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The opinion of the court was delivered by
Prager, C.J.:
This is an action brought by W. S. Dickey Clay Manufacturing Company (Dickey Clay) to review an order of the Kansas Corporation Commission (KCC) relating to a franchise agreement between the Gas Service Company and the City of Pittsburg, Kansas. The Crawford County District Court granted the motion of the KCC to dismiss the case for lack of jurisdiction. Dickey Clay appealed.
Two basic issues are raised on the appeal:
(1) Whether the district court erred in dismissing Dickey Clay’s action for judicial review because of Dickey Clay’s failure to file a timely appeal;
(2) whether the district court erred in concluding that Dickey Clay did not have an independent action for judicial review pursuant to K.S.A. 77-601 et seq.
The facts in this case are not disputed and were found by the district court to be as follows:
“FINDINGS OF FACT
“1. W. S. Dickey Clay Manufacturing Co. (Dickey) is a corporation duly organized and existing under the laws of the State of Delaware, is duly authorized to do business in the State of Kansas ás a foreign corporation and operates a clay products manufacturing and processing plant in Pittsburg, Kansas at W. S. Dickey Clay Manufacturing, P. O. Box 6, Pittsburg, Kansas, 66762. Dickey is a significant consumer of natural gas in the State of Kansas and has purchased substantial amounts of natural gas for several years as an industrial customer of KPL/Gas Service Co. (Gas Service) in the State of Kansas.
“2. The defendant Kansas Corporation Commission (KCC) is an administrative branch of the Kansas state government with its principal place of business at the State Office Building, Topeka, Kansas. Gas Service is a public utility with its principal place of business at 200 S.W. 6th, Topeka, Kansas.
“3. The KCC undertook to review the practices of electric, gas and telephone utilities concerning municipal franchise agreements on July 24, 1982. After the cities of Topeka, Kansas City and Salina intervened to challenge the KCC’s authority, the KCC on October 21, 1982, determined that it had adequate authority to conduct the investigation; hearings were held on March 16, 1983.
“4. On July 20, 1983, the KCC issued an order which required that:
“(1) All utilities shall file with the commission all new franchise agreements and all renegotiated franchise agreements for the review of the commission. Such filings shall be made at least 60 days in advance of the effective date of the franchise agreement.
“(2) Most favored nations clauses are found to be contrary to the public interest and utilities shall not be permitted in the future to pass through increases resulting from such clauses in franchise agreements.
“5. Meanwhile, on July 10,1984, the Pittsburg City Council passed Ordinance No. S-651, granting a franchise to Gas Service in which it was provided that the Grantee (Gas Service) shall:
“. . . pay into the City Treasury a sum equal to five (5%) percent of said gross receipts from the sale of gas for domestic purposes, and one (1%) percent of its gross receipts from the sale of gas for industrial purposes, which shall have accrued subsequent to the effective date of this franchise.
The ordinance was duly published thereafter and is now an approved ordinance. The length of the franchise agreement is twenty years.
“6. On September 24,1984, the KCC set for hearing on November 1, 1984, the matter of the filing of a franchise ordinance between Gas Service and the City of Pittsburg (Pittsburg). This matter had arisen because the franchise agreement between Gas Service and Pittsburg had terminated, and in accord with the new KCC order of July 20, 1983, the new franchise agreement which had been approved by the Pittsburg City Council on July 10,1984, had to have KCC review before implementation. Dickey Clay was not a party, intervenor or protestant to this proceeding, although notice was given according to statute.
“7. The KCC undertook to review the franchise tax agreement. An employee of Dickey Clay attended the public hearing on November 4, 1984, but did not formally enter an appearance, present any testimony, or otherwise participate.
“8. On January 11, 1985, the KCC issued the first of two orders relating to the negotiations of the franchise agreement between Gas Service and Pittsburg. In this order KCC found that the five percent tax charged by Gas Service on receipts paid by residential users and the one percent tax paid by industrial users was a disparity that could be considered discriminatory. Accordingly, the KCC gave Gas Service the option of preparing a new franchise agreement or establishing the existing levels were reasonable and nondiscrimmatory which they alleged had not been done to date.
“9. On January 24, 1985, Pittsburg filed a Motion to Dismiss and a Motion for Rehearing. Gas Service also filed a motion for rehearing. Dickey Clay did not file any motions. Dickey Clay was not a party, intervenor or protestant at this point in time.
“10. On March 4,1985, the KCC issued an order denying both applications for rehearing and the motion to dismiss and upholding its prior determination that the five percent residential/one percent industrial split was too great a disparity in rate case to be considered reasonable. The KCC further ordered Gas Service to ‘revise its tariffs to comply with this finding.’ Gas Service provided a recommended tariff, termed equivalent franchise tax, on May 2, 1985.
“11. On May 20, 1985, Dickey filed a request for hearing, a protest of rate filing, and a petition to intervene in the City of Pittsburg case with the KCC.
“12. The KCC met on May 21,1985, in conference session, and approved the new tariff proposed by Gas Service. The tariff was then forwarded to Gas Service for implementation of the collection of the franchise tax based on this newly approved tariff. The Gas Service Company has inserted the approved, lawful tariff rates into their collection programs. Gas Service will begin collecting the lawful rates in the July billing period.
“13. On June 10, 1985, the request for hearing, petition to intervene and protest of rate filing of Dickey Clay were denied by operation of law.
“14. The KCC, at an administrative meeting on June 11, 1985, denied the request for stay, suspension or rescission of tariff approval order of May 21, 1985, application for rehearing, and petition to intervene which had been filed on May 31, 1985.”
It is also undisputed that Dickey Clay filed a petition for judicial review in the district court of Crawford County on June 20, 1985. On June 30, 1986, the district court granted the motion of the KCC to dismiss Dickey Clay’s action for want of jurisdiction.
The first issue raised on the appeal is whether the district court erred in dismissing Dickey Clay’s, action for review based on Dickey Clay’s failure to seek a timely review of the KCC order. The jurisdictional procedures to be followed in order to perfect an appeal from a KCC order are set forth in K.S.A. 66-118a through K.S.A. 66-118c.
K.S.A. 66-118a defines the term “party” and provides:
“66-118a. Review proceedings; designation of court to conduct review. The term ‘party’ as used in this act, and any amendments thereto, shall include any person, firm, corporation, association, municipality, taxpayer, municipal organization, mercantile, agricultural or manufacturing organization or system, public utility or common carrier interested in any matter pending before the state corporation commission or in proceedings for review of an order or decision of the commission. As used in this act, ‘public utility’ means a public utility as defined by K.S.A. 66-104 and amendments thereto. The court of appeals shall have exclusive jurisdiction of proceedings for review of an order or decision of the state corporation commission arising from a rate hearing requested by a public utility or requested by the state corporation commission when a public utility is a necessary party. Proceedings for review of other orders or decisions of the state corporation commission shall be to a district court having venue, as provided in K.S.A. 66-118c. Any proceeding for review of an order or decision of the corporation commission which is pending at the time this act takes effect shall not be affected by the provisions of this act. In proceedings for review of an order or decision of the commission, the state corporation commission shall be a party to the proceedings and shall have all rights and privileges granted by this act to any other party to such proceedings.” (Emphasis supplied.)
K.S.A. 66-118b sets forth the jurisdictional requirement that a party dissatisfied with an order or decision of the KCC must file a motion for rehearing, stating:
“66-118b. Same; rehearing; application; time within which filed and rehearing held. Any party being dissatisfied with any order or decision of the state corporation commission may apply, within ten (10) days from the date of the service of such order or decision, for a rehearing in respect to any matter determined therein; within ten (10) days of the date of filing of an application for rehearing, said application shall be granted or denied or continued, but any such continuance shall not exceed thirty (30) days from the date of said order of continuance. If the rehearing is not granted or continued within such ten-day period it shall be taken as denied, and if the rehearing is continued, for purposes of oral argument or otherwise, and the rehearing is not granted within said thirty-day period, it shall be taken as denied. If a rehearing be granted the matter shall be determined by the commission within thirty (30) days after the conclusion of the rehearing.
“No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall make application for a rehearing as herein provided. Such application shall set forth specifically the ground or grounds on which the applicant considers such order or decision to be unlawful or unreasonable. No party shall, in any court, urge or rely upon any ground not set forth in said application. An order made after a rehearing, abrogating, changing or modifying the original order or decision, shall have the same force and effect as an original order or decision, including the obligation to file an application for rehearing, as provided in this section, as a condition precedent to an appeal therefrom.” (Emphasis supplied.)
K.S.A. 66-118c specifies the time and procedure for seeking judicial review of a KCC decision or order and provides:
“66-118c. Same; venue; time; procedure. Within 30 days after the application for a rehearing is denied or, if the application i's granted, within 30 days after rendition of the order or decision on rehearing, the applicant may apply for court review of the order or decision. Venue for proceedings for review by a •district court shall be in any district court of a county in which the order or decision of the commission is to become effective. The application for review shall be filed in the office of the clerk of the court in which the review is sought, shall specifically state the grounds for review upon which the applicant relies and shall designate the order or decision sought to be reviewed. The clerk of the court shall immediately serve a certified copy of the application upon the state corporation commission by transmitting it, either by hand or by restricted mail, to the secretary of the state corporation commission at the secretary’s office in Topeka. The secretary shall immediately notify all parties who appeared in the proceedings before the commission, by restricted mail, that the application for review has been filed.” (Emphasis supplied.)
The trial court held that, assuming Dickey Clay was an interested party for purposes of K.S.A. 66-118b, Dickey Clay did not follow the proper procedures to establish jurisdiction in an appeal to the courts. It was undisputed that Dickey Clay never filed a motion for rehearing within ten days of the original order of the KCC entered on January 11, 1985, or the order approving the new tariff on May 21, 1985. K.S.A. 66-118b specifically provides that no cause of action arising out of an order or decision of the commission shall accrue in any court to any party unless such party shall make application for rehearing as therein provided. Furthermore, K.S.A. 66-118c provides that, within 30 days after the application for rehearing is denied, the applicant may apply for court review of the order or decision. In this case, the motions for rehearing of Gas Service Company and the City of Pittsburg, Kansas, were denied March 4, 1985. Assuming that Dickey Clay had the right to rely on those motions for rehearing, Dickey Clay still did not comply with the provisions of K.S.A. 66-118c because Dickey Clay’s petition for judicial review was not filed within 30 days of the KCC denial of those motions for rehearing.
The rule is well established that the time for taking an administrative appeal, as prescribed by statute, is jurisdictional and delay beyond the statutory time is fatal. Lakeview Village, Inc. v. Board of Johnson County Comm'rs, 232 Kan. 711, Syl. ¶ 5, 659 P.2d 187 (1983); Vaughn v. Martell, 226 Kan. 658, 603 P.2d 191 (1979).
The district court, in holding that it lacked jurisdiction in the case, stated that Dickey Clay’s motion to intervene had been denied and it was not a party to the proceedings before the KCC. Dickey Clay had notice of the proceedings and chose not to file a motion to intervene until May 20, 1985. That was after the KCC had held a public hearing on the issue, had issued the orders in question, and had denied the application of the City of Pittsburg and the Gas Service Company for a rehearing. The court noted that one of the requirements for intervention is that it be timely, and that Dickey Clay’s actions could hardly be called timely. We agree with the ruling of the district court that Dickey Clay did not take timely steps to become a party to the proceedings or to perfect its appeal. We hold that the trial court did not err in sustaining the motion of the KCC to dismiss Dickey Clay’s appeal for want of jurisdiction for failure to comply with the mandatory provisions of K.S.A. 66-118a and K.S.A. 66-118c.
The second issue on the appeal is whether the trial court erred in concluding that Dickey Clay did not have an independent action for judicial review pursuant to K.S.A. 77-601 et seq.
K.S.A. 77-602 sets forth the definitions used in the act. K.S.A. 77-602(e) defines “order” to mean “an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.”
K.S.A. 77-606 discusses the relationship of the act to other laws and provides:
“77-606. Relationship to other laws. In accordance with K.S.A. 77-603, this act establishes the exclusive means of judicial review of agency action except if the relief available under this act is not equal or substantially equivalent to the relief otherwise available under law, the relief otherwise available and the related procedures supersede and supplement this act to the extent necessary for their effectuation.”
K.S.A. 77-607 addresses persons entitled to review and requires they qualify by (1) having standing (K.S.A. 77-611), (2) having exhausted their administrative remedies (K.S.A. 77-612), and (3) having timely filed a petition for review (K.S.A. 77-613). Standing is discussed in K.S.A. 77-611 as follows:
“77-611. Standing. The following persons have standing to obtain judicial review of final or nonfinal agency action:
“(a) A person to whom the agency action is specifically directed;
“(b) a person who was a party to the agency proceedings that led to the agency action;
“(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
“(d) a person eligible for standing under another provision of law.”
In the present case, the challenged agency action was not a rule or regulation under K.S.A. 77-611(c). Likewise, there is no allegation the action was specifically directed toward Dickey Clay, pursuant to 77-611(a). K.S.A. 77-611(b) provides standing if the person was a party to the agency proceeding. K.S.A. 77-602(b) defines “party to agency proceedings” or “party” to mean (1) a person to whom the agency action is specifically directed; or (2) a person named as a party to any agency proceeding or allowed to intervene or participate as a party in the proceeding. Because the action was not specifically directed toward Dickey Clay and Dickey Clay failed to intervene, it does not have standing under 77-611(a) or (b). Finally, there is no indication by Dickey Clay that it is a person eligible for standing under another provision of the law. Thus, Dickey Clay lacks standing to file a petition for judicial review under K.S.A. 77-601 et seq.
The second requirement is that the person exhaust administrative remedies. K.S.A. 77-612 provides:
“77-612. Exhaustion of administrative remedies. A person may file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review, but:
“(a) A petitioner for judicial review of a rule or regulation need not have participated in the rulemaking proceeding, upon which that rule and regulation is based, or have petitioned for its amendment or repeal; and
“(b) a petitioner for judicial review need not exhaust administrative remedies to the extent that this act or any other statute states that exhaustion is not required.”
We agree with the trial court that by Dickey Clay’s failure to timely intervene in the proceedings before the KCC, it failed to exhaust its administrative remedies.
We hold that the trial court was correct in concluding that Dickey Clay did not have an independent action for judicial review pursuant to K.S.A. 77-601 et seq. because it failed to exhaust its administrative remedies as required by K.S.A. 77-607 and K.S.A. 77-612.
The judgment of the district court is affirmed.
Allegrucci, J., not participating.
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The opinion of the court was delivered by
Parker, C. J.:
In related cases, arising out of an automobile collision and consolidated in the court below for purposes of a jury trial, judgment was rendered for Ellen Matson (plaintiff) and against Roy Christy (defendant) for personal injuries and for Reuben Matson (plaintiff) against the same defendant for property damages. Thereupon defendant gave separate notices of appeal where, for all practical purposes involved, it may be said that both cases were presented for appellate review on separate, but. nevertheless identical, abstracts, briefs and arguments.
From what has been just related it becomes obvious that this appeal [Reuben] Matson v. Christy (No. 43,870), is a companion to the case of [Ellen] Matson v. Christy (No. 43,869), this day decided and reported in 194 Kan. 174, 398 P. 2d 317.
The decisive appellate questions presented by the appeal in this case have been thoroughly discussed and fully disposed of in the opinion of Mr. Justice Fontron in the companion case last above mentioned, hence it would serve no useful purpose, and merely burden our reports, to again review them in this opinion. Therefore, based upon what is stated and held in Case No. 43,869, the judgment in the case at bar is affirmed — and it is so ordered.
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from an order of the trial court sustaining the defendants’ demurrer to the plaintiff’s amended petition.
The action is brought by the State of Kansas against the defendants, Donald J. Grace and Arline Grace, who are alleged to operate Grace’s Caravan Club, and their employees, to enjoin them from operating and maintaining a common nuisance on the premises occupied by tire club, in violation of the provisions of die Kansas Liquor Control Act. The portions of the petition pertinent to this appeal are as follows:
“For its cause of action against the defendants, plaintiff alleges that in pursuance of a common plan, scheme and conspiracy among them and their servants, agents or employees, defendants did on or about the 1st day of January, 1962, and have continuously since and do now unlawfully, knowingly, and willfully keep and maintain a common nuisance to the people of the State of Kansas in the premises at 1306 Huntoon, in Topeka, Shawnee County, Kansas, owned by Donald J. Grace and Arline Grace, more particularly described as:
W 30 ft. of Lots 481-483-485 King’s Addition to the City of Topeka, by keeping a place or places on said premises where persons are permitted to resort for the purpose of drinking alcoholic beverages which place or places so kept and maintained by the defendant are a place or places to which the general public has access all contrary to the statutes of the State of Kansas.
“Grace’s Caravan Club is a so-called private club owned and operated by two private individuals, namely, the defendants, Donald J. Grace and Arline Grace, and their agents, and servants, under the authority and direction of said defendants on the property heretofore described. That said purported private club consists of the building on said premises which contains a kitchen, a dining room with a bar or counter for the purpose of mixing intoxicating liquor drinks and serving food, dining tables and chairs, a dance floor and other usual accommodations for such an establishment. That entertainment is supplied by an electric phonograph or juke box and on occasions by a dance band.
“That the general public, consisting of any persons who present themselves at the entrance door of said so-called private club, may secure admittance into said club and premises by knocking on the outside door thereof and informing the defendants or their agents, servants or employees that he wishes to join said club and by paying the sum of ten ($10.00) dollars to the defendants or defendants’ agents or employees, he is admitted to the premises and membership in said club. No formal application for membership is required and membership is left solely to the discretion of the defendants or their employees or servants acting under the direction of said defendants. That no stated meetings of said purported club are held nor do any members of said purported club have any voice in the selection of or expulsion of members of said purported club.
“Plaintiff further states that said purported Caravan Club was set up, devised, planned and schemed by the defendants and operated by them and their agents, servants and employees, under the direction and control of the defendants, for the deliberate intent and purpose of them to evade the penalties, liabilities and forfeitures of G. S. 1949, 41-805 and 41-806, in that said defendants intended to and have permitted persons, so-called club members and their guests, to use said so-called club premises and facilities for the purpose of consuming alcoholic liquor on said club premises and have encouraged said persons in the illegal use of said premises by selling them soda water and mixes for said liquor and by permitting so-called club members to leave their intoxicating liquors on the premises heretofore described. Plaintiff further states that defendants, their agents, servants and employees do nothing to prevent intoxicating liquor being openly carried into said premises nor do they do anything to prevent open consumption of intoxicating liquor on said premises.”
The petition concludes with a prayer that the premises be declared a common nuisance and padlocked as provided in G. S. 1949, 41-806; that the defendants be enjoined from keeping and maintaining a common nuisance on the premises; and that they spe cifically be enjoined from permitting persons to resort to said premises for the purpose of drinking alcoholic liquor.
The application of three Kansas statutes are involved in this lawsuit, the first being G. S. 1949, 41-805 which, so far as here material, provides:
“Any room, house, building, boat, vehicle, airplane, structure or place of any kind where alcoholic liquors are sold, manufactured, bartered or given away, in violation of this act, or any building, structure or boat where persons are permitted to resort for the purpose of drinking same, in violation of this act . . . are . . . hereby declared to be a common nuisance. . . .” (Emphasis supplied.)
It is argued by the defendants that the word “same” in the sixth line of the foregoing statute refers to alcoholic liquors which have been “sold, manufactured, bartered or given away, in violation of this act.” We are not impressed by this suggested interpretation. In our opinion, the word refers to alcoholic liquors, generally, and not merely those which may have been acquired in violation of law. Such, indeed, is what we believe the legislature intended, and what we believe the act fairly and reasonably imports.
Section 41-806, supra, under which this action was instituted, sets forth the procedures for abating such a nuisance and prescribes the judgment which is to be entered.
The third statute pertinent to this lawsuit is G. S. 1949, 41-719, which reads as follows:
“It shall be unlawful for any person to drink or consume alcoholic liquor upon the public streets, alleys, roads or highways, or in beer parlors, taverns, pool halls, or places to which the general public has access, whether or not an admission or other fee is charged or collected, or upon property owned by the state or any governmental subdivision thereof or inside vehicles while upon the public streets, alleys, roads or highways. Any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than fifty dollars ($50) nor more than two hundred dollars ($200), or by imprisonment for not more than six months or be both so fined and imprisoned.” (Emphasis supplied.)
The state predicates this action, and has drawn its petition, on the theory that the Caravan Club is “a place to which the general public has access”; that the drinking of alcoholic liquor therein is, therefore, illegal under the provisions of 41-719; and, consequently, that when the defendants permit other persons to drink alcoholic liquor in the club building, they are maintaining a nuisance within the meaning of 41-805.
In arguing their demurrer, the defendants do not question the sufficiency of allegations that persons are permitted to drink on the premises occupied by the Caravan Club. Their challenge is directed only to the sufficiency of the petition in alleging that the Caravan Club is “a place to which the general public has access.”
Before turning to that question, we should mention here that we are not called upon in this action to define or to state what constitutes a “private club.” Nor is it our function here to distinguish between a private club and a place to which the general public has access, or to delineate the characteristics of either. We are concerned only with determining whether the petition sufficiently alleges that the defendants maintain a place to which the general public has access and in which they permit the drinking of alcoholic liquor, and we shall confine ourselves to this single question.
Construing the amended petition in the light most favorable to the plaintiff, as we must construe the same under long recognized rules of pleading, (Schiffelbein v. Sisters of Charity of Leavenworth, 190 Kan. 278, 280, 374 P. 2d 42; Chaplin v. Gas Service Co., 194 Kan. 26, 397 P. 2d 317), we are forced to conclude that it does contain allegations sufficient to state a cause of action against the defendants.
In our judgment, the following allegation, to-wit:
“That the general public, consisting of any persons who present themselves at the entrance door of said so-called private club, may secure admittance into said club and premises by knocking on the outside door thereof and informing the defendants or their agents, servants or employees that he wishes to join said club and by paying the sum of ten ($10.00) dollars to the defendants or defendants’ agents or employees, he is admitted to the premises and membership in said club . . .”
is, by itself, a sufficient allegation that the Caravan Club is open to all members of the general public who pay ten ($10.00) dollars for admittance thereto. If the fact so alleged be true, the club would be a place accessible to the general public within the meaning of Section 41-719, supra.
Further allegations of the petition relate to the purpose, design and intent of the defendants in setting up and operating the Caravan Club, but we believe they require no discussion for the purposes of this opinion. Nor is it deemed necessary to comment on other allegations of the petition relating to the operation of the Caravan Club, inasmuch as we have concluded that the quoted language alone is sufficient to designate the club as a place to which the general public has access.
The judgment is reversed with directions to overrule the demurrer.
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The opinion o£ the court was delivered by
Fontron, J.:
This is an appeal by the plaintiffs from a judgment refusing to set aside eight deeds from R. J. Cummings, as grantor, to his son, Crayton Cummings, and Crayton’s wife, Viola, as grantees. The action was commenced against the two grantees by the administrator of R. J. Cummings’ estate and by Mr. Cummings’ two granddaughters. For convenience, the appellants will be designated as plaintiffs, and the appellees, as defendants.
As gleaned from the record, the factual background máy briefly be summarized. R. J. Cummings was a long-time resident and merchant of Wichita. During his active business career he acquired the Sedgwick county farm and the seven Wichita properties which are involved in this lawsuit. Mr. Cummings, whose wife died in 1949, had three children: Margaret, who died in 1932; Paul, now deceased, whose two daughters are plaintiffs in this lawsuit; and Crayton who, with his wife, is one of the defendants.
In the fall of 1956, R. J. Cummings went to live with Crayton and Viola Cummings, and continued to make his home with them until his death on March 17, 1963. During this period of time the deeds in question were executed and delivered to the defendants, the first on September. 25, 1959, and the last two on May 7, 1962. All deeds were properly acknowledged and were recorded shortly after their execution.
Against this backdrop, the plaintiffs predicate their action on two grounds: First, that R. J. Cummings, the decedent, lacked mental capacity to execute the deeds, and second, that the deeds were procured by undue influence on the part of the grantees. The second ground is formulated on the thesis that a confidential relationship existed between grantor and grantees, and that the grantor received no independent advice before executing and delivering the deeds to the grantees.
Refore proceeding to a discussion of the points raised by the plaintiffs, we should clarify, or define, our appellate function under the circumstances of this case. The trial court, in rendering judgment for the defendants, made the following findings:
“(a) That R. J. Cummings, at all times involved in this action, was mentally competent and of sound mind;
“(b) That at all times involved herein, no confidential relationship existed between R. J. Cummings and the defendants;
“(c) That R. J. Cummings received independent advice with respect to the transactions involved herein, and
“(d) The court finds generally in favor of the defendants and against the plaintiffs.”
It is contended by the plaintiffs that the trial court erred in so finding and, thus, under well entrenched rules of appellate review, we are restricted in our consideration of this appeal to this single, yet comprehensive, question: Are the findings of the trial court supported by substantial competent evidence? No better, or more succinct, statement of the rule has come to this writer s attention than that set forth in the second syllabus of In re Estate of Guest, 182 Kan. 760, 761, 324 P. 2d 184, where it is held:
“Where findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, this court’s power begins and ends with a determination whether there is any competent substantial evidence to support them, and where findings are so supported they are accepted as true and will not be disturbed on appeal.”
Relating the rule to this case, we are now called upon to decide, specifically, whether the evidence is legally sufficient to sustain the findings of the trial court which we have previously quoted.
As to finding (a), i.e., that R. J. Cummings, at all times involved herein, was mentally competent and sound of mind, the record is replete with evidence attesting to his normalcy. Not only did friends and associates of Mr. Cummings testify, on defense, that he was normal and knew his own mind, but plaintiffs’ own witness, Dr. Carl R. Burkhead, who long had been Mr. Cummings’ personal physician and, in such capacity, had excellent opportunity to observe him, testified that this patient knew what he had and what he wanted to do with it and was competent to execute the deeds.
Although Dr. Burkhead is not shown to have specialized in psychiatry, his opinion, backed by long years of general practice in diagnosis and internal medicine, was entitled to respect, credence and weight. Moreover, the testimony of the several lay witnesses who appeared on behalf of the defendants was germane to the issue. (Kelley v. Kelley, 158 Kan. 719, 729, 150 P. 2d 347.) The record contains abundant evidence to sustain the trial court’s finding of mental competency.
Findings (b) and (c) made by the trial court pertain to the issue of undue influence. The plaintiffs have contended throughout this lawsuit that the defendants enjoyed a confidential relationship with Mr. Cummings and that the deeds were executed by him without the benefit of independent advice.
This court has long adhered to the rule that where a confidential relationship has been shown to exist between the parties to a deed, the grantee has the burden of showing that the conveyance was made in good faith and without any undue influence on his part. In Nelson, Administrator v. Dague, 194 Kan. 195, 398 P. 2d 268, we reviewed several of our prior decisions, and said:
“This court has under familiar precedents held that when a confidential relationship between members of the family involved has been established the grantee has the burden of showing that the conveyance was made in good faith and for a valuable consideration. . . .” (p. 198.)
In the earlier case of Madden v. Glathart, 125 Kan. 466, 265 Pac. 42, we held:
“The presumption of undue influence in this case, on account of the fiduciary relationship of father and son and the entire failure to afford and show independent advice, justifies the court in holding tire attempted conveyance to be invalid.” (Syl. 8.)
Without intending in the least to detract from the well established principles enunciated in the foregoing and other like cases, we must point out that it is first essential to their application that there be a confidential relationship. Whether such a relationship is shown to exist is- an evidentiary question. It is a question which must be determined in each case by the trier of the facts. In Nelson, Administrator v. Dague, supra, this court has said:
“Whether or not a fiduciary relationship exists and whether or not it has been abused does, to a great extent, depend on the particular facts and circumstances of each individual case. This court has refused, for that reason, to give exact definitions or fix definite boundaries for that class of human relations commonly known as fiduciary which, based on principles of common honesty, require fair dealing between parties.” (p. 197.)
We believe the trial court, in this instance, was justified in finding that no fiduciary relationship existed between R. J. Cummings and the defendants. Without going into detail, there was testimony that Mr. Cummings was of an independent personality and made his own decisions; that he generally had the last word in a deal; that he was entirely normal and not subject to anyone’s domination; that he made the decisions as to his- properties and his O. K. had to be obtained for work done thereon; that both he and Crayton directed workmen; and that both were together part of the time when rents were collected. This evidence, without more, would avail to sustain the trial court in its conclusion that no confidential relationship was established.
Since we now hold the court below was justified in finding that no fiduciary relationship existed, the question of whether the decedent received independent advice has little significance. We have, nonetheless, examined the record in such regard. Various witnesses testified Mr. Cummings did discuss his properties with friends, and had stated that he and his wife had decided that the farm was Crayton’s; that he couldn’t sell the farm because Cray- ton owned it; that Crayton and Viola would get the farm; that some of the town properties belonged to Crayton and eventually all would go to him and his wife. We believe there is substantial evidence that the elder Cummings did receive independent advice. (Stunkel v. Stahlhut, 128 Kan. 383, 277 Pac. 1023; Stanley v. Stanley, 131 Kan. 71, 75, 289 Pac. 406.)
The law does not condemn gifts inter vivos, as such. There is nothing intrinsically wrong in gifts between parent and child where they are induced by feelings of love, affection, kindness or gratitude. The relationship, in and of itself, raises no presumption of overreaching (Winkler v. Korzuszkiewicz (Shusky), 112 Kan. 283, 211 Pac. 124; Nelson, Administrator v. Dague, supra.) It is only where a confidential relationship exists that the law burdens a grantee with establishing the bona fides of the transaction and employs its protecting arm to see that no unfair advantage has been taken, of the donor. (Jemberg v. Evangelical Lutheran Home for the Aged, 156 Kan. 167, 131 P. 2d 691.)
We are constrained to hold, from a painstaking review of the entire record, that finding (d), wherein the trial court found in favor of the defendants and against the plaintiffs generally, is supported by substantial competent evidence and cannot be disturbed.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This appeal is from an order striking a second amended petition from the files.
On November 27, 1961, plaintiff, Mary H. Grohusky, filed her petition. Briefly summarized, it alleged the following:
Plaintiff and her husband suffered a loss to their home by fire. Defendant insurance company was the insurer thereof. In settlement of the loss defendant delivered its check, dated November 6, 1961, to plaintiff and her husband in the amount of $217.04. Plaintiff’s husband was the payee of the check. Plaintiff deposited the check in the joint bank account maintained by her and her husband. On the strength of the deposit so made, plaintiff wrote checks on the bank account in payment of personal bills owed by her and her husband. In the meantime and on a date not shown, defendant company, in utter disregard of the rights of plaintiff, stopped payment on its check given in settlement of the fire loss. The effect of this was that the personal checks written by plaintiff were dishonored on the ground of “insufficient funds.” She and her husband were obliged to borrow the sum of $217.04 in order to prevent other personal checks from being dishonored by their bank. As a result, plaintiff suffered humiliation and embarrassment and was forced to undergo medical treatment of her nervous system. Recovery was sought in the amount of $5,000 actual damages, and $4,000 as punitive damages, and for a reasonable attorney’s fee.
On January 5, 1962, defendant filed motions to strike, or in the alternative, to make allegations of the petition definite and certain. The motions were denied in part and sustained in part. Although not set out in the record, it appears that plaintiff then filed an amended petition.
On July 9, 1963, defendant filed a demurrer to the amended petition on the ground that such pleading failed to state a cause of action in that plaintiff, not being the payee of the check in question, was not the real party in interest.
On July 26, 1963, defendant’s demurrer was sustained and the pertinent portion of such order reads—
“The Court, upon examination of the pleadings, hearing arguments of counsel, and being fully advised in the premises, finds that said demurrer should be sustained, and that plaintiff is not the real party in interest; she not being the payee of the check dated November 6, 1961.”
On September 11, 1963, plaintiff filed a second amended petition. Except for a few additional allegations not here material, this petition was identical to the two previous petitions. On September 16, 1963, defendant filed a motion to strike the second amended petition from the files for the reason that its demurrer — on the ground that plaintiff was not the real party in interest — was sustained on July 26, 1963 and therefore no cause of action was pending, and on the further ground that no leave of court was obtained to file the second amended petition.
On December 3, 1963, the trial court advised counsel that it could not accept plaintiff’s theory of the case and that there existed no cause of action in her favor against defendant.
On December 4, 1963, an order was entered sustaining defendant’s motion to strike the second amended petition, and on January 22, 1964, plaintiff filed her notice of appeal from that order.
In their briefs the parties discuss a number of matters, and, in particular, plaintiff argues at length in support of her contention that she can maintain the action — although she was not the payee of the check in question. We believe, however, that under the record that question is not before us, and that the solution to the matter presented is quite simple.
Unless otherwise noted, all references are to G. S. 1949.
As here material, 60-401 provides that every action must be prosecuted in the name of the real party in interest.
Under 60-705 the fact that a plaintiff has no legal capacity to sue is a ground of demurrer.
Under 60-3302 an order sustaining a demurrer is appealable.
Under the provisions of 60-3309 it is required that an appeal be perfected within two months from the date of the order from which the appeal is taken.
Here it was proper for defendant to raise the question of plaintiff’s right to maintain the action by demurrer (Federal Savings & Loans Ins. Corp. v. Hatton, 156 Kan. 673, 678, 135 P. 2d 559; Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 259, Syl. 3, 181 P. 2d 498). It did so — and on July 26, 1963 the trial court sustained the demurrer to the amended petition on the ground that plaintiff was not the real party in interest. Right or wrong — that ruling, from which no appeal was taken, became the law of the case (Sanik v. Shryock Realty Co., 156 Kan. 641, 645, 646, 135 P. 2d 545; Neuvert v. Woodman, 185 Kan. 373, 378, 343 P. 2d 206) and, for all practical purposes, disposed of the law suit. Instead of appealing, plaintiff filed a second amended petition which, for all material purposes, was identical to her two previous petitions. This being so, the court properly struck the second amended petition. (By way of analogy, see Mydland v. Mydland, 153 Kan. 497, Syl. 1, 112 P. 2d 104, and Fidelity Hail Ins. Co. v. Anderson, 172 Kan. 253, 239 P. 2d 830.) G. S. 1961 Supp., 60-3314a is of no help to plaintiff.
The order of December 4,1963, striking the second amended petition is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
James Tarr, appellant, was charged by an information in the district court with the crime of rape as defined by K. S. A. 21-424, and upon trial was found guilty as charged and subsequently sentenced to the state penitentiary for the offense. While confined he invoked the provisions of K. S. A. 60-1507, seeking to set aside and vacate the judgment and sentence on the ground he was not afforded counsel at his preliminary hearing. From an order of the trial court denying plaintiff James Tarr relief under the mentioned statute, he appeals.
The sole question presented in this appeal is whether or not an indigent defendant has a constitutional right to have counsel appointed by the court to represent him at a preliminary hearing.
It is a well-established law in this state that failure to appoint counsel at a preliminary examination is not error. No useful purpose would be gained in discussing this matter further. Suffice it to say the question was thoroughly dealt with in the well-annotated opinion in the case of Bergin v. State, 194 Kan. 656, 400 P. 2d 978, wherein our previous decisions, State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. denied (January 18, 1965) 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; State v. King, 194 Kan. 629, 400 P. 2d 975; State v. Latham & York, 190 Kan. 411, 375 P. 2d 788, cert. denied 373 U. S. 919, 10 L. Ed. 2d 418, 83 S. Ct. 1310; and State v. Young, 194 Kan. 242, 398 P. 2d 584, and the federal decisions were reviewed and discussed, and it was held that an accused has no constitutional right to be furnished counsel at his preliminary hearing.
The judgment of the trial court is afiSrmed under authority of Bergin v. State, supra, and cases therein cited.
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The opinion o£ the court was delivered by
Price, J.:
This appeal was commenced originally as one to quiet title to two residential properties in the city of Wichita.
Defendant’s answer alleged that she was the fee title owner of the properties under general warranty deeds from plaintiff.
Plaintiff’s reply admitted the execution of the deeds but alleged that at the time of their execution she was 78 years of age and was distraught over her husband’s recent death, and that the deeds were executed upon the oral promise and agreement of defendant to furnish support and care for plaintiff for the remainder of plaintiff’s life. The reply further pleaded a breach of such agreement by defendant and prayed that the deeds be canceled and that plaintiffs title be quieted.
Defendant’s answer to the reply denied the alleged oral agreement for care and support, and pleaded that the consideration for the deeds was love and affection, in addition to other acts understood and agreed to by and between the parties.
The testimony of the parties followed generally the allegations of their respective pleadings.
In rendering judgment for plaintiff the trial court found:
“That the plaintiff deeded the property described in her Petition to the defendant with the understanding and contract that the plaintiff would be cared for for the rest of her life by the defendant, and the Court further finds that such was the intent of the parties and that the defendant did not care for the plaintiff and breached said contract and not at the fault of the plaintiff.
“The Court further finds generally for the plaintiff and against the defendant.
“The Court further finds that the defendant, the grantee in the conveyances described in the pleadings, repudiated and failed to perform her agreement and the Court finds that the conveyances of the property described in plaintiff’s Petition should be cancelled and set aside, and that the title thereto should be quieted in the plaintiff and against the defendant and anyone claiming by, through or under the defendant.”
Judgment was entered accordingly, and defendant has appealed.
Except for one or two matters — actually the only point in this fact case is the familiar question whether the findings and judgment are supported by the evidence.
No purpose would be served by detailing the evidence as to the relationship of the parties and concerning the transactions in question. We have read the record, and the findings are amply supported by it and therefore are binding on appeal. The principle of law involved is discussed thoroughly in Chapman v. Warmbrodt, 175 Kan. 125, 259 P. 2d 158, in which it was held:
“The doctrine which obtains in Kansas, as in a great majority of the states, is that a conveyance of property, on consideration of agreement to furnish support, is in a class peculiar to itself, and that if a grantee in such conveyance repudiates or substantially fails to perform his agreement, a court of equity may, upon the petition of the grantor, decree a cancellation of the conveyance.” (Syl. 1.)
See also Banks v. Banks, 166 Kan. 15, 199 P. 2d 181, and Worrell v. West, 179 Kan. 467, 296 P. 2d 1092 (Syl. 3).
Having before it all the property involved and all the parties claiming rights thereto, the court had jurisdiction to determine all rights of the parties and to render an appropriate decree in accordance with the demands of justice (Garnes v. Barber, 180 Kan. 793, 308 P. 2d 76).
Some point is made that the court erred in permitting plaintiff to introduce evidence in rebuttal, which, it is contended, should have been offered in her case in chief. Aside from the fact that ordinarily the order of proof is purely discretionary, the record shows that prior to resting her case defendant was offered the opportunity to rebut plaintiff’s rebuttal evidence. The contention is without merit.
It also is contended that after finding for plaintiff the court erred in denying defendant the right to reopen her case and to recover her own monies expended by her in assisting plaintiff.
There are several reasons why this point is not well taken. The matter was not raised by the pleadings. At the conclusion of the trial both sides rested. Defendant did not request to reopen. Her motion for a new trial was silent on the question. The first time the matter was raised was at the hearing on the motion for a new trial. In denying the motion the court commented that at the conclusion of the trial “both sides rested and wound up their cases,” and denied the request to reopen for additional evidence. Under the circumstances such ruling was not erroneous, and defendant is in no position to claim that her substantial rights were prejudicially affected.
As before stated, this was essentially a fact case. The findings of the trial court are in all respects supported by the evidence, and are binding on appeal. We find no error in the record and the judgment is affirmed.
Wertz, J., not participating.
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The opinion of the court was delivered by
Price, J.:
This is a workman’s compensation case. The workman died as a result of his accidental injuries. The district court entered an award to his widow for the death benefit, together with a funeral allowance. The employer and its insurance carrier have appealed.
It was stipulated that the only question presented is whether the fatal accidental injury arose out of and in the course of the employment.
The workman being deceased, his widow is of course the one making claim. For convenience, however, we will refer to him as claimant.
Oddly enough, this entire case swings around and hinges upon the circumstances surrounding the purchase by claimant of a jar of “instant coffee” for use in the office of defendant construction company. Highly summarized, the background of the matter is substantially as follows:
Dean and Bill Rinner were the owners of defendant company. Claimant had worked for them since 1950 in the capacity of office manager. Apparently, he was more or less his “own boss” — so to speak. The employment relationship was on a quite informal basis. If there were special or urgent things to do, claimant came to work early in the morning, and, when occasion required, he was there “after hours” in the evening. He did not “punch a clock” and received no pay for “overtime.” He frequently ran errands for the company and generally drove his own car, for which he was not reimbursed.
For several years it appears that around the office coffee had been available to the employees, customers, or any one else who happened to drop in. “Instant coffee” was used. Claimant had not been delegated or directed by the Rinners or by any one else in authority, to purchase the coffee used at the office, but it appears that for sometime he had taken it upon himself to do so, and frequently had bought a jar of instant coffee for office use while grocery-shopping with his wife. On these occasions he would pay for the coffee and then reimburse himself from the petty cash drawer at the office. The Rinners were not aware of such practice, but had they been, it would have met with their approval.
Claimant customarily took an hour off for lunch. His time was his own, and he could and did eat lunch where and when he cared to. During his lunch hour period he frequently ran errands — both personal and company, and most of the time used his own car— for which he was not reimbursed.
On the morning of March 6, 1963, claimant went to work as usual. His wife called him by telephone and told him that she had invited some friends in for dinner the following evening. She gave him a list of groceries to purchase. He suggested that they get them that evening when they went to the store. Apparently such arrangement was satisfactory to her. That noon, claimant and Bill Rinner left the office together to go to lunch at a restaurant in North Topeka which they frequently patronized. Claimant suggested that he drive his own car, giving as his reason that he wanted to pick up some groceries for his wife. Nothing was said about getting any coffee. The understanding was that he would meet Rinner at the restaurant on his return from the grocery store. While returning from the store on a direct route to the restaurant, claimant’s car was involved in a collision. He died as a result of his injuries. In his car were found the items of groceries which his wife had mentioned to him over the telephone that morning. Also found in his car, in a separate sack, was a ten-ounce jar of instant coffee. Coffee was not included in the list of groceries he was to purchase for his wife. They used “percolator” type coffee at home.
His wife had known that in the past he now and then bought instant coffee for use at the office. Such purchases had been made by him when grocery-shopping with her in the evening, or else while running around during the noon hour. It was her opinion that he would not have made a special trip during office hours to purchase such coffee. There was evidence to the effect that on the day in question the office was “out of coffee.”
In rendering judgment for the widow the court stated that it had—
“. . . reached the conclusion that the evidence is barely sufficient to show that the deceased employee, Raymond Tompkins, was on a mission partially for the benefit of his employer at the time of the fatal accident.”
The court further commented that since its decision in Taylor v. Centex Construction Co., 191 Kan. 130, 379 P. 2d 217, had been reversed — it was “gun shy” — and that this (case) was a better case for claimant than was that case.
In contending there is no substantial evidence that claimant’s death arose “out of” and “in the course of” his employment, defendant employer and its insurance carrier contend that the evidence shows conclusively that claimant was on a personal errand to purchase groceries for his wife during his noon lunch hour when the fatal accident occurred, and that if the coffee found in his car was for use at the office the purchase of it was only incidental to the trip to purchase groceries for his wife and at most it was therefore a “dual purpose” trip. It further is contended the evidence showy that no special trip would have been made by claimant or any other person to purchase coffee for the office and, therefore, under the “dual purpose” rule the accident is not compensable because the evidence shows that no special trip would have been made to purchase the coffee.
Appellee widow, on the other hand, contends that from the evidence the inference is clear that the office was out of coffee; that claimant probably would have gone after it any way even though he would not have bought groceries for her, and that even under the “dual purpose” rule the purchase of the coffee was at the very least a concurrent mission and was so tied in with claimant’s general duties around the office as to constitute a causal relationship between the injury and his employment.
The workmen’s compensation act (G. S. 1949, 44-501) provides that in order to be compensable an accidental injury must arise “out of” and “in the course of” the employment. The terms “out of” and “in the course of’ are used in the conjunctive, and both conditions must exist.
Generally speaking, the term “in the course of” the employment relates to the time, place and circumstances under which the accident occurred, and means the injury happened while the workman was at work in his employer’s service. (Pinkston v. Rice Motor Co., 180 Kan. 295, 301, Syl. 3, 303 P. 2d 197.)
The question whether an accidental injury can be said to have arisen “out of” the employment has been before this court many times and the term has a well settled meaning. In Repstine v. Hudson Oil Co., 155 Kan. 486, 126 P. 2d 225, the workman was manager of a gasoline service station owned by respondent employer. As manager he was responsible for the money taken in at the station. It was customary for him to take the money home with him and bring it back when he came to work the next day. On the morning in question he was driving from his home to the station by the most direct route and was taking back to the station the previous day’s receipts which he had taken home the night before. On his way to the station he was involved in an automobile collision and died from injuries received. There was no safe provided by the company at the station for the safe-keeping of the proceeds of the business, and there were no other means provided for him to take care of the money other than by taking it home and keeping it with him. It was his duty to protect the money at all times. The basis of his widow’s claim for compensation was that since the company provided no other means whereby the money might be safely kept at the station or any other place, and since it was the duty of her husband to keep it safely in his custody and had custody of it at the time of his fatal injury — he was working at his employment at the time his death occurred. The district court upheld an award to her, and the employer and its insurance carrier appealed. In reversing the judgment it was said:
“This court has held that in order for the claimant to be entitled to compensation the accident must have arisen ‘out of the employment and happened ‘in the course of the employment. It arises ‘out of the employment when it is clear upon consideration of all the circumstances that there was a causal connection between the conditions under which work was required to be performed and the resulting injury. An injury which does not appear to have its origin in a risk connected with the employment, and cannot be shown to have flowed from the source as a natural consequence, does not arise ‘out of the employment. (Citing.)
“The fact that the employee happened to be doing something incidental to or in connection with his work does not mean that the accident which happened to him arose ‘out of his employment.” (pp. 488, 489.)
“When we review the above rules in the light of the circumstances of the case we are ’considering we are impelled to the conclusion that there was no causative connection between the fact that the deceased in this case had the money of his employer on his person when he was killed and his injury or accident would have occurred just the same had the money not been in his possession. The accident cannot be held to have arisen ‘out of the employment.” (p. 490.) ’
In Covert v. John Morrell & Co., 138 Kan. 592, 27 P. 2d 553, cited with approval in the foregoing case it was said:
“ ‘Arising out of means that the accident came out of the employment and makes it a condition precedent to the right to recover compensation that the occurrence shall have resulted from the risk reasonably incident to the employment and that there be a causal connection. While not ordinarily essential that it be peculiar to the particular employment in which the workman was engaged at tlie time of the injury, it must arise out of a risk in some way peculiar to that in which he was engaged and not out of a hazard to which he would be equally exposed outside of the business.” (p. 593.)
In Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542, also cited with approval in the Repstine case it was said:
“It never was the purpose of the compensation act that the employer should in all respects be an insurer of the employee, but he is such insurer only for those accidental injuries caused or produced in some way by the employment. The statute uses a rather broad term in the expression ‘out of the employment, thereby indicating that the statute should have a liberal interpretation to accomplish its purpose (Citing), but this does not mean that the act should be construed to include injuries which clearly did not arise out of the employment.” (pp. 200, 201.)
The meaning of the term “out of” the employment also is discussed in Pinkston v. Rice Motor Co., 180 Kan. 295, 302, 303 P. 2d 197, in which it was held:
“The term ‘arising out of employment as used in G. S. 1949, 44-501 points to the cause or origin of the accident and requires some causal connection between the injury and the employment. An injury arises out of employment if it arsies out of the nature, conditions, obligations or incidents of employment.” (Syl. 4.)
In Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796, it was held:
“Under the workmen’s compensation act injury arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.” (Syl. 3.)
It is elementary that the workmens compensation act is to be construed liberally in favor of the injured workman and his dependents; that the evidence is to be construed in the light most favorable to the party prevailing in the district court, and that this court’s function is limited to questions of law, which, with respect to the evidence — means that this court examines it to determine if there is any substantial evidence to support the findings made below.
In the Repstine case, above, it was said:
“Where all of the facts are admitted the question of whether admitted facts justify the conclusion that the injury arose ‘out of’ and occurred ‘in the course of’ employment is a question of law.” (Citing.) (p. 488.)
The “dual purpose trips” rule mentioned in the briefs of the parties is discussed in Vol. 1, Larson, Workmen’s Compensation Law, § 18.00, et seq., and we quote:
Ҥ 18.00 Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involves the performance of a service for the employer which would have caused the trip to be taken by someone even if it had not coincided with the personal journey.
The author states that the many widely-assorted problems can be solved by the application of a lucid formula stated by Judge Cardozo in Matter of Marks v. Gray, 251 N. Y. 90, 167 N. E. 181, (1929) — a formula which, according to the author, when rightly understood and applied, has never yet been improved upon. Then follows this quotation from the Marks case:
“We do not say that service to the employer must be the sole cause of the journey, but at least it must be a concurrent cause. To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled. . . . The test in brief is this: If the work of the employee creates a necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own. . . . If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose, though the business errand was undone, the travel is then .personal, and personal the risk.” (§ 18.12.)
The text also cites Barragar v. Industrial Comm., 205 Wis. 550, 238 N. W. 368, also reported at 78 A. L. R. 679, followed by an annotation beginning at page 684. The Barragar case adopts the test laid down in the Marks case, and paragraph No. 3 of the syllabus reads:
“If the employee’s work creates a necessity for travel, the trip at the outset is the employer’s; if the journey would have proceeded although the business was dropped, it is the employee’s trip.”
The facts in the case before us are not in dispute, and so the question whether those facts justify the conclusion that the fatal accidental injury arose “out of” the employment — is a question of law (Repstine case, above, p. 488).
We believe the fair and reasonable inference to be drawn from the evidence is that the jar of coffee found in claimant’s car immediately after the collision was for use at the office. But, measured by the yard-stick of the rules heretofore set out, may it be said the purchase of it — while claimant was buying groceries for his wife— transformed the admitted personal errand into a “business mission” with the result that the collision and fatal injury arose “out of” his employment?
We think not.
Buying coffee for the office was not one of the duties or obligations of claimant’s employment. No one had ever directed or even authorized him to do so. It was purely an informal gratuitous gesture, habit or custom on his part, in no way connected with the business — as such. There was no causal connection between the conditions under which his work was required to be performed and the resulting injury. It cannot be said the injury had its origin in a risk connected with the employment, or that it flowed from the source as a natural consequence (Repstine case, above). The occurrence did not result from a risk reasonably incident to the employment, and there was no causal connection (Covert case, above). The injuries were not caused or produced in some way by the employment (Rush case, above).
We disagree with the trial court’s conclusion that this case is a “better case for claimant” than the Taylor case, above. There the employee had sustained an “on the job” injury to his eye and had been directed by his employer to go to the company doctor. In returning to his job he was injured in an automobile accident. One of the principal questions in the case concerned deviation in the route taken, but it was held that eating his lunch enroute was merely an incident which did not deviate from his employer’s special purpose — that of obtaining medical attention for his eye which had been injured on the job.
Furthermore, and with respect to the “dual purpose” rule heretofore discussed, there is nothing in the evidence to indicate that a trip to the store to buy coffee would have been made even though the personal errand to buy groceries for claimant’s wife had been abandoned or postponed.
We hold, therefore, that within the rules heretofore mentioned there is no evidence in this case to support the conclusion that claimant’s injury arose “out of” his employment.
The judgment is reversed.
Parker, C. J., and Robb, J., dissent.
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The opinion of the court was delivered by
Wertz, J.:
This was a proceeding to determine the validity of an antenuptial contract entered into between L. A. West and Mamie Hall (hereinafter referred to as Mamie) and the consent to the last will and testament of the decedent signed by Mamie after the two were united in marriage. The trial court found the documents to be null, void and of no binding effect and that Mamie West was entitled to one-half of the estate of the decedent in addition to the homestead and statutory allowances, and entered judgment accordingly. The executors have appealed.
