” while the term “ ‘compelling’ implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.” State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).
In ruling on Seward’s departure motion, the district judge orally reviewed the mitigating and aggravating factors advanced by Seward and the State, engaging in an appropriate weighing of the competing considerations. The defense has demonstrated no abuse of discretion in the district judge’s denial of its departure motion.
Affirmed in part and reversed and remanded in part for further proceedings consistent with this opinion.
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Per Curiam,-.
This is an original proceeding in discipline filed by the office of the Disciplinaiy Administrator against the respondent, Wendell Betts, of Topeka, an attorney admitted to the practice of law in Kansas in 1981.
On November 20, 2008, the office of the Disciplinaiy Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent’s stipulation to the allegations of the formal complaint was received by the Disciplinaiy Administrator on February 23, 2009. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on Februaiy 26,2009, where the respondent was personally present. The hearing panel determined that respondent violated KRPC 8.4(b) (2008 Kan. Ct. R. Annot. 586) (commission of a criminal act reflecting adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects); and 8.4(c) (engaging in conduct involving dishonesty). Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“FINDINGS OF FACT
“2. On September 10, 2005, Pamela Johnson-Betts, the Respondent’s wife was stopped by a Kansas Highway Patrol Trooper for failing to use a turn signal. At that time, she did not have proof of insurance and received a citation for that offense.
“3. After the Respondent learned that Mrs. Johnson-Betts had been stopped by the Trooper and knowing that the car was not insured, the Respondent altered a motor vehicle insurance card issued by Maryland Casualty Company for a 1976 Triumph 6 (’TR6’). The insurance card had expired in 2004. The Respondent replaced the reference to the 1976 TR6 with 2002 Honda. The Respondent changed the expiration date to make it appear as though the insurance card reflected a current insurance policy.
“4. The Respondent took the altered insurance card to Kinkos and had it laminated. The Respondent provided the altered insurance card to Mrs. JohnsonBetts, the Respondent’s wife. Mrs. Johnson-Betts believed that it was a valid insurance card, as she did not know that the Respondent had altered the insurance card.
“5. On October 20, 2005, a Trooper from the Kansas Highway Patrol pulled Mrs. Johnson-Betts over for speeding. She provided the Trooper with the altered insurance card. An investigation ensued and the Respondent’s misconduct came to light.
“6. The Respondent testified that he altered the insurance card because his wife was pestering him to obtain insurance. The Respondent’s purpose in altering the insurance card was to appease his wife.
“7. On June 29, 2007, the Attorney General filed charges against the Respondent. The four felony charges included one count of forgery and three counts of making a false information.
“8. On July 8, 2007, the Respondent informed the Disciplinary Administrator that he had been charged in the criminal case.
“9. On December 10, 2007, the Respondent entered a plea of no contest to two counts of failure to provide motor vehicle liability insurance, class B misdemeanors.
“10. On December 21, 2007, the Court sentenced the Respondent to six months in jail, ordered the Respondent to serve 2 days in jail, and suspended the imposition of the remainder of the sentence. Additionally, the Court ordered the Respondent to pay a fine of $500 and court costs of $128. Finally, the Court placed the Respondent on probation for one year.
“CONCLUSIONS OF LAW
“1. Based upon the Respondent’s stipulation and the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b) and KRPC 8.4(c), as detailed below.
“2. ‘It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.’ KRPC 8.4(b). In this case, the Respondent admitted that he knowingly and intentionally altered an insurance card. The Respondent admitted that he did so to appease his wife. Based upon the Respondent’s conduct, the Respondent was convicted of two counts of failure to provide proof of liability insurance, class B misdemeanors. The Respondent acknowledged that his action violates KRPC 8.4(b). Accordingly, die Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent’s honesty, trustworthiness, and fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
“3. ‘It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Respondent admitted that he engaged in conduct that involved dishonesty when he altered the expired insurance card. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
“AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly violated his duty. The Respondent admitted that he had a history of depression which contributed to his pattern of procrastination. It did not appear that he is being treated for his depression.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to his wife.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined on four occasions.
“On June 2, 1995, the Kansas Supreme Court placed the Respondent on probation for two years for having violated MRPC 1.1, MRPC 1.3, and MRPC 8.4(d). In re Betts, 257 Kan. 955, 895 P.2d 604 (1995).
“On January 23, 1998, the Kansas Supreme Court placed the Respondent on probation for three additional years for having violated MRPC 1.1, MRPC 1.3, MRPC 1.4, MRPC 1.15(d), MRPC 8.4(d), and Kan. Sup. Ct. R. 207. In re Betts, 263 Kan. 801, 953 P.2d 223 (1998).
“On July 14, 1998, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.1, MRPC 1.3, MRPC 1.4, and MRPC 8.4.
“On July 6, 2006, the Disciplinary Administrator informally admonished the Respondent-for having violated KRPC 1.3 and KRPC 8.4.
“Dishonest or Selfish Motive. The Respondent engaged in conduct that involved dishonesty.
‘Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1981. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 24 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Illegal Conduct. The Respondent engaged in criminal conduct and, as a result, was convicted of two charges of failure to provide motor vehicle liability insurance, class B misdemeanors.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“The Present and Past Attitude of the Attorney as Shown by die Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Topeka, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as a trial attorney.
“Imposition of Other Penalties or Sanctions. The Respondent entered a plea of no contest to two misdemeanor crimes. As a result, the Court imposed a sentence. The Respondent spent two days in jail and a year on probation, paid a fine in the amount of $500, and paid the Court costs in the amount of $128.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.
“Remoteness of Prior Offenses. The discipline imposed in 1995 and 1998 is remote in time and in character to the misconduct in this case. The discipline imposed in 2006 is remote in character to the misconduct in this case.
“During the hearing, the Disciplinaiy Administrator suggested that Standards 5.12 and 5.13 may apply, depending on a finding that the Hearing Panel would have to make. Standard 5.12 provides:
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’ (Emphasis added.)
Standard 5.13 provides:
‘Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud deceit, or misrepresentation and that adversely reflects on the lawyer’s fitness to practice law.’
The difference between tírese two standards is whether the misconduct ‘seriously adversely reflects on the lawyer’s fitness to practice’ or whether the misconduct ‘adversely reflects on the lawyer’s fitness to practice.’
“The Respondent’s misconduct consists of altering an insurance card. The Hearing Panel accepted the Respondent’s testimony that he did not intend that the insurance card would be provided to law enforcement. While the Respondent’s explanation that he altered the insurance card because he did not have time to obtain insurance does not mal® any sense it should have taken less time to obtain insurance than it would have to alter the insurance card the Hearing Panel believes that the Respondent did not intend to defraud anyone, other than his wife, with the altered insurance card. Thus, the Hearing Panel concludes that the Respondent’s misconduct adversely reflects on his fitness to practice law, but that it does not seriously adversely reflect on his fitness to practice law.
“RECOMMENDATION
“The Disciplinary Administrator acknowledged that the Respondent’s misconduct may fall within Standard 5.12 or Standard 5.13, depending on whether the Hearing Panel concludes that the Respondent’s misconduct seriously adversely reflects on his fitness to practice. Accordingly, the Disciplinary Administrator recommended either that die Respondent be suspended from the practice of law for six months to one year or that the Respondent be censured and that the censure be published. The Respondent did not disagree with the Disciplinary Administrator’s recommendation, but urged the Hearing Panel to recommend that he be censured and allowed to continue to practice law.
“The Respondent’s misconduct in this case is troubling. He knowingly and intentionally altered an insurance card to mal® it appear as though his wife’s car was insured when it was not. The Respondent offered no legitimate explanation for his conduct. The misconduct in altering the insurance card, in all likelihood, took more time than obtaining insurance would have taken. It would have been so much simpler for the Respondent to obtain insurance. The Respondent testified that his financial situation did not prevent him from obtaining insurance. But, rather, the Respondent made the conscious decision to deceive his wife by altering the insurance card.
“Another troubling factor, is the Respondent’s previous disciplinary histoiy. The Respondent has been placed on probation twice and he has been informally admonished twice. However, the Respondent’s misconduct in this case is nothing like the misconduct in the previous cases.
“The Hearing Panel questioned the Respondent about his mental health histoiy and asked whether Respondent believed depression contributed to his decision to alter the insurance card rather than call his insurance agent. The Respondent did not think depression was a factor. Yet, members of the Hearing Panel believe the Respondent’s decisions were influenced to some degree by his mental health at the time.
“Standards 8.1 through 8.4 discuss when the Court should increase the severity of discipline by virtue of previous misconduct. Specifically, 8.2 provides that
‘Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.’
Standard 8.2 does not apply in this case because the Respondent’s previous misconduct was not the same or even similar to the misconduct in this case.
“In the opinion of the Hearing Panel, the mitigating circumstances are compelling in this case. Specifically, the Hearing Panel found it significant that the Respondent voluntarily took himself out of the practice of law for a period of approximately six months while the criminal case was pending. While voluntarily not practicing law is not a suspension from the practice of law, it had the same result. For a period of time, the Respondent did not practice law. Additionally, as a result of the criminal case, the Respondent experienced other penalties and ramifications. The Respondent spent two days in jail and a year on probation and paid a fine. The Respondent’s criminal case was highlighted in the local newspaper and television news broadcasts. Thus, the Hearing Panel concludes that the matters in mitigation, including the Respondent’s voluntary ‘suspension’ from the practice of law, the public scrutiny, and the penalties that followed his criminal conviction, are compelling.
“The mitigating circumstances, coupled with the finding that the Respondent’s misconduct does not seriously reflect on his fitness to practice law, leads the Hearing Panel to unanimously recommend that the Respondent be censured by the Kansas Supreme Court and that the censure be published in the Kansas Reports. In addition to the censure, the Hearing Panel recommends that the Respondent be required to undergo an evaluation for depression by William Albott, Ph.D., comply with all recommendations for treatment and/or medication made by Dr. Albott, and provide quarterly verification to the Disciplinary Administrator that he has complied with the recommendations for a period of two years.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Discussion
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313).
The respondent stipulated to the allegations of the formal complaint and filed no exceptions to panel’s final hearing report set forth above. Thus, the hearing panel’s final report is deemed admitted. Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327).
We conclude the panel’s findings of fact are supported by clear and convincing evidence and that these findings support the panel’s conclusions of law. We therefore adopt those findings and conclusions. With respect to the discipline to be imposed, the panel’s recommendation that the respondent be censured is advisory only and shall not prevent the court from imposing a different discipline. Supreme Court Rule 212(f). However, we have considered the careful manner in which the panel reached its recommendation. As noted by the panel, the respondent’s misconduct in this case is troubling and has resulted in misdemeanor convictions for failure to provide proof of liability insurance. The respondent admits that his misconduct amounted to deceit in violation of KRPC 8.4(c). Moreover, as noted by the panel, the respondent has a history of four additional disciplinary violations, though those violations are somewhat remote in time and not of the same character as the present misconduct.
At the same time, the panel noted that the mitigating circumstances outlined in the final hearing report led to its recommendation that the respondent should be sanctioned by published censure for his misconduct. The panel further recommended that the respondent be required to undergo an evaluation for depression by William Albott, Ph.D.; to comply with all recommendations for treatment and/or medication made by Dr. Albott; and to provide quarterly verification to the Disciplinary'Administrator that he has complied with the doctor’s recommendations for a period of 2 years. During oral argument, the respondent indicated that he willingly accepted this recommendation. Based upon the record before us, including the arguments before this court, we conclude that the recommendations of the panel as to sanctions are appropriate. A minority of this court would impose a more severe sanction.
Conclusion and Discipline
It Is Therefore Ordered that respondent, Wendell Betts, be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (2008 Kan. Ct. R. Annot. 266) for violations of KRPC 8.4(b) and (c).
It Is Further Ordered that respondent comply with the recommendation of the hearing panel that he be required to undergo an evaluation for depression by William Albott, Ph.D.; to comply with all recommendations for treatment and/or medication made by Dr. Albott; and to provide quarterly verification to the Disciplinary Administrator that he has complied with the doctor s recommendations for a period of 2 years.
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Nuss, J.:
This case concerns the suppression of drugs discovered during a properly commenced traffic stop of a rented van by Deputy Henry Cocking. The van was being driven by Ronald O’Kelly, the 16-year-old son of defendant Ronnie Morlock, the van’s lessee and sole passenger. The district court denied Morlock’s motion to suppress. A majority panel of the Court of Appeals reversed, and Judge Leben dissented. •
This court granted the State’s request for review under K.S.A. 22-3602(e) on the following question:
“Did the Court of Appeals err by reversing the district court’s denial of defendant’s suppression motion when:
(1) United States Supreme Court precedent indicates Deputy Cocking did not violate defendant’s rights during a lawful stop.
(2) Cocking had reasonable suspicion to justify an investigatory detention; and
(3) any taint was attenuated by [Morlock’s] consent after the stop ended and the encounter became voluntary?”
We hold that Deputy Cocking’s questions about the van occupants’ travel plans did not exceed the acceptable boundaries of the traffic stop. We further hold that Cocking’s taking of Morlock’s driver’s license to his patrol vehicle and using it to run a warrants check on the vehicle computer was justified by his reasonable suspicion, allowing an extension of the traffic stop. Accordingly, we do not address whether any taint was attenuated by Morlock’s later consent to search.
We reverse the Court of Appeals and affirm the district court.
FACTS
The essential facts are not in dispute and are primarily taken from the Court of Appeals’ majority opinion.
In the early evening of Februaiy 3,2006, Deputy Henry Cocking of the Sedgwick County Sheriffs department was driving east bound on Highway 54 when he observed a van with Arizona tags moving out in front of him. Cocking noticed the driver twice failed to signal when changing lanes. Cocking activated his emergency lights and stopped the van.
Cocking approached the driver of the van, 16-year-old Ronald O’Kelly, and told him the reason for the stop. Cocking asked O’Kelly to produce his driver’s license. Cocking noticed that O’Kelly was very nervous: he was shaking and trembling and he dropped the license into his lap and then almost dropped it on the ground when he handed it over. Cocking also noticed that the passenger, Ronnie Morlock, was staring straight ahead at the dash and never looking at Cocking. This behavior struck Cocking as odd, because when he has previously made contact with people at their vehicle door, “their usual attention is on me.”
Cocking asked O’Kelly to step out of the vehicle, and the two walked to the rear of the van. Cocking asked O’Kelly if the information on his driver’s license — including his Overland Park, Kansas, address — was correct, and O’Kelly said, “Yes.” Cocking then asked either “where he was going” or “where he was coming from.” O’Kelly replied that he was coming from Phoenix and going to Kansas City. Cocking asked O’Kelly how long he had been in Phoenix and O’Kelly indicated a couple of days. Cocking asked O’Kelly why he was in Phoenix, and O’Kelly replied they were visiting his dad’s girlfriend, indicating that his dad was the van’s passenger. Cocking testified that perhaps because he asked for the vehicle registration, O’Kelly volunteered that the van was rented. O’Kelly also said the van was rented by his dad.
Cocking went to the passenger side of the van to obtain the rental agreement. He asked the passenger for his ID “to verify that was him.” After obtaining the driver’s license, he also asked Morlock for the rental agreement. According to Cocking, obtaining the rental agreement was like obtaining the registration, to “make sure they had authorization to have that vehicle.”
While Morlock was looking for and eventually retrieving the rental agreement, Cocking asked him several questions. In response to Cocking’s query of “where he was going or coming from,” Morlock said he was coming from Phoenix and going back to Kan sas City. Morlock also said he “had flew to Phoenix from Kansas City” and “was going to meet a girl he had met on the internet.” However, he had not been able to make contact with her. He also said he had been in Phoenix a couple of days.
Cocking reviewed the rental agreement and determined that the van was rented from Tucson, not from Phoenix. Cocking knew they were two different large cities, so he asked Morlock about the discrepancy. Morlock explained that he had flown into a “Phoenix/ Tucson airport located right in that area.” Cocking asked Morlock some additional questions. Morlock replied that while he flew to Phoenix, he did not have enough money to purchase a ticket to fly back, so he decided to rent a car.
Cocking felt the activity was suspicious. His opinion was based upon:
“the nervousness, the rental agreement. They went to Phoenix, they told me they flew to Phoenix for a couple of days, the rental agreement was out of Tucson. One-way rental, which is very expensive. It would cost just as much to fly back. And with a short trip, it’s just definitely suspicious activity.”
Cocking also testified he further found it suspicious that Morlock would fly one-way to Phoenix to see the woman and not even malee contact with her, since seeing her was tire purpose for the trip. He also thought it suspicious that O’Kelly would describe the female as his dad’s girlfriend, and Morlock would instead describe her as someone he had simply met on the internet.
Cocking then took both driver’s licenses and the rental agreement to his patrol vehicle. While walking past the van, Cocking looked into a rear window and noticed four bags in the cargo area. Cocking found the number of bags unusual because Morlock and O’Kelly had said they were in Phoenix for only a couple of days.
While in the patrol vehicle, Cocking wrote O’Kefly a warning citation and ran both names through his vehicle’s computer for a warrant check. The rental agreement also “appeared to be in order.”
When both names cleared the warrant check, Cocking returned to the passenger side of the van. Both Morlock and O’Kelly were seated inside. Cocking handed the documents to Morlock and asked O’Kelly why he was not in school. O’Kelly replied he was “just taking a couple days off.”
Cocking then stepped back and said, “Have a nice day, talk to you later. Have a nice day.” He turned and walked one to two steps away from the van toward his patrol vehicle, and then turned and reapproached the van. The passenger window was still down. Cocking asked, “Hey, do you mind if I ask you a couple of questions?” Morlock and O’Kelly responded, “Yeah, go ahead.”
Cocking asked them if they would step out of the van, and both complied. Cocking told the pair, “We have large amounts of drugs traveling up and down U.S. 54,” and then asked, “Do you have any drugs or weapons in your car?” Morlock denied having drugs or weapons inside. Cocking then asked Morlock for permission to search the van; Morlock answered, “Yes.”
Cocking asked Morlock if he could search his person for weapons, and Morlock agreed. The search turned up no weapons on him. After opening the rear of the van, Cocking opened one of the suitcases in the cargo area. He observed cellophane packages that he believed were packaged drugs. Cocking then arrested both Morlock and O’Kelly and called for backup. A drug dog indicated it smelled drugs at the rear door of the van. Law enforcement officers ultimately removed 113 pounds of marijuana from the van.
Morlock was charged with possession of marijuana with intent to sell, in violation of K.S.A. 65-4163(a)(3), and the failure to affix a drug stamp, in violation of K.S.A. 79-2504.
After Morlock filed a motion to suppress the evidence, the trial court held a hearing on the motion in conjunction with a bench trial. After hearing the evidence, the trial court found that the encounter between Cocking and Morlock was continuous essentially because Cocking had formed reasonable suspicion which was articulated to the court’s satisfaction: after returning to the vehicle after the warrant check, Cocking “continued with the detention because his suspicion was aroused.”
The trial judge gave the following reasons supporting his decision on reasonable suspicion: (1) driver O’Kelly’s nervousness; (2) Cocking was told the trip originated in Phoenix, yet the rental agreement showed Tucson; (3) Morlock explained this discrepancy by mentioning the “Phoenix/Tucson” airport; (4) O’Kelly described Morlock’s female friend as his dad’s “girlfriend,” while Morlock described her only as “someone he met on the internet”; (5) the female was not contacted in Phoenix, even though Morlock had traveled from Kansas City for that express purpose; (6) the van was being driven pursuant to a one-way rental agreement; and (7) four pieces of luggage were packed for only 2 days in Phoenix.
Because the trial judge found that Morlock voluntarily consented to the search of the van during this appropriate extension of the detention, he held that no Fourth Amendment violation occurred. Accordingly, the judge overruled Morlock’s motion to suppress the evidence and later found him guilty of both charges. The judge later sentenced Morlock to 18 months’ probation with an underlying sentence of 15 months in prison.
On appeal, the majority of the Court of Appeals panel essentially held that Cocking improperly extended the stop. It reversed the trial court’s denial of the motion to suppress and set aside Morlock’s convictions. Judge Leben dissented. State v. Morlock, 40 Kan. App. 2d 216, 190 P.3d 1002 (2008).
Additional facts will be added as necessary to the analysis.
ANALYSIS
I. Standard of Review
Our standard of review is well known:
“When reviewing a motion to suppress evidence, this court reviews the factual underpinnings of a district court’s decision for substantial competent evidence and the ultimate legal conclusion drawn from those facts de novo. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review. [Citation omitted.] The State bears the burden to demonstrate that a challenged search or seizure was lawful. [Citation omitted.]” State v. Moore, 283 Kan. 344, 349, 154 P.3d 1 (2007).
Appellate court review of a search arising out of a traffic stop initially requires a determination on whether the stop began legally. Morlock concedes this point because his son committed a traffic violation, i.e., failed to signal lane changes. See K.S.A. 22-2402(1); Moore, 283 Kan. at 349 (a traffic violation provides an objectively valid reason to effectuate a traffic stop, i.e., articulable facts suffi cient to constitute reasonable suspicion). Instead, Morlock basically argues that Deputy Cocking exceeded the constitutionally permissible boundaries of a legally commenced stop generally as described in Moore:
“ A law enforcement officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he or she is entitled to operate the car, the driver must be allowed to proceed on his or her own way, without being subject to further delay by the officer for additional questioning.’ ” 283 Kan. at 351 (quoting State v. Anderson, 281 Kan. 896, 902, 136 P.3d 406 [2006]).
More specifically, Morlock agrees with the majority of the Court of Appeals panel. He argues that Cocking exceeded the stop’s constitutionally permissible boundaries by (1) asking certain travel questions of driver O’Kelly and passenger Morlock and also (2) taking Morlock’s driver’s license to his patrol vehicle and using it to run a warrant check on the vehicle computer. Morlock contends that because these events impermissibly extended the stop, his consent to search given during that extension was therefore invalid.
II. Arizona v. Johnson
We start our analysis with an advantage over the trial judge and the judges on the Court of Appeals panel. Specifically, we have access to a decision rendered by the United States Supreme Court after the majority and dissenting opinions in State v. Morlock were filed on August 29, 2008. On January 26, 2009, the Court filed Arizona v. Johnson, 555 U.S. 323, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009), an opinion authored by Justice Ginsburg for a unanimous court.
In Johnson, three police officers stopped a car after a license plate check revealed that the registration had been suspended for an insurance related violation, which can justify a citation under Arizona law. The car contained three occupants. At one officer’s request, the driver got out and the officer began obtaining the driver’s license and information about the vehicle’s registration and insurance. Another officer, Trevizo, attended to Johnson who sat in the back seat.
Trevizo observed Johnson was wearing clothing consistent with membership in the Crips gang. While Johnson was seated, and in response to Trevizo’s questions, he provided his name and date of birth but said he had no identification with him. He volunteered he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told her that he had served time in prison for burglary and been out for about a year.
Trevizo wanted to question Johnson away from the other passenger to obtain information about the gang Johnson might be in, so she asked him to get out of the car. After he did so, she began to pat him down for officer safety. When she felt a gun butt near his waist, he struggled, and she placed him in handcuffs.
A divided panel for the Arizona Court of Appeals reversed the trial court’s denial of Johnson’s motion to suppress. As Justice Ginsburg summarized: “[T]hat court concluded, once Officer Trevizo undertook to question Johnson on a matter unrelated to the traffic stop, i.e., Johnson’s gang affiliation, patdown authority ceased to exist, absent reasonable suspicion that Johnson had engaged, or was about to engage, in criminal activity.” 555 U.S. at 332.
The Supreme Court observed, among other things, that under Brendlin v. California, 551 U.S. 249, 168 L. Ed. 2d 132, 127 S. Ct. 2400 (2007), “a passenger is seized, just as the driver is, ‘from the moment [a car stopped by the police comes] to a halt on the side of the road.’ ” 555 U.S. at 332. The court ultimately reversed the Arizona Court of Appeals and remanded, holding that Johnson’s pat-down was constitutional. It made several key points in its holding:
“A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. See Brendlin, 551 U.S. at 258, 127 S. Ct. 2400. An officer’s inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop. See Muehler v. Mena, 544 U.S. 93, 100-01[, 125 S. Ct. 1465, 161 L. Ed. 2d 229] (2005).” (Emphasis added.) Johnson, 555 U.S. at 333.
The Johnson Court’s reliance upon Muehler v. Mena, 544 U.S. 93, 161 L. Ed. 2d 229, 125 S. Ct. 1465 (2005), is instructive. There, Mena was handcuffed and detained in her residence during the execution of a search warrant which listed, among other sought items, deadly weapons and evidence of street gang membership. An Immigration and Naturalization Service officer had accompanied the officers executing the search warrant, and during Mena’s detention she was asked for her name, date of birth, place of birth, immigration status, and immigration documentation.
The Ninth Circuit court of appeals had held that the officers violated Mena’s Fourth Amendment rights by questioning her about her immigration status during the otherwise lawful detention without independent reasonable suspicion. The Supreme Court reversed, holding that the Ninth Circuit’s assumption that the questioning constituted a discrete Fourth Amendment event was faulty because “ ‘mere police questioning does not constitute a seizure.’ ” 544 U.S. at 101.
The Muehler Court heavily relied upon its decision released 57 days earlier, Illinois v. Caballes, 543 U.S. 405, 160 L. Ed. 2d 842, 125 S. Ct. 834 (2005), where the Court held that, without more, a drug dog sniff performed during a lawfully commenced traffic stop did not violate the Fourth Amendment. The Muehler Court essentially held that law enforcement officers could ask questions unrelated to the purpose of a search — without reasonable suspicion-— as long as the questions did not prolong the search:
“Because we held [in Caballes] that a dog sniff was not a search subject to the Fourth Amendment, we rejected the notion that ‘the shift in purpose’ . . . was unlawful because it was not supported by a reasonable suspicion.’ Id. at 408,125 S. Ct., at 836-838. Likewise here, the initial Summers detention [pursuant to the search warrant] was lawful; the Court of Appeals did not find that the questioning extended the time Mena was detained. Thus no additional Fourth Amendment justification for inquiring about Mena’s immigration status was required.” (Emphasis added.) 544 U.S. at 101.
In short, the Muehler Court’s test of “no extension” of the detention’s duration was expanded 4 years later by the Johnson Court to become a test of “no measurable extension.” Johnson also eliminated any doubt that the Muehler rationale applied to traffic stops. See State v. Smith, 286 Kan. 402, 184 P.3d 890 (2008); United States v. Stewart, 473 F.3d 1265 (10th Cir. 2007). Johnson therefore also confirmed that an officer s inquiries into matters unrelated to the justification for the stop did not necessarily require reasonable suspicion.
With this background, we now turn to analyzing Morlock’s claim that Deputy Cocking exceeded the constitutionally permissible boundaries of the stop by (1) asking certain travel questions of driver O’Kelly and passenger Morlock and (2) taking Morlock’s driver’s license to his patrol vehicle and running a warrant check.
III. Specific travel plans
The Court of Appeals majority acknowledged the existence of substantial authority specifically authorizing a law enforcement officer to inquire about a detained driver’s travel plans during a traffic stop without unconstitutionally extending the scope of the stop. State v. Morlock, 40 Kan. App. 2d 216, 224, 190 P.3d 1002 (2008). It also acknowledged that “[although courts have uniformly held that a law enforcement officer may question a driver of a vehicle about travel plans, there is limited authority upholding such questioning of passengers.” (Emphasis added.) 40 Kan. App. 2d at 225. Based upon its view of this research, the panel majority approved Cocking asking both driver and passenger where they were traveling to and from.
But while acknowledging some authority to the contrary allowing similar questions, e.g., United States v. Brigham, 382 F.3d 500 (5th Cir. 2004), the majority disapproved the following questions by Cocking:
. (1) asldng the 16-year-old driver O’Kelly how long he had been in Phoenix and why he was there;
(2) asking passenger Morlock how long he had been in Phoenix, why he went there, and why after flying there he was instead driving back.
The majority held that these five questions were “not reasonably related in scope to the traffic infraction which justified the stop in the first place.” 40 Kan. App. 2d at 230.
Judge Leben disagreed because Morlock’s “claim that the officer couldn’t ask limited questions about his travel plans is contrary both to the rationale of recent United States Supreme Court cases and to cases decided by courts elsewhere.” 40 Kan. App. 2d at 237. We agree with Judge Leben that Cocking’s five questions were constitutionally permissible.
(1) The two questions to driver O’Kelly were permissible incidents to routine traffic stop
We first conclude that the panel majority’s disapproved questions of driver O’Kelly are permissible because they are not “inquiries into matters unrelated to the justification for the traffic stop.” See Arizona v. Johnson, 129 S. Ct. 788.
The case of United States v. Rivera, 570 F.3d 1009 (8th Cir. 2009), is of particularly useful guidance because it was decided after the Supreme Court’s decision in Johnson. During a traffic stop, the trooper explained the reason for the stop and asked for Rivera’s driver’s license and registration. He also inquired about the purpose of Rivera’s trip, and Rivera answered that he was travelling to Memphis to pick up his family. The trooper asked what Rivera’s family was doing in Memphis, and Rivera eventually confirmed that his wife went on a trip to visit her mother-in-law. Rivera also told the trooper that he was employed as a painter, and the trooper observed that Rivera had two cell phones with him in the truck.
About a minute and a half into the stop, they moved to the rear of the truck. The trooper continued to question Rivera about how his family got to Memphis and whether Rivera had previously been arrested. In response to the question of previous arrests, Rivera answered that he had been issued a ticket a few hours earlier, and presented it. When the trooper asked again about previous arrests, Rivera did not respond, instead giving more details about the ticket he had received. Among other things, the trooper asked where Rivera’s mother-in-law lived in Memphis, and Rivera responded that he did not know. The trooper then inquired how Rivera would find his wife when he got to Memphis. After some additional in audible and confused responses, Rivera eventually said he would need to call her.
At about 4]/2 minutes into the stop, the trooper asked whether Rivera had guns or anything illegal in the truck. When Rivera answered, “No,” the trooper asked if he could search the truck. Rivera said, “Yeah,” and the trooper again confirmed, “You don’t mind if I search the vehicle?” Rivera responded, “You can look in.” 570 F.3d at 1011. The trooper then instructed Rivera to sit in the front seat of the patrol car, where he continued to question Rivera about how he was going to contact his family once he arrived in Memphis.
Six minutes into the traffic stop, the trooper provided Rivera’s personal information for a records check. While waiting for the results, the trooper continued to ask where Rivera purchased the truck, when he began his trip to Memphis, and how he was going to meet his family in Memphis. Over the next 2Vz minutes, the trooper briefly asked again if Rivera had a phone number for a family member in Memphis and inquired about Rivera’s employer.
Fourteen minutes into the stop the trooper received the records information, two minutes later, Rivera withdrew his consent, and a drug dog later located cocaine in Rivera’s truck. .
The Eighth Circuit rejected Rivera’s argument that the stop was unreasonably prolonged during the first 15 minutes by the trooper’s mixing drug-interdiction questions with routine traffic stop inquiries. As for die first 4 to 6 minutes of the stop, the Rivera court concluded that
“much of [the] exchange with Rivera related to the traffic stop. He requested Rivera’s license and registration, explained the reason for the stop, and inquired into the destination and purpose of Rivera’s trip, his criminal history, and the details of his previous traffic ticket earlier that day. These are permissible incidents of a routine traffic stop. United States v. Long, 532 F.3d 791, 795 (8th Cir. 2008); Peralez, 526 F.3d at 1119.” (Emphasis added.) 570 F.3d at 1013.
Like the Eighth Circuit, we too hold that such travel questions are “permissible incidents to a routine traffic stop.” Cf. K.S.A. 22-2402 (in Terry stop, officer may demand, inter alia, an explanation of the person’s actions). These types of questions were permissible in a number of jurisdictions, including Kansas, even before Arizona v. Johnson. Moreover, the Eighth Circuit’s failure to include Johnson in its analysis of this particular issue strongly suggests that court did not believe that Johnson influenced its determination of whether these were “matters unrelated to the justification for the traffic stop.” See 555 U.S. at 333.
The Tenth Circuit’s approach to this issue before Johnson was similar to the Eighth Circuit’s today. In United States v. Alcaraz-Arellano, 441 F.3d 1252, 1256 (10th Cir. 2006), in response to a Kansas deputy’s questions, the driver answered that “he lived in New York, had traveled to California, had stayed there 1 and Vz days, had purchased the car, and was en route back to New York.” The court clearly held that the deputy “asked only a few questions about travel plans and vehicle ownership before going to his patrol car to issue a warning. Such limited questioning is proper, because an officer may routinely ask about travel plans and ownership during a lawful traffic stop. See Bradford, 423 F.3d at 1156.” (Emphasis added.) 441 F.3d at 1259.
Similarly, in United States v. Williams, 271 F.3d 1262 (10th Cir. 2001), the officer asked about the driver’s travel plans during the initial approach to the vehicle and while holding the driver’s license and a rental agreement. The driver replied that although his sister was from Chicago, she had traveled from Chicago to Kansas City with a friend. He explained that his family was having an Easter gathering the following day in Denver, and due to his sister’s fear of flying, he was driving to Kansas City to pick her up and bring her to Denver. The Tenth Circuit rejected the driver’s challenge to the questions, holding that “questions relating to a driver’s travel plans ordinarily fall within the scope of a traffic stop.” 271 F.3d at 1267; see United States v. West, 219 F.3d 1171, 1176 (10th Cir. 2000) (stating that “questions about travel plans are routine and ‘may be asked as a matter of course without exceeding the proper scope of a traffic stop.’ ”); State v. Moore, 283 Kan. 344, 347, 154 P.3d 1 (2007) (although apparently not raised as an issue on appeal by the driver defendant, when questioned about his travel plans he stated that “he had gone to Las Vegas for an army airborne reunion”).
The Fifth Circuit has provided its rationale for allowing such questions in United States v. Brigham, 382 F.3d 500, 508 (5th Cir. 2004): “An officer may also ask about the purpose and itineraiy of a driver s trip during the traffic stop. [Citation omitted.] Such questions may efficiently determine whether a traffic violation has taken place, and if so, whether a citation or warning should be issued or an arrest made.” (Citing to United States v. Holt, 264 F.3d 1215, 1221 [10th Cir. 2001] [en banc]).
For these reasons, we hold that Deputy Cocking’s travel questions of O’Kelly — how long he had been in Phoenix and why he was there — were proper because they were permissible incidents to a routine traffic stop.
(2) The three questions to passenger Morlock did not measurably extend the stop
The record reveals that Cocking’s entire discussions with O’Kelly and Morlock before the warrant checks, including all of the admittedly legitimate questions as well, took only 2 minutes. We independently observe that Cocking’s questions to Morlock, concerning where he was going or coming from, why he had gone to Phoenix, and why after flying there he was instead driving back in a rented van, were apparently asked while Morlock was looking for the rental agreement.
“[Defense Counsel]: You went to Mr. Morlock’s window because you wanted to obtain the lease agreement; correct?
“[Cocking]: That’s correct.
“[Defense Counsel]: All right. But while there, you asked much more than just, ‘May I have the lease agreement,’ correct?
“[Cocking]: That’s correct.
“[Defense Counsel]: All right. Further delaying the stop or allowing him to leave. There is delay there, correct?
“[Cocking]: Just getting information while he was reaching and finding the rental agreement, I was asking those questions.” (Emphasis added.)
The panel majority effectively admitted that Cocking’s request to see die rental agreement and Morlock’s hunt for it are undeniably permissible incidents of the routine traffic stop. See United States v. Brigham, 382 F.3d at 507-08 (no constitutional impedí ment to an officer requesting to examine driver s license, vehicle registration, or rental papers); United States v. Garcia, 167 Fed. Appx. 737, 740 (10th Cir. 2006) (finding no violation in asking passenger for registration papers after determining driver could not show he was “entitled to operate the vehicle”); cf. State v. Moore, 283 Kan. 344, Syl. ¶ 4 (officer conducting routine traffic stop may request drivers license and vehicle registration as proof that driver is entitled to operate the vehicle).
Because the three questions were asked during the concededly legitimate hunt for the agreement, they could not have “measurably extended” the stop. Arizona v. Johnson, 555 U.S. 323, 172 L. Ed. 2d 694, 129 S. Ct. 781 (2009) (questioning passenger and subsequent patdown performed concurrent with another officer s obtaining from driver his license, registration, and insurance); see Alcaraz-Arellano, 441 F.3d at 1259 (because trooper wrote warning ticket in patrol car while asking driver questions not limited to travel plans and vehicle ownership, no extension); United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001) (question regarding weapons did not extend the duration of the stop because was asked while officer was still writing out the citation and awaiting the results of a computer check); United States v. Crain, 33 F.3d 480, 485 (5th Cir. 1994) (“[w]hen questioning takes place while officers are waiting for the results of a computer check — and therefore does not extend the duration of the stop — the questioning does not violate Terry”).
We acknowledge that the record is not ciystal clear on whether Cooking’s question — why after flying to Phoenix Morlock was instead driving a rental van back to Kansas City — was asked concurrent with the search for the rental agreement or after Cocking reviewed it. But assuming the question was asked later, we observe that Cocking, the trial judge, and Judge Leben all found the one-way aspect of the rental as contributing to reasonable suspicion. See United States v. Wood, 106 F.3d 942, 946-47 (10th Cir. 1997) (unusual travel plan or inconsistent information can contribute to reasonable suspicion); cf. United States v. Bradford, 423 F.3d 1149, 1157-58 (10th Cir. 2005) (reasonable suspicion based in part upon “the financial illogic of purchasing a series of one-way plane tickets and one-way car-rentals”). The mere use of rental vehicles, one-way or otherwise, has been considered as contributing to reasonable suspicion because they are “often used by narcotics traffickers.” United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007).
We agree with Judge Leben’s analysis, particularly given Cocking’s testimony that based upon his training and education, drug smugglers “fly down,” rent a car, pick up the drugs, and then transport the drugs. “ ‘That’s definitely a warning sign that should go off in your head about drug interdiction.’ ” 40 Kan. App. 2d at 258. Judge Leben ultimately gave considerable weight to Cocking’s testimony about the “fly, then rent” factor, emphasizing Cocking’s overall law enforcement experience, especially his recent experience with drugs. As we ruled in State v. Moore, an appellate court makes its determination on whether reasonable suspicion exists “with deference to a trained law enforcement officer’s ability to distinguish innocent and suspicious circumstances [citation omitted], remembering that reasonable suspicion represents a ‘minimum level of objective justification’ which is ‘considerably less than proof of wrongdoing by a preponderance of the evidence.’ ” 283 Kan. at 354.
In short, the five travel questions — asking O’Kelly and Morlock each how long they had been in Phoenix and why they were there, and asking Morlock why after flying there he was instead driving back — were constitutionally permissible.
IV. Warrants check on Morlock
The panel majority in the instant case additionally disapproved of Deputy Cocking taking passenger Morlock’s driver’s license to his patrol vehicle and also then using it to check for outstanding arrest warrants on his computer. Judge Leben disagreed because Morlock’s “claim about the warrant check is precluded by recent United States Supreme Court cases interpreting the Fourth Amendment.” 40 Kan. App. 2d at 237. We agree with Judge Leben that these particular Cocking actions were constitutionally permissible. Specifically, any extension of the stop was based upon Cocking’s reasonable suspicion. See Moore, 283 Kan. at 350 (appellate court reviews to determine if substantial competent evidence supports the district court findings but reviews de novo the legal conclusion — reasonable suspicion — as a question of law).
An officer is not required to disregard information which may lead him or her to suspect independent criminal activity during a traffic stop. When “the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.” United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993); see also United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (When officers develop reasonable, articulable suspicion of criminal activity during a traffic stop, they have “ ‘ “justification for a greater intrusion unrelated to the traffic offense” ’ ” and are “permitted To graduate their responses to the demands of their particular situation.’ ”).
As an aside, we observe that the fact the computer checks eventually turned up no outstanding warrants does not automatically mean that Deputy Cocking lacked legally sufficient suspicion to conduct the checks in the first place. See United States v. Jenson, 462 F.3d 399, 404 (5th Cir. 2006).
Cocking testified without refutation that before he asked the two travel questions of O’Kelly that the panel majority disapproved, he was aware of previous narcotics arrests on Highway 54. He also found “the nervousness” suspicious. He testified that he noticed O’Kelly’s nervousness — shaking and trembling, dropping his license into his lap, and almost dropping it to the ground when handing it to Cocking. He did admit, however, that some young drivers, like O’Kelly, may be nervous when stopped by an officer. The trial court noted O’Kelly’s nervousness as contributing to its ultimate determination of reasonable suspicion to extend the stop. Judge Leben acknowledged its appearance in the reasonable suspicion calculus. See Moore, 283 Kan. 344 (driver’s nervousness can contribute to reasonable suspicion). Cocking also noticed Morlock, whose identity was yet unknown, looking straight ahead at the dash while Cocking talked to O’Kelly. He testified that he found Morlock’s behavior odd. See United States v. Brigham, 382 F.3d at 508 (officer’s “increasing suspicion was also fueled by . . . [driver’s] . . . avoidance of eye contact”).
Cocking testified, also without refutation, that he then learned the following: the van was rented, it was rented by O’Kelly’s father, and the father was the one staring intently at the dash. Judge Leben especially branded Morlock’s lack of paternal reaction as strange and suspicious: “What dad would rigorously try to avoid eye contact with the officer by only looking forward when his [16-year-old] son had been pulled over?” 40 Kan. App. 2d at 256.
Cocking testified to other factors that contributed to his reasonable suspicion. These factors included the later-learned discrepancy about where the van was rented. Morlock told Cocking the van was rented in Phoenix, but the rental papers showed Tucson, which Judge Leben noted was 116 miles from Phoenix. When Cocking asked Morlock why he would fly to Phoenix and rent a van from Tucson, he explained that “he got it at the Phoenix/Tucson Airport” and “[i]t’s all right there in one location, and that’s where we rented the vehicle.” Based upon Cocking’s testimony, the trial judge found these both aroused Cocking’s suspicions and thus contributed to the judge’s eventual finding of reasonable suspicion. Judge Leben found this explanation merely poured gasoline on Cocking’s “inferno of suspicion.” 40 Kan. App. 2d at 257; cf. State v. DeMarco, 263 Kan. 727, 739, 952 P.2d 1276 (1998) (discrepancies in travel plans can contribute to reasonable suspicion); United States v. McRae, 81 F.3d 1528, 1534-35 (10th Cir. 1996) (apparent contradiction between dates on defendant’s car rental agreement and alleged travel plans contributed to reasonable suspicion).
Cocking further found suspicious the discrepancies on whether father and son were going to see Morlock’s girlfriend or simply a woman Morlock met on the internet, and whether they actually saw the woman. O’Kelly told him they were in Phoenix “visiting his dad’s girlfriend” while Morlock said they “didn’t make contact with” the internet woman. The trial judge found the uncertainty about Morlock’s relationship with the woman an inconsistency that contributed to Cocking’s suspicion. Judge Leben also found the inconsistency significant. See United States v. Zubia-Melendez, 263 F.3d 1155, 1162 (10th Cir. 2001) (dubious or inconsistent answers can contribute to reasonable suspicion).
When Cocking appropriately asked Morlock why — after flying to Phoenix — he instead rented a van to return to Kansas City, Morlock replied he did not have the money to buy plane tickets. Cocking additionally found suspicious the combination of “taking a one-way flight to Phoenix to visit a woman but then not make contact at all,” and then renting a van to return to Kansas City because of a money shortage. 40 Kan. App. 2d at 256. Cocking testified he believed that one-way vehicle rentals are very expensive too: it “would cost just as much to fly back.” The trial judge found both factors contributed to his finding reasonable suspicion, first noting that “this person was not even contacted in Phoenix, even though they traveled all the way from Kansas City to Phoenix for that stated puipose.” Judge Leben agreed. As mentioned, the trial court next noted “the one-way rental agreement” supported his finding of reasonable suspicion, and Judge Leben found this fact particularly significant, given Cocking’s testimony based upon his training and education about the drug smugglers’ “fly, then rent” method. Cf. United States v. Bradford, 423 F.3d at 1157-58 (reasonable suspicion based in part upon “the financial illogic of purchasing a series of one-way plane tickets and one-way car-rentals”).
Cocking also testified that the short duration of the trip contributed to his suspicion, particularly given the flight to Phoenix and the driving of an expensive rental van back to Kansas City 2 days later. Short duration was acknowledged by Judge Leben as a factor in the calculus, and we agree. 40 Kan. App. 2d at 256; see United States v. Contreras, 506 F.3d at 1036 (Contreras drove 1,200 miles to see her family, only to turn around within a day and begin the 1,200 mile drive back — “seemed suspicious at best and incredible at worst.”); United States v. Alcaraz-Arellano, 441 F.3d at 1260 (implausible travel plans can form a basis for reasonable suspicion).
We conclude as a matter of law that this information known to Cocking, coupled with his 15-year experience in law enforcement and recent experience with drug interdiction, is sufficient to justify taking Morlock’s license to the patrol vehicle and using it to run a warrant check. See Moore, 283 Kan. 350 (appellate court reviews to determine if substantial competent evidence supports the district court findings but reviews de novo the legal conclusion — -reasonable suspicion — as a general question of law). We expressly do not consider in our calculus the factor of the four bags in the van, only because as the panel majority pointed out, Cocking acquired that information after he had already decided to take Morlock’s license to his patrol vehicle.
Finally, Morlock’s counsel has submitted a letter under Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47) contending that a July 17, 2009, opinion of the Court of Appeals, State v. Diaz-Ruiz, 42 Kan. App. 2d 325, 211 P.3d 836 (2009), contains persuasive rationale. Morlock argues that Cocking faded to comply with the legal statement contained in that opinion’s Syl. ¶ 1 which provides:
“When analyzing whether an officer’s actions have exceeded the scope or duration of a traffic stop, the court considers whether the officer diligently pursued a means of investigation that was likely to confirm or dispel the officer’s suspicions quickly, during which time it was necessaiy to detain the defendant.” 42 Kan. App. 2d 325, Syl. ¶ 1.
More particularly, Morlock argues that Cocking did not “diligently” pursue the investigation to “quickly” address his suspicions because he did more than simply obtain O’Kelly’s driver’s license, run a computer check on him, and write a citation.
Morlock’s contention is best addressed by simply noting we earlier held that Cocking developed increasing amounts of suspicion during the stop. This warranted his continued investigation which resulted in an increase in detention length. We cannot say Cocking failed to diligently pursue his investigation to quickly address his suspicions, especially when, as Judge Leben points out, the entire stop took only 12 minutes. See 40 Kan. App. 2d at 243.
The decision of the Court of Appeals is reversed. The decision of the district court is affirmed.
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The opinion of the court was delivered by
Price, J.:
From a very sketchy and confusing record as shown by both the abstract and counter-abstract in these consolidated cases, it appears that on June 17, 1959, the county attorney of Sedgwick county issued a subpoena duces tecum directing Thomas R. Brunner to appear before such official and to produce books, accounts and records belonging to or concerning the Aero Club, Inc., and the Key Club, Inc., for which organizations Brunner was the accountant. The reason for this was that the county attorney wanted to inspect the records in connection with prosecutions against the two clubs for alleged law violations. On the same day it appears that sheriff’s deputies went to Brunner’s home, where he maintained his office, and Mrs. Brunner turned over various copies of records and accounts to them.
The next day, June 18th, each of the two clubs filed an action in replevin against the county attorney, an assistant county attorney, and an assistant attorney general, seeking recovery of the copies of the records turned over to the officers by Mrs. Brunner.
On June 26, 1959, both cases were heard by the court, at which time Brunner testified. At the conclusion thereof the court denied replevin and entered judgment for defendants. Each of the plaintiffs has appealed, and the cases were consolidated for hearing in this court.
Plaintiffs do not complain about the issuance of the subpoena duces tecum, and neither do they complain about the holding of an “inquisition” — if in fact one was held. Their complaint is that once the “inquisition” had been completed the books and records should have been returned to their owners, and that the law-enforcement officials should not be permitted to retain the records in their possession indefinitely.
It would serve no useful purpose to set out the testimony of Mr. Brunner. The gist of it is that he was the accountant for each of the clubs and prepared his work sheets from the club’s records. From the record presented, it is not clear whether a so-called “inquisition” was held concerning the operations of the clubs. The counter-abstract contains portions of evidence introduced in a criminal prosecution had in December, 1959, which apparently arose out of alleged law violations by the clubs, but which, of course, has absolutely nothing to do with the cases before us, which were decided on June 26, 1959.
Because of the nature of the record presented in these appeals we feel that we are not called upon to discuss questions pertaining to inquisitions, the right of law-enforcement officials to obtain possession of business records in cases such as these, and of the' right to bring a replevin action against such officials to recover possession of records.
The firmly-established rule in this state, as elsewhere, is that on an appeal error in the court below is never presumed, and the burden is on an appellant to establish affirmatively that error was committed. (See Hatcher’s Kansas Digest, Revised Edition, Appeal and Error, Sec. 408.) In neither of the cases before us has it been made to appear that in its judgment of June 26, 1959, the trial court committed error in denying replevin, and as to each case the judgment is therefore affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action from the sentence imposed by the district court of Atchison County, Kansas.
In proceedings regularly conducted before the district court the appellant, thirty-five years of age, represented by court-appointed counsel, pleaded guilty to the charge of burglary in the second degree with the commission of larceny. Without objection evidence of two prior felony convictions was admitted: (1) Conviction under the Dyer Act of the Federal Government in 1942 and subsequent confinement in the Federal Reformatory in Chillicothe, Ohio; and (2) conviction for burglary with commission of a larceny and subsequent confinement at the Kansas Penitentiary in Lansing. Upon this evidence the trial court found defendant had two prior felony convictions. It thereupon sentenced the appellant to be confined for thirty years in the State Penitentiary pursuant to G. S. 1949, 21-523, 21-524 and 21-107a, and Laws of 1957, Chapter 331.
After pronouncing sentence the trial court said:
“. . . Now the Court in passing this sentence, has doubled the maximum penalty for burglary and commission of larceny. Court had a choice of sentencing you from fifteen years to fife. The Court has chosen not to give you life imprisonment but to give you double penalty for a crime of which you have had a second violation.”
The appellant assigns as errors: (1) The trial court did not fix a minimum term of sentence; (2) the trial court erred in transcribing proceedings from the reporter’s records to the journal entry; and (3) the trial court sentenced the defendant as a one-time felon.
The sentence pronounced by the trial court is in compliance with the statutes it cited, and in compliance with G. S. 1949, 21-109, which reads:
“Whenever any offender is declared by law punishable, upon conviction, by confinement and hard labor for a term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed; but no person shall in any case be sentenced to confinement and hard labor for any term less than one year.”
Under the above quoted statute, the provision for a minimum sentence of not less than fifteen years in the habitual criminal act (G. S. 1949, 21-107a) for a third felony conviction has been construed to allow sentence for life or for any number of years not less than the prescribed minimum. (Fitzgerald v. Amrine, 154 Kan. 209, 117 P. 2d 582; State v. Liebeno, 163 Kan. 421, 183 P. 2d 419; Newman v. Hudspeth, 166 Kan. 244, 199 P. 2d 810; Aldrich v. Hudspeth, 166 Kan. 553, 203 P. 2d 135; Jamison v. Hudspeth, 168 Kan. 565, 213 P. 2d 972; and Plasters v. Hoffman, 180 Kan. 559, 305 P. 2d 858.)
The sentence given the appellant is therefore in compliance with the statutes cited by the trial court. Such statutes are also properly cited in the journal entry.
The appellant’s assignments of error (2) and (3) stem from a misconstruction of the statement made by the trial court after pronouncing sentence and merit no further consideration. The court’s reasoning for sentencing the appellant to thirty years does not affect the validity of the sentence in this case.
The order of the trial court sentencing the defendant to be confined for thirty years in the state penitentiary is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is a breach of contract/mortgage foreclosure case. The district court granted judgment in favor of the plaintiffs and the defendants appealed. The Court of Appeals dismissed the appeal as interlocutory and we granted review. The facts are;
On January 3,1977, the appellees (“Sellers”) contracted to sell certain real estate located in Ford County to the appellants (“Buyers”) for $60,600. The property subject to the contract was identified by a preliminary plat and was described in the contract as “[l]ots 1, 2 and 3, Block 11; Rollie Dee Hills Addition, except all minerals will be reserved.” The Buyers paid $5,000 down and $10,000 upon approval of title with the balance of $45,600 to be paid in annual installments of $3,000 and payments to continue “until streets and utilities are available and installed to the lots or until the total amount is paid,” some fifteen years hence. The contract further provided:
“The total unpaid balance shall be payable when streets and utilities are available and installed to the lots; provided however, in no event shall the entire balance be payable before December 1, 1978. The streets and utilities shall be installed prior to the expiration of this contract.” (The entire contract is set out later in our discussion of the issues.)
The Buyers hired attorney Harry Waite to examine the abstracts covering the subject property. Mr. Waite’s opinion, dated February 15, 1977, included the following statement:
“Although the plat showing the subdivision of a part of the quarter section into lots and blocks has not been recorded in the office of the Register of Deeds, such plat is fully prepared and is going through the process of approval by the city before it is filed in the office of the Register of Deeds. The fact such plat is not yet recorded is of no real significance at this time.”
No final plat was ever approved or recorded in the register of deeds office.
The Buyers made annual payments until February 20, 1984, at which time they stated they wanted to pay off the contract and requested information from the Sellers as to (1) when the final plat would be recorded; (2) when the streets and utilities would be installed; and (3) when commercial zoning would be verified. In a letter dated March 7, 1984, the Sellers responded that the items mentioned by the Buyers “were all met” at the time the papers were placed in escrow. The Sellers further advised the Buyers that if they wished to pay the contract in full, they need only take the money to the bank and pick up the deed. The Buyers ceased making payments upon the contract after receiving the Sellers’ response.
The Sellers brought the present action on November 29, 1984, seeking judgment for the unpaid indebtedness, plus interest, costs, and taxes. The Sellers further requested the court to foreclose the real estate contract as a first mortgage lien and enter an order directing a sheriff s sale of the property. The Buyers answered, raising numerous equitable defenses, and counterclaimed.
The district court ruled in favor of the Sellers on May 24, 1985, ordering judgment in the amount of the unpaid contract balance ($27,600) plus interest. The court further held the Sellers were “entitled to a decree foreclosing the contract as a first and prior mortgage.”
The Buyers filed a notice of appeal with the district court on June 19, 1985.
In an unpublished per curiam opinion dated May 29,1986, the Court of Appeals dismissed this case for lack of jurisdiction. The court held that because the order of sale and order confirming sale were never filed, there was not a final judgment upon which an appeal could be based. The court further directed the trial court to make “explicit findings as to the legal description of the real estate to be foreclosed.” We granted review.