We first take up and discuss the evidence with respect to the background of events and the circumstances in connection with the drawing and execution of the instruments.
L. A. West and Mamie Hall were life-long residents of Augusta. Mamie had known West all her life. At the time of their marriage on April 23, 1961, West was a widower 76 years of age and Mamie was a maiden woman 57 years of age. During his lifetime Mr. West was engaged in the real estate business and successfully amassed an estate valued in excess of $460,000. In 1928 Mamie returned from college to take charge of the operation and management of the family business known as Hall’s Decorative Shop, which she has successfully operated continuously ever since, her net worth being between $95,000 and $100,000. The business locations of the two parties were adjacent, and through the years West and Mamie had become close friends as well as business associates. Mamie assisted West in his business affairs as bookkeeper for a number of years, and prior to their marriage helped him keep a record of his bank account and had been authorized by him to draw, and did draw, upon his account for certain purposes.
In the early part of 1961, as a result of their close association over the years, Mamie and West discussed marriage. West then informed R. A. Cox, an attorney, of the contemplated marriage. Cox had been well acquainted with West and Mamie for many years, having represented them individually in their respective business affairs and joint business transactions, and had previously prepared and drafted Mamie’s will. Shortly after informing Cox of his intentions West was hospitalized with pneumonia for a period of seven weeks. While West was in the hospital he and Mamie again discussed getting married, and after his release from the hospital West again spoke to Cox about the contemplated marriage and discussed matters with respect to a property settlement between the two parties. At West’s request Cox prepared an antenuptial contract, a will for West and the consent thereto for the signature of Mamie, and on April 18 West and Mamie went to Cox’ office at which time he gave each a copy, which they carefully read, of the antenuptial contract he had prepared which protected the rights of both parties to their respective property in case of the death of either. Cox told them the contract would cause the statutes relating to descent and distribution of property to be superseded as to their respective rights, and he read certain pertinent portions from the proposed agreement. He also advised Mamie about her rights in the absence of such agreement and its effect in case of marriage and that the consent to the will could not be signed until after the marriage.
The antenuptial agreement, in pertinent part, reads:
“This Agreement made and entered into by and between L. A. West, Party of the First Part, and Mamie Hall, Party of the Second Part, Witnesseth:
“That Whereas, a marriage contract is under contemplation and is about to be entered into by and between the parties hereto, and
“Whereas, each of the parties hereto have and own certain property, real and personal, and each of the parties hereto desire that the property owned by him. or her shall remain separate and be subject to the sole control and use of its owner during the continuance of said marriage and that upon its termination by death or otherwise each party hereto- shall not assert nor make any claim of right, title or interest in the property of the other, except as hereinafter provided, and
“Whereas the parties hereto and each of them have been fully advised and have full knowledge of what their right under the law of the state of Kansas would be in and to the property of the other if married without an agreement made with reference to said property before said marriage, and
“Whereas, the party of the first part desires to make provision for second party for the use during her lifetime of certain of his property hereinafter described should she survive him as his widow.
“Now, Therefore, for the purpose of settling all questions as to the right of each or either of aid parties hereto in and to the property of each of them during the continuance of said marriage and upon the termination of said marriage by death or otherwise, and in view of said marriage and for and in consideration of the promises, covenants and agreements herein contained, it is agreed by and between the parties hereto and they and each of them do hereby promise, covenant and agree to and with each other, as follows:
“(a) That second party [Mamie] shall have upon the death of first party [West] and that first party by his will shall provide and give second party the use and benefit of the following described property, to-wit: . . .”
The property consisted of the home and the furniture therein and two business buildings in the city of Augusta.
“. . . for and during her natural life should she survive the party of the first part as his widow.
“(b) That each of the parties hereto may and shall, during the continuance of said marriage so agreed upon as aforesaid and after its termination by death or otherwise, separately own, use and, subject to the provisions in paragraph ‘A’ aforesaid, convey and dispose of all property of every kind, belonging to him or her before said marriage or acquired by him or her during the continuance of same, and all income and profit therefrom, to whomsoever he or she shall choose, all in the same manner and to the same extent that he or she now can or then could have done had such marriage not taken place, and in the event either party hereto desires to convey, encumber or dispose of his or her property or any part of same, subject to the provisions of paragraph V above, and it is necessary to execute deeds or mortgages thereon, the other party hereto agrees to join in the execution of any and all instruments for said purpose.
“(c) Each party hereto agrees to consent in writing to any will executed by the other and the disposition of his or her property as in said will set forth, Provided that the will of first party shall make provision for second party as set forth in paragraph ‘a’ above, and upon such will being offered for probate the surviving party hereto will elect to take under said will and not under the law of the State of Kansas relating to descents and distributions, it being agreed by and between the parties hereto that upon the death of either, the survivor shall not have and will not assert any claim of right, title or interest under the laws of any State because of such survivorship in or to the property left by the other except as provided in paragraph ‘a’ above. . . .” (Emphasis supplied.)
The agreement was executed and then notarized by Mr. Cox. Six days elapsed between the signing of the antenuptial agreement and the marriage. On April 24, the day following the marriage, the will of L. A. West was executed by him and the consent annexed thereto was executed by Mamie in accordance with the provisions of the mentioned contract. The pertinent provisions of the will are as follows: Paragraph 1 of the will provides for the payment of West’s debts and funeral expenses; paragraphs 2, 3, 4, 5 and 6 malee specific bequests to third parties; and paragraph 7 gives to Mamie a life estate in the homestead and the two business properties, as set forth in the antenuptial contract, the remainder going to his trustees subsequently named in the will. The residue of his estate West leaves to his named trustees for charitable purposes specified in the will.
The annexed consent to the will reads as follows:
“I, Mamie West, wife of L. A. West, the testator in the foregoing will, hereby acknowledge and certify that I have read said will and understand the contents thereof and the provisions therein made for me and I hereby consent that my husband, L. A. West, dispose of his property as set forth in said will and bequeath and devise away from me more than one-half of his property, and I hereby elect and consent to take under the provisions of said will in lieu of the statutes of the State of Kansas relating to descents and distributions. I further certify and acknowledge that this consent is of my free choice and election with full knowledge and understanding of my rights under the laws of the State of Kansas.
“Dated this 24th day of April, 1961.
“Mamie West”
(Emphasis supplied.)
Mamie read the will and the consent before she signed the consent. The signing was done in the presence of Fannie and Dan Parks. The attestation clause reads:
“Subscribed by the said Mamie West, wife of L. A. West, in our presence and in the presence of her husband and at the same time declared by her to be her free choice and election with full understanding of her rights under the laws of the State of Kansas relating to descents and distributions, and in attestation whereof we have hereunto subscribed our names as witnesses at the request of said Mamie West, in her presence and in the presence of each other this 24th day of April, 1961.
“Fannie Pabks
“Dan Pabks
“Witnesses”
(Emphasis supplied.)
L. A. West died September 12, 1962, approximately seventeen months after the execution of the antenuptial contract, the will and the consent thereto. West’s will was admitted to probate October 17,1962, and Mamie perfected an appeal to the district court where the case was heard on the issue only of the validity of the antenuptial contract and the consent to West’s will.
Throughout the presentation of the case Mamie maintained she did not realize what she had signed nor did she realize the full import of it. She stated she was not aware of the contents of the antenuptial agreement and consent, with understanding, until after Mr. West’s death. She also stated she had not seen the antenuptial agreement prior to the meeting in Cox’ office and that she did not consult another attorney, even though she knew she could have had she wanted to, for she trusted her husband and Mr. Cox. Mamie stated that had she known the effect of the antenuptial agreement upon her rights at the time she signed it, she would not have done so. She maintained that at the time of the execution of the antenuptial agreement she was not furnished information concerning the property owned by West and did not know the full extent of the property owned by him. She related that in a conversation had between West and herself in her home prior to the drawing of the antenuptial agreement West stated he was not going to give her his entire estate.
The full extent of the advice given by Mr. Cox to Mamie at the time of the execution of the consent to the will is not shown by the record, although Cox testified that at the time the antenupital contract, the will and consent thereto were prepared by him he felt he was representing both West and Mamie.
Noah Morris, executive vice president of the Prairie State Bank of Augusta, testified that Mamie had restricted authorization to issue checks on West’s bank account, and that during the first part of August 1962, just a month prior to West’s demise, the bank refused to make payment of a check drawn by Mamie payable to herself for $100,000, notwithstanding her authorization. Mamie did not controvert this evidence nor did she offer any explanation or make any attempt to explain this withdrawal.
Upon the evidence presented, the trial court found, in pertinent part, that R. A. Cox served as attorney for Mr. West on many occasions and had also previously acted as attorney for Mamie; that the antenuptial contract was prepared by Mr. Cox from infor-
mation supplied by West and prior to the execution of the contract it was probable that Cox told West and Mamie the agreement would supersede the law of descent and distribution, and made some mention that without the agreement in the event of marriage neither could will away more than one-half of his or her property without the consent of the other; that at the time of the execution of the agreement Mamie was not furnished information concerning the property owned by West and that she did not know the full extent of the property owned by him although she knew he was wealthy; that the will was signed by L. A. West and the consent thereto by Mamie, and both attested by Dan and Fannie Parks as witnesses; that prior to the execution of the will and consent thereto Mamie read the will and consent but was given no further advice concerning her rights nor advised of her rights to the homestead and family allowances.
The court further found:
“6. Although Mr. Cox testified that he considered he was representing both parties in the matter, it does not appear that his services were of any benefit to Mamie West, but were of value only to L. A. West. Mamie West was not advised to seek independent counsel concerning the contract or the will.
“7. The exact amount of property owned by Mamie West in her own right has not been shown by competent evidence, but it appears that she had considerable property of her own and may have been worth as much as $95,000 or $100,000 when the contract and will were executed.”
It was also the finding of the court that Mamie received under the will property rights of the value of far under $24,000, the exact value being difficult to ascertain; that the provisions of the antenuptial contract and will involved were disproportionate and inadequate as to the rights conferred on Mamie West; and
“10. In view of the failure of the decedent to fully inform Mamie West as to the extent of his property, in view of his failure to advise her to seek independent counsel, in view of the position of confidence in which Mamie West was placed with relationship to decedent, and in view of the proximity of the marriage, which would naturally tend to cause a bride to be reluctant to question the acts of her intended or newly-acquired husband, it is the finding of the court that the antenuptial contract and consent to the will were not freely understandably made on the part of Mamie West and were not just and equitable as to her.”
The court concluded as a matter of law, based on the mentioned findings, that the antenuptial contract and the consent of Mamie to the will were void and of no binding effect.
The question before this court is whether the findings of the trial court, that tire antenuptial contract and the consent to the will resulted in a disproportionate and inadequate distribution to Mamie, and the failure of the decedent to fully inform Mamie as to the extent of his property or advise her to seek independent counsel, are sufficient as a matter of law to support the trial court’s judgment.
While the trial court found in finding No. 6 that it did not appear the services of Cox were of any benefit to Mamie, this finding is not sustained by any evidence in the record and is wholly contrary to the evidence. An examination of the contract itself reveals that Cox protected Mamie’s separate property to the extent of approximately $100,000; that under the contract, should Mamie have preceded West in death, West could not have inherited any of Mamie’s property. Moreover, Cox had previously drawn Mamie’s will, and subsequent to the marriage advised her she should have another will prepared, but she stated that she did not see any necessity for it.
It would appear Mamie knew her estate was protected from West in the event she preceded him in death. It cannot be said that Cox’ services to Mamie were of no benefit. It is apparent he was acting as her attorney as well as West’s attorney at the time of the preparation of the instruments. Moreover, the fact the court found that Mamie was not advised to seek independent counsel concerning the contract or the will becomes immaterial inasmuch as her former-attorney was the scrivener of the mentioned instruments and she admitted she knew she could have sought independent advice of counsel had she wanted to, but she trusted her husband and Mr. Cox.
The rules governing the construction of contracts generally are applicable to the construction of antenuptial contracts. (In re Estate of Brown, 189 Kan. 193, 368 P. 2d 27; In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.) This court, after a careful analysis of our previous decisions, set forth the general rules relating to antenuptial contracts in In re Estate of Cantrell, 154 Kan. 546, 119 P. 2d 483, stating:
“The general rule in this state is that contracts, made either before or after marriage, the purpose of which is to fix property rights between a husband and wife, are to be liberally interpreted to carry out the intentions of the makers, and to uphold such contracts where they are fairly and understanding^ made, are just and equitable in, their provisions and are not obtained by fraud or overreaching.
“Where it appears that an antenuptial contract was understandingly made and freely executed, and where there is an absence of anything showing fraud or deceit, the mere fact the intended husband did not disclose in detail to the intended wife the nature, extent and value of his property will not, of itself, invalidate the contract or raise a presumption of fraudulent concealment, and if from a consideration of all the facts concerning the situation of the parties, such as their respective ages, family conditions, property rights, etc., at the time the contract was made the trial court concludes the intended wife was not overreached, the contract should be sustained.” (Syl. ff 1, 2.)
The above rules are again stated in In re Estate of Gillen, 191 Kan. 254, 255, 256, 380 P. 2d 357; In re Estate of Schippel, 169 Kan. 151, 164, 218 P. 2d 192; In re Estate of Place, 166 Kan. 528, 203 P. 2d 132; Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.
There appears to be no question but that Mamie freely and voluntarily entered into and executed the antenuptial agreement and signed the consent to West’s will.
Was the mentioned antenuptial contract disproportionate and inadequate as to Mamie, as found by the trial court? The finding that Mamie received under the will property rights valued far under $24,000 was not in strict accord with the evidence. The testimony was that the fife estate in the homestead was appraised at $15,000, the furniture therein at $3,000 and the fife estate in the two business properties at $9,000, or a total of $27,000.
Long ago in Gordon v. Munn, 87 Kan. 624, 125 Pac. 1, it was held that if the intended wife is competent to make a contract and has a fair and adequate knowledge concerning the future husband’s property when she enters into an antenuptial agreement which is free from deceit and fraud, it should not be set aside merely because the court or jury finds that the provision made for her is in great disproportion to his property. (Hafer v. Hafer, supra; Watson v. Watson, 104 Kan. 578, 586, 180 Pac. 242.) In In re Estate of Cantrell, supra, it was stated:
“Disproportion of shares, where property is to be shared, would and should challenge attention, hut disproportion is not the sole test, especially where it is shown there is no active concealment or fraudulent representation by either party, and the contract is made freely to carry out an understanding previously made.” (p.553.)
It is not contended, nor is there any evidence in the record, and the trial court did not find, that West misrepresented or concealed anything about his property or that he misled or deceived Mamie in any particular. Where a party voluntarily signs an antenuptial contract and thereafter seeks to refute it on the ground its execution was obtained by fraud, such fraud must be made to appear clearly before the contract may be declared invalid. (In re Estate of Ward, 178 Kan. 366, 285 P. 2d 1081; In re Estate of Schippel, supra; Shriver v. Besse, 163 Kan. 402, 183 P. 2d 407.)
Moreover, there is no contention by Mamie or any evidence in the record of any deceit, fraud or overreaching, and the trial court found none. In In re Estate of Schippel, 169 Kan. 151, 218 P. 2d 192, it is stated:
“In determining whether such an agreement was fairly and understandingly made, just and equitable, and free from fraud and deceit, courts should take into consideration all of the surrounding facts and circumstances, including the ages and station in life of the parties, their background of experience and education, their knowledge or lack thereof concerning the property of the other, the amount and nature of the property of each, and existing obligations, if any, to those persons who, by virtue of relationship or otherwise, through the years have earned a right to share in the estate of either of the parties.” (Syl. ¶ 4.)
It must be remembered this is not a case of an elderly, experienced businessman entering into a marriage contract with an inexperienced young woman but with a college-trained, sophisticated businesswoman who had accumulated considerable wealth during her business career. The .parties to the contract had been engaged in joint business ventures and Mamie had aided West with his business affairs for many years. The fact that West did not disclose to Mamie the nature, full extent and value of his property would not, of itself, invalidate the contract or raise a presumption of fraudulent concealment, and under the facts in the instant case it cannot be said as a matter of law that the provisions of the contract and the will were disproportionate and inadequate as to Mamie.
The contract, the consent to the will and the attestation clauses thereto glaringly show, as testified to by Cox and as found by the trial court, that Mamie had been advised of her homestead and statutory rights before she freely executed the instruments which she now seeks to avoid long after the lips of her deceased husband have been finally sealed. Moreover, on August 4, while West was in the hospital, Mamie executed a check for $100,000 drawn on West’s bank account made payable to herself which the bank failed to honor for some reason not material herein. This act, coupled with the further fact she told Mr. Cox she did not need to draft another will, realizing that her property was properly protected by the contract, negates her statement that she did not know the full force and effect of the contract and consent to the will until after the death of her husband.
In In re Estate of Ellis, 168 Kan. 11, 29, 210 P. 2d 417, it was stated:
“It may be conceded that in many of our decisions, stress is laid on the fact that the consenting spouse was not advised as to his or her rights under the statutes pertaining to descents and distributions, but in those cases that knowledge, or lack of it, went to the question whether the consent there involved was freely and understandingly given; but it follows that if a review of the circumstances shows that the consenting spouse was fully aware of the estate of the other, and of the disposition made in the will, knew for some period of time that the particular disposition was to be made, made no effort to inform herself, made no protest to documents of testamentary disposal and her consent thereto being prepared and without making any effort to ascertain her rights, executed the consent, it must be held either that she acted intelligently or that she was willing to act unintelligently. . .
Other conclusions of law not narrated herein need not be treated inasmuch as they were not within the issues presented to the trial court and should be set aside.
After a careful examination of the record, and in light of what has been heretofore said, we find that the pertinent findings of fact do not warrant the conclusions of law reached by the trial court. Therefore, the judgment of the trial court is reversed and the cause is remanded with instructions to set aside its judgment and enter judgment in favor of the appellants in accordance with the views herein expressed.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
Defendant (appellant) James K. Shannon, alias James K. Kelly, was convicted on nine counts of an information of issuing insufficient fund checks each in an amount in excess of fifty dollars in violation of the provisions of chapter 219, section 1, of the laws of 1963, and was sentenced to imprisonment in the Kansas State Penitentiary. From an order overruling his motion for a new trial, and the subsequent imposition of sentences, defendant has appealed. The facts insofar as pertinent to the questions raised on appeal are summarized.
The defendant, accompanied by his wife Ruth, moved to Coffey-ville on February 9, 1964, and established a residence at a motel located in South Coffeyville, Oklahoma. On February 12 defendant went to the First National Bank of Coffeyville, Kansas, and opened a joint checking account with his wife by making a $200 cash deposit. At the time the account was opened the defendant gave the officer of the bank certain false information concerning his address and his employment. The bank, at defendant’s request, made up a number of printed, or personalized, checks bearing the name of the defendant, James K. Shannon, and Ruth Shannon, his wife. Defendant deposited in this checking account sixty-five dollars in cash on February 17. On February 20 defendant deposited in this account two checks totaling $165 drawn on out-of-town banks. On February 21 he made a final deposit to this account of a check in the sum of $210 drawn on an out-of-town bank. The latter three checks were returned to the First National Bank unpaid and these amounts were credited back against defendant’s checking account.
Most of the checks involved in the prosecution were written by defendant on February 21 and 22. The bank closed at 2:00 p. m. on the 21st, and remained closed during the week-end holidays. On Monday, the 24th, the bank, having discovered the out-of-town checks were uncollectible, rejected, due to insufficiency of funds, twenty to twenty-five checks drawn by the defendant on the account.
On March 18 the defendant was arrested upon a warrant charging him, under the provisions of the laws of 1963 aforementioned, with nine counts of feloniously issuing insufficient fund checks, which are the basis of this action.. Defendant was given a preliminary hearing at the conclusion of which he was bound over to the district court of Montgomery county for trial.
The opening day of the April 1964 term defendant appeared for arraignment upon the nine counts of feloniously issuing insufficient fund checks, as set forth in the information filed by the county attorney. Defendant appearing without counsel and being indigent, the court appointed Jack L. Lively, a member of the Montgomery County Bar, to represent defendant. Defendant then requested he be granted another preliminary hearing, contending that at the previous hearing he was not afforded counsel to represent him. The trial court, out of abundance of caution, granted defendant a second preliminary hearing and, sitting as examining magistrate, heard the evidence and bound the defendant over to the district court for trial.
Subsequently defendant appeared with his court-appointed counsel for trial and entered a plea of not guilty to the charges in the information. A jury was selected, evidence was introduced by the state and the defendant, at the conclusion of which the case was duly argued to the jury which returned its general verdict of guilty on each of the nine counts of the information.
From the overruling of his motion for a new trial defendant was sentenced to the Kansas State Penitentiary and costs were assessed against him. Execution on the judgment for costs was subsequently issued. A levy was made on defendant’s funds in the hands of the sheriff, which funds were paid to the clerk of the court to apply on the costs assessed against defendant.
Defendant first contends the trial court erred in overruling his motion for a change of venue, or in the alternative, based upon defendant’s affidavit that the trial court showed prejudice by remarks made at defendant’s wife’s preliminary hearing, should have disqualified itself.
The rule is well stated in State v. Hendrix, 188 Kan. 558, 363 P. 2d 522, where it was held, after reviewing our decisions:
“In a criminal action the mere belief on the part of the trial judge that the accused is guilty of the crime charged is not enough in itself to require a disqualification. The question is not whether the trial judge believes the accused guilty, but whether the trial judge can give him a fair trial.” (Syl. f 2.)
(See, also, State v. Cole, 136 Kan. 381, 15 P. 2d 452.) It was also stated in State v. Tawney, 81 Kan. 162, 105 Pac. 218, that a court is not compelled to grant a change of venue upon the affidavit of the defendant alleging prejudice of the judge, although no counter affidavit or proof is filed, where the judge is satisfied that his mind is free from prejudice and that the statements in the defendant’s affidavit are without foundation. Other than those matters treated in this opinion there is no indication in the record, nor does the defendant contend, that the trial court failed to give him a fair and impartial trial. The record clearly discloses the court was very cautious at all stages of the proceedings in protecting the rights of the defendant.
Defendant next contends the nine insufficient fund checks the defendant admitted writing, which were the basis of the prosecution of the respective nine counts of the information, were improperly admitted into evidence inasmuch as chapter 219, section 4, of the laws of 1963 provides for a seven-day notice to the maker or drawer when the drawee has refused payment because of insufficient funds, and that the exhibits were inadmissible because he had not received notice that the checks had not been paid by the drawee bank nor was he offered an opportunity to make payment.
The defendant was .charged under the provisions of chapter 219, section 1, of the laws of 1963 which read:
“Any person, who with intent to defraud shall draw, make, utter, issue or deliver or cause or direct the making, drawing, uttering or delivering of any check, order or draft on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of any such check, order or draft as aforesaid that the maker or drawer has no deposit in or credits with such bank or depository or has not sufficient funds in, or credits with such bank or depository for the payment of such check, order or draft in full upon its presentation shall be deemed guilty of a crime and upon conviction shall be punished as provided in section 2 of this act.”
The legislature, by means of this amendment, made intent to defraud a necessary element of the offense which was not an element of the offense in the previous statute (G. S. 1949, 21-554). (See, State v. Avery, 111 Kan. 588, 207 Pac. 838, 23 A. L. R. 453; State v. Morris, 190 Kan. 93, 96, 372 P. 2d 282.)
Chapter 219, Section 4, provides:
“In any prosecution under the insufficient fund check act against the maker, or drawer thereof the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank or depository, providing such maker or drawer shall not have paid the holder thereof the amount due thereon, within seven days after receiving notice that such check, draft or order has not been paid by the drawee. . . .”
The. language of the last mentioned section sets forth a rule of evidence only and is permissive in nature. The state may establish a prima facie case of intent to defraud by showing that the seven-day notice, as provided by section 4, has been given to the drawer or maker where the drawee has refused to pay the check upon presentation because of insufficient funds, and should the drawer or maker, after notice, fail to make payment within the period prescribed in the section, a presumption of intent to defraud arises. The state’s other option is to prove the drawer’s acts were done with intent to defraud the payee or endorser. In the instant case the state chose the latter method and was therefore required to prove the defendant’s intent to defraud. The defendant has failed to cite, and our limited research has failed to disclose, any authority or historical basis to sustain his contention that the seven-day notice is a prerequisite to a prosecution for the crime charged -under the provisions of section 1 of the act. Again it may be stated that section 1 defines and sets forth the elements of the offense, and section 4 sets forth merely a permissive rule of evidence in the prosecution of the offense declared by section 1. Defendant’s second contention cannot be sustained.
Defendant asserts that exhibits 3, 11, 12, 13 and 14, which were insufficient fund checks made and uttered at approximately the same time and under similar circumstances, were erroneously admitted into evidence. The basis of the contention was that they were independent offenses claimed to have been committed by the defendant and not a part of the crimes charged in the information.
Proof of an independent crime is admissible in the discretion of the court, and may be received in the state’s case in chief, under proper instructions, if it is relevant to the proof of the guilt of the defendant for the crime with which he is charged. To be relevant it must prove or tend to prove identity of person or crime, to prove scienter or guilty knowledge, to prove intent, to show inclination or motive, to prove plan, scheme, or system of operation and to prove malice. (State v. Myrick, 181 Kan. 1056, 317 P. 2d 485.) The legislature recognized the exceptions to the general rule, as contended by defendant, in enacting chapter 303, section 60-455, Laws of 1963. The mentioned rules, exceptions and statutes were thoroughly discussed in the well-annotated opinion of State v. Wright, 194 Kan. 271, 398 P. 2d 339, and what was said there is applicable here.
In the instant case the trial court in its instruction No. 11, in compliance with the last mentioned statute, properly instructed the jury:
“You are instructed that evidence has been introduced by the State tending to show that near the times alleged in the Information and on other occasions, the defendant committed other acts 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 the 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 motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake as such matters relate and are relevant to the offenses charged. This evidence should be considered along with all of the other evidence for that purpose only and should be disregarded for any other purpose.”
Clearly the instruction limits the application of the exhibits.
The record discloses the trial court exercised extreme care in protecting the defendant from prejudice at the very moment the state offered the exhibits into evidence. The court promptly advised the jury to consider the checks and documents only insofar as they bore upon the question of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. The defendant, therefore, cannot complain that the jury was not promptly informed as to the nature and applicability of the exhibits to the cause.
It is also contended the court erred in admitting exhibits 15, 16, 17 and 18. Exhibits 15 and 16 were First National Bank statement records of the joint account and signature card of James K. and Ruth Shannon. What has been said with reference to the admission of the previous exhibits is applicable here. The exhibits were clearly admissible.
There was no objection to the admission of exhibit 17 and the defendant consented to the admission of exhibit 18, and nothing further need be stated.
Defendant’s final contention is that the court erred in taxing the costs of the case against him and permitting execution to issue on the judgment and a levy to be made upon the personal property of the defendant to satisfy the judgment. It is well settled in this state that upon conviction in a criminal action the defendant is liable for the costs made in both the prosecution and defense of the case. (See State v. Thomson, 188 Kan. 171, 360 P. 2d 871, where the matter is exhaustively discussed.) Subsequently execution was properly issued in accordance with our statute and a levy was made upon the personal property of the defendant, return made, and the money paid into court to apply on the judgment. There is nothing in the record to disclose that execution was improperly issued or that it was not in compliance with our statute.
The record in the case shows the trial court was vigilant of the defendant’s rights. Defendant was granted a second preliminary hearing out of abundance of caution. He was protected at every stage of the proceedings by competent, court-appointed counsel. The jury was ably instructed with the view of protecting defendant’s rights at every stage, and, without question, the defendant had a fair trial before a trial judge with many years of experience on the bench.
In view of the entire record and what has been said, no error has been made to appear warranting a reversal of the judgment. The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
In this original action sounding in quo warranto (K. S. A., 20-101a), it is alleged and claimed that the apportionment provisions of the Kansas Constitution, Article 2, Section 2, and Article 10, Section 1, and Chapter 2, of the 1964 Special Session of the legislature, apportioning the seats of the House of Representatives, were rendered unconstitutional and void by the decision of the Supreme Court of the United States in Reynolds v. Sims (June 15, 1964), 377 U. S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, holding that,
“. . . as a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators is unconstitutionally impaired when its weigtht is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State. . . .” (12 L. Ed. 2d 531.))
Subsequent quotations from Reynolds will be found in 12 L. Ed. 2d.
The holding was based on the premise that the right to vote for the candidate of one’s choice is of the essence of the representative form of government, and that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise” (pp. 522, 523); that “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests” (p. 527); that “our legislatures are those instruments of government elected directly by and directly representative of the people” (p. 527); that “all voters, as citizens of a state, stand in the same relation regardless of where they live” (p. 529); that “diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amend ment just as much as invidious discriminations based upon factors such as race ... or economic status” (pp. 529, 530); and that “the Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races.” (p. 531.)
In holding that, as a federal constitutional requisite, both houses of a state legislature must be apportioned on a population basis, the court stated “we deem it expedient not to attempt to spell out any precise constitutional tests” (p. 537); that what is “marginally permissible in one State may be unsatisfactory in another” (p. 537); and that it intended to state “only a few rather general considerations which appear to us to be relevant” (p. 537), which it denominated as “discoverable” and “manageable” standards or applicable guidelines for implementing its decision in Baker v. Carr, 369 U. S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691, in determining die constitutionality of a state legislative apportionment plan. We further quote and summarize from the opinion:
“A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. . . .”
It was then stated that one state might prefer single-member districts while another state might desire to achieve some flexibility by creating multi-member districts, but that, “the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” (p. 537.) The opinion stated:
“History indicates, however, that many States have deviated, to a greater or lesser degree, from the equal-population principle in the apportionment of seats in at least one house of their legislatures. So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature. But neither history alone, nor economic or other sorts of group interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history or economic interests, cast votes. Considerations of area alone provide an insufficient justification for deviations from the equal-population principle. Again, people, not land or trees or pastures, vote. Modem developments and improvements in transportation and communications make rather hollow, in the mid-1960’s, most claims that deviations from population-based representation can validly be based solely on geographical considerations. Arguments for allowing such deviations in order to insure effective representation for sparsely settled areas and to prevent legislative districts from becoming so large that the availability of access of citizens to their representatives is impaired are today, for the most part, unconvincing.
“A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions. Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. . . .” (pp. 537,538.)
It was further stated:
. . And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering. However, permitting deviations from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population. Carried too far, a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result, in many States, in a total subversion of the equal-population principle in that legislative body. This would be especially true in a State where the number of counties is large and many of them are sparsely populated, and the number of seats in the legislative body being apportioned does not significantly exceed the number of counties. Such a result, we conclude, would be constitutionally impermissible. And careful judicial scrutiny must of course be given, in evaluating state apportionment schemes, to the character as well as the degree of deviations from a strict population basis. But if, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all of the State’s citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired.” (pp. 538, 539.) (Emphasis supplied.)
The majority court then formulated arithmetic-absolute standards under the Equal Protection Clause of equal-populated districts for both houses of a bicameral legislature. Those standards are expressed in various phrases as “substantial equality of population among the various districts” (p. 537); “as nearly of equal population as is practicable” (p. 536) and “approximately equal” (p. 537), but that “mathematical exactness or precision is hardly a workable constitutional requirement” (p. 536), which is all characterized by the goal of “full and effective participation by all citizens in state government” (p. 529), and even more clearly that “fair and effective representation for all citizens is concededly the basic aim of legislative apportionment.” (p. 529.)
We acknowledge that Kansas as a state of the Union must recognize as binding an amendment to the Constitution of the United States from the time of its adoption and must enforce it within its own territorial limits, notwithstanding any inconsistent provisions in our Constitution or statutes. Neal v. Delaware, 103 U. S. 370, 26 L. Ed. 567, held that the adoption of the Fifteenth Amendment had the effect in law to render inoperative a state constitutional provision which restricted the right of suffrage to the white race. See, Gunn v. Barry, 82 U. S. 610, 21 L. Ed. 212. See, also, 11 Am. Jur., Constitutional Law, Sec. 41, p. 648, and Anno: 71 A. L. R. 1332, dealing with the Nineteenth Amendment which automatically struck out the word “male” wherever it was used in a state constitution or statute defining electors.
When the Constitution of Kansas was adopted in 1859, original Article 2, Section 2, provided that the first House of Representatives would consist of 75 members chosen for one year and the first Senate would consist of 25 members chosen for two years, and after the first election the number of senators and members of the House of Representatives was to be regulated by law, but never to exceed 100 representatives and 33 senators.
In 1873, the people amended Article 2, Section 2, hereafter quoted, and enlarged both houses of the legislature. With the formation of five western counties in 1887, the last of the present 105 counties were organized. The provisions of the Constitution of Kansas dealing with apportionment read:
“The number of representatives and senators shall be regulated by law, but shall never exceed one hundred and twenty-five representatives and forty senators. From and after the adoption of the amendment the house of representatives shall admit one member from each county in which at least two hundred and fifty legal votes were cast at the next preceding general election; and each organized county in which less than two hundred legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.” (Art. 2, § 2.)
“In the future apportionment of the state, each organized county shall have at least one representative; and each county shall be divided into as many districts as it has representatives.” (Art. 10, § 1.)
“It shall be the duty of the first legislature to make an apportionment, based upon the census ordered by the last legislative assembly of the territory; and a new apportionment shall be made in the year 1866, and every five years thereafter, based upon the census of the preceding year.” (Art. 10, § 2.)
Members of the Senate are elected for a four-year term and members of the House of Representatives are elected for a two-year term (Art. 2, § 29), and the legislature has provided that the Senate shall consist of 40 members and the House of Representatives shall consist of 125 members. (K. S. A. 4-101.)
The foregoing constitutional provisions were construed and applied in Harris v. Shanahan (Dec. 5, 1963), 192 Kan. 183, 387 P. 2d 771, holding the 1963 apportionment of the Senate (Ch. 13, Laws 1963) , and the 1961 apportionment of the House of Representatives (G. S. 1961 Supp., 4-103) to be unconstitutional and void. They were likewise construed and applied in Harris v. Shanahan, (March 30, 1964), 192 Kan. 629, 390 P. 2d 772, which judicially approved Senate Bill No. 2 and House Bill No. 2 of the 1964 Special Session of the legislature. (Chs. 1 and 2, Laws 1964 Special Session), apportioning the state into 40 senatorial districts of approximately equal population and apportioning one member of the House of Representatives to each of the 105 counties, and then apportioning the 20 seats not allocated on a geographical basis to counties entitled to them by virtue of population in accordance with the method of equal proportions.
Our legislature is bicameral and the legislative power of this state is vested in a Senate and House of Representatives. (Art. 2, § 1.) Simply stated, the rationale of the Kansas apportionment plan is that the seats of one house (the Senate) shall be apportioned equally on the basis of population and the seats of the other house (the House of Representatives) shall be apportioned both on a population and a geographical basis. In Harris v. Shanahan (March 30, 1964), supra, it was said:
“. . . in the apportionment of the state into senatorial districts, the legislature is not confined to county boundary lines, but the resulting districts should, where possible, be compact and contain a population and area as similar as may be in its economic, political, and cultural interests, all as determined by the legislature in its discretion, not acting arbitrarily or capriciously.” (1. e. 632.)
It was also said:
“. . . it was recognized by those who framed the Constitution that the districts of the House of Representatives were to be apportioned to the several counties, that is, each organized county was to have at least one representative and seats not allocated on a geographical basis were to be apportioned to counties properly entitled to them by virtue of population, and each county entitled to more than one such seat was to be divided into as many districts equal or substantially equal in population as it had representatives. In no case was a representative district to include territory in more than one county.” (1. c. 632,633.)
Despite the fact that our constitutional apportionment plan was uniquely designed to meet the particular characteristics and needs of Kansas, we are told in Reynolds in the terms of an absolute, that, under the stipulated and admitted facts in the case at bar, the Kansas apportionment plan (Ch. 2, Laws 1964 Special Session) and Article 2, Section 2, and Article 10, Section 1, of our Constitution are unconstitutional because they invidiously discriminate against any person residing in any district mathematically disfavored as a result of the “weighing of representation,” and that to conform to the federal constitutional requisite therein announced, the House of Representatives must be reapportioned.
The plaintiffs allege, and the parties’ written agreement of the facts confirm, that, based upon the 1963 official state census, the official population for the year preceding the enactment of the current House apportionment, and upon which it was based, was 2,172,296. If the 125 House seats were apportioned equitably on the basis of population alone, each district would have had an average of 17,378 people. Under the current apportionment act Saline County is the largest populated district in the state and it was apportioned only one representative, and it has 21.3 times the population of Greeley County which likewise was apportioned only one representative. Moreover, the smallest county (Greeley) has 12.9 percent of the population of an ideal or average-sized district, and tire largest county (Sedgwick) has 18.536 times the average district’s population. Again, using the 1963 figures, the 63 least populated counties (districts), being the majority necessary to enact legislation, were inhabited by 411,792 people, or approximately 19 percent of the state’s total population, while the 84 least populated counties (districts), being the two-thirds majority required for submission of constitutional amendments or to convene a constitutional convention (Art. 14, §§ 1 and 2), were inhabited by 763,093 people, or approximately 35 percent of the state’s population. By contrast, the state’s four largest counties alone contained 827,123 people in 1963, or approximately 38 percent of the state’s total population, while apportioned only 23 representatives, although these 23 seats represent more people than do the 84 smallest counties (districts) which control a two-thirds majority vote in the House of Representatives. The 1964 official state census would result in approximately the same ratios of representation insofar as the 63 and 84 least populated counties are concerned. However, there would be a shift in the ratio of representation between two of the largest populated counties.
This action attacks only the apportionment of the seats in the House of Representatives. As previously indicated, 105 of the 125 seats of that house are apportioned to each of the 105 counties on a geographical basis (of which 30 counties have a population exceeding the ideal or average-sized district), and the remaining 20 seats are apportioned to counties solely by population in accordance with the method of equal proportions. Having laid down the rule that both houses of a bicameral legislature must be apportioned on a population basis but that a certain degree of variance is constitutionally permissible so long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, the majority in Reynolds then warns that divergences from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation regardless of population, and that if carried too far, “a scheme of giving at least one seat in one house to each political subdivision (for example, to each county) could easily result . . . in a total subversion of the equal-population principle in that legislative body.” (p. 538.) Further, that “this would be especially true in a State where the number of counties is large and many of them are sparsely populated, and the number of seats in the legislative body being apportioned does not significantly exceed the number of counties.” (p. 538.)
We are not enlightened by the word “significantly.” Does it mean 20, 30, 40, or how many seats? If the word was used to mean that the number of seats in the legislative body being apportioned must exceed the number of counties by such number that the vote of any citizen in any district created by the apportionment is approximately equal in weight to that of any other citizen in the state, then it is evident that the 20 seats apportioned to the more populous Kansas counties in accordance with the method of equal proportions are insufficient in number to provide equal-populated districts in accordance with the federal constitutional requisite. This is indicated by the fact that the 63 least populated counties, being the majority necessary to enact legislation, are controlled by 411,792 people, or approximately 19 percent of the state’s total population, while the four largest counties alone contain 827,123 people, or approximately 38 percent of the state’s total population, and are apportioned only 23 seats on both a geographical and population basis.
In light of the decisions of the Supreme Court of the United States in Reynolds v. Sims, supra; WMCA v. Lomenzo, 377 U. S. 633, 12 L. Ed. 2d 568, 84 S. Ct. 1418; Maryland Committee v. Tawes, 377 U. S. 656, 12 L. Ed. 2d 595, 84 S. Ct. 1429; Davis v. Mann, 377 U. S. 678, 12 L. Ed. 2d 609, 84 S. Ct. 1441; Roman v. Sincock, 377 U. S. 695, 12 L. Ed. 2d 620, 84 S. Ct. 1449; Lucas v. Colorado General Assembly, 377 U. S. 713, 12 L. Ed 2d 632, 84 S. Ct. 1459; Meyers v. Thigpen, 378 U. S. 554, 12 L. Ed. 2d 1024, 84 S. Ct. 1905; Williams v. Moss, 378 U. S. 558, 12 L. Ed. 2d 1026, 84 S. Ct. 1907; Hearne v. Smylie, 378 U. S. 563, 12 L. Ed. 2d 1036, 84 S. Ct. 1917; Finney v. Butterworth, 378 U. S. 564, 12 L. Ed. 2d 1037, 84 S. Ct. 1918; Scranton v. Drew, 379 U. S. 40, 13 L. Ed. 2d 107, 85 S. Ct. 207, and Hill v. Davis, 378 U. S. 565, 12 L. Ed. 2d 1037, 84 S. Ct. 1918, establishing federal constitutional requisites for state legislative apportionment, a majority of this court is of the opinion that under the Supremacy Clause of the Constitution of the United States (Article VI), the existing constitutional and statutory apportionment system of Kansas violates the Equal Protection Clause of the Fourteenth Amendment with respect to the House of Representatives.
We, therefore, have the distasteful task of implementing the rule laid down in Reynolds and related cases under the Equal Protection Clause of the Fourteenth Amendment, which we are required to hold to be binding upon this state under the Supremacy Clause of the Constitution of the United States, so long as the majority of the members of the Supreme Court of the United States continue to adhere to that constitutional concept. The highest court of the land has announced the rule that both houses of a bicameral state legislature must be apportioned on a population basis. We are sworn to uphold the Constitution of the United States and the Constitution of the state of Kansas, but under the Supremacy Clause, the Constitution of the United States is the supreme law of the land. The Fourteenth Amendment has been so construed to require that we hold, as we now do, that the existing apportionment plan of the Kansas House of Representatives is unconstitutional as violating the Equal Protection Clause of the amendment. Hence, we declare inoperative that portion of Article 2, Section 2, of the Constitution of Kansas, which reads:
“From and after the adoption of the amendment the house of representatives shall admit one member from each county in which at least two hundred and fifty legal votes were cast at the next preceding general election; and each organized county in which less than two hundred legal votes were cast at the next preceding general election shall be attached to and constitute a part of the representative district of the county lying next adjacent to it on the east.”
and that portion of Article 10, Section 1, which reads: “each organized county shall have at least one representative; and . . .” Furtiber, we hold invalid the existing apportionment of the House of Representatives contained in House Bill No. 2 of the 1964 Special Session of the legislature.
In view of conclusions announced in Reynolds, the legislature is again called upon to face the unhappy and difficult task of reapportioning the House of Representatives. In performing that duty, this court will endeavor to exercise all the patience and understanding it is permitted within the limitations of Reynolds, and will approve any reasonable plan of the legislature which does not result in arbitrary classification or unreasonable departure from the equal population principle recently declared to be a federal constitutional requisite.
In Maryland Committee v. Tawes, supra, the Supreme Court of the United States stated that under no circumstances should further elections be permitted to be conducted under any unconstitutional apportionment plan. The 1966 election is the next election of members of the House of Representatives. Under K. S. A. 25-204 and 25-311, the secretary of state is charged with initiation of acts precedent to the holding of primary and general elections, that is, the preparation of notices of the primary election and the certification of nominees for the general election. That process will be initiated by him by giving notice of the 1966 primary election on or before April 2, 1966. Information as to representative districts must necessarily be in his hands for a sufficient time prior to that date to permit proper preparation of the required notices.
This court makes no indication of when or at what legislative session — the 1965 Regular Session of the legislature or a Special Session called by the governor following the 1966 Budget Session— the legislature should enact a proper and valid apportionment of the House of Representatives in accordance with the constitutional requisite announced in Reynolds, supra. However, it feels certain that the legislature will enact a valid apportionment act apportioning the state into' representative districts in conformity with that constitutional requisite, in ample time so that the secretary of state will have proper and necessary information as to such representative districts at a reasonable time prior to April 2, 1966.
For the purpose of affording the legislature ample opportunity to undertake the necessary reapportionment, we withhold further determination of this action, retaining jurisdiction to hear the matter further and to take such additional action as is deemed advisable and within such reasonable time as the circumstances require.
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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 a petition filed by the State of Kansas to enjoin the defendants from keeping and maintaining a common nuisance by permitting persons to resort to premises controlled by defendants for the purpose of drinking alcoholic liquors contrary to the provisions of the Alcoholic Control Act.
The petition, omitting formal parts, reads:
“For its cause of action against the defendants, plaintiff alleges that in pursuance of a common plan, scheme and conspiracy among them and their servants, agents or employees, defendants did on or about the 27th day of August, 1962, and have continuously since and do now unlawfully, knowingly, and willfully keep and maintain a common nuisance to the people of the State of Kansas in the premises known as the Holiday Inn, South, or some part thereof, all in Shawnee County, Kansas, and more particularly described as: (Premises described.) by keeping a place or places on said premises where persons are permitted to resort for die purpose of drinking alcoholic beverages which place or places so kept and maintained by the defendant are a place or places to which the general public has access, all contrary to G. S. 1949, 41-805 and 41-806.
“Plaintiff further states that defendant, Kansas Super Motels, Inc., on July 8, 1958, leased certain private club facilities located within the real estate heretofore described herein to the Southern Lounge Inc., a Kansas corporation, and that said club and facilities on June 27, 1962, were subleased by said Southern Lounge, Inc., to the defendant, Buccaneer Club, Inc. That since August 27, 1962, said Buccaneer Club, Inc., has been operating said club facilities. That the Kansas Super Motels, Inc., is a Kansas corporation operating the Holiday Inn South Motel, consisting of 130 living units for occupancy, with a restaurant, outdoor and indoor swimming pools and other facilities designed and adapted for operation of a motel and club, and that said Buccaneer Club, Inc., is contained within one of the appurtenances of the Holiday Inn South Motel.
“That the parties defendant hereto devised, designed and promoted the foregoing scheme and plan for the purpose of attempting to escape liabilities and penalties provided by G. S. 1949, 41-805 and 41-806, and in furtherance of said scheme did sell so-called memberships in said Buccaneer Club, Inc., which memberships purport to convey to a member the privilege, among other things, of bringing his intoxicating liquors to the said club room, consisting of a bar or counter where liquors were and are stored, mixed and served to purported club members by the defendants, their agents, servants and employees, and also which club room contained booths, tables, chairs and other equipment usual to such an establishment.
“That said purported memberships in the Buccaneer Club, Inc., with the knowledge, consent of and at the direction of the officers of the defendant, Super Motels, Inc., were sold by the agents of said Super Motels, Inc., to the general public. That said memberships so sold consisted of individual, family, temporary, firm and quarterly. Temporary memberships for a period of only five days have been sold only to registered guests of said motel, non-guests not being eligible for such memberships. Temporary memberships entitled the holder thereof to all of the' privileges of said Buccaneer Club, Inc., including the privilege of using the club room and facilities and the services of a bartender employed by said Club for the puipose of mixing and serving intoxicating liquors to patrons.
“Plaintiffs further state that Donald L. Christie one of the defendants herein, is an incorporator of the Buccaneer Club, and is also a paid employee of the Hotel Inn motel as its manager and has been directed by his employer, Holiday Inn Motel, under the direction and control of defendant, Kansas Super Motels, Inc., to screen applicants for and to take memberships, temporary and permanent in said Buccaneer Club, all of which is known to the officers of said defendant corporation.
“Plaintiffs further state that temporary memberships of the Buccaneer Club, Inc., sell for $1.00 and are solicited also by other agents, servants and employees of said Holiday Inn Motel under the authority and direction of Kansas Super Motels, Inc., said defendants well knowing that most guests stay at said motel only one night, plaintiff therefor further states that said scheme is a subterfuge for the purpose of attempting to evade the provisions of G. S. 1949, 41-805 and 41-806.”
The prayer requested that the premises be declared a public nuisance and padlocked, and that an injunction be issued against each of the defendants enjoining them from permitting persons to resort to the described premises for the purpose of drinking alcoholic liquor.
The defendants lodged a general demurrer against the petition which was sustained. The plaintiff has appealed.
The action is bottomed on the provisions of G. S. 1949, 41-805 which reads insofar as material here:
“. . . any building, structure or boat where persons are permitted to resort for the purpose of drinking same [intoxicating liquors], in violation of this act, or any place where such liquors are kept for sale, barter or gift, in violation of this act, and all such liquors, and all property kept in and used in maintaining such a place, are each and all of them hereby declared to be a common nuisance; . . .” (Emphasis supplied.)
We must then search the act further for the purpose of determining when the drinking of intoxicating liquor is in violation of the Alcoholic Beverage Control Act. G. S. 1949, 41-719 provides in part:
“It shall be unlawful for any person to drink or consume alcoholic liquor upon the public streets, alleys, roads or highways, or in beer parlors, taverns, pool halls, or places to which the general public has access, whether or not an admission or other fee is charged or collected, . . .” (Emphasis supplied.)
It must be concluded from reading the above provisions that any place to which the general public is permitted to resort for the purpose of drinking alcoholic liquors is a common nuisance.
This action was instituted under the procedural provisions provided by G. S. 1949, 41-806 which are not at issue in this controversy. We are concerned only with the question of whether the allegations of the petition are sufficient to charge the defendants with maintaining a place to which the general public is permitted to resort for the purpose of drinking alcoholic liquors.
It is conceded that the defendants maintain a place where people are permitted to congregate for the purpose of drinking alcoholic liquors supplied by such people. The question before us may therefore be further reduced: Are the allegations of the petition sufficient to charge that the people admitted to the premises, described in the petition, constitute the “general public” as that term is used in G. S. 1949, 41-719?
Construing the allegations of the amended petition as whole Wycoff v. Winona Feed & Grain Co., 187 Kan. 98, 353 P. 2d 979; Benton v. Franzen, 191 Kan. 108, 379 P. 2d 306) and in the light most favorable to the plaintiff, (Bell v. Hanes, 190 Kan. 765, 378 P. 2d 13; Sands v. Donge, 181 Kan. 325, 311 P. 2d 321.) as we are compelled to do, we are constrained to hold that the allegations are sufficient to constitute a cause of action.
In construing a somewhat similar petition in the recent case of State, ex rel., v. Grace, 194 Kan. 116, 397 P. 2d 331, we held that allegations to the effect that the general public, consisting of any persons who presented themselves at the entrance door, requested admittance and paid ten dollars would be admitted to the premises as members, constituted a sufficient allegation as to admittance of the general public.
However, the amended petition in the present case is challenged on additional grounds. The appellees contend and the trial court found:
“. . . that the demurrer of the defendants to the amended petition should be sustained for the following reasons:
“Plaintiffs’ amended petition shows that when persons obtain membership in the Buccaneer Club that ‘Donald L. Christie ... an incorporator of-the Buccaneer Club . . . has been directed ... to screen applicants for and to take memberships.’ Persons thus admitted to membership in the club are no longer part of the general public.”
The appellees contend that to screen applicants for membership means to select from the applicants those who will be members in the club, and if only select members are admitted to the premises the general public does not have access thereto. Appellees further suggest that the term “general public” has a well understood meaning which includes all citizens, and that very little is required to take them out of the “general public” classification and place them in a limited or select classification.
There is much merit to appellees’ contentions. However, the petition contains allegations to the effect that the entire plan is a scheme or subterfuge for the purpose of attempting to evade the provisions of the intoxicating liquor laws. If the evidence establishes that the screening constitutes such a subterfuge the appellants will be entitled to the relief for which they have prayed.
. The appellees also contend that the temporary memberships referred to in the amended petition are issued only to persons who are registered at the motel and that “no one coming in off the street” is eligible to apply for temporary membership. Again we are con fronted with the allegation that such plan for registration is a subterfuge.
The controversy presents questions of fact which can best be determined after the issues are framed by the pleadings and evidence is presented.
In the absence of any directive from the legislature as to what constitutes “a place to which the general public has access” the determination will to a great extent depend on the facts and circumstances of each particular case, and for that reason we are not attempting here to state what does or does not constitute “a place to which the general public has access.”
The judgment is reversed with instructions to overrule the demurrer.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Price, J.:
In this case the defendant was charged with the offense of assault with intent to kill (K. S. A. 21-431). He was convicted of the lesser included offense of felonious assault (K. S. A. 21-435). Having previously been convicted of a felony (murder in the second degree), sentence under the habitual criminal statute (K. S. A. 21-107a) was imposed. He has appealed.