The first issue presented for review is whether an order of judgment in a mortgage foreclosure action is a final judgment which may be appealed.
The Buyers argue that an order of judgment in a mortgage foreclosure action is a final judgment which may be appealed from because the rights of the parties have been settled and nothing remains to be done but to have the sale and pay out the proceeds.
In support of this argument, the Buyers cite Ex Parte Norton, 108 U.S. 237, 27 L. Ed. 709, 2 S. Ct. 490 (1883). There, the United States Supreme Court held that in foreclosure proceedings a decree is final for purposes of an appeal which settles every question in dispute between the parties and leaves nothing to be done but to complete the sale under the proceedings for foreclosure and hand over the surplus as the decree directs.
Although this court has not directly ruled upon the issue presented here, the case of Miller v. Rath, 173 Kan. 192, 244 P.2d 1213 (1952), is relevant. In Miller, this court held that a decision by the trial court finding the lien of a judgment creditor superior to the lien of the plaintiff was not a final judgment. The court reasoned there was no final judgment because “[t]here was no determination of amounts due any litigant, or of the priority of claims of any other defendant in the action.” 173 Kan. at 194. This holding implies that a final judgment in a foreclosure action consists of a determination as to the amounts due litigants and the priority of claims. These determinations were made and included in the journal entry of judgment in the present case. Judgment was entered against the Ruyers in the amount of $27,600 plus interest. The unfinished task was that of collecting the judgment. The rights of the parties were determined.
The Court of Appeals determination that there was no final order in this case is in conflict with the decisions of courts of other jurisdictions and with the views expressed by various commentators.
For instance, in Shuput v. Lauer, 109 Wis. 2d 164, 325 N.W.2d 321 (1982), the Supreme Court of Wisconsin held that a judgment of foreclosure and sale is a final judgment appealable as of right which must be appealed within the time prescribed by statute. Thus, the court ruled that where the mortgagors failed to appeal from a judgment of foreclosure and sale and did not contest the later order of confirmation, the mortgagor could not challenge the judgment of foreclosure and sale in the appeal from the order confirming the foreclosure sale. The court noted at pages 173-74:
“Our holding in this case is also in accord with the views expressed by the commentators and with the decisions of courts in other jurisdictions. There is general agreement that the judgment of foreclosure and sale is a final decree; that the proceedings subsequent thereto relating to the sale are analogous to the execution of a judgment and simply enforce the parties’ rights which have been adjudicated; that a party who wishes to contest the judgment of foreclosure and sale must appeal from that judgment; that the judgment of foreclosure and sale cannot be challenged on appeal from an order confirming the sale; and that on an appeal from an order confirming the sale an aggrieved person may challenge the regularity of the proceedings subsequent to the judgment of foreclosure and sale.”
Further, in MDG Supply v. Diversified Inv., 51 Hawaii 375, 463 P.2d 525 (1969), cert. denied 400 U.S. 868 (1970), the Supreme Court of Hawaii held that a judgment of foreclosure of mortgage or other lien is final although it contains a direction to make a report of sale and to bring the proceeds into court for an order regarding their disposition. The court reasoned that such a judgment finally determines the merits of the controversy, and subsequent proceedings are simply incident to its enforcement. 51 Hawaii at 380.
At 59 C.J.S., Mortgages § 685, p. 1242, it is stated:
“A judgment or decree of foreclosure, directing a sale of the mortgaged property, is generally regarded as a final judgment or decree, and its finality is not affected by the failure of the judgment to dispose of other asserted liens. It is final in so far as it determines the rights of the parties, the amounts to be paid, and as to the award of a personal judgment and the granting of a lien; and, when the judgment or decree grants a time to redeem, the day of the expiration of such time is the day of final judgment. It is executory and interlocutory as to the order directing the manner of sale and the proper distribution of the proceeds thereof.”
We hold the district court made a final determination with respect to the rights of the parties, the amounts to be paid, and the priority of claims. Accordingly, the Court of Appeals erred in dismissing this case for lack of jurisdiction.
We now turn to the merits of the case. The Ruyers seek rescission of the real estate contract on the theory of failure of consideration and breach. They contend the Sellers were required to record a formal plat on the property described in the contract and that the Sellers agreed to install streets and utilities prior to expiration of the contract, none of which has been done as agreed. They also contend the Sellers’ actions in orally promising to comply with the contract, then refusing to do so, amount to fraud. They argue the contract is ambiguous and thus they are entitled to introduce parol evidence to show the oral representations of the Sellers.
Let us now examine the contract which is the subject of this litigation. It provides in pertinent part:
“First Parties agree to sell and convey to Second Parties, and Second Parties agree to purchase and pay for the following described real estate in Ford County, Kansas:
‘Lots 1, 2 and 3, Block 11, Rollie Dee Hills Addition, except all minerals will be reserved,’
upon the following terms and conditions.
“PRICE. A total price of $60,600.00.
“TIME AND MANNER OF PAYMENT. The price shall be paid as follows:
“A) $5,000.00 down to be paid to the escrow agent at the time of the execution of this contract.
“B) $10,000.00 upon approval of title, at which time the $5,000.00 down payment shall also be páid to First Parties. The parties contemplate approval of title by February 15, 1977.
“C) The then balance of $45,600.00 to be paid in annual principal payments of $3,000.00 each, to be made February 15, each year, with the first payment on February 15, 1978.
“Unpaid balances shall bear interest at the rate of 9% per annum, commencing February 15,1977. Accrued interest will be paid each year at the time paymént is made on principal.
“The annual payments of principal and interest shall continue until streets and utilities are available and installed to the lots or until the total price is paid.
“The total unpaid balance shall be payable when streets and utilities are available and installed to the lots; provided however, in no event shall the entire balance be payable before December 1, 1978. The streets and utilities shall be installed prior to the expiration of this contract.
“After December 1, 1978, Second Parties may prepay all or any part of the unpaid balance without penalty.
“For the purpose of this contract, the word ‘utilities’ means gas, water, electricity, sewer and telephone.
“Conveyance shall be by general warranty deed subject to restrictions and excepting all mineral rights. It is agreed that commercial use of the property shall not be prohibited.”
The Buyers first allege the subject matter of the contract is not “definite enough” to make the contract enforceable. Their argument pertains to the first paragraph of the real estate contract, which describes the subject property by reference to the unrecorded preliminary plat.
In support of their contention, the Buyers rely on Luthi v. Evans, 223 Kan. 622, 629, 576 P.2d 1064 (1978). There, we held that in recording instruments of conveyance, a description of the property conveyed is considered sufficient if it identifies the property or affords the means of identification within the instrument itself or by specific reference to other instruments recorded in the office of the register of deeds.
The Buyers argue that since the plat is unrecorded, nothing in the contract or deed affords a means of identifying the subject property. Further, the Buyers point out that no document in the register of deeds’ office would identify the property. They argue that only if the Sellers had recorded the plat could the subject matter be identified.
First, we note that our holding in Luthi is inapplicable here because the issue in Luthi concerned the type of description necessary in a recorded instrument to impart notice to a subsequent purchaser or mortgagee. Here, the issue is simply whether a contract and deed containing a description by reference to an unrecorded plat is valid. The general rule with regard to this issue is stated at 23 Am. Jur. 2d, Deeds § 62, p. 116:
“It is not necessary to the validity of a description in a deed by reference to a map or plat that the map or plat referred to be registered. Nor is the validity of the description destroyed because the recorded map of reference should not have been accepted by the recorder.”
K.S.A. 12-405 states:
“If any person sell or offer for sale any lot within any city, town or addition before the map or plat thereof be made out, acknowledged, filed and recorded as aforesaid, such person shall forfeit a sum not exceeding three hundred dollars for every lot which he or she shall sell or offer to sell.”
A predecessor to this statute was interpreted in Bemis v. Becker and others, 1 Kan. 226, 249 (1862). There, we held that a sale of city lots before the plat had been recorded was not void, and title in the lots sold passed to the vendee. See also Mead v. United Brethren, 43 Kan. 178, 23 Pac. 103 (1890), and Annot., 77 A.L.R.3d 1058.
Here, the preliminary plat was prepared by a licensed engineer, furnished to the Buyers, and filed and approved by the Planning Commission. Under the circumstances of this case, we hold the description of the subject property by reference to the unrecorded plat did not invalidate the contract nor make it ambiguous.
The Buyers next assert error in the trial court’s finding that the record contains no evidence of fraud or undue influence.
The Buyers argue they relied to their detriment upon fraudulent statements allegedly made by the Sellers concerning the recording of the final plat. As evidence of fraud, the Buyers point to the title opinion which stated the plat was fully prepared, was in the process of approval by the City, and would be recorded with the register of deeds. They also rely on statements allegedly made yearly by the Sellers that the plat would be recorded and “the project completed” within the following year. The Buyers conclude that these statements were known to be untrue by the Sellers and were made with the intent to deceive.
When reviewing the trial court’s findings with respect to fraud, we must keep in mind that the existence of fraud is ordinarily a question of fact and this court’s review is limited to determining whether the trial court’s findings are supported by substantial competent evidence. Bank of Whitewater v. Decker Invest ments, Inc., 238 Kan. 308, 710 P.2d 1258 (1985). Further, fraud is never presumed and must be proved by clear and convincing evidence. Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980).
The Buyers have failed to prove fraud by clear and convincing evidence and the trial court’s ruling is correct.
The next issue is whether the trial court erred in finding the contract was clear and unambiguous. If the contract is unambiguous there is no basis for considering extrinsic evidence offered by the Buyers regarding conversations and agreements which were not part of the written contract.
Under the parol evidence rule, if a written contract is ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are relevant to clarify intent and the purpose of the contract in that regard, but not for the purpose of varying and nullifying its clear and positive provisions. Cline v. Angle, 216 Kan. 328, 532 P.2d 1093 (1975). Stated another way, the parol evidence rule excludes from evidence any oral testimony which would tend to add to, subtract from, or alter the terms of a clear and unambiguous written contract. Temmen v. Kent-Brown Chevrolet Co., 217 Kan. 223, Syl. ¶ 3, 535 P.2d 873 (1975); McBride Electric, Inc. v. Putt’s Tuff, Inc., 9 Kan. App. 2d 548, 555, 685 P.2d 316 (1984). Further, the language in a contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in the sense that the contract may be understood to reach two or more possible meanings. Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 4, 512 P.2d 442 (1973).
When these general rules are applied to the contract in question, the contract is clear and unambiguous, except for the provision hereinafter set out. The Sellers clearly are obligated to install the streets and utilities to the property. The contract clearly provides the Buyers are to make annual payments of $3,000 per year plus interest on the contract “until streets and utilities are available and installed ... or until the total price is paid.” The Buyers have a complete prepayment privilege after January 1, 1978. Further, the contract unambiguously states that once the streets and utilities are available and installed, the total unpaid balance becomes due. However, the contract also provides, “The streets and utilities shall be installed prior to the expiration of this contract.” This can be interpreted to mean the Buyers, by exercising their prepayment privilege, can accelerate the time the Sellers have in which to install streets and utilities, dr it can mean that the Sellers have the full installment payment period of fifteen years to discharge their obligation to install streets and utilities.
Thus, we hold the contract is ambiguous only as to the time when the Sellers must install the streets and utilities. Therefore, we conclude this case should be remanded to the trial court and the Buyers permitted to introduce parol evidence for determination of when the Sellers are obligated to install the streets and utilities on the subject property.
We further note that while the contract does not require the Sellers to record the plat, in order to install streets and utilities, the Sellers will have to obtain the City government’s approval and record a final plat. Thus, a provision requiring the recording of the final plat need not be explicitly set out in the contract. It is implicitly included therein.
The Buyers next contend their action in halting payment on the contract was justified because the Sellers committed an anticipatory breach of the contract. The Buyers argue this breach occurred when the Sellers responded to the Buyers’ offer to pay the contract in full by stating that they (Sellers) had no further obligations under the contract and the Buyers need only pay the balance remaining on the contract to receive the deed.
We have held that where it is clear one party to a contract is going to be unable to perform, the other party need not wait for the date when performance is due to treat the contract at an end and pursue his remedies. Whiteley v. O’Dell, 219 Kan. 314, 317, 548 P.2d 798 (1976).
The theory of anticipatory breach of contract is further discussed at 17 Am. Jur. 2d, Contracts § 449, pp. 912-13:
“Nearly all the courts considering the question have reached the conclusion that a renunciation or repudiation of a contract before the time for performance, which amounts to a refusal to perform it at any time, gives the adverse party the option to treat the entire contract as broken and to sue immediately for damages as for a total breach. ... If the injured party does not wish to bring such an immediate suit for damages, he may elect between two other alternatives — that is, (1) to treat the contract as still binding and wait until the time arrives for its performance by the promisor, and at such time to bring an action on the contract, or (2) to rescind the contract and sue for money paid or the value of services or property furnished.”
In the present case, the Buyers did not sue immediately for damages or rescind the contract and sue for money paid. Nor did they treat the contract as still binding and wait until the time arrived for performance before bringing an action. Instead, when the Sellers notified the Buyers that they (Sellers) had fulfilled their obligations under the agreement, the Buyers simply ceased making payments upon the contract.
Thus, we conclude the Buyers failed to make the election necessary to treat the renunciation as a breach. However, the Buyers were lured by the Sellers’ anticipatory breach into halting their installment payments. The Sellers are not entitled to profit from their own wrongdoing. They are required to come into a court of equity with clean hands. This they did not do.
We are aware that the agriculture and energy recession has caused a dramatic decline in the value of real estate in Ford County. This decline in value is undoubtedly a causation factor in this dispute. However, the recession does not change the terms of the contract. The Sellers are entitled to the benefit of their bargain and the Buyers are entitled to receive the commercial property they contracted for. The remedy at law is inadequate. Since both the Buyers and the Sellers seek equitable relief, we deem this an appropriate case to fashion an equitable remedy.
It is stated at 27 Am. Jur. 2d, Equity § 70, p. 593:
“While equity does not make contracts for parties, it enforces contracts which parties make for themselves. Since there is no adequate remedy by an action at law in such respect, a court of equity, in the furtherance of justice, may compel a party to a contract to do that which ought to be done and which was contemplated at the time the agreement was entered into. A court of equity may decree that a party perform obligations of a contract within a fixed time upon pain of forfeiture. The jurisdiction of equity to grant specific performance of contracts, or to reform or cancel them in a proper case, is well settled.”
If the trial court, upon remand, determines the Sellers agreed to install the streets and utilities and record the plat upon prepayment of the full purchase price, the Buyers shall be given a reasonable time to pay into court the balance owed, including interest and taxes, and the Sellers given a reasonable time to record the plat and install the streets and utilities. If the Buyers do not comply, the Sellers shall have foreclosure. If the Buyers comply and the Sellers refuse, the Buyers shall have rescission with full restitution.
On the other hand, if the court finds the Sellers have the full deferred payment period to comply with their unfullfilled obligations under the contract, the court shall then give the Buyers a reasonable time to bring their payments under the contract current and the annual installments shall continue until the purchase price is paid. Since the cost of installing the streets and utilities to the property according to City specifications could cost more than the balance owed on the contact, the balance owed on the contract shall be paid into the court, or its designee, and there accumulated until the Sellers have fully complied with the terms of the contract. If the Buyers do not bring the contract current within a reasonable time, the Sellers shall have foreclosure. If the Buyers comply with the court’s order and the Sellers do not install the streets and utilities and file a plat within the deferred payment period, the Buyers shall have rescission with full restitution.
The judgments of the Court of Appeals and the district court are reversed and this 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
Herd, J.:
This case requires construction and interpretation of a written contract. The plaintiff/appellant, Wood River Pipeline Company (Wood River), appeals from the district court’s grant of summary judgment in favor of the defendant/appellee, Willbros Energy Services Company (Willbros).
On July 27, 1980, Wood River and Willbros entered into a contract in which Willbros agreed to build 109.5 miles of 24-inch pipeline from Rethany, Missouri, to Mason City, Iowa. The contract expressly provided the pipeline was to be built in a right-of-way easement owned by Williams Pipeline Company. Further, the pipeline was to be built approximately 10 feet from and generally parallel to the Williams pipelines located in the same easement.
The contract was typewritten with the exception of paragraph 2.03 of section 3, which was handwritten and inserted by the parties on the date the contract was executed. The clause, which is the subject of this litigation, provides:
“2.03 All settlements by company [Wood River] of claims in the name of contractor [Willbros] shall be based on substantial evidence of contractor’s liability that the claims are valid and are reasonable in amounts.
“Contractor shall not be liable under any circumstances or responsible to company for consequential loss or damages of any kind whatsoever including but not limited to loss of use, loss of product, loss of revenue or profit. RW 7/27/80
GB 7/27/80”
On January 20, 1982, the pipeline built by Willbros for Wood River ruptured at a point southeast of Des Moines, Iowa. Wood River filed a three-count petition on September 29, 1983, seeking over $1 million in damages resulting from the rupture of the pipeline and alleging the rupture was caused by the negligence, breach of implied warranties, breach of express warranties, and breach of contract by Willbros. In count III of its petition, Wood River sought damages to real property at the site of the oil spill, the costs of replacing oil lost in the spill, the costs of repairing the pipeline, and the costs of recovering oil spilled.
Approximately one and a half years after Wood River brought suit, Willbros filed a motion for partial summary judgment, claiming that Wood River’s claims for damages contained in count III of the petition, except its claim for the cost of repairing the pipeline, were precluded by paragraph 2.03 of section 3 of the contract.
On October 9, 1985, the district court granted partial summary judgment and held that paragraph 2.03 of section 3 of the contract is clear and unambiguous and bars liability on the part of Will-bros for consequential damages resulting from the pipeline rupture. The parties later settled their differences regarding count I and count II, and the cost of repairing the pipeline set forth in count III of Wood River’s petition. To reflect this settlement, a journal entry of dismissal with prejudice was filed on April 18, 1986. Thus, Wood River appeals only from the journal entry of partial summary judgment entered on October 9, 1985.
The first issue on appeal is whether the trial court properly determined the contract was clear and unambiguous and that Wood River’s claims for consequential damages were thus barred as a matter of law.
We recently restated the “fundamental legal concepts” to be applied where the rights of parties relative to the terms of a written agreement are in controversy:
“The doctrine has been well established and frequently applied that where parties have carried on negotiations, and have subsequently entered into an agreement in writing with respect to the subject matter covered by such negotiations, the written agreement constitutes the contract between them and determines their rights. [Citations omitted.] The interpretation of a written contract which is free from ambiguity is a judicial function and does not require oral testimony to determine its meaning. [Citations omitted.] Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. [Citation omitted.] If a written contract is actually ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard but not for the purpose of varying and nullifying its clear and positive provisions.” Hall v. Mullen, 234 Kan. 1031, 1037, 678 P.2d 169 (1984).
Thus, we must first apply the pertinent rules of interpretation to determine whether the contract in question is free from ambiguity. If we hold the contract is ambiguous, then we can consider extrinsic evidence to determine its meaning.
In the instant case, both parties argue the contract is unambiguous. However, they place conflicting interpretations upon paragraph 2.03 of section 3 of the contract. Thus, our interpretation of this provision is the crux of this case.
Paragraph 2.0 of section 3 is of particular importance and is quoted in full here:
“2.01 Contractor shall defend, protect, indemnify and save Company harmless from and against all claims, demands and causes of action of every kind and character arising in favor of any person, including Contractor, Company’s employees, Contractor’s employees, or other persons, on account of personal injuries or death or damage to property in anywise incident to or arising out of the work performed by Contractor hereunder (except normal damages to growing crops and timber on Company’s right-of-way, incident to laying or taking up a pipeline, lia-
[Paragraph 2.03 is inserted, handwritten, at this point in the original contract.]
bility does not arise out of the Company’s sole negligence. Contractor further agrees to pay Company for damages to its property and to indemnify and hold Company harmless against the payment of any and all taxes, penalties, interest, liens or indebtedness or claims against its property, or for work performed, or measured by the work performed, growing out of or incident to Contractor’s operations hereunder.
“2.02 With respect to all claims for damage to property of every kind, Company may settle any claim at any time or may turn any claim over to Contractor for disposition as follows:
“1. Company may settle any claims in the name of Contractor which, in Company’s opinion, are valid and reasonable; all other claims shall be turned over to Contractor for disposition under the terms of Subparagraph (2) below.
“2. If, within 20 days after any claim has been turned over by Company to Contractor for disposition, settlement has not been made or litigation has not been commenced, Company may notify Contractor that Company believes that the failure to settle such claim will harm its relations with the claimants, or others; if, within 10 days after such notice, settlement has not been made or litigation has not been commenced, Company may settle such claim.
“3. If such settlement is made by Company, Company will charge to Contractor the amount of such settlement and expenses, including attorney’s fees, which have been incurred by Company; Company may at any time, deduct the amount of such settlement and expenses from any sums due Contractor under the Contract Documents or, upon Company’s written demand, Contractor shall immediately reimburse Company in full for such amounts which Company has incurred, and such expenses which Company has incurred in connection with such settlement.
“4. If any claims are not settled by Company or by Contractor, at Contractor’s own expense, Company may, at any time, hold back from sums due to Contractor under the Contract Documents amounts sufficient, in the judgment of Company, to cover payment of court judgments in connection with such claims together with all court costs, attorney’s fee and any other items of cost which might be incurred by Company in connection therewith.
“a. All injuries to persons including fatal injuries and death.
“b. All damages caused as a result of fences, gates, and gaps left open or insecurely closed in connection with the Work including all damages to or damages caused by livestock and claims and demands with respect thereto.
“c. All damages done to all roads, railroads, and bridges or any other such structures.
“d. All damages claimed to have arisen out of Contractor’s disposition of, or failure to dispose of, rock disturbed by Contractor’s performance of the Work.
"e. All other damages to property, including ways of ingress and egress and claims and demands with respect thereto except necessary and unavoidable damages to crops, timber, land and improvements with the confines of the construction right-of-way furnished by Company; provided however', that Contractor shall be liable for all damages to lands lying within or without the construction right-of-way which are claimed to have arisen out of Contractor’s disposition of (or failure to dispose of) any rock, trees or brush disturbed in Contractor’s performance of the Work.
“This paragraph 2.0 shall apply to and be construed to include, but is not limited to, injuries or damages occasioned by failure of or use or misuse of any and all kinds of equipment, whether owned or rented by Contractor or furnished by any subcontractor.
“2.03 All settlements by company of claims in the name of contractor shall be based on substantial evidence of contractor’s liability that the claims are valid and are reasonable in amounts.
“Contractor shall not be liable under any circumstances or responsible to company for consequential loss or damages of any kind whatsoever including but not limited to loss of use, loss of product, loss of revenue or profit. RW 7/27/80
GB 7/27/80”
The handwritten addition (2.03) was initialed and dated by both Roger Williams (Wood River’s president) and Gary Bracken (Willbros’ vice president).
Wood River contends section 2.03 places two restrictions upon Wood River’s right to settle third-party claims on behalf of Willbros. First, it claims all settlements of third-party claims made by Wood River on behalf of Willbros must be based upon substantial evidence of Willbros’ liability and must be valid and reasonable in amount. Second, it claims it is precluded from settling, on behalf of Willbros, third-party claims involving “consequential loss or damages of any kind.” Wood River thus believes paragraph 2.03 applies only to damage claims made by third parties and does not preclude Willbros’ liability for claims made by Wood River on its own behalf for damages occurring from the pipeline rupture.
Wood River bases its argument primarily upon the enumeration and structure of paragraph 2.03. Wood River argues the first sentence of 2.03 qualifies the exculpatory language found in the second sentence of the paragraph. Thus, according to Wood River, the phrase in the second sentence providing Willbros shall not be liable to Wood River for consequential loss or damages of any kind applies only to settlement of third-party claims. Further, Wood River argues the parties purposely numbered the paragraph in question as 2.03 so it would follow paragraph 2.02, which does not discuss damage claims by Wood River against Willbros and specifically deals with third-party right-of-way claims.
Willbros, on the other hand, argues the second sentence of paragraph 2.03 means exactly what it says — that Willbros cannot be held responsible to Wood River for consequential loss or damages of any kind whatsoever. Willbros contends that under the agreement it clearly remains liable for actual damages — e.g., the cost of labor and materials to repair a ruptured pipeline — but it is excluded from liability to Wood River for consequential damages.
Willbros contends Wood River improperly refers to the “first and second sentences” of paragraph 2.03 because 2.03 actually consists of two distinct subparagraphs. Willbros reasons the first handwritten subparagraph of 2.03 clearly modifies paragraph 2.02 while the second handwritten subparagraph of 2.03 modifies 2.01. Willbros notes that in paragraph 2.01, Willbros agrees to pay Wood River for damages to Wood River’s property. Thus, Willbros reasons the second subparagraph in 2.03, which provides Willbros is not liable to Wood River for consequential damages, is a specific modification of the general statement in 2.01. Further, Willbros argues the first paragraph of 2.03 clearly refers to the settlement procedure for third-party claims discussed in 2.02, and thus was intended as a modification of 2.02.
The district court held the contract was clear and unambiguous and that 2.03 precludes Willbros’ liability to Wood River for consequential damages resulting from the pipeline’s rupture. The court, in granting partial summary judgment, reasoned the contract plainly and inclusively states that the contractor (Will-bros) shall not be liable under any circumstances. The court further reasoned the term “consequential damages” is a term which typically applies to the type of damages obtained from breach of contract and not damages arising out of tort activity. Finally, the court noted these clauses (2.01 through 2.03) were bargained for by two large and sophisticated companies, each acting through experienced persons.
In determining whether the contract in question is ambiguous, we are not limited to reviewing the district court’s conclusions. Rather, we have the same opportunity to consider and evaluate the evidence as did the district court. Hall v. Mullen, 234 Kan. at 1035. However, after examining the document from its four corners, we conclude the contract is clear and unambiguous.
Several rules of construction with respect to written contracts are relevant to our analysis. First, words cannot be written into the agreement imparting an intent wholly unexpressed when it was executed. Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978). The intent of the parties and the meaning of a contract are to be determined from the plain, general, and common meaning of terms used. Johnson v. Johnson, 7 Kan. App. 2d 538, 542, 645 P.2d 911, rev. denied 231 Kan. 800 (1982). Second, in construing a written instrument, language used anywhere in the instrument should be considered and construed in harmony with all provisions and not in isolation. Kennedy v. Classic Designs, Inc., 239 Kan. 540, 722 P.2d 504 (1986). Further, doubtful language in a contract is construed most strongly against the party preparing the instrument or employing the words concerning which doubt arises. First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 104, 309 P.2d 389 (1957). And finally, if a handwritten provision conflicts with a typewritten or printed provision, the handwritten provision controls. Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976); Hanscome v. Coppinger, 183 Kan. 623, 626, 331 P.2d 590 (1958).
With these rules in mind, we turn to the contract between Wood River and Willbros. First, an examination of the handwritten addition to the contract clearly reveals the drafters intended paragraph 2.03 be separated into two distinct subparagraphs. Further, the second handwritten sentence of 2.03, when given its plain and ordinary meaning, clearly limits Willbros’ liability to Wood River for consequential damages. This handwritten provision controls and modifies the printed provision in 2.01 whereby Willbros agrees to pay Wood River for damages to Wood River’s property.
The principle that doubtful language in a contract is construed against the drafter is of little consequence here because of the particular circumstances of this case. While the entire printed contract was prepared by Wood River, the particular paragraph in question (2.03) was drafted by Willbros. Moreover, both parties agreed prior to execution of the contract to write the provision into the contract and initial the modification. Further, Wood River was aware, sometime prior to the execution of the contract, that Willbros wanted the information contained in 2.03 to be added to the contract. Finally, as noted by the trial court, these clauses were bargained for by two large and sophisticated companies of equal bargaining power, each acting through experienced persons. Under such circumstances, the fact that the provision in question was drafted by Willbros is of no particular consequence and the language should not necessarily be construed against Willbros.
For the reasons given, we hold the contract precludes Will-bros’ liability to Wood River for consequential loss or damages resulting from the rupture of the pipeline.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the verdict of a jury and judgment of the trial court entered thereon in favor of plaintiff in an action commenced against defendant as a comaker of two promissory notes.
On January 11, 1958, plaintiff filed her petition containing a first cause of action based upon a promissory note dated September 30, 1936, in the sum of $1,000, signed by defendant and her husband, Iris Pendleton, as comakers, and a second cause of action based upon a promissory note dated August 1, 1950, in the sum of $1,-139.50, also signed by defendant and Iris, as comakers.
Plaintiff’s petition alleged that from September 30, 1936, to December 27, 1952, the following payments were made on the $1,000 note:
“September 30, 1936, $20.00; November 10, 1936, $20.00; June 5, 1937, $5.00; January 1938, $5.00; February 11, 1938, $5.00; April 1938, $5.00; January 9, 1943, $1.00; January 26, 1943, $20.00; January 19, 1948, $10.00; December 27, 1952, $1.00.’’
Under her second cause of action plaintiff alleged two payments were made by defendant’s husband, Iris; that the first in the sum of $10.00 was made on February 6, 1951, and the other in the sum of $5.00 on December 3, 1955.
Defendant’s answer of April 3, 1959, admitted the dates, amounts and executions by her and Iris Pendleton as comakers of the notes but denied that she had known of any payments Iris had made on the notes, and further denied that she had known of, authorized, directed, consented to, acquiesced in, or ratified any alleged payments of principal or interest by Iris or any other person. Defendant further alleged the two causes of action were barred by the five-year statute of limitations. (G. S. 1949, 60-306.) Thus were the issues joined which are now before us for appellate review.
On March 15,1960, the trial commenced before a jury, and plaintiff, testifying in her own behalf, caused photostat copies of the faces of the two notes to be admitted without the endorsements. When she undertook to testify that she had received payments on the $1,000 note, the following multiple objection to prevent her from answering was immediately lodged:
“We object to the competency of this witness to testify about any transaction had with the deceased person; and for the further reason that it’s hearsay, self-serving declarations, and not in the presence of this defendant, and not binding upon this defendant.”
The trial court overruled this objection.
Plaintiff finally testified that the first payment on the $1,000 note in the sum of $20.00 was dated September 30, 1936, to which the defense immediately objected for the same reason above set out, and asked that it be understood the same objection went to all similar questions without separate objection being made to each one. The trial court ordered the record to show the objection and also to show they were overruled.
To avoid repetition on the competency phase of this objection, we shall dispose of it now. G. S. 1949, 60-2804, provides:
“No person shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person, where either party to the action claims to have acquired title, directly or indirectly from such deceased person, or when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner. . . .”
The foregoing is defendant’s authority for her argument that to establish the payments on the notes made by Iris, her deceased husband, conversations and transactions between plaintiff and Iris had to be shown by plaintiffs testimony and this the statute made her incompetent to do.
The plain and simple answer to defendant’s contention is that the defendant was sued on the notes because she was a cosigner thereof and not because she was clothed with one of the capacities set forth in 60-2804. It was never the legislative intent that 60-2804 be used as a defense in this kind of case and no decision of this court is cited by either party, nor have we found any, which upholds such a theory. Defendant cites many of our decisions but a cursory examination of them shows they fall directly and completely within 60-2804 but that the par-ties had no such relationship as the parties here. Therefore, the trial court was correct in admitting the endorsements on the reverse side of the notes as they were set forth in the petition.
Although plaintiff could successfully show the endorsements as reflecting dates and amounts of payments made by Iris on the notes, the other basic question remains to be determined. This question was raised early in the case by defendant’s demurrer to plaintiff’s evidence. Did the defendant authorize or ratify the payments by Iris as payments by her?
After establishing the dates and amounts of payments made by Iris, as above stated, plaintiff testified as follows:
“Almost everytime after the first few payments I would have to call. Sometimes Mrs. Pendleton would answer the phone.
“I know it was Mrs. Pendleton because we chatted for a short time. Mrs. Pendleton would ask me regarding my father’s health.
“It was always at her home when I would talk to her about the notes. I would not be able to fix the time exactly, but the greater number of times he came over at my calling.
“I recall, I think, this ’48 one. He gave me the receipt at the schoolhouse. He came there instead of going to my home.
“Quite often, Mrs. Pendleton would answer the phone. On this particular date, I think Mrs. Pendleton answered the phone.
“Q. Do you know whether she did or not?
“A. I think — I feel that I — I recall that she did, I will say, because I do remember our conversation.
“Q. Just tell us what was said.
“A. ‘The time is drawing near for the payment of interest on these notes,’ or these — ‘What is your — What idea do you have in regard to taking care of payments on these notes?’, or ‘The interest is about due’—
“A. (Continuing) — ‘and I would like to have some action.’
“Q. What did she say?
“A. She said, T will talk with Mr. Pendleton.’ If Mr. Pendleton were there, he always came to the phone.
“A. He always came to my home immediately.
“Q. What dates did you call, approximately?
“A. I don’t recall the dates I called. When the notes were about to expire, I would call.
“Iris Pendleton died November 6, 1956. It was the end of November that I went to — visit Nelle Pendleton.
“At her home on East 21st Street. Mr. R. D. Cahney took me there in his car. Mrs. Pendleton and her sister from Texas was there. After a short conversation in generalities with Mrs. Pendleton concerning her husband’s passing. And after a little while I spoke to her in regard to the notes.. Mrs. Pendleton said that she had nothing, she couldn’t do anything then.
“She said she was aware of her obligation. She said I have nothing. That is all the conversation we had at the time.
“She hoped in time it might be worked out. She did not elaborate on that statement.
“I saw Nelle Pendleton in the late spring of 1958 in the hallway of the second floor of the old court house after office hours. Either 5 or 5:30. People were leaving their offices. I waited. I had a conversation with her at this time. It was longer than the other one. It was more pointed.
“I asked Mrs. Pendleton if she did recall the telephone calls I had made in regard to the notes. She said ‘yes’ or at least she agreed with me. I reminded her that periodically I had called her in regard to the payment of these notes, when the interest was due and that she had answered and that Mr. Pendleton had come many times by her telling him. I asked her if she did not feel a moral obligation in regards to these notes. And she said ‘yes’, and was agreeable and, T do.’
“Q. Did she deny those payments of interest?
“A. Mrs. Pendleton at no time denied or protested.
“Q. To what?
“A. To the statements I made.”
For purposes of continuity and comparison, we desire to point out that this is the second appearance of this case on appeal. The first (Fisher v. Pendleton, 184 Kan. 322, 336 P. 2d 472, 74 A. L. R. 2d 1274) was from a ruling on a demurrer to the petition. That opinion reflects that the allegations of the petition were much stronger than the evidence deduced by plaintiff’s testimony, as above quoted. This is not an unusual situation in appeals before this, or any other, appellate court. However, while evidence may not support each and every allegation of a petition, the rule of the degree of proof necessary to support findings of fact made by a jury, as stated and applied in the early case of C. B. U. P. Rld. Co. v. Hotham, 22 Kan. 41, is as follows:
. . even where there is no dispute about the facts in their details, still; if they are stated or proved in such limitless, cumbrous or diffusive detail that different minds of reasonable capacity might honestly differ with respect to whether they in fact constitute or prove negligence or not, the question as to whether they do in fact constitute or prove negligence or not, must be submitted to the jury as a question of fact.” (Syl. f 3.)
In determining the sufficiency of plaintiff’s evidence to establish ratification or authorization on the part of defendant of the payments by Iris to plaintiff, thus tolling the statute of limitations (G. S. 1949, 60-306), the oft-stated and familiar rule is here applied that for the purpose of rendering a decision on the merits of an action when, as here, plaintiff’s evidence has been demurred to, this court reviews only the sufficiency of the evidence and does not weigh it, which duty is identical with that of the trial court. Plaintiff’s evidence shall be considered as true and only that part favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, shall be considered. Any evidence unfavorable to plaintiff shall be disregarded, neither contradictory parts nor differences between direct and cross-examination may be weighed, and plaintiff’s evidence is to be liberally construed with all doubt resolved against defendant. Accordingly, if, after such consideration, there is any evidence in this record which supports, or tends to support, plaintiff’s claim of defendant’s ratification or authorization of the payments on the notes by her cosigner, the statute of limitations was tolled by those payments. (Milwaukee Ins. Co. v. Gas Service Co., 185 Kan. 604, 608, 347 P. 2d 394; Sneed v. KFH Building, Inc., 186 Kan. 255, 257, 349 P. 2d 950.)
The following statement appears in plaintiff’s brief:
“Although there is no direct evidence that the defendant specifically knew of and consented to the last payments made on each note, there is ample evidence upon which to base a finding that the defendant knew of and consented to each and every payment made. The defendant either knew about a payment being made as the result of a personal telephone call or she knew, as wives almost always do, why and where her husband was going after receiving a telephone call — a presumption unusually strong in this case inasmuch as the evidence disclosed no other business transactions between the parties.” (p. 16.)
There appears to be no question but that defendant had no actual or specific knowledge of, or that she directed, ordered, or actually or specifically consented to, the last payments made by Iris on the notes, which are the only payments that could toll the statute of limitations. However, that does not end our inquiry because there is yet the question of whether there was any evidence that she ratified the payments, and especially the last ones, listed on the back of the notes which payments were made by Iris as before stated.
What does the evidence show? Plaintiff would call the Pendleton home, defendant often answered the telephone and Iris would come to the phone, or he would come over to plaintiff’s home to make some payment on the notes and interest. Those portions of plaintiff’s testimony heretofore quoted show that when plaintiff called by telephone, she told defendant why she was calling. She talked about the notes and about the fact that the time was drawing near for.payment of interest on the notes. She inquired if defendant had any ideas in regard to taking care of payments on the notes and mentioned that the interest was about due and that she, the plaintiff, would like to have some action. Defendant would answer that she would talk with Iris, and if he did not immediately come to the phone, he would come to plaintiff’s home where he would make a payment. In late November, after Iris’ death on November 6, 1956, the conversation between the parties at the Pendleton home occurred and the conversation between them in the spring of 1958 at the old courthouse also occurred, which strengthens plaintiff’s evidence given by her in her earlier testimony regarding the telephone conversations.
Defendant protected her demurrer to plaintiff’s evidence by moving for a directed verdict after she introduced her evidence. Defendant’s evidence did not make up for any deficiencies there may have been in plaintiff’s evidence. The trial court overruled the motion and instructed the jury. The jury answered special questions as follows:
“1. Did Iris Pendleton make a one dollar payment on December 27, 1952, on tbe note marked Exhibit 3? A. Yes.
“2. If your answer to Question No. 1 was yes, then state if the defendant, Nelle Pendleton, knew and consented to, authorized or ratified such payment. A. Yes.
“3. If your answer to Question No. 2 was yes, then state in what manner you find that the defendant, Nelle Pendleton, knew and consented to, authorized or ratified such payment. Make your answer specific. A. By signing the note and acknowledging telephone calls which establish that a payment was necessary to be made to forestall legal action.
“4. Did Ibis Pendleton make a five dollar payment on December 3, 1955, on the note marked Exhibit 4? A. Yes.
“5. If your answer to Question 4 was yes, then state if the defendant, Nelle Pendleton, knew and consented to, authorized or ratified such payment. A. Yes.
“6. If your answer to Question No. 5 was yes, then state in what manner you find that the defendant, Nelle Pendleton, knew and consented to, authorized or ratified such payment. Make your answer specific. A. By signing the note and acknowledging telephone calls which establish that a payment was necessary to be made to forestall legal action.
“7. Did Ibis Pendleton make the other payments of principal and/or interest on the two promissory notes designated Plaintiff’s Exhibits 3 and 4, as alleged by plaintiff? A. Yes.
“8. Did the plaintiff at any time state to the defendant that she had received payments on said notes from defendant’s husband? A. No.”
Since defendant’s evidence did not aid plaintiff, if there was any evidence to support the jury’s special findings, which were consistent with the general verdict for plaintiff on both causes of action, and upon which the trial court entered its judgment for $1,953.00 with 5% interest on the first cause and $1,443.66 with 4% interest on the second cause, this court will not disturb the judgment on appeal. (Killough v. Swift & Co. Fertilizer Works, 154 Kan. 113, 114 P. 2d 831; 2 West’s Kansas Digest, Appeal and Error, §§ 994 [2, 3], 1001, 1002, and 1003; 1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, §§ 495,496.)
Plaintiff cites Gorrill v. Goff, 148 Kan. 765, 84 P. 2d 953, 124 A. L. R. 223, where the court in interpreting payment under G. S. 1949, 60-312 made this very clear statement:
“. . . the particular form of acknowledgment, known as payment, is not required to be in writing. The reason is obvious. Payment is an executed acknowledgment and speaks for itself. It requires no writing to establish it.” (p. 770.)
Plaintiff also cites Ellis v. Snyder, 83 Kan. 638, 112 Pac. 594, where it was stated:
“A husband and wife executed a note secured by mortgage on their land, and the husband thereafter died, having previously conveyed the title to his wife. The widow rented the farm to her son-in-law, and during such tenancy the widow died. The son-in-law, with his wife, continued in possession of the farm, and before expiration of five years from the maturity of the note made a small payment on the debt. They continued in possession for a number of years, until this action to foreclose the mortgage was brought, with the acquiescence of the brothers and sisters of the wife; and her husband, with her consent, made several payments upon the indebtedness and paid the taxes on the land, all of which payments were made from the proceeds of crops raised upon the land. No interval of five years elapsed between such payments. He neither paid nor contracted to pay any rent to any of the heirs. Held, that such payments prevented the running of the statute of limitation in favor of any of the heirs against the mortgage debt.” (Syl. ¶ 1.)
At page 640 of the above opinion, we find it was, in substance, stated that although Elizabeth (daughter of mortgagors) had objected to her husband’s plan to buy out her brothers and sisters and to pay off the mortgage given by her father and mother, she nevertheless cosigned chattel mortgages on growing crops to carry out the plan and knew generally of the payments her husband made so that from the general findings of the judgment against Elizabeth, it had to be assumed that she had acquiesced in his plan. Although the evidence was said to be conflicting, it was held to be sufficient to support such a finding with the result that the payments in effect were made in Elizabeth’s behalf as well as that of her husband and were in fact her payments as well as his. (See, also, in connection herewith Hayes v. Reid, 145 Kan. 51, 64 P. 2d 19.)
Rriefly stated, the pertinent events in our case are that Nelle signed the notes in question as comaker with Iris; she had telephone conversations with plaintiff from time to time prior to Iris’ death and personal conversations occurred between plaintiff and defendant in 1956 and 1958 wherein the notes, interest, etc., were mentioned; as a result of the telephone conversations Iris would appear at plaintiff’s home, make the payments and plaintiff would credit them on the reverse sides of the notes; Nelle thereby had knowledge generally of the payments having been made. From the special findings of the jury it must, therefore, be assumed that the jury found she acquiesced in or orally ratified those payments.
The conclusion is that the evidence was sufficient to support the jury’s findings, the verdict, and the judgment thereon by the trial court. Other questions and contentions of defendant need not be separately decided since they have already been answered by statements made herein.
Judgment affirmed.
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The opinion of the court was delivered by
Herd, J.:
Stan Martin, as administrator for the Estate of Rory Lane Hanschu, appeals from the district court’s determination that the former administratrix, Lisa Hanschu, is liable for the value of property converted after the death of the decedent.
Rory Lane Hanschu died intestate on December 4, 1980, leaving as his sole heir his wife, Lisa Renee Hanschu. At the time of his death, Hanschu owed $40,662.85 to the Ramona State Bank (bank). Lisa Hanschu was not a signatory to this indebtedness.
Between December 1980 and April 1981, Lisa Hanschu sold marital assets totalling $34,884.61 without authority. She paid approximately $20,000.00 of the proceeds to the bank to reduce the balance of Rory Hanschu’s debt to $20,770.43.
On August 17, 1981, the bank filed a petition for the appointment of an administrator in the estate of Rory Lane Hanschu, and made demand upon the estate for the remaining indebtedness owed to the bank.
Lisa Hanschu was appointed as administratrix of her husband’s estate on September 23, 1981. On September 25, 1981, letters of administration were granted to her after she posted a surety bond for $30,000 provided by Trinity Universal Insurance Company (Trinity).
In her original inventory and valuation filed January 27, 1982, the administratrix showed the total value of the estate as $43,980.82. On November 22, 1982, Lisa Hanschu filed an amended inventory showing the value of the estate as $25.00. The balance of the property shown as estate assets on the original inventory was listed as joint tenancy property on the amended inventory.
The bank later filed a petition for removal of the administratrix. After a hearing, the court determined the evidence failed to establish that the property included in Lisa Hanschu’s amended inventory was owned in joint tenancy. The court further found the administratrix sold all of the assets of the estate (except one pickup truck) without court approval in violation of K.S.A. 59-2242 et seq. Accordingly, the district court held Lisa Hanschu’s actions constituted a significant breach of her fiduciary duty and granted the bank’s petition to have her removed as administratrix of her husband’s estate.
Stan Martin was later appointed administrator of the estate. Martin then petitioned on behalf of the estate for an order compelling Lisa Hanschu and/or her bonding company (Trinity) to pay the proceeds from the sale of the personal property owned by the estate to the estate.
The district court held that Lisa Hanschu, as administratrix of the estate, converted estate property valued at $34,884.61 to her own use. The court thus determined, pursuant to K.S.A. 59-1704, that Lisa Hanschu was liable to the estate in the amount of $69,769.22. (K.S.A. 59-1704 provides that once a conversion by a fiduciary is found, the fiduciary shall be liable for double the amount converted.) The court further found that Trinity was liable on its bond for only $950.00, the value of estate property converted after the appointment of Lisa Hanschu as administratrix.
Martin, as administrator of the estate of Rory Lane Hanschu, appeals.
The sole issue on appeal is whether a surety on an administrator’s bond may be held liable for assets converted before the issuance of a bond and/or prior to the appointment of an administrator.
While we find no Kansas cases directly on point, this court has, on numerous occasions, considered the nature and extent of a surety’s liability on a bond. In McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892 (1902), the court held the time intended to be covered by a bond must be determined by its terms and when it appears that a bond is intended to be retrospective in its operation as well as prospective, such effect must be given to it. Further, in Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 400, 507 P.2d 189 (1973), the court determined that under principles of general contract law the obligation of a bond is to be measured by the bond itself and may not be extended by implication or enlarged by construction beyond the terms of the executed contract. Finally, we have held a surety bond is to be considered in light of the circumstances in which it is given, so as to effectuate its purpose. Local No. 1179 v. Merchants Mutual Bonding Co., 228 Kan. 226, 229, 613 P.2d 944 (1980).
An examination of these cases leads us to conclude that, unless the contract otherwise provides, a surety’s liability on a probate fiduciary bond is limited to acts of the fiduciary occurring after the bond is issued.
This conclusion is consistent with the general rule regarding the liabilities of sureties on a probate fiduciary bond:
“Sureties on an administration bond have a right to stand strictly upon the contract, and neither the courts nor the parties can vary the contract. In the absence of a statute or a stipulation in the bond to the contrary, the liability of a surety on an executor’s or administrator’s bond is coextensive with that of the principal for losses occasioned by official acts and defaults of the principal.” 31 Am. Jur. 2d, Executors and Administrators § 141, p. 86.
Thus, to determine Trinity’s liability for the acts of LisaHanschu occurring prior to the filing of the surety bond, we must examine the specific terms of the surety agreement.
The relevant portion of the surety bond provides:
“THE CONDITION OF THE ABOVE OBLIGATION IS SUCH, That whereas, the said Lisa Renee Hanschu has been, by the Probate Court of Dickinson County, Kansas, duly appointed Administratrix of the Estate of Rory Lane Hanschu.
“NOW, THEREFORE, if the said Lisa Renee Hanschu shall faithfully discharge all of the duties of her trust according to law, then the above bond to be void, otherwise to remain in full force and effect.”
The appellant contends Trinity is liable under this agreement for misappropriation of funds by Lisa Hanschu occurring prior to the filing of the bond. Trinity, on the other hand, contends the use of the term “shall faithfully discharge” indicates the parties intended Trinity’s liability be limited to future actions of the administratrix.
The wording of the bond limits Trinity’s liability. Under the agreement, if Lisa Hanschu faithfully discharges the duties of her trust according to law, then Trinity has no liability; otherwise, Trinity is liable. Lisa Hanschu had no duties of trust until she qualified as administratrix. Accordingly, we hold Trinity is not liable for the conversion or misappropriation of funds by Lisa Hanschu occurring prior to her appointment as administratrix and prior to the filing of a bond.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff Atchison County Farmers Union Cooperative Association (Co-op) appeals the Atchison County District Court decision allowing the defendant, Raymond Turnbull, to set off his Co-op equity credit account against an open account indebtedness he owed to the Co-op.
The Co-op is a non-profit association organized under K.S.A. 17-1601 et seq. Headquartered in Atchison, Kansas, the Co-op provides services to approximately 2,000 members. Turnbull has been a member of the Co-op since 1965 and regularly purchased farm goods and materials on an open account.
Profits made by the association from member businesses are returned to the individual member on a pro rata basis of his business to that of the total membership. The profit allocations are either cash patronage refunds or are credited to the member’s equity credit account. As a member, Turnbull received both cash patronage refunds and credits to his equity credit account. In 1983 his equity credit balance with the Co-op was $17,332.98. In early 1983, Turnbull ceased farming operations and applied for liquidation of his equity account, but his request was denied by the Co-op Board of Directors.
In May of 1985, the Co-op filed suit to collect Turnbull’s unpaid open account debt of $11,673.04, with interest at the rate of 18 percent per annum. Turnbull counterclaimed, suggesting that his $17,732.98 in patronage dividends be set off against the balance due on his open account. Turnbull also claimed that the interest charged by the Co-op was usurious.
At trial, the general manager of the Co-op testified as to the structure of the Co-op and relevant provisions of the articles and bylaws. He stated that at the time Turnbull applied for payment of his equity account, there were no bylaw provisions or policies of the Board allowing liquidation, although the bylaws allowed the payment of equities at the death or retirement of a member.
The trial court granted the Co-op judgment on the open account debt and, based on the equitable principle of unjust enrichment, allowed Turnbull a setoff of his equity credits up to the amount of the Co-op’s judgment. The Co-op appeals, contending Turnbull’s equity credit account cannot be set off against the indebtedness owed.
The purpose of cooperative marketing is to promote the intelligent and orderly marketing of agricultural products through cooperation. It is designed to eliminate speculation and waste and to make distribution of agricultural products as direct as possible between producer and consumer. K.S.A. 17-1601. The paramount concern of such associations is to provide a means of marketing the products of their members, not the advancement of the individual members. Claassen, Executrix v. Farmers Grain Cooperative, 208 Kan. 129, Syl. ¶ 3, 490 P.2d 376 (1971).
Nonprofit cooperative associations are organized under the provisions of the Kansas Cooperative Marketing Act, K.S.A. 17-1601 et seq., to make profit for their members as producers. K.S.A. 17-1602. The affairs of cooperative associations are managed by boards of directors. K.S.A. 17-1611. The articles of incorporation and bylaws of an association provide the means to obtain the necessary funds or capital to pay the expense of operations and acquire property necessary to carry out its purposes. The bylaws may state the amount of annual dividends which may be paid on stock and the manner in which the remainder of the association’s profits shall be prorated in the form of patronage dividends to its stockholders. K.S.A. 17-1609.
Section 3 of Article IX of the Co-op’s bylaws provide that “the balance of the allocation due all members and associate members may be paid in cash, common stock, preferred stock, nonvoting associate membership certificates, equity credits or any combination thereof at the discretion of the board of directors.”
Section 8 of Article IX of the bylaws allows the establishment of an equity credit fund. Every patron eligible to receive a patronage allocation is required to contribute to the fund the net savings remaining in his credit after the payment of the cash allocations. The equity credit is equivalent to payment in cash to the fund and used as capital for the continued operation of the association.
The bylaws of the Co-op provide for the retention of up to 80 percent of the operating profits that are allocated to Co-op members in order to furnish capital for the Co-op. Each member of the Co-op is credited with his proportionate share of furnished capital on the books of the Co-op. This deferred patronage allocation is termed “equity credits” and may be paid out or redeemed only at the discretion of the board of directors.
Equity credits are not an indebtedness of a cooperative association which is presently due and payable to the members, but represent an interest which will be paid to them at some unspecified later date to be determined by the board of directors. Such equity credits represent patronage dividends which the board of directors of a cooperative, acting under statutory authority, has elected to allocate to its patrons, not in cash or other medium of payment, which would immediately take such funds out of the working capital of the cooperative, but in such manner as to provide or retain capital for the cooperative and at the same time reflect the ownership interest of the patron in such retained capital. 18 Am. Jur. 2d, Cooperative Associations § 23.
There are no Kansas cases discussing the right of a member of a cooperative association to set off equity credits against the member’s debts. In Claassen, Executrix v. Farmers Grain Cooperative, 208 Kan. 129, the executrix sought to recover a money judgment against Farmer’s Grain based on credits earned by the deceased during his lifetime as a member and patron of the cooperative association. The court noted that patronage ledger credits were different from stock purchased by a member and that their characteristics made them capital investments, as distinguished from debts. The court concluded since neither the articles of incorporation nor the bylaws of the defendant provided for a mandatory payment of the patronage ledger credits to a decedent’s estate, it was a matter of discretion with the board of directors whether to pay such. The executrix pointed out that the board had paid such credits to other estates. This court determined, however, that it could not substitute its judgment for the judgment of the board of directors and declined to become involved in the financial structure of the cooperative to determine whether the board of directors acted reasonably. For similar cases from other jurisdictions, see Howard v. Eatonton Co-op. Feed Co., 226 Ga. 788, 177 S.E.2d 658 (1970); Clarke County Co-op (AAL) v. Read, 243 Miss. 879, 139 So.2d 639 (1962); and Evanenko v. Farmers Union Elevator, 191 N.W.2d 258 (N.D. 1971). We have also refused to interfere on behalf of a dissatisfied stockholder with the discretion of the boards of directors of other types of corporations on questions of corporate management, policy, or business. Sampson v. Hunt, 233 Kan. 572, 584-85, 665 P.2d 743 (1983).
Bylaws of a cooperative association organized under K.S.A. 17-1601 et seq. are a contract between the cooperative and its members or stockholders and govern transactions between them. Equity credits constitute an interest of a stockholder of a coop erative association which is contingent and not immediately payable. The interest becomes vested when the board of directors, following the bylaws, exercises its sound discretion and determines that such payments can be made without causing undue financial hardship to the association. A member or a stockholder of a cooperative association is bound by the bylaws and cannot contend that when equity credits are allocated upon the books of the association that an indebtedness is created which can be used as a setoff against a debt the member or stockholder owes the association.