Reing an indigent person and without counsel at his arraignment, counsel was appointed to represent defendant, and counsel represented him throughout the trial and in this appeal.
Defendant took the witness stand in his own behalf. It first is contended the court erred in permitting the state to cross-examine him concerning his defense to the murder charge in 1947 to which he had entered a plea of guilty — it being argued that in the nature of things no “defense” is interposed when a plea of guilty is entered. We have examined the evidence as to this matter and find the contention to be without merit. It appears that notwithstanding defendant’s plea of guilty to the murder charge his contention at that time was that he was acting in self-defense — just as he contended before the jury in the present charge. No matter what the rule may or may not be after the effective date of K. S. A. 60-421, the rule at the time of this trial in 1963 was that when a defendant in a criminal prosecution elects to take the stand as a witness in his own defense, he may be cross-examined concerning previous of fenses and matters involving him in degradation and disgrace even though not pertaining to the charge for which he is then on trial, and that the extent of such cross-examination rests within the sound discretion of the trial court. (State v. Story, 144 Kan. 262, 58 P. 2d 1090; State v. Osburn, 171 Kan. 330, 333, 232 P. 2d 451; State v. Vernon King, 190 Kan. 825, 832, 378 P. 2d 147).
While this appeal was pending defendant, being confined in the penitentiary, addressed a letter to the trial judge which was considered and treated as a motion to vacate sentence under the provisions of K. S. A. 60-1507. This was done prior to October 16, 1964, the effective date of rule no. 121 of this court which in (c) (3) thereof provides that a motion to vacate, set aside, or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected. It was contended by defendant in this “motion” that his substantial rights were violated because of the fact he was not represented by counsel at his preliminary examination and arraignment, and at the time he made a statement to the county attorney. The trial court denied relief. Under the circumstances we will consider the matter.
The record shows that upon his arraignment counsel was appointed to represent defendant and it further shows that at the time he was questioned by the county attorney he was advised of his right to communicate with counsel but that he waived such right. With respect to the lack of counsel at his preliminary examination there is nothing in the record to indicate that his substantial rights were in any way violated or prejudicially affected by lack of counsel at that hearing. Furthermore, it has been held many times that under circumstances shown by this record failure to appoint counsel for an indigent defendant at his preliminary examination is not error. (State v. Young, 194 Kan. 242, 398 P. 2d 584 and cases cited in the opinion). The court did not err in denying relief under K. S. A. 60-1507.
Finally, it is contended that the verdict is contrary to law and the evidence, and that defendant’s motion for a new trial was erroneously overruled.
A discussion of the evidence is unnecessary. It was such that the jury was completely justified in returning the verdict of guilty. The motion for a new trial was correctly overruled. We find no error in the record and the judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a judgment granting a peremptory writ of mandamus commanding the Board of County Commissioners of Stafford County, Kansas, to grant to plaintiff a retail cereal malt beverage license to sell malt beverages in original and unbroken case lots in South Seward Township in Stafford County.
The case was tried to the court on facts contained in the pleadings and an agreed statement, all of which may be summarized.
On September 11, 1963, petitioner filed with defendant his application for a license to sell cereal malt beverages “in, original and unbroken case lots” at the service station operated by appellee, located on U. S. Highway 281 in South Seward Township, Stafford County, Kansas, fourteen miles north of the City of St. John, the county seat.
The above location not being within the corporate limits of any city, defendant gave notice by registered mail to the clerk of the Township Board of South Seward Township of the filing of the application. The Township Board of South Seward Township filed with the Board of County Commissioners its written objection to the granting of appellee’s application, as follows:
“To the Board of County Commissioners of Stafford County, Kansas:
“We, the Township Board and the majority of the residents of South Seward Township, Stafford County, Kansas, do object and ask that no cereal malt beverage license be issued to Robert L. Horyna or anyone else in South Seward Township.”
On December 2, 1963, the Board of County Commissioners of Stafford County adopted a resolution denying the application for a license because of the written objection filed by the Township Board of South Seward Township, and in addition recited in substance that in the judgment of the Board of County Commissioners the morals, health and public interest of all concerned would be served by such denial, and particularly because of the difficulty of maintaining adequate police supervision of the location in question — the traffic on Highway 281 being heavy. That in the judgment of the Board, cereal malt beverages in any form should not be sold on said highway.
The agreed statement read in part:
“It was stipulated that the Application for a License to Retail Cereal Malt Beverages in original and unbroken case lots was in all respects proper and legally sufficient; that Robert L. Horyna was a fit and proper person to receive such a license under the laws of the State of Kansas, if such a license should be issued; that the protest filed by the Township Board of South Seward Township, the place of business of Robert L. Horyna was to be located, was duly filed as alleged in the answer of the Board of County Commissioners of Stafford County, Kansas; that the resolution passed by the Board of County Commissioners of Stafford County, Kansas, wherein the license that was asked for by Robert L. Horyna, was denied, was passed by the Board of County Commissioners of Stafford County, Kansas, in good faith; that said Board of County Commissioners of Stafford County, Kansas, believed that it was a discretionary matter on its part as to whether the license in question should be issued. . . .”
Defendant has appealed from the judgment of the district court granting plaintiff a peremptory writ of mandamus.
The first question presented for our determination may be simply stated: Do the provisions of K. S. A. 41-2702, pertaining to objections to the granting of a license by the township board apply to an application for a license to "sell only at retail cereal malt beverages in original and unopened containers, and not for consumption on the premises,” as covered in the last paragraph of that statute? If the provision for objection by the Township Board applies, then the Board of County Commissioners was bound by the statute to deny the application.
The pertinent provisions of the Cereal Malt Beverages Act (K. S. A. 41-2702) applicable to this controversy, read:
“No person shall sell any cereal malt beverage at retail without having first secured a license for each place of business as herein provided. In case such place of business is located within the corporate limits of a city then the application for license shall be made to the governing body of such city. In all other cases the application for license shall be made to the board of county commissioners in the county in which such place of business is to be located. . . . The board of county commissioners in any county shall not issue a license without giving the clerk of the township board in the township where the applicant desires to locate, written notice by registered mail, of the filing of said application. If said township board files no written objection to the granting of said license within ten (10) days after the mailing of said notice, then said license may be granted by said board of county commissioners, but if the township board files a written statement of objection to the granting of said license, the same shall not be granted. . . . The application shall be verified and upon a form prepared by the attorney general of the state and shall contain:
[It is then provided what the application shall contain and a license fee is provided for of not less than $25.00 nor more than $100.00 to be fixed by the board of county commissioners.]
“The board of county commissioners of the several counties or the governing body of a city shall issue a license upon application duly made as otherwise provided for herein, to any person engaged in business in said county or city and qualified to receive said license, to sell only at retail cereal malt beverages in original and unopened containers, and not for consumption on the premises. Said license fee to be not less than twenty-five dollars ($25) nor more than fifty dollars ($50) per year. No license issued under this act shall be transferable.”
As the statute was originally written, the last paragraph of what is now K. S. A. 41-2702 read, as follows:
“The board of county commissioners of several counties or the governing body of a city shall have the right to issue a license upon application duly made as otherwise provided for herein Laws of 1937, Ch. 214, § 2.)
In 1949 the phrase “shall have the right to issue a license” was amended to read “shall issue a license” (Laws of 1949, Ch. 244, § 4) as it now appears in the statute. The appellee contends that by the 1949 amendment the legislature took from the board of county commissioners the discretionary power to grant or deny an application for a license (Johnson v. Reno County Comm’rs, 147 Kan. 211, 57 P. 2d 849; Lindquist v. City of Lindsborg, 165 Kan. 212, 193 P. 2d 180) where the discretionary power of the board of county commissioners under the original act was discussed. Appellee further contends that in 1949, the legislature enacted the Kansas liquor control act which authorized licenses for packaged liquor sales not for consumption on the premises as a matter of right (K. S. A. 41-301, et seq.) and that it would be ridiculous for a qualified person to be able to secure a license to operate a package liquor store as a matter of right while the county commissioners had the discretion to grant or refuse a qualified applicant a license to sell packaged 3.2 beer.
The appellee also calls our attention to the general rule of law that when a statute is amended, some parts being omitted, the omitted parts are not to be supplied by construction. (Hauserman v. Clay County, 89 Kan. 555, 132 Pac. 212; Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 21 P. 2d 337; State, ex rel., v. Richardson, 174 Kan. 382, 256 P. 2d 135.) We have no particular quarrel with appellee’s contentions.
We must presume that the legislature in amending K. S. A. 41-2702 intended to make some change and we must give effect to the amendment. The legislature did intend to take from the boards of county commissioners all discretion in granting or refusing a license for the sale of cereal malt beverages in the original and unopened containers, and not for consumption on the premises. This was a logical result for the legislature to reach. The board of county commissioners has no authority over licensing for the sale of packaged intoxicating liquors. The sale of intoxicating liquors is not permitted in a township except in townships having a population in excess of 11,000. (K. S. A. 41-303; Murphy v. Curtis, 184 Kan. 291, 336 P. 2d 411.) There were very few of such townships existing in 1949 and most of them have now been taken into cities. The board of county commissioners had no authority over licensing the sale of packaged intoxicating liquors and there was no reason it should have any discretion in granting a license for the sale of packaged cereal malt beverages in a township. The matter was a township problem.
The amendment in 1949, took from the board of county commissioners all discretion in granting or denying cereal malt beverage licenses in original and unopened containers; however, the amendment did not alter the right which previously existed and which continues to exist in the township board to approve or disapprove any application for a retail cereal malt beverage license in the township.
It will be noted that K. S. A. 41-2702, at the beginning of the section, covers all sales of cereal malt beverages at retail without regard to whether the retail sale is for consumption on the premises or for sale in the original package or unopened container.
K. S. A. 41-2701 defines sale at retail as follows: “(b) ‘Sale at retail’ and retail sale’ mean sales for use and consumption and not for resale in any form . . .”
It would therefore appear that any sale not for resale is a “retail sale” or a “sale at retail.” The section provides that no person shall sell any cereal malt beverage at retail without first having secured a license. In case the license is for retail sale in the county, the application must be made to the board of county commissioners, but it cannot grant the application until it has given written notice by registered mail to the clerk of the township board in the township where the applicant desires to locate. If the township board objects regardless of whether the application is for a license for sale for consumption on the premises or for sale in original and unopened containers, for consumption off the premises, the county commissioners must refuse the application. These provisions were not affected by the amendment. As K. S. A. 41-2702 now stands, the board of county commissioners may exercise discretion in granting or refusing to grant a license for the sale of cereal malt beverages for consumption on the premises even though the township board does not object. But where the application is for sale at retail in original and unopened containers, and not for consumption on the premises, and the township board files a written statement of objection to the granting of the license, the board of county commissioners has no alternative but to deny the same. However, if the township board does not file a written statement of objection, the board of county commissioners must grant the application and issue the license.
We must conclude that since the board of South Seward Township objected to appellee’s application for a license to sell cereal malt beverages in the township, the board of county commissioners had no authority to grant the application.
The conclusion reached eliminates the necessity of giving specific consideration to other questions raised.
The judgment is reversed.
|
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The opinion of the court was delivered by
Price, J.:
Plaintiff, a prisoner in the state penitentiary, brought this proceeding under the provisions of K. S. A. 60-1507, to correct his sentence.
The state has appealed from an order granting relief.
The background of the matter is this:
On October 27, 1953, in the district court of Neosho county, plaintiff, being represented by county appointed counsel, was, on his plea of guilty, convicted of the offense of forgery in the second degree. He was sentenced to confinement in the penitentiary for a term of not more than ten years. After serving a portion of such sentence he was, on a date not shown, placed on parole.
While on parole from the Neosho county sentence, plaintiff was charged in the district court of Allen county with the offense of forgery in the second degree — it being charged that such offiense occurred on November 10, 1955. On February 8, 1956, in the district court of Allen county, plaintiff, being represented by court appointed counsel, was convicted of the offense as charged. Having been previously convicted three times of a felony he was, on February 17, 1956, sentenced to confinement in the penitentiary for a term of twenty years, such sentence being imposed under the habitual criminal statute, G. S. 1949, 21-107a, and the provisions of G. S. 1949, 21-109, now K. S. A. 21-107a and 21-109 respectively. The court did not specify when such sentence was to commence— that is, it was not specified whether it was to be served concurrently with the unserved Neosho county sentence or whether it was to commence at the expiration of that sentence.
The provisions of K. S. A. 60-1507, became effective on January 1, 1964. On August 6, 1964, plaintiff, being still confined in the penitentiary, filed an application in the district court of Allen county alleging that the prison authorities were holding him on the basis that his Allen county sentence did not commence to run until the expiration of his Neosho county sentence, and he sought an order to the effect that such sentences were to run concurrently.
At this point two statutes should be mentioned.
On November 10, 1955, the date of the Allen county offense, and also on February 17, 1956, the date of the Allen county sentence, G. S. 1949, 62-1528 was in full force and effect. It provided that any prisoner at large upon parole or conditional release who shall commit a fresh crime, and upon conviction thereof shall be sentenced anew to the penitentiary, shall be subject to serve the second sentence after the first sentence is served or annulled, and said second sentence is to commence from the termination of his liability upon the first or former sentence.
That statute was repealed by the legislature in 1957 and was replaced by what now appears as K. S. A. 62-2251, effective July 1, 1957, which provides that any prisoner who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve such sentence concurrently with the term under which he was released — unless otherwise ordered by the court in imposing sentence for the new offense.
An August 21, 1964, in passing on plaintiff’s application for correction of his sentence, the district court of Allen county, while recognizing the language of the mentioned statutes and their application or nonapplication to the question presented, nevertheless corrected the Allen county sentence to the extent that as of July 1, 1957, it should begin to run concurrently with whatever unexpired time there may have remained to be served on the Neosho county sentence as of that date. Its order reads:
“The question presented by the defendant’s petition for correction of his sentence is a novel one which seems to have some merit.
“At the time the defendant was sentenced in 1956, the Kansas law (G. S. 62-1528) provided that a sentence imposed while the defendant was paroled on a previous conviction should begin to run at the end of the former sentence.
“In 1957 the legislature amended the law to make the new sentence under those circumstances run concurrently with the former sentence unless the sentencing judging otherwise prescribed (GS. 1961 Suppl. 62-2251). The new law became effective July 1,1957.
“The 1956 sentence did not specify whether it should run concurrently or consecutively as the law at that time gave the court no discretion in the matter, the sentences being made consecutive as a matter of law.
“However, it may in this case be assumed that had the 1957 law been in effect at the time Mr. Kelsey was sentenced in 1956, the corut would have permitted the sentence to run concurrently with the former sentence.
“While the 1957 law is not retroactive in effect, it seems that the ends of justice are served by giving effect to the 1957 law as of the time it became operative. In other words, Mr. Kelsey’s 1956 sentence in this court should begin to run on July 1, 1957, concurrently with whatever unexpired time may have been left to go on the former sentence as of that date.
“It is so ordered.”
We believe the court erred in so ruling.
The penalty for an offense is that provided by statute at the time the offense was committed. Under the statute in effect on the date of the offense in Allen county, and also on the date of the sentence therefor, such sentence did not commence to run until the expiration of the prior Neosho county sentence. (McQueen v. Crouse, 192 Kan. 821, 391 P. 2d 68, and cases cited in the opinion.) The 1957 enactment is not to be applied retroactively. It follows, therefore, that no portion of the Allen county sentence is to run concurrently with any portion of the prior Neosho county sentence.
The judgment is reversed.
|
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The opinion of the court was delivered by
Price, J.:
Defendant has appealed from a conviction of the offense of escape from the state penitentiary as defined by G. S. 1949, 21-734.
The factual background of the matter is this:
On August 13, 1959, in the district court of Butler county, defendant, being represented by counsel, was, upon his plea of guilty, convicted of the offense of concealing or selling mortgaged property in violation of G. S. 1949, 58-315b, and was sentenced to confinement in the state penitentiary as provided by law. He then was placed on parole by the court.
While on parole from the Butler county sentence, defendant, being represented by counsel, was, in April 1961, in the district court of Leavenworth county, convicted of the offense of burglary in the second degree in violation of G. S. 1961 Supp., 21-520, and was sentenced to confinement in the state penitentiary as provided by law. A commitment was issued and he was confined thereunder.
On June 21, 1961, the district court of Butler county revoked the parole of defendant and ordered that he be confined in the state penitentiary under the sentence of August 13, 1959.
On August 23,1963, while confined in the state penitentiary under the Butler county and Leavenworth county sentences — defendant escaped.
On September 11,1963, police officers observed defendant leaving a tavern in Leavenworth. They recognized him and knew that he was an escapee from the state penitentiary. Accordingly, they apprehended him and notified the penitentiary officials. Within the hour he was returned to the penitentiary. As before stated, he was charged with and convicted of the offense of escape from the penitentiary as defined by G. S. 1949, 21-734. Throughout his trial he was represented by court appointed counsel and such counsel also has represented him in this appeal.
It first is contended the trial court erred in denying defendant’s motion to dismiss the case at the close of the state’s opening statement for the reason that he was not afforded an opportunity for a preliminary examination within ten days of the date of the issuance of the warrant and his subsequent arrest, and attention is called to G. S. 1949, 62-611, which provides that an examining magistrate may adjourn a hearing from time to time as occasion shall require, not exceeding ten days at one time, without the consent of the person charged. It is contended that he was not afforded a preliminary examination until more than ten days had elapsed after he was apprehended on September 11, 1963, and further, was not afforded a hearing for more than ten days following the issuance of the warrant for his arrest on the escape charge.
The facts concerning this contention are these:
On August 23, 1963, defendant escaped. He was apprehended on September 11, and on that date was returned into the custody of the warden of the penitentiary. On September 26, a complaint was filed in the city court of Leavenworth charging him with the offense of escape, and on that date a warrant was issued for his arrest and ordering that he be brought before such court to answer the charge. The warrant was served on defendant on October 15, and on that date he was brought before the judge of the city court sitting as an examining magistrate, at which time he waived his preliminary examination and was bound over to the district court of Leavenworth county for trial.
Defendant’s contention with respect to this matter is without merit and cannot be sustained.
During the period between his apprehension on September 11 and October 15, when he was arrested under the warrant issued on September 26, defendant was serving the Butler county and Leavenworth county sentences. At no time was his preliminary examination continued or postponed either with or without his consent. Upon his first appearance before the city court — which was on the very day of his arrest under the warrant — he waived his preliminary examination and was bound over to the district court for trial. Under the facts the provisions of G. S. 1949, 62-611, are not applicable and defendant’s rights were in no way violated. And neither is the case of Whalen v. Cristell, 161 Kan. 747, 173 P. 2d 252, relied on by him — in point. There a defendant was arrested and confined to jail on a felony charge on February 8, 1946. His preliminary examination was set for February 25, 1946. He was held in jail, however, until August 26, 1946, without a preliminary examination or any further judicial action, and this court properly allowed a petition for a writ of habeas corpus.
During the trial the state in its case in chief introduced in evidence certified copies of the Butler and Leavenworth county convictions. Defendant concedes the right of the state on the trial of this charge of escape to introduce records showing one of such convictions — but contends the introduction of records showing both convictions was prejudicial error.
The records of defendant’s two convictions were not introduced for the purpose of showing “prior offenses” within the rule and exception thereto discussed in State v. Myrick, 181 Kan. 1056, 1058, 1059, 317 P. 2d 485. And neither were they introduced for any purpose under the habitual criminal statute (G. S. 1949, 21-107a). They were properly introduced to show the elements of the offense for which defendant was being tried — that he had escaped from lawful confinement. On the date of his escape defendant was lawfully confined in the penitentiary under both commitments and records of those cases were properly admitted (19 Am. Jur., Escape, Prison Breaking, and Rescue, §§ 10, 27, pp. 365, 370.)
And finally it is contended defendant did not have a fair trial for the reason that during the cross examination of witnesses for the state, the assistant county attorney, who tried the case — by nodding or shaking his head — indicated to the witnesses how they were to answer.
Aside from the fact that no objection was made at the time and, therefore, the question is not subject to review (Watkins Co. v. Hanson, 185 Kan. 758, 761, 347 P. 2d 447), the record shows that in commenting on the matter at the argument on the motion for a new trial the court stated:
“Certainly I want the record to reflect that I, as presiding judge during the trial, observed no conduct on the part of the assistant county attorney that could be considered improper in any way, . . .”
We accept the trial court’s version of the matter, and on the general subject see Collins v. City Cab Co., 192 Kan. 394, 400, (Syl. 3), 388 P. 2d 597.
No error being shown, the judgment is affirmed.
|
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The opinion of the court was delivered by
Hatcher, C.:
Evanne Gardner brought this action to recover damages for the loss of service and medical expense resulting from the injury to her 14 year old son in an automobile collision. Her claim for loss of services was later withdrawn. The case was consolidated with others and the trial resulted in a verdict and judgment for the defendant. The plaintiff has perfected this appeal challenging the order of consolidation and other rulings.
For all practical purposes the issue raised by this appeal is the same as the one involved and determined in Gardner v. Pereboom, 194 Kan. 231, 398 P. 2d 293, this day decided. Therefore based on what is said and held in that opinion the judgment in the instant case must be reversed with instructions to grant a separate trial.
It is so ordered.
APPROVED BY THE COURT.
Price, Fatzer and Schroeder JJ., dissent.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in an action challenging the jurisdiction and authority of an urban renewal agency to designate standards and controls for rehabilitation of properties in an urban renewal project.
The facts which were stipulated may be briefly summarized.
The City of Kansas City, Kansas has elected to have its urban renewal powers exercised by an urban renewal agency. A board has been duly appointed for such purpose. The City Commissioners approved a resolution finding that an area known as the Silver City Project was a deteriorated, blighted and slum area, and appropriate for an urban renewal project. The Urban Renewal Agency approved an Urban Renewal Plan for the Silver City Project and submitted it to the City Commissioners for their approval.
The Urban Renewal Plan provided that certain land was to be acquired for clearance and redevelopment, other land was to be acquired for park purposes and other property was to be acquired for the purpose of rehabilitation. The plan further provided that some land not designated for acquisition might, under special conditions, be acquired by the Urban Renewal Agency if the owners refused to cause such property to be rehabilitated to comply with the standards and controls for rehabilitation, fixed by the Urban Renewal Plan, within three years. The City of Kansas City had by ordinance previously established “minimum housing standards,” for the entire city pursuant to K. S. A.' 17-4759. The minimum housing standards fixed by the city were less demanding than the standards fixed in the Urban Renewal Plan for rehabilitation.
The City Commissioners passed a resolution which provided for notice of a public hearing on the Silver City Project and after such hearing approved the Urban Renewal Plan for the Silver City Project area. A petition was filed in the district court asking for a declaratory judgment as to the powers of the Urban Renewal Agency and alleging in specific terms the facts we have stated generally. A motion for summary judgment was lodged against the petition and sustained by the district court. Plaintiff has appealed raising but one contention which it states as follows:
“Appellant contends that G. S., 1961 Supp. (now K. S.A.), 17-4756 (b), requires that any plans for compulsory rehabilitation (17-4748 [f]) and for fixing minimum standards and enforcing them (17-4759) can only be exercised by the city since these powers are by law excepted from what can be delegated to the Urban Renewal Agency.”
It should first be noted that K. S. A. 17-4748, which gives to the city broad powers in connection with urban renewal projects, contains the following introductory provision:
“Every municipality shall have all the powers necessary or convenient to carry out and effectuate the purposes and provisions of this act, including the following powers in addition to others herein granted: . . .”
Subsection (/) of this section states as follows:
“. . . Such plans may include, without limitation: (1) A general plan for the locality as a whole, (2) urban renewal plans, (3) plans for carrying out a program of voluntary or compulsory repair and rehabilitation of buildings and improvements, (4) plans for the enforcement of state and local laws, codes, and regulations relating to the use of land and the use and occupancy of buildings and improvements and to the compulsory repair, rehabilitation, demolition, or removal of buildings and improvements, . . .”
K. S. A. 17-4756, which gives the city the power to delegate the exercise of urban renewal project powers to an urban renewal agency or board, states in part as follows:
“(a) A municipality may itself exercise its urban renewal project powers (as herein defined) or may, if the local governing body by resolution determines such action to be in the public interest, elect to have such powers exercised by the urban renewal agency (created by section 16 [17-4757]) except tlie powers listed in section 7 [17-4748] (h). . . .”
It will be noted that this section permits all of the powers dele gated to the cities in connection with urban renewal projects to be exercised by an urban renewal agency witih the exception of the powers listed in K. S. A. 17-4748 (h). Therefore, the powers listed in K. S. A. 17-4748 (/) as quoted above are powers which the city may have exercised by an urban renewal agency.
It must be conceded that the powers granted by K. S. A. 17-4759 cannot be exercised by an urban renewal agency. The section provides in part as follows:
“(a) Whenever any municipality finds that there exist in such municipality dwellings which are unfit for human habitation due to dilapidation, defects increasing the hazards of fire, accidents or other calamities, lack of ventilation, light or sanitary facilities, or due to other conditions, including those set forth in subsection (c) hereof, rendering such dwellings unsafe or insanitary, or dangerous or detrimental to the health, safety or morals, or otherwise inimical to the welfare of the residents of such municipality, power is hereby conferred upon such municipality to require or cause the repair, closing or demolition or removal of such dwellings in the manner herein provided. . . .”
These provisions apply to a city as a whole and therefore cannot be exercised by an urban renewal agency operating only in a blighted area. The above provisions were not enacted for the purpose of being applied to an urban renewal project but were to enable a city to remove dwellings unfit for habitation located any place in the city. The fact that an urban renewal agency is given no powers under K. S. A. 17-4759 in no way detracts from the powers that were granted under K. S. A. 17-4748 (f) and which were extended to urban renewal agencies by the provisions of K. S. A. 17-4756
It might further be suggested that the standards and controls for rehabilitation of properties were fully set out in the Urban Renewal Plan. They were necessarily approved by the governing body of the municipality (K. S. A. 17-4747 [d]) after a public hearing (17-4747 [c]) before they became applicable to the property covered by the plan and controlling (17-4747 [†]). Such approval by the governing body of the municipality made the standards and controls for rehabilitation the acts of the city.
We must conclude that an urban renewal agency , may include standards and controls for rehabilitation of properties in an urban renewal plan and when approved by the governing body of the municipality as provided by K. S. A. 17-4747 they become applicable to the property covered by the plan and are controlling.
The judgment is affirmed
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
The appellant, the special administrator of the estate of W. O. Yaple, deceased, commenced this action in the district court of Reno County, against the appellees, Doris Morris and Velma Thode, to set aside two warranty deeds executed by W. O. Yaple in favor of the appellees, upon the theory that the deeds were testamentary dispositions and that they were not delivered to the grantees during the lifetime of the grantor. The case was tried by the court which made findings of fact and conclusions of law that the deeds were not testamentary dispositions and that there was a valid delivery of them which vested a present interest in the grantees during the lifetime of the decedent with only the enjoyment of the property being postponed until after the decedent’s death. The special administrator has appealed.
The decedent, a resident of Reno County, had, during the course of his lifetime, acquired ownership of his residence property in the city of Nickerson and an 80-acre farm in Rice County which he owned on February 17, 1960. The decedent was a widower who lived alone, he was elderly and nearly blind but was intelligent and mentally alert at all times until his death on March 2, 1961. While he had a number of relatives, mostly nieces and nephews, his devotion and affection was largely given to his nieces, Doris Morris and Velma Thode, the appellees.
On February 17, 1960, the decedent telephoned Lula M. Dunn and requested her to drop by his home. Mrs. Dunn was in the insurance and real estate business in Nickerson and had been a friend of the decedent for over 25 years. Sometime prior to 1955, W. O. Yaple and his wife had Mrs. Dunn prepare a last will and testament which she notarized, but the purported will was void for want of proper execution. About a year prior to February, 1960, the decedent discussed with Mrs. Dunn the making of an immediate gift of all his property to the appellees, but had done nothing more about it.
On the day in question, February 17, 1960, the decedent informed Mrs. Dunn he wanted to give all of his property to Doris Morris and Velma Thode and reserve to himself the right to occupy and use the property; that all of his physical needs were taken care of and that he had no use for the property other than to stay in his home and receive the rents from the farm land. He stated that the “girls” had been good to him; that he had finished with the property and that he wanted them to have it; that he knew they would take care of things, and it would make him happy to know they had the property. He further stated that his other relatives were “snoopy,” saying, “I can’t see but I can hear.” The decedent talked coherently; understood and knew what he was doing; knew the nature and extent of his property and how he wanted to transfer it,.and said, “I have decided what I want to do.”
The decedent made no mention of a will, but requested Mrs. Dunn to prepare “deeds” conveying all of his real estate to Doris Morris and Velma Thode, and dictated an affidavit to her, which he wanted prepared in connection with the deeds. Mrs. Dunn returned to her office, prepared the deeds and affidavit, and then returned to the decedent’s home where the deeds and affidavit were executed and acknowledged by him. The decedent then put tire documents in a blank envelope and sealed it and told Mrs. Dunn that he would take care of the deeds. He instructed Mrs. Dunn not to mention to anyone what he had talked to her about, but he did not state whether he was going to tell the girls about the gifts immediately. Following the execution of the deeds and the making of the affidavit, the decedent seemed much relieved. He and Mrs. Dunn chatted about current affairs, in which he was very much interested, and he talked to her about some books he had formerly read. He became very philosophical, mentioned that he was ready to go, and quoted the closing lines of Kipling’s Recessional.
On February 26, 1960, the decedent took the sealed envelope to the Nickerson State Bank for the purpose of placing it in escrow. He talked to Aaron F. Toews, the bank’s cashier, who had known him as a customer and a depositor since 1941. The decedent handed Toews the envelope and Toews testified he said that, “he had given his land and also his house to two of his nieces, Doris Morris and Velma Thode, and he wished to place that envelope in escrow, to be delivered to these two girls after his death,” and that the deeds to the property were inside the envelope. At the direction of the decedent, Toews typed on the outside of the envelope the words “Escrow, W. O. Yaple, to be delivered to Velma Thode and Doris Morris at the death of W. O. Yaple.” Toews also made his own handwritten notation on the envelope, showing the escrow fee of $2.50 paid by the decedent, the date, and that it was placed in escrow by W. O. Yaple. After the deeds and affidavit were placed in escrow, the decedent never attempted to reclaim them or get them back, never attempted to exercise any control or authority over them nor attempted to modify, alter or destroy them! He continued to occupy the home, pay the taxes and receive the rents and income from the farm land until his death on March 2, 1961.
A day or so following the decedent’s death, the bank called Doris Morris and Velma Thode and asked them to come in for the opening of the escrow envelope. A vice president of the bank opened the envelope in their presence and delivered the deeds and the affidavit to the grantees. The deeds followed the Kansas statutory warranty form (G. S. 1949, 67-203), and conveyed the decedent’s residence and the farm land to the two grantees in fee simple as tenants in common. The deeds were duly recorded. The affidavit in escrow with the deeds was admitted in evidence, and reads:
“I, the undersigned W. O. Yaple, hereby direct that the Warranty Deeds made and signed this 17th day of February, 1960, transferring my Nickerson property and my Rice County property to Mrs. Velma Thode and Mrs. Doris Morris shall replace any and all former wills and/or agreements. The above deeds shall be held at the Nickerson State Bank until my death at which time they shall be delivered to the above named persons, after recording.”
On March 8, 1961, Velma Thode was appointed and qualified as administratrix of the decedent’s estate. On June 23, 1961, she filed an inventory which did not list the real estate the decedent had given to the appellees. On his own petition, the appellant, Claude N. Yaple, an heir-at-law of the decedent, was appointed special administrator for the purpose of contesting the validity of the deeds and seeking to bring the property into the decedent’s estate as an asset thereof.
The appellant contends that the instruments executed by the decedent were testamentary in character and that he did not intend to convey any real estate or interest therein whatever before his death. The appellant concedes it is necessary to determine the intent of W. O. Yaple when he executed the documents in question, but argues the evidence shows that the acts and words of the decedent clearly disclose an intention on his part to make testamentary disposition of his property. The appellant relies chiefly upon a letter the decedent wrote to him in 1955, which states:
“. . . We have written a Will, properly notarized, directing that what real estate property we have, be sold for cash and with bonds, stock or cash in bank create a single fund to be divided equally between the eleven nephews and nieces named separately in our Will. We hope this can be done without courts or lawyers, with the advise and consent of the Judge of Probate Court.”
The quoted portion of the letter tends to indicate that the decedent thought he had executed a valid will in 1955 by having his signature notarized. The appellant’s copy of that instrument was offered in evidence, and the appellees’ objection that it was not the best evidence was sustained subject to appellant’s right to show why the original was not offered. The original was never produced, and no will of the decedent was offered for probate although more than one year had passed since his death.
The record demonstrates that in 1960 the decedent wanted the appellees to receive all of his real estate, and the sole question is whether he succeeded in effectuating his desire so that the deeds he executed conveyed good title to the appellees during his lifetime, or whether he faffed therein and the real estate remained an asset of his estate with the appellant entitled to share in the ownership.
It is unnecessary to write a treatise on the law of the delivery of deeds. The question has been considered many times by this court, and in the recent case of Reed v. Keatley, 187 Kan. 273, 356 P. 2d 1004, it was said:
“It is well settled in this jurisdiction that before a deed can operate as a valid transfer of title there must be a delivery of the instrument which becomes effective during the life of the grantor. (Wuester v. Folin, 60 Kan. 334, 56 P. 490; In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112.) What constitutes sufficient delivery is largely a matter of intention, which is a question of fact unless the evidence is uncontroverted. The whole matter of delivery is one of intent on the part of the grantor, and if the grantor, by words or acts, manifests an intention to divest himself of title and vest it in another, it is sufficient to constitute a valid delivery. (Citations.) It is not necessary that the divestment of title or the delivery of the deed be made directly to he grantee. The grantor may effectively divest himself of title if he deposits the deed with a third person to receive and hold the same for delivery to the grantee after the death of the grantor, with a declared or manifest intention to place it beyond the custody and control of the grantor and thereby to give it effect as a present conveyance. (Citations.) In Wuester v. Folin, supra, the usual test was said to be:
“ ‘Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title? When the deed has passed beyond the control of the grantor, and he has placed it in the hands of a third person with a declared or manifest purpose to make a present transfer of the title, a formal acceptance by the grantee is not required.’ (1. c. 337.)” (1. c. 276, 277.)
Applying the foregoing rule, we are of the opinion, there can be no question but that the evidence leads to the inescapable conclusion that a valid delivery of the deeds was made by the decedent during his lifetime. While there was testimony to the effect that the decedent told two or three people he had willed his property to the appellees, Mrs. Dunn testified the decedent specifically asked her to prepare deeds to the property and under questions posed by the court, she further testified that the affidavit was in effect dictated to her by W. O. Yaple and that she prepared the deeds and the affidavit in accordance with his instructions. This evidence supports the district court’s finding that the decedent wanted his property transferred to the appellees by deeds and that intention was manifested by his instructions to the cashier of the bank that the deeds were to be placed in escrow for delivery to the grantees upon his death. All of the facts and circumstances clearly show an intention on the part of the decedent to surrender possession and control of the deeds to the bank for delivery to the appellees after his death, and he never attempted to exercise any control or authority over them during his lifetime, nor did he request the return of the deeds or attempt to reclaim them or destroy, alter, or modify them in any way. The fact that the grantees did not know of the existence of the deeds before the grantor’s death did not defeat the valid constructive delivery to them, nor impair their title to the real estate conveyed thereby. (In re Estate of Loper, 189 Kan. 205, 368 P. 2d 39.) Likewise, the fact that there was no actual consideration paid for the property does not impair a delivery of the deeds but raises the inference that a gift was intended. (Gilkison v. Roberts, 154 Kan. 52, 60, 114 P. 2d 797.) Moreover, the fact that the decedent continued to occupy the property, pay the taxes, and collect income from the farm land during his lifetime is not inconsistent with the passing of the title at the time he delivered the deeds and affidavit to the bank. All of the known facts are consistent with the theory of an effective delivery of the deeds which manifested the decedent’s intention to vest a present interest in the grantees during his lifetime with only the enjoyment of the property being postponed. When the deeds were delivered to the grantees by the bank following the decedent’s death and they were duly recorded, the real estate conveyed thereby was no part of the decedent’s estate at the time of his death and the appellant was not entitled to maintain his action to set them aside. In this connection see Young v. McWilliams, 75 Kan. 243, 89 Pac. 12; In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112; Hicklin v. DeVore, 179 Kan. 345, 295 P. 2d 668, and In re Estate of Loper, supra.
Considering all of the evidence concerning the execution of the deeds and their delivery to the bank, the instructions given by the decedent when they were placed in escrow, and the fact that he did not thereafter attempt to exercise any control or authority over them, requires us to conclude the district court did not err in holding that the deeds in question constituted an effective present conveyance of the property and vested fee simple title in the grantees.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is an action to recover for personal injuries sustained by plaintiff when she slipped and fell on an alleged dangerous and defective sidewalk in front of defendants’ place of business in the city of Lawrence.
Plaintiff has appealed from an order sustaining defendants’ motion for summary judgment.
Omitting formal parts and allegations as to plaintiffs injuries, the petition alleged that sometime prior to July 13, 1961, defendants constructed a concrete sidewalk in front of their place of business; that such sidewalk when constructed was dangerous, defective and unsafe for Havel upon it in that the sidewalk had holes and depressions in it, the surface was uneven and that it was constructed on the wrong grade. That the sidewalk remained in the same condition up until and including July 13, 1961, on which date plaintiff entered defendants’ place of business for the purpose of purchasing mer chandise. That after making her purchase she proceeded to use the sidewalk, and in doing so stepped into a hole and depression in it which caused her to fall, and as a result of which she sustained injuries. That at the time and place in question it was and had been raining and that the hole and depression in the sidewalk contained water and dirt. That the negligence of defendants in maintaining the sidewalk in such dangerous and defective condition was the direct and proximate cause of plaintiff’s injuries.
The answer contained formal admissions and denials, alleged that it was not defendants’ duty to construct, maintain or care for the sidewalk, but rather that it was the duty and obligation of the city of Lawrence, and further alleged that if plaintiff suffered injuries they were through no negligence of defendants and were caused solely by plaintiff’s contributory negligence.
The reply denied material allegations of the answer and further denied that it was the duty and obligation of the city to maintain and keep in repair the sidewalk for the reason that G. S. 1949, 12-1808 imposes such duty upon abutting owners.
After issues were joined, plaintiff’s deposition was taken. The following portion of it is included in the record:
“A. I came out the door, started toward my truck, the sidewalk was wet, as it had been raining, you could see that, and then I hit this puddle, it just looked like water on the sidewalk to me, which was mud underneath, and my feet went out from under me and I fell flat on my back.”
“Q. Now going back to this sidewalk in front of the McConnell Lumber Company on the day of this accident, there wasn’t anything in the nature of a hole in the sidewalk, was there?
“A. Not a hole.
“Q. In other words, was a piece of cement out of the sidewalk?
“A. No, sir.
“Q. The only complaint you have made of what caused you to slip would be the mud and dirt on the sidewalk?
“A. Yes, sir.”
Defendants then filed a motion for summary judgment “. . . for the reason that all of the files, pleadings, depositions and evidence gathered to date indicate that plaintiff does not have a cause of action against defendants.”
The motion was sustained, and plaintiff has appealed.
The question of liability of an abutting owner for injuries sustained by a pedestrian because of defects in a sidewalk has been before the court many times, and an extended discussion of the cases on the subject is unnecessary.
The general rule in this jurisdiction and elsewhere is that persons injured through defects in a sidewalk have no cause of action against the abutting owner merely by reason of his ownership. (Jansen v. City of Atchison, 16 Kan. 358; Dixon v. Railway Co., 104 Kan. 404, 406, 179 Pac. 548, reh. den., 104 Kan. 787, 180 Pac. 733; Spear v. City of Sterling, 126 Kan. 314, 267 Pac. 979; Pierce v. Jilka, 163 Kan. 232, 238, 181 P. 2d 330; Clair v. City of Kansas City, 180 Kan. 409, 415, 304 P. 2d 468. See also the Annotation “Liability of abutting owner or occupant for condition of sidewalk,” 88 A. L. R. 2d 331, § 2 [a], p. 337, and § 3, p. 340.)
The statute, G. S. 1949, 12-1808 (now K. S. A. 12-1808), pleaded and relied on by plaintiff, is of no help to her. The duty imposed by it is one flowing from the abutting owner to the city. In the Dixon case, above, where a city ordinance similar to the mentioned statute was considered, it was said:
“Whether or not an absolute obligation of the owner to repair the walk arises before he receives an official notice, his duty in the matter is one owing to the city, and not to individuals. The prevailing view is that under such a law a person injured in consequence of a defective walk cannot maintain an action against die owner of the abutting property.” (p. 406.)
To like effect, see the Fierce case, above, pp. 236, 237.
In its memorandum decision the trial court recognized the foregoing rules and authorities, and in sustaining the motion for summary judgment stated:
“A construction of the allegations of plaintiff’s petition in light of her reply compels the conclusion that plaintiff bases her claim upon defendants’ failure to repair the defects which plaintiff alleges existed at the time the walk in question was constructed and continued to exist at the time plaintiff fell thereon. This being the situation it is clear from the cases cited that plaintiff cannot recover in this action.”
We adhere to the rule of the above authorities, and, although we concede the record presents a “close” question, we believe that a literal reading of plaintiff’s allegations brings the matter within what appears to be a well recognized exception to the general rule relating to liability of an abutting owner.
The petition in this case alleges that it was defendants who constructed the concrete sidewalk in front of their place of business and that when so constructed it was dangerous, defective and un safe for travel in that it contained holes and depressions, and that the surface thereof was uneven, and that it was constructed on the wrong grade. In other words, the claim is not that the sidewalk became defective through use, age or other means — but rather is that defendants themselves constructed and maintained it in the defective manner alleged.
In the early Jansen case, above, the action was against the city and the abutting landowner, Otis. At page 385 of the opinion is found this comment:
“Was the demurrer of the defendant Otis properly sustained? We think it was. The only allegation in the petition pointing toward him was, that he was the owner of the lot and building in front of which the injury occurred. There toas no allegation or intimation that the defect in the sidewalk resulted from any negligence or omission on his part. Negligence was charged upon the city, not upon him. So that, unless a lot-owner is responsible for all injuries resulting from a defective sidewalk in front of his lot, the petition stated no cause of action against him.” (Emphasis supplied.)
In the Pierce case, above, it was said:
“It is well settled in this state, and generally elsewhere, that an abutting property owner is not liable for personal injuries sustained by pedestrians injured by stumbling or falling over defects in the sidewalk unless the defect was created by such owner and is such a defect as amounts to a nuisance.” (p. 239.) (Emphasis supplied.)
In the recent Clair case, above, it was held:
“Under the law of this state an abutting property owner is not liable for defects in a sidewalk, even though he is using the area under such sidewalk by permission of the city, unless the defects complained of are created by his own negligence or bear some causal relationship to his use of the area under the sidewalk.” (Syl. 1.) (Emphasis supplied.)
The exception to the rule of nonliability of an abutting owner also is discussed in § 8, page 361, of the Annotation in 88 A. L. R. 2d, above mentioned.
Despite plaintiffs misplaced reliance on 12-1808, above mentioned, and despite defendants’ reliance on the portion of plaintiffs deposition above quoted, we are of the opinion that under the provisions of K. S. A. 60-256 (c), it was error to sustain defendants’ motion for summary judgment. What the evidence may establish upon trial of the case is another matter.
The judgment is therefore reversed.
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The opinion of the court was delivered by
Wertz, J.:
Jack Martin King, appellant, hereinafter referred to as defendant, was duly charged by an information in the district court of Saline county with the crime of robbery in the first degree in violation of G. S. 1949, 21-527 and 21-105 (now K. S. A. 21-527 and 21-105). Upon a trial the jury found the defendant guilty as charged. Defendant’s motion for a new trial was overruled and he was sentenced to confinement in the state penitentiary.
The defendant appeals to this court from the order overruling his motion for a new trial and the imposition of sentence contending (1) the trial court erred in admitting into evidence the written statement made by him which he maintains was made without his being advised of his rights or afforded legal counsel; (2) he was not advised of the nature of the charges against him and the penalty therefor; and (3) he was not afforded legal counsel at his preliminary hearing. Only so much of the facts as are pertinent to the issues involved will be narrated.
Defendant was apprehended by police officers on the day the offense was alleged to have been committed, December 10, 1963, and was taken to the police station at Salina where he was inter rogated by Detective Jack Richardson. On the morning of December 11 the defendant was taken before the city court of Salina where he waived the appointment of counsel to represent him at the preliminary, also waived his preliminary hearing, and was bound over to the district court of Saline county. On January 8, 1964, defendant was taken before the district court where Plarold Henderson, a member of the Saline County Bar, was appointed to represent him. On February 18 the defendant, appearing with his court-appointed counsel, waived formal arraignment, entered a plea of not guilty, and the court announced the matter was ready for trial. On that day the jury was selected and the trial commenced.
Considering defendant’s first contention, the record discloses that during the course of the prosecution the county attorney offered into evidence the written statement made by the defendant resulting from the interrogation by Detective Richardson on December 11. The court, in the absence of the jury, made a careful examination of the circumstances by which the statement was obtained: whether or not it was a voluntary statement of the defendant and whether or not he had been properly advised of his constitutional rights.
The testimony of Officer Richardson disclosed that as the interview started between him and the defendant on the morning of the 11th, the conversation was over matters of mutual interest, as to a job, and where the defendant lived, and such matters. As they entered into the content of a statement, then at that time the officer advised defendant of his right to secure counsel of his choice and also advised him that any statement being made would have to be voluntary; that the officer was making no threats, and no promises, with regard to any statement; and that any statement the defendant made might be used against him. The officer further stated he advised the defendant more than once of his rights prior to making or signing the statement. The defendant consented to make and sign the statement. The officer then stated he discussed the matter of the robbery of the previous evening with defendant and as they discussed the matter the officer would type the questions and answers. The statement consisted of two pages. The introductory remarks of the statement read:
“December 11, 1963. Statement of Jack Martin King, ... I make the following statement to Detective Jack Richardson of the Salin[a] Police Department at 3:00 A. M. December 11, detective division of the Salina Police Department. I have been advised of my rights, that I may have an attorney of my choice present, that I make this statement of my own free will without threats, or promises being made to me knowing that anything I say in this statement may be used against me in a court of law. . . .”
The statement was signed by defendant and witnessed by Officers Richardson and Slayton.
The officer further testified the defendant read the statement completely, made one correction in the statement, initialed the correction, and studied the statement before signing it.
On being handed the statement, the defendant, testifying in his own behalf, stated it was his statement and his signature attached thereto; that he made the statement without being threatened, coerced or forced; that he was told by the officer that the officer had no right to tell him what the charges against him would be; that the officer told him he might have an attorney of his choice present but didn’t say when; and that he signed the statement so he could “get the thing over with.”
The procedure followed by the trial court in hearing evidence in the absence of the jury and deciding as a preliminary matter whether the written statement of the defendant was freely and voluntarily made without force or coercion was in conformity with the established rules of this court. (State v. Latham & York, 190 Kan. 411, 435, 375 P. 2d 788, 373 U. S. 919, 10 L. Ed. 2d 418, 83 S. Ct. 1310.) With exceptional care and patience the district court considered all evidence offered both by the state and the defendant and concluded the statement was freely and voluntarily given and that defendant’s constitutional rights had not been violated. The finding was amply supported by the evidence.
It is not contended that any threats were made nor that any coercion was used. On the contrary, defendant freely discussed and voluntarily gave the detailed statement of the happenings and events of the robbery on the previous evening. No other conclusion could be reached by the trial court, or by this court upon appellate review, but that defendant’s statement was freely and voluntarily given, and, therefore, admissible in evidence for consideration by the jury. It must be assumed the trial court properly instructed the jury on this issue, and no contention is made by the defendant to the contrary.
It has long been the rule in this state that admissions against interest in criminal prosecutions are properly admitted as evidence if fully made without inducement or duress or brought about by some other improper means, and such admissions do not contravene Section 10 of the Bill of Rights against self-incrimination. (State v. Turner, 193 Kan. 189, 198, 392 P. 2d 863; State v. Latham & York, supra; State v. Robinson, 182 Kan. 505, 322 P. 2d 767; State v. Fields, 182 Kan. 180, 185, 318 P. 2d 1018.)
In the instant case the defendant, by his statements, did not acknowledge the guilt of the crime for which he was charged but only facts in connection with other facts which tended to prove his guilt. The admissions were not in themselves sufficient to authorize conviction and thus were not a confession.
Defendant also contends that due process was denied him because an attorney was not present when the oral statement was made and the written statement signed. The absence of counsel under such circumstances as in the instant case does not render a confession inadmissible. (State v. Latham & York, supra, p. 435; State v. Seward, 163 Kan. 136, 144, 181 P. 2d 478.)
The cases relied upon by defendant are based upon an entirely different set of facts and are not controlling under the facts in the instant case. We are of the opinion the trial court did not err in admitting defendant’s written statement into evidence.
Defendant’s next contention that he was not advised of the nature of the charges against him and the penalty therefor is not sustained by the record. K. S. A. 62-1304 provides in pertinent part that it is the duty of the attorney appointed by the court to inform defendant fully of the offense charged against him and the penalty therefor. Defendant had competent, appointed counsel who appeared with him at his arraignment on the information and entered a plea of not guilty. It must be assumed, in the absence of evidence to the contrary, that his counsel informed him of the offense with which he was charged and the penalty therefor. Defendant proceeded to trial and participated therein without objection. The defendant had previously been advised in open court that he was charged with armed robbery under the provisions of G. S. 1949, 21-527. We find no merit to this contention.
Defendant’s last contention that he was not afforded legal counsel at the preliminary hearing is also without merit. The defendant waived the appointment of counsel to represent him at the preliminary hearing and also waived his right to a preliminary hearing. It is a well-settled law of this state that failure to appoint counsel at the preliminary examination is not error. No useful purpose would be gained in discussing this matter further. Suffice it to say the question was thoroughly dealt with in the case of State v. Daegele, 193 Kan. 314, 393 P. 2d 978, cert. denied (January 18, 1965 ) 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; Bergin v. State, 194 Kan. 656, 400 P. 2d 978; and State v. Richardson, 194 Kan. 471, 399 P. 2d 799, and what was said there is applicable in the instant case.
From a careful review of the record we are of the opinion the defendant has failed to make it affirmatively appear he has not been granted a fair trial before an impartial jury or that any of his rights under Section 10 of the Bill of Rights of our state constitution or the due process clause of the federal constitution have been violated.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This is an action brought by the plaintiff, Elmer Chaplin, against the defendants, The Gas Service Company and its employee, Andrew Rose, to recover for medical expenses incurred in treating his seven-year old son, Ernest E. Chaplin, for bums alleged to have resulted from the defendants' negligence. The trial court sustained a demurrer to the plaintiffs petition and this appeal followed.
The action is predicated on the alleged negligence of The Gas Service Company’s agent and employee, Andrew Rose, while acting within the scope of his employment. The allegations of negligence are contained in paragraphs IV, V and VII of the plaintiff’s petition, which read as follows:
“IV. In October, 1960, the flame on the cooking stove and furnace in the home of the plaintiff became low. Often times the pilot light would go out. Because of this trouble with the gas stove and furnace, Geraldine Chaplin, wife of Elmer Chaplin, called by telephone the defendant corporation and advised one of its employees, whose name is not known to plaintiff, but well known to the defendant, of the afore-described condition of the gas stove and furnace. The defendant corporation sent one of its employees, whose name is unknown to plaintiff but well known to defendant corporation to plaintiff’s home to check the gas lines, meter and appliances. The condition afore-described continued. Thereafter, on January 24, 1961, Geraldine Chaplin again called by telephone the defendant corporation and advised one of its agents, whose name is unknown to plaintiff but well known to the defendant corporation, that the afore-described condition of the low flame still existed. The defendant corporation sent the defendant Andrew Rose to the premises of the plaintiff and the defendant Andrew Rose turned off the gas, installed a new meter and cleaned out the gas pipes. During the time that the afore-described work was being done by the defendants the gas was turned off and the house became cold.