The bylaws of the Co-op provide that equity credit accounts of members may be retired for estate settlement purposes to those members attaining age 65 or to those members removing their farm operation from the Co-op’s trade territory. Turnbull argues, however, that principles of equity require that he be allowed to set off his credits against his debts because he last produced agricultural products in 1981. Prior to trial, Turnbull had lost his home and all of his farmland. His farm equipment was sold in March 1982.
The Kansas Code of Civil Procedure modified the general rule that, in order to be available as a setoff or counterclaim, a claim or demand of a defendant against a plaintiff must be due and owing at the commencement of the action. 20 Am. Jur. 2d, Counterclaim, Recoupment, Etc. § 57; 80 C.J.S., Set-off and Counterclaim § 29. A claim which either matured or was acquired by the pleader after serving the pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading. K.S.A. 1986 Supp. 60-213(e). This is based on the principle that all issues between the parties should be determined in one action. To allow a debt not maturing during an action to be set off against one already due would be to change the contract and advance the time of payment. Equitable setoffs of unmatured obligations may be allowed under special circumstances, such as insolvency of the obligor or probable difficulty in collecting the obligation at maturity, but such setoffs are largely within the court’s discretion.
In this case, the trial court relied on H. Freeman & Son v. Henry’s, Inc., 239 Kan. 161, 717 P.2d 1049 (1986), in finding that setoff applied to the present situation. In H. Freeman & Son v. Henry’s Inc., Henry’s ordered certain merchandise from the William B. Kessler Company, not knowing the supplier had filed for bankruptcy. At the time, Henry’s had a credit balance with Kessler in excess of the value of the goods ordered. Kessler had sold the distribution rights to that line of goods to H. Freeman & Son. Freeman filled the order and shipped the goods to Henry’s. Freeman later sued Henry’s for the cost of the goods. This court held that since Henry’s had no notice of the change in ownership and that it had a credit balance with Kessler at the time of the order which would have covered the cost of the goods, it would be inequitable for Henry’s to pay again for the merchandise.
An equitable setoff will be allowed when the party seeking it shows some equitable ground therefor, and it is necessary to promote justice, to avoid or prevent wrong or irremediable injustice, or to give effect to a clear equity of the party seeking it. There is some authority to the effect that the equitable grounds which will warrant overriding the statutory law have been limited to insolvency or nonresidence, but it is generally held that these are not the sole grounds. 80 C.J.S., Set-off and Counterclaim § 5.
The trial judge found it was inequitable for the Co-op to sue Turnbull on his debt and allow the Co-op to refuse to set off Turnbull’s equity credits against that debt. Adopting the principle of equitable setoff due to insolvency, the trial judge overrode the Co-op’s bylaws and the statutory law and allowed Turnbull to set off his equity credits against his debt to the Co-op. It is therefore necessary to determine whether the legislature has made a statement of public policy which prohibits the trial judge from overriding the statutory law and applying equitable principles.
In giving and withholding relief, courts of equity go much further in promoting of the public interest than when only private interests are involved. Accordingly, the granting or withholding of relief properly depends upon considerations of public interest. If the granting of relief to an individual will be prejudicial to the public interest, the public interest must be protected. “Public policy” is that principle of law which holds no individual can lawfully do that which has a tendency to be against the public good.
Permeating each of the conclusions in Claassen, Executrix v. Farmers Grain Cooperative, 208 Kan. 129, was the statement of public policy that cooperative marketing associations are fostered and encouraged by legislative enactment and judicial construction; that the inception of these organizations was deemed to be for the personal benefit of members only to the extent that the individual profited through the operation of the enterprise; and that the paramount concern was not the advancement of the individual interest as such. Furthermore, a member’s demand for service is responsible for the creation of a cooperative association and as a means of marketing his produce during the period of his membership, and there is no logical ground upon which a member should be permitted to withdraw his interest at the expense of disturbing the financial condition or the life of the association. 208 Kan. at 134.
It is the declared public policy of this state to encourage cooperative marketing associations. The trial judge could neither grant an equitable setoff to Turnbull nor substitute his judgment for the Co-op’s board of directors.
Turnbull filed a cross-appeal contending that the court erred in computing the interest on his indebtedness at a rate of 18 percent rather than the statutory rate of ten percent. Turnbull argues that he never contracted to pay the 18 percent rate and he, therefore, should not be liable for that amount.
Generally, the rate of interest is fixed by statute unless the parties have contracted for a different rate. K.S.A. 16-201. The mere statement of a charge in an invoice without evidence that the parties agreed to such a rate is not sufficient to establish a contract varying the rate of interest. Scott v. Strickland, 10 Kan. App. 2d 14, 24, 691 P.2d 45 (1984).
Each billing statement sent Turnbull by the Co-op stated that a finance charge of “1.50% per month which is an ANNUAL PERCENTAGE RATE of 18.00%” would be charged. In addition, the billing statements showed the member’s previous balance and current finance charge. The trial court found that there was an implied agreement to pay the 18 percent interest.
Contracts implied in fact are inferred from the facts and circumstances of the case and are not formally or explicitly stated in words. In an implied contract, one or more of the terms and conditions are implied from the conduct of the parties. See Williams v. Jones, 105 Kan. 282, 182 Pac. 391 (1919). A contract implied in fact arises from facts and circumstances showing mutual intent to contract. Mai v. Youtsey, 231 Kan. 419, 422, 646 P.2d 475 (1982).
In Jerry L. Phillips, Inc. v. Ratley, 6 Kan. App. 2d 157, 627 P.2d 339 (1981), Phillips had agreed to drill and equip two wells for Ratley. The wells were dry and Ratley refused to pay. Phillips sued, asking for damages for services and materials plus interest on the unpaid amount. The court said that an agreement to pay interest can be implied from (1) a seller’s notice to a buyer that interest will be charged on an unpaid account and (2) the buyer’s acquiescence.
In Johnson Tire Service, Inc. v. Thorn, Inc., 613 P.2d 521 (Utah 1980), the plaintiff initiated an action to recover the balance owing for tires purchased by the defendant on open account, together with interest and attorney fees. The court said that where the buyer received monthly statements which reflected the charging of interest at a rate of 18 percent per annum by the seller, and where the defendant made payments thereon, without objection, these facts were sufficient to establish a course of conduct, dealing, or performance which would imply an agreement to pay interest.
Here, Turnbull, who had stated his antipathy toward the interest rate to employees of the Co-op, was obviously aware of the 18 percent rate charged by the Co-op. He made one payment on his account, but contends that that was not sufficient to establish a course of dealing creating an implied contract. While Turnbull made only one payment, he did purchase items from the Co-op on more than one occasion. Under the circumstances, where Turnbull had knowledge of the credit terms and continued to do business with the Co-op, the trial court was correct in finding that Turnbull had impliedly agreed to pay the 18 percent interest rate.
Affirmed in part, reversed in part, and remanded with directions for the district court to enter judgment in accordance with this opinion.
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The opinion of the court was delivered by
Parker, C. J.:
This action, the aftermath of a workmen’s compensation proceeding, was instituted by the workman under the provisions of G. S. 1949, 44-512a, to recover the entire amount of compensation allowed by the Commissioner’s award because of failure of the employer, and its insurance carrier, to pay specified weekly installments of compensation when due and within two weeks after service of written demand for their payment. A trial by the court, after joinder of issues by appropriate pleadings, resulted in a judg ment for the employer and its insurance carrier from which the workman appeals.
The salient facts of record, which for all purposes here involved may be said to be uncontroverted, are highly important to a proper understanding, as well as a decision, of the appellate issues and for that reason should be detailed at length. In the interest of brevity, while stating the facts and in disposing of the issues, we shall refer to the workman as plaintiff and the employer as defendant throughout the course of this opinion. If specific mention of the defendant Insurance Company is required it will be referred to as the carrier. On April 28,1959, plaintiff was accidentally injured while employed by the defendant. A claim for workmen’s compensation was duly filed and came on for hearing before an Examiner on September 16, 1959. After the introduction of evidence, including the deposition of Dr. John Lance of Wichita, the cause was submitted to the Examiner for decision. Shortly thereafter the Examiner died. Thereupon- a further hearing was held before the Commissioner and the case was closed and submitted to that official for his decision on December 16, 1959.
Twenty-eight days after the case had been closed and submitted, to be exact on January 13, 1960, counsel for defendant notified plaintiff and his counsel by letter addressed to their respective places of residence at Hays that defendant had reserved an appointment for plaintiff with Dr. Lance (the physician who had testified at the prior hearing) at the Wichita Clinic for Tuesday, February 2, 1960, and in effect advised plaintiff that, pursuant to the provisions of G. S. 1959 Supp., 44-515, defendant was requiring plaintiff’s presence at Wichita on that date for further medical examination. In this connection, it should be noted, that this notice was dated two days prior to the date on which, under the law of this state (G. S. 1949, 44-523), the Commissioner was required to file the award which was submitted to him for decision on December 16, 1959, and that the date fixed by its terms for plaintiff’s appearance at Wichita (February 2) was eighteen days after the Commissioner, under the terms of the statute last mentioned, was required to have made such award. In further connection with this subject, it should also be noted, there is nothing whatsoever in the record to indicate the case before die Commissioner had been reopened for any cause, nor is it claimed the parties had agreed in writing to extend the time for the filing of the award or that either the plaintiff or the defend ant had reason to anticipate such award would not be made by the Commissioner within the required statutory time.
Following receipt of the notice last above mentioned plaintiff informed the defendant he would not appear for the medical examination at Wichita on the date therein mentioned and did not do so.
On February 5, 1960, the Commissioner made his award, based on the evidence submitted to him on December 16, 1959, wherein among other things, he found generally in favor of the plaintiff (then claimant in the compensation proceeding) and granted him an award of 416 weeks of temporary total disability at the rate of $34 per week plus certain medical allowances not here involved, subject to review and modification as provided by law; found that there was due and owing plaintiff as of February 2, 1960, the sum of $1326 which was ordered paid in one lump sum; and directed that the balance of the compensation should be paid at the rate of $34 per week or until his further order.
No appeal was ever taken from the award of the Commissioner and no motion for review or modification of such award, as authorized by G. S. 1959 Supp., 44-528, has ever been filed with the Commissioner.
On or about February 18, 1960, the accumulated sum of $1326, due as of February 2, 1960, plus certain medical payments, not here involved, were paid to plaintiff under the terms of the award. No compensation had been paid to plaintiff or medical furnished to him from the date of the injury until that time. No further payments have since been made. In other words all accrued compensation under the award was paid by defendant to the time of plaintiff’s refusal to report for further medical examination as required in the notice of January 13, 1960, and thereafter defendant unilaterally suspended compensation payments falling due under the terms of such award because of plaintiff’s failure to report for further examination.
On February 17, 1960, plaintiff made demand by registered mail for the payment of compensation which was due in weekly installments under the terms of the award, i. e., the payments due and payable as of February 9, 1960, and February 16, 1960. No payment of this compensation was made within two weeks from February 18, 1960, the date of service of such demand, whereupon, and on March 5, 1960, the instant action was filed under G. S. 1949, 44-512a to recover a judgment for a lump sum payment of the en tire amount of the award because of failure to make compensation payments as therein provided.
In the face of the foregoing uncontroverted facts of record, the trial court found the plaintiff was not entitled to recover a lump sum judgment for the entire amount of the existing award under the provisions of 44-512a, supra, because his right to payment of compensation had been suspended by operation of law under G. S. 1959 Supp., 44-515 and G. S. 1949, 44-518, at the time he served demand on the defendant on February 18, 1960, and rendered judgment accordingly.
The fundamental premise on which the trial court based the decision just mentioned is to be found in one of its conclusions of law, announced at the time of the rendition of the decision and subsequently included in its journal entry of judgment. Such conclusion of law reads:
“The request hy defendants upon plaintiff on January 13, 1960, for plaintiff to submit for medical examination to Dr. Lance on February 2, 1960, was made with what is tantamount to tender of the statutory expenses provided by G. S. 1959 Supplement 44-515, and was proper under G. S. 1959 Supplement 44-515. The refusal to comply by plaintiff effected a suspension of plaintiff’s right to payment of compensation until plaintiff shall submit to examination as provided by Sec. 44-518, G. S. 1949.” (Emphasis supplied.)
So far as here pertinent sections of the statute referred to in the above quoted conclusion provide:
“(a) After an injury to an employee, he shall, upon request of the employer, submit himself for examination at any reasonable time and place, to any one or more reputable physicians or surgeons selected by the employer, and shall so submit himself for examination thereafter at intervals during the pendency of his claim for compensation, upon request of the employer. . . .” (G. S. 1959 Supp. 44-515.)
“If the employee refuses to submit himself for examination upon request of the employer as provided for in section 15 [44-515] of this act, or if the employee or his physician or surgeon unnecessarily obstructs or prevents such examination by the physician or surgeon of the employer, the employee’s right to payment of compensation shall be and remain suspended until he shall submit to examination and until such examination shall have taken place, and no compensation shall be payable under this act during the period of suspension: . . .” (G. S. 1949, 44-518.)
Mindful that the provisions of the Compensation Act must be liberally construed in favor of the workman with a view of effecting their purpose (see, e. g., Ellis v. Kroger Grocery Co., 159 Kan. 213, 221, 152 P. 2d 860) and that their purpose is to secure prompt payment to an injured workman of the benefits provided for under its terms (see e. g., Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 289, 303 P. 2d 168), we have no difficulty in concluding that before the provisions of 44-515, supra, and for that matter its supplementing section (44-518, supra), become operative, the request of an employer for further examination of a workman must fix a reasonable time at which the workman shall appear for the examination. Moreover, we are convinced that the date fixed for the holding of an examination must be at a time when the examination itself would serve some useful purpose in effectuating the purposes of the proceeding then pending under the Act, otherwise the time fixed for the holding of such examination is not to be construed as having been at a “reasonable time,” within the meaning of those words as used in 44-515, supra. Indeed, such a conclusion is warranted under the clear and unequivocal language of 44-515, supra, providing for examination at any reasonable time, and the equally plain provisions of 44-518, supra, indicating that unless the employee refuses to submit himself for examination as provided for in section IS (44-515), the penalties prescribed by 44-518 have no application.
There may well be situations in future cases where questions as to whether an employer has requested an injured workman to submit himself for an examination at a “reasonable time,” within the meaning of that term as used in 44-515, supra, and as to whether an employee’s refusal to submit to an examination at such a time suspends his right to payment of compensation under an existing award, are questions of fact to be determined by the trial court on the basis of controverted evidence. That, however, is not the situation in the instant case. Here the evidence, and there was none to the contrary, is all to the effect that within two days from the date on which, under the statute (44-523, supra), the Commissioner was required to file his award the defendant notified the plaintiff to appear for a further medical examination, the date fixed for such examination being eighteen days after the Commissioner was required to hand down the award. At the time of such notification, as we have heretofore pointed out, no application had been filed with the Commissioner to reopen the case, the parties to the compensation proceeding had not agreed in writing to extend the time for the filing of the award and neither of them had any reason to believe the award would not be filed within the time required by law. Moreover, the parties knew that even if the plaintiff had appeared on February 2, 1960, as required in the notice of January 13, 1960, it was then too late for any medical testimony relating to his condition to be used in the proceeding which had been closed and finally submitted to the Commissioner for an award. They also knew, or if they did not know were bound to know, that unless otherwise changed by law, the obligation fixed by the terms of the award became final when it was rendered. (See Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 289, 303 P. 2d 168.)
Without further laboring the subject it suffices to say that when the entire record is reviewed in the light of the heretofore related uncontroverted facts and circumstances, and what has been previously stated and held, we are constrained to hold as a matter of law that defendant’s request that plaintiff submit himself for a further medical examination at Wichita on February 2, 1960, was unreasonable and improper; and that hence plaintiff’s refusal to comply therewith did not effect a suspension, under the provisions of G. S. 1949, 44-518, of plaintiff’s right to payments of compensation in accord with the Commissioner’s award of February 5, 1960, until he had complied with the requirements of that request. It necessarily follows that the trial court’s conclusion of law, heretofore quoted at length in this opinion, cannot be upheld and that its judgment must be reversed with directions to grant a new trial.
For a recent decision supporting the conclusions announced in this opinion, although it cannot be said to be a controlling precedent, see Bentley v. State Department of Social Welfare, 187 Kan. 340, 343, 356 P. 2d 791. See, also, Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 289, 290, 303 P. 2d 168; Miller v. Massman Construction Co., 171 Kan. 713, 720-722, incl., 237 P. 2d 373; Ellis v. Kroger Grocery Co., 159 Kan. 213, 218-221, incl., 152 P. 2d 860; Larrick v. Hercules Powder Co., 164 Kan. 328, 333, 188 P. 2d 639; Dobson v. Apex Coal Co., 150 Kan. 80, 83, 91 P. 2d 5; Austin v. Phillips Petroleum Co., 138 Kan. 258, 260, 25 P. 2d 581; Paul v. Skelly Oil Co., 134 Kan. 636, 640, 7 P. 2d 73; Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853.
The judgment is reversed.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for damages by the plaintiff-passenger of an automobile against the driver, Raymond Avelar, and the Transcontinental Bus System, Inc., and its public liability insurance carrier, arising out of a collision when the automobile was driven onto U. S. Highway 81 in front of the oncoming bus. The jury answered special questions and, by general verdict, found in favor of the defendants. Plaintiff has appealed from the judgment entered on the jury’s verdict and special findings, and from orders overruling his motions for a new trial and to set aside the verdict and special findings.
The accident occurred on October 21, 1956, at about 11:30 p. m. at the intersection of U. S. Highway 81 and 77th Street North, north of Wichita. U. S. 81 is a hard surfaced, four-lane, north-south transcontinental highway, and traffic is controlled on 77th Street, an east-west graveled country road, by stop signs at the intersection.
Pertinent portions of the testimony, and the events leading up to the accident, are summarized and quoted: Plaintiff Robles and defendant Avelar were married to sisters. About 3:30 p. m. on the day of the accident Avelar drove his wife to Robles’ residence to visit Mrs. Robles who was ill. Avelar did not go into the house, but Robles came out. They talked for awhile, and Avelar asked Robles whether he wanted to “stick around here or shall we go for a ride.” Robles said, “lets go for a ride.” They left in Avelar’s 1951 Chevrolet. There was no purpose for their trip other than pleasure, and Avelar drove the car the entire time. After leaving the Robles residence they encountered two men who had some “corn liquor.” Both Robles and Avelar accepted a drink which was offered. Avelar bought a half pint of the liquor from the two men and all four men had a drink. After some visiting, Robles and Avelar “talked to decide” whether they would go see a friend of Avelar’s. They drove to the friend’s residence and visited there with three men. Robles drank some wine and the men talked. Later, Robles and Avelar left and drove into the country northeast of Wichita to look over their old fishing and hunting grounds and discussed the possibility of building a shack, and talked about many matters of mutual concern to themselves. They both drank from the half pint, and emptied it. They continued to drive, and intermittently stopped and talked. Finally, they decided to return home. Robles was sitting in the front seat, and while going west on 77th Street, he said to Avelar, “I think I will crawl into the back and take a nap,” and he moved from the front seat into the back seat. Avelar testified he did not know whether Robles went to sleep or stayed awake. Robles did not testify on his own behalf. The evidence was that the car was moving when Robles crawled into the back seat and Avelar continued west on the country road, driving 30 to 40 miles per hour.
When Avelar reached the immediate vicinity of the stop sign on 77th Street east of the intersection, a long pile of sand and gravel obstructed his view to the north of southbound traffic on the highway. While the evidence was conflicting whether he stopped at the stop sign before proceeding into the intersection, the jury resolved that question in Avelar’s favor by finding that he did stop. At any rate, after stopping, Avelar suddenly drove his automobile across the highway directly into the path of the oncoming bus which was traveling south on the inside lane of the southbound trafficway. Witnesses described the movement of Avelar’s automobile as, “the car just darted across the road,” and “ran into the left front of the bus.” Prior to the collision the bus had been traveling between 50 and 55 miles per hour, and was on schedule. The bus driver had no time or opportunity to avoid the collision and was only able to begin braking, and turned the bus slightly to the east before the collision occurred. There was evidence the bus was traveling 38 miles an hour at the time of the accident. As a result of this unfortunate occurrence Robles was severely injured. His spinal cord was severed, and he is permanently paralyzed from the waist down and will be confined to a wheel chair for the rest of his life.
After the accident Avelar was arrested and pleaded guilty to driving while under the influence of intoxicating liquor. It was stipulated that an alcoholic test was made on him which showed his blood to contain .18 percent alcohol. Plaintiff was taken to a hospital and the observation of the nurse in charge when he was admitted was that “the patient had been drinking prior to the accident.”
Answers by the jury of pertinent special questions are summarized and quoted: Avelar stopped at the stop sign east of the intersection and when he did so, his automobile was not visible to the driver of the southbound bus. He was unfamiliar with the intersection and did not realize danger was imminent as he entered the intersection, and when he entered it, the bus was so close as to constitute an immediate hazard and its driver had no time or opportunity to avoid the accident. No finding of negligence was made against the bus company or the insurance company, and Avelar was found not to be guilty of gross and wanton negligence which was a proximate cause of plaintiff’s injuries. Question No. 8 and its answer are quoted:
“Q. Was the plaintiff’s failure to exercise due regard for his own safety a proximate cause of his own injury? A. Yes.”
The legal effect of the finding was that plaintiff was guilty of negligence which was the proximate cause of his injuries, and barred his right to recover against Avelar for ordinary negligence.
No objections were made to any of the special questions submitted, and the answers given by the jury were accepted by the court. Plaintiff moved to set aside the general verdict and the answers to the special questions on the ground they were not supported by evidence, and for a new trial, specifying numerous grounds. Those motions were overruled, and judgment was entered in favor of the defendants.
Plaintiff first argues the general verdict for the defendants and answers to special questions should be set aside because they are not supported by the evidence. In support of the contention, plaintiff advances certain arguments and theories which were presented to the jury, based upon his version of the evidence from his own witnesses, some of whom gave expert testimony. This was purely a fact case, and we deem it unnecessary to detail plaintiff’s various arguments. The evidence was in sharp conflict on decisive issues and the jury resolved them against the plaintiff and in favor of the defendants. In such a situation, the long-established rule of this court applies, that where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court’s power begins and ends with the determination whether there is substantial evidence to support them, and where they are supported, they are accepted as true and will not be disturbed on appeal. Moreover, it is of no consequence that there may have been much contrary evidence adduced, which, if believed by the jury, would have compelled entirely different findings of fact and an entirely different-judgment (Renner v. Monsanto Chemical Co., 187 Kan. 158, 168, 354 P. 2d 326, and the many cases cited). It would add nothing to the law of this state to recite the testimony of witnesses for the respective parties; it is sufficient to say that, after full and careful examination of the record, the court is of the opinion there was ample evidence to support the answers to the special questions and the general verdict in favor of the defendants.
The plaintiff next contends the jury’s verdict and answers to special questions are logically irreconcilable, being contrary to each other and to the general verdict. The point is not well taken. A general verdict imports a finding upon all issues in the case not inconsistent with the special findings (Epple v. Kress & Co., 187 Kan. 452, 357 P. 2d 828). In considering answers to special questions the court is to give them, if possible, such a construction as will bring them in harmony with the general verdict, and in such a case, the court is not permitted to isolate one answer and ignore other answers, but all are to be considered, and if one interpretation leads to inconsistency and another is in harmony with the general verdict, the latter is to be adopted (Applegate v. Home Oil Co., 182 Kan. 655, 660, 324 P. 2d 203).
Plaintiff’s principal complaint on this point is that the jury exonerated the bus driver of negligence and Avelar of gross and wanton negligence, but found him guilty of contributory negligence. This action was pleaded and tried upon the theory that plaintiff was a guest in Avelar’s automobile and that Avelar was guilty of gross and wanton negligence, and that the driver of the bus was guilty of negligence. Under that state of the record, there was no necessity for the jury to make a finding concerning the negligence of Avelar since it was not contended plaintiff was a paying passenger, and no special questions on that point were requested or given. Hence, the complaint that the jury made no specific finding that Avelar was guilty of negligence is immaterial (In re Estate of Wright, 170 Kan. 600, 604, 605, 228 P. 2d 911; Bedenbender v. Walls, 177 Kan. 531, 537, 538, 280 P. 2d 630; Schmid v. Eslick, 181 Kan. 997, 1003, 1004, 317 P. 2d 459). We point out, however, that the answers to special questions 5 and 6 to the effect that when Avelar entered the intersection the bus was so close as to constitute an immediate hazard, thereby preventing the driver from having time or opportunity to avoid the accident, were findings of negligence on the part of Avelar (G. S. 1959 Supp., 8-552 [b]; Hurla v. Capper Publications, Inc., 149 Kan. 369, 373, 87 P. 2d 552; Blakeman v. Lofland, 173 Kan. 725, 731, 252 P. 2d 852). Be that as it may, the answers to the special questions were not inconsistent with each other, or with the general verdict.
Plaintiff next contends that the giving of instructions Nos. 13 and 17 was erroneous and requests a new trial. He also argues that requested instructions Nos. 1 and 2 were erroneously refused. We think those questions have not been preserved by plaintiff for appellate review. In addition to the two instructions complained of, we are advised the district court gave 32 other instructions which plantiff failed to abstract in disregard of the general rule that where a party raises questions involving the giving of, or refusal to give, instructions, it is his duty to include in the record on appeal those which were given and those which were refused, otherwise there is no way for the supreme court to determine what may or may not have been included in the instructions not brought up (Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288; Beye v. Andres, 179 Kan. 502, 296 P. 2d 1049; Avery v. City of Lyons, 183 Kan. 611, 331 P. 2d 906). This rule is subject, however, to the exception that instructions given may be reviewed if they are a clear and prejudicial misstatement of the law. In Parnell v. Security Elevator Co., supra, it was said:
“Defendant next argues that the trial court erred in fading to give instructions requested by it. In the first place, not all the instructions given by the trial court are in this record. Where a party expects to argue that the trial court erred in not giving requested instructions he must bring up all the instructions given. (See State v. Leigh, 166 Kan. 104, 199 P. 2d 504; Marshall v. Home Mutual Insurance Co., 154 Kan. 488, 119 P. 2d 529; Gartner v. Williams Oil and Gas Co., 125 Kan. 199, 263 Pac. 778; and Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419.)” (l. c. 650, 651.)
In Beye v. Andres, supra, it was held:
“Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions which may or may not modify its intent and effect are made a part of the record, in order that all may be examined together.” (Syl. f 2.)
And in Avery v. City of Lyons, supra, it was held:
“It devolves upon the party appealing to bring up a complete record of all matters upon which review is sought. This rule has application where the trial court refuses to give a requested instruction and the other instructions, which may have a bearing on the point, are not presented in the record.” (Syl. f 5.)
See, also, Waterbary v. Riss & Co., 169 Kan. 271, 293, 219 P. 2d 673; Walker, Administratrix v. Gerritzen, 179 Kan. 400, 295 P. 2d 635; Steck v. City of Wichita, 179 Kan. 305, Syl. ¶ 7, 295 P. 2d 1068; Long v. Foley, 180 Kan. 83, 93, 94, 299 P. 2d 63; Monson v. Dupy, 180 Kan. 71, 73, 299 P. 2d 580, and Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 357 P. 2d 804.
Since plaintiff has not set forth any of the 32 instructions given in addition to the two of which complaint is made, we are in no position to pass upon his criticism pertaining to the instructions given, or to the requested instructions which were refused. An examination of instructions Nos. 13 and 17 fails to disclose any “clear and prejudicial misstatement” of the law applicable to the case. Furthermore, the only objections noted in the record were that instructions Nos. 13 and 17 were given over plaintiff’s “recorded objections.” Such a statement is insufficient to advise this court of the specific objections lodged against the instructions when they were under consideration by the district court. Clearly, plaintiff’s “recorded objections” do not reveal to this court the nature or character of his objections, and, in fact, amounts to no objection at all. Under such circumstances, the instructions given became the law of the case on that subject (Laughlin Motors v. Universal C. I. T. Credit Corp., 173 Kan. 600, 613, 251 P. 2d 857; Watkins Co. v. Hanson, 185 Kan. 758, 763, 347 P. 2d 447).
Lastly, plaintiff argues the district court erred in overruling his motion for a new trial. The only grounds of that motion urged on appeal relate to the instructions given and those refused, and that the verdict and answers to special questions were not supported by the evidence and were inconsistent with each other and the general verdict. We shall not reiterate what has heretofore been said and held concerning those points. It suffices to say that plaintiff has not affirmatively shown the alleged errors prejudicially affected his substantial rights (G. S. 1949, 60-3317), and the district court did not err in overruling his motion for a new trial.
We conclude this opinion with the observation that plaintiff has had his day in court with a fair and complete trial on all the issues raised by the pleadings. A jury denied recovery after hearing the evidence from many witnesses who testified on behalf of the parties and after having visited the scene of the accident. The special findings and the general verdict are consistent with each other and were amply supported by evidence which the jury chose to believe. The judgment of the district court is based upon those findings and verdict, and that judgment should be and is hereby affirmed.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a damage action for personal injuries, proximately caused by negligent treatment of plaintiff by defendant hospital, from the trial court’s judgment in favor of plaintiff based upon answers to special questions and the verdict of the jury and all other rulings, orders and decisions thereon including: Overruling of the hospital’s motion for judgment notwithstanding the verdict, and its motions to set aside answers to special questions, and to grant a new trial as well as the overruling of the hospital’s demurrer to plaintiff’s evidence and the overruling of a renewal of such demurrer along with a motion for directed verdict.
On April 1, 1956, plaintiff, a woman thirty-seven years of age with a life expectancy of 31.75-years, was employed by Midwestern Industries in Wichita as a PBX operator at a salary of $75.00 a week. About 11:00 o’clock p. m. while she was working on a pair of sunglasses, the lens broke and she sustained a cut about one half inch long on the middle finger of her left hand.
At 8:00 o’clock a. m. on April 2, 1956, plaintiff arrived at work, went to the company nurse to get a bandaid and the nurse sent her to defendant hospital. Mrs. Davis, a fellow employee of plaintiff, went with plaintifF to the hospital and they arrived at the emergency room thereof about 8:30 a. m. where nurse Oleta Melton, intern William Bibb, and a Sister of the Order managing the hospital, examined plaintiff’s finger, cleansed the wound and sutured the finger. It was decided that plaintifF should have, and she was given, a penicillin shot followed by a skin or sensitivity test in the upper right arm, to determine plaintiff’s susceptibility or reaction to horse serum which was the most common base used in administering a shot of tetanus antitoxin. In the skin test a minute quantity of the serum was injected between the layers of plaintiff’s skin and subsequently she received 1500 units of tetanus antitoxin by hypodermic injection in her upper right arm. The penicillin shot and serum sensitivity test were administered by the nurse but the tetanus antitoxin was gixen by the intern who told plaintiff to call her doctor as soon as she returned to work. Plaintiff and Mrs. Davis left the hospital and by the time they reached their car the area of the sensitivity test on plaintiff’s upper right arm was showing a positive reaction. A stop was made for coffee and the spot on her arm was becoming red and puffy and had increased in size from a nickel to that of a half dollar. Plaintiff returned to work, her arm developed a reddening of the skin, a swelling, and a rash broke out over her body. She continued to be ill and feverish, and her muscles ached.
On April 14, 1956, a roaring began in plaintiff’s ears and on April 15 she returned to the hospital where she remained through April 23, 1956. In September, 1956, after receiving directions so to do from medical sources, plaintiff went to the Mayo Clinic at Rochester, Minnesota, where diagnosis showed 50 to 55 percent permanent loss of hearing in both ears.
In October, 1959, plaintiff was employed at $40.00 a week by a toy factory in Ruleville, Mississippi. Her income was entirely dependent upon her own efforts. Prior to the injury plaintiff had been in good health, had had a vivacious personality, and the ability to meet people, which made her a capable secretary, receptionist and PBX operator. After the injury she was highly nervous and had a noticeable change of personality.
The testimony of witnesses was highly conflicting, much of it was technical medical testimony, and only the principal parts will be touched upon. The prescribed minimum standard of waiting time between a skin test and giving of a tetanus shot is fifteen to twenty minutes. However, there is no specification as to where the test is to be made on the body for any reaction to show in that period of time. Doctor Ernest R. Schlachter testified that throughout the country he knew the universal practice was to wait not less than ten minutes and that when he was giving a tetanus shot to a person for the first time, which he stated was the usual reason for giving the skin test, he waited fifteen minutes but if the shot was given in the upper arm “one should probably wait a minimum of thirty minutes.” He further testified a positive skin test was a warning and should put one on guard that a reaction of one or the other types, meaning immediate or delayed, might possibly occur. Doctor Schlachter stated that in his opinion the hospital, in allowing the medical procedures followed by the intern and nurse in question, had not met the approved standards of medical practice in the community in the treatment of plaintiff.
The other expert medical testimony was contradictory and controversial on the proposition as to whether the skin test rendered any assistance at all in predicting the delayed reactions terminating with serum sickness that could settle in some nerve tissue similar to that which happened to plaintiff, and the immediate reaction which would be a serum sickness made evident by swelling, breaking out with hives, difficulty in swallowing, redness of the skin, etc., and finally, whether such skin test if negative would be an assurance there would be no reaction. As usual, plaintiff here can point to certain portions of the expert medical testimony in favor of her contentions, and the hospital can point to portions of the expert testimony which appear to be in support of its contentions. These matters will be referred to again later.
In regard to the time element, plaintiff and the woman who took her to the hospital both testified that no more than five minutes could have elapsed between the time the skin test was administered by the nurse and the time the intern injected the 1500 units of tetanus antitoxin into plaintiff’s upper arm. According to their version of what took place, plaintiff and her companion arrived at the emergency room of the hospital, the cut was examined and thoroughly cleaned by the intern and nurse on duty, and while a Sister was present, it appears she only came and went and took no active part. The intern sutured the finger with ten stitches and plaintiff was given a shot of penicillin. Then it was determined that plaintiff should have a shot of tetanus antitoxin and since plaintiff had not previously had one, the nurse gave her a skin test and left the room. Immediately the intern came in and gave plaintiff 1500 units of tetanus antitoxin and, as previously mentioned, no more than five minutes could have elapsed between the two shots. Plaintiff and her companion thereafter went to their car and in about eight to ten minutes severe positive reactions were showing around the area of the skin test.
On the other hand, the intern and nurse testified the hospital records showed that the skin test was made in the forearm at 9:10 a. m. and the 1500 units of tetanus antitoxin were injected into the upper arm at 9:45 a. m. As to other matters such as the penicillin shot and the suture referred to in the testimony of the nurse and intern, the exact sequence of these events is somewhat difficult to tell from the record before us.
At the conclusion of all the evidence, the trial court instructed the jury. Failure to instruct the jury on defendant’s requested instructions No. 8 and No. 13, along with a contention that the instructions given were misleading, as well as the trial court’s failure to instruct on all issues, comprise three of defendant’s specifications of error. Failure to include in the record on appeal those instructions which were given prevents this court from reviewing the same to determine what was, and what was not, given. This applies to complaints about the trial court’s refusal to give requested instructions (Connell v. Norton Coca-Cola Bottling Co., 187 Kan. 393, 396, 357 P. 2d 804) and the other phases — that of misleading and failing to instruct on all issues — are covered in the authorities cited therein, namely, Steck v. City of Wichita, 179 Kan. 305, syl. ¶ 7, 295 P. 2d 1068; Beye v. Andres, 179 Kan. 502, 504, 296 P. 2d 1049.
An additional reason requested instruction No. 13 was properly refused is to be found in Spencer v. Eby Construction Co., 186 Kan. 345, 350 P. 2d 18. Thus the trial court did not err in refusing to give the requested instructions or in giving the instructions that it did.
' Defendant complains the trial court erred in failing to sustain its demurrer to plaintiff’s evidence when it was originally made and when it was renewed at the close of all the evidence together with a motion for a directed verdict. Along this line defendant states there is a direct conflict in the testimony of plaintiff’s medical witnesses as to the value of the skin test and also a direct conflict among the witnesses in regard to the period of elapsed time be tween the skin test and the hypodermic injection of the tetanus antitoxin. The record shows there was conflict, as before stated, but there was no conflict regarding a skin test being given and plaintiff’s testimony, along with that of the woman who took her to the hospital, that only five minutes elapsed between the test shot and the tetanus shot. Under such circumstances the purpose of the skin test would be totally defeated because there would not have been enough time for a reaction to take place from which a doctor could judge the advisability of giving the horse serum. In other words, the patient would not have had an opportunity to react and thus warn the doctor that some injurious result would occur in that particular patient if the tetanus shot were given. We are convinced that defendant would not give such sensitivity tests were they not of some benefit and for the purpose of avoiding such occurrences as we presently have before us.
The trial court in considering the demurrer could not rule upon the weight of the evidence if it was conflicting. Under the decisions of this court it could consider only that evidence most favorable to plaintiff, as was well stated in Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638, syl. ¶ 2.
The jury returned its verdict in favor of plaintiff in the sum of $79,161.34 and answered special questions as follows:
“1. Do you find that in the treatment of plaintiff, the defendant exercised that degree of skill and care usually possessed and practiced under the circumstances in Wichita? A. No.
“2. If your answer is ‘No’, state in what manner the defendant failed to exercise that skill and care. A. Insufficient time allowance to determine the result of sensitivity test before injection of TAT shot.
“3. If your answer to question No. 1 is ‘No’, state if it could have been reasonably apprehended that plaintiff’s injuries might have occurred. A. Yes, if properly handled.
“4. If you find for the plaintiff, state what act or acts of negligence was the proximate cause of any injuries to plaintiff. A. Injection of 1500 units of TAT before result of sensitivity test could be determined.
“5. If you find for the plaintiff, what do you allow for:
“(a) Past medical and hospital expenses
“A. $3,461.34
“(b) Past loss of earnings
“A. $10,800.00
“(c) Future loss of earnings
“A. $34,320.00
“(d) Future medical expenses
“A. $5,580.00
“(e) Other
“A. $25,000.00.”
Defendant filed motions to set aside the verdict and answers to special questions, for judgment notwithstanding the verdict, and for a new trial, all of which were overruled by the trial court. The verdict of the jury was approved and judgment entered accordingly.
The special findings are in harmony with each other and with the general verdict but a question is raised as to whether the answers to special questions and the verdict were supported by the evidence. Without reviewing all the technical testimony of six well-qualified medical experts, the qualifications of none having been questioned by any of the counsel for the parties, this contention of defendant is fully answered by syllabus ¶ 3 of Dirks v. Gates, 182 Kan. 581, 322 P. 2d 750, which reads:
“When there is evidence, even though it may be conflicting, upon which a jury bases special findings, those findings will not be disturbed on appeal and if the special findings support and are not in conflict with the general verdict, it likewise will not be disturbed.”
Thus the trial court did not err in overruling defendant’s motions to set aside the verdict and answers to special questions, for judgment notwithstanding the verdict, or in holding that the verdict was not contrary to the evidence. The jurors saw this plaintiff in her present physical condition and heard the testimony, they viewed the witnesses, both lay and expert, and as reasonable persons, the jurors estimated the fair compensation due for the injuries plaintiff sustained even to the extent of setting the amounts allowed for particular elements of damages in answer to special question No. 5. Likewise, the trial court accepted and approved the answers to the special questions, adopted the verdict, and entered the amount thereof as its judgment. This court fully and clearly set out the manner in which the question of excessiveness of a verdict should be considered in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, where it was stated:
“In the nature of things, it is impossible to formulate a hard and fast rule on the question of- the amount of damages to be allowed in a personal injury action for the simple reason that determination of the matter necessarily depends upon the facts and circumstances of each particular case.
“Generally speaking, it may be said that no verdict is right which more than compensates, and none is right which fails to compensate. Pain and suffering have no known dimensions, mathematical or financial, and there is no exact relationship between money and physical or mental injury or suffering, and the various factors involved are not capable of exact proof in dollars and cents. For this very practical reason the only standard for evaluation is such amount as reasonable persons estimate to be fair compensa tion for the injuries sustained, and the law has entrusted the administration of this criterion to the impartial conscience and judgment of jurors, who may be expected to act reasonably, intelligently and in harmony with the evidence.” (Syl. ¶| 2, 3.)
On the record before us we cannot say the amount of the verdict is such as to shock the conscience of the court and we therefore hold the verdict was not excessive.
In view of all the circumstances no reason appears why the trial court should have granted a new trial to defendant.
The judgment is affirmed.
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The opinion of the court was delivered by
Herd, J.:
The appellant, Harris Enterprises, Inc., appeals from the trial court’s determination that criminal investigation records sought to be disclosed by the appellant are exempt from disclosure under the Kansas Open Records Act, K.S.A. 45-215 et seq.
This case arose from the following circumstances:
In the early morning hours of January 28, 1983, the Olathe Police Department was called to the home of John and Carole Duffield. The Duffields’ son, Paul, had been brutally attacked, and their daughter, Janelle, bludgeoned to death by an unknown assailant. The Duffields’ other daughter, Kelly, was missing. Kelly’s body was later located frozen and partially nude in a drainage ditch at a lake in Olathe.
Police detectives began their investigation about 5:00 a.m. on the 28th, by making a detailed photographic record of the Duffield home and surrounding area. Sometime between 9:00 and 10:00 a.m. Captain Jeffrey Herrman, of the Olathe Police Department, contacted officials at the Johnson County crime lab and requested their assistance in a blood analysis. Gary Dirks, a technician from the crime lab, arrived sometime thereafter but was delayed from collecting samples for about a half an hour, until the photographic record could be completed.
Sometime during the morning, Captain Herrman directed his officers to perform a field search of the area. The field search involved a systematic examination of the neighborhood around the crime scene, for the purpose of looking for anything unusual or out of place. In addition to police personnel, approximately thirty off-duty Olathe firemen were called to aid in the field search. Police personnel also conducted a neighborhood canvass which involved door-to-door interviewing of individuals living near the crime scene. No firemen were used in the canvass.
Ry Sunday, January 30, the Olathe police had eliminated two early suspects: John Duffield, the father of the victims, and an unidentified boyfriend of Kelly Duffield. Consequently, on Monday, January 31, Captain Herrman requested activation of the greater Kansas City Metro Squad. The Metro Squad is designed to assist in the investigation of crimes when a police agency doesn’t have the resources to carry out an investigation on its own. The squad is activated by a request from the head of a law enforcement agency to a member of the squad’s board of directors, who in turn contacts the remainder of the governing board to obtain approval to activate the squad. In this case, the squad was activated on Tuesday, February 1, 1983, and continued the investigation until February 12, 1983, at which time the squad was disbanded for lack of substantial leads. After the deactivation of the Metro Squad, the Olathe Police Department resumed full control of the investigation.
The investigation of the Duffield murders was still in progress when Michael Cade was arrested for purse snatching on April 11, 1983. When Cade was brought in for questioning, he admitted participation in the purse snatching incident and made a further statement to the effect that he “threw the purse where they found that girl’s [Kelly Duffield’s] body.”
On the evening of April 11, Olathe Police Detective Roger LaRue questioned Cade concerning his involvement in the Duffield murders. This interview was not tape-recorded. During the interview, Cade denied having any knowledge or involvement in the murders. After this interview, LaRue contacted Captain Herrman who advised LaRue to conduct a background investigation on Cade. The following day, April 12, LaRue conducted an investigation of Cade which revealed that Cade had committed similar crimes (i.e., purse snatching) in both Olathe and Emporia and his crimes had involved the cutting or disabling of phone lines. This was significant since the phone lines at the Duffield home had been disabled the night of the crime.
LaRue reported the results of his investigation to Captain Herrman on Wednesday, April 13, at approximately noon. After receiving this briefing, Captain Herrman consulted with other investigators regarding a “theme” to use for his interrogation of Cade. Herrman also contacted the F.B.I. academy at Quantico, Virginia, for suggestions on conducting the interrogation. At approximately 2:45 that same afternoon, Herrman interrogated Cade, which resulted in Cade’s full tape-recorded confession to the Duffield crimes. The following day, District Attorney Dennis Moore, Captain Herrman, and Frank Barnes (Olathe Deputy Director of Public Safety) held a press conference at which they announced. the arrest and charging of Michael Cade for the Duffield murders. Cade was subsequently convicted and sentenced to life imprisonment. (State v. Cade, Johnson County, No. K-44347.)
On February 1, 1984, Harris Enterprises, Inc., the owner and publisher of the Olathe Daily News of Johnson County, formally requested Johnson County District Attorney Dennis Moore to release the criminal investigation records compiled on the Duffield murders. Moore denied the request on February 7, 1984. On February 16, 1984, the appellant, Harris Enterprises, Inc., brought suit pursuant to the Kansas Open Records Act, K.S.A. 45-215 et seq., against appellee Dennis Moore seeking disclosure of the investigation files in the Duffield case. Subsequently, the City of Olathe and John and Carole Duffield were granted leave to intervene as party defendants.
The appellant raised a number of issues regarding the Duffield investigation, including: (1) The use of fire department personnel to process the crime scene; (2) the time of activation of the Metro Squad; (3) the time when the police first became aware that Mr. Cade was a suspect; (4) the manner in which the crime was solved.
After a four-day bench trial, the district court determined the evidence was sufficient to establish a public interest in the disclosure of some of the records sought by the appellant. However, after conducting an in camera inspection of the records, the court held the documents contained no information which would promote the public interest. Accordingly, the court determined “the records contained in the investigation files of the Duffield murder case are not required to be disclosed” under the provisions of the Kansas Open Records Act, K.S.A. 45-215 et seq.
Harris Enterprises has timely appealed, arguing the district court improperly interpreted and applied the provisions of the Open Records Act. The defendant-appellee City of Olathe cross-appealed, contending the district court improperly held the evidence revealed a public interest in disclosure of the Duffield case criminal records.
Before discussing the specific provisions at issue here, we should first examine generally the provisions of the Kansas Open Records Act, K.S.A. 45-215 et seq. (KORA). This legislation was originally enacted in 1983 to be effective January 1, 1984. See K.S.A. 1983 Supp. 45-205 et seq. However, due to a technical error in its enactment, the act was repealed and the sections reenacted, effective February 9, 1984. See K.S.A. 45-215 et seq.
The KORA represented a significant departure from the previous law, the Kansas Public Records Inspection Act (KPRIA), K.S.A. 45-201 through 204 (Ensley 1981) (repealed 1983). See Ryan, Kansas Administrative Law with Federal References, pp. 3-6, 3-7 (1985). The old law mandated that only those records “required to be kept and maintained” by a specific statute be open for inspection for the public. K.S.A. 45-201(a) (Ensley 1981). Since specific statutes required only a small number of records be kept and maintained, only a small number had to be open to public scrutiny. Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 Kan. L. Rev. 205, 206 (1985). The KORA, on the other hand, declares it to be the public policy of this state that public records shall be open for inspection by any person unless otherwise provided by the act. K.S.A. 45-216. “Public record” is defined to mean “any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.” K.S.A. 45-217(f)(l). The act further provides that it should be liberally construed and applied to promote the stated public policy.
K.S.A. 45-221(a) sets out in some detail thirty-five categories of records which public agencies are not required to disclose. Thus, the act does not prohibit disclosure of records contained within these exceptions, but rather makes their release discretionary with the official records custodian. (“Official custodian” is any officer or employee of a public agency who is responsible for the maintenance of public records, regardless of whether such records are in the officer’s or employee’s actual personal custody or control. K.S.A. 45-217[d].)
This court has had occasion to consider the KORA only once since its enactment in 1983. See Tew v. Topeka Police & Fire Civ. Serv. Comm’n, 237 Kan. 96, 697 P.2d 1279 (1985). In Tew, an unsuccessful fire department applicant sought access to the personnel files of successful applicants. One issue on appeal was whether the district court erred in ordering the commission to provide Tew access to the files. The Commission argued the district court improperly applied the KPRIA since it was repealed and replaced by the KORA. The Commission contended the district court should have denied Tew’s request under the personnel records exception found at K.S.A. 45-221(a)(4). This court held that the KORA was not intended to operate retrospectively and the trial court was correct in applying the KPRIA. The court further ruled that the records were accessible under the KPRIA as limited by the trial judge. 237 Kan. at 101-04.
In this case, the district attorney’s office denied appellant access to the Duffield criminal investigation files based upon an analysis of the criminal investigation records exception found at K.S.A. 45-221(a)(10). It states:
“(a) Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
“(10) Criminal investigation records, except that the district court, in an action brought pursuant to K.S.A. 45-222, and amendments thereto, may order disclosure of such records, subject to such conditions as the court may impose, if the court finds that disclosure:
“(A) Is in the public interest;
“(B) would not .interfere with any prospective law enforcement action;
“(C) would not reveal the identity of any confidential source or undercover agent;
“(D) would not reveal confidential investigative techniques or procedures not known to the general public; and
“(E) would not endanger the life or physical safety of any person.”
Before considering the application of these statutes to the present case, we should first restate the rules of statutory construction:
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. 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.” State v. Cole, 238 Kan. 370, 371-72, 710 P.2d 25 (1985).
Under K.S.A. 45-221(a)(10), a public agency cannot be compelled to disclose criminal investigation records unless an action is first brought for that purpose and the court finds disclosure meets the conditions of K.S.A. 45-221(a)(10)(A)-(E). Even if the trial court finds that each of the five requirements are met, it is still within the trial court’s discretion whether or not to order disclosure.
The first requirement is that disclosure be in the public interest. The trial court concluded that the burden of establishing that disclosure is in the public interest lies with the person seeking disclosure. Further, the court held that the burden is a two-step process and reasoned as follows:
“The plaintiff must not only show that there is a legitimate public interest to justify [disclosure], but the plaintiff must show that the records to be disclosed will in fact promote and serve that interest. Clearly, if the information contained in the records will not promote a public interest, then the public interest, no matter how lofty, cannot be served and disclosure ought not to be required.”
While the court placed the public interest burden upon the requester of the records, it determined that the burden of proof for the other four findings must rest with the governmental agency (custodian). Thus, in the present case, if the appellant had proved disclosure of the criminal records was in the public interest, the appellees must then have shown that disclosure would interfere with some prospective law enforcement action, would reveal the identity of a confidential source or undercover agent, would reveal confidential investigation techniques or procedures not known to the general public, or would endanger the life or safety of some person.
One commentator, after noting the criminal investigation records exception is silent as to who bears the burden of demonstrating probable harm resulting from disclosure, stated:
“The problem may be that the burden of persuasion normally belongs to a plaintiff, when in fact it is only the defendant in a criminal records request who has the information needed to show probable interference with law enforcement actions, disclosure of confidential sources or techniques, or endangerment to the life or safety of an individual. Realistically, the most that a plaintiff can show is that releasing the materials would be in the public interest. It should be the custodian’s burden to demonstrate that releasing the records would harm one of the specific law enforcement interests.” 33 Kan. L. Rev. at 245 n.261.
We find this reasoning persuasive and note that it would be difficult if not impossible for the appellant, which does not have access to the investigation records, to prove that their disclosure would not interfere with law enforcement actions or result in the disclosure of confidential sources or techniques. Accordingly, we hold the trial court properly allocated the burden of proof among the parties. Let us now turn to the issue of whether the court properly (1) concluded that a public interest existed in disclosure of the records; but (2) denied disclosure of the requested records because they contained no information which would promote the public interest.
The KORA does not contain a definition of “public interest,” nor has that concept been expressly defined by this court. The trial court noted that, in general, the term means more than “public curiosity.” The court further held that, to be a matter involving public interest, it must be a matter which affects a right or expectancy of the community at large and must derive meaning within the legislative purpose embodied in the statute. We hold the trial court accurately defined public interest.
In making its initial determination that the evidence presented at trial was sufficient to establish a public interest in the disclosure of records, the trial court reasoned:
“The evidence presented at trial did establish that inconsistent statements were reported on these matters and that definite disagreements arose between various law enforcement agencies. Indeed, the evidence presented by the intervenorCity clearly demonstrated a pattern of disputed or disagreed upon facts and circumstances arising out of the investigation. In this case, that pattern of disputes and disagreements [was] made public and publicly disseminated. Where public officials thrust controversy concerning their official actions into the public spotlight and attention, this court must conclude that a definable public interest arises to investigate that controversy and to seek a resolution of it.”
Despite this determination, the trial court still concluded the records should not be disclosed because the documents contained no factual information which would promote the public interest. This determination was reached after the trial court conducted an in camera inspection of the records.
We hold the trial court properly concluded that under the circumstances of the instant case a “definable public interest” existed in disclosure of the Duffield criminal investigation files. Further, we find it significant that the KORA expressly provides for an in camera review of the records in controversy by the trial court. See K.S.A. 45-222. Accordingly, it was within the trial court’s authority to make an in camera inspection of the records and within its sound discretion to find they contained no information which would “promote the public interest found in this case.”
Finally, we note that the legislature’s intent in enacting K.S.A. 45-221(a)(10) is clear. Criminal investigation files are sensitive. Raw investigative files nearly always include the names of many innocent people. Where the files are open to public scrutiny, the potential for injury is great. In addition, if criminal investigation files are open, many people with information which might lead to a resolution of the investigation will refuse to disclose such information. Investigations will be badly hampered. Thus, only under very restricted circumstances may the district court require disclosure.
The district court in this case did not abuse its discretion.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal in a criminal case in which defendant Eddie James Schneider was convicted in the court below on charges of negligent homicide (G. S. 1949, 8-529) and in failing to report an accident to the proper authorities (G. S. 1959 Supp., 8-523 [c]). After the jury returned its verdict of guilty on each of the two counts of the information, defendant filed his motion for a new trial consisting of six grounds. The motion was overruled and the defendant was sentenced as provided by law for each offense; whereupon he perfected this appeal.
Defendant’s notice of appeal to this court recites only that he appeals from the judgment, rendered on the 20th day of February, 1961, whereby it was by the district court ordered,.and adjudged that defendant serve a sentence of six months in the jail of Mitchell county on the charge and conviction of negligent homicide, and on the charge and conviction of failing to notify a proper police officer, to pay a fine of $100, and to serve a sentence of twenty days in the county jail.
In his abstract defendant alleges several specifications of error, including the overruling of his motion for a new trial. All of the specifications relate to alleged trial errors. Defendant did not appeal from the order overruling his motion for a new trial; therefore, despite his specifications of trial errors, such errors are not reviewable. Matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and, when an appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error. He must do both. (State v. Lewis, 187 Kan. 221, 356 P. 2d 845; State v. Trinkle, 186 Kan. 809, 352 P. 2d 937; State v. Morrow, 186 Kan. 342, 349 P. 2d 945; State v. Hamilton, 185 Kan. 101, 340 P. 2d 390; State v. Turner, 183 Kan. 496, 328 P. 2d 733, 359 U. S. 206, 79 S. Ct. 739, 3 L. Ed. 2d 759.)