“V. After the defendants had completed the afore-described work, the defendant Andrew Rose lit the four burners and oven on the kitchen stove. Ernest E. Chaplin, the- minor son of plaintiff, who had been in bed, got up and went into the kitchen of said house to get warm. The defendant Andrew Rose then went into the den to light the furnace pilot light which was under the house. The defendant Andrew Rose called to Geraldine Chaplin and it was necessary for her to leave the kitchen and go into the den to hear said defendant Andrew Rose and answer his questions. After Geraldine Chaplin left the kitchen she heard Ernest E. Chaplin screaming and when she ran back into the kitchen she found the pajamas of Ernest E. Chaplin had caught fire from the open flames that the defendant Andrew Rose had left burning on the stove. Geraldine Chaplin put out the flaming pajamas.
“VII. The damages which this plaintiff has sustained are the direct and proximate results of the following acts of negligence of the defendants:
“(1) In failing and neglecting to have sufficient workmen to do the job and particularly to relight the furnace pilot light.
“(2) In leaving the kitchen after lighting the burners on the kitchen stove and leaving an open flame burning on the kitchen stove.
“(3) In calling Geraldine Chaplin out of the kitchen while an open flame was binning on the kitchen stove.”
At the outset, plaintiff insists that his petition is to be liberally construed in his favor, that all facts well pleaded are to be taken as true and that he is entitled to all favorable inferences which may be drawn from the pleaded facts. We agree that such are, indeed, the standards by which the sufficiency of plaintiffs pleading is to be tested. (Schiffelbein v. Sisters of Charity of Leavenworth, 190 Kan. 278, 280, 374 P. 2d 42.) Even so, we are not convinced that the petition sets forth a cause of action.
No authorities have been cited from this or any other jurisdiction based on facts similar to those involved in this action. Neither has our research uncovered any parallel case, and we doubt that the identical question presented here has ever been passed upon. The Kansas cases cited in plaintiff’s brief may not be said to furnish support for his position because of factual dissimilarities. They involve situations where liability was imposed for negligence in the installation, inspection or maintenance of gas lines or appliances resulting either in the escape of gas and ensuing explosions or in faulty combustion with consequent carbon monoxide gas.
In the absence of identical precedents, the petition must be measured by general legal standards. A reference to even the most rudimentary principles governing the law of negligence will demonstraté the fallacy of plaintiff’s hypothesis. Negligence has a well recognized meaning in law as being the lack of due care under prevailing circumstances. (Shufelberger v. Worden, 189 Kan. 379, 383, 369 P. 2d 382; Townsend, Administrator v. Jones, 183 Kan. 543, 554, 331 P. 2d 890.) In Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765, this court defined the term in the following fashion:
“It may- be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury.” (p. 440.)
As seen from paragraph VII of the petition, three grounds of negligence are relied upon. These may briefly be noted. First, it is alleged that the defendants failed to have sufficient workmen to do the job and relight the furnace pilot light. This is but a bare conclusion, unsupported by any allegation of fact. Nowhere is it alleged that more than one workman was required or was customarily employed to perform the work done by Rose. Neither does the petition set out that Rose was not competent to perform the task assigned him, nor that the work was faultily performed. Furthermore, it would be ridiculous to suppose that one workman would be required to light the stove and another to light the furnace.
Plaintiff next asserts that Rose was negligent in leaving the kitchen with the stove burners lighted. Why should this constitute negligence? Gas burners are made to light and we believe it commonplace for housewives, as well as others, to leave the burners on as they proceed with other chores. Furthermore, plaintiff’s house was cold and heat was wanted. The writer well recalls the many chilly mornings when the kitchen stove was lighted to repel the frost. The family huddle over the welcome warmth of the open flames was an institution which we doubt not continues in many homes to this day. Rut most important of all, Rose did not leave the boy alone in the kitchen, but with his mother. The youngster was left in the company of the very person who normally would be most concerned for his safety and well-being. Under this circumstance especially, we cannot believe that Rose can be said to have evidenced indifference or lack of prudence in leaving the kitchen while the burners remained lighted.
Plaintiff’s third, and possibly gravest, specification of negligence is “in calling Geraldine Chaplin (the mother) out of the kitchen while an open flame was burning on the kitchen stove.” As to this ground, it first might be noted that the petition does not allege that Rose called the mother out of the kitchen, but that he called to her and' it was necessary for her to leave the kitchen to hear Rose and answer his questions. However, regardless of technicalities of language, it appears to us that Rose may not be charged with negligence in calling to Mrs. Chaplin. When he left the kitchen to light the furnace, the boy was attended by his mother and there was no reason to anticipate that she would leave him in a place of peril. The presumption would, indeed, be quite the opposite; any normal person would expect a mother to be diligent in protecting her child from danger.
It is a well recognized rule of law, frequently applied by this court, that one is not negligent in failing to anticipate danger which could not reasonably be expected. (Davies v. Shawver, 134 Kan. 772, 8 P. 2d 953; Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605.) In Blackmore v. Auer, supra, it was said:
“An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 162 N. E. 99, 59 A. L. R. 1253; and Seavey, Negligence, Subjective or Objective, 41 Harv. L. Rev. 6.) . . .” (p. 441.)
To similar effect, the principle was stated in Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590:
“Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur.” (Syl. f 8.)
In the discussion found in 24 Am. Jur., Gas Companies, § 21, it is said:
“It has been declared that the test of proximate cause is whether the events between the negligent act and the final result are so linked together that they become a natural whole. In other words, in the determination of whether the act of a gas company is the proximate cause of an injury, the injury must be the natural and probable consequence of the act; the injury must be one that the company, in the exercise of ordinary care, might have and ought to have anticipated as likely to result. . . .” (p. 681.)
We see nothing in the circumstances alleged which would reasonably lead Rose to suppose that when he called to Mrs. Chaplin she would do or fail to do anything which might subject her son to any hazard or risk.
The defendants make the further contention that the plaintiff is precluded from recovery because of his wife’s negligence in leaving her young son alone in the kitchen with the lighted stove. This point, however, need not now be determined in view of the decision we have already reached.
For the reasons hereinabove set out, we conclude that the trial court was correct in sustaining the defendants’ demurrer to the plaintiff’s petition and that its judgment must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal from an order overruling the defendants’ demurrer to the plaintiff’s petition. The demurrer set forth two grounds: (1) That the petition fails to state facts sufficient to constitute a cause of action, and (2) misjoinder of causes of action. However, the defendants (appellants) now rely solely on the first ground of their demurrer and, in this opinion, we shall confine ourselves to that point.
In substance, the petition alleges that the defendants, Buford J. Lutz and Norman E. Gaar, were, respectively, the duly elected, qualified and acting mayor and police judge of the city of West-wood, Kansas; that about November 21, 1962, Mayor Lutz signed the following complaint against the plaintiff:
“State of Kansas, Comity of Johnson, City of Westwood, ss. In the Police Court of Westwood, Kansas.
“Buford J. Lutz, Mayor of the City of Westwood being duly sworn, on oath says, that on or about the 14th day of November, 1962, in the City of Westwood, County of Johnson, and State of Kansas, O. L. Holland d/b/a Johnson County Bonding Co. did then and there unlawfully, refuse to pay a debt of $198.00 owed to said City by virtue of the failure of Lawerence Cox to appear in the Police Court of said City on said date, said O. L. Holland having guaranteed said appearance by executing as surety the recognizance of said Lawerence Cox to appear in said court when summoned. Contrary to sections 15-507 and 15-508 G. S. 1949.
/s/ Bufobd J. Lutz
“Subscribed and sworn to before me, this 21st day of November, 1962.
/s/ Norman E. Gaar”
and that thereafter Judge Gaar issued a warrant for plaintiff’s arrest which, omitting formal parts, is as follows:
“The State of Kansas to the Marshall of the City of Westwood in Said County:
“Whereas, Complaint in writing, under oath, has been made to me, and it appearing that there are reasonable grounds for believing that on the 14th day of November, a. d. 1962, in the city of Westwood in Johnson county and State of Kansas, one O. L. Holland d/b/a Johnson County Bonding Co. did then and there unlawfully refuse to pay $198.00 forfeited surety bond upon the failure of Lawerence Cox to appear in the Police Court of said City, contrary to sections 15-507 and 15-508, G. S. 1949.
“You are therefore commanded, Forthwith, to arrest said O. L. Holland d/b/a Johnson County Bonding Co. and bring him before me at my office, in said city, to answer said charge, and then and there return this writ.
“Witness my hand, at my office, in said City, this 21st day of November, a. d. 1962.
/s/ Norman E. Gaar
(Seal) Police Judge.”
The petition further alleges that plaintiff was arrested and placed in custody pursuant to the warrant, and entered into a $250.00 cash recognizance bond, which the city still holds; that upon a hearing, Gaar, as police judge, entered judgment against plaintiff for $198.00 and $1.00 costs; that this judgment was appealed to the district court of Johnson county, Kansas, where the proceedings against plaintiff were quashed on the grounds that the police court of West-wood had no jurisdiction to render the judgment, and that the purported cause of action was civil in nature and enforceable only in a court of competent jurisdiction; that thereafter the city of Westwood took an appeal to the Supreme Court of Kansas, which is pending; and that plaintiff was forced to employ counsel to represent him in all three courts.
It is alleged further that the acts of defendants were unlawful and unjustified in that (1) the police court had no jurisdiction of either the subject matter or the person; (2) that the allegations contained in the complaint and warrant did not violate any ordinance of Westwood; (3) that none of the proceedings in either complaint or warrant charged a public offense; and (4) that the judgment entered against the plaintiff was a departure from the criminal proceedings instituted against him.
The petition concludes with allegations that the arrest was circulated extensively in Johnson county and published in newspapers by reason of which the plaintiff’s reputation was injured; that the defendants acted maliciously with a design to injure plaintiff, well knowing that the complaint failed to state a crime, and that the court was without' jurisdiction; that plaintiff has been damaged in the sum of $10,000.00, and is entitled to exemplary damages of $25,000.00.
To complete the picture, we should point out that our opinion in the case of City of Westwood v. Holland, 193 Kan. 375, 394 P. 2d 56, heard by this court after the present case was filed, sustained the lower court’s judgment quashing the proceedings.
The gist of plaintiff’s alleged cause of action is that he was unlawfully restrained of his liberty by the actions of the two defendants. Whether this be denominated false imprisonment or false arrest is immaterial, for it is said that false arrest and false imprisonment as causes of action are indistinguishable. Roth consist of the illegal restraint of one person’s liberty by the act of another person. (22 Am. Jur., False Imprisonment, §§ 2, 3, pp. 353, 354.) Accordingly, the same legal principles are applicable to both torts regardless of how the cause of action may be termed.
In disposing of this case, we shall consider the liability of each defendant separately; first, that of Judge Gaar, and next, that of Mayor Lutz. At this point, however, we pause to note that malice is not a material element of false arrest or imprisonment. The motive with which a restraint of liberty is accomplished, be it evil or good, is irrelevant to the question of whether or not an unlawful arrest has been established. The existence of actual malice is of consequence only as it may afford the basis for punitive damages. In Garnier v. Squires, 62 Kan. 321, 62 Pac. 1005, this court said:
“As will be seen, malice and wilfulness are not essential elements of false imprisonment, and the motives of the defendant, whatever they may have been, are not material to the case so far as making out a right of action is concerned, and can never be material except where something more than compensatory damages are sought. If exemplary damages are sought, proof of malice in making an arrest or imposing restraint is competent. . . ." (p. 324.)
See also Comer v. Knowles, 17 Kan. 436; 22 Am. Jur., False Imprisonment, §§22-27, pp. 368-370; 35 C. J. S., False Imprisonment, § 7, pp. 629-631.
Proceeding to the merits, we may state it is a general, if not, indeed, the universal, rule that where a person acts in a judicial capacity he has immunity from liability for false arrest or imprisonment, so long as he acts within the scope of his jurisdiction. (22 Am. Jur., False Imprisonment, § 52, p. 390.) This rule is expressed in 35 C. J. S., False Imprisonment, § 44a, p. 705, in this wise:
“Based on the principle that all judicial officers are protected by their official character from liability in tort, because of public conduct clearly within the pale of their authority, although involving demonstrable legal error, . . . it is the general rule that a judicial officer is not liable for a false arrest or detention arising out of acts done in his judicial capacity where there is not a clear absence of all jurisdiction over the subject matter and person, even though such acts constitute an excessive or erroneous exercise of jurisdiction or involve a decision that the officer had jurisdiction over the particular case where in fact he had none. The rule is sometimes stated in somewhat different terms to the effect that a judicial officer is not liable when the arrest or detention is in a case belonging to a class over which he has cognizance, and is by complaint or other proceedings put at least colorably under his jurisdiction.”
This was early declared to be the law in Kansas. In Clark v. Spicer, 6 Kan. 440, it was held:
“It is a general principle of law that whenever a judicial officer acts within the scope of his jurisdiction he is not liable, however erroneous his acts may be.” (Syl.fl.)
The rationale of this doctrine is not difficult to comprehend. It is to society’s interest that judicial officers be free to exercise their best independent judgment, and to act in accordance with their own convictions without fear of personal consequences. In Brown v. Larimer, 132 Kan. 81, 294 Pac. 906, it was said:
“. . . The second principle is that the judges of our courts must be free to exercise their best judgment on any matter pending before them with out the fear of being held liable in damages if their ruling should prove to be erroneous. . . .” (p. 84.)
The rules granting immunity to judicial officers for official acts performed within the scope of their jurisdictions generally apply, not only to judges of courts of general jurisdiction, but to those of limited jurisdiction as well, including city magistrates. (Reilly v. United States Fidelity & Guaranty Co., 15 F. 2d 314; Shampagne v. Keplinger, 78 Mont. 114, 252 Pac. 803; Broom v. Douglass, et al., 175 Ala. 268, 57 So. 860.) This subject was discussed in Brown v. Larimer, supra, where the court had this to say:
“. . . Within the respective jurisdictions of such inferior courts [police courts, examining magistrates, justices of the peace, probate courts, and the like] their judges are immune from personal liability, just as judges of courts of general jurisdiction are, but it is possible for a question to arise before the judges of such courts which is not within their jurisdiction. This necessarily follows from the fact that they are courts of limited jurisdiction.” (p. 85.)
An exception to the doctrine of judicial immunity exists where the officer acts in the clear absence of all jurisdiction. (Brown v. Larimer, supra; 35 C. J. S., False Imprisonment, § 44d, p. 707.) Although this exception is well established, its application to a given set of facts is often difficult to determine and the basic question we must decide in this case, so far as Judge Gaar is concerned, is whether or not, in issuing the warrant upon the mayors complaint, the judge was acting within or wholly without his jurisdiction.
It is true that in City of Westwood v. Holland, supra, we held, in essence, that the complaint on which the warrant was issued did not allege a criminal offense cognizable by the police judge. Rut this does not dispose of the problem presented here. The complaint in the Westwood case purported to be drawn under the provisions of G. S. 1949, 15-507 and 15-508. Section 15-507 concerns the giving of bonds and recognizances in third-class cities. Section 15-508 reads as follows:
“In case of the breach of any recognizance entered into as aforesaid, the same shall be deemed forfeited, and the mayor shall cause the same to be prosecuted against the principal and surety, or the surety alone. Such action shall be in the name of the city as plaintiff, and may be prosecuted before the police judge; and all moneys recovered in any such action shall be paid over to the city treasurer to the credit of the general fund of the city. Judgments rendered under this section may be appealed from to the district court in like maimer and within the same time as appeals from justices are allowed in civil actions.”
The city contended in Westwood that the legislature’s use o£ the word “prosecute” authorized the type action which was instituted by the mayor’s complaint. This contention was rejected by this court, where we said:
“We construe the word ‘prosecute’ as used in the statute (15-508, supra) to mean prosecute by a civil action and not by arrest and imprisonment. Any other construction would place such statute in violation of section 16 of our Bill of Rights.” (p. 378.)
But we did not in Westwood decide that the police judge lacked jurisdiction to entertain an action to collect on a forfeited recognizance given under 15-508. As to this, we said:
“In conclusion, we point out, it must be understood that we are not passing on the power of the legislature to extend the jurisdiction of inferior courts to entertain proceedings to collect from sureties on forfeited recognizance bonds. . . .” (p. 378.)
We are aware of no constitutional infirmity which might be said to inhere in G. S. 1949, 15-508. In State v. Keener, 78 Kan. 649, 97 Pac. 860, it was said that the legislative power to organize police courts and provide for police judges is derived from article 2, section 1, of the Constitution which grants to the house of representatives and senate all legislative power of the state, including the power to provide for the organization and government of cities, and that the manner in which that power should be exercised rests in the discretion of the legislature.
In City of Marysville v. Cities Service Oil Co., 133 Kan. 692, 3 P. 2d 1060, this court said:
“There can be no question but what the legislature had the power to vest the police judge with such jurisdiction as it might deem expedient, so long as it acted within its constitutional authority. . . .” (p. 697.)
The legislature has provided for the election of a police judge by a third-class city such as Westwood (G. S. 1949, 15-201), and has granted him jurisdiction to hear and determine offenses against city ordinances. (G. S. 1949, 15-503.) No reason has been suggested why the legislature might not also clothe the police judge with authority to hear cases for the collection of recognizances which have been forfeited in police court.
In our view, Judge Gaar had jurisdiction over the subject matter set out in the complaint, although his attempt to exercise his jurisdiction by means of criminal process was an erroneous procedure. However, we do not consider his error of judgment in such regard as characterizing his action as one clearly beyond or without his jurisdiction. As bearing on this point, the language of the United States Supreme Court in Bradley v. Fisher, 13 Wall. (U. S.) 335, 20 L. Ed. 646, is peculiarly appropriate:
“. . . A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over tire subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgments may depend. . . .” (pp. 351, 352.)
In Grove v. Van Duyn, 44 N. J. Law 654, 43 Am. Rep. 412, the liability of a justice of the peace for false imprisonment was at issue, and on this subject, the court said:
“. . . Where the judge is called upon by the facts before him to decide whether his authority extends over the matter, such an act is a judicial act, and such officer is not liable in a suit to the person affected by his decision, whether such decision is right or wrong. . . .” (p. 660.)
That Judge Gaar may have come to a wrong conclusion as to the manner in which and the extent to which his jurisdiction should be exercised under G. S. 1949, 15-508 does not make his determination any less a judicial act. Hindsight is usually much clearer than foresight and it is hardly to be expected that city magistrates, many of whom may be unfamiliar with, or unschooled in, the intricacies, technicalities and niceties of the criminal law and its procedures, will always come up with correct decisions.
It is our conclusion that under the doctrine of judicial immunity, the plaintiff’s petition fails to state a cause of action against the defendant Gaar.
We turn now to the defendant Lutz, who signed the complaint on which the warrant was issued.
Although there is not complete unanimity among the authorities, the general rules appears to be that a person who merely signs a complaint on which an arrest is made is not liable for a false arrest. This rule is stated in 22 Am. Jur., False Imprisonment, § 33, p. 375, as follows:
“. . . The great weight of authority sustains the view that where a magistrate has general jurisdiction over the subject matter of a criminal prosecution, a person making a complaint before him is not, because of that act, liable for false imprisonment, although the complaint is insufficient to charge the commission of a crime. . . .”
The majority rule finds support in decisions from many jurisdictions, although we need cite but a few. In Smith v. Clark et al, 37 Utah 116, 106 Pac. 653, the Supreme Court of Utah, after citing cases from Minnesota, Michigan, Wisconsin, Massachusetts and New Jersey, said:
“From the cases, and upon principle, we think it is clear that a party who merely originates a suit by stating the case to, or signing a complaint before, a court of justice is not guilty of trespass, though the proceeding should be erroneous or without jurisdiction. Such an application is only a plea to the magistrate to exercise his jurisdiction, leaving him to the exercise of that jurisdiction upon his own discretion, and cannot be considered as constituting the magistrate the agent of the complainant or suitor, or as calling upon him to act ministerially upon the authority of such complainant or suitor. . . (p. 124.)
In a much later case, Aiken v. Shell Oil Co. et al and Huey, 219 Or. 523, 348 P. 2d 51, the court quotes approvingly from Smith v. Clark et al, supra, and in following the majority rule states:
“There is no judicial question and no duty placed upon the complaining witness, other than to place the facts before the magistrate as they are asked of him and to verify them under oath. The magistrate, with the advice of the district attorney, performs the judicial function. Likewise, the officer making the arrest must act in a quasi-judicial manner in determining whether the person arrested is the one named in the warrant. That is not the duty of the complaining witness.” (p.535.)
Kansas has long adhered to the majority rule. In Gillett v. Thiebold, 9 Kan. 427, the situation was this: Thiebold had been arrested and committed to jail pursuant to an order of arrest issued in a civil action on an insufficient affidavit signed by Gillett. After being released on a writ of habeas corpus, Thiebold promptly sued Gillett for false imprisonment. In its opinion, the court said that the action of the justice of the peace, in examining the facts set out in the affidavit and in issuing the warrant thereon, was a judicial act, and held:
“Where the facts set forth in such an affidavit, though they may be slight and inconclusive, yet tend to prove the fraud, and the justice after examination thereof, issues the order of arrest, no action for false imprisonment will he for a detention under such order, the other proceedings being regular.” (Syl. ¶ 4.)
A similar situation came before this court in Wagstaff v. Schippel, 27 Kan. 450, where a complaining witness was sued for false imprisonment. The complaint appeared to be defective, but the court held that it was sufficient to invite the examination and consideration of the justice and that under such circumstances an action of false imprisonment would not lie.
In a later case, Lemmon v. King, 95 Kan. 524, 148 Pac. 750, under facts somewhat different from those presented here, the court used language indicating approval of the rule:
“It is said that ‘The person making the complaint upon which the warrant issues is not liable if he states the facts to the magistrate, even though such facts do not authorize the issuance of a warrant.’ (Note, 67 Am. St. Rep. 411.) . . .” (p. 529.)
Our decision in Hammargren v. Montgomery Ward & Co., 172 Kan. 484, 241 P. 2d 1192, does not conflict with the general rule or with previous decisions of this court. In Hammargren, the defendants had called the police who took plaintiffs to the police station where they were questioned and released. No written complaint was signed and no warrant issued. The unlawful arrest was alleged to have been made at the direction of the defendants and the court held there was sufficient evidence of instigation on their part to sustain a verdict against them. The petition in the instant case alleges only that Lutz signed the complaint; there are no allegations that he either requested, instigated or directed the plaintiff’s arrest.
The general rule followed by this and other courts appeals to us as a salutary one. The right of private citizens to resort freely to their courts for redress of wrongs is fundamental to our system of society, and its exercise is to be encouraged, not hampered. The New York court, speaking in Marks v. Townsend et al., 97 N. Y. 590, put the matter plainly when it said:
“. . . This rule of exemption is founded in public policy, and is applicable alike to civil and criminal remedies and proceedings, that parties may be induced freely to resort to the courts and judicial officers for the enforcement of their rights and the remedy of their grievances without the risk of undue punishment for their own ignorance of the law or for the errors of courts and judicial officers. . . .” (p.597.)
We do not intend, by any means, to intimate that a complainant may with impunity knowingly prefer false charges or otherwise act with malice and without probable cause. In 22 Am. Jur., False Imprisonment, § 33, p. 376, it is said:
“Of course, if the complaint is malicious and without probable cause, the complainant may be liable in another form of action. . . .”
Our own court pointed this out in Wagstaff v. Schippel, supra, in these words:
. . The action for malicious prosecution is ample protection to the defendant, against an unwarranted and improper prosecution, and the prosecuting witness ought not, any more than the magistrate, to be compelled to guarantee the absolute sufficiency of the complaint, as prepared by the prosecuting officer. . . .” (p.455.)
And in Marks v. Townsend et al., supra, it is said that:
“. . . The remedy of the party unjustly arrested or imprisoned is by the recovery of costs which may be awarded to him, or the redress which some statute may give him, or by an action for malicious prosecution, in case the prosecution against him has been from unworthy motives and without probable cause.” (p. 597.)
But the plaintiff in the present case does not allege a cause of action for malicious prosecution. He plainly predicates his right to recover on a false arrest. As we have heretofore said, malice is not involved in false arrest; its presence does not make a lawful arrest unlawful, nor does its absence make an unlawful arrest lawful.
It is our conclusion that the plaintiff’s petition fails to state a cause of action against the defendant Lutz, as well as against the defendant Gaar, and that the demurrer should have been sustained as to both of them.
The judgment of the court below is reversed and the case is remanded with instructions to sustain the defendants’ demurrer.
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The opinion of the court was delivered by
Parker, C. J.:
The defendant, Dick Malone, was tried and convicted in the district court of Sedgwick County on three counts for the crimes of forgery, uttering and obtaining money by false pretenses, respectively, and, upon the overruling of his motion for a new trial, was sentenced to confinement in the state penitentiary as an habitual criminal. This appeal followed.
At the outset it shoud be pointed out, that due to changes in personnel, this is a case where attorneys now representing the respective parties have to some extent reconstructed the record on appellate review with the result it is somewhat more confusing than it would have been if they had been in the case throughout its inception. In this connection it is interesting to note the defendant was represented by Terrance J. Muth, of Wichita, at his prehminary hearing; by Richard L. Hilton, of Wichita, at the trial court level; and on appellate review by Marvin Appling, of Wichita, who, upon his withdrawal from the case, was succeeded by Eugene L. Pirtle, of Wichita, defendant’s present court-appointed counsel. And it should be noted that A. J. Focht, of Wichita, who represented the state on appeal, succeeded William J. Tomlinson, of Wichita, who represented the state at all stages o£ the proceedings in the court below.
It may be stated that all attorneys mentioned are competent and qualified and that they diligently represented then- respective clients during the time they participated as counsel in the case at bar.
A proper understanding of the confusing and somewhat complicated factual situation disclosed by the record can best be achieved by quoting the statements of fact as made by the respective parties.
Defendant’s statement, as set forth in his brief, reads:
“Acting upon reports and two or three calls from motels in the city of Wichita that an individual was representing himself as an agent of a construction company and was seeking advancement of money from the motel clerks, Wichita City Detectives Overman and Shackleford arrested the Defendant without a warrant at the Napa Motel. The Defendant was taken to the Wichita City Jail in Lt. Overman s car followed by Detectives Burrows and Hamlin in another police car.
“Detectives Burrows and Hamlin interrogated the Defendant at the city jail and conducted a search of the Defendant’s person at that time on July 25, 1963, in one of tire interrogation rooms.
“A warrant was thereafter issued and the Defendant was transported by the Marshal of the Court of Common Pleas to the Sedgwick County Jail. Defendant was charged with forgery and uttering under Case No. CR324 in violation of Sections 21-608, 21-628 of the General Statutes of Kansas, 1949. He was charged with obtaining money by use of false representations in violation of Section 21-551, 1949, General Statutes of Kansas, under Case No. CR323. On September 16, 1963, Defendant waived preliminary hearing through a court-appointed attorney in the Court of Common Pleas. A trial before a jury was commenced on December 10, 1963, and thef jury found the Defendant guilty on all three counts on December 11, 1963. The Defendant filed his motion for a new trial on December 16, 1963, which was heard on December 20, 1963, and by the court overruled. The Defendant filed his notice of appeal from the court’s ruling on a motion for a new trial and the judgment and sentence, pro se, forma pauperis. The trial judge overruled the pro se motion for appointment of appellate counsel on February 17, 1964. Pursuant to the direction of this court the trial judge appointed Marvin R. Appling to represent the Defendant on September 24, 1964. This attorney succeeded Mr. Appling upon his withdrawal.”
The state’s statement, although lengthy, accurately reflects the facts of record required to dispose of most of the questions raised by the defendant as grounds for reversal of his judgment and sentence. Therefore such statement, which is necessarily limited to the state’s own testimony because no evidence was presented by the defendant in his defense, will be quoted verbatim. It reads:
“The uncontroverted evidence in this case shows the following to be the facts:
“That on July 23, 1963, in the City of Wichita, Sedgwick County, Kansas, at a motel known as the Highway Inn, an employee who had been working for the Highway Inn Motel for only one week, saw in the course of her business as an employee the Appellant, Dick Malone, alias Stanley Hooker. He came to her place of business and represented himself as the head engineer of the Tobin Construction Company, coming in advance of his crew of workers. He told Miss Kelly that he needed to find rooms for his men who were coming in trucks, and that he would need advance cash to feed them. He took a reservation for himself, which he did not pay for, and requested of and received from Nedra Kelly an advancement of five twenty-dollar bills or one hundred dollars. He filled out a registration card and received a key to room number 12 in the Motel Unit from Miss Kelly. Miss Kelly, being a new employee, tried to find someone in a responsible position to okay the advance of money to the Appellant who was representing himself as the head of a large construction crew. Failing to find someone to okay the transaction, she relied on her past knowledge of having seen it done in the past, and advanced the money on that basis. The next morning, July 24, 1963, Miss Kelly became quite upset as a result of her cash drawer being $100.00 short, which was the amount she had advanced to the Appellant. One of her superiors, Margerite Fisher, checked the Room No. 12 which had been rented to the Appellant and found that it had not been occupied. At the early morning hour of 1:15 A. M. on July 25, 1963, the Appellant, Dick Malone, with another man identified as Bud Adams, came to the location of the Fireside Motel located in Wichita, Sedgwick County, Kansas. That time they talked to the owner and operator of the motel, Alvin Whitney. The appellant again represented himself as being with Tobin Construction Company and needing to put up truck drivers and their families which would be arriving later. At that particular time the Fireside Motel had only one available unit which the Appellant agreed to take, stating he could use the room for his boss and his family. The appellant alleged that he would have to feed the other men and their families and put them up for the night somewhere and that he would need some money to do this. The owner, Alvin Whitney, agreed to accept a check which was drawn on the Kansas City National Bank, Kansas City, Missouri, for $145.00 and signed by the Appellant as ‘Dick Malone.’ The keys to Unit 9 were given to the Appellant and he signed the register saying he would settle for the room later. That same morning after Mr. Whitney got to thinking about the matter while he was in bed at approximately 9:00 A. M., he decided that he had better do some checking on the Universal Check given to him by the Appellant. He picked up his telephone and called for the Kansas City National Bank at Kansas City, Missouri, and was unable to get in touch with such a bank. The room which had been rented for the boss of the Appellant, Mr. Tobin, was unoccupied and Mr. Tobin did not appear at the motel. The check given to the Fireside Motel was not honored. Mr. Whitney never endorsed the check nor did he deposit it in the bank after he discussed the matter with his banker at the Stockyards National Bank. Approximately 12 hours later, the Appellant was arrested by Detective Lieutenant William Overman and Detective Bill Shackelford at the Napa Motel in Wichita, Sedgwick County, Kansas, from there he was taken to the Sedgwick County Jail where he was interviewed by Detectives Bill Burrows and Stan Hamlin. The arrest of the Appellant came about as a result of information received by the Wichita Police Department that a man using the name of Dick Malone, had gone into a motel and represented himself to be an agent of the Tobin Construction Company with the idea of getting a room for a crew of eight or nine men and while so representing himself, asking for an advancement of money so that he could feed and house these men. This report had been investigated and it had been determined by the Police Department that there was in truth and in fact no such representative of this company in town.
“A complaint was received from the Highway Inn prior to die arrest of the Appellant. Following his arrest, he was taken to the Wichita Police Department where Detectives Stan Hamlin and Bill Burrows informed the Appellant that they were police detectives and that as a citizen the Appellant had certain rights. He did not have to tell the officers anything, that anything he did tell them either verbally or in writing, could be used against him in a court of law. He was informed that he had a right to make a telephone call to secure the services of an attorney, that he was not going to be threatened in any way nor was he going to be promised anything. He was asked if he understood these rights and he replied yes.
“Following this advising the defendant of his constitutional rights, an interview was conducted in which the Appellant admitted that he had served time in the penitentiary for several things, including checks. The Appellant claimed to have no recollection of having ever been to the Highway Inn Motel, and contended that he had never represented himself as a representative of a construction company. He did show to the officers a slip of paper from the employment agency sending him to the Tobin Construction Company for a job. He said he had worked for them for one day as a heavy equipment operator. Upon checking his personal property it was discovered that he had in his pockets three motel keys; one for the Highway Inn; one for a motel known as the Trail; and one for the Fireside Motel. Upon being confronted with the keys, the Appellant said that he had rooms in all three of the motels. He disclaimed any knowledge of having had written any checks, however, he admitted having been at the Highway Inn Motel. He stated he could not find a room at said hotel and said he had been drinking at different times and had been taking pep pills or drugs to get a hopped up feeling, and that he had not written any checks that he knew of unless he had written them within the last twenty-four hours. He said he simply did not remember; that he could have conned these people out of their money. That same day, July 25, 1963, a complaint was signed against the Appellant in the Court of Common Pleas of Sedgwick County, Kansas, charging him with Forgery, Uttering and Cheat and Defraud.
“The defendant was arrainged the next day, July 26, 1963, and bond set at a total of $15,000.00 for the three charges. On September 16, 1963, the defendant waived his preliminary hearing in the Court of Common Pleas and was bound over for trial at the next term of the District Court of Sedgwick County, Kansas. Information was duly filed against the Appellant and he was arraigned in Division 7 of the District Court of Sedgwick County, Kansas, on November 6, 1963. At that time the attorney for the State of Kansas, William J. Tomlinson, informed the defendant and his court appointed attorney that the State would seek imposition of sentence under the Habitual Criminal Law. The next day, November 7, 1963, the morning paper, the Wichita Eagle, carried a story on the Appellant’s arraignment.
“A trial before a jury was commenced on December 10, 1963, and the facts as related herein were generally testified to. The State introduced the hotel key to the Highway Inn Motel which had been taken from the Appellant, and which Exhibit was admitted without objection as well as the Registration Card filled out by the Appellant. The jury after duly deliberating the matter, found the defendant guilty of all three counts on December 11, 1963. A motion for new trial was duly filed in time and was argued to the court and by the court overruled. A notice of appeal was filed, counsel appointed for the handling of said appeal, and the matter is now in front of thisr court as a result of those proceedings.”
The questions involved, as stated and argued in defendant’s brief, are substantially the same as the errors assigned in his specifications of error. Omitting repetitious statements such specifications charge that the trial court erred:
“1 ... in allowing the jury to be subjected to undue influence amounting to denial of due process.
“2 ... in allowing improper conduct of the prosecuting attorney resulting in prejudice to the defendant.
“3 . . . in improperly admitting evidence of prior convictions obtained by interrogation following improper search and seizure and without the constitutional guarantee of counsel.
“4 ... in admitting evidence obtained from improper search and seizure in violation of due process and resulting in compulsory self-incrimination.
. in overruling Defendant’s motion for a discharge. “5 .
. in overruling Defendant’s motion for a mistrial. “6 .
. in overruling Defendant’s motion for a new trial. “7 .
. in overruling Defendant’s motion for appointment of appellate “8 . counsel.
“9 . in its judgment and sentence.”
Hereafter claims of error will be identified by number, as they appear in the quoted specifications of error, and questions raised with respect to each such claim will be disposed of accordingly.
Specifications of error 3, 4, 5 and 6. With respect to these specifications a careful review or the record discloses that they were not presented or argued to the trial court at the time of its hearing on the motion for a new trial. In that situation it is the long standing rule of this jurisdiction that in a criminal action alleged trial errors not heard nor presented at the hearing on the motion for a new trial are unavailable on appeal. For a recent decision where the rule is considered, discussed and applied, see State v. Burnett, 189 Kan. 31, 367 P. 2d 67, to which we adhere, where it is said and held:
“While a defendant may appeal to this court as a matter of right from any judgment against him by complying with the adequate and easily complied-with method of appeal (G. S. 1949, 62-1701, 62-1724), the statute does not contemplate that he is entitled to a review of every matter involved in his trial and sentence without complying with well-established rules of procedure relating to appellate review. (State v. Hamilton, 185 Kan. 101, 103, 340 P. 2d 390 [cert. den. 361 U. S. 920, 4 L. Ed. 2d 188, 80 Ct. 265]; Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 503, 73 Ct. 397.) And so here. The defendant appealed from the order overruling his motion for a new trial and the subjects embraced in the specifications of error were fairly within the purview of the grounds of that motion, but he failed to urge and rely upon those grounds for the allowance of his motion for a new trial at the time it was presented to the district court, consequently, they are of no avail to him for appellate review. (State v. Morrow, supra; State v. Hayes, supra; State v. Toelkes, supra.)” (p. 33.)
Ry reason of his failure to present or urge the foregoing claims of error at the hearing on the motion for a new trial defendant, under our decisions, lost his right to have such claims considered on appellate review. This, we may add, is true even though it is argued by defendant that his rights under the provisions of the Constitution of the United States were violated because of an alleged unlawful search and seizure. See State v. Aeby, 191 Kan. 333 (Syl. ¶ 3), 336, 381 P. 2d 356; State v. Marsh, 193 Kan. 302, 392 P. 2d 953, cert. den., 380 U. S. 910, 13 L. Ed. 2d 797, 85 S. Ct. 895.
Specification of error 8. Assuming arguendo, as urged in support of this specification, that the district court was in error when it overruled defendant’s motion for appointment of appellate counsel, it is neither necessary nor required that we here labor the point. Inasmuch as that court subsequently appointed Marvin Appling as defendant’s counsel on appeal, and later, upon his withdrawal from the case, appointed defendant’s present counsel, Eugene L. Pirtle, the question whether the court erred, in the first instance, in refusing to appoint counsel has long since become moot and has no place in this lawsuit.
Supplementary facts required to dispose of specifications of error to be presently mentioned may be stated thus.
On November 6, 1963, the date of defendant’s arraignment on the charges herein involved, the state, by and through its attorney, William J. Tomlinson, in open court informed ihe defendant and his counsel, who were both present, that if the defendant were convicted, the state would ask imposition of sentence under the Habitual Criminal Act. It may be stated, this action is corroborated by the journal entry of judgment as signed by the district judge and approved by counsel repesenting the respective parties at the Rial court level.
On the next day, November 7, 1963, an article appeared in the Wichita Eagle. Portions of that article read:
Jury Trial on Forgery
Set for Man
“A jury trial for a 52-year old Kansas City man . . . has been set for Dec. 3 on charges of forgery and cheat and defraud.
“District Court Judge Tom Raum Wednesday appointed Richard Hilton to represent the defendant, Dick A. Malone, and set the trial for Dec. 3.
“Malone, alias Stanley R. Hooker, will remain in custody. . . .
“In one count Malone was accused of forging and uttering a check for $145 drawn on a ficticious Kansas City bank at a local motel. In the other count he was accused of making false statements and representations to a Wichitan to obtain $100.
“Authorities said Malone served 13 years on a murder count at Alcatraz and three years in federal prison at Chillicothe, Ohio, on auto theft.”
On Tuesday, December 10,1963, during the course of defendant’s trial, an article appeared in the Wichita Beacon. Pertinent portions of that article read:
“Jury Picked for Trial on Forgery”
“Jurors were selected in District Court Tuesday for the trial of Dick Malone, 46, alias Stanley Hooker, who has served 13 years in Alcatraz for murder.
“Malone is charged with two counts of fraud and forgery.
“Malone is accused of obtaining an advance of $100 from a motel clerk by falsely representing himself as a construction firm supervisor who needed the money to feed a crew of construction workers.
“The second count charges forging a $145 check written on a fictitious bank in Kansas City.
“Other Counts.
“Malone served 13 years at Alcatraz, beginning in 1923, for murder of another man in prison. He was convicted of other counts of smuggling dope in Canada, attempted murder, car theft, cheating, swindling.
“Deputy County Atty. William J. Tomlinson said he would ask the court to sentence Malone under habitual criminal act if he is convicted.”
We now turn to specification of error 2. The short answer to this claim of error is that it was neither presented nor argued at the hearing on the motion for a new trial, consequently, under State v. Burnett, supra, and the other decisions therein cited, it presents nothing upon which reversible error can be predicated on appeal. Even so we have carefully reviewed the record, just above quoted, and are convinced it falls far short of establishing the defendant’s unwarranted assumptions that (1) the trial court erred in allowing improper conduct on the part of the state’s attorney or (2) that such official made the statement attributed to him by the reporter in the heretofore last quoted paragraph of the Wichita Beacon article. To hold otherwise would result in a conclusion based entirely on speculation and conjecture. For all we know, and for all the record shows, the Beacon reporter in attributing such statement to the Deputy County Attorney may have been referring to the statement properly made by that official at the time defendant was arraigned in open court on November 6, 1963. Long ago in State v. Durein, 70 Kan. 1, 78 Pac. 152, this court committed itself to the rule that in a criminal appeal the record of the proceedings in the trial court will not be interpreted to show error if it be susceptible of a reasonable interpretation to the contrary.
For other decisions of like import see State v. Smith, 171 Kan. 722, 237 P. 2d 388; State v. Trams, 189 Kan. 393, 369 P. 2d 223; State v. Ralph, 194 Kan. 356, 399 P. 2d 548.
Although arguing his foregoing claims of error with vigor counsel for defendant in oral argument of the cause before this court concedes, with commendable candor, that his specification of error 1 presents the crux of this appeal. This contention requires further amplification of the facts of record.
The Wichita Beacon article, to which we have heretofore referred, was published on the date indicated which happened to be the very day on which the state concluded presentation of its evidence and the defendant, without adducing any evidence, rested his case. Thereupon the court instructed the jury as follows:
“The jury will be asked to return tomorrow morning to be ready to proceed at ten o’clock to receive the instructions of the Court and the argument of counsel. Remember again that you may not discuss the case among yourselves; not with family, friends, nor strangers. Keep your thoughts within your own minds as individuals until tomorrow when you arrive in the jury room to proceed with your deliberations. . . .”
On the morning of December 11, 1963, the then counsel for defendant, outside the presence of the jury, called the court’s attention to the Beacon article and moved the court to poll the jury as to whether any member of the jury had read it. To this request the court responded:
“Hie article does seem to have gone rather far. However, there is no procedure for polling the jury and nothing would be gained doing that. The procedure would be to advise the jury to disregard the article if they did read it and proceed from there. Therefore, the motion to poll the jury is overruled."
The defendant’s counsel then requested the court to declare a mistrial due to the facts. The court overruled this motion stating, in substance, that it involved subject matter that could be raised on a motion for a new trial.
Thereupon the court called in the jury and proceeded to read its written instructions to that body. After doing so it gave the jury the following oral instructions:
“The Instructions have been reduced to writing and have been read to the jury and will be handed to the jury prior to their deliberations. In addition, we would like to give the jury one additional caution. Last night there appeared in the local newspaper an article concerning this case and concerning the defendant involved in this case. It now seems that some of the Information in the article was false and some of it should not have been printed while the case was in trial. It is therefor important the jurors — if you read the article or if you heard anything about it on television or radio — disregard anything that was printed or anything that was said. The case is to be decided by you only on what was presented in the courtroom and not by what was presented or said by anyone outside of the courtroom. This caution is necessary for the purpose of protecting the rights of persons who have been charged and who are on trial as a result of having been charged with public offenses.”
The jury then returned to the jury room to consider its verdicts and in a short time returned verdicts finding defendant guilty on each of the three counts.
Following the return of the verdicts defendant filed a motion for a new trial wherein he raised the error assigned under specification 1. After a full and complete hearing, at which time no attempt was made to produce evidence that any juror had been prejudiced or his verdict influenced by the Beacon article, the trial court in overruling the motion for a new trial made the following statement:
“The only question here is whether that which was published in the newspaper prejudiced the individual’s right to a fair trial and contributed to the verdicts rendered by the jury. I think it should be recorded that after the jury was dismissed from tire case and the record was closed that the Court inquired of the jurors while fliey were still in the box whether any of them had read the newspaper article referred to. All but one said drey hadn’t and he happened to be the foreman of die jury. When the Court inquired of him as to whedier the reading of the article influenced the verdicts rendered in the case he said, ‘Absolutely not.’ In fact, he said he couldn’t believe he could recall what die article had reported. Therefore, die Court concluded at that time and must conclude now, die jury was not influenced in this case in the rendering of tíieir verdicts by the árdele diat was published in the newspaper. Motion for new trial is overruled.”
On the point now under consideration defendant insists the court erred in refusing to grant a new trial on account of the Wichita Beacon article of December 10,1963. In view of the facts, conditions and circumstances, as heretofore related, we are forced to disagree. At the outset it may be conceded that we know of, and are cited to, no controlling case in this jurisdiction. Touching on the subject is State v. Holmes, 191 Kan. 126, 379 P. 2d 304, where it is said:
“Anotiier alleged error concerns die alleged prejudicial effect of a news story and picture appearing in a local newspaper during the progress of the trial. It does not appear tiiis matter was raised at the hearing on the motion for a new trial, and> in any event, no prejudice has been made to appear.” (p. 128.) (Emphasis supplied.)
Here the defendant failed to make any prejudice appear. Actually the record presented shows that the only juror who had read the article said he could not recall what it had reported and when asked by the court if the article had influenced his verdicts he replied “Absolutely not.”
Resort to cases from foreign jurisdictions disclose a well-reasoned decision which deals with a question identical with the one now before us, under facts, conditions and circumstances so similar that we are convinced it should be regarded as a controlling precedent— and we so hold. See United States v. Carruthers, 152 F. 2d 512, cert. den. 327 U. S. 787, 90 L. Ed. 1014, 66 S. Ct. 805, reh. den. 327 U. S. 817, 819, 90 L. Ed. 1040, 1041, 66 S. Ct. 816, 897, where it is said and held:
“Under this point appellant seriously urges that it was reversible error for the Court to refuse to declare a mistrial on account of an article appearing in the Chicago Daily News after the close of the evidence in the case which article concededly referred to appellant. The hearing of evidence was concluded on a Friday afternoon and the jury were permitted to separate and go to their homes. During that evening the article set forth in footnote 6 appeared in the News and was given wide circulation. When Court next convened on Monday morning counsel for Carruthers presented his motion to withdraw a juror and for a mistrial alleging that the article was probably read by the jurors and was highly prejudicial. The court at the request of appellant thereupon asked the jurors collectively whether any had read the article. Juror Vincent answered: 1 might have. I don’t remember it unless I saw it again.’ The Court then said to the jury: ‘If you have, I told you when you were being selected that the only evidence that you would consider would take place in this court room and which was admissible and was ruled on by the Court. If any of you have read anything concerning this case, and if any of you have read anything, or of any of the defendants, that you did not hear in the court room by sworn testimony or documents you are to entirely disregard it, or anything that might have appeared before you get this case for your deliberation.’ .
“All other eleven jurors answered that they had not read the article. The Court thereupon denied the motion and following the closing arguments again admonished the jury that they were permitted to consider only the evidence as presented in open court and were not to consider or be influenced by any article which might have appeared in any newspaper or other publication. . . .
“It cannot be denied but that the newspaper article in question was inflammatory and prejudicial in character and its publication prior to verdict, improper and unethical. Its publication could, under some circumstances have brought to naught a long, tedious and expensive trial. Whether the Court should have in this instance declared a mistrial depends upon all the circumstances. A motion of this character is addressed to the sound discretion of the trial court, (citing cases), and the burden is upon appellant to show an abuse of discretion and prejudice to him, (citing cases). If juror Vincent read the article at all, he could not remember its contents. He said that he read it — that he probably read the article — because he read the Chicago Daily News. . . . The Court explained this to the jury in a manner eminently fair to appellant. . . . We can only assume that the jury answered the trial court’s inquiries truthfully, and, so assuming, we find that no juror except Vincent read the article and that Vincent’s mind was in no way affected by what he had seen or read. Under such circumstances we think appellant has failed to show prejudice resulting to him from the publication of the article and we hold that there was no abuse of discretion on the part of the trial court in the denial of his motion.” (pp. 518, 519.)
Defendant’s specifications 7 and 9 relate to subjects previously discussed in this opinion and require no further attention.
In conclusion it should be stated we have now carefully reviewed and considered every reasonable question advanced by defendant in his brief and find no sound ground for reversal of his judgment and sentence.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an injunction action wherein appeal has been duly perfected from an order of the trial court in ancillary proceedings designed to determine damages embraced within an injunction bond because the plaintiffs below wrongfully obtained the issuance of a restraining order against the city of Florence, Kansas.
The primary thrust of this appeal is to determine the nature of proceedings on an injunction bond.
On the 30th day of January, 1963, Mary A. Alder, John J. Alder and Harry H. Alder (plaintiffs-appellants) filed a petition in the district court of Marlon County, Kansas, stating in substance that the city of Florence (defendant-appellee), a second class municipal corporation, through its governing body, attempted to create a flood control project pursuant to the provisions of G. S. 1949, 12-635, et seq., by the construction of a dike around the city adjacent to the Cottonwood River, the result of. which would damage the plaintiffs, owners of 185 acres of land adjoining the east side of the Cottonwood River. The petition further alleged that in the event the dike, as proposed and planned, is constructed, the land of the plaintiffs would be severely injured and damaged from water overflowing from the Cottonwood River; that G. S. 1949, 12-639 requires that the governing body shall appoint appraisers who shall “assess all damage to any and all property that will be injured or damaged by reason of said improvement;” that the governing body of the city appointed appraisers as directed by the statute; that said appraisers have assessed damages to property which lies within the proposed dike ring; but that said appraisers have not assessed damages which would be incurred by the owners of property lying outside the said proposed dike ring; that the plaintiffs’ land has not been appraised nor have damages which might result to their land by virtue of the proposed dike project been assessed; that plaintiffs have not been given an opportunity to object to the appraisers’ report, nor have they been given notice, all as required by G. S. 1949, 12-640.
The petition further alleged that the city was about to dig up and relocate utilities, close and tear up streets and commence other phases of the proposed project; that the city was about to close the Fifth Street bridge which lies at the east edge of Florence and crosses the Cottonwood River, and was also about to tear up that part of Fifth Street which leads onto the bridge from the west, all of which would remove the usual and direct entry of plaintiffs and other parties from their land to the city. It is alleged these acts would be wholly illegal and would work great and irreparable damage to the plaintiffs, and that the plaintiffs have no adequate remedy at law. Whereupon the plaintiffs prayed for judgment against the defendant enjoining and restraining it and its governing body from doing the aforesaid acts until such time as the city complies with the provisions of 12-639, supra. The plaintiffs further alleged that unless the city and its governing body was forthwith and without notice enjoined and restrained, the plaintiffs would suffer irreparable damage and injury. Whereupon they prayed that a restraining order against the city be granted forthwith.
Pursuant to the allegations of the petition the district court on the 4th day of February, 1963, without notice to the city, issued a restraining order during the pendency of the action, which in material part reads:
“. . . the defendant, its governing body, its agents, employees and servants be restrained1 and enjoined from closing the Fifth Street Bridge lying at the east edge of Florence, Kansas, and from digging up and relocating utilities, closing and tearing up streets and in any other way from proceeding with the construction of the proposed dike project in the city of Florence, Kansas, said order to become effective at such time as plaintiffs lile a good and sufficient surety bond in tire sum of $8,000.00.”
Pursuant thereto a bond dated the 5th day of February, 1963, (and apparently filed with the district court on the 8th day of February, 1963) was executed by Mary A. Alder m principal and S. C. Ludwig (appellant) as surety in the penal sum of $8,000, wherein they bound themselves unto “the city of Florence, Kansas.” The condition of the bond was such that the city of Florence be restrained and enjoined from doing the acts alleged in the petition until the injunction petition filed in the district court could he heard. I£ the plaintiffs in the action prevailed in the injunction suit, then the obligation became null and void; otherwise to be and remain in full force and effect.
The city, without waiving its objection that the petition failed to state facts sufficient to constitute a cause of action, answered on the 20th day of February, 1963.
On the 25th day of March, 1963, the trial court heard the matter on the issues joined by the injunction petition and the answer. At the conclusion of the hearing it sustained the city’s demurrer to the plaintiffs’ evidence, and “the restraining order, together with the injunction, was dissolved.” At the hearing it was determined the city of Florence was proceeding with its flood control project under the provisions of G. S. 1961 Supp., 19-3307, rather than the sections of the statute set forth in the plaintiffs’ petition, and that the plaintiffs had an adequate remedy at law. (At this point, insofar as the record discloses, the appellants concede the restraining order was wrongfully obtained.)
Thereupon the city filed a motion for the court to fix the costs and damages payable “from plaintiff and surety to defendant arising upon the bond” resulting from the failure of the plaintiffs to prevail in their injunction action. The amounts claimed by the city in the motion were as follows:
“D. M. Ward, Attorney for Defendant; costs, fees and expenses .... $ 500.00
“Lawrence Curfman, Attorney for Defendant; costs, fees and expenses...............................................$ 500.00
“Reiss and Goodness, Engineers for Florence; services and expenses. . $ 180.64
“Utilities Service Company, damages for inability to work under contract with defendant, inability to use equipment and wages of superintendent during shutdown ...........................$4,932.90”
Pursuant to the foregoing motion the trial court proceeded to hear the matter by taking evidence. Counsel for the appellants (including S. C. Ludwig, the surety on the bond) objected to all of the items listed “for the reason that the law requires that there be proof of necessity and reasonableness and either actual payment or promise of payment. Some of the other items we contend first are not proper at all under the situation existing here, and if they are proper, only a small part of them are proper.”
The trial court was of the opinion that under the Kansas cases it had authority and jurisdiction “to hear such an item as this in the original case.”
At the hearing on the motion the minutes of the Florence city council meeting of April 1, 1963, were received in evidence. They disclosed that each item claimed in the motion was allowed by the city council on the following condition: “to make expense payable from Alder bond posted with court subject to District Court’s approval.”
Counsel for the appellants objected to any claim being made based on the record of the city.
The foregoing basic objections by counsel for the appellants were made throughout the hearing and overruled by the trial court.
At the conclusion of the evidence the trial court determined the matter in accordance with the following excerpt as it appears in the journal entry (denominated: “Ruling on Demurrer; Finding of Facts; Conclusions of Law; and Decision As a Whole”):
“The demurrer to the defendant’s evidence is overruled.
“The Court holds and determines as a matter of law that the bond as furnished by the plaintiffs at the time the original action was filed was good and sufficient as provided by law and obligated the plaintiffs and/or the bondsman to pay any damages that the defendant City may have sustained by reason of the restraining order and/or temporary injunction, provided the defendant City shows that it sustained any, and only then in the amount which is reasonable and proper.
“It is the decision of the Court that the defendant City did not sustain the damages as alleged and in the amount as alleged and it naturally follows that it is not entitled to full recovery thereunder. It is further noted by the Court that the claims as filed against the City, with particular reference to the claim of the Utilities Service Company, is contingent upon the city making recovery against the plaintiffs in the original action. This indicates to some degree at least that in the event the city does not recover under the approval of the Court the amounts claimed that the City is in truth and fact not liable to the Utilities Service Company. Then, too, the Court is of the opinion that the damages as claimed are unwarranted to some degree and excessive to some degree and that the City and the Utilities Service Company did not take sufficient steps to mitigate its damages and this must under the law be an item of consideration. The Court further finds that the item of Reiss and Goodness for engineering is not sustained and should be disallowed in toto.
“With reference to the claims of the attorneys, the Court is of the opinion that the case was not of sufficient magnitude to justify a multiplicity nor duplicity of attorneys and that instead of allowing $500.00 to each attorney that a total attorney fee of $500.00 should be allowed divided equally between D. M. Ward and Lawrence Curfman. With particular reference to the claim of Utilities Service Company, the Court holds that although the evidence was insufficient to sustain the entire claim and that the amount is excessive and that there was not proper mitigation of damages, the City did sustain some damages and in the opinion of the Court this item is reduced to the sum of $1,000.00.
“It is accordingly the judgment of the Court that the defendant City have and recover judgment against the plaintiffs and their surety in the total sum of $1,500.00 consisting of attorney fees in the sum of $500.00 and damages sustained by and to the Utilities Service Company and the city in the sum of $1,000.00 and the Reiss and Goodness claim being disallowed in toto. Costs to plaintiffs.”
Both parties sought a new trial except that' the city did not ask for a new trial for the amounts fixed as fees for the city’s attorneys. These motions were overruled by the trial court and appeal was duly perfected by the plaintiffs below and S. C. Ludwig, the surety on the bond. No cross appeal having been perfected by the city the claim of Reiss and Goodness, engineers for the city of Florence, in the amount of $180.64, which the trial court disallowed, is not presently before this court on appeal.
Ludwig, through plaintiffs’ counsel below, made a general entry of appearance in the trial court upon the hearing of the motion to fix costs and damages under the bond, and the trial court held the bondsman came under the jurisdiction of the court for- all purposes in making disposition of the motion. This point is not challenged on appeal.
The terms “restraining order” and “temporary injunction” have been clarified in Bowman v. Hopper, 125 Kan. 680, 265 Pac. 743, in the following language:
“. . . While a restraining order does not technically operate as a temporary injunction (except for the briefest practical time, to he followed up with a hearing for a temporary injunction), yet by neglect of the party who procured the restraining order to follow it up or by reason of inaction on the part of the court itself, the restraining order may become, in effect, a temporary injunction, which it appears to have done in the case at bar.” (p. 682.)
Other cases in which this point has been discussed are Newbern v. Service Pipe Line and Mining Co., 126 Kan. 76, 267 Pac. 29; and Messmer v. Kansas Wheat Growers Ass’n., 129 Kan. 220, 282 Pac. 728.
In the instant case the ex parte restraining order issued by the trial court became, in effect, a temporary injunction by reason of the condition imposed in the bond.
It is quite uniformly held that expenses and attorney’s fees may be recovered on the dissolution or vacation of a restraining order or temporary injunction when the same was wrongfully obtained. (Messmer v. Kansas Wheat Growers Ass’n., supra; and cases cited therein.)
Where a restraining order or temporary injunction is wrongfully issued, all expenses incurred therein, which are recoverable on the bond then given, may be recovered whether the determination that the order was wrongfully issued is in the final trial of the case or on a separate hearing pursuant to an application to set aside or vacate the order. (Messmer v. Kansas Wheat Growers Ass’n., supra; and Harlow v. Mason, 98 Kan. 353, 157 Pac. 1175.)
The claim for damages filed by the city of Florence in the instant case is asserted for recovery under the bond given herein. The bond is governed by the provisions of G. S. 1949, 60-1110, which read:
“No injunction, unless otherwise provided by special statute, shall operate, until the party obtaining the same shall give an undertaking, executed by one or more sufficient sureties, to be approved by the clerk of the court granting such injunction, in an amount to be fixed by the court or judge allowing the same, to secure to the party injured the damages he may sustain if it be finally decided that the injunction ought not to have been granted.” (Emphasis added.)
An injunction bond given under the above statute is intended to cover all damages the party enjoined may sustain by reason of the wrongful procurement of the order, except such as are the result of malice and want of probable cause. (Baker v. Craig, 127 Kan. 811, 814, 275 Pac. 216.) Stated in other words, it has been held that no action for the wrongful procurement of a restraining order and/or temporary injunction (other than one upon a bond) is maintainable without a showing of malice. (Jacobs v. Greening, 109 Kan. 674, 202 Pac. 72; and Baker v. Craig, supra.)
The damages recoverable upon an injunction bond are those sustained between the date the restraining order is issued and the date the restraining order and temporary injunction are finally dissolved. Damages accruing after the dissolution of the restraining order or temporary injunction are not recoverable. (Newbern v. Service Pipe Line and Mining Co., supra.)
Generally all defendants who have been enjoined by an order wrongfully obtained, and have obeyed the injunction, and who in consequence of the allowance of the injunction and their obedience thereto, have suffered loss, can claim and recover damages on a bond given for their protection. On the other hand, one not a party to the suit, or who is not a necessary or proper party, is not, in general, entitled to damages. Only persons, who are fairly within the covenant of an injunction bond, can sue thereon. (Kennedy v. Liggett, 132 Kan. 413, 295 Pac. 675; and 43 C. J. S., Injunctions, §278, p. 1053.)
In Underhill v. Spencer, 25 Kan. 71, the party damaged by reason of an injunction wrongfully obtained was entitled to recover on an injunction bond the reasonable fees and charges of his attorney for services in obtaining a dissolution of the injunction, and the actual payment to the attorney of these fees and charges was not a condition precedent to the recovery, it being sufficient that the liability therefor had become vested and absolute. In the opinion the court said:
“. . . In this case the amount was agreed upon and the sum was reasonable. The defendant’s liability was absolute, but the fees had not in fact been paid. With perhaps the single exception of California, the authorities agree that if the liability is fixed and absolute, it is enough; payment is not an essential prerequisite. . . .” (p. 73.)
Turning now to the facts in the instant case with the foregoing rules in mind, the Utilities Service Company, for whom the city of Florence claimed to have been damaged in the sum of $4,932.90, filed a motion in this court to dismiss the appeal on the ground that it had not been served with a notice of the appeal as required by the provisions of G. S. 1949, 60-3306.
This motion has no merit because the Utilities Service Company is not an adverse party to the action herein. Insofar as the record discloses, it seeks to assert rights as a third party beneficiary under the bond given by the appellants.
By the terms of the bond Mary A. Alder as principal and S. C. Ludwig as surety bound themselves in the penal sum of $8,000 unto the city of Florence. Under the decisions of this court the statute (60-1110, supra) pursuant to which the injunction bond was given, is incorporated in and made a part of the bond. The bond is designed to secure to the party injured the damages he might sustain if it finally be decided that the injunction ought not to have been granted. The Utilities Service Company, not being a party to the injunction action and not having been restrained or enjoined by the action of the court, is beyond the protection afforded in the bond to the party injured. On the facts in this case, the city of Florence is the only party protected by the bond. It is the only party entitled to recover the damages which it has sus tained by reason of the injunction which ought not to have been granted.
The motion filed by the city to fix the costs and damages payable arising upon the bond resulting from the failure of the appellants to prevail in their injunction action claimed damages on behalf of Utilities Service Company in the sum of $4,932.90. The evidence presented to the trial court on this point at no place disclosed that the city of Florence was liable to the Utilities Service Company for this amount. The conditional allowance of this claim by the city council of Florence did not establish liability on the part of the city to the Utilities Service Company. By this action the city merely sought to shift the claim of Utilities Service Company to the appellants as a liability under the bond. The Utilities Service Company not being a party to the action and not embraced within the condition of the bond is not entitled to recover under the bond.
The record discloses the contract between the city of Florence and the Utilities Service Company carried the following clause:
“In the event of any unavoidable or unforeseen accident, action, or happening, or strike or railroad shipping embargo, the time for the completion of said contract shall be extended beyond the 45 days to the extent of such delay and not be included insofar as applying the agreement for paying liquidated damages is concerned.”
This clause had reference to a provision calling for $30 a day liquidated damages payable by the contractor to the city for delay in completion of the contract with the city.
Upon completion of the contract by Utilities Service Company with the city it was paid by the city the contract price of $11,978.40 in full, without any deduction having been made as liquidated damages for delay by reason of the foregoing provision in the contract.
The city has paid the Utilities Service Company nothing upon the $4,932.90 item claimed against the bond. Nowhere in the record is there any indication that the city has acknowledged liability to the Utilities Service Company for its claim or any part thereof. Neither does the record disclose that any action has been filed against the city for such claim, nor that any determination has been made of such claim in a court of law. Whether the Utilities Service Company could establish liability on the part of the city of Florence for the items covered by this claim in an independent action against the city is not a question for determination on this appeal, and the question was not open for the trial court to make such determination at the hearing on the city’s motion to fix damages under the bond.
We must conclude that the lower court erred in allowing $1,000 with reference to the claim of Utilities Service Company, payable under the injunction bond.
Was the allowance of the city’s costs, fees and expenses for the city’s attorneys in procuring the dissolution of the restraining order and injunction in the sum of $500 proper?
Long ago in Underhill v. Spencer, supra, this court in the year 1881 said concerning attorney’s fees and charges in an action on an injunction bond:
“. . . But the damages which flow from an injunction order are sustained after the suit is commenced and order made. They are not strictly assessable in that action, but only in a subsequent suit. And that suit is simply on the bond for damages. It is an independent action, but an outgrowth of and founded upon the injunction action. . . .” (p. 73.)
This language was quoted and approved as late as 1963 in City of Wichita v. Krauss, 190 Kan. 635, 640, 378 P. 2d 75.
Whether the trial court had jurisdiction to assess costs and damages under the bond in the original injunction action, as here, or whether the city’s remedy, if any, is limited to a separate and distinct action on the bond, was answered by this court in Texas Const. Co. v. H. & P. E. Local Union No. 101, 180 Kan. 393, 304 P. 2d 498. There the lower court assessed the costs and damages in the original injunction action with respect to the allowance of attorney’s fees and this court affirmed, saying:
“In the first place, the attempt to recover costs and damages under the bond was not an action for the ‘recovery of money’ in the strict sense of the word. It arose out of the injunction action, was purely equitable in nature, and under the circumstances plaintiff was not entitled to a trial by jury. The allowance of costs and damages, which included the item of expense incurred by defendant for attorney fees, did not constitute an allowance of ‘attorney fees,’ as such. The ruling of the lower court was fully warranted under the authority of Messmer v. Kansas Wheat Growers Ass’n, 129 Kan. 220, 282 Pac. 728, in which a similar question was considered. See also Harvey v. Majors, 129 Kan. 556, 283 Pac. 663, and Kennedy v. Liggett, 132 Kan. 413, 417, 295 Pac. 675.
“. . . the entire proceeding, from beginning to end, being one purely equitable in nature, the trial court possessed power and authority to make a full and final adjudication of all matters properly before it and was not compelled to leave the matter now under consideration for separate and future litigation. (Row v. Artz, 168 Kan. 71, 73, 211 P. 2d 66.)
“In the final analysis, actually only one proposition is presented by this appeal. By the terms of the injunction bond plaintiff and its surety undertook to pay all costs and damages, not exceeding $1,000, incurred by defendant, in the event it should ultimately be determined that the injunction was wrongfully granted. That question was answered in the former appeal. The bond means just what it says, and we know of no reason why defendant should be precluded from recovering, in the manner followed, costs and damages incurred by it in resisting the injunction action.” (pp. 395, 396.)
The case of Texas Const. Co. v. H. & P. E. Local Union No. 101, supra, was distinguished in City of Wichita v. Krauss, supra, at page 640, on the ground that the appellee Krauss in the latter neither alleged nor proved that the temporary injunction was wrongfully issued and the case was dismissed before proceedings on the bond were instituted, while in the former the temporary injunction was wrongfully issued and the proceedings for assessment of damages on the injunction bond were commenced before the case was dismissed.
It is quite uniformly held that expenses and attorney’s fees may be recovered on the dissolution or vacation of a restraining order or temporary injunction when the same was wrongfully obtained. (Messmer v. Kansas Wheat Growers Ass’n., supra.)
In Garden Plain Farmers Elev. Co. v. Kansas Wheat Growers Ass’n., 128 Kan. 218, 276 Pac. 799, it was held:
“Costs and expenses paid out and obligations for attorneys’ fees incurred in procuring the dissolution of a restraining order may be recovered from the signers of a bond to procure that order where it restrained the persons to whom it was directed from doing what they had a legal right to do.” (Syl.)
In all cases heretofore cited in this opinion, and in all cases cited in City of Wichita v. Krauss, supra, at page 640, except the case of Texas Const. Co. v. H. & P. E. Local Union No. 101, supra, the action brought to recover costs and expenses paid out and obligations for procuring the dissolution of a restraining order or temporary injunction wrongfully obtained was an independent action filed by the party damaged against the principal and the sureties on the injunction bond to recover his damages.
On the authority of Texas Const. Co. v. H. & P. E. Local Union No. 101, supra, we hold it was proper for the trial court to assess costs and damages occasioned to the city by a proceeding in the original injunction action — that the trial court had jurisdiction to determine the costs, fees and expenses of the city’s attorneys incurred in procuring the dissolution of the restraining order and temporary injunction on the city’s motion to fix costs and damages.
On the evidence presented to the trial court the claims of D. M. Ward in the amount of $500 and of Lawrence Curfman in the amount of $750 for costs, fees and expenses of the city’s attorneys were conditionally approved by the city council of Florence in the amount of $500 for each.
While the conditional allowance made by the city of Florence of such fees to its counsel did not obligate the city to pay a definite or fixed sum to these attorneys for their services, we nevertheless hold under the Texas Const. Co. case these matters, all having arisen out of the injunction action before the trial court, and being purely equitable in nature, authorized the trial court in the exercise of its equitable powers to make a full and final adjudication of all matters properly before it. In this connection it was authorized to make a determination concerning a reasonable allowance to the city for its attorneys.
After hearing the testimony of various attorneys, the trial judge, being a lawyer in his own right and not without knowledge concerning the value of legal services (Bennett v. Bennett, 175 Kan. 692, 266 P. 2d 1021), allowed $500 to be divided equally between the attorneys for the city. We cannot say upon the record here presented this was an unjust or an unreasonable allowance. Such allowance was amply supported by the evidence.
The appellants contend the trial court erred “in Assessing Damages and Rendering Judgments Against All Three Plaintiffs and Bondsman and in Favor of Defendant City,” where only Mary A. Alder as principal and S. C. Ludwig as surety, signed the bond. John J. Alder and Harry H. Alder, also plaintiffs below, did not sign 'the bond and were not named as principals in the bond.
Recovery in the instant case is limited to the specific provisions of the bond, the conditions imposed therein, and the provisions of the statute pursuant to which the bond was given. Under rules heretofore stated, the trial court erred in rendering a judgment against ,all plaintiffs below and the bondsman, without regard to the specific provisions of the bond. The judgment insofar as it seeks to operate against John J. Alder and Harry H. Alder, who were not named as principals in the bond and did not sign the bond, is erroneous.
The judgment of the lower court against Mary A. Alder and S. C. Ludwig in the sum of $500 for attorneys’ fees is affirmed, but the judgment of tire lower court against John J. Alder and Harry H. Alder, and the judgment for damages sustained by and to the Utilities Service Company in the sum of $1,000 is reversed.
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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 a petition seeking specific performance of an agreement for the sale of land.
The facts as disclosed by the second amended petition must be presented in considerable detail.
The defendant, Robert Hare, was the owner of a three-quarters section of land in Ottawa County' Kansas. The land was used solely for grazing cattle and Carl Nelson claimed a lease on the land for the 1962 grazing season. The pleader did not know the terms, duration or form of the purported lease and could not plead whether or not the claim was valid.
Hare retained James H. Seng, a real estate broker of Salina, Kansas, as his agent to obtain a purchaser for the land. The plaintiff, George H. Wallerius, became a willing purchaser and on February 20, 1962, gave the agent a check for earnest money in the sum of $5,000 and executed an instrument designated “agreement for warranty deed.” The agreement contained the usual provisions, described the land and provided:
“And the said party of the second part hereby covenants and agrees to pay the Party of the first part the sum of Twenty-eight Thousand eight hundred ($28,800.00) DOLLARS, in the manner following: Five Thousand (5,000.00) DOLLARS, cash in hand, paid as earnest-money, the receipt of which is hereby acknowledged, and balance to be paid upon approval of title. Full possession to be given 2nd party on or before April 1, 1962. This contract must be accepted on or before the 1st day of March, 1962, or it automatically becomes cancelled at the option of the party of the 2nd part.” (Emphasis supplied.)
On February 20, 1962, the agent forwarded the agreement and the check to Hare accompanied by a letter which read in part:
“‘There are only two provisions that are not absolute. One is the possession clause, and the other is the acceptance of the sale by you on or before March 1, 1962.
“ 1 do not feel that the tenant is being fair to you, but I do think that he will let you cancel his lease for a nominal sum.
“ ‘It is barely possible that, should you not be able to deliver possession, that my client might accept the property subject to tenants rights. We will cross that bridge if and when we get to it.”
On February 28, 1962, having received the agreement and the Five Thousand Dollar check, Hare transmitted a telegram to his agent, Seng, containing the following message:
“Accept offer Wallerius providing obtain cancellation pasture lease from Nelson any litigation lawyers fee or damages paid by purchaser.”
Also on February 28, 1962, Hare transmitted a telegram to Carl Nelson, the tenant, containing the following message: “Sold pasture: must cancel lease for 1962.”
Seng informed the plaintiff, Wallerius, of the receipt of the telegram whereupon he, on March 1, 1962, transmitted a telegram to Hare containing the following message: “Accept counter-proposal via telegram in connection with contract to purchase land in Ottawa County, Kansas. Letter follows.” which was delivered to the defendant on March 1, 1962, 2:00 P. M., Pacific Standard Time.
After receipt of the above telegram Hare transmitted to his agent, Seng, a telegram on March 2, 1962, 7:45 A. M., Pacific Standard Time, containing the following message: “Reed offer today $32,000.00 net to me. Therefore withdrawing land from sale. Thanks for help. Will contact you when ready to sell.”
The letter referred to in the telegram dated March 1, 1962, from Wallerius to Hare, was signed by the agent and read in part:
“Mr. Wallerius sent you a telegram of acceptance of your counter proposal this afternoon, which you will have received long before receipt of this letter.
“In checking with the telegraph office, I found that they had been unable to obtain an answer at the Nelson residence, so I suggested they contact Mrs. Nelson at her place of work here in Salina. I also requested that they notify me of delivery of the message to the Nelsons, but because of rules governing giving out information in connection with telegrams, they did not wish to supply me with any information in connection with it. They finally agreed to call me if it were or were not delivered, but instead, they asked Mrs. Nelson to call me, which she did. She seemed to accept the message completely and give no indication whatever of any unwillingness to abide. She did want to know who had bought it and what they had paid. I didn’t figure it was any of her business, but rather than antagonize her, I give her the information. The purchaser was sitting in my office listening.
“It appears that we should have no further difficulty, and I will anticipate receipt of the original and copy of the signed contract, along with the check, which I will convert into a Cashier’s Check. You may instruct me to deduct the commission therefrom, and I will mail you a Cashier’s Check for the balance. Please also send the abstract of tide, so that we may proceed with extension and examination.”
We are not informed as to the date on which the letter was received.
The trial court sustained a demurrer to the second amended petition alleging the above facts for the reason that the petition did not state facts sufficient to constitute a cause of action. In just what particular the facts are insufficient is not stated.
The appellees argued in the court below and contend here that their telegram was not an acceptance of appellant’s offer but indicated a willingness to accept appellant’s offer upon cancellation of the pasture lease and that appellees by their telegram made cancellation of the pasture lease a condition precedent to the formation of a contract. Appellees state:
“Treating defendant’s telegram of February 28, 1962, as a counter-offer, plaintiff, on March 1, 1962, sent a telegram to defendant as follows:
“ ‘Accept counter-proposal via telegram in connection with contract to purchase land in Ottawa County, Kansas. Letter follows.’
“While this message may have bound plaintiff to pay any expenses in curred, or damages assessed against defendant in attempting to obtain cancellation of the pasture lease, it certainly does not constitute a contract between plaintiff and defendant for the purchase and sale of the land. Cancellation of the pasture lease was still a condition precedent to the formation of that contract.
“In order to establish a completed contract for the purchase and sale of this land, it would be essential that plaintiff be able to plead and prove fulfillment of this condition. ...”
We suggest that it would be rather a harsh rule which would make appellant hable under its telegram, “accepting counter-proposal,” for the payment of “any expenses incurred, or any damages assessed against defendant in attempting to obtain cancellation of the pasture lease” and place no responsibility whatsoever upon appellees in connection with the cancellation of such lease. However, we do not care to base our decision upon this limited issue.
We agree with appellee that the telegrams created a condition precedent.
The word “provided” when used in a contract is usually used in the conjunctive sense. As so used the word means “on condition” and a condition precedent is created. Webster’s New Twentieth Century Dictionary, Unabridged, Second Edition, defines “provided” as follows: “on condition; on these terms; this being understood, conceded or established; if: frequently followed by that.”
The word “provided” is defined in 73 C. J. S., Provided, p. 266, as follows:
“It has been said that there has been much nice discussion on the word, and it is regarded as an apt word to create, express, or introduce a condition or exception, or for creating a condition precedent; and it is an apt and appropriate word to indicate an intention to give contingently. It frequently indicates a condition, and it has been said that ordinarily it indicates that a condition follows; and is recognized as implying a condition without the addition of any other words.”
Since we admittedly have involved a condition precedent, the condition being the cancellation of the pasture lease to make possible the delivery of possession by April 1, 1962, the question is, what application is to be made of the condition?
The appellees contend that the cancellation of the lease was a condition precedent to the formation of a contract and that it was essential that appellant plead definite fulfillment of the condition, i. e., that the lease was actually cancelled.
The appellant contends that the condition contained in appellees’ telegram and accepted by appellant was incorporated in the original offer and a complete contract was consumated but that the cancellation of the lease was a condition precedent to requiring performance of the contract which was complete in all of its terms. Appellant further contends that having bound himself to pay any expenses incurred, or damages assessed against appellees in their attempt to obtain cancellation of the pasture lease, they were bound to exercise a reasonable effort to cancel the lease.
We are inclined to agree with appellant’s contention.
A condition precedent is something that it is agreed must happen or be performed before a right can accrue to enforce the main contract. It is one without the performance of which the contract, although in form executed and delivered by the parties, cannot be enforced. A condition precedent requires the performance of some act or the happening of some event after the terms of the contract, including the condition precedent, have been agreed on before the contract shall take effect. (See Words and Phrases, Conditions Precedent, Vol. 8, pp. 713-785.)
While the condition precedent must have happened before the contract can be enforced or relief sought in the way of specific performance, the party who has demanded the condition precedent cannot hinder, delay or prevent its happening for the purpose of avoiding performance of the contract. We believe the rule announced in Talbott v. Nibett, 167 Kan. 138, 206 P. 2d 131, is applicable here. On page 146 of the opinion it is stated:
“The rule is clear and well settled, and founded in absolute justice, that a party to a contract cannot prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition. (Dill v. Pope, 29 Kan. 289; Supply Co. v. Cement Co., 91 Kan. 509, 512 138 Pac. 599; Briney v. Toews, 150 Kan. 489, 495, 95 P. 2d 355.) And this is the universal rule. (12 Am. Jur., Contracts, §§ 381, 386; 2 C. J., Agency, § 439, p. 772; 13 C. J., Contracts, §§ 721, 722, 723; Restatement, Contracts, § 315.)”
Considering the facts as alleged in the petition, in the light most favorable to the pleader, as we are bound to do (Belin v. Hoover, 193 Kan. 29, 391 P. 2d 1021; Beggerly v. Walker, 194 Kan. 61, 397 P. 2d 395) our responsibility is to determine whether they raise a reasonable inference that the pasture lease was cancelled in fact, if not in deed, or could have been cancelled by appellees had they not desired to avoid performance of the contract of sale because they had received an offer of a higher price.
A brief review of the facts most favorable to appellant discloses that the appellees had at least until April 1, 1962, in which to seek cancellation of die lease, yet they attempted to cancel the agreement by telegraph March 2, 1962, the next day after their condition was accepted by appellant, because they had received an offer of $32,000.00 net to them. They did so after being informed that Mrs. Nelson, the wife of the lessee, on whose decision reliance appears to be placed, “. . . seemed to accept the message [telegram cancelling pasture lease] completely and give no indication whatever of any unwillingness to abide. . . .” The agent also informed the appellees prior to the attempted cancellation that “It appears we should have no further difficulty, . . .”
It appears that the facts as alleged in the second amended petition leave much for the appellees to explain by way of answer if they are to avoid performance. We must conclude that the second amended petition states facts sufficient to constitute a cause of action for specific performance of the contract for a warranty deed.
Other contentions raised by appellees can best be disposed of after the case is heard on its merits.
The judgment is reversed with instructions to overrule the demurrer to the second amended 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 and judgment of the district court of Lincoln County, Kansas, denying appellant’s motion under K. S. A. 60-1507 to vacate and set aside a prior judgment and sentence of the court in a criminal action.
There is no dispute between the parties as to the facts controlling the single question raised by the appeal. They appear from an agreed statement, signed by counsel and approved by the trial court, which reads:
“In accordance with Rule Six (p) of the Rules of the Kansas Supreme Court, the following agreed statement of fact is submitted in lieu of a formal abstract in connection with the forthcoming appeal of this matter to the Supreme Court of Kansas by John Lawrence Bergin:
“1. The appellant herein was the defendant in an action entitled The State of Kansas v. John Lawrence Bergin, Case No. 282 in the District Court of Lincoln County, Kansas; wherein the appellant was charged by the State of Kansas with Grand Larceny of an automobile and with having in his possession firearms, said appellant having been previously convicted of a felony.
“2. The Complaint was filed in the County Court of Lincoln County, Kansas, on the 17th day of September, 1962.
“3. The appellant appeared before the County Court of Lincoln County, Kansas, on the 17th day of September, 1962. He appeared without counsel and waived preliminary hearing; whereupon he was bound over to the next term of the District Court. Upon failure to post bond for his appearance at the District Court, appellant was committed to the Lincoln County Jail to await trial.
“4. On that same date, to-wit, the 17th day of September, 1962, an Information was filed in the District Court of Lincoln County, Kansas, by the County Attorney charging appellant in two counts, namely, Grand Larceny and Unlawful possession of firearms.
“5. On October 5, 1962, the appellant appeared before the District Court of Lincoln County, Kansas, without counsel, and the Court appointed W. W. Urban, a member of the Lincoln County Bar, to represent and defend the appellant in that case.
“6. After appointment of counsel, the Court granted a recess to allow appellant time to confer with his counsel, and after said recess appellant announced himself ready for arraignment.
“7. After formal arraignment, the appellant entered his plea of guilty to both counts of the Information and the Court accepted his plea and passed sentence upon appellant, all on the 5th day of October, 1962. Appellant was sentenced to be confined in the Kansas State Penitentiary at Lansing, Kansas, at hard labor for a period of not less than five nor more than fifteen years on count one, and for a period not to exceed five years on count two; said sentences to run concurrently.
“8. On July 27, 1964, appellant filed a motion in the District Court of Lincoln County, Kansas, under the provisions of Section 60-1507 of the Revised Code of Kansas, to vacate the judgment and sentence entered on October 5, 1962, in Criminal Case No. 282, on the ground that counsel was not appointed for him at his preliminary hearing; and at the same time appellant requested that counsel be appointed to represent him upon presentation of his motion.
“9. On August 11, 1964, the District Court appointed W. W. Urban, a member of the Lincoln County Bar, to represent appellant on his motion.
“10. On September 10, 1964, the District Court entered an order, finding that it was not necessary to produce appellant in person from the Kansas State Penitentiary for the hearing on his motion; that no rights of the appellant under the Constitution of the United States or the Constitution of the State of Kansas were denied or infringed; that the records of Case No. 282 showed conclusively that the appellant was not entitled to the relief asked for, and the application of the appellant was thereupon summarily denied.
“11. That the appellant does appeal from the order and judgment of the District Court entered on September 10, 1964.
“12. That copies of the order appealed from the notice of appeal, Appellant’s motion for waiver of Rule 3 and for filing of a typewritten abstract and brief, and the court’s order allowing same, are attached hereto and made a part hereof.”
Supplementing what has just been quoted it should be stated that, in addition to matters not specifically referred to in the aforesaid factual statement, the journal entry of judgment in the original criminal action recites:
"The Court further finds that the judgment and sentence of the Court entered in said Criminal Case No. 282 on October 5, 1962, was regular and in conformity with Kansas law; . . . and that no constitutional right of the plaintiff was violated by failure to appoint counsel at his preliminary hearing in that plaintiff waived preliminary hearing, and no rights of the plaintiff were lost."
Both in his brief and on oral argument of the case on its merits appellant’s counsel, with commendable candor, concedes that the all-decisive question presented for appellate review in the case at bar is whether an indigent defendant has a constitutional right to have counsel appointed by the court to represent him at a preliminary hearing. With equal candor he also concedes that, procedurally speaking, the judgment and sentence in the instant case are regular and in conformity with the present laws of Kansas; and that, under a long and unbroken line of decisions, down to and including State v. Daegele, 193 Kan. 314, 393 P. 2d 978, certiorari denied, 379 U. S. 981, 13 L. ed. 2d 571, 85 S. Ct. 686, and the numerous decisions therein cited, this court has been committed to the rules adhered to in State v. Nallieux, 192 Kan. 809, 391 P. 2d 140, certiorari denied, 379 U. S. 864, 13 L. ed. 2d 67, 85 S. Ct. 131, where it is said and held:
“See, also, State v. Crowe, 190 Kan. 658, 378 P. 2d 89, where it was further held:
“ ‘A preliminary hearing in a felony case is not a trial in the sense that word ordinarily is used. Absent a statute requiring appointment of counsel, without request therefor, a defendant’s constitutional rights are not invaded by waiving his preliminary examination without counsel.’ (Syl. f 1.)’’ (p. 811.)
Having made the concessions, heretofore indicated, appellant contends that, notwithstanding what the law of this state may have been in the past, the recent decision of the Supreme Court of the United States in the case of Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733, requires a complete reappraisal of this entire area of Kansas law and that the previous Kansas rule on the right to appoint counsel at a preliminary hearing, as stated in State v. Daegele, supra should now be overruled.
In making the foregoing argument appellant wholly overlooks the fact that, following Gideon v. Wainwright, supra, this court reviewed and reappraised its cases in the light of that decision and failed to find anything therein which would either warrant or require the overruling of its decision in State v. Daegele, supra. See, e. g., State v. Cox, 193 Kan. 571, 396 P. 2d 326, where, under conditions and circumstances quite similar to those here involved, 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 prebminary examination, and no claim is made that at his trial evidence was introduced with respect to his testimony at his prebminary 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 prebminary examination. His contention with respect thereto, now urged in this appeal, is held to be without merit.” (pp. 572, 573.)
For another decision of like import see State v. Young, 194 Kan. 242, 398 P. 2d 584, where, after quoting the foregoing quotation from the Cox case verbatim, we held:
“Under the facts, conditions and circumstances set forth at length in the opinion, and following the numerous decisions therein cited, it is held that an indigent defendant does not have a constitutional right to have an examining magistrate furnish him with counsel for his preliminary hearing.” (Syl.)
And in the opinion said:
“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 be furnished counsel at his preliminary hearing.” (pp. 243, 244.)
See, also, State v. Richardson, 194 Kan. 471, 399 P. 2d 799, where it is said and held:
. . 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 C.C.A. 1963], cert. den. 375, U. S. 959, 11 L. Ed. 2d 317, 84 S. Ct. 449 [1963].)” (p. 485.)
For other recent decisions, dealing with the same subject and reaching like conclusions, see State v. Jordan, 193 Kan. 664, 666, 396 P. 2d 342; White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333; State v. King, 194 Kan. 629, 400 P. 2d 975, and State v. Blacksmith, 194 Kan. 643, 400 P. 2d 743 (this day decided).
In the face of the agreed facts, conditions and circumstances set forth at length in this opinion, and based on what is said and held in the decisions heretofore cited, we have no difficulty in concluding that the sole and all-decisive question raised by appellant in this case lacks merit and cannot be upheld. It follows the district court did not err (1) in holding that no constitutional right of the appellant was violated by failure of the examining magistrate to appoint counsel for him at his preliminary hearing or (2) in refusing to vacate and set aside its original judgment and sentence in the criminal action. We are convinced these conclusions become inescapable when it is kept in mind that, under the facts as stipulated, the record is devoid of any showing whatesoever, indeed it is not even claimed, that appellant’s rights were in any way prejudiced by the fact he was not represented by counsel at his preliminary hearing.
Finally it should be stated that a further ground for affirmance of the trial court’s judgment is to be found in our decisions. The well-established rule of this jurisdiction is that any claimed irregularities pertaining to a preliminary examination and/or preliminary hearing are deemed to be waived where the defendant in a criminal action enters a voluntary plea of guilty in the district court. See, e. g., Foster v. Hudspeth, 170 Kan. 338 (Syl. ¶ 3), 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; State v. Daegele, 193 Kan. 314, 316, 317, 393 P. 2d 978; State v. Jordan, 193 Kan. 664 (Syl. ¶4), 667, 396 P. 2d 342, and White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333.
The order and judgment of the district court is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a proceeding instituted pursuant to K. S. A. 60-1507 in which the district court of Brown County, Kansas, denied the petitioner’s motion for discharge from the Kansas State Penitentiary. Appeal has been duly perfected.
The only question is whether the petitioner, an indigent, was entitled to court-appointed counsel at his preliminary hearing in a criminal proceeding which resulted in his conviction.
The petitioner was charged with burglary in the second degree and grand larceny in one count, and burglary in the second degree and petty larceny in a second count. Upon the petitioner’s arrest pursuant to a warrant charging such offenses, he was taken before the judge of the county court of Brown County for his preliminary hearing. The journal entry discloses the petitioner waived the reading of the complaint and also waived the preliminary hearing. Thereupon an information was filed in the district court of Brown County, Kansas, charging the petitioner with burglary in the second degree and grand larceny (the second count having been dismissed).
At the petitioner’s arraignment in the district court on the 30th day of July, 1959, counsel was appointed to represent him. After consulting with his court-appointed counsel, the petitioner waived the reading of the information and entered a voluntary plea of guilty to burglary in the second degree and grand larceny.
In due course the petitioner was sentenced to the Kansas State Penitentiary, and on the 15th day of July, 1964, filed his motion for discharge pursuant to K. S. A. 60-1507 (a). At the hearing on the motion the petitioner was represented by the same attorney who was appointed to represent him in the criminal proceeding.
The district court denied the appellants motion for discharge and his motion for rehearing, whereupon he filed his notice of appeal to the Supreme Court on the 25th day of September, 1964.
The thrust of the appellant’s argument is that no man can be bound by a waiver of his rights, unless such waiver is distinctly made, with full knowledge of the rights which he intends to waive. (Citing, 56 Am. Jur., Waiver, § 15, pp. 115, 116; and Carnley v. Cochran, 369 U. S. 506, 8 L. Ed. 2d 70, 82 S. Ct. 884 [1962].) It is argued the record does not show the appellant knew in fact what he was waiving at his preliminary hearing.
The question raised by the appellant on his appeal has been decided by this court since the United States Supreme Court decisions of Hamilton v. Alabama, 368 U. S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157 (1961), and White v. Maryland, 373 U. S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050 (1963), (upon which the appellant relies) 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), on facts almost identical to those in the case at bar, which held that failure to appoint counsel for an indigent defendant in a criminal proceeding at a preliminary examination is not error. The court further held 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 the district court. The Daegele case has been upheld many times. (State v. Cox, 193 Kan. 571, 396 P. 2d 326; State v. Jordan, 193 Kan. 664, 396 P. 2d 342; and State v. Richardson, 194 Kan. 471, 399 P. 2d 799.)
For a recent discussion of this question in view of Federal Supreme Court decisions, see State v. Richardson, supra.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Price, J.:
The question in this case is whether defendant county is immune from liability for its alleged negligence in the operation of a recreational area owned and maintained by it.
Summarized quite briefly, the petition, in its first cause of action, alleged the following:
For some years, pursuant to statutory authority, the county owned, maintained and operated the Lake Afton recreational area. A dock had been extended out into the lake and a pump installed on it by means of which water was pumped and furnished to the owner of adjacent property. The recreational facilities at the lake were available for the use of the general public. Certain concession rights had been granted by contract to a private individual. Swimming always had been permitted at the lake, but certain portions thereof had been determined to be unsafe and at one time the public had been so warned by signs. Sometime prior to the date in question a “no swimming” sign had been posted on the dock above mentioned, but apparently had been destroyed or removed and had not been replaced.
On May 26, 1962, plaintiff, a boy 14 years of age, dived off of the dock into Water which was only three to four feet deep. At the time there were no signs or other warning that the water where he dived was so shallow. Plaintiff received severe personal injuries and brought this action against the county alleging numerous grounds of negligence, such as failing to erect a barrier to prohibit access to the dock, in failing to provide and maintain warning signs, and in failing to provide adequate supervision at the immediate location where persons, particularly children, would be likely to swim. Recovery was sought in the amount of $75,000.
The second cause of action incorporated certain allegations contained in the first cause of action and sought recovery on the theory that defendant county, in the operation of such recreational facilities, was guilty of maintaining an “attractive nuisance.”
Defendant county filed a motion to strike various allegations in both causes of action and, in the alternative, to make definite and certain. The motion was treated and considered by the court and counsel for both parties as a demurrer. On December 2, 1963, it was sustained as to the first cause of action and overruled as to the second cause of action.
Plaintiff has appealed from the order sustaining the demurrer to his first cause of action and the correctness of that ruling is the question in this appeal. Defendant county has not cross-appealed from the order as to the second cause of action and the correctness of that ruling is not here involved.
Plaintiff contends that (1) the county was engaged in a proprietary function in maintaining and operating Lake Afton, a recreational area, and particularly in maintaining and operating the dock from which he dived; and (2) if the county was engaged in a governmental rather than a proprietary function, this court should discard the ancient and outmoded “governmental immunity” doctrine as it has heretofore discarded the “charitable immunity” doctrine in Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934.
Defendant county, on the other hand, contends that (1) all county functions are governmental and, absent a statute to the contrary, the county has no liability for negligence in maintaining a recreational facility; (2) there is a distinction between municipalities (cities) and counties, and (3) if the doctrine of governmental immunity is to be abolished it should be done by the legislature and not by this court.
We consider it unnecessary here to enter into a discussion of the long established rule in this state pertaining to the liability or non-liability of a city for negligence — depending upon whether at the time the city was engaged in a “proprietary” or “governmental” function. A thorough discussion is found in Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227, 5 A. L. R. 2d 47, and Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.
Counsel for plaintiff have cited us no case from this jurisdiction where — with respect to liability of a county for negligence — a distinction has been made between governmental and proprietary functions, and our research has failed to disclose any such decision. Cases dealing with tort actions against counties uniformly have, held that in the absence of a statute imposing liability, counties are not liable for negligence — irrespective of the nature of the function involved. The following cases, although factually unlike the case before us, illustrate and support the rule just stated.
The case of Eikenberry v. Township of Bazaar, 22 Kan. 556, 31 Am. Rep. 198, discusses the distinction between counties and townships on the one hand — and cities on the other. Rather than quote at length from it we incorporate herein by reference the entire opinion of the case.
In Silver v. Clay County, 76 Kan. 228, 91 Pac. 55, it was held:
“Counties are involuntary quasi — corporations and are mere auxiliaries to the state government and partake of the state’s immunity from liability. They are in no sense business corporations.” (Syl. 1.)
“A county is not liable in damages for the negligent or wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.” (Syl. 2.)
To the same effect is Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, in which it was held:
“Counties are mere auxiliary agencies of the state government, and, like the state, are immune from liability on account of damages occasioned by the manner in which they exercise or fail to exercise their governmental powers.” (Syl. 1.)
and also note what was said at pages 445 and 446 of the opinion.
In Rosebaugh v. Allen County Comm’rs, 120 Kan. 266, 243 Pac. 277, appears the following statement:
“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.” (p. 267.)
Again, in Robertson v. Labette County Comm'rs, 122 Kan. 486, 252 Pac. 196, it was said:
“This action is not founded in tort, but if it were the county would be liable only to the extent it is made so by statute (citing), and there is no statute making the county liable for injuries such as are claimed in this case.” (p. 487.)
In Isham v. Montgomery County Comm'rs, 126 Kan. 6, 266 Pac. 655, it was held:
“The rule announced in (citing cases), to the effect that a county is not liable in damages for the negligent or wrongful acts of its board of county commissioners unless such liability is expressly imposed by statute or necessarily implied therefrom, adhered to and followed.” (Syl. 4.)
and said:
“We conclude that the petition might state a good cause of action in tort against an individual or corporation, but not against a county, which is a quasi corporation, an auxiliary to the state government, unless the liability is expressly imposed by statute or necessarily implied therefrom. No such statute is pointed out and we know of none that covers the complaint herein made.” (p. 8.)
The general rule was announced again in Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544, where it was said:
“In many decisions this court has discussed the nature of the county and has often called attention to distinctions between counties and cities as legal entities. The county is not a corporation in any ordinary sense. It has at times been designated as an ‘involuntary quasi corporation.’ It is an arm and agent of the state set up to perform certain governmental and political functions. As such it partakes of the immunity which inheres in state sovereignty.” (citing.)
“It is equally well established that counties are not liable for damages in actions for tort unless such liability is clearly imposed by statute.” (citing.) (p. 479.)
The following cases also support the rule: Fisher v. Township, 87 Kan. 674, 678, 679, 125 Pac. 94, 41 L. R. A. (NS) 1074, Ann. Cas. 1914 A 554; Anderson v. Cloud County, 90 Kan. 15, 18, 132 Pac. 996; Woolis v. Montgomery County, 116 Kan. 96, 98, Syl. 1, 226 Pac. 244; Kebert v. Wilson County Comm’rs, 134 Kan. 401, Syl. 1, 5 P. 2d 1085; Clapham v. Miami County Comm’rs, 158 Kan. 685, 149 P. 2d 344; Wolf v. Fidelity & Deposit Company of Maryland, 174 Kan. 402, 406, 256 P. 2d 862, and Wommack v. Lesh, 180 Kan. 548, 551, 552, 305 P. 2d 854.
And to the same effect see 14 Am. Jur., Counties, §§ 48, 49, pp. 215, 216.
There are at least two instances in which the legislature has provided for tort liability of a county — thus recognizing that absent such statute the rule of immunity would prevail. K. S. A. 68-301 relates to liability for a defective bridge, culvert or highway, and K. S. A. 12-2601 et seq., provides for liability for injury resulting from the negligent operation of a motor vehicle, under the limited conditions and circumstances enumerated.
K. S. A. 19-2819 et seq., under the provisions of which the county acquired, established and maintains the recreational area in question, contains nothing creating a statutory liability of the county for negligence.
Notwithstanding plaintiff’s argument as to the application of § 18 of the Bill of Rights, which provides that all persons, for injuries suffered in person, shall have remedy by due course of law, we decide this case — not on the basis of the “governmental — proprietary” function doctrine as applied to cities — but on the basis of the many decisions of this court to the effect that in the absence of a statute imposing liability — a county is not liable in damages for negligence. Should the legislature see fit to abolish such immunity, it is of course within its power to do so.
The order sustaining the demurrer to the first cause of action is affirmed.
Wertz, J., dissents.
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Tbe opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the trial court refusing to set aside a default judgment entered against the State Highway Commission for $25,000. (Appeal is also taken from the default judgment.)
Two basic questions are presented. The first is procedural and challenges the validity of the appeal. The second is substantive— whether the trial court abused the exercise of its power of discretion in refusing to set aside the default judgment which had been entered within the term.
The facts necessary to determine this appeal are not in substantial dispute.
On the 26th day of November, 1962, two actions were filed at the same time in the district court of Greenwood County, Kansas, by the law firm of Ratner, Mattox and Ratner of Wichita, Kansas, and David W. Kester of Eureka, Kansas. The first case was given number 20,574 and entitled Paul J. Williams v. The Kansas State Highway Commission, and sought to recover $75,000 damages under G. S. 1961 Supp., 68-419 for personal injuries and property damage alleged to have been sustained on the 23rd day of August, 1961, by reason of a defect in a state highway. The second case was given number 20,575 and entitled Paul J. Williams, as next of kin of Kathy Williams, deceased, v. The Kansas State Highway Commission, and sought to recover $25,000 damages under G. S. 1961 Supp., 68-419 for the death of Williams’ wife alleged to have been sustained on the same date and in the same accident described in Case No. 20,574 by reason of a defect in a state highway.
Prior to the filing of the above two lawsuits Williams on the 20th day of November, 1961, served a notice by registered mail upon the State Highway Commission claiming damages pursuant to 68-419, supra, by reason of a defect in a state highway. This notice set forth that Paul J. Williams sustained personal injury, his wife, Kathy Williams, was killed, as was their unborn child, in an automobile accident occurring on the 23rd day of August, 1961. This document was received by James L. Sweet of the legal department of the State Highway Commission, but was not acknowledged nor assigned to an investigator for investigation. Sweet placed the notice into the legal department file entitled “Notice of Injuries.”
On the 26th day of November, 1962, a summons was issued in each of the above two cases and a copy of each served upon the Director of the State Highway Commission on the 27th day of November, 1962. These summonses reached the Commission’s chief attorney, Charles N. Henson.
The portion of the summons containing the complete caption in each of the two cases discloses the following information:
“Case No. 20,574
App. Dkt.......page.....
Summons
Paul J. Williams
vs.
The Kansas State Highway Commission.”
“Case No. 20,575
App. Dkt.......page......
Summons
Paul J. Williams, as next of kin of Kathy Williams, Deceased
vs.
The Kansas State Highway Commission.”
The endorsement on the summons in Case No. 20,574 discloses the action is brought for “damages in the amount of $75,000.00 together with the costs,” and the endorsement on the summons in Case No. 20,575 discloses the action is brought for “damages in the amount of $25,000.00 against defendant together with the costs.”
Upon receipt of the above summonses Charles N. Henson assigned the suits to James L. Sweet, employed as an assistant attorney in the legal department of the State Highway Commission. He had been so employed immediately after his admission to the Kansas Bar in 1961, and prior to the incident in question had handled only one other summons in a civil action. His work had been mostly in connection with condemnation appeals.
Mr. Sweet testified that he looked at the two summonses clipped together and observed that one referred to an action by Paul J. Williams for $75,000, and the other referred to an action by Paul J. Williams. In all respects, except as heretofore noted, the two summonses were identical.
Sweet testified that he thought the two summonses referred only to one suit, while, as a matter of fact, an examination of the two documents indicates the existence of two suits.
Instead of referring the suits forthwith to local counsel, or in the alternative personally examining the court files, Mr. Sweet attempted to handle the matter by long distance telephone.
When Mr. Sweet called the clerk of the district court in Greenwood County, Kansas, this was the substance of the conversation:
“I said, ‘Mrs. Long, Hello, I am James Sweet with the State Highway Commission.’ I said, ‘I hear we have been sued down here again.’ She said, ‘Yes, that we had been sued,’ and when she got a copy of the petition she had a notion to go ahead and send it on to me since she figured I would be calling for it. I asked if she would do so and she said she would and I thanked her. . . .”
His testimony on cross examination was:
“I phoned tire clerk, Alma Long, about the Paul J. Williams case and asked her to send me a copy of the petition. I said, ‘I hear we have been sued down in Greenwood County.’ She said, ‘Yes’ and discussed the fact that she had noticed the petition when she received the pleading and had a notion to go ahead and forward it to me. I asked to do that now and she said she would. I did not refer to any case by number or caption. I think we both assumed we knew what we were talking about. I called the clerk on November 27, 1962 or shortly thereafter.”
When Mr. Sweet received a copy of a petition by mail from the clerk, it was a copy of the petition filed in Case No. 20,574.
Alma Long, clerk of the district court, testified for the plaintiff and gave this explanation as to why the copy of the petition in Case No. 20,574 was the only copy mailed to Mr. Sweet:
“Well, I don’t know. I suppose Martha or I one went to our file where we keep our copies and just mailed it. That was it. Evidently there was just one in there.”
As to Case No. 20,574 no action was taken by the Commissions counsel until December 21, 1962, when Mr. Henson mailed a motion to the clerk for additional time to plead, and wrote a letter to Judge Reynolds disclosing that the Commission decided to retain local counsel to assist in the defense of the action, and that the Commission was filing a motion for thirty days additional time. In his letter Judge Reynolds was requested to advise him as to “the action taken by the court on our motion” for additional time.
On the 27th day of December, 1962, Judge Reynolds wrote Mr. Henson a letter in regard to Case No. 20,574 which stated:
“I have talked to Mr. Kester about your motion for additional time to plead in the above case and he stated he had no objection to its allowance. I have, therefore, signed and filed the order presented by you granting you until January 26, 1963, in which to plead.”
On the 28th day of December-, 1962, a letter from Mr. Henson confirmed the employment of Samuel Mellinger of Emporia, Kansas, by the Commission as local counsel in Case No. 20,574. Mr. Mellinger did not know of the existence of any other action in the district court of Greenwood County, numbered 20,575, or any other number. The record does not reflect that he checked the files in the district court or made any other investigation.' Later by letter on February 8, 1963, Mr. Mellinger was retained as local counsel by the Commission in Case No. 20,575.
As to Case No. 20,575 no action was taken by the Commission. On the 21st day of January, 1963, the January term of the district court in Greenwood County opened, and at the calling of the docket neither Mr. Sweet nor any other attorney on behalf of the Commission was present. (As to Case No. 20,574 counsel did not attend since that case was not at issue by reason of the previous order of the court allowing the Commission until the 26th day of January, 1963, to plead; and as to Case No. 20,575 no appearance was made because counsel were not aware that such case was pending.) There was a dispute as to whether counsel for the Commission received a copy of the docket prepared by the district court of Greenwood County for the opening day of the January term. The docket listed both cases in consecutive order and showed the appearance of counsel for the Commission in Case No. 20,574, but showed no appearance of counsel for the Commission in Case No. 20,575.
On the 1st day of February, 1963, counsel for Mr. Williams filed a motion for default judgment, and without notice to or inquiry of the Commission, or its attorneys, presented the motion to the court on the same day. (Technically, notice was unnecessary to opposing counsel since there was no attorney of record in this case.) The trial court entertained the motion and, after counsel for Mr. Williams made a perfunctory showing of damages, entered a default judgment on the same day against the State Highway Commission in the sum of $25,000.
In the first part of February, 1963, Mr. Sweet while going through the “Notice of Injuries” file in the legal department noticed the summons in Case No. 20,575 and realized there were two actions, one for $75,000 and another for $25,000 filed by Mr. Williams. He thereupon, called the clerk of the district court and was informed that a default judgment had been entered.
Within a few days thereafter, on the 8th day of February, 1963, the Commission filed a motion to set aside and vacate the default judgment. This motion was heard by the district court on the 8th day of March, 1963, at which time the attorneys for the plaintiff appeared generally, consented to, acquiesced in and participated fully in the hearing for all purposes. Evidence was presented on the motion. The court file in Case No. 20,574 was received in evidence as part of the hearing and shows the appearances, activities and defenses made by the Commission and its attorneys in Case No. 20,574.
At the conclusion of the hearing the court made an order directing the Commission to file a brief by March 18, 1963, and directing Williams to file a reply brief within ten days thereafter. Thereupon the matter was taken under advisement, and on the 25th day of April, 1963, the court entered its order overruling the motion. (It is to be noted the default judgment and the order overruling the motion of the Commission to set aside and vacate the default judgment were entered within the January term of court which expired on May 20, 1963.)
The instant appeal was duly perfected from the defaült judgment entered on February 1, 1963, and from the order overruling the motion to set aside and vacate the default judgment.
The appellee has filed a motion in this court to dismiss the appeal, contending that the order denying the Commission’s motion to vacate and set aside the default judgment is not an appealable order within the contemplation of G. S. 1949, 60-3302, 60-3303 or G. S. 1961 Supp., 60-3314a.
The theory upon which the appellee relies is that no separate appeal was taken from the default judgment of February 1, 1963, until May 11, 1963; that the motion filed on February 8, 1963, to set aside and vacate the default judgment did not extend the time for appeal; that the order of April 25, 1963, denying the motion did not extend the time for appeal; that said order was not an appealable order; that the appeals taken from the default judgment and the order were ineffective; and therefore the appeals should be dismissed for want of appellate jurisdiction.
We have been cited to no case directly in point, and our research has disclosed none. This being a matter which arises under the old code of civil procedure, extended discussion will not be undertaken.
A separate appeal within two months from and after entry of the default judgment on February 1, 1963, would have accomplished nothing. If such an appeal had been taken, appellate review would have been limited to a determination of whether or not the judgment was erroneous on the face of the judgment itself. (Williams v. Schrock, 118 Kan. 347, 235 Pac. 111.) Since nothing erroneous appeared on the face of the judgment, such a separate appeal would have been an idle and useless gesture. In this court the propriety of the default judgment and the right of the Commission to have it vacated and set aside could not be determined until (a) the Commission challenged it; (b) the court heard and took evidence on the challenge; and (c) the court ruled either correctly or incorrectly on the challenge.
On the facts here presented the trial court had control over its judgment during the term in which it was rendered. The Commission’s motion to have the default judgment vacated and set aside was one which rested in the discretion of the trial court during the term in which the default judgment was rendered. (See, Buchanan v. Lambdin, 176 Kan. 62, 269 P. 2d 443.) Action taken by the triaPcourt pursuant to the Commission’s motion within the term held the default judgment in abeyance until such time as an appropriate order was entered within its judical discretion. The trial court had not lost jurisdiction. (Mulcahy v. City of Moline, 101 Kan. 532, 171 Pac. 597.)
The trial court’s order denying the motion to set aside and vacate the default judgment was an order which reserved no further question, or direction, for the future or further action of the district court. It was a final order in this matter and therefore appealable. If this court were to hold that an order refusing to set aside and vacate a default judgment was not appealable, it would in effect be holding that this court has no appellate jurisdiction, and hence no power of review to correct error, even though the trial court’s ruling on the motion constituted an abuse of judicial discretion.
The order entered by the trial court upon the Commission’s motion to set aside and vacate the default judgment was final. An appeal from such order entitled the Commission to also perfect an appeal from the default judgment, even though it was entered more than two months prior to the overruling of the motion. This was the intent and purpose of G. S. 1961 Supp., 60-3314a. The situation here presented falls squarely within its provisions.
Did the trial court err in its refusal to vacate and set aside the default judgment?
An extended discussion of the facts in this case is unnecessary. For the Bench and Bar a mere recital of the facts is sufficient to disclose negligence and failures on the part of counsel which eventually led to the default judgment in question.
This court neither condones the negligent practice of law, nor the practice of law by telephone and mail. It frowns upon dilatory tactics and the failure of counsel to appear on the opening day of a term when their client’s case is pending in district court. And while all of these must have incensed the trial judge, we, nevertheless, feel impelled to view the case in a broader scope.
This was not a case in which the failure of counsel for the Commission to appear in Case No. 20,575 left either the court or opposing counsel in any quandary as to who represented the State Highway Commission in its legal matters.
Here two cases numbered consecutively were filed by the appellee in the district court of Greenwood County, Kansas. Both were filed on the same day, grew out of the same accident, and had the same plaintiff but in different capacities. In the one the Commission through counsel appeared, received an extension of time and pursued the litigation in an effort to defend. In the other the Commission made no appearance.
These facts in particular gave not only counsel for the appellee notice that something was wrong, but it also gave the trial judge cause to inquire on the opening day of the January term, and cause to require that notice be given to counsel for the Commission prior to the entry of a default judgment in the sum of $25,000.
Courts should strive to see that litigation is determined on its merits and not defeated at some procedural stage enroute. (See, Fisher v. Pendleton, 184 Kan. 322, 333, 336 P. 2d 472, 74 A. L. R. 2d 1274.) In our opinion the trial court erred when it refused to set aside and vacate the default judgment upon the showing made by the Commission on its motion.
The judgment and order of the lower court are reversed with directions to vacate the default judgment and proceed to determine the litigation on its merits.
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The opinion of the court was delivered by
Fontron, J.:
This is a workmen’s compensation case. The plaintiff, Alfred H. Armstrong, sometimes called claimant herein, has appealed from an award entered in the court below. It is agreed that the sole question presented for our determination is the correct method of computing the claimant’s average weekly wage.
The essential facts have been stipulated. Claimant was injured while unloading a boxcar at a time when he was employed by Manpower, Inc., an organization engaged in supplying skilled and unskilled workmen to businesses and industries in the Wichita community, on a daily or a job basis. Any person may apply at Manpower’s office and, if work is available, will be sent to a job which might last from a few to eight hours or more per day. Those who apply for work are not obliged to report to Manpower’s office every day, but only when they wish to work. Often, there is insufficient work for everyone who applies and, on such occasions, there may be many who are not provided with work for that day. This is realized by everyone who works, or has worked, for Manpower, Inc., and everyone is hired on such understanding. Workers are paid only for the hours actually worked and their pay is based on the type of work performed, with no guarantee as to the number of hours or the number of days they will work. The plaintiff workman was being paid $1.00 per hour at the time of his injury.
The workmen’s compensation examiner, who first heard this matter, found plaintiff’s average weekly wage to be $40.00. On appeal, the district court found the wage to be $27.78, and the difference between these two amounts is involved in this appeal.
G. S. 1961 Supp., 44-511, which is now K. S. A. 44-511, defines the method of calculating wages. So far as pertinent to this lawsuit, the statute provides:
“(1) Whenever in this act the term ‘wages’ is used it shall be construed to mean the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others. . . .
“(2) . . . Where the rate of wages is fixed by the hour the daily wage shall be found by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the character of work involved. In any case the weekly wage shall be found by multiplying the daily wage by five (5) or if the employee worked a greater proportion of the week regularly, then by five and one-half (5/2), six (6), six and one-half (6/2), or seven (7), according to the customary number of working days constituting an ordinary week in the character of work involved. Five (5) days shall constitute a minimum week.
“(3) In any case, the average yearly wage shall be found by multiplying the weekly wage, determined as hereinbefore provided, by fifty-two (52).”
The import of this statute is unmistakable. Where a workman, at the time of his injury, was being paid, on an hourly basis, as was this claimant, his daily wage shall be computed by multiplying the hourly rate by the customary number of working hours constituting an ordinary day in the kind of work involved, and the weekly wage is then to be found by multiplying the daily wage by the number of days (not less than five) customarily making an ordinary working week in the employment involved. This formula furnishes a fairly uncomplicated and, we believe, an equitable method of computing the average weekly wage of a worker who is paid by the hour.
However, this simple formula will not work unless it can first be determined how many hours customarily constitute an ordinary working day, for that is the indispensable first rung of the ladder which one ascends in computing first the average daily wage, then the average weekly wage, and finally the average yearly wage. So, in this case, the statutory rule cannot be employed because the trial court specifically found that “claimant had no contract of employment to work any certain number of hours per week or day and there is no customary number of working hours constituting an ordinary day in the character of work performed by the claimant.” (Emphasis supplied.) The claimant does not challenge this finding which, it should be noted, is identical with the finding reached by the examiner. Under well-established rules of appellate procedure, we are bound by this finding, in view of the stipulated facts contained in the record.
While both the examiner and the trial court concluded there was no customary number of working hours making up an ordinary day in the kind of employment shown here, they differed as to how claimant’s average weekly wage should be determined. The examiner computed it at the rate of $1.00 per hour for eight hours per day for five days per week, or $40.00. This calculation was adopted because the record disclosed that some days the claimant worked as much as eight hours or more. On the other hand, the trial court took the view that claimant’s average weekly wage should be determined by the number of hours worked per week, which he computed to average 27.78, thus arriving at $27.78 per week.
We are now asked to decide which of the two methods of computation is correct under the facts of the case.
Our attention has been directed to no statutory formula for computing the average weeldy earnings of an injured workman, other than that set out in G. S. 1961 Supp., 44-511, nor has our own research revealed any other legislative pronouncement. Hence, we are without legislative direction as to the manner in which this claimant’s weekly wage should be figured even though we may be sure that the legislature never intended a workman in plaintiff’s position to be without remedy.
Neither do the prior decisions of this court cited by the plaintiff furnish any appreciable assistance. In Baker v. Western Power & Light Co., 147 Kan. 571, 78 P. 2d 36, there was evidence as to the customary hours constituting a working week. Thus, we held that the customary working hours per day or week which constituted an ordinary day or week in the kind of work involved should be used in computing compensation rather than the actual hours of labor performed. We agree with the rationale of that decision but it affords no precedent for the situation presented here.
In both Borchardt v. City of Leawood, 178 Kan. 705, 290 P. 2d 811, and Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872, the claimants were employed under contracts definitely fixing their compensation; the rate being $3.00 per night in Borchardt, and $20.00 per week in Durnil. In both cases this court held the contract rate must prevail. Neither case is helpful here.
Although neither party has directed our attention to the rules promulgated by the workmen’s compensation director, we have nevertheless examined his regulations to ascertain if any administrative interpretation has been given to 44-511 which might help us in construing the statute and in finding a basis for reckoning the claimant’s average daily or weekly wage. We learn that article number 51-11-1 pertains to the computation of wages, but its provisions relating to cases where there is no customary number of working hours per ordinary day in a specific employment are inconsistent and not persuasive.
In the absence of legislative fiat, local judicial precedent, or controlling administrative interpretation, we believe the method of computation adopted by the trial court is correct. The average number of hours per week actually put in by a workman would appear a rational and fair basis for determining his average weekly wage when he is paid by the horn-, and when the character of his work is such that there is no customary number of hours in an ordinary working day.
In 58 Am. Jur., Workmen’s Compensation, § 308, p. 793, we find this rule stated:
“The average earnings during a specified period of persons engaged in the same or a similar employment is sometimes made the basis for determining the extent of loss of earnings or earning capacity. But where there is no evidence from which such average earnings may be ascertained, the actual earnings of the employee must be taken as the basis for computation.”
A situation similar to the one presented here was considered in Rice’s Case, 229 Mass. 325, 118 N. E. 674. A Massachusetts statute provided that in computing the average weekly wage of an injured worker, regard be had to the average amount earned weekly by other workers employed in the same grade and in the same class of employment. The court found this formula was not applicable since there was nothing to show what average weekly amount was earned by persons in the same grade and line of work as the claimant. After holding the statutory definition to be inapplicable, the court said that “. . . the words ‘average weekly wages’ . . . should be interpreted in their common and ordinary sense and should be computed by dividing the total amount earned by the number of weeks of employment. . . .” (p. 328.)
We conclude, for reasons heretofore stated, that the provisions of G. S. 1961 Supp., 44-511, defining the formula for computing the average weekly wage of a workman who is paid by the hour, are not applicable to a workman in this claimant’s position. We further conclude that in the absence of legislation applicable to the facts disclosed in this case, the average weekly wage of a wage earner, such as plaintiff, is to be computed on the basis of his actual average weekly earnings.
The judgment of the court below is affirmed.
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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 plaintiff’s evidence in an action by a farm hand to recover damages for the loss of an eye.
The facts, which are not in serious dispute, will be related at some length.
Plaintiff was sixty-one years of age at the time of the accident. He was an experienced farm hand, having worked as a farm laborer and filling silos since he was fifteen years old.
On September 5, 1960, defendant was filling a silo and plaintiff was working inside keeping the ensilage level as it was blown in from the top.
The instrumentalities involved and the manner of their use will next be described.
The silo was a tank structure some forty feet in height. On one side openings extended from the top to the bottom of the bank through which the ensilage was removed from storage. The openings were closed by steel plates as doors. The plates, about eight in number, were attached by cross-bars and four bolts, one in each comer. The bolts were inserted from the inside of the silo and fastened with nuts on the outside. As a matter of convenience the plates were put temporarily in place before the filling started. The plates were bolted on loosely with the top bolts but the bottom bolts were left sticking out of tbe plates inside the silo. As the ensilage reached the bottom of the plates the man on the inside removed the bolts and then inserted them through to the outside where the nuts were tightened.
The fresh chopped fodder was placed in a vat where it was augered into a blower. The ensilage was then blown to the top of tihe silo through a solid pipe. At the top of the silo was a gooseneck shaped piece of pipe with the bottom missing. The force with which the ensilage was blown through the pipe carried the ensilage over to the end of the bottomless gooseneck. Extending from the open end of the gooseneck to the bottom of the silo was a flexible distributor pipe composed of individual metal joints, two and one-half to three feet in length, with one end protruding slightly into the other and buckled together with chains. As the ensilage was blown down through this distributor pipe or tube it was the responsibility of the man working inside the silo to move the end of the pipe about so that the ensilage was evenly distributed. As the silo filled a bottom joint was removed and thus the open end of the distributor pipe was kept away from the ensilage.
If the bottom of the distributor pipe touched the ensilage the pipe would fill up and clog. Also, if the joints of the distributor pipe were hooked with too long a chain the distributor pipe would kink, fill up and clog. On occasions when the distributor pipe clogged and filled up the ensilage would come showering down from the bottomless gooseneck above.
Other facts of record, about which there is no controversy, may be stated thus:
The work of filling the silo continued all day Saturday, September 3, 1960, and during the forenoon of Monday, September 5. As the second load was being blown into the silo on Monday afternoon the distributor pipe kinked and plugged up. Ensilage showered down from the gooseneck above. Plaintiff could not see anything because of the showering ensilage. He tried to get to the door to notify the men on the outside. In making that effort he was hit on the head by the distributor pipe and fell. In falling his right eye struck one of the bolts protruding from the bottom of the plate or door, which resulted in the loss of sight in the eye.
The silo was about half full at the time of the injury and plaintiff had assisted in bolting at least one of the plates. It was not unusual for the distributor pipe to clog up. Many times on previous occasions plaintiff had had the distributor pipe fill up on him. After the work started Saturday morning plaintiff was the only one to touch, handle or control the distributor pipe up to the time of the accident.
The plaintiff further testified:
“A. Naturally, it filled up and it kinked, the bottom end kinked a little bit, you know, it was hooked a little long and it would fill up and fill up just that quick too.
“Q. You knew it would do that because you had it do that before?
“A. Sure I knew it but you can t help it. I didn’t notice it was hooked long.
“Q. You have had it do that many times before, haven’t you, Mr. Uhlrig?
“A. Sure, it’s clogged up before.
“Q. And then, as I understand it, there wasn’t anything different, on file day of your accident, that occurred except the fact that you got hurt. Is that right?
“A. That’s right.”
The record also discloses that the machine was in good operative condition at the time of the accident.
Following the accident plaintiff brought this action against the defendant, James C. Shortt, the owner of the silo. So far as here pertinent his petition alleged:
“(1) That said silo was not a reasonably safe place to work in this:
“a. That the bolt which protruded into the silo was dangerous and likely to cause injury to anyone required to work in said silo, all of which was well known to the defendant.
“b. That plaintiff was required by the defendant to work alone in said silo, whereas it is unsafe and dangerous so to do, which was well known to the defendant.
“(2) That the defendant or his agents and/or employees who were operating the said ensilage blower at the time of the injury to this plaintiff operated it in a negligent manner causing the blower pipe to clog and the distributor pipe to ‘whip about’ in the silo and to strike plaintiff’s head in the manner hereinbefore referred to, causing said injury and blindness.”
Defendant responded to the petition with an answer containing a general denial and the following averments:
“The defendant alleges that if the plaintiff was injured and sustained damages, that such injuries were the result of a pure accident.
“Defendant further alleges that if the plaintiff sustained injuries and damages that the said plaintiff assumed the risk of his employment, if any such risk obtained at such time and place, inasmuch as the plaintiff was an experienced farm hand and farm worker.”
With issues joined as indicated the case came on for trial by a jury.
At the close of his evidence, which established facts substantially as heretofore stated, the court sustained a demurrer to plaintiff’s evidence, discharged the jury, and rendered judgment. Thereupon plaintiff perfected the instant appeal.
The appellant contends that the evidence is sufficient to establish the fact that appellee failed in his duties to provide appellant a safe place in which to work and safe tools and appliances with which to work.
The appellee contends that the evidence showed no failure of duty on his part and if there was any danger in the work being performed by appellant that, under the existing facts, it is clearly established that appellant assumed the risk of injuiy therefrom.
The appellant responds with the suggestion that the doctrine of assumption of risk does not arise until after the employer has discharged his duty of providing his employee with a safe place in which to work and safe tools and appliances for the particular job.
We will first give consideration to the law, applicable to the facts as related, which will establish the veracity of the contentions advanced by the parties.
At the outset, it may be stated that it is the duty of the employer to provide for his employees a safe place to work, including structure and surroundings, and safe and suitable machinery, tools and appliances with which to work. (Fishburn v. International Harvester Co., 157 Kan. 43, 138 P. 2d 471, and Taylor v. Hostetler, 186 Kan. 788, 352 P. 2d 1042.) However, the general rule has so many qualifications, conditions and exceptions that it is seldom, if ever, that it can be used as a single factor to fix the liability of the master for injury to his servant.
An employee cannot recover from an employer unless the employer has been guilty of negligence. The employer must have been guilty of some breach of duty which he owed to the servant. The employer is not to be held hable for an injury to an employee simply because of danger which was inherent in the employment, whether in the place of employment or the cause of the danger inherent in the tools, machinery or appliances with which the work must be performed. A master is not an insurer against injuries which his servants may incur in the discharge of their duties. See, e. g., West v. Packing Co., 86 Kan. 890, 122 Pac. 1024; Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43; Gentry v. Davis, Agent, 115 Kan. 335, 222 Pac. 769, and Hunter v. Barnsdall Refining Co., 126 Kan. 277, 268 Pac. 86.
There can be no liability on the part of the employer where it appears that the employee’s knowledge of the danger was equal to or surpassed that of the employer. See, e. g., Fletcher v. City of Ellsworth, 53 Kan. 751, 37 Pac. 115; Bank v. Haid, 97 Kan. 297, 155 Pac. 57; Railway Co. v. Stone, 77 Kan. 642, 95 Pac. 1949; and Ivey v. Railroad Co., 99 Kan. 613, 162 Pac. 288.
It is generally agreed that the employer owes the employee the standard of care which is exercised by the average prudent individual in similar circumstances. Generally an employer will not be held liable if he furnishes appliances of a sort in general use, and conducts his business in a manner conforming to the usage of others engaged in the same business under similar circumstances. See, e. g., Mo. Pac. Rly. Co. v. Holley, 30 Kan. 474, 1 Pac. 554; Sanborn v. A. T. & S. F. Rld. Co., 35 Kan. 292, 10 Pac. 860; Morrison v. Kansas City Coca-Cola Bottling Co., 175 Kan. 212, 263 P. 2d 217, and Blackmore v. Auer, 187 Kan. 434, 442, 357 P. 2d 765.
Where the tools, appliances and machinery are simple or common in nature and free of defects and the employee is experienced in their use, the employer is ordinarily not liable to the employee for injuries resulting therefrom. Knowledge of a defect is necessary to create liability on the part of the employer. (Hill v. Railway Co., 81 Kan. 379, 105 Pac. 447.)
Many of the rules just announced are no doubt a result of the application of the doctrine of assumption of risk. In 35 Am. Jur., Master and Servant, § 299, pp. 722, 723, in considering the risk assumed, the rule is stated thus:
“The injuries for which an employee is barred from recovery by virtue of the doctrine of assumption of risk include but, according to the general accepted statement, do not extend beyond those which result from the ‘ordinary’ risks of the employment or such as are ‘incident” thereto. An assumption of risk merely by virtue of the contract of employment embraces such perils, hazards, and dangers as are ordinarily and normally incident to or a part of the employment in question and of which the employee has knowledge, actual or implied, or of which it may be said that he is presumed to know. Under the head of ‘ordinary risks’ are classed all those dangers or perils ordinarily incident to the conduct of the particular business in which the employee engages — those which exist after the employer has done everything that he is bound to do for the purpose of securing the safety of his employees. The term includes not merely those dangers which are obvious and open, but also those risks which, while not visible, are nevertheless a natural incident of the employment. The employee does not, however, merely by accepting employment, assume the risks which are not usually and ordinarily incident to that employment. As thus restricted, the doctrine rests on the thought that the employee, upon entering the employment of the master, assumes all the risks that are ordinarily and usually incident to the service upon which he enters, and if he is injured solely by reason of these perils he is not entitled to recover. ...”
The doctrine of assumption of risk rests for its support upon the express or implied agreement of the employee that, knowing the danger to which he is exposed, he agrees to assume all responsibility for injuries resulting from his employment. This court has stated that to raise an implied agreement the risk assumed must be known to the employee, or it must be of such a nature as, by the exercise of reasonable observation and caution for his own safety, he should have known it. One, knowing all the danger and peril of pursuing a given course and being under no compulsion to encounter the same, who freely and voluntarily continues therein, cannot recover damages for injuries he may suffer. This court has, in cases too numerous to mention, had occasion to discuss the doctrine of assumption of risk and consider its application. We will not repeat the numerous citations in this opinion but direct attention to Blackmore v. Auer, supra, and Anderson v. Cooper, 192 Kan. 723, 391 P. 2d 86, where many of our earlier cases are cited.
Although we find no evidence of negligence on the part of the appellee (employer) which would make him liable for injury to the appellant (employee), we must further conclude that, under the uncontroverted facts of the case at bar, the appellant assumed the risk of any hazard which existed in connection with his employment.
The machine which was being operated to fill the silo was in good operating condition and free of defects. There was nothing complicated about the machine and it was being operated in the ordinary manner. There was nothing unusual about the silo in which appellant was working and there were no hidden defects. There is no evidence that the appellee had knowledge of any possible hazards that were not fully known to appellant. Appellant was a man sixty-one years of age and had been doing the same type of work, with the same type of machinery, and the same type of risks since he was fifteen years old. The distributor pipe had kinked and clogged on him on many occasions and he knew it would do so again. He knew exactly where the bolts for the doors were protruding, their nature and their position.
We find no merit to appellant’s contention that his evidence presented a question for determination by the jury. Under the evisting facts, conditions and circumstances the all-decisive question was one for determination by the trial court. In Blackmore v. Auer, supra, we said:
“The assumption of the usual risk of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it. (Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited therein.)” (pp. 444, 445.)
What has been heretofore stated and held compels a conclusion that the trial court did not err in sustaining appellee’s demurrer to appellant’s evidence and that its judgment must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Fontron, J.:
This is an action brought by the plaintiff and appellant herein, Star Leasing Corporation, against the defendant Paul Elliott, appellee, to recover on a promissory note on which plaintiff claims there is a balance due of $1,937.28. The note was executed by Power, Inc., acting through Paul Elliott, its president, and was also signed by Paul Elliott individually. The appellant will be designated as plaintiff, and the appellee as defendant, or Elliott.
An answer and cross petition was filed by defendant alleging that he was entitled to additional credits on the note over and above those shown, that the note was overpaid by $890.30, and that he should recover such amount.
Over the plaintiff’s objection, trial was commenced to a jury. The defendant stipulated that he had executed and delivered the note, and proceeded to introduce evidence in support of his cross petition. A demurrer to his evidence was overruled and evidence was thereupon introduced by plaintiff. At the completion of all the evidence, plaintiff moved for a directed verdict which was overruled. However, at the same time, the trial court sustained plaintiff’s motion to discharge the jury.
Thereafter, the court found in defendant’s favor on his cross petition and on June 7, 1963, entered judgment for the defendant in the amount for which he prayed. Plaintiff’s motion for a new trial was argued and overruled on October 11, 1963, and this appeal was taken by the plaintiff within two months therefrom, although some five months after the judgment was entered on June 7th.
We are first confronted with the defendant’s motion to dismiss the appeal because it was not perfected within two months from the date of judgment, it being contended that the appeal time was not extended by the motion for new trial because no factual questions were involved. Although the dispute in this case centers primarily around questions of law, a considerable amount of evidence was introduced, and we are unable to say that no factual questions inhere in the questions presented. We shall, therefore, proceed to the merits of this appeal.
From the record, we understand that the facts which gave rise to this lawsuit are these: The plaintiff company is one of various businesses owned or controlled by a Robert M. Bennett, and has Bennett as its president. The defendant, Paul Elliott, is president of Power, Inc. Sometime in 1960, Power, Inc. bought two trucks from one of Bennett’s companies, financing them through a bank. In August, 1961, three additional trucks were purchased by Power, Inc. from the plaintiff.
The last three trucks were financed in the following manner: (1) A cash payment; (2) execution of the “side-note” involved in this action, in the principal amount of $6,678.00, and due in twelve installments; and (3) the balance of $50,640.00 by means of a so-called equipment lease. Under the terms of this instrument, which was signed by Elliott as well as Power, Inc., the plaintiff leased the three trucks to Power, Inc. for a minimum rental period of thirty-six (36) months starting August 22, 1961, in consideration of which the lessee agreed to pay lessor the following rental:
Rental, if paid in advance................................ $50,640.00
Advance Rental ....................................... $.......
Deferred Rental ......................................... $50,640.00
Deferred Rental Charge ..............................$ 6,076.80
Total Deferred Rental and Charge ......................... $56,716.80
payment to be made in thirty-five monthly installments of $1,575.46 each, and one final installment of $1,575.70 on August 22, 1964. Rental after the minimum period was to be $700.00 per month for twenty-four months.
It was stipulated by counsel that the deferred rental charges referred to in the equipment lease means and was intended by the parties as interest.
In November, 1961, after making two payments on the equipment lease, Elliott became financially embarrassed and commenced efforts to sell the trucks, which by this time numbered four, one having been wrecked. In his endeavors, Elliott was assisted by Bennett and in January, 1962, a sale of the trucks was consummated, with Bennett’s approval, for $57,500. Bennett applied the sale proceeds to the payment of indebtedness due from Elliott to Bennett and his several companies, the proceeds from the sale being sufficient to clear up all of Elliott’s indebtedness to Bennett and his companies except for the side-note sued on in this action.
After the sale of the trucks was completed, Bennett notified Elliott to resume payments on plaintiff’s side-note, and Elliott, having no figures on the settlement, did so but requested a recapitulation or breakdown of the sale proceeds and their application. In May, 1962, Bennett furnished a recapitulation which Elliott did not understand, and Elliott continued to request further information and documents until August, 1962, at which time he quit paying and demanded a refund of overpayments which had been made. This suit was thereupon commenced by Star Leasing Corporation, and Elliott countered with his cross petition.
Despite the somewhat complex facts and the several assignments of error, the dispute actually simmers down to this: Plaintiff contends it is entitled to the full deferred rental charge, or interest, specified in the lease even though the full rental of $50,640.00 was paid in January, 1962, rather than over a thirty-six month period! If plaintiff is correct, then there is a balance due plaintiff on the side-note sued on. On the other hand, defendant takes the position that he.is liable for deferred rental charges, or interest, only to the date the rent of $50,640.00 was paid in full. If this contention be right, then the defendant has overpaid on the side-note and is entitled to recover an agreed amount of $890.30.
The plaintiff bases its claim on paragraph 1 of the lease, under Terms and Conditions, reading as follows:
“This lease contemplates the continuous rental of the above property at the rate of rental above agreed upon, until said property is duly returned to lessor. But the lessee shall be liable for the full rental for the entire minimum period even though the property is returned to the lessor prior to the termination of the minimum period.”
On the other hand, the defendant Elliott relies on paragraph 3, the provisions of which read:
“In case of Lessee’s failure or refusal to pay any one or more installments of rent, payable hereunder or to fulfill or perform any of the other agreements or conditions imposed on the Lessee within thirty (30) days after Lessee’s receipt .of written notice of such default, Lessor may, at its option (which shall be exercised within thirty (30) days thereafter upon written notice thereof to Lessee), unless Lessee has cured its default prior to expiration of time limit contained in said notice, elect to either:
“(a) Require Lessee to Purchase said vehicles at and for a purchase price equal to the sum of fifty thousand six hundred and forty and no/100 Dollars $50,640.00, plus earned deferred rental payment charges, less the sum of all rentals theretofore paid, which amount will be payable by Lessee to Lessor in cash upon demand. All sales or use taxes, if any, which are applicable to such purchase shall be borne and paid by Lessee; or,
“(b) Take possession of said vehicle, including all substituted parts, accessories and equipment, with or without legal process (Lessee hereby authorizing the peaceful entry for said purpose on any premises of the Lessee).” (Emphasis supplied.)
In accordance with long-established and well-recognized rules of construction relating to the interpretation of contracts, the foregoing provisions are to be construed together in their entirety (First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 309 P. 2d 389; Drilling, Inc. v. Warren, 185 Kan. 29, 340 P. 2d 919; Zelinkoff v. Johnson, 185 Kan. 489, 345 P. 2d 665), and any doubtful language which the lease contains must be held most strongly against the plaintiff who, as lessor, had prepared it. (Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807; Kinmonth v. Holm, 180 Kan. 389, 304 P. 2d 494; First National Bank of Lawrence v. Methodist Home for the Aged, supra.)
So construed, we believe that paragraphs 1 and 3, which alone bear on the question presented here, mean just this: Upon default by the lessee, Elliott, in any installment of rent or other condition in the lease, the lessor, Star Leasing Corporation, would be entitled to exercise either one of two options; first, it might require full payment of the entire rental which then remained unpaid together with deferred rental charges, or interest, to the date on which the entire rental became paid, or, second, the lessor might take possession of the trucks (which would constitute their return to him), and the lessee would then be obligated, under paragraph 1, to pay the deferred rental charges, or interest, in full for the remainder of the entire thirty-six month period.
This construction, in our opinion, accords with what the parties must have had in mind when the lease agreement was executed. It is logical to presume that paragraph 1 was intended to protect the lessor from loss in the event he had to take the trucks back, whether the lessee returned them or he, himself, took possession by exercising the option contained in paragraph 3(b). The lessor might well experience a loss in disposing of the trucks returned and, in any event, would have sale expenses and some loss of use of his capital. It is unreasonable to assume that the parties ever intended the lessee to collect interest on the rent after the rent had been fully paid. Such a result would violate the ancient adage that one cannot have his cake and eat it, too. We will not impute to the parties, at the inception of their agreement, any intent to produce a result so harsh and inequitable.
It is obvious that plaintiff did not elect to take possession of the trucks pursuant to paragraph 3(b). Neither was the option contained in 3(a) exercised in strict compliance with the contract, for no written notice of election is shown to have been given Elliott. However, we believe that Bennett’s actions in assisting Elliott to sell the trucks and plaintiff’s acceptance, through its president Bennett, of the full rent some thirty-one months before all the rent became due was tantamount to an election by plaintiff to exercise the option granted in 3(a). In any event, the trucks never were returned to plaintiff’s possession and, consequently, plaintiff never became entitled, under any of the terms in the lease, to collect deferred rental charges, or interest, after the rental was paid in its entirety.
It is suggested in the plaintiff’s brief that the defendant Elliott is estopped to claim he was not credited with the proper amounts when he continued making payments on the side-note after the trucks were sold. There are at least two answers to this contention: First, the plaintiff did not plead estoppel, which is an affirmative defense and must be pleaded. Estoppel cannot be proved under a general denial. (City of Chetopa v. Labette County Comm'rs, 156 Kan. 290, 292, 133 P. 2d 174; Muenzenmayer v. Luke, 161 Kan. 597, 602, 170 P. 2d 637.) Second, when the payments were made, Elliott was not in possession of the figures concerning the sale of the trucks and the application of the sale proceeds. He was in fact, at the very time his payments were made, attempting to secure a recapitulation from Bennett. In 19 Am. Jur., Estoppel, § 49, the rule is stated:
“It is essential to the doctrine of equitable estoppel that the party sought to be estopped should have had knowledge of the facts, or at least that he should have had the means at hand of knowing all the facts or have been in such a position that he ought to have known them. This rule applies with particular force where the estoppel is claimed by reason of silence or inaction . . .” (pp. 648,649.)
Under the circumstances shown to exist in this case, the doctrine of estoppel is not applicable and plaintiff’s contention in such respect is without merit.
One final complaint contained in the specifications of error may be noted. Throughout the entire trial proceedings the plaintiff objected to having a jury sit in the case. However, we are not now called upon to decide whether error was committed in this regard, inasmuch as the trial court discharged the jury at the completion of the evidence and determined the case as a court matter.
We find nothing in the record to justify reversal of the trial court’s judgment and it is, therefore, affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the State of Kansas from an order of the trial court sustaining a motion to discharge the defendant, Clarence E. Cook. For convenience, the appellant will be designated throughout this opinion as the State, while the appellee, Cook, will be referred to as the defendant.
The history of this case, which appears in this court for the second time, is briefly as follows: In an information filed directly in the district court of Sedgwick county, Kansas, the defendant was charged with the commission of a misdemeanor, i. e., speeding. The information was signed by Guy L. Goodwin, deputy county attorney of Sedgwick county, and was verified positively by Paul Wade, a member of the Kansas Highway Patrol. After the information was filed, the defendant appeared with counsel and moved to quash the information. This motion was sustained, and the State appealed from that ruling. On appeal, the action of the trial court was reversed and the case remanded for further proceedings. (State v. Cook, 193 Kan. 541, 393 P. 2d 1017.)
Subsequently, the case came on for trial, at which time the defendant appeared only by counsel. Through his counsel, the defendant stood mute and the court entered a plea of not guilty for him. Trial was had to the court without a jury and at the completion of the State’s evidence the court sustained defendant’s motion for discharge. The sole question presented in this appeal is succinctly stated in the defendant’s brief, as follows: Did the trial court properly sustain defendant’s motion for discharge?
The motion to discharge is as follows:
“Comes now the defendant, Your Honor, and moves to discharge the defendant for the reason that there has been no showing that a crime or misdemeanor has been committed by the defendant. And for the reason, Your Honor, that the arresting officer was three and a half miles from the scene of any even alleged violation; that it was not committed in his view or presence; that he is the signer, first, of the Uniform Notice to Appear; that he is also the signer of the Affidavit to the Information. That the evidence shows that he has no knowledge of it.”
The trial court ignored the first ground stated in the motion, and no reliance is placed on that ground here. The sole and clearly stated basis of the trial court’s decision, and the single argument made by the defendant in support of the lower court’s action, is that the defendant’s arrest was illegal. This claim of illegality is two-pronged: First, that whatever arrest was made by trooper Wade when he stopped the defendant’s car was illegal because no offense had been committed in the officer’s presence; and second, that any arrest which resulted from the filing of the information was void because Wade had verified the information without having personal knowledge of the facts alleged. On the sceond point, it may be said that the record wholly fails to disclose that a warrant was ever issued on the information, or that the defendant was ever arrested and brought into court on a warrant. However, this is immaterial in view of the decision we have reached in this case.
A proper understanding of the issues presented requires a brief resumé of the State’s evidence. On November 6, 1963, the date of the alleged offense, three members of the Kansas Highway Patrol were checking traffic on U. S. Highway 81, north of Wichita. Two of the state troopers were in an aircraft, while the third trooper, Paul Wade, was stationed on the ground approximately one-half mile north of the Sedgwick-Harvey county line. The two air-borne officers observed a northbound, dark red colored vehicle, which they followed some three miles to the Sedgwick county line, checking its speed by means of stop watches against previously established highway markings. Ry such means, the speed of the car was determined to be 76 miles per hour. Keeping the vehicle in sight, the two officers radioed Wade, who then stopped the car about one-half mile north of the county line and issued the defendant a document denominated, “Uniform Notice To Appear and Complaint.”
In this somewhat hybrid instrument the officer charged the defendant with speeding and directed him to appear in the Court of Common Pleas at Wichita on November 15, 1963. The defendant signed a promise to appear at such place and time.
Subsequently, in January, 1964, the information hereinbefore mentioned was filed. This was verified by Wade, and charged the defendant with driving on U. S. Highway 81, at 101st Street in Sedgwick county, at a speed of 76 miles per hour in a 65 mile per hour speed zone. Wade testified at the trial that he first saw the defendant’s car at about the county line and did not, of his own personal knowledge, observe the offense with which he charged the defendant.
The State first argues that the issuance of the traffic ticket, by which we presume is meant the notice to appear and complaint, did not constitute an arrest for a misdemeanor not committed in the issuing officer’s presence. In support of this argument, two propositions are advanced: First, that no arrest was actually effected by the issuance of the ticket, and second, that even though an arrest was thus consummated, the offense charged was committed in the presence of Wade.
We approach a discussion of the first proposition by examining the pertinent provisions of the uniform act regulating traffic on highways. G. S. 1949, 8-5,128 (now K. S. A. 8-5,128) provides, in substance, that whenever any person is arrested for a misdemeanor in violation of the act and demands an immediate hearing, he shall immediately be taken before a court within the county in which the offense is alleged to be committed, while G. S. 1961 Supp., 8-5,129 (now K. S. A. 8-5,129) provides that whenever the person arrested is not given an immediate hearing, the officer shall prepare a written notice for him to appear in court at a specified time and place, on the offense charged, and may require that a cash bond be given for appearance. Subsection (1) (d) of 8-5,129, supra, reads as follows:
“The arrested person in order to secure release as provided in this section, must give his written promise so to appear in court by signing in duplicate the written notice prepared by the arresting officer. The original of said notice shall be retained by said officers and the copy thereof delivered to the person arrested. Thereupon, said officer shall forthwith release the person arrested from custody.”
G. S. 1949, 8-5,130 (now K.S.A. 8-5,130) recites that the foregoing provisions shall govern officers in making an arrest without a warrant for violations committed in their presence.
Careful consideration of the foregoing statutes forces us to conclude that an arrest of the defendant was effected at the time he was stopped, was issued the ticket, and agreed to appear. Not only are the terms “arrested person” and “arresting officer” used throughout the statutes, but a person arrested must take the affirmative action of giving his written promise to appear in order to secure his release. The language employed unmistakably indicates to us that the legislature intended that action by an officer in conformity with the procedures outlined in the act should constitute an arrest.
The second point urged by the State presents a problem of a different character: May it be said that the arrest was for an offense committed in the officer’s presence? In answering this question, consideration must be given to the peculiar, and so far as we are concerned, the unique circumstances existing in this case. Our attention has not been directed to any decision where the factual situation was exactly parallel, nor has our research disclosed a case directly in point.
When may it reasonably be said that an offense against the traffic laws has been committed in the presence of the arresting officer? The answer must take account of modern conditions and, especially, the mobile nature of our population. Modern man is, indeed, a mobile mammal. His locomotion is endless; his travels, constant; his craving for speed, insatiable. High speed motors and superhighways combine to gratify his passion for high velocities. It is against this background that today’s traffic officer must operate. Of necessity, new techniques of detection and apprehension have been developed and new scientific tools have been placed at the officer’s command.
Under the conditions obtaining at the time of Cook’s arrest we believe it would be unreasonable to say that the offense charged was not committed in Wade’s presence. Traffic was being checked north of Wichita by a team of three highway patrolmen — two in the ah, the third on the ground. The two officers aloft not only checked defendant’s speed from their plane, but they kept his car under constant surveillance and remained in radio communication with their earthbound fellow officer until Wade stopped die car. Wade, himself, observed defendant’s car approaching for some half mile, at the very time he was receiving information about the car by radio from his companions.
In view of these circumstances, we are of the opinion that the offense with which Wade charged the defendant must be deemed to have been committed in Wade’s presence. The law does not blindly close its eyes to reason. While holding fast to basic truths, it acknowledges the inevitablility of change and seeks to adapt itself to new conditions. For us to hold that Wade’s arrest of the defendant was illegal would, under the conditions prevailing in this case, violate common sense.
The conclusion we have reached is not wholly devoid of support. In Cave v. Cooley, 48 N. M. 478, 152 P. 2d 886, the court laid down this rule:
“A crime is ‘committed in presence of an officer when facts and circumstances occurring within his observation, in connection with what, under circumstances, may be considered as common knowledge, give him probable cause to believe or reasonable grounds to suspect that such is the case.” (Syl. | 3.)
The Supreme Court of West Virginia in the case of State v. Lutz, 85 W. Va. 330, 101 S. E. 434, held:
“An offense can be said to be committed in the presence of an officer only when he sees it with his own eyes, or sees one or more of a series of acts constituting [the] offense, and is aided by his other senses or by information as to the others, when it may be said the offense was committed in his presence.” (Syl. ¶ 9.)
The language in the Lutz case was quoted with approval both in State v. Koil, 103 W. Va. 19, 136 S. E. 510 and in Halko v. State, 54 Del. 180, 175 A. 2d 42.
Although the foregoing cases are not identical with the instant action from a factual standpoint, the viewpoints- expressed are comparable, and the language employed is persuasive.
A somewhat analogous situation was discussed in Commonwealth v. McDermott, 347 Mass. 246, 197 N. E. 2d 668, where an arrest was made, not by the officer who had witnessed gambling operations, but by two others who later went with him to the scene. The court said that in such a case the knowledge of one was the knowledge of all. The same, we believe, can reasonably be said to be true here.
We believe that the trial court’s order sustaining the defendant’s motion for discharge was improper for still another reason. The law appears to be well settled that courts are not divested of jurisdictions to try persons accused of crime because the accused may have been unlawfully arrested. This rule is set out in 5 Am. Jur. 2d, Arrest, § 116, as follows:
“The fact that an original arrest may have been unlawful does not affect the jurisdiction of the court, nor is it a ground for quashing the information. And it does not preclude the trial of the accused for the offense.” (p. 796.)
See also 22 C. J. S., Criminal Law, § 144, pp. 382, 383.
This rule was followed and applied in State v. May, 57 Kan. 428, 46 Pac. 709, where it was held:
“A district court of a county where a felony has been committed has jurisdiction to try the alleged offender, duly bound over on regular process, although he was originally arrested in another county without warrant and forcibly brought into the county where the crime was committed.” (Syl.)
The May case was cited with approval in In re Stilwell, 135 Kan. 206,208,10 P. 2d 15.
Other matters have been raised by the State, but we deem it unnecessary to prolong this opinion further by engaging in their discussion.
For the reasons herein set forth, we believe the State’s appeal was well taken and the same is hereby sustained.
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The opinion of the court was delivered by
Wertz, J.:
This is a workmen’s compensation case brought by Ida Poehlman, hereinafter referred to as claimant, against Norman Leydig, doing business as Martha’s Cafe, and his insurance carrier, The Travelers Insurance Company, hereinafter referred to as respondent.
The sole question is: In computing compensation to be paid, may the court apportion the compensation percentagewise according to the proportion of disability sustained by a claimant who had a pre-existing bodily disability when he sustained a second injury in the course of his employment, which, coupled with the previous disability, resulted in total disability, thus rendering him unable to perform work of the same kind and character as he was performing at the time of the second injury?
The facts insofar as pertinent to the appeal are as follows: The claimant, a fifty-five-year-old woman, had been working steadily as a cook and waitress for the respondent, performing all of her duties as such. On December 22, 1960, claimant, while engaged in the due course of her employment with respondent, slipped on soapy dishwater, fell, and fractured her right hip. In spite of noticeable pain thereafter, claimant continued to work for about a month. When the pain became quite severe she consulted Dr. V. W. Steinkruger who immediately placed her in the hospital where on January 26, 1961, by X-ray examination, it was disclosed claimant had an impacted fracture of the right femoral neck. After a week’s hospitalization claimant was placed on crutches, released from the hospital and returned to her home. She suffered pain in the hip socket and the entire leg was stiff and sore. Claimant attempted to perform work for the respondent, but because of the intense pain she was forced to quit. She attempted to relieve the pain by taking aspirins.
Before her fall in December 1960, claimant was suffering from bilateral venous insufficiency in both lower legs, inadequate nutrition, a flexor contracture of the right foot and possibly some arthritis in the low back as well as other functional impairment.
Dr. Steinkruger testified that, in addition to the conditions present at the time of the fall, the claimant was also suffering degenerative arthritis of the lumbosacral spine and thoracic spine and trochanteric bursitis of the right greater trochanter. He testified the degenerative arthritis of the lumbosacral spine was aggravated by the fall and the bursitis of the right greater trochanter was either precipitated or aggravated by the fall, but that the remaining diagnoses were present prior to the fall and were neither aggravated nor precipitated by this accident. It was Dr. Steinkruger’s opinion the claimant is presently disabled for full-time work as a cook and a waitress by reason of all of her medical conditions. He further testified the lumbar degeneration and bursitis alone would disable an ordinary person not more than 50 per cent but refused to apply this disability to the claimant because of her other disabilities.
Respondent’s doctor, Irvin H. Mattick, testified, “As far as her disability to perform her occupation as a waitress or cook is concerned, she was, as of Jan. 7, 1962, totally disabled.” He further stated claimant complained of pain over the knob of the hip bone and that X-rays revealed increased density on the right side of the back, but placed claimant’s disability as a result of the accident as low as 10 per cent permanent partial loss of use of the body.
On this and other extensive evidence in tire record the trial court made the following finding:
“The claimant is presently suffering a general disability of 100%; but that much of this disability is not related to the accident of December 22, 1960. That the accident did cause an increase of the disability of the claimant, but that much of the present disability is not the result of such accident. It is the finding of this court that the claimant is now suffering general bodily disability of 25% as a result of the accident of December 22, 1960.”
On this finding the court allowed claimant compensation for a period of 346.86 weeks and entered judgment in accordance therewith, from which the claimant appeals, presenting the sole question as hereinbefore stated.
The respondent argues that the trial court determined the claimant was suffering a pre-existing disability of 75 per cent loss of use of the body prior to her accidental injury and further determined that the accidental injury, consisting of a fall and a consequent broken hip, was responsible for adding to claimant’s injury by an additional 25 per cent general bodily disability; and that by reason of the concurrent contribution of both disabilities, the claimant is now presently 100 per cent permanently disabled but should be compensated for only that part of the disability which resulted from the accident. Claimant contends the trial court erred in apportioning the disability.
Respondent contends that G. S. 1959 Supp., 44-510 (3) (c) (26), now K. S. A. 44-510 (3) (c) (26), grants the court power to apportion disability. It reads:
“If a workman has suffered a previous disability and received a later injury, the effects of which together with the previous disability shall result in total permanent disability, then and in that event the compensation due said workman shall be the difference between the amount provided in the schedule of this section for his prior injury and the sum total which would be due said employee for such total disability computed as provided in section 44-511. . . .”
It is apparent the provision contemplates the prior existence of a schedule injury on which is superimposed another later injury resulting in total permanent disability, and in no case is the statute applicable unless the court finds total permanent disability. The legislature never intended to attach to a workman all previous disabilities so they may be subtracted from any disability rating he might receive at any time in the future. In most cases the legislature has provided protection for the employer and his insurance carrier by providing legislation known as the second injury fund (K. S. A. 44-566, etseq.).
The respondent stipulated that claimant’s accident arose out of and in the course of employment. There is no contention by respondent that the claimant was disabled from performing her work prior to the accident. In fact, the evidence discloses she satisfactorily performed all of her duties as a cook and waitress.
The question raised in the instant case has been dealt with by this court on a number of occasions. In Conner v. M & M Packing Co., 166 Kan. 98, 199 P. 2d 458, the claimant, who at the time of his injury was performing common labor for his employer, had been seriously handicapped for several years and had a weak back which had been stabilized by fusion of certain of the vertebrae. It was conceded he was unable to perform heavy manual labor and that there was no medical testimony the accident claimed by him to have been responsible for his condition was the cause of his injury. Even so, he was regularly employed as a common laborer with tire respondent. It was not denied he was struck in the back by a heavy door on the date he claimed to have suffered the injury of which he complained. In affirming the trial court’s finding of total per manent disability, this court stated that it had not reached its decision without consideration of appellant’s contention appellee had been unable to do heavy work for years because of his physical infirmities and hence could not be totally disabled as a result of the accident in question; that such contention was not tenable for the reason that regardless of what the claimant’s condition or ability to work may have been earlier, he had been, on the date of the accident, gainfully and regularly employed by the respondent on a full-time job performing each and all of the incumbent duties of the position so held. We further stated that it cannot be said a workman with some physical disability for which he has not been compensated, but who is capable of doing the work required of the position in which he is regularly employed, is not to be regarded as totally disabled under its terms if and when in the course of his employment he suffers injuries which render him wholly unable to do work of the character he had been performing in such position.
In another analogous case, Cody v. Lewis & West Transit Mix, 186 Kan. 437, 351 P. 2d 4, claimant suffered a back injury in November 1955. He settled his claim with his former employer, Radger Materials, Inc., after receiving treatment which was not successful in perfecting a cure. Later, on January 30, 1958, while working for the respondent, Lewis & West Transit Mix, he suffered a second injury to his back. The commissioner found the claimant was suffering a 25 per cent general bodily disability as a result of the accident occurring in 1955, and that the claimant’s disability was increased to 35 per cent by reason of the second accident. The commissioner further found by reason of claimant’s January 30, 1958, accident that claimant was suffering only a 10 per cent temporary partial disability. The district court modified the commissioner’s award and granted a 35 per cent permanent partial disability to the claimant. After discussing the prior cases with regard to the adoption of the minority rule requiring apportionment, the absence of health standards for workmen under the act, and the rule that places upon the employer the risk of employing a workman with a pre-existing disease, this court refused to allow apportionment of the award. We further suggested the power to apportion an award was within the ambit of the legislature, and for us to write something into the statute that that body did not see fit to put there would be improper.
In our decision in Johnson v. Skelly Oil Co., 181 Kan. 655, 656, 312 P. 2d 1076, a parallel case, and which was reaffirmed in the Cody case, supra, we restated many of our well-settled rules of law applicable to compensation cases, saying:
. . The risk of employing a workman with a pre-existing disease is upon the employer. Where a workman is not in sound health but is accepted for employment and a subsequent industrial accident suffered by him aggravates his condition resulting in disability, he is entitled to compensation. (Hall v. Kornfeld-Harper Well Servicing Co., 159 Kan. 70, 74, 151 P. 2d 688; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 190 P. 2d 863, and cases therein cited.) There is no standard of health necessary to bring a workman under the statute and accidental injuries are compensable thereunder where the accident only serves to aggravate or accelerate an existing disease or intensifies the affliction. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; Copenhaver v. Skyes, 160 Kan. 238, 243, 160 P. 2d 235.)
“However, respondent strenuously urges that we adopt a rule followed in some other jurisdiction to the effect that where a pre-existing disease has been materially aggravated by accidental injury the compensation award should be apportioned according to the contribution of the pre-existing condition and the accident and cites American Rolling Mill Co. v. Stevens, 290 Ky. 16, 160 S. W. 2d 355, 145 A. L. R. 1256, wherein it is stated:
“ ‘Where an accident “lights up” a pre-existing disease, the accident is compensable but award should be apportioned according to contribution of each.’ (Syl. 4.)
“The mentioned decision is based upon the Kentucky statute, which is altogether different from ours, and the rule laid down appears to be the minority rule. It might be pointed out that by an amendment to the Kentucky compensation statute in 1948 the legislature expressly adopted the majority rule. (Section 342.120.) We see no reason why we should change our well-established rule and we therefore adhere to the majority rule laid down in our opinions cited above.”
Respondent has cited us no case in this jurisdiction to support its contention. The legislature has expressed an unfavorable attitude with regard to apportionment of awards granted under the workmen’s compensation act by restricting apportionment to specific cases as set forth in K. S. A. 44-510 (3) (c) (26). This court has consistently held the workmen’s compensation act is founded broadly upon consideration of public policy. Its purpose is to provide protection to workmen within the limits established by the act. To this end trial courts are committed, in many decisions unnecessary to review, to a liberal interpretation of the act with the view of making legislative intent effective and not to nullify it. (Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 621, 358 P. 2d 676.)
Respondent readily concedes we have no apportionment statute but urges we adopt the minority view taken by a few states. This issue was laid to rest in Johnson v. Skelly Oil Co., supra. The general rule is stated in 99 C. J. S., Workmen’s Compensation, § 298, p. 1047:
“As a general rule, regardless of preexisting conditions, if a workman’s disability is precipitated by an accident arising out of his employment, which disability would in all probability not have arisen but for such accident, the entire disability both as to extent and duration is within the injury for which the statute authorizes compensation, and, in the absence of a statutory provision to the contrary, there is no prorating the extent of the disability due to the accident itself on the one hand and that due to the aggravation thereof or retardation of recovery caused by the employee’s physical condition on the other. So it has been held that the amount of award is to be based on the proportion of disability to normal ability regardless of a previous partial impairment of normal ability, and it makes no difference that the employee was aged or diseased, nor will such fact enhance the amount of compensation. A diseased condition of the employee previous to the injury, which retards his recovery and lengthens the period of disability, will not justify a discontinuance of compensation as long as the incapacity results from the injury.”
If we were to adopt the theory advocated by the respondent, our action would permit employers and their insurance carriers to conduct a witch hunt into a workman’s past in an effort to secure evidence of prior diseases or accidents which might have left their imprint upon the workman’s body and later influenced his earning capacity. Such a precedent would require the medical profession, examiner, director and trial court to surmise, speculate or prognosticate about the percentage of disability, if there be any, prior to the accident. It would serve no useful purpose but would defeat the very protection granted by the legislature in the workmen’s compensation act and overrule our innumerable decisions.
In the instant case the trial court found claimant to be presently suffering a general disability of 100 per cent, that the accident of December 22 did cause and increase the disability of the claimant, but that much of the present disability was not the result of the accident of December 22. On the basis of these findings the trial court proceeded erroneously to apportion the recovery between the pre-existing disability and the disability suffered by reason of the accident of December 22 which resulted in the total disability.
In view of what has been said, the judgment of the trial court is reversed and the cause is remanded with directions to recompute the compensation due claimant on the basis of its finding of total disability.
It is so ordered.
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Per Curiam:
This is an original proceeding in discipline filed by the office of tire Disciplinary Administrator against the respondent, Douglas A. Patterson, of Kansas City, Missouri, an attorney admitted to the practice of law in Missouri in 1999 and in Kansas in 2000. The respondent’s license to practice law in the state of Kansas has been administratively suspended since October 6,2004, 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.
In 2004, the office of the Chief Disciplinary Counsel in Missouri filed an information against the respondent, charging him with eight counts of violating of the Missouri Rules of Professional Conduct. The alleged violations involved complaints by four of the respondent’s clients that he had accepted retainer fees for an agreement to provide each of them legal services, that in each instance he failed to provide the agreed-upon services, and that in each instance he failed to reimburse the client the previously advanced retainer fee. The respondent received proper notice of the Missouri disciplinary action. Nevertheless, the respondent did not file a timely answer to the information, nor did he respond at any time to the disciplinary complaints. The respondent was therefore disbarred by the Missouri Supreme Court pursuant to Missouri Supreme Court Rule 5.13:
“The information shall be accompanied by a notice that the respondent is to file an answer or other response with the chair of the advisory committee, and serve a copy on the counsel of record for the informant and the chief disciplinary counsel, within 30 days after the service of tire information on the respondent. If an answer or other response is not timely filed, the information shall be filed in this Court as an information with notice of the default.
“The failure to file an answer or other response to the information timely shall be deemed as consent by the respondent for this Court to enter an order disbarring respondent without further hearing or proceeding.”
The Missouri Supreme Court entered the following disbarment order on March 17, 2005: '
“ORDER
“The Chief Disciplinary Counsel having filed an Information advising this Court that Division 1 of the Region IV Disciplinary Committee had served an information upon Respondent via regular and certified mail alleging, after investigation, that there is probable cause to believe Respondent, Douglas Allen Patterson, is guilty of professional misconduct and having filed with said Information, pursuant to Rule 5.13, a Notice of Default, notifying tire Court that Respondent, Douglas Allen Patterson[,] failed to timely file an answer and 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 tire said Douglas Allen Patterson, 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.
“It is further ordered that the said Douglas Allen Patterson comply in all respects with 5.27 — Notification of Clients and Counsel.
“Costs taxed to Respondent.”
On September 12, 2008, the office of the Disciplinary Administrator in Kansas filed a formal complaint against the respondent, alleging that the respondent violated Kansas Rule of Professional Conduct (KRPC) 8.1 (bar admission and disciplinary matters) (2008 Kan. Ct. R. Annot. 579); KRPC 8.3 (reporting professional misconduct) (2008 Kan. Ct. R. Annot. 585); and KRPC 8.4 (misconduct) (2008 Kan. Ct. R. Annot. 586); as well as Supreme Court Rule 207 (duties of the bar) (2008 Kan. Ct. R. Annot. 295), Supreme Court Rule 208 (registration of attorneys) (2008 Kan. Ct. R. Annot. 307), Supreme Court Rule 802 (continuing legal education requirements) (2008 Kan. Ct. R. Annot. 728), and Supreme Court Rule 806 (suspension for failure to comply with continuing legal education requirements) (2008 Kan. Ct. R. Annot. 731). This complaint arose from the Missouri disciplinary proceedings as a reciprocal action. The respondent — although properly notified under our rules — never responded to the formal complaint.
A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 5, 2008. The respondent — although properly notified under our rules of this hearing — did not appear.
Applying Kansas Supreme Court Rule 202 concerning reciprocal discipline (2008 Kan. Ct. R. Annot. 262), and based on the documents filed in the Missouri disciplinary proceeding, the hearing panel concluded that the respondent violated KRPC 8.1(b) (duty to respond to a lawful demand for information from a disciplinary authority), KRPC 8.3(a) (duty to self-report disciplinary violations), Supreme Court Rule 207 (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). The hearing panel found that there was not clear and convincing evidence in the record to establish that the respondent violated KRPC 8.4 (misconduct). The hearing panel also found that the Disciplinary Administrator s allegations that the respondent violated Supreme Court Rule 208 (requiring annual registration fee) and Supreme Court Rules 802 and 806 (annual continuing legal education requirements) were redundant to the respondent’s previous administrative suspension by this court.
The panel recommended that the respondent be indefinitely suspended from the practice of law in the state of Kansas. The panel also recommended, following the Disciplinary Administrator’s suggestion, that the respondent be required to establish that he has been reinstated in Missouri before he may be reinstated in 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. Because the respondent filed no exceptions to the hearing panel’s conclusions, 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); Supreme Court Rule 207(b); and Supreme Court Rule 211(b).
Furthermore, this court has previously held that a default judgment in a Missouri disciplinary action satisfies the grounds for reciprocal discipline in this state under Rule 202. See In re Tarantino, 286 Kan. 254, 256-57, 182 P.3d 1241 (2008); In re Harris, 286 Kan. 260, 264-65, 182 P.3d 1249 (2008). In Tarantino, we explained:
“[I]t has been established by clear and convincing evidence that respondent was disbarred in Missouri for misconduct in failing to file a timely response to tire 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 satisfied 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.
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 Rule 8.4. 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 Douglas A. Patterson 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 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
Davis, C.J.:
In this slip-and-fall personal injury action, the district court granted summary judgment in favor of the defendant property owner, applying the “slight-defect rule” regarding sidewalks to the owner s parking lot and determining as a matter of law that the defendant had no duty to protect the plaintiff from the slight defect that allegedly caused her injury. The Court of Appeals reversed, refusing to extend the slight-defect rule to defendant’s parking lot. Elstun v. Spangles, Inc., 40 Kan. App. 2d 458, 193 P.3d 478 (2008). On petition for review, we agree with and affirm the Court of Appeals decision, reverse the district court, and remand the case to the district court for further proceedings.
The facts giving rise to plaintiff s action are adequately set forth in the Court of Appeals opinion;
“On February 24, 2004, Violetta Elstun first went to church and then to eat at a Spangles restaurant on Fourth Street in Hutchinson. It was misting as she was leaving the restaurant. She walked through the parking lot to her car, opened her car door, and stepped back into a hole. Ms. Elstun fell and suffered a broken hip. She later testified the hole was hidden from view because the pavement was dark and wet and the hole was filled with water. Ms. Elstun also testified that she was not looking at the ground or the depression in the parking lot before she fell. Estimating from the photographs attached to Spangles’ motion for summary judgment, the sagging depression that Elstun stepped in was about 2 inches deep.
“Spangles moved for summary judgment, arguing the slight-defect rule barred Ms. Elstun’s claim. The corporation attached two photos to support its claim the depression in the parking lot was only 2 inches deep. Ms. Elstun disputed Spangles’ claim about the depth of the depression. She argued ‘the photos attached by Defendant are insufficient to establish the depth of the depression and are not in conformity with Sup. Ct. R. 141(a).’ She asserted, as an added uncontroverted fact, the hole was hidden from view by the dark, wet pavement. She also argued the slight-defect rule did not apply to defects in a retail business parking lot and that, if the rule was applicable, there were circumstances which precluded application of the rule here. The district court held the slight-defect rule barred Ms. Elstun’s claim and granted Spangles’ motion for summary judgment.” Elstun v. Spangles, Inc., 40 Kan. App. 2d at 459.
The Court of Appeals reversed and remanded the case for further proceedings. 40 Kan. App. 2d at 465. For reasons set forth in its opinion, the Court of Appeals refused to extend the slight-defect rule, which had previously been applied only to certain sidewalks, to Spangles’ parking lot. Instead, the court concluded that the rule enunciated in numerous cases regarding the duty of an occupier of property to exercise reasonable care for those invited or lawfully upon the premises should apply. 40 Kan. App. 2d at 462-65. Under this standard:
“The duty owed by an occupier of land to invitees and licensees alike is one of reasonable care under all the circumstances. Included in the factors that are to be considered in determining whether, in the maintenance of his or her property, the land occupier exercises reasonable care under all the circumstances are the forseeability of harm to the entrant, the magnitude of the risk of injury to others in maintaining such a condition on the premises, the individual and social benefit of maintaining such a condition, and the burden upon the land occupier and/or community, in terms of inconvenience or cost, in providing adequate protection.” Jones v. Hansen, 254 Kan. 499, 509-10, 867 P.2d 303 (1994).
This court granted Spangles’ petition for review. The sole issue for our determination is as follows: Whether the slight-defect rule, which provides generally that properly owners have no duly to repair slight defects in sidewalks not caused by their own making, should be extended to parking lots.
The Slight-Defect Rule
Negligence is defined as “the lack of ordinary care” or, more specifically, “the failure of a person to do something that a reasonably careful person would do, or the act of a person in doing something that a reasonably careful person would not do, measured by all the circumstances then existing [citation omitted].” Johnston, Administratrix v. Ecord, 196 Kan. 521, 528, 412 P.2d 990 (1966). In a personal injury action based upon negligence, the plaintiff must prove “the existence of a duty, breach of that duty, injuiy, and a causal connection between the duty breached and the injury suffered.” Nero v. Kansas State University, 253 Kan. 567, Syl. ¶ 1, 861 P.2d 768 (1993).
In the vast majority of cases, claims based on negligence present factual determinations for the jury, not legal questions for the court. Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008). This general rule notwithstanding, questions regarding the existence of a duty of care are purely legal determinations. Nero, 253 Kan. 567, Syl. ¶ 1. If a court concludes that a defendant did not have a duty to act in a certain manner toward the plaintiff, then the defendant cannot be Hable to the plaintiff for negligence. See Sepulveda v. Duckwall-Alco Stores, Inc., 238 Kan. 35, 38-40, 708 P.2d 171 (1985). In such cases, a court may correctly grant summary judgment in the defendant’s favor. See 238 Kan. at 40.
Since 1935, Kansas courts have applied a judicially created rule that “[s]light and inconvenient defects in the sidewalk of a city street do not furnish basis for actionable negligence, even though a pedestrian may trip, fall, and injure [himself or] herself on account of such a trivial defect.” (Emphasis added.) Ford v. City of Kinsley, 141 Kan. 877, Syl. ¶ 1, 44 P.2d 225 (1935); see also Biby v. City of Wichita, 151 Kan. 981, Syl. ¶ 1, 101 P.2d 919 (1940) (“In an action against a city to recover for personal injuries, a slight defect or obstruction, an inconsiderable unevenness or variance in the surface level of a public sidewalk, whether existing in the sidewalk itself or caused by an object lying upon the sidewalk, is not sufficient to establish actionable negligence in the construction or maintenance of a sidewalk.”).
Although cases that apply this slight-defect rule generally use the terms “actionable negligence” or “actionable defect,” this court explained in Taggart v. Kansas City, 156 Kan. 478, 134 P.2d 417 (1943), that the rule is actually based on the definition of the duty owed by municipalities or property owners to pedestrians using the walkways in question. Specifically with regard to municipalities, Taggart reasoned that “[t]he city is not an insurer of the safety of those who use its streets and walks. It is not required to furnish perfect walks. Its only duty in this respect is to furnish walks that are reasonably safe for use. [Citations omitted.]” (Emphasis added.) 156 Kan. at 480. To “impose a greater duty upon cities would be to place upon them too great a financial burden.” 156 Kan. at 480.
All of the early cases applying the slight-defect rule involved municipal liability for public walkways. As time wore on, however, this court applied the same rule in actions against individuals or private corporations whose property abutted a public sidewalk. See Sepulveda, 238 Kan. at 38.
Standard of Review
This case comes before the court as an appeal from the grant of summary judgment in favor of Spangles. On appeal, this court applies the same rules that a district court utilizes when considering summary judgment motions. When pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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, summary judgment is appropriate. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005). However, if “ ‘ “reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” ’ [Citations omitted.]” 278 Kan. at 788.
The question presented in the instant case — whether a property owner should always be relieved of the duty to repair slight defects in parking lots — is a policy question regarding the duty owed to patrons of parking lots. “Whether a duty exists is a question of law” over which this court’s review is unlimited. Nero, 253 Kan. 567, Syl. ¶ 1.
Discussion and Conclusion
The question presented in this case is whether the slight-defect rule should also be extended to parking lots, such as that owned by Spangles here. Spangles argues, and the district court agreed, that the same cost-utility analysis that underlies the rule regarding sidewalks — measuring the cost of the repair against the benefit of maintaining perfectly smooth surfaces — applies equally to parking lots, which often become worn down after normal wear and tear and Kansas weather conditions. Elstun responds, and the Court of Appeals concluded, that sidewalks are different from parking lots in a number of ways that weigh against extending the rule. Most specifically, Elstun points out that parking lots are generally owned and maintained by businesses or other entities for the purpose of providing its clientele a convenient place to park vehicles; sidewalks are walkways open to the public. See Elstun, 40 Kan. App. 2d at 465.
The Court of Appeals rejected Spangles’ argument and the district court’s conclusion that the policies behind the slight-defect rule are equally applicable to parking lots. In its opinion, the Court of Appeals listed three main differences between sidewalks and parking lots that it found to argue demonstrate that the slight-defect rule should not be applied to the latter: (1) Sidewalks are built for foot traffic, while parking lots are built to withstand both human traffic and heavy motor vehicles; (2) sidewalks are usually made of several concrete slabs or bricks, while parking lots are made of poured cement or asphalt that often compress to create “deep” depressions under vehicles’ wheels; and (3) sidewalks are generally open to the public, while parking lots are often open only to customers. Elstun, 40 Kan. App. 2d at 465.
Spangles argues that these three distinctions do not provide a basis for only applying the slight-defect rule to sidewalks. Spangles notes that the slight-defect rule is rooted in a cost-utility analysis that weighs the cost of repairs against the threat that minor defects pose to public safety. See Sepulveda, 238 Kan. at 39. Spangles states that this same analysis may be applied to both sidewalks and parking lots and is dependent neither on the surface material nor the party who maintains the surface in question.
While the arguments advanced by Spangles may have some merit, we are not persuaded that our present law regarding the reasonable care owed by an occupier of land to invitees and others lawfully on the owner’s land needs revision. Our present law acknowledges principles firmly embedded in Kansas law. Very recently in Deal, we concluded that “[tjhere is a reason that this court has made the policy determination that questions of negligence must be left to the jury unless reasonable minds could not differ on the outcome. [Citation omitted.]” 286 Kan. at 867. We explained:
“ ‘Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged had been established. Before the court should make such a holding the evidence should be so clear that reasonable minds considering it could have but one opinion; namely, that the party was negligent. [Citation omitted.]
“ ‘The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free people. A trial court, in the exercise of its prerogative in determining questions of law only in these kinds of cases, should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.’ ” 286 Kan. at 867 (quoting Krentz v. Haney, 187 Kan. 428, 431-32, 357 P.2d 793 [1960]).
The slight-defect rule is a narrow, judicially created exception to this general principle that has until now been applied only to sidewalks. See Taggart, 156 Kan. at 480; Ford, 141 Kan. at 878-79. We decline to expand that exception to parking lots. Instead, injuries that are alleged to have been suffered in parking lots must be assessed under this state’s premises liability principles. See Jones, 254 Kan. at 509-10; Elstun, 40 Kan. App. 2d at 465.
The judgment of the Court of Appeals reversing the district court is affirmed. The judgment of die district court is reversed, and the case is remanded to the district court for further proceedings.
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Per Curiam:
On review of the judgment of the Court of Appeals in Unruh v. Purina Mills, No. 97,494, unpublished opinion filed June 27, 2008, Purina Mills, LLC, appeals from the jury verdict and award of attorney fees entered against it in a breach of warranties and Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., action involving feed supplements supplied to two cattle ranchers.
A comparison with the record on appeal establishes that the statement of facts contained in the decision of the Court of Appeals is accurate and sufficient for purposes of review, as follows:
“Kenneth E. Unruh and Robert K. Carter are neighboring cattle ranchers. In August 2003, Unruh attended a seminar conducted by Purina Mills, LLC (Purina), to promote a self-feeding system designed to reduce labor, save time, permit cattle to perform to their highest genetic ability, and boost total net return. The system used a creep feeder that distributed a product known as ‘2HL,’ which supplements a diet of grass or hay. 2HL is a mixture of com, sunflower seed, cottonseed, and soybeans that varies from batch to batch. Purina calculates the cheapest mixture based on current costs that provides the promised nutrition content. This technique — the least cost formula — has been used in the animal feed industry for the past 50 years. Each bag of 2HL has a tag that guarantees the mixture contains a minimum amount of certain ingredients.
“Unruh was impressed with the system and told Carter about it. As a result, Unruh and Carter agreed to purchase the system. They received their first load of 2HL in late November 2003. They had no initial problems with the system other than regulating the flow of feed from the feeder. Tim Peissig, Purina’s district manager, and Kent Hansen, the owner of the local retail distributer, observed Unruh’s cows 2 weeks later and concluded that the system was working properly. However, Hansen noted that Unruh had no hay and very little grass available to his cattle and reminded Unruh to provide the cows with an ample supply.
“When Unruh and Carter received their second load of 2HL in late December 2003, they noticed that the feed had a different color than the first batch and was hard and oily in texture. They had to break the feed apart with crowbars and claw hammers to make the product edible for their cows. Over the next several weeks, Unruh and Carter continued to break up the 2HL in the feeders daily, but their cattle’s consumption of the feed dropped and the cows began losing weight.
“In February 2004, Unruh notified Purina of these problems-. Peissig and Hansen returned to Unruh’s ranch, and Hansen again noted the lack of hay for Unruh’s cows. Testing of the feed revealed that Purina had changed the formula for 2HL between the first and second batch. Sunflower meal increased from 5% to 15% and cottonseed meal decreased from 10% to 0%. Nevertheless, the mix met Purina’s nutrition specifications.
“Peissig and Hansen attempted to solve Unruh’s problems by delivering to Unruh a batch consisting of 80% 2HL and 20% com. Pending delivery of this new batch, Unruh fed his cows as much hay as possible as Peissig had suggested. Carter also fed his cows more hay as soon as they began to lose weight.
‘When Peissig and Hansen returned a couple of weeks later, nearly a dozen of Unruh’s and Carter’s cows had died and others aborted their calves and had to be sold at a loss.
“In August 2005, Unruh and Carter filed a suit against Purina claiming damages for breach of express and implied warranties. The court later granted them leave to amend their petition to include claims for breach of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-625 et seq. Unruh and Carter never filed and served an amended petition which included their KCPA claims, though a pro posed amended petition was attached to their motion for leave to amend. The claim was later set forth in the pretrial order.
“Purina moved to sever for trial the separate claims of Unruh and of Carter. The district court denied the motion. Purina also moved in limine to prohibit Unruh and Carter from expressing lay opinions on causation. In overruling the motion, tire [judge] observed:
“ ‘Mr. Carter and Mr. Unruh, their profession is in raising cattle, and in that respect an integral part of that business is feeding cattle and putting weight on cattle so that they can maximize their profits when these cattle are sold. And doing that land of business, they acquire certain knowledge about cattle and what they eat and what they’re fed, and I think that they are qualified to offer testimony in that regard.’
“At trial, Bret Galyardt, a Purina employee engaged in quality control, testified that cold weather and other variables may affect the flowability of feed, though not to the extent that a rancher should be expected to have to break apart the feed with a hammer or a crowbar. Peissig testified that he was aware that 2HL had flowability problems in very cold weather, but he did not inform Unruh and Carter of this because it did not happen very often.
“Unruh testified that the switch to 2HL did not reduce his labor or time or ensure Iris cattle would perform to the best of their genetic ability. To the contrary, he believed that his cows’ inability to feed on the 2HL due to the flowability problem resulted in many of them dying or aborting their calves. Nevertheless, he did not disagree with the statement that Purina wanted him to succeed in the use of 2HL. He testified that the use of 2HL caused tire death of 5 registered Angus cows, the reduced value of 14 other cows, and the loss of calves due to 59 cows aborting. Unruh claimed damages of $50,900.
“Carter’s testimony was, for the most part, consistent with that of Unruh. He testified that the use of 2HL caused him to lose 4 cows, and he had to sell 16 other cows at a loss. He also claimed he lost 16 calves due to cows aborting. He claimed damages of $17,600.
“James Forcherio, Ph.D., Purina’s expert, opined that Unruh’s and Carter’s cattle must have been starving to lose the amount of weight they experienced within the relevant 30-day period. He attributed the loss to tire lack of adequate forage, not the second batch of 2HL. He testified that 2HL is only a supplement to help cows gain weight and should be provided in addition to an otherwise adequate food supply. In his opinion, Unruh’s and Carter’s cows would not have lost as much weight as they did, even when supplied with a bad batch of 2HL, if they were otherwise provided with an adequate food supply.
“The jury returned a verdict in favor of Unruh and Carter for breach of implied warranties of merchantability and fitness for a particular purpose, breach of express warranty, and violation of the KCPA. On Unruh’s claims the jury apportioned 20% of the fault to Unruh and 80% to Purina and found his damages to be $47,550. On Carter’s claims the jury apportioned 5% of the fault to Carter and 95% to Purina and found his damages to be $17,125.
“After dismissing the jury, the district court discovered that the caption on the jury verdict forms incorrectly listed the defendant as ‘State Farm Mutual Automobile Insurance Company’ rather than Purina. The court ultimately found this to be harmless and denied Purina’s motion for new trial or, in the alternative, for judgment notwithstanding the verdict. The court granted Unruh’s and Carter’s motion for attorney fees based upon their successful KCPA claims.” Unruh, slip op. at 2-6.
Purina took a timely appeal. The Court of Appeals affirmed in part and reversed in part, finding that insufficient evidence supported the KCPA claims and the resulting award of attorney fees. Slip op. at 18-19. Judge Malone dissented in part and would have affirmed the district court on all issues. Slip op. at 23 (Malone, J., concurring and dissenting). Both parties filed petitions for review. The plaintiffs sought review of a ruling relating to the definition of willfulness under the KCPA. Purina sought review of rulings relating to the jury verdict form and the testimony of the plaintiffs on causation. This court granted review on all issues. See Supreme Court Rule 8.03(g)(1) (2009 Kan. Ct. R. Annot. 66); Troutman v. Curtis, 286 Kan. 452, 457, 185 P.3d 930 (2008) (on granting review without explicit limitation, Supreme Court may review all issues presented to and decided by the Court of Appeals).
I. Joinder
The district court joined Unruh’s and Carter’s claims in a single cause of action. Purina argues that joinder constituted reversible error because Unruh and Carter initially stated different theories of causation; they engaged in different farm management practices; and Carter had to rely on evidence introduced by Unruh to support his claims of misrepresentation. The Court of Appeals found the district court did not abuse its discretion in joining the claims. Unruh, slip op. at 15-18.
The standard of review for a district court decision to consolidate cases for trial is abuse of discretion. See State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 352, 76 P.3d 1000 (2003) (decision not to join parties reviewed under abuse of discretion standard); Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 217, 843 P.2d 248 (1992) (decision whether to join parties in class action reviewed under abuse of discretion standard); Loucks v. Farm Bureau Mut. Ins. Co., 33 Kan. App. 2d 288, 302, 101 P.3d 1271 (2004), rev. denied 279 Kan. 1006 (2005) (decision not to consolidate cases for trial reviewed under abuse of discretion standard).
K.S.A. 60-220(a) provides in relevant part for permissive joinder of parties as plaintiffs
“if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of die same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action.... A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded.”
K.S.A. 60-220(b) provides that the district court may order separate trials in order to “prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom [the party] asserts no claim and who asserts no claim against [that party]” and in order to “prevent delay or prejudice.”
As the Court of Appeals noted, Unruh and Carter raised cattle on adjoining ranches and used similar feeding practices. Both purchased feed supplements from Purina, and both suffered losses to their cattle. They raised the same claims against Purina. Although Carter testified in a deposition that he believed the nutritional content of the Purina supplement was the cause of his losses, he testified at trial that the clumping and poor flow were the problems resulting in the losses.
The underlying facts and the theories at trial were substantially the same, and the statutory requirements for joinder were satisfied. Even if Carter “needed to ride the coattails of Unruh’s evidence” and in fact bootstrapped his claims onto Unruh’s, the Court of Appeals correctly noted that Purina could have expected Carter to present the same witnesses and theories that Unruh did to support his case. Slip op. at 17.
The Court of Appeals concluded: “Rather than causing delay or unnecessary expense, the consolidation of these claims for trial had the exact opposite effect. Separate trials would have caused considerable] delays and caused the parties and the court to waste considerable time and expense in the presentation of redundant testimony and exhibits.” Slip op. at 17-18.
The Court of Appeals opinion accurately states the facts and reaches the correct conclusion. The district court did not abuse its discretion in joining the plaintiffs’ cases for trial. We affirm on this issue.
II. Sufficiency of the Pleadings
Purina next argues on appeal that the plaintiffs’ initial petition did not plead a cause of action under the KCPA; although the district court gave the plaintiffs leave to amend their petition, they failed to do so, and the KCPA claims were erroneously submitted to the jury. The Court of Appeals noted that the pretrial order stated claims under the KCPA, Purina did not make a timely objection to the order, and the issue was not properly preserved for appeal. See Unruh, slip op. at 9-10. The analysis by the Court of Appeals is correct.
Whether a pleading is sufficient to state a cause of action is a question of law. See Tuggle v. Johnson, 190 Kan. 386, 390, 375 P.2d 622 (1962); Ewing v. Pioneer Nat’l Life Ins. Co., 158 Kan. 371, 374, 147 P.2d 755 (1944). Errors in law are subject to unlimited review on appeal. See Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006).
Under notice pleading, the petition is not intended to govern the entire course of the case. Rather, the pretrial order is the ultimate determinant as to the legal issues and theories on which the case will be decided. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001). The pretrial conference order, filed June 14,2006, stated as the first issue of fact: “Did the defendant engage in deceptive acts or practices under the Kansas Consumer Protection Act?” The pretrial order supersedes any pleadings and has the effect of amending the pleadings to conform to it. K.S.A. 2008 Supp. 60-216(e); Bob Eldridge Constr. Co. v. Pioneer Materials, Inc., 235 Kan. 599, 606, 684 P.2d 355 (1984); Knowles v. Fleetwood Motorhomes of California, Inc., 40 Kan. App. 2d 573, 578, 194 P.3d 38 (2008);
If a party has an objection to a pretrial order, the party must file the objection in writing with the district court. Supreme Court Rule 140(f) (2008 Kan. Ct. R. Annot. 220). A party generally must make a timely objection to a district court ruling in order to preserve an issue for appeal. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006); State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006); Price v. Grimes, 234 Kan. 898, 901, 677 P.2d 969 (1984).
The pretrial order sufficiently stated the plaintiffs’ claims under the KCPA, and the order superseded any petitions or amended petitions that the plaintiffs may have filed. The KCPA claims were properly submitted to the jury, and we affirm on this issue.
III. Expert Testimony
Prior to trial, Purina filed a motion in limine seeking to prevent the plaintiffs, Unruh and Carter, from testifying that the feed supplement caused the losses to their cows. The trial court ruled that Unruh and Carter could testify to causation based upon their experience as cattle ranchers. At trial, Purina did not object to the testimony of Unruh and Carter on the issue of causation. To the Court of Appeals, Purina argued that the plaintiffs should have been required to present expert testimony on the issue of causation. The Court of Appeals found that Purina had failed to preserve an objection to the plaintiffs’ testimony at trial:
“At trial, Purina raised an objection based upon the economic loss doctrine but failed to make a contemporaneous objection to the testimony on causation. Notwithstanding tire adverse ruling on causation at the hearing on Purina’s motion in limine, to preserve the issue for appeal Purina had to object to the testimony at trial. See Fitzpatrick v. Allen, 24 Kan. App. 2d 896, 902, 955 P.2d 141, rev. denied 264 Kan. 821 (1998). Further, objecting on one ground at trial does not preserve a different objection on appeal. 24 Kan. App. 2d at 903. Purina never objected at trial to the causation testimony of Unruh and Carter. Its objection on a wholly separate and distinct ground, the economic loss doctrine, did not preserve the issue for appeal. Accordingly, the causation issue is not properly before us.” Unruh, slip op. at 15.
On appeal to this court, Purina attempts to avoid the failure to register a contemporaneous objection by arguing that the plaintiffs did not present any causation testimony. Purina maintains the testimony cited by the Court of Appeals pertained to damages, not to causation, and consequently, Purina could not have objected to causation testimony and did not fail to preserve the issue for ap peal. In its initial brief, however, Purina argued that it was error for the district court to allow the plaintiffs to testify relating to causation.
An appellate court reviews a trial court’s decision on a motion in limine under the abuse of discretion standard. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997). When the trial court grants or denies a motion in hmine and the evidence is introduced at trial, the moving party must object at trial to the admission of the evidence to preserve the issue for appeal. Griffin v. Suzuki Motor Corp., 280 Kan. 447, 470, 124 P.3d 57 (2005); Fitzpatrick v. Allen, 24 Kan. App. 2d 896, 902, 955 P.2d 141, rev. denied 264 Kan. 821 (1998).
We have thoroughly reviewed the record on appeal and find that the Court of Appeals was correct in ruling that Purina failed to preserve an objection on this issue. The matter is not properly before us. We affirm the Court of Appeals on this issue.
IV. Kansas Consumer Protection Act
The Court of Appeals majority found that willful conduct under the KCPA requires proof of intent to harm the consumer. Unruh, slip op. at 11. The Court of Appeals then found that the evidence did not support a finding of intent to harm. Slip op. at 13. Having found that the claim under the KCPA was not supported, the Court of Appeals majority reversed the award of statutory attorney fees. Slip op. at 18-19.
In his concurring and dissenting opinion, Judge Malone questioned the majority’s statutory construction but concluded that the record contained sufficient evidence that Purina intended to harm its customers. Slip op. at 20-21, 23 (Malone, J. dissenting in part).
Unruh and Carter appeal from the Court of Appeals’ finding that willful conduct requires proof of intent to harm.
Interpretation of a statute is a question of law over which this court has unlimited review. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The fundamental rule governing interpretation of statutes is that the legislature’s intent governs if this court can ascertain that intent. The court presumes that the legislature expressed its intent through the language of the statutory scheme. In re G.L.V., 286 Kan. 1034, 1040-41, 190 P.3d 245 (2008).
When the statutory language is plain and unambiguous, the courts therefore do not need to resort to statutory construction. 286 Kan. at 1041. “A statute should not be read to add that which is not contained in the language of the statute or to read out what, as a matter of ordinary language, is included in the statute. [Citation omitted.]” Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154 P.3d 494 (2007).
Only when the language of a statute is unclear or ambiguous does the court move to the next analytical step, applying canons of construction or relying on legislative history to construe the statute in accord with the legislature’s intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 172 L. Ed 2d 239 (2008).
K.S.A. 50-626(b)(3) defines as an unlawful deceptive act or practice “the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact.” The Court of Appeals majority concluded that the word “willful” means something more than “intentional”; it must also include an “intent to harm the consumer.” Unruh, slip op. at 11. It reached this conclusion based on two factors.
First, in 1991, the legislature substituted the word “willful” for the word “intentional” in both K.S.A. 50-626(b)(2) and in K.S.A. 50-626(b)(3). L. 1991, ch. 159, sec. 2. In 1993, it amended K.S.A. 50-626(b)(3) a second time to substitute “willful” for another use of “intentional” in that subsection. L. 1993, ch. 177, sec. 1. Because the appellate courts presume that the legislature does not intend to enact useless or meaningless legislation, see Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006), the Court of Appeals concluded that the legislature intended the word “willful” to mean something more restrictive than the word “intentional.” Unruh, slip op. at 11.
Second, the Court of Appeals looked to PIK Civ. 3d 103.04, which defines “willful conduct” as “[a]n act performed with a designed purpose or intent on the part of a person to do wrong or to cause an injury to another.” Slip op. at 11; see PIK Civ. 4th 103.04 (same definition). The Court of Appeals cited to three cases that applied the PIK definition to civil litigation in general: Heckard v. Martin, 25 Kan. App. 2d 162, 165, 958 P.2d 665 (1998) (under Residential Landlord and Tenant Act, PIK Civ. 3d 103.04 definition of “willful” required tenant have intent to do wrong or cause injury to another); Tufts v. Newmar Corp., 53 F. Supp. 2d 1171, 1178 (D. Kan. 1999) (citing Heckard and quoting PIK Civ. 3d 103.04 for proposition that “willful conduct” under the KCPA requires showing intent to do wrong or cause injury to another); and Griffin v. Security Pacific Automotive Financial, 33 F. Supp. 2d 926, 930 (D. Kan. 1998) (citing Heckard and quoting PIK Civ. 3d 103.04). Unruh, slip op. at 12.
This definition of the word “willful” in the PIK instructions was based upon language in a case heard by this court in 1908. See Railway Co. v. Lacy, 78 Kan. 622, 629, 97 P. 1025 (1908), reh. denied November 12, 1908 (“To constitute willful negligence, there must be a design, purpose, or intent to do wrong or to cause the injury.”). It has remained virtually unchanged since the first publication of the pattern instructions. The legislature is presumed to be aware of the existing law when it enacts an amendment. See State v. Boyer, 289 Kan. 108, 116, 209 P.3d 705 (2009); Frick v. City of Salina, 289 Kan. 1, 8, 208 P.3d 739 (2009). We therefore agree with the reasoning of the majority for the Court of Appeals, find that it was correct, and affirm the holding that the use of “willful” in the KCPA includes an intent to harm the consumer.
Having affirmed the Court of Appeals majority on the question of the elements that the plaintiffs were required to prove, we must next examine whether the plaintiffs met their burden of proof under the standard we have recognized. When a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene. City of Mission Hills v. Sexton, 284 Kan. 414, 422, 160 P.3d 812 (2007).
In his dissent regarding the sufficiency of evidence for the KCPA claims, Judge Malone summarized the evidence supporting the plaintiffs’ case:
“Bret Galyardt, the quality control/warehouse supervisor for Purina, testified that Purina changed the formula for 2HL between the first and second batch that Unrah and Carter received. Purina increased the sunflower meal in the mixture from 5% to 15% and decreased the cottonseed meal from 10% to 0%. No warning was given to the consumers that this might affect the flowability of the product.
“When Unruh and Carter received the second load of 2HL, the ranchers observed that the feed was a different color than the first batch and hard and oily in texture. They were forced to break apart the feed with claw hammers. Over the next several weeks, the ranchers continued to break up the 2HL in the feeders daily but consumption by the catde dropped. In the meantime, Unrah and Carter attempted to feed their cows as much hay as possible pursuant to Purina’s instructions. Galyardt later testified that although certain mixtures of 2HL can sometimes be a little hard, it should not be so hard as to necessitate being broken apart by a claw hammer or a crowbar.
“Unruh notified Purina that his cows were losing weight. Tim Peissig, Purina’s district manager, visited both Unruh and Carter in order to investigate and address the problem. Peissig was not aware that Purina and other companies varied the ingredients in their products according to cost. Peissig was aware that 2HL had flowability problems if it got too cold; however, he did not pass along this information to the ranchers because it did not happen very often. After meeting with Unruh, Peissig completed a product complaint report to Purina indicating that Unrah was doing everything Purina had recommended. The report concluded: ‘Our formulation change certainly caused the cows to quit eating this product. We need to do what is right for this customer, who wants this product and program to work.’ Purina failed to take any corrective action after receiving this report. Although Peissig continued to work with Unruh and Carter, both ranchers subsequently sustained loss of cows and calves.” Unruh, slip op. at 21-23 (Malone, J., dissenting in part).
In addition to the foregoing, there was evidence that bags of the supplement “set up like concrete.”
On appellate review, this court accepts as true the evidence and all the inferences to be drawn from it which support or tend to support the findings, verdict, and judgment below, while disregarding any conflicting evidence or other inferences that might be drawn from the evidence. When a jury’s findings are attacked as being based on insufficient evidence or being contrary to the evidence, this court’s power begins and ends with a determination of whether there is evidence to support those findings. If the evidence supports the jury’s findings, this court will not disturb them on appeal. It is of no consequence that contrary evidence might have supported different findings if believed by the jury. Special findings by a jury are to be construed liberally on appeal and interpreted in light of the testimony to ascertain their intended meaning. Calver v. Hinson, 267 Kan. 369, 375, 982 P.2d 970 (1998) (quoting Brunner v. Jensen, 215 Kan. 416, Syl. ¶¶ 4 and 5, 524 P.2d 1175 [1974]).
The juiy was properly instructed on the law of the case and found there were violations of the KCPA. The juiy, as the trier of fact, was best situated to weigh the evidence and assess the credibility of the witnesses. Judge Malone found this evidence sufficient to prove the plaintiffs’ case under either definition of “willful.” Slip op. at 21-23 (Malone, J., dissenting in part). We agree and find that the evidence and all the inferences drawn from it, when considered in the light most favorable to the prevailing party, supported the verdict. We therefore reverse the Court of Appeals on this issue and find sufficient evidence to support the jury’s verdict on the KCPA claims.
V. Verdict Forms
The verdict forms given to the jury mistakenly captioned the case “Kenneth E. Unruh and Robert K. Carter, Plaintiffs, vs. State Farm Mutual Automobile Insurance Company, Defendant.” State Farm was not a party to this case. It appears the captions were copied from the verdict form of another case, and the court inadvertently neglected to change the name of the defendant. Purina did not object to the captions when the verdict forms were given to the jury, and only after the jury returned its verdict did the district court note the mistake. Purina filed a K.S.A. 60-259(a) motion for new trial based in part on the mistaken captions, which the district court overruled. Purina argues on appeal that the captions were inherently prejudicial and require a new trial.
“The failure to object to a jury instruction invokes a clearly erroneous review standard, whereby we must be able to declare a real possibility existed that the jury would have returned a different verdict if the trial error had not occurred.” Gilley v. Kansas Gas Service Co., 285 Kan. 24, 28, 169 P.3d 1064 (2007); see K.S.A. 60-261. While a verdict form is not technically a jury instruction, it is part of the packet sent with the juiy which includes the instructions and assists the jury in reaching its verdict. It is appropriate to apply the same standard of review applicable to the review of instructions.
The decision on this issue, therefore, turns on whether this court finds the inadvertent reference to the defendant as an insurance company to be clear error. A line of Kansas cases holds that injecting the possibility of an insurance carrier into a proceeding is inherently prejudicial. Other cases hold, however, that the failure to object to the mention of insurance coverage undermines the issue on appeal. In addition, there is a body of cases holding that captions in jury instructions are too insubstantial to create a presumption of prejudice.
A long line of Kansas cases suggest that the deliberate injection of insurance into trial testimony constitutes prejudicial and reversible error. See, e.g., Harrier v. Gendel, 242 Kan. 798, Syl. ¶ 2, 751 P.2d 1038 (1987) (introduction of evidence of collateral source benefits is inherently prejudicial because it may induce a jury to decide cases on improper grounds); Ayers v. Christiansen, 222 Kan. 225, 228, 564 P.2d 458 (1977) (introducing evidence of defendant’s insurance status in regard to issue of fault is irrelevant and prejudicial); Kelty v. Best Cabs, Inc., 206 Kan. 654, Syl. ¶ 1, 481 P.2d 980 (1971); Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 214, 368 P.2d 281 (1962) (“Where the offending party secures a verdict and the opposing party makes a timely objection, and otherwise has adequately protected the right to review, the offense [of introducing evidence of insurance coverage] is so inherently prejudicial as to require reversal unless unusual circumstances are shown .... [Emphasis added]).
The rule that a party may not introduce evidence of insurance coverage, see K.S.A. 60-454, is not, however, absolute. In the present case, the captions on the jury verdict forms appear to have been an inadvertent mistake. The defendant did not notice the mistake, despite having the opportunity to review the forms on at least two occasions, and did not object to the mistake. “[W]hen the mention of insurance during a trial is purely inadvertent and is not brought into the case by intentional misconduct of plaintiff s counsel prejudicial error has not been committed thereby. [Citations omitted.]” Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 203, 491 P.2d 891 (1971).
Furthermore, when a plaintiffs doctor referred to possible insurance coverage for the plaintiff and the defendant failed to object but later moved for a mistrial, this court held that the inadvertent injection of insurance coverage into a trial may be cured by limiting instructions. See Kelty, 206 Kan. at 655-57. Even though no curative instructions were given in that case, the error “was obviously induced by defense counsel’s failure to file a motion for such relief and by his statement to the court that he did not wish to have the jury admonished.” 206 Kan. at 656.
In addition, a number of courts have held that the caption of a document submitted to a jury will not generally be a source of reversible error. The Oklahoma Supreme Court has held: “ ‘As a general rule the caption of a verdict is not a material part thereof, and courts will not ordinarily be governed thereby, but rather by the body of the verdict or findings.’ ” Henry Building Company v. Cowman, 363 P.2d 208, 214 (Okla. 1961) (quoting St. Louis & S. F. R. Co. v. Williams, 55 Okla. 682, 685, 155 Pac. 249 [1916]); see also Underhill v. Commonwealth, 289 S.W.2d 509, 511-12 (Ky. App. 1956) (error in caption of instructions naming accomplices instead of defendants was technical and did not mislead jury); O’Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 532 (Miss. App. 2000) (no objection to caption of instructions and juiy form that erroneously included party that had settled out of court; issue not preserved for appeal); State ex rel. Thompson v. Watkins, 200 W. Va. 214, 219, 488 S.E.2d 894 (1997) (erroneous caption of jury instructions in criminal trial was mere surplusage and harmless); Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 349-50, 564 N.W.2d 788 (Wis. App. 1997) (not error to include in caption read to juiy defendant who had settled out of court).
The Court of Appeals noted that Purina is, in the mind of the average person, a multinational concern that is one of the largest suppliers of animal feed in the United States and found it “rather unlikely that the jurors would have awarded [$64,075] against Purina based on the notion that in doing so they need not worry about Purina because the judgment would be covered by insurance.” Un ruh, slip op. at 8-9. This reasoning is sound. The caption of an instruction or verdict form is usually considered surplusage, having little, if any, impact on the jury. The captions of the verdict forms did not constitute clear error.
VI. Attorney Fees
The district court awarded the plaintiffs attorney fees totaling $37,950, which included $35,900 expended in prosecution of the KCPA claims, $1,000 expended in prosecuting the motion for attorney fees, and $1,050 in expert witness fees generated in supporting the motion for attorney fees. Purina argues that attorney fees under the KCPA should be awarded only when the court has evidence of the losing party’s bad faith. The majority of the Court of Appeals did not address this issue in its opinion, having found that tire KCPA did not apply. Unruh, slip op. at 18-19. Judge Malone would have affirmed the award of attorney fees. Slip op. at 23 (Malone, J., dissenting in part).
The issue of the district court’s authority to award attorney fees is a question of law over which appellate review is unlimited. Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 490, 173 P.3d 642 (2007). Where the trial court has authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). While die audiority to award attorney fees is a question of law, the amount of such an award is within the sound discretion of the district court and will not be disturbed , on appeal absent a showing that the district court abused that discretion. Johnson v. Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006).
A court may not award attorney fees absent statutory authority or an agreement by the parties. Without such authority, a trial court’s equitable powers do not extend to the awarding of attorney fees. Idbeis 285 Kan. at 495. The KCPA provides for attorney fees, while no provision for attorney fees exists under the plaintiffs’ common-law theory of damages.
K.S.A. 50-634(e) provides:
“(e) Except for services performed by the office of the attorney general or the office of a county or district attorney, the court may award to the prevailing party reasonable attorney fees, including those on appeal, limited to the work reasonably performed if:
(1) The consumer complaining of the act or practice that violates this act has brought or maintained an action the consumer knew to be groundless and the prevailing party is the supplier; or a supplier has committed an act or practice that violates this act and the prevailing party is the consumer; and
(2) an action under this section has been terminated by a judgment, or settled.”
Purina asks this court to add to the statutory language an implicit requirement that the supplier has acted in bad faith. This argument asks the court to read into the statute language that is not present and to interpret the statute in a manner less liberal to consumers.
If the legislature intended a bad-faith requirement, it could have included such language. Compare the preceding KCPA language with the following language in the Kansas Open Records Act, for example:
“In any action hereunder, the court shall award costs and a reasonable sum as an attorney’s fee for services rendered in such action, including proceedings on appeal, to be recovered and collected as part of the costs to the plaintiff if the court finds that the agency’s denial of access to the public record was not in good faith and without a reasonable basis in fact or law.” (Emphasis added.) K.S.A. 2008 Supp. 45-222(c).
Furthermore, the very language of the KCPA distinguishes between attorney fees for plaintiff consumers and attorney fees for defendant suppliers. Suppliers may receive attorney fees if the consumer brought an action that “the consumer knew to be groundless”; consumers, on the other hand, may receive attorney fees if a supplier “committed an act or practice that violates this act.” K.S.A. 50-634(e)(l). The language is clear and unambiguous: any violation of the KCPA by a supplier constitutes grounds for attorney fees.
The language allowing attorney fees on appeal was added to the KCPA as part of the same 1991 legislation that amended K.S.A. 50-626(b)(3) to use the word “willful” instead of “intentional,.” See L. 1991, ch. 159, sec. 2. A letter from Assistant Attorney General D. Jeanne Kutzley, dated April 3, 1991, indicated the Attorney General was supporting the bill that generally broadened consumer rights, stating: “[W]e added language that would allow individual consumers who bring a private action to get attorney fees on appeal.” Minutes, Sen. Judiciary Comm. April 3, 1991, attach 1. While this statement is neutral, it does not support a legislative intent to add to the statute a bad-faith requirement that is not explicitly present in the statutoiy language.
The KCPA provides for attorney fees when a supplier willfully fails to disclose relevant information to a consumer. This court finds that the conditions of the KCPA were met by the plaintiffs’ evidence. The award of attorney fees was appropriate and was not an abuse of discretion.
Purina further contends that counsel for the plaintiffs failed to segregate their time devoted to express and implied warranty claims and their claims under the KCPA. Purina argues that this failure to break the time down by the alternative theories that the plaintiffs pursued constitutes reversible error.
Where the trial court has authority to grant attorney fees, its decision is reviewed under the abuse of discretion standard. Tyler, 274 Kan. at 242. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
In DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, 549, 947 P.2d 1039 (1997), our Court of Appeals held:
“Where several causes of action are joined and only some of them permit the award of attorney fees, the work on several causes must be segregated in determining an attorney fee award.
“Here, we find that there are 12 of the stated defects which are not part of the fraud or KCPA claims. There is no basis for an award of fees for the prosecution of these claims. We recognize that Kansas has not had a clearly stated rule for this legal issue. In the future, if counsel have made no attempt in their time records to segregate their time as to different causes of action that are not mutual in their facts and impossible of segregation, it could well be that a court could find a failure of proof and award no attorney fees.”
Purina relies on this language in arguing that the district court erred in granting attorney fees when counsel for the plaintiffs failed to segregate their time devoted to developing the warranty claims from their time devoted to developing the KCPA claims.
In York v. InTrust Bank, N.A., 265 Kan. 271, 308, 962 P.2d 405 (1998), this court found that the district court’s award of attorney fees was not an abuse of discretion. Under the facts of that case, the court held:
“It was clearly necessary for all of the underlying facts of tire transaction to be fully developed in order to prosecute the KCPA claim. Those services may have also resulted in findings of other tortious conduct sufficient to justify a judgment, but the KCPA claim is inextricably intertwined with the single transaction which is the subject of this litigation.” 265 Kan. at 308.
In the present case, Purina contends that the plaintiffs’ case was from the beginning directed toward the breach of warranty claims and the KCPA claims were an afterthought. Counsel for the plaintiffs did not submit fees for time prior to filing their motion to amend the petition to include their claims under the KCPA.
The district court heard the testimony of Mikel Stout, an attorney with approximately 45 years’ experience in civil litigation, relating to the attorney fees. He testified in a general manner to the reasonableness of the hourly rate, $250, and the reasonableness of the amount of time devoted to developing and trying the case, 143.60 hours. He expressed doubts about whether it would be possible to segregate the time spent on the warranty claims from the time spent on the KCPA claims. Purina elected not to present expert testimony on the attorney fees question.
The district court found die requested attorney fees reasonable. The court made the following finding with respect to the segregation of fees:
“4. Defendant’s contention that Plaintiffs are not entitled to recover attorney fees based upon a failure to segregate the time billed in connection with prosecution of the KCPA claim fails. Plaintiffs pursued two theories of recovery: breach of express and implied warranties, and violations of the KCPA. Under either theory, Plaintiffs were required to prove that Defendant made representations about its product that were false. Given the overlap in the elements of each cause of action, Mikel Stout testified that it would be difficult if not impossible for Plaintiffs counsel to segregate the time spent prosecuting each theory.
“5. It was necessary for Plaintiffs to fully develop all the underlying facts of the claim for breach of express and implied warranties in order to prosecute the KCPA claim. Thus, the KCPA claim is inextricably intertwined with the claim for breach of express and implied warranties. The fact that Plaintiffs could not segregate the time spent prosecuting the KCPA claim versus the claim for breach of express and implied warranties does not prevent Plaintiffs from recovering attorney fees. See York v. Intrust Bank, N.A., 265 Kan. 271, 308, 962 P.2d 405 (1998).”
The district court order was based on tire expert testimony that it heard and its understanding of the nature of the claims presented in the case. The district court is considered an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in determining the value of die services rendered. Johnson, 281 Kan. at 940. The district court’s ruling was based on substantial competent evidence, was in accord with the law, was not an abuse of discretion, and we affirm its decision.
The plaintiffs filed a motion for appellate attorney fees before the Court of Appeals, seeking an additional $17,757.50, based upon an hourly rate of $200 to $225 depending on the attorney doing the work, and a total of 79.50 hours. Purina filed a response, disputing whether the KCPA applied and whether the plaintiffs were entitled to fees in a non-KCPA action. The Court of Appeals, based on its finding that the KCPA claims were not met, denied the motion. The plaintiffs renewed their motion in this court, although it is miscaptioned, and added an additional request for $20,957.75 in appellate fees, consisting of $19,765 in attorney fees (a rate of $225 to $250 and a total of 82.40 hours) and $1,192.75 in expenses. Purina does not challenge the reasonableness of the hourly rates, time, or expenses applied for by plaintiffs’ counsel. Purina simply renews its objection that there was no KCPA violation, which is an argument we have rejected for the reasons stated above. We have reviewed the motion, find the fees and expenses reasonable, and hereby grant it. In total, therefore, the plaintiffs are entitled to recover $76,665.25 in attorney fees and expenses.
The decision of the Court of Appeals is affirmed in part and reversed in part. The decision of the district court is affirmed. The plaintiffs’ motions for appellate attorney fees and expenses are granted.
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The opinion of the court was delivered by
Johnson, J.:
As part of a plea agreement, David E. Easterling pled guilty to two counts of aggravated indecent liberties with a child under the age of 14. In exchange for his plea, the State agreed to recommend a durational departure from the hard 25 life sentence mandated by K.S.A. 21-4643 (Jessica’s Law) to a term of 118 months in prison. At sentencing, the district court declined to follow the joint recommendation for departure and imposed the statutorily prescribed hard 25 life sentence. In pronouncing its decision, the sentencing court mentioned Easterling’s post -Miranda admission that he had sexually molested his daughter in the 1980’s, which the judge had discovered was recorded in the law enforcement officer’s arrest report affidavit.
Easterling appeals his sentencing, alleging that (1) his right to due process was violated by the district court’s reliance on the arrest report affidavit at sentencing, without affording Easterling the opportunity to challenge its contents or requiring that the State prove the contents by a preponderance of the evidence; and (2) the life sentence with a mandatory minimum of 25 years constitutes cruel or unusual punishment, in violation of § 9 of the Kansas Constitution Bill of Rights.
FACTUAL OVERVIEW
Easterling’s 5-year-old granddaughter told her paternal grandmother that Easterling had been inappropriately touching her genitals. The grandmother reported the allegation to the Social and Rehabilitation Services (SRS) which led to a “safe talk” interview with the child. Officer Heather Stults-Lindsay then interviewed Easterling and reported that, after Miranda warnings had been given, Easterling admitted to touching his granddaughter inappropriately.
After plea negotiations, Easterling waived a preliminary hearing and pled guilty to an amended complaint containing the two counts of aggravated indecent liberties with a child. The day before the scheduled sentencing hearing, the district court, sua sponte, convened a hearing to clarify certain matters.
First, the court was concerned that the amount of time scheduled for the sentencing hearing might be insufficient, if psychological testimony about the child was to be. offered. In that respect, the State advised the court that it would stipulate that the victim was doing well. Further, the State agreed to the submission of additional letters in support of the defendant, including one from the therapist who had been treating Easterling.
Next, the court inquired about a discrepancy in the minute sheet about the charges to which Easterling had pled. The parties confirmed that the two counts were identical charges of aggravated indecent liberties with a child and that Easterling had entered a guilty plea to both counts.
The court then inquired as to how the allegations arose. Specifically, the court wanted to know the extent of SRS’s involvement, which the State explained.
Finally, tire court advised the parties that “there is the affidavit of the officer, which indicated that the defendant had admitted after Miranda apparently that he had an incident like this with his own daughter back in the 80’s. That’s in the police report.” Easterling’s counsel acknowledged that defendant had given up his right to challenge the affidavit by pleading guilty, but suggested that the court should not consider the statement because the allegation of prior abuse had not been proved. Before the parties left court that day, the district court made certain that Easterling’s counsel had a copy of the affidavit, which states, in relevant part:
“State of Kansas: Shawnee County,
“I, Heather Stults-Lindsay of lawful age, after first being duly sworn on oath, on information and belief states:
“A Safe Talk was conducted with the five year old granddaughter of David Easterling. The five year old disclosed that her grandfather had been touching her vagina and buttocks with his hand and penis. The five year old described the white stuff that came out of grandpa’s penis when his penis touched her vagina. In a post Miranda interview with Easterling he advised that when his granddaughter spent the summer with him in July and August 2006 during and after her baths he would fondle her vagina with his fingers. After her baths he would have her go to his bedroom and lay on his bed. He then licked her vagina on several occassion [sic] and stated on one occasion rubbed his penis on her vagina. He also advised that the five year old touched his penis on one occasion in his bedroom. Easterling stated he could not remember if he ejaculated or not. Easterling also admitted to sexually molesting his own daughter when she was a child in the 1980’s.
“In a conversation with Easterling’s wife she advised she was aware of the sexual touching of her daughter as a child in Arkansas, but they did not report that to authorities. Easterling’s wife stated she was unaware of the sexual acts with her grand daughter [sic],
“Easterling was transported to DOC and booked on on [sic] the seven counts listed on this report.
“I verify under penalty of perjury that the foregoing is true and correct.
“All of the events described herein occured [sic] within Shawnee County, Kansas. FURTHER AFFAINT [sic] SAYETH NAUGHT.”
The following day at sentencing, the district court provided a detailed explanation of the sentencing authority vested in the court by the legislature, including a discussion of Jessica’s Law, K.S.A. 21-4643. The court advised Easterling that in order to exercise its departure authority and impose the jointly recommended sentence of 118 months, the court must review the proffered mitigating circumstances and determine whether the reasons to depart are both substantial and compelling.
The court noted that it had considered the six mitigating circumstances listed in K.S.A. 21-4643(d) and had not found substantial and compelling reasons to depart from that list. However, the court acknowledged that the statutory list is nonexclusive and, accordingly, the court specifically reviewed and briefly discussed each of the numerous mitigating circumstances propounded in Easterling’s departure motion. The court observed that if it were to focus entirely on the circumstances relating to the defendant, e.g., “defendant’s community service, church, his work, his family, the statement by his daughter who also proffered that the victim is doing well, the defendant’s lack of prior criminal record, the fact the State has joined in recommending the departure, obviously a strong and compelling argument can be made for reduced sentence.”
However, the court opined that its inquiry had a second component in which it focused on the crimes themselves. Here, the court noted, the defendant, an older man, performed multiple acts of lewd fondling with a very young child, who was particularly vulnerable. The child had been placed in his trust. He committed the acts to satisfy his sexual desires at the expense of a 5-year-old child. The court found that Easterling’s acts were no different from the typical scenario presented for the crime of aggravated indecent liberties with a child under age 14, with the possible exception that “it may have been more intense than normal, if normal could even be defined.”
The court then acknowledged that it had considered the StultsLindsay arrest report affidavit, because the court believed that it could “consider any other relevant evidence that the Court would find trustworthy and rehable.” The court found the affidavit to be reliable and trustworthy because it had been “signed under oath under penalty of perjury by a law enforcement officer of legal age.” The court opined that the acts Easterling performed in this case, together with the prior abuse of his daughter, indicated that “defendant possesses an abnormal condition in which an adult has a sexual desire for children.”
In that vein, the court expressed concern that there had been no expert opinion as to how long the victim would remain in therapy and “what the long term effects might be because of the dysfunction of this family unit.” Likewise, the court noted the absence of any assurance that “the defendant wouldn’t re-offend under the right circumstance with a minor child in the future” and declared: “One of the purposes of the current law, Mr. Easterling, is Kansas’s attempt to protect children from abuse by one whose only interest is to satisfy their sexual desires.” The court then found:
“Therefore, after making an assessment of the defendant for the departure, after making an assessment of the nature of the crime and the defendant’s involvement and the applicable Kansas law, the Court finds that while there have been at least nine or more reasons advanced for departure, the Court cannot and does not find from the totality of the circumstances that there are both substantial and compelling reasons to depart. The defendant’s motion for durational departure is therefore denied.”
Easterling appealed that ruling, and this court has jurisdiction, subject to K.S.A. 22-3601(b)(l).
DUE PROCESS
Easterling asserts that the sentencing court violated his right to due process when it based his sentence, in part, on the information contained within the arrest report affidavit, without providing him a genuine opportunity to challenge the disputed factual assertions in the affidavit and without requiring the State to prove the disputed facts by a preponderance of the evidence. We are not presented with a challenge to the district court’s assessment that the reasons given for departure were not substantial and compelling. Easterling clarified in his reply brief that he is “challenging the district court’s denial of procedural due process, not its decision to deny a departure motion.” Accordingly, our review is unlimited. See State v. Kirkpatrick, 286 Kan. 329, 351, 184 P.3d 247 (2008) (‘Whether a defendant’s due process rights were violated is a question of law over which this court exercises unlimited review.”).
Although Easterling’s brief does not specifically set forth which of the facts contained in the affidavit that he disputes, we discern his principal concern is with his admission to previously sexually molesting his own daughter. Moreover, Easterling’s counsel’s oral arguments did not focus on disputing that Easterling actually made the inculpatory statement to the law enforcement officer. Rather, counsel argued that the procedures employed did not ensure that the content of Easterling’s statement was true and not a false or involuntary confession.
Easterling supports his arguments with federal authority, commencing with a citation to Gardner v. Florida, 430 U.S. 349, 358, 51 L. Ed. 2d 393, 97 S. Ct. 1197 (1977), for the proposition that a defendant is entitled to due process at sentencing. Gardner was a death penally case in which the jury recommended a life sentence, but the trial judge sentenced the defendant to death, relying in part on confidential information in the presentence report which had not been disclosed to the defendant. In a plurality decision, six members of the Supreme Court voted to invalidate the death sentence, albeit for differing reasons. Four of the justices explicitly based their decision, at least in part, on the applicability of the Due Process Clause to sentencing proceedings.
We pause to note that the State’s brief did not address the due process question. Instead, the State relied exclusively on an argument that this court lacked jurisdiction to entertain Easterling’s appeal of the departure denial because he received a presumptive sentence. See K.S.A. 21-4721(c)(l) (appellate court shall not review any sentence that is within the presumptive sentence for the crime). At oral argument, the State acknowledged that its jurisdiction argument is undermined by our intervening opinion in State v. Ortega-Cadelan, 287 Kan. 157, 163-64, 194 P.3d 1195 (2008) (life sentence for off-grid crime does not meet K.S.A. 21-4703 definition of “presumptive sentence”).
Although we are unaware of any Kansas case explicitly stating that a defendant is entitled to due process at sentencing, we have made that finding in the analogous context of probation revocation proceedings. “The Due Process Clause of the Fourteenth Amendment imposes procedural and substantive limits on the revocation of the conditional liberty created by probation.” State v. Walker, 260 Kan. 803, Syl. ¶ 2, 926 P.2d 218 (1996). Certainly, then, the potential for depriving a defendant of his or her liberty at sentencing would likewise mandate the applicability of due process limitations at that critical stage of the criminal proceedings. The question then becomes the extent of the process that is due a defendant at sentencing. Cf. State v. Palmer, 37 Kan. App. 2d 819, Syl. ¶ 4, 158 P.3d 363 (2007) (“Because probation revocation hearings are not equivalent to criminal prosecutions, they are allowed a more flexible process and consideration of material that might not be admissible in an adversary criminal trial.”); see also Gardner, 430 U.S. at 358 n.9 (fact that due process applies does not implicate entire panoply of criminal trial procedural rights; due process is flexible, calling for such procedural protections as the particular situation demands).
At oral argument, Easterling declared that for sentencing purposes a defendant need only advise the court that he or she disputes a particular fact and due process precludes the court’s consideration of that disputed fact unless the State presents evidence to prove the fact by a preponderance of the evidence. Further, Easterling asserted that if, as in this case, the State must refrain from advocating for the existence of a disputed aggravating fact because of its commitments under a plea agreement, then the court simply cannot consider that fact. Easterling overstates his constitutional entitlement.
In his brief, Easterling relies principally on decisions from the Second Circuit Court of Appeals, to-wit: Gonzalez v. Kuhlman, 911 F. Supp. 120, 125-26 (S.D.N.Y. 1995) (“[W]hile, at sentencing, due process does not ‘implicate the entire panoply of criminal trial procedural rights,’ it requires some protection against a defendant being sentenced on the basis of‘materially untrue’ statements or ‘misinformation’ and insists also that the state prove disputed conduct upon which a sentence rests ‘by a preponderance of the evidence.’ ”); United States v. Lee, 818 F.2d 1052, 1055 (2d Cir. 1987) (due process violated when information on which defendant is sentenced is “materially untrue” or is, in fact, “misinformation”); United States v. Pugliese, 805 F.2d 1117, 1123-24 (2d Cir. 1986) (due process requires that defendant be allowed in some manner to challenge proffered presentence report information; court has obligation to assure itself that the information upon which it relies in sentencing defendant is both rehable and accurate). At oral argument, Easterling conceded that the factual context in which these cases considered due process at sentencing differed from the departure denial presented in this case.
Gonzalez involved a sentencing for a jury trial conviction of first-degree robbery. At the time of the robbery sentencing, Gonzalez was awaiting trial on a gun possession charge and faced a possible indictment for an alleged prison assault. The prosecutor, on his own and without any plea negotiations with defendant, advised the sentencing court that if it imposed an indeterminate sentence of 7 to 21 years, the prosecutor would drop the pending gun charge and would not pursue an indictment on the assault. Gonzalez opposed the proposal, indicating his desire to have a trial on the other charges and asserting that he was not guilty of those other offenses. The court announced that, based upon the facts of the current case, an appropriate sentence would have been 5 to 15 years. However, in light of the prosecutor’s commitment not to go forward with the other charges, the court imposed a 7- to 21-year sentence. The record did not reflect that the sentencing court had made any determination as to the factual accuracy of the prosecutor’s representations or of the defense’s denials regarding the assault and gun charges.
In reversing the sentence, Gonzalez first clarified that the fact the sentence imposed fell within the statutory maximum for the robbery conviction was not determinative of whether Gonzalez was deprived of his constitutionally protected right to due process at sentencing. On the other hand, the court also clarified that a defendant has no right to protest the dismissal of charges; that in fixing a sentence a court may consider other pending charges and uncharged but relevant conduct; and that traditionally a sentencing judge’s discretion is largely unlimited either as to the kind of information that may be considered and the source from which it derives. However, those “principles are subject to the overall constraint that the procedure by which these factors come before the court conform to the requirements of due process.” 911 F. Supp. at 125. In determining whether the procedures employed by the sentencing court conformed to minimal due process requirements, the district court applied the four factors enunciated in Mathews v. Eldndge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976):
“(1) the nature of the individual interest at stake, (2) the risk of error inherent in the present method of obtaining information, (3) the usefulness of additional procedural safeguards in securing accurate information, and (4) the government’s interest in being free of the fiscal and administrative burdens that the provision of additional safeguards would impose.” Gonzalez, 911 F. Supp. at 126.
The Gonzalez court opined that application of the analysis was straightforward in that case. The interest at stake — defendant’s future liberty — could not be greater. Relying on unproven prosecutorial representations to obtain information presents an inherent risk of error, if not a temptation to make unfounded allegations of uncharged offenses or to initiate baseless prosecution simply to influence the sentence in the pending case. Requiring additional procedural safeguards is bound to result in an incremental benefit in improved accuracy of information to be considered by the sentencing court. Finally, while acknowledging the government’s in terest in avoiding extended “mini-trials” after conviction to be significant and legitimate, the court opined that procedures could be fashioned to assure that the court relies only on accurate information in sentencing without imposing an excessive burden on the State. 911 F. Supp. at 126.
Ultimately, Gonzalez declared:
“Here there is no close question. Cutting through the competing characterizations of what took place, the defendant was sentenced to an additional term of imprisonment of two to six years (the difference between the five to fifteen year term otherwise thought appropriate and the seven to twenty-one years imposed) for offenses of which he was accused, but which he denied, without (i) any evident consideration by the sentencing court of the accuracy of those charges or (ii) any determination as to whether the People had established the petitioner’s guilt even by a preponderance of the evidence. While the sentencing judge undeniably could have sentenced the petitioner to a term of seven to twenty-one years purely on the basis of the offense of conviction, without regard to the other charges, the reliance on the disputed conduct in the absence of these safeguards violated petitioner’s federal constitutional right to due process of law.” 911 F. Supp. at 126.
In Lee, the defendant was charged in one count of an indictment with violating the Racketeer Influenced and Corrupt Organizations Act (RICO) by committing five racketeering acts. He pled guilty to the charge but only admitted committing two of the alleged racketeering acts. One of the acts to which Lee did not admit was a double murder. The prosecution recommended a 40-year sentence, in part because of Lee’s participation in the double murder, the details of which were submitted to the court in an extensive sentencing memorandum. The sentencing court concluded that Lee had participated in the double murder and acknowledged that this fact affected the court’s decision to impose the maximum penalty. Lee contended on appeal that the sentencing court violated his due process rights by imposing a sentence predicated on the insufficiently proven finding that he participated in the double murder.
With respect to the process that Lee was due at his sentencing, the Lee court reiterated the four Mathews v. Eldridge factors. The court noted that a defendant’s challenge to the accuracy of the government’s proffered sentence-enhancing facts “may take the form of countering affidavits, letters, or other written submissions; it may consist of the defendant and/or counsel, as in the instant case, directing argument and comment to the court; there may simply be a cross-examination of witnesses, or a full-blown evidentiary hearing.” 818 F.2d at 1056. However, regardless of the form of defendant’s challenge, the district court must ensure that the defendant has an effective opportunity to rebut allegations likely to affect the sentence. The court noted that Lee had declined the district court’s offer of a full-blown evidentiary hearing, even though the court was under no duty to make that offer. Nevertheless, the court found that the sentencing court had afforded Lee a full opportunity through argument addressed to the court to rebut the government’s allegations, i.e., Lee had been afforded procedural due process. Moreover, the court found that the prosecution had presented sufficient evidence to prove by a preponderance of the evidence that Lee participated in the double murder. 818 F.2d at 1057-58.
Finally, in Pugliese, the defendants challenged their enhanced sentences for counterfeiting based upon allegations that they had sanctioned an attempt to murder a witness against them. Ultimately, the sentences were vacated because the district court had not comported with its obligations under Federal Rules of Criminal Procedure § 32. 805 F.2d at 1124. However, for our purposes, Pudiese found that the sentencing judge’s use of a transcript of a sentencing proceeding before another judge that revealed that one of the defendants had threatened the witness did not deny the defendants’ due process. Also, the opinion held that the defendants were not entitled to a full-blown hearing in their challenge to the presentence reports. 805 F.2d at 1122-23.
Here, the State was not the proponent of an enhanced sentence. To the contrary, the prosecutor had agreed to jointly recommend a sentence of 118 months, which was a mitigated sentence; the statutory default was the hard 25 life sentence that Easterling received. However, the State did not have the burden to prove the substantial and compelling reasons to depart from the default sentence. On the other hand, the prosecutor would not, and indeed could not, proceed to actively advocate in favor of a fact which might undermine the jointly recommended sentence, such as put ting on evidence to prove that Easterling had previously abused his own daughter. See State v. Woodward, 288 Kan. 297, Syl. ¶ 3, 202 P.3d 15 (2009) (State can breach plea agreement by effectively arguing against the negotiated sentencing recommendation).
Despite the factual distinctions, however, we are persuaded by Easterling’s argument that, for due process purposes, the bottom line is the same. The parties agreed that the appropriate sentence under the circumstances was 118 months. The sentencing court agreed that, focusing on Easterling’s circumstances, the argument for the appropriateness of the 118-month sentence was a strong one. However, the sentencing court rejected that 118-month sentence in favor of a hard 25 life sentence, based in part on the previous sexual abuse, i.e., the court enhanced the sentence based on information about prior uncharged but relevant conduct. The rationale for precluding the use of “materially untrue” information or “misinformation,” for requiring the sentencing court to assure itself that the information upon which it relies to fix sentence is rehable and accurate, and for requiring the sentencing court to ensure that the defendant have an effective opportunity to rebut the allegations likely to affect the sentence is fully applicable under these circumstances. See Lee, 818 F.2d at 1055-56.
Where we depart from Easterling’s argument is his assertion that a sentencing court is precluded from considering a sentence-enhancing fact, where the State cannot advocate for the existence of the fact because of its contractual obligations under a plea agreement. Even the federal cases upon which Easterling relies make it abundantly clear that a sentencing court may consider any circumstance which aids it in deriving a more complete and true picture of the convicted defendant’s background, history, or behavior, and that the use of such information, including other crimes for which the defendant was neither tried nor convicted, “does not in and of itself offend a defendant’s due process rights.” Lee, 818 F.2d at 1055. Likewise, the general statute governing departure sentencing specifically provides that “[i]n determining aggravating or mitigating circumstances, the court shall consider: . . . any other evidence relevant to such aggravating or mitigating circumstances that the court finds trustworthy and reliable.” K.S.A. 21-4716(d)(4). Al though Easterling was sentenced under K.S.A. 21-4643, which contains its own departure provisions, no sound reason exists not to apply the general provisions in this context. We decline to constrain a sentencing court’s considerable discretion by limiting the information it can consider to only that which is proffered by the parties.
Nevertheless, a sentencing court’s largely unlimited discretion as to the land or source of information it may consider at sentencing must be exercised “[wjithin the frame of procedural due process.” Lee, 818 F.2d at 1055. Therefore, if a sentencing court endeavors to enhance a sentence beyond that which is jointly recommended by the parties based on a fact which the defendant disputes and for which the prosecutor cannot advocate, the court must, sua sponte, assure itself that the information establishing the sentence-enhancing fact is reliable, accurate, and trustworthy and must provide the defendant with an effective opportunity to rebut the allegation.
In this case, the district court did take steps to safeguard Easterling’s rights. It advised defense counsel in advance that the court was looking at the arrest report affidavit and made certain that counsel had a copy. The court made a determination on the record that the affidavit was rehable and trustworthy, at least with respect to accurately reflecting what Easterling and his wife said to the affiant officer. At the sentencing hearing, the court clarified that the defense would have an opportunity to be heard, specifically inviting the defense “to proceed with your argument and any evidence or additional evidence that you want to offer in the amended agreed motion for durational departure.” We believe that, pursuant to the four Mathews v. Eldridge factors, the district court’s actions afforded Easterling the minimum process to which he was due under the federal Constitution.
As with most, if not all, sentencing cases, the first factor — the nature of the individual interest at stake — favors the defendant; and the fourth factor — the government’s interest in being free of the fiscal and administrative burdens that the provision of additional safeguards would impose — favors the State (or in this instance the court). The scales will be tipped by the second and third factors: the risk of error inherent in the method used to obtain the information; and the usefulness of additional procedural safeguards in securing accurate information.
The risk of error in this case can be analyzed on two levels: the risk that the officer inaccurately reported the statements made by Easterling and his wife; or the risk that Easterling or his wife gave a false or coerced statement to the officer. The district court specifically addressed the first level, finding the affidavit to be rehable and trustworthy because the affiant/officer swore an oath that her statements were true and correct “under penalty of perjuiy.” We agree. The inherent risk of error is significantly reduced when the information is obtained through a sworn affidavit. The whole point of using an affidavit is to ensure the accuracy and truthfulness of the affiant’s statement.
Moreover, under the third factor, employing any procedure in addition to the affidavit would be marginally useful with respect to ensuring the officers veracity. There is scant difference between an officer delivering a report under oath from the witness stand and delivering a report under oath in a written affidavit. Granted, Easterling suggests that his statement may not have been voluntary and, in that regard, the opportunity to cross-examine the officer would have been useful. However, while the voluntariness of the confession affects its admissibility at trial and might have a bearing on an assessment of whether the confessor was telling the truth, it does not change the reliability and trustworthiness of the officer’s statement as to what Easterling actually said to the officer. Accordingly, the district court did not err in accepting the affidavit without further foundation from the officer.
Easterling concentrates on the second level, contending that the procedures employed did not adequately ensure that his statement was truthful. On appeal, he suggests that the officer’s affidavit, without more, was insufficient to protect against the possibility that his confession was involuntarily given and/or was a false confession. In challenging the use of the affidavit in district court, defense counsel was less specific. The argument below was that the affidavit did not have “any place in this Court because it was never tested and it is just an allegation and that’s all it is.” We disagree with both arguments.
A confession by the defendant differs from the unproven representations of the prosecutor, which Gonzalez found to have a high inherent risk of error under the second Matthews v. Eldridge factor. 911 F. Supp. at 126. The source of a prosecutor’s information may be unknown or suspect. A confessor is relating firsthand information. A prosecutor normally has an incentive to relate the defendant’s prior uncharged conduct to obtain a sentence enhancement. To the contraiy, a confessor is making a declaration against his or her own interest. Even if the statute of limitations has run on the prior criminal acts, our hearsay exceptions recognize that a reasonable person will not say something that subjects the declarant to “hatred, ridicule or social disapproval in the community . . . unless the person believed it to be true.” K.S.A. 2008 Supp. 60-460(j). One would be hard-pressed to divine a more socially stigmatizing declaration than a father admitting to sexually molesting his daughter.
Here, however, the officer’s affidavit presented the district court with more than Easterling’s confession. It included corroboration from his wife, who admitted to knowing about the prior sexual abuse of her own daughter and admitted that the conduct was not reported to the authorities. Again, such a declaration against interest is inherently trustworthy, given the risk of societal disapproval of the wife’s failure to report her daughter’s sexual abuse. To ignore the prior uncharged conduct, the district court would have had to find that both Easterling and his wife gave false confessions. Accordingly, under the second factor, we find that the risk of error inherent in using Easterling’s corroborated confession was minimal.
Finally, Easterling asserts that the court’s procedure did not give him a meaningful opportunity to rebut the prior abuse allegation. At oral argument, counsel admitted that the defense was aware of the arrest report affidavit at the time of plea negotiations. In fact, counsel advised that the defense had obtained an expert to testify about false confessions. Moreover, the district court put the defense on notice the day before sentencing that it had looked at and was considering the affidavit which contained Easterling’s confession of prior abuse. The defense had ample notice to comport with due process.
At the sentencing hearing, the court specifically invited the defense “to proceed with your argument and any evidence or additional evidence that you want to offer” in support of the departure motion. Easterling does not adequately explain why this invitation did not provide him with sufficient opportunity to rebut his own confession or that of his wife. He does not allege that he was unable to obtain the appearance of his false confession expert; he did not request a continuance of the sentencing hearing. Easterling’s counsel did not even advise the court that Easterling and his wife would say that they made false confessions or that the daughter would deny that Easterling had molested her, much less present any readily available testimony or affidavits from any of the persons with first-hand knowledge. As was the case in Lee, the defense apparently declined to accept the district court’s proffered opportunity to rebut the contents of the affidavit. That declination does not change the fact that the court provided a method by which the defendant could be effectively heard, thereby comporting with the mandates of the Due Process Clause.
CONSTITUTIONALITY OF SENTENCE
Easterling contends that the length of his sentence is an unconstitutionally cruel or unusual punishment, in violation of § 9 of the Kansas Constitution Bill of Rights. Our standard of review is de novo. See State v. Freeman, 223 Kan. 362, 368, 574 P.2d 950 (1978).
Easterling did not challenge the constitutionality of his sentence before the district court. See State v. Alger, 282 Kan. 297, 304, 145 P.3d 12 (2006) (even constitutional grounds for reversal cannot be raised for the first time on appeal). Easterling declares, without argument, that consideration of the issue is necessary to prevent a denial of his constitutional rights. Cf. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (exceptions to general rule that new legal theory may not be asserted for first time on appeal in- elude “consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights”).
However, as the State points out, recent decisions of this court have refused to consider the merits of this very issue when raised for the first time on appeal. See State v. Thomas, 288 Kan. 157, 161, 199 P.3d 1265 (2009), and State v. Ortega-Cadelan, 287 Kan. 157, 160-61, 194 P.3d 1195 (2008). Those decisions were founded upon the nature of the three-prong test for determining cruel and unusual punishment set forth in Freeman:
“(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 inquiry 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.” 223 Kan. at 367.
We noted that the factors include both legal and factual questions, none of which could be ignored because “no single consideration controls the issue.” Thomas, 288 Kan. at 161. Because the district court had not made any factual findings relative to the Freeman test, we declined to go beyond our role as an appellate court. See Thomas, 288 Kan. at 161 (appellate courts do not make factual findings; they review thosé made by the district courts).
Here, Easterling argues that we have sufficient facts in the record to analyze the first Freeman factor. However, he does not point to the district court’s findings, but rather he simply reiterates some of the mitigating factors he proffered in his departure motion. Nevertheless, we acknowledge that the district court’s detailed recitation in ruling on the departure motion does provide us with more in the way of factual findings than we have previously seen. However, those findings cut against, rather than support Easterling’s position. The court found that Easterling’s culpability “may have been more intense than normal.” It found that Easterling acted to satisfy his own sexual gratification without regard to the victim’s vulnerability or the position of trust Easterling held over the child. Accordingly, the court expressed concern that Easterling might “re-offend under the right circumstance with a minor child in the future” and noted that one of the purposes of the lengthy sentence was “to protect children from abuse by one whose only interest is to satisfy [his] sexual desires.” In other words, given the factual findings which are actually in the record, we are unable to find that the first Freeman factor establishes a cruel or unusual sentence.
Moreover, Easterling does not favor us with any argument or authority on the third factor, a comparison of how other jurisdictions punish this offense. As noted, the analysis requires consideration of all three Freeman factors. Accordingly, the issue is not before us in a posture to be effectively decided.
Affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the husband in a divorce action from an order of the trial court increasing support payments for a minor child.
The appellee, Helen Rose Allison, obtained a decree of divorce from the appellant, James A. Allison, in the district court of Sedgwick County, Kansas, on the 3rd day of August, 1949. In addition to granting the divorce, the decree gave custody of the minor child of the parties, Ashley Allison, to the appellee and directed the appellant to pay the sum of $50 per month for the support and maintenance of the child.
On the 29th day of August, 1960, the trial court heard evidence upon the appellee’s application for an increase in child support payments, and to require the appellant to make financial arrangements to provide funds sufficient to guarantee a suitable college education for the minor child, and other matters. After taking the case under advisement the trial court on the 15th day of September, 1960, made his findings and entered an order, which insofar as material herein reads:
“[1] It is By the Court Considered, Ordered and Decreed that the said defendant, James A. Allison, be and he is hereby ordered to pay to the plaintiff, payment being made through the Clerk of the District Court, for the month of September, and on or before the 15th day of each month thereafter, subject to the further order of this court, the sum of $125.00 per month, until further order of said court, for the support and maintenance of the minor child, Ashley Allison.
“[2) It is Further Ordered that the defendant, James A. Allison, shall forthwith establish in some banking institution in the City of Wichita, Kansas, an account to provide funds for the proper education of his minor child; said defendant shall during the month of October, 1960, deposit the sum of $50.00 and a like sum shall be deposited in said fund each month thereafter up to and including the month of November, 1963; said account to be so arranged so that same will draw interest on funds so deposited. Within one year after said minor child graduates from high school and enrolls in a college, said minor child shall be entitled to withdraw from said fund, the sum of $75.00 per month so long as she remains enrolled in college or until the fund and accumulated interest thereon is depleted. In the event said minor child shall not enroll in college following graduation from high school or should she voluntarily withdraw from college after having enrolled, the balance of said fund remaining on deposit shall thereupon be made payable to said defendant, his heirs or assigns.
“[3] It is Further Ordered that the said defendant, James A. Allison, shall forthwith take the necessary steps to provide that the said minor child shall be named as beneficiary of one-half of the defendant’s $10,000.00 government insurance policy or policies and she shall remain as the designated beneficiary in said policy until graduation from college or having reached the age of 25; upon said minor child reaching the age of 25 or having graduated from college, whichever happens first, said defendant shall thereupon have the right to change the beneficiary on said policy as he deems advisable.
“It is Further Ordered that in the event the defendant, James A. Allison, shall die prior to the minor child having completed her college education and while she is enrolled in a college, such amount as may have accumulated in the fund in the banking institution for the education of said minor shall be thereupon immediately payable to said minor. Provided, further however, in the event said minor child shall die prior to having completed her college education or prior to the depletion of said funds, thereupon said funds shall be payable to the defendant, his heirs or assigns.
“[4] It is Further Ordered that James A. Allison shall pay to the Clerk of the District Court, the sum of $100.00 as attorney’s fees for plaintiff’s attorneys; same being for legal services rendered in the presentation of said motion.”
Appeal has been duly perfected from the foregoing order presenting questions relating to each of the foregoing paragraphs which have been numbered for clarification.
The appellant contends the increase of child support payments from $50 a month to $125 a month is an abuse of discretion by the trial court, and not warranted by the facts disclosed at the hearing. It is the appellant’s position that prior to the time this divorce was granted some years back, the parties had not accumulated property of any substantial character, but were living on a gross income in the amount of $400 a month, which the appellant received as an oil field worker. At the hearing the appellee frankly admitted she merely wanted to maintain the same standard of living that she did prior to the time she received the divorce.
The appellee has had the custody of the child and testified that she has lived with her mother and father for a long period of time. The total rent paid for a two-bedroom duplex in which they lived was $150 per month. Of this amount the appellee paid $50 a month for herself and the child, who at the time of the hearing was fourteen years of age. The appellee further testified she spent at least $100 per month over the $50 supplied by the appellant for the support of the child, and that she was employed receiving an income of $268.65 "take-home” pay per month.
Since the divorce the appellant has remarried and is supporting his present wife and her two children, who are fourteen and sixteen years of age, respectively. They now have an additional child of their own. The appellant testified he had been in business together with his father and brother, the business being known as the A. D. Allison Oil Company; that at the present time he was an oil producer and is just starting in the ranching business. He testified that he had traded for a house and ranch in El Dorado, Kansas, and was trying to sell the real property in Wichita where he had resided in which he had a $2,500 equity. He traded a one-sixteenth interest in fifteen oil wells on an appraisal basis of $65,000 for the equity in a 1,000-acre ranch and assumed a $50,000 mortgage. The ranch has been stocked with registered cattle purchased from the Turner Ranch in Oklahoma, and he placed a value of $42,000 upon his cattle and $120,000 upon the ranch. His testimony further disclosed that his oil properties and the cattle were mortgaged. His balance sheet as of July 1, 1960, indicates gross assets in the sum of $269,640.60, which after deducting liabilities discloses a net worth of $107,212.59. Among the assets was approximately $16,000 cash on hand in bank accounts which he described as operating capital for his business.
The appellant testified his monthly income from oil “varies, around four to five thousand dollars.” His total income for the year 1959 on the income tax return from oil was in the gross sum of $71,000 and the return showed a net income of $10,000. Adjusted gross income was in the amount of $26,800 and there was a depletion allowance in addition of $19,000.
The foregoing gives a brief summary of the evidence presented. The record discloses the testimony of the witnesses and the evidence in far more detail than is necessary to set forth herein.
The appellant contends his net income at the present time budgeted for living expenses is $550 a month, after he pays the mortgages due on the ranch in Butler County, Kansas, and after he pays for the other outstanding obligations, which call for monthly, semi-annually or yearly payments. In his brief he argues:
“. . . Because of the orders of the court, the entire financial structure created by the defendant and his present wife and all they have accumulated, is jeopardized. If the defendant should not make the monthly, semi-annually or yearly payments as specified, he stands to lose all the gains that he has made during the past four years. At the present time he is attempting to stabilize his income by diversifying his interest. It will be approximately two years before any receipts can be had from the ranch which the defendant now owns. The defendant has been unable to discover any new oil fields that are of a paying nature and he has and is operating at the present time at a loss of $12,000.00 to $13,000.00 a year. . . .”
In Harris v. Harris, 5 Kan. 46, the right of the mother and the obligation of the father in a divorce action were expressly recognized to the extent that the trial court must do such full justice as the case requires. In such proceedings it was said equal justice may be done to all parties according to their abilities, and according to the interest of the children. This general doctrine was approved in Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628, where Justice Rousseau A. Burch speaking for the court carefully analyzed earlier decisions of the court. Portions of some of the opinions were criticized and disapproved.
In this state, under all ordinary circumstances, the father and mother of minor children born in lawful wedlock have an equal and joint right to the possession, custody and control of their minor children, and neither has a superior right to the other. As a consequence of such equal and joint right, they are also under an equal and joint obligation to care for and to support and educate their children. But while the rights of parents to the custody and control of their minor children are exactly equal, yet neither has such an absolute right in this regard that it may not, under particular circumstances, be greatly modified or absolutely abrogated. (Miller v. Morrison, 43 Kan. 446, 23 Pac. 612; and Riggs v. Riggs, supra.)
In divorce actions the fundamental difference between the marital and the parental duty of parents is that after a divorce the relation of husband and wife is at an end, and all marital obligations not preserved by the decree are at an end, while the relation of parent and child continues unchanged, and a father’s obligation to support his offspring continues to exist unless cut off by the decree. (Riggs v. Riggs, supra.)
The public policy of this state established by the legislature is to leave the courts perfectly free to enforce parental duty, after a divorce, as justice and occasion may demand.
Our statute, G. S. 1959 Supp., 60-1510, provides in pertinent part:
“When a divorce is granted the court shall make provisions for the guardianship, custody, support and education of the minor children of the marriage, and, . . . may modify or change any order in this respect whenever circumstances render such change proper. . . .”
The above portion of this section of the statute has been interpreted in the following language:
“This section leaves the matter entirely in the hands of the court. It may at any time, upon proper notice, change any former order made with reference to these matters by adding to, or taking from, the burdens of either party relative to the same; . . .
“. . . This statute has the effect to repose in the court the right and duty to require divorced parents properly to care for, maintain and educate their children, notwithstanding the fact of the divorce, and to make such orders relative to payments of money from time to time until this result has been fully effectuated. Such orders may be made by the court upon its own mo tion, or upon the suggestion of any one immediately or remotely interested.” (Miles v. Miles, 65 Kan. 676, 678, 679, 70 Pac. 631.)
The foregoing language was quoted in Riggs v. Riggs, supra, and this interpretation has subsequently been followed. (Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561, and authorities cited therein.) One of our most recent decisions is Grunder v. Grunder, 186 Kan. 766, 352 P. 2d 1067.
The trial court in the instant case could not have been oblivious to the fact that continued payments of principal on the mortgage indebtedness of the appellant gradually enhanced the value of his net estate, and actually reflected ability to support his child far in excess of the $50 per month which had previously been ordered. Upon careful analysis of the record presented for review, we think the trial court was well within the bounds of the evidence and its realm of discretion when child support payments were increased to $125 per month.
The appellant contends the award of support money was, in efEect, retroactive for the month of September, 1960. This point is not well taken.
It has been recognized that a district court has power to modify or change any previous order with respéct to payments for the support and education of a minor child of the marriage whenever circumstances render such change proper, but any new order cannot increase or decrease amounts past due. (Sharp v. Sharp, supra, and authorities cited therein.)
If at all possible, the order of the trial court should be so construed as to uphold its validity. Here the order increasing child support payments was entered on the 15th day of September, 1960, and the increased amount was ordered payable for the month of September. It must be noted the date for making payments was “on or before the 15th day of each month thereafter.” Payment of child support at the rate of $50 per month was payable up to September 15, 1960, and the order changing support payments to $125 per month must be construed to become effective from and after the 15th day of September, 1960. So construed the order is not retroactive.
Paragraphs numbered [2] and [3] of the trial court’s order will be considered together.
The appellant contends the order requiring him to establish a trust fund for the education of the minor child and to pay the sum of $50 each and every month into said trust fund is invalid as well as being excessive, because the order creates a trust for the minor child in an event that may never happen, and provides support for her beyond the age of her majority. The appellant further contends with respect to paragraph [3] of the order that it makes the appellant change a life insurance policy so that the child would be the beneficiary under the terms of the policy for one-half of the proceeds until she reaches the age of twenty-five years or graduates from college, and is therefore invalid as well as being an abuse of discretion on the part of the court.
Where a divorce has been granted it has been held 60-1510, supra, authorizes making provision for the children of the marriage only during their minority. (Emery v. Emery, 104 Kan. 679, 180 Pac. 451; and Sharp v. Sharp, supra.)
On this point the appellee concedes the portion of the order which carries the beneficiary of the life insurance policy beyond the age of majority is invalid, and it is suggested that portion of the order should be amended or sent back for modification by the trial court so that it will not exceed the age of majority of the minor child.
At the time of the hearing the appellant had two insurance policies totaling $110,000 in principal sum payable in the event of the appellant’s death to his present wife as beneficiary. The trial court ordered the appellant to name the minor child in question as beneficiary of one-half of his $10,000 government insurance policy. Undoubtedly, the trial court was of the opinion that some arrangement should be made in order to adequately assure the appellant’s first child that she would have an equal opportunity for a college education with the stepchildren of the appellant in the event of his death, because in such event no funds would otherwise be available to help with the education of this minor child.
At the time of the proceedings before the trial court the minor child was fourteen years of age, and in all probability will graduate from high school when she is seventeen years of age. Assuming that she enrolls in college, she will be approximately twenty-one years of age if and when she graduates.
As to the order of the trial court requiring the appellant to establish a trust fund beginning with the month of October, 1960, and deposit the sum of $50 per month up to and including the month of November, 1963, it can hardly be said to continue beyond the age of the child’s majority. On the basis of the order, there will be accumulated a total fund of $1,800 plus what interest said funds may draw. In the event this child enters college, she will be permitted to withdraw from such fund the sum of $75 per month. This is a withdrawal of $900 per year. It is apparent that such withdrawals will deplete this fund in approximately two years. Thus, if the child graduates from high school at the age of seventeen, the fund will be entirely depleted at her attained age of nineteen years. In the event she does not enroll in college, or shall voluntarily withdraw after having enrolled, the order specifically provides that the money in this fund is to be returned to the appellant, his heirs or assigns.
In Kelly v, Kelly, 105 Kan. 72, 181 Pac. 561, the court upheld an order in a divorce action, which dealt with the parents’ property by creating a trusteeship during the children’s minority and for their benefit, as being authorized by the statute. In the opinion the court said:
“. . . In a divorce case, where the welfare of minor children is involved, the trial court’s power in dealing with the property of parents is necessarily very broad, and unless that power is obviously abused, its exercise will not be disturbed on appeal. As we construe the decree, if the property is not exhausted during the children’s minority, with the approval of the court and by its order, the trusteeship will then be terminated, and the title will revert to its status prior to the date of the decree. . . .” (pp. 74, 75.)
Similarly, in Smith v. Smith, 104 Kan. 629, 180 Pac. 231, the court had before it an action by a father to recover from his children the possession of real estate, the rents and profits of which under a decree of divorce had been set aside for the support of the minor children. In examining the provisions of the former decree it was held the children’s rights to the rents and profits ceased when the youngest child attained majority, and that the father was entitled to the possession of the land.
The order of the trial court herein fails to consider the contingency of the appellant’s death prior to the child’s graduation from college or prior to attaining the designated age regarding the proceeds of the insurance policy. If the child does not enter college, or drops out after enrollment, and the appellant dies prior to her age of majority, the minor child is entitled to the insurance proceeds. The question thus arises whether the court has created an estate for the permanent benefit of the minor child.
In Emery v. Emery, supra, it was held:
“The statute authorizing the court upon granting a divorce to provide for the guardianship, custody, support and education of the minor children of the marriage, contemplates making provision for the children only during their minority, and grants no power to transfer any of the property of either parent to the children for the purpose of creating an estate for their permanent benefit. A part of a decree attempting to do this is wholly void .and open to collateral attack." (Syl. jjl.) (Emphasis added.)
The foregoing case was cited with approval in Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127. There, however, the father consented to the transfer of the insurance policies, and the court said in the opinion:
“Appellant argues the assignment'of the policies created an estate for the minor child out of the father’s property and thus provided support for the child which might continue beyond the minority of the child. It is contended the creation of such an estate is invalid, citing Emery v. Emery, 104 Kan. 679, 180 Pac. 451. That decision, when applicable, is sound. Here, however, an estate for the child is not created out of the father’s property against his will. The father has consented to the irrevocable assignment of the policies and has agreed to continue to pay the premiums thereon for the benefit and protection of his child.” (p. 196.) (Emphasis added.)
• For other decisions where the parties have agreed to action of the character here in question by contract, holding a judgment carrying out its terms and putting them into force and effect to be valid, see Feldmann v. Feldmann, 166 Kan. 699, 707, 204 P. 2d 742, and cases cited therein.
By giving recognition to the foregoing contingency, the appellant contends the court has in' effect successfully created an estate for the child’s permanent benefit against the will of the appellant. Technically, this may be true, but it is readily apparent, upon consideration of all the facts and circumstances presented by the record in this case, the dominant factor guiding the trial court’s decision was to make adequate provision for the education of the minor child of the parties.
Courts must take judicial notice of changing times and conditions. A college education has gradually become almost a necessity for our young people to find suitable placement in our American society and economy. Where the parents’ economic circumstances are adequate it is commonplace to send their children to college. Family budgets are so arranged that for many years prior to a child’s actual enrollment in college, funds are set aside in savings accounts and insurance policies purchased to assure a college edu cation for the child. We think the provisions of 60-1510, supra, are sufficiently broad to authorize a trial court to make provision for the college education of a child, where the evidence shows a plan for such education, as here, and ability on the part of a parent, such as the appellant in this case, to provide such education.
In our opinion, it is proper for a court to require a suitable insurance policy designating the child as beneficiary to assure the child an opportunity for a college education, provided the responsible parent is not bound to continue such policy of insurance beyond the age of the child’s majority. Here the order of the trial court authorized the appellant to change the beneficiary in the policy “upon said minor child reaching the age of 25 or having graduated from college.” As heretofore noted, the extent to which the trial court required the appellant to carry the minor child as a beneficiary beyond the age of majority is invalid.
On the facts presently before the court, we think it is properly within the discretion of the trial court to make provision for the education of the minor child in question by an order requiring the appellant to establish a trust fund, as herein set forth, and to designate such child as the beneficiary of one-half of the $10,000 government insurance policy, until such time as the child graduates from college or attains the age of majority.
The allowance of $100 attorneys’ fees in paragraph numbered [4] of the order for an appearance of the appellee in the court below has been examined, and upon the record here presented, is found to be properly within the discretion of the trial court. (G. S. 1949, 60-1507; and Bennett v. Bennett, 175 Kan. 692, 266 P. 2d 1021.)
The case is remanded to the lower court with directions to modify paragraph numbered [3] of its order in accordance with the views expressed herein. As thus modified, the order of the trial court is affirmed.
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The opinion of the court was delivered by
Jackson, J.:
The defendant, who is die appellant in this appeal, was charged in the court below in an information containing three counts. It was alleged that defendant had violated G. S. 1949, 21-916, 21-915, and 41-803. After trial by jury, the defendant was convicted under sections 21-916 and 41-803, and was acquitted of violating section 21-915. The first two sections mentioned in the information constitute felony charges relating to the operation of a gambling house. Section 41-803 defines the misdemeanor of operating an “open saloon.” It may be noted that section 21-916 specifically prohibits setting up of various and sundry gambling devices and permitting such devices to be used for gaming in a house or building under control of the defendant. The time covered by the information was from February 6,1959 to June 12,1959.
It was further charged that the violations of the statutes had taken place at premises referred to as the Blue Note Ballroom and Aero Club and also at the Key Club. Both of these places were located in the city of Wichita.
It should be noted that the state has filed a cross appeal in this case, but we shall deal with it after disposing of the defendant’s appeal.
In defendant’s abstract twelve assignments of error are made, but in his brief only three matters are argued. Therefore, under our rules, the other assignments are deemed to have been waived (State v. Owen, 161 Kan. 361, 168 P. 2d 917; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P. 2d 786, and cases cited).
The first two sections of defendant’s brief may be covered together. It is first argued that the trial court erred in failing to instruct the jury upon the provisions of G. S. 1949, 21-934, a misdemeanor, as a lesser offense included in the two felony charges specified in the information of the state. It is then argued that the trial court should have granted a new trial because of this failure to instruct upon a lesser offense.
In discussing this question, it should be said first that defendant’s competent counsel does not endeavor to mislead this court, but frankly admits that no request was made asking the trial court to instruct the jury as to any lesser offense. In fact, it was only in an amendment of the motion for new trial that any ground which could be thought to include this matter was set out in the motion. We understand, and the abstract so indicates, that the matter of lesser offenses was not argued to the trial court on the motion for new trial. However, defendant now argues the trial court erred in failing to instruct the jury upon the matter of lesser offenses. Defendant relies especially upon G. S. 1949, 62-1447 which imposes the duty to instruct the jury upon “all matters of law which are necessary for their information in giving their verdict,” and especially upon the cases of Craft v. The State, 3 Kan. 450*; and State v. Winters, 81 Kan. 414, 105 Pac. 516.
It must be noted that the Craft case involved a charge of first degree murder where defendant had killed a friend in a drunken fight and had been sentenced to death. The defendant at least argued on motion for new trial that the jury should have been in structed upon the crimes of murder in the second degree and upon the four degrees of manslaughter and may have raised the question before that time in the trial. Quite obviously, this court should and did grant the defendant a new trial.
Neither do we believe that the Winters case is authority which would show that the defendant in the case at bar has not waived any right to have instructions on lesser offenses given. In the Winters case, the defendant was convicted of assault with a deadly