Inasmuch as defendant did not appeal from the order of the trial court overruling his motion for a new trial, and his specifications of error relate only to trial errors, there is nothing for this court to review, and the case must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This was an action in replevin to recover possession of oil-well casing. Judgment was rendered for defendants and plaintiffs have appealed.
The facts are not in dispute.
On November 14, 1952, defendant, Anna J. Gerstner, and her husband (who is now deceased) executed and delivered an oil and gas lease to defendant, Henry A. Stecklein, he being Anna’s son. On the same day Henry assigned the lease to plaintiff, Don E. Pratt, who later assigned interests therein to other plaintiffs in this action.
The lease was for a primary term of six months, and further provided that it should remain in full force for “as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” It also contained this further provision:
Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing.”
Production of oil in paying quantities was obtained from two wells, thus extending the term of the lease beyond the six-months period. Production ceased in May, 1957.
On December 2,1957, plaintiff lessees executed to defendants the following release of the oil and gas lease in question:
“Release oe Oil and Gas Lease
“Know all Men by These Presents: That Don E. Pratt, ... do hereby release, relinquish and surrender to the lessor, Anna J. Gerstner, formerly Anna J. Stecklein, and Peter Gerstner, her husband of Hays, Kansas, as lessors and Henry Stecklein as lessee — , dated the 14th day of November, 1952 covering the following described land to-wit: . . . said lease being recorded in the office of the Register of Deeds in and for said County, in Book 113 at page 198.”
Prior to the execution of the foregoing release, but on a date not shown by the record, plaintiff lessees had removed pump jacks, tank batteries, and other personal property from the lease.
Subsequent to the execution of the release defendant Henry A. Stecklein went on to the lease and produced oil from one of the two wells which had been drilled by plaintiff lessees. Also, subsequent to the execution of the release, defendants gave a lease to an oil company which drilled a well and obtained production for a short time and later surrendered the lease. The oil-well casing involved in this replevin action was not listed for taxation in 1958 or 1959.
Plaintiffs filed this action on October 6, 1959, and in their petition alleged that they were the owners of and entitled to the immediate possession of the casing in question.
In their answer defendants, among other things, alleged that when, on December 2, 1957, plaintiffs executed the heretofore quoted release, they, the plaintiffs, had full knowledge that the casing was located on the land covered by the oil. and gas lease; that by the terms of such general release plaintiffs thereby released all right, title and interest in the property, and that because of such release and the long intervening period of time plaintiffs were barred, and that the casing in question was the property of defendants.
By way of reply plaintiffs, among other things, alleged and relied upon the quoted provision of the lease which provided that the lessee shall have the right “at any time” to draw and remove casing.
Upon tibe issues thus joined the case proceeded to trial and at the conclusion thereof the court made findings of fact substantially as above related.
For its conclusion of law the court held:
“It follows that a lessee or any other person shall have no right to remove fixtures from real estate except as provided in some type of contract. An oil and gas lease is such a contract. It also follows as a general principle that no person without any type of contract would have a right to remove fixtures from the land of another. Now, what right did these plaintiffs have after December 1957? The only possible conclusion is that they had none. . . . No more complete abandonment would be possible than the execution and delivery of a release. We then come to this conclusion that the lessees had absolutely no right to remove the casing except that right given to them under the lease, and that the lease became a nullity, and all rights under it were abandoned by the release executed in December 1957.”
Judgment was entered accordingly in favor of defendants. Plaintiffs have appealed. They make no complaint as to the facts found but contend the conclusion of law is erroneous.
It is readily apparent the decision of the trial court was based upon the theory and proposition that all rights of plaintiffs under the lease to remove casing were extinguished by the release executed by them on December 2, 1957.
In support of their position plaintiffs contend the most that can be said of the release is that it merely surrendered their rights to enter, explore for and remove oil and gas from the premises; that notwithstanding the release they had a reasonable time thereafter in which to remove the casing, and that the trial court erred in not taking all of the surrounding facts and circumstances into consideration in determining whether they removed or attempted to remove the casing within a reasonable time.
Defendants, on the other hand, while conceding that under the express provision of the lease plaintiffs had the right to remove the casing “at any time” —contend that such phrase means “within a reasonable time” — and that far more than a reasonable time had elapsed in this case. They further contend — as held by the trial court — that the execution of the general release by plaintiffs resulted in the abandonment by them of any and all of their interests under the lease — including the right to remove casing — and as the lease was released, any property or fixtures left on the land became the property of the fee owner.
In support of the various arguments made a number of cases are cited, among them being Collins v. Oil & Gas Co., 85 Kan. 483, 118 Pac. 54, 38 L. R. A. (NS) 134; Newlands v. Ellis, 131 Kan. 479, 292 Pac. 754, and Dupont v. Lotus Oil Co., 168 Kan. 544, 213 P. 2d 975, none of which, however, is specifically factually in point.
As we view this case, it is unnecessary to decide the specific point upon which the trial court based its decision, for we think that clearly, under the facts and circumstances shown by the record— plaintiffs did not remove the casing “within a reasonable time.”
The lease was dated November 14, 1952. Production was had until May, 1957 — at which time it ceased. On December 2, 1957, seven months later, plaintiff lessees executed the general release. In the meantime they had removed equipment from the land — but not the casing. This action — begun in October, 1959 — was not filed until twenty-nine months after production had ceased — and twenty-two months after the execution of the release. What may or may not constitute “within a reasonable time” in a given situation of course depends upon the particular facts, circumstances and conditions. If in this case there were any facts or circumstances to justify the long delay on the part of plaintiff lessees to assert their claimed rights — they are not shown in the record.
In 24 Am. Jur., Gas and Oil, § 68, at page 578, is found the following:
“As a general rule, a lessee desiring to remove his machinery, etc., must act within the term of the lease or within a reasonable time after its expiration, notwithstanding the lease purports to authorize him to do so at any time.’ What constitutes a reasonable time depends, of course, upon the particular circumstances.”
In the annotation concerning rights and remedies with respect to casing in oil and gas leases, at 39 A. L. R. 1255, it is said:
‘It seems clear that where a lessee expressly reserves in his lease the right to remove casing, or fixtures generally, he may so remove them within the term of the lease or a reasonable time after its termination; and where he has expressly reserved the right to remove ‘at any time,’ the courts hold that a reasonable time is contemplated.” (p. 1258.)
In Summers — The Law of Oil and Gas, Permanent Edition, Vol. 3, § 526, page 453, the general rule is stated:
“It is a well-settled rule that casing in wells, derricks, engines, and other machinery and appliances placed upon the land by the lessee for testing, developing and operating the land for oil and gas purposes are trade fixtures. They may, therefore, be removed at any time dining the existence of the lease, or within a reasonable time after its termination. If they are not so removed, they become the property of the landowner.”
Our conclusion, therefore, is that plaintiff lessees did not remove the casing “within a reasonable time” after abandonment of the lease — that is, after production ceased. Furthermore, they did not remove it “within a reasonable time” after the surrender of the lease evidenced by the release of December 2, 1957. And so— even though we express no opinion as to the correctness of the reason given by the trial court in deciding the case — the judgment rendered was nevertheless correct and is affirmed. (G. S. 1949, 60-3317; Janzen v. Troth, 170 Kan. 152, 223 P. 2d 1011; Stevens v. State Corporation Commission, 185 Kan. 190, 341 P. 2d 1021.)
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The opinion of the court was delivered by
Wertz, J.:
This was a common-law action by plaintiff (appellee) to recover damages for personal injuries alleged to have been caused by the negligence of defendants (appellants). Defendants appeal from an order of the trial court overruling their demurrer to plaintiff’s petition.
In substance the petition alleges the plaintiff’s residence; that the defendants Paul Confer, Charles Byers and Courtney Harris were co-partners, doing business as the Confer Drilling Company, and that defendant Herman Degnar was its employee; that on the 23rd of September, 1958, defendant drilling company was engaged in drilling an oil well on the Lauck lease southeast of Great Bend; that plaintiff was working as an employee of John Murray, doing business as the Murray Casing Crews, of Great Bend, which company was engaged in servicing oil and gas wells; that the Murray Casing Crews, together with plaintiff, had been called to the location by defendant drilling company; that all the operations hereinafter mentioned were performed using Confer Drilling Company’s mast and using Murray Casing Crews’ power tongs to run tubing; that after a part of the tubing had been run into the hole, the well began to shoot oil and the well was capped to await the arrival of water trucks to wash the well down.
The petition further alleges:
“That while awaiting said water trucks, the power tubing tongs, approximately 450 to 500 pounds in weight, were connected to the cat line on the cable tool rig owned by the Confer Drilling Company and were suspended in air. That the plaintiff at said time and place was engaged in his employment and was washing off the power tubing tongs.
“That at said time and place, the crew on the Confer Drilling Company rig was changed. That the new driller was the defendant, Herman Degnar. That the defendant, Herman Degnar, in complete disregard to tire safety of the plaintiff, did carelessly, negligently and recklessly release the cat line on the rig so as to cause the power tongs to fall upon and strike plaintiff pinning plaintiff against the left leg of the cable tool rig, crushing and causing him the injuries hereinafter set forth.”
Plaintiff alleged that the defendants were negligent in certain specified particulars and that such negligence was a direct and proximate cause of his injuries as set forth, and sought judgment against defendants in the amount stated in the petition. In view of the questions involved it is not necessary to relate the specific acts of negligence on the part of defendants or the injuries sustained.
Defendants contend that the petition discloses the plaintiff and his employer, Murray Casing Crews, and defendant Confer Drilling Company were subject to the workmen’s compensation law (G. S. 1959 Supp., 44-507). It is then contended by defendants that the petition shows the defendant drilling company was the principal and plaintiff’s employer, Murray Casing Crews, was the subcontractor to carry out the work and trade of the principal, and that under the provisions of G. S. 1949, 44-503 the plaintiff’s right to recovery is thereby confined to the workmen’s compensation act and therefore plaintiff has no right to maintain this common-law action. These contentions are without merit.
An examination of the petition reveals that there is no allegation that plaintiff’s employer was performing any work in defendant’s trade or business nor that the defendants exercised any direction, control or authority over the plaintiff at the time of the injuries complained of or that there was any contractual relationship between plaintiff or his employer and defendants. On the contrary, the petition alleges that plaintiff was an employee of the Murray Casing Crews, which company was engaged in the servicing of oil and gas wells, and plaintiff was at the time performing work of his employer. The existence of an employer-employee relationship, whether it be general or special, ultimately depends upon the existence or implied contractual relations between the parties. Workmen’s compensation rights are rights arising out of contract, since the existence of these rights depends upon an employer-employee relationship which must be based on contract. (Robinson v. Muller, 181 Kan. 150, 309 P. 2d 561.) Where a reasonable doubt exists as to whether an employee of one employer is also the “special employee” of another employer, the question should be submitted to the jury under proper instructions. (Coleman v. Patti Construction Co., 182 Kan. 53, 318 P. 2d 1028.)
Giving the petition the benefit of the inferences to which it is entitled, we are unable to say that it alleges facts sufficient to warrant recovery against the defendants under the workmen’s compensation act, and this would be necessary if defendants’ contentions were followed. In their brief defendants attempt to inject numerous facts which, if substantiated, might be a defense to the action, but they are not evident on the face of the petition. A demurrer to the pleadings is considered entirely upon the allegations contained therein and the proper exhibits attached thereto. (Robinson v. Muller, supra.)
The defendants want us to assume (1) that the plaintiff and his employer, along with the defendant drilling company, were subject to the workmen’s compensation law, (2) that defendant drilling company was the principal, plaintiff’s employer Murray Casing Crews was the subcontractor, and (3) that plaintiff’s employer was undertaking work which was a part of the defendants’ trade or business or which defendants contracted to perform and in turn contracted with plaintiff’s employer Murray Casing Crews to execute a part of defendants’ work. It will be noted that nothing is stated on the face of the petition relative to the relationship between plaintiff’s employer, Murray Casing Crews, and the defendant drilling company. No statement is made that the plaintiff’s employer was to perform all or any part of the work undertaken by the defendant drilling company, nor is there anything in the petition alleging why the defendant drilling company called plaintiff’s employer, by whom plaintiff’s employer was paid, or any other fact relative thereto.
From a reading of the petition it cannot be said as a matter of law that defendant drilling company was the general contractor and that plaintiff’s employer was the subcontractor or that plaintiff was a “special employee” of the defendant drilling company.
Defendants next contend that the plaintiff and his employer, Murray Casing Crews, were operating under the workmen’s compensation act (G. S. 1949, Ch. 44, Art. 5, as amended) and that this was a case in which compensation was payable under the act, and since plaintiff failed to file his action in his own behalf within one year from the date of the accident or amend his petition to show that the action was being prosecuted in plaintiff’s name by his employer to recover as their interests might appear under the provisions of G. S. 1959, Supp., 44-504, the cause of action was assigned to plaintiff’s employer and therefore could not be maintained by plaintiff.
No useful purpose could be gained by a second discussion on the mentioned point. Suffice it to say that in Davis v. Reed, 188 Kan. 159, 360 P. 2d 847, we said:
“The act does not attempt in any way to determine the rights or liabilities of the employee in respect to a person not his employer. It does not take away from an employee his common law right of action for injury to the person against one, not his employer, who by negligence has caused the injury. (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784; and see, 58 Am. Jur., Workmen’s Compensation, § 60, p. 616; and 106 A. L. R. 1040, 1041.)
“The language of 44-504, supra, assumes that the liability of a person other than the employer, which exists at common law, continues after the adoption of the act. Thus, a common law action by an injured workman is not affected by the statute, unless the injured workman, who has a right bestowed upon him by the compensation act, brings himself under the statute by asserting a claim for which compensation is payable under the act, or by accepting compensation thereunder, and thereby creating a situation which requires adjustment between the employer and the employee in the event of recovery, (pp. 163, 164.)
“We think it fundamental that an injured employee covered by the workmen’s compensation act has a choice as to whether or not he will take compen sation from his employer. Furthermore, in our opinion, it is immaterial whether an employee has elected not to pursue his right to take compensation under the act, or whether he has faded to assert his claim within the time required by the act in ignorance of his right to assert such claim. A third party wrongdoer is in no way prejudiced by the failure of an injured employee to assert his claim for compensation payable under the act, whether or not such employee knows of his right to compensation.” (pp. 164, 165.)
PlaintifFs petition makes no reference to receiving compensation for his injuries. Even if plaintiff and his employer were under the act, and giving the petition the benefit of all inferences to which it is entitled, we cannot assume that plaintiff asserted his rights thereunder and received workmen’s compensation payments from his employer.
The judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Beier, J.:
This is an appeal from respondent Richard A. Miller’s indefinite civil commitment as a sexually violent predator under K.S.A. 59-29a01 et seq. (the Act). He argues that the district judge erred in denying his motion to stipulate to a prior sex crime case; erred in admitting evidence of other prior crimes or civil wrongs, including those that had no sexual component or had never been proved; and erred in entering judgment after a jury verdict that he qualified as a sexually violent predator under the Act when he had never been diagnosed with a sex-related abnormality or disorder. Miller also advances a cumulative error argument.
We affirm.
Factual and Procedural Background
Evidence in Miller’s commitment proceeding included testimony from tire victim of an aggravated sodomy Miller committed in 1980 as well as from an investigator in that case; testimony from the victim of a burglary Miller committed in 1992; a charging document from the 1992 case, which included an attempted rape that was later dismissed; testimony from State psychologist Ryan David Donahue about Miller’s numerous other prior crimes and civil wrongs, some with no sexual component and some never proved; and testimony from Miller’s psychiatrist, William Logan.
Miller had pleaded guilty to aggravated sodomy, along with two other crimes after his 1980 abduction of then 15-year-old K.M. In his commitment proceeding, Miller moved to stipulate to the aggravated sodomy conviction, arguing that the State’s plan to question the victim and former sheriff s office detective who investigated the crime would create undue prejudice. The district judge denied Miller’s motion; K.M. testified about the crimes committed against her; and the detective testified about his investigation.
Miller’s burglary conviction and attempted rape charge arose out of a 1992 incident in which Miller, free on parole, broke into the basement of a duplex while B.E. was bathing on the main floor. Miller filed a motion in limine to exclude B.E.’s testimony and any reference to the dismissed attempted rape charge in his commitment proceeding. Again, the district judge denied his motion. B.E. thus testified that, at tire time of the burglary, she heard glass break, walked to the top of her basement stairs, and fled when she saw Miller. The district judge also admitted, over Miller s objection, the State’s initial 1992 complaint charging Miller with attempted rape.
Miller also sought unsuccessfully to limit Donahue’s testimony. Donahue testified that in 1976 the State charged Miller for lewd and lascivious conduct and indecent liberties with a child under age 16. These charges were later dismissed when another person confessed to the crimes. Donahue also discussed the 1980 case; the 1992 case; and Miller’s inappropriate behavior while incarcerated, including purposeful masturbation within view of a female employee, his stalking of female employees, and his persistent and aggressive behavior toward a prison therapist. Donahue also catalogued Miller’s nonsexual criminal history, including car theft, second-degree murder, burglary of a drugstore, and numerous additional charges or convictions, at least one of which had been dismissed. Donahue’s recitation included
“vagrancy, contributing to a child’s misconduct, deprivation, theft, simple assault, public consumption of liquor, resisting arrest, disorderly conduct, simple assault, probation violations, burglary, criminal damage to property, resisting arrest, assault on a law enforcement officer, a liquor violation and disorderly conduct . . . that charge was actually dismissed — criminal attempt to commit burglary, theft, theft of lost or mislaid property, [and] multiple DUI charges.”
Donahue also testified that he had administered two screening tests to Miller, which ranked him at “high risk” to commit a future sex offense. Donahue diagnosed Miller with alcohol dependence, cannabis abuse, amphetamine abuse, opioid abuse, and antisocial personality disorder with narcissistic personality traits. Donahue explained that Miller probably had never been diagnosed with a sexual disorder because there is no recognized general diagnosis applicable to persons who commit sexual offenses against adults. Donahue acknowledged that many career criminals have diagnoses of antisocial personality disorder and that not all such persons commit sex offenses. Finally, Donahue opined that Miller qualifies as a sexually violent predator under the Act.
Miller’s psychiatrist, Logan, testified that individuals who are not diagnosed with a sexual disorder lack a drive or compulsion to commit sexual offenses and that persons with diagnoses such as Miller s do not qualify as sexually violent predators. In fact, he said that he was surprised the State pursued Miller s commitment because Miller had never been diagnosed with a sexual disorder. Logan diagnosed Miller with dependence on alcohol, marijuana, amphetamines, and opiates; and antisocial personality disorder. Logan opined that Miller did not meet the statutory requirements for a sexually violent predator. In his view, although Miller’s substance abuse problems and his antisocial personality disorder would qualify as “mental abnormalities” under the Act, they did not mean Miller would have difficulty controlling his future behavior.
Miller appealed his commitment to our Court of Appeals, which affirmed. We granted his petition for review.
Motion to Stipulate
On appeal, Miller does not argue that the testimony from K.M. or the detective on the 1980 crimes was not relevant to the issue facing the jury. Rather, he challenges the district judge’s decision allowing the State to use this particular method — live testimony from a victim and law enforcement — to prove its case. Miller characterizes this method as unduly prejudicial and cumulative of Donahue’s relatively dispassionate evidence of his criminal histoiy, including the 1980 case. On appeal, we review both a district court’s assessment of undue prejudice and its decision on whether evidence should be excluded as cumulative for abuse of discretion. See State v. Vasquez, 287 Kan. 40, 50, 194 P.3d 563 (2008) (prejudice); State v. Green, 274 Kan. 145, 147, 48 P.3d 1276 (2002) (cumulative nature). Discretion is abused when no reasonable person would decide an issue in the same way. See State v. Reed, 282 Kan. 272, 280, 144 P.3d 677 (2006).
Our Court of Appeals rejected Miller’s argument that the district judge was compelled to accept Miller’s stipulation to the 1980 offenses, relying on two decisions from the Texas Court of Appeals. See In re Care & Treatment of Miller, 39 Kan. App. 2d 905, 186 P.3d 201 (2008) (citing In re Adams, 122 S.W.3d 451, 453 [Tex. App. 2003] [court may admit sex offender’s prison disciplinary records, copies of previous conviction records despite offender’s stip ulation]); In re Commitment of Petersimes, 122 S.W.3d 370, 373 (Tex. App. 2003) (court may admit copies of sex offender s indictments, judgments of prior offenses despite offender’s stipulation). The Texas cases can be distinguished from the particular situation before us because neither involved the admission of live testimony on a subject of a stipulation. They stand for the broader proposition that a respondent’s stipulation does not necessarily cut off the State’s alternative proof options, but the documentary evidence at issue in the two Texas commitment proceedings obviously had far less potential to inflame a jury than die testimony Miller now challenges.
Miller asserts that the United States Supreme Court decision in Old Chief v. Untted States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997), governs. There, the government charged defendant Johnny Lynn Old Chief, a felon, with criminal possession of a firearm. Defendant offered to stipulate to his prior felony conviction of assault, but the government refused and provided other evidence of Old Chiefs prior conviction during trial. Old Chief, 519 U.S. at 175-77. The Supreme Court reversed and remanded, holding:
“[A] district court abuses its discretion if it spurns [a defendant’s] offer [to stipulate to a prior judgment] and admits the full record of a prior judgment, when the name or nature of die prior offense raises die risk of a verdict tainted by improper considerations, and when the purpose of die evidence is solely to prove the element of prior conviction.” Old Chief, 519 U.S. at 174, 192.
This court analyzed Old Chief in State v. Lee, 266 Kan. 804, 815, 977 P.2d 263 (1999), a case with similar facts, and held: “When requested by a defendant in a criminal possession of a firearm case, the district court must approve a stipulation whereby the parties acknowledge that the defendant is ... a prior convicted felon.” Lee, 266 Kan. at 815. This court, however, warned that “[its] views should not be read as limiting the State in presenting a full in-depth story of a prior crime when tire prior crime has relevance independent of merely proving prior felony status.” Lee, 266 Kan. at 816.
This court went further in In re Care & Treatment of Crane, 269 Kan. 578, 592, 7 P.3d 285 (2000), vacated on other grounds 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002), holding that Lee (and implicitly Old Chief) did not apply to sexually violent predator commitment proceedings. There, the State refused to stipulate to respondent Michael Crane’s convictions, instead calling “a number of witnesses who testified about past instances of Crane’s sexual behavior.” 269 Kan. at 590. Most of these “behavior” witnesses, however, “testified about incidents other than the aggravated sexual battery that was the basis for the conviction the jury was required to find.” Crane 269 Kan. at 590. This court, distinguishing Lee, held: “[E]vidence of prior conduct was material to the question of likelihood that the respondent would engage in repeat conduct as well as to the element of conviction of prior conduct.” Crane, 269 Kan. at 592; see also Detention ofTuray, 139 Wash. 2d 379, 400-02, 986 P.2d 790 (1999) (Old Chief not applicable to sexually violent predator commitment proceedings; district court may allow testimony from victim of sexual offense despite respondent’s offer to stipulate to conviction).
Thus we hold that the district judge did not abuse his discretion in denying Miller’s motion to stipulate to his 1980 conviction. The evidence was neither unduly prejudicial nor cumulative.
Admission of Evidence of Other Prior Crimes or Civil Wrongs
Miller makes several arguments regarding this issue. First, he contends that broad language in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), applies and dictates reversal under K.S.A. 60-455. Second, he argues that evidence of prior crimes or civil wrongs with no sexual component was irrelevant and unduly prejudicial; although his prior nonsexual bad acts might indicate he is prone to recidivism generally, they do not prove he is likely to commit a future sex offense. Third, Miller argues that Donahue’s testimony concerning the 1992 burglary was cumulative and that evidence of any charge dismissed for lack of evidence or misidentification misled the juiy and denied him a fair trial.
Gunby
Miller’s Gtmhy-based contention was not raised until he filed his petition for review. Generally issues not raised before the dis trict court cannot be raised on appeal. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). Moreover, we typically require issues addressed on petition for review to have been preserved in the Court of Appeals, if not decided there. See Rule 8.03 (2008 Kan. Ct. R. Annot. 65). We have occasionally applied exceptions, however, including when the newly asserted fheoiy involves only a question of law arising on proved or admitted facts and is finally determinative of the case. See Smith v. Yell Bell Taxi, Inc., 276 Kan. 305, 311, 75 P.3d 1222 (2003). Invocation of this exception is appropriate here to settle any conflict between Gunby and our 1998 decision in In re Care & Treatment of Hay, 263 Kan. 822, 953 P.2d 666 (1998).
Our standard of review for interpretation of our own case law is de novo. See NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 386, 996 P.2d 821 (2000). The same is true for interpretation of statutes. See Rural Water District #2 v. The City of Louisburg, 288 Kan. 811, Syl. ¶ 1, 207 P.3d 1055 (2009).
In Gunby, this court stated that admission of all evidence of prior crimes or civil wrongs would be controlled by its K.S.A. 60-455 analysis. See Gunby, 282 Kan. at 57. This statement is in tension with our holding in Hay, 263 Kan. at 838, that even uncharged prior conduct is material and admissible in a trial to determine if an individual is a sexually violent predator and that “the prohibitions of K.S.A. 60-455 are not applicable.” We affirmed our Hay holding in Crane, 269 Kan. at 591-92, another sexually violent predator commitment proceeding:
“ “We are hard-pressed to see how [prior bad acts] can be prohibited by K.S.A. 60-455 [in sexually violent predator cases] when it is an essential element of the required proof and necessary for the decision-making process of the jury.’ [Citation omitted.]
“[E]vidence of prior conduct [is] material to the question of likelihood that the respondent would engage in repeat conduct as well as to the element of conviction of prior conduct.”
Six years after Crane, in Gunby, a criminal case, we did not discuss the unique nature of commitment proceedings under the Act. We focused only on K.S.A. 60-455 and common-law interpretations and applications of it in the setting of criminal trials.
At the time of Miller’s commitment trial, K.S.A. 60-455 provided:
“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.”
This court has repeatedly held: “Under the plain language of [K.S.A. 60-455], [a court must determine] whether the evidence relates to a prior crime or civil wrong and, if so, whether it is admitted solely to prove propensity or whether it is relevant to prove some material fact other than propensity.” State v. Warledo, 286 Kan. 927, 941, 190 P.3d 937 (2008). Prior crimes or bad acts may not be admitted to prove a defendant’s propensity to have committed a crime on a specified occasion in the past. See State v. Reid, 286 Kan. 494, 186 P.3d 713 (2008) (K.S.A. 60-455 designed to eliminate danger evidence will be considered to prove the defendant’s mere propensity to commit charged crime); State v. Garcia, 285 Kan. 1, 169 P.3d 1069 (2007) (under plain, unambiguous language of K.S.A. 60-455, evidence of prior crimes, civil wrongs cannot be admitted to prove defendant’s propensity to commit charged crime); State v. Horton, 283 Kan. 44, 151 P.3d 9 (2007) (before admitting evidence of other bad acts, prior crimes, district judge must determine whether evidence is relevant to any disputed material fact other than the defendant’s propensity to commit charged crime). Gunby also dealt with a situation in which the State sought to use evidence of a prior crime or civil wrong to demonstrate the likelihood that the defendant’s behavior at the time of a charged crime was consistent with behavior or acts that predated it. See Gunby, 282 Kan. at 47.
K.S.A. 59-29a01 et seq., also deals with the predictive force of a particular individuars earlier conduct, with a proven propensity and whatever rough calculation of probability it supports. But the Act and its procedures for indefinite commitment of sexually violent predators do not use prior conduct to prove a “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.” (Emphasis added.) K.S.A. 60-455. It does not use one historical act to prove another historical act. It looks to the future, to the probability of a respondent’s continuing “menace to the health and safety of others.” K.S.A. 59-29a02(c). The statutes can thus be read in harmony with each other. See State v. Johnson, 286 Kan. 824, 850-51, 190 P.3d 207 (2008).
We also note that our sister state of Wisconsin addressed the intersection of its sexual predator commitment process and its equivalent to K.S.A. 60-455’s “other acts” provision in State v. Franklin, 270 Wis. 2d 271, 677 N.W.2d 276 (2004). It held that the provision did not apply to sexually violent predator commitment proceedings, because it “lookfed] back to analyzing proof of acts that [had] already occurred [rather than] forward to assess the substantial probability of future conduct.” Franklin, 270 Wis. 2d at 282. “ ‘[T]he nature of the [sexually violent] predator inquiry virtually guarantees the wide-ranging admissibility of evidence concerning the defendant’s past crimes and transgressions.’ ” Franklin, 270 Wis. 2d at 284 n.9.
We agree with the Wisconsin outcome and rationale. There is no doubt that our Act also requires evidence of a sex offender’s propensity to commit sexually violent acts in the future.
The broad reach of our statement in Gunby about the universality of its K.S.A. 60-455 analysis must be circumscribed in light of Hay, Crane, and now this case. Miller is not entitled to reversal on this argument.
Nonsexual Priors
Miller’s argument that evidence of his prior acts with no sexual component was irrelevant and unduly prejudicial raises an issue of first impression in Kansas. Many of our sister states have held that nonsexual prior crimes and civil wrongs are admissible in sexually violent predator commitment proceedings. Our research has found no jurisdiction holding otherwise.
“ ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “The concept of relevance under Kansas law includes both whether evidence is probative and whether it is material.” Vasquez, 287 Kan. at 50. We review whether evidence is probative under an abuse of discretion standard and whether it is material under a de novo standard. See Vasquez, 287 Kan. at 50. As mentioned above, a district judge’s determination on whether certain evidence is unduly prejudicial is reviewed for abuse of discretion.
In Det. of Stout, 159 Wash. 2d 357, 150 P.3d 86 (2007), the Supreme Court of Washington held that nonsexual criminal history is relevant if used to prove a mental abnormality such as antisocial personality disorder. In addition, the Supreme Court of Wisconsin has held:
“[P]ast uncontrolled behavior is relevant to whether a person will exhibit uncontrolled behavior in the future. [Citation omitted.] As the United States Supreme Court has explained, ‘[previous instances of violent behavior are an important indicator of future violent tendencies.’ [Citation omitted.] . . . [E]ven though [many of the past acts were not sexual], they were relevant to [the] diagnoses of paraphilia and schizophrenia, as both experts used this evidence to support their opinions. Additionally, . . . the standard risk assessment for sexual offenders takes into account all past violations of the law in attempting to evaluate the probability of future sexually assaultive behavior.” Franklin, 270 Wis. 2d at 288-89.
In this case, given the opposing experts’ agreement on Miller’s diagnosis of antisocial personality disorder, and its role in Donahue’s ultimate opinion on whether Miller qualified as a sexually violent predator, the sole issue the jury was charged to decide, we have little hesitation in holding that the nonsexual prior crimes and civil wrongs were both probative and material, i.e., relevant. Furthermore, while prejudicial, they were not unduly so. The jury had plenty of other evidence, including K.M.’s testimony, on which to rely for its verdict.
We do not mean to suggest that all nonsexual prior crimes and civil wrongs committed by a respondent in a sexual predator civil commitment proceeding are automatically admissible. Their relevance will be determined by the particular facts of each case, by how those facts fit together, by the diagnosis or competing diagnoses, by how that diagnosis or diagnoses affect the expert opinion or opinions, and by the jury focus outlined by the Act. It appears that here the district judge’s decision was entirely sufficient under our usual relevance and prejudice rubrics. We acknowledge that those rubrics may be somewhat vulnerable to manipulation in cases such as Miller’s — particularly to the extent that all recognize, or soon will, that the more general a diagnosis the wider array of nonsexual criminal history it may allow. But we regard this as a reason to urge the psychiatric community to develop more specific diagnoses for offenders like Miller, rather than as a reason for us to formulate new, targeted common-law rules for relevance and prejudice analysis.
1992 Offense
Miller’s argument that Donahue’s testimony about the 1992 burglary was cumulative of B.E.’s testimony is without merit. Donahue could not testify to anything other than the mere fact of conviction and its effect on Miller’s diagnoses and his opinion. B.E., like K.M. on the 1980 case, could testify in far greater detail about the circumstances surrounding the crime and her victimization. To the extent there was minor overlap in the testimony of these two witnesses, the district judge did not abuse his discretion in allowing it. See Green, 274 Kan. at 147.
Crimes Dismissed for Lack of Evidence or Misidentification
Hay held that even uncharged prior crimes may be admissible against a respondent in a sexually violent predator commitment proceeding. Miller’s argument here is distinct and intuitively appealing: Evidence of a prior charge that has been dismissed for lack of evidence or misidentification misleads a jury and denies a respondent a fair trial.
In the abstract, we agree that the State’s sponsorship of evidence of crimes with which a respondent has been charged but that have later been dismissed for lack of evidence or misidentification is playing with fire. The problem for Miller is that it appears from the record before us that any misdirection of his jury’s attention was temporary and corrected before the jury began its deliberation. As our Court of Appeals noted, the district judge admitted a letter confirming that the attempted rape charge filed in the 1992 burglary had been dismissed. Donahue testified that the 1976 sex crime charges were dismissed when someone other than Miller confessed to the crimes. Donahue also mentioned that another charge included in his recitation was dismissed. We therefore are not persuaded drat any knowledge the jury had about specifics in Miller’s charging and conviction history was inaccurate or that, in the context of his comprehensive, criminal career, it denied him a fair trial.
General Rather Than Sex-related Abnormality or Disorder
Miller makes both statutory and Fourteenth Amendment due process claims that he must have been given a diagnosis of a sex-related abnormality or disorder in order to be indefinitely committed as a sexually violent predator. Miller asserts that we must distinguish between a “dangerous sexual offender” and a “dangerous but typical recidivist.” The former may be committed under the Act, while the latter may not.
Both statutory and constitutional interpretation are subject to unlimited review on appeal. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (statutoryinterpretation); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) (constitutional interpretation).
The most fundamental rule of statutory interpretation is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through tire statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
K.S.A. 59-29a02 provides:
“(a) ‘Sexually violent predator means any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.
“(b) ‘Mental abnormality’ means a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sex ually violent offenses in a degree constituting such person a menace to the health and safety of others.
“(c) ‘Likely to engage in repeat acts of sexual violence’ means the person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.”
The language of the statute is clear, and Miller s position is without merit. The statute does not narrowly define mental abnormality as a sex-related disorder. It provides for the commitment of a sex offender with any mental abnormality — whether congenital or acquired, whether affecting emotional or volitional capacity — that makes him or her likely to engage in repeat acts of sexual violence, such that he or she or the acts pose “a menace to the health and safety of others.” K.S.A. 59-29a02(b).
Moreover, the statute’s definition and procedure do not offend due process. Kansas v. Crane, 534 U.S. 407, 409, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002) (“mental abnormality” as defined by Act satisfies substantive due process); In re Detention of Barnes, 689 N.W.2d 455, 458-60 (Iowa 2004) (due process does not require diagnosis of sexual disorder; due process satisfied when condition, disorder predisposes particular person, under particular circumstances, to commit sexually violent offenses); State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (1998) (“mental disorder” encompasses more than sex-related disorders; person with antisocial personality disorder, no other mental disorder, maybe sexually violent person). Not every sex offender whose diagnoses match Miller’s will necessarily qualify as a sexually violent predator under the Act, but Miller received all the process due to him under the Act and the federal Constitution.
Cumulative Error
Miller also briefly references the cumulative error doctrine as a basis for reversal. Seeing no errors to combine, we do not apply the doctrine. See State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007). There is no cumulative error.
Affirmed.
McFarland, C.J., not participating.
Standridge, J., assigned.
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Per Curiam:
This is an original proceeding in discipline filed by the office of tihe Disciplinary Administrator against the respondent, Phillip Kent Weber, of Overland Park, an attorney admitted to tire practice of law in Missouri in 1994 and in Kansas in 1995. The respondent’s license to practice law in die state of Kansas has been administratively suspended since October 8, 2008, for failure to pay the annual attorney registration fee, failure to fulfill the minimum continuing legal education requirements, failure to pay the annual continuing legal education fee, and failure to pay the noncompliance continuing legal education fee.
On February 22,2005, the Missouri Supreme Court entered the following disbarment order:
“The Chief Disciplinary Counsel having filed an information advising this Court of its findings, after investigation that there is probable cause to believe Respondent, Phillip Kent Weber, is guilty of professional misconduct and having filed with said Information, pursuant to Rule 5.13, a Notice of Default, notifying the Court that Respondent, Phillip Kent Weber, failed to timely file an answer within the time required and, therefore, pursuant to Rule 5.13, Respondent is in default; and
“It appearing Respondent is guilty of professional misconduct and should be disciplined;
“Now, therefore, it is ordered by the Court that the said Phillip Kent Weber, be, and he is hereby disbarred, that his right and license to practice law in the State of Missouri is canceled and that his name be stricken from the roll of attorneys in this State.”
After learning that the respondent had been disbarred by the Missouri Supreme Court, the Disciplinary Administrator docketed a complaint against the respondent. On three different dates (August 16, 2006, June 10, 2008, and September 22, 2008), the Disciplinary Administrator wrote to the respondent at the last address provided to the Clerk of the Appellate Courts requesting respondent provide a written response to the docketed complaint; respondent failed to respond to any of the letters. On November 14, 2008, the Disciplinary Administrator forwarded a copy of the formal complaint and notice of hearing to the respondent via certified mail. Again respondent failed to respond. An investigator for the Disciplinary Administrator learned that the respondent’s address was a UPS mail box for which respondent had ceased making rental payments. After conducting research on the respondent’s employment, the investigator located respondent at his place of employment and personally served him with a copy of the formal complaint and notice of hearing. Thus, the respondent received actual notice of the hearing. The respondent did not file an answer to the formal complaint.
A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 15, 2009. The respondent did not appear. Upon conclusion of the hearing, in its conclusions of law, the panel noted:
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. Later, actual service was obtained when the Disciplinary Investigator hand-delivered the Formal Complaint and Notice of Hearing to the Respondent. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.”
Applying Kansas Supreme Court Rule 202 concerning reciprocal discipline (2008 Kan. Ct. R. Annot. 261), and based on the documents filed in the Missouri disciplinary proceeding, the hearing panel concluded that the respondent violated KRPC 8.1(b) (2008 Kan. Ct. R. Annot. 579) (duty to respond to a lawful demand for information from a disciplinary authority), Supreme Court Rule 207 (2008 Kan. Ct. R. Annot. 295) (duty to cooperate in disciplinary investigations/duty to report violations), and Supreme Court Rule 211 (2008 Kan. Ct. R. Annot. 313) (duty to cooperate with formal hearing panel).
In its conclusions of law the hearing panel further found:
“6. Recently, in In re Tarantino, [286 Kan. 254,] 182 P.3d 1241 (2008) and In re Harris, [286 Kan. 260, 182 P.3d 1249] (2008), the Kansas Supreme Court addressed what treatment disbarment by default from Missouri will receive in Kansas. In those cases, the Court concluded that the Respondents’ failures to cooperate in the disciplinary proceedings in Missouri and in Kansas established clear and convincing evidence that discipline should be imposed. Specifically, in Tarantino, the Court stated:
‘[I]t has been established by clear and convincing evidence that respondent was disbarred in Missouri for misconduct in fading to file a timely response to the Missouri information and that, by Missouri Supreme Court Rule 5.13, the effect thereof is consent to disbarment by the Missouri Supreme Court. Accordingly, that order of disbarment is valid and satisfies the grounds for reciprocal discipline set forth in Supreme Court Rule 202, which provides that a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall conclusively establish the misconduct for purposes of a disciplinary proceeding in Kansas.’ [286 Kan. at 258.]
“7. In Tarantino, Harris, and in this case, the Respondents each failed to cooperate or participate in the Missouri disciplinary proceedings and, likewise, failed to cooperate or participate in the Kansas disciplinaxy proceedings.”
The panel recommended that the respondent be disbarred from the practice of law in the State of Kansas.
Discussion
In disciplinary proceedings, this court “considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.]” In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Any attorney misconduct must be established by clear and convincing evidence. 276 Kan. at 636. Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable.’ ” In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 (2008) (quoting In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 [2008]).
The respondent filed no response to the formal complaint, did not appear before the panel’s hearing thereon, and did not appear before this court during our scheduled hearing on the complaint. The record reflects that all requirements of notification were satisfied. The respondent filed no exceptions to the hearing panel’s conclusions; therefore these violations are deemed admitted under Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327). We agree with the hearing panel’s conclusions in its final hearing report that the failure to file a response to the Kansas disciplinary complaint and failure to appear before this court are in themselves violations of our rules. See KRPC 8.1(b); KRPC 8.3(a) (2008 Kan. Ct. R. Annot. 585); Supreme Court Rule 207(b); Supreme Court Rule 211(b).
We note that the hearing panel correctly found that the information and default judgment in Missouri did not constitute clear and convincing evidence of a violation of Supreme Court Rules. Although the original information filed against the respondent in Missouri included allegations of several serious ethical violations, the Missouri default procedure does not require proof of these violations by clear and convincing evidence. Instead, the Missouri order concluded that there was “probable cause” to believe these violations had occurred. Probable cause is a lesser standard than that required for disciplinary actions in this state. See Tarantino, 286 Kan. at 256-59.
We find that there is clear and convincing evidence in the record that the respondent has been disbarred by way of the Missouri default procedure and that the respondent has failed to cooperate in the disciplinary investigation and proceedings in this state. The Missouri information, standing alone, does not provide clear and convincing evidence of the allegations of misconduct set forth therein.
Conclusion and Discipline
There is clear and convincing evidence that the respondent violated KRPC 8.1(b); KRPC 8.3(a); Supreme Court Rule 207(b); and Supreme Court Rule 211(b). In light of the respondent’s disbarment in Missouri and his failure to cooperate in the disciplinary process in this state, we conclude that the appropriate discipline is indefinite suspension from the practice of law in Kansas, with the special condition that no application for reinstatement will be considered unless accompanied by proof that the respondent has been reinstated to the practice of law in Missouri.
It Is Therefore Ordered that Phillip Kent Weber be indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 266).
It Is Further Ordered that the respondent may not apply for reinstatement in this state unless that application is accompanied by proof that the respondent has been reinstated to the practice of law in Missouri.
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350), and in the event respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
|
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The opinion of the court was delivered by
Miller, J.:
Valley View State Bank (Bank), the plaintiff in this action and a judgment creditor of Oriental Carpet Center of the United States, Ltd., a Kansas corporation, appeals from an order entering summary judgment against it and in favor of the defendant, Jean C. Owen, custodian for Oriental Carpet. The Bank raises a number of issues on appeal, but we will be concerned here only with the personal liability of a custodian for a corporation for the negligent loss of corporate assets, and the standing of a creditor to bring suit against the custodian, in his or her personal capacity, for damages for negligence resulting in the loss of corporate assets.
The facts, extending through three separate lawsuits, are somewhat complicated but are not disputed. We will attempt to set them forth briefly in chronological order. Hassan Momeni and Hossein Cherafat formed a corporation to sell oriental carpets, Oriental Carpet Center of the United States, Ltd., which was incorporated under the laws of Kansas in October 1981. Momeni owned 50% of the stock, and Cherafat owned 1% and controlled 49% as trustee for his minor children. The company had showrooms in Overland Park, New York City, and Hamburg, West Germany.
By August 1982, the relationship of Momeni and Cherafat had deteriorated. Momeni filed a shareholder derivative action in Johnson County District Court, case No. 114504. In September, he filed a motion for the appointment of a custodian for the corporation under K.S.A. 17-6516. That statute reads as follows:
“(a) The district court, upon application of any stockholder, may appoint one or more persons to be custodians and, if the corporation is insolvent, to be receivers, of and for any corporation when:
“(1) At any meeting held for the election of directors the stockholders are so divided that they have failed to elect successors to directors whose terms have expired or would have expired upon qualification of their successors; or
“(2) The business of the corporation is suffering or is threatened with irreparable injury because the directors are so divided respecting the management of the affairs of the corporation that the required vote for action by the board of directors cannot be obtained and the stockholders are unable to terminate this division; or
“(3) The corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve, liquidate or distribute its assets.
“(b) A custodian appointed under this section' shall have all the powers and title of a receiver appointed under K.S.A. 17-6901, but the authority of the custodian is to continue the business of the corporation and not to liquidate its affairs and distribute its assets, except when the court shall otherwise order and except in cases arising under subsection (a)(3) of this section or subsection (a)(2) of K.S.A. 17-7212.”
The corporation was not insolvent. The application for appointment of the custodian recited internal dissension and irreconcilable conflict between Momeni and Cherafat, the owners and directors of the corporation, and the dissipation of the corporate assets, and sought the appointment of a custodian pursuant to K.S.A. 17-6516(a) (2) and (3) to continue the corporate business and manage corporate assets in an orderly manner.
On October 13, 1982, both parties appeared by counsel and argued the matter. The trial court, acting pursuant to K.S.A. 17-6516, appointed Jean C. Owen as custodian of the affairs of Oriental Carpet Center, directed that he have immediate control of all of the assets of the corporation, and further directed him to inventory the assets and authorized him to continue the business of the corporation or to liquidate the assets if that would be to the maximum economic benefit to all parties. Owen was further directed to account to the court as the court shall order. Prior to Owen’s appointment, however, Hassan Momeni moved the entire inventory, consisting of some 2,000 to 2,500 oriental carpets, to the corporate sh.owroom in New York City. The trial court ordered the carpets returned to Overland Park, Kansas. Momeni did not return the carpets. In late October 1982, Owen traveled to New York City where he examined the carpets, retained a New York lawyer, Michael Drezin, engaged security guards to attend the showroom during all hours when it was open for business, and installed new locks and a security system at the showroom. Meanwhile, the lawsuit was tried to the court, and Momeni and Cherafat were each granted judgment, to be satisfied out of the corporate assets.
On March 25, 1983, the Valley View State Bank was denied leave to intervene in the action. On April 15, 1983, Owen filed a motion to continue the custodianship. On July 28, the carpets were moved from the showroom to a New York warehouse. Owen instructed Drezin to make sure that the carpets were stored so that they could not be removed from the warehouse without either Drezin’s or Owen’s permission. However, that directive was not carried out and the carpets were stored under Momeni’s name. On October 20, 1983, Momeni removed the carpets from the warehouse and shipped them to West Germany. Momeni moved to West Germany, and no longer took any active interest in the lawsuit. Owen first became aware that the carpets were gone when he was so advised by Cherafat on December 23, 1983.
Meanwhile, Valley View State Bank filed a separate mortgage foreclosure action against Oriental Carpet Center, Ltd., being Johnson County case No. 116078. Judgment was entered for the Bank and against Oriental in the amount of $231,883.52 plus interest. On June 13, 1983, the foreclosure sale of real estate for $160,000 was confirmed, leaving the Bank with a deficiency judgment of more than $48,000. On December 8, 1983, the Bank issued a garnishment to Jean Owen. Some months later, Owen answered that he had no property belonging to Oriental Carpet Center, Ltd.
This case was filed by Valley View State Bank on February 22, 1984. By an amended petition the Bank contended that Owen, as custodian of Oriental Carpet, acted in a fiduciary capacity for all of the shareholders and creditors of Oriental Carpet Center, Ltd., including Valley View Bank; that Owen was negligent in allowing the assets to be sequestered by one of its shareholders; and that as a result of his negligence, the Bank was damaged. The Bank sought to recover the balance of its unpaid judgment against Oriental Carpet Center, Ltd., in the amount of $48,508.67, plus interest, attorney fees, and costs, from Owen because of his breach of fiduciary duty to the Bank and all other creditors of Oriental Carpet Center. Owen filed a motion for summary judgment, which was overruled by Judge Lewis C. Smith. Later, all of the judges of the Tenth Judicial District disqualified themselves, and Judge Cordell D. Meeks, Jr., of Wyandotte County, was assigned to try the case. On April 18, 1986, Judge Meeks sustained Owen’s renewed motion for summary judgment. The court held that a custodian steps into the shoes of a director or officer of a corporation, and as such should enjoy the same protection from liability enjoyed by officers and directors. While officers and directors may be liable to the corporation for negligent loss of corporate assets, they are not liable to creditors for such losses. Additionally, the court held that Owen did not exceed his authority, and could not be sued in his individual capacity absent some showing that he exceeded his authority. Finally, the court held that Owen is immune from liability under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., since he was a government employee performing a judicial or discretionary function. It is from that order that the Bank appeals.
At the time Judge Meeks sustained the motion for summary judgment, he had before him one document which Judge Smith had not seen. This was the affidavit of Judge G. Joseph Pierron, the trial judge who presided during the pendency of case No. 114504, Momeni v. Oriental Carpet Center, and who appointed Jean C. Owen as custodian of the affairs of that corporation. Judge Pierron stated that when he entered the order directing the return of the inventory to Johnson County, Kansas, he stated on the record at that time that the custodian should exercise his best judgment in either leaving the carpets in New York or transporting them back to Overland Park. The purpose of the injunction was to require Momeni, Cherafat, and the corporation to surrender the carpets and all other assets of the corporation to the custodian, and to order the parties to cooperate with the custodian. Judge Pierron stated that he was aware that Owen as custodian chose to leave the carpets in New York due in part to better market conditions there and in part to the cost of transporting the carpets back to Overland Park, and the action of leaving the inventory in New York was done with the authority and consent of the court. Judge Pierron was also aware of the employment of a New York attorney, Michael Drezin, and the securing of his services was also done with the authority and consent of the court.
We now turn to the first issue, whether a custodian for a corporation may be held personally liable for the negligent loss of corporate property committed to his custody or control, regardless of whether he was acting within or without the scope of his authority. We first note the distinctions between a custodianship and a receivership. The purpose of a receivership, as we noted in Johnson v. Farm & Home Savings & Loan Ass’n., 131 Kan. 238, 243, 289 Pac. 396 (1930), is to preserve corporate assets of an insolvent debtor for the benefit of the creditors. A receiver is appointed at the request of a creditor or stockholder if the corporation is insolvent. K.S.A. 17-6901.
A custodian for a corporation may be appointed by the district court on the application of a stockholder, as provided in K.S.A. 17-6516. A custodian is appointed to continue the business of the corporation, and, unless the court otherwise directs, not to liquidate its assets. A custodian is not appointed because the business is insolvent, but when the stockholders are divided and have failed to elect successors to directors, or the business of the corporation is suffering because the directors are so divided that corporate affairs are not being properly managed, and the stockholders are unable to terminate the division among the directors, or when the corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve, liquidate, or distribute its assets. K.S.A. 17-6516. A receiver is appointed upon the application of a creditor for the benefit of the corporate creditors; a custodian is appointed on application of a stockholder for the benefit of the corporation. As the Kansas Comment to K.S.A. 17-6516 states, the conditions enumerated in that statute for the appointment of a custodian “involve the inability or failure of the corporation (either through its directors or stockholders) to carry out required acts or functions.” A custodian assumes the management function ordinarily performed by the directors and officers of a corporation.
In Speer v. Dighton Grain, Inc., 229 Kan. 272, 281-82, 624 P.2d 952 (1981), we said:
“A director is an agent of the corporation and as such may become liable to the corporation. Directors may only become personally liable to a creditor by either (1) statute or (2) ‘by some conduct which creates a privity of contract between them, or which results in a tortious injury to the creditor’ which results in particular injury to rights peculiar to the creditor.
“[T]he directors or officers are liable to the corporation and the stockholders for loss resulting from their malfeasance, misfeasance or their failure or neglect to discharge the duties imposed by their office.”
We concluded:
“A creditor of an insolvent corporation who sues solely on his own behalf cannot maintain a personal action against directors or officers who, by negligent mismanagement of the corporation’s affairs, have breached their duty to the corporation to the consequent damage or injury of its creditors.” p. 284.
Custodians and receivers serve different purposes. The appointment of a custodian is for the benefit of the corporation and its shareholders; the appointment of a receiver, on the other hand, is ordinarily for the benefit of the corporate creditors. The appointment of a custodian to continue the business is designed to avoid dissolution and liquidation, which is not always a satisfactory remedy, particularly for minority shareholders. See O’Neal and Magill, California’s New Close Corporation Legislation, 23 U.C.L.A. L. Rev. 1155, 1164-66 (1976). Usually, receivers are required upon their appointment to furnish a bond for the faithful performance of their duties. 16 Fletcher, Cyclopedia of the Law of Private Corporations § 7736 (rev. perm. ed. 1979). No bond was required of the custodian in this case, and when the parties stipulated, and the court ordered the inventory to be returned to Johnson County and placed under the direct control and supervision of the custodian, the parties specifically waived the furnishing of a bond.
The issue here is really one of standing: Do the creditors of a corporation have standing to sue the custodian for a corporation for negligent loss of corporate assets? Valley View relies upon Johnson v. Farm & Home Savings & Loan Ass’n., 131 Kan. 238. We do not find that opinion persuasive for two reasons. Johnson involved a receiver, not a custodian. The receiver was appointed because of the insolvency of the Midwest State Bank. Here, we have a custodian appointed not because of the insolvency of the corporation but because of deadlocked stockholders and directors. Second, the claim against the receiver in Johnson, which this court held might be asserted against him in his individual but not his official capacity, was for allegedly unlawfully taking possession of the assets of a third party, Farm & Home Savings & Loan Association. No claim was made by Farm & Home against the receiver for negligently causing loss to the Midwest State Bank, the corporation for which he was made receiver.
Here, claim is made against the custodian, personally, for negligent loss of corporate assets, and that claim is asserted not by the corporation, but by a corporate creditor. The officers and directors of the corporation would have no personal liability to corporate creditors under like circumstances, and we see no reason, based upon the facts of this case, to impose liability on the custodian which is not imposed by law upon the corporation’s officers and directors. We have researched the decisions in other states as to the liability of a custodian for a corporation, appointed under similar provisions of laws of our sister states, and find no opinions deciding this issue, and none have been cited by counsel. As stated above, however, we find good reason to distinguish between the liability of a custodian, appointed upon the request of the stockholders of-a solvent corporation to continue the business, and the liability of a receiver, appointed upon application of the creditors of an insolvent corporation to liquidate its assets. A custodian is not a trustee for the creditors; he may become liable to the corporation, but under the circumstances before us in this case, he is not liable to the creditors.
We hold that a custodian, appointed pursuant to K.S.A. 17-6516 to continue the business of a corporation, steps into the shoes of the officers and directors of the corporation, and the custodian’s personal liability does not exceed that of the individual officers and directors. Under the facts of this case, the custodian is not personally liable to corporate creditors for negligent loss of corporate assets. The creditor, therefore, has no standing to bring suit against the custodian in his individual capacity for damages for negligent loss of corporate assets.
The issue decided above is determinative of this appeal, and therefore we need not decide other issues presented by industrious counsel.
The judgment is affirmed.
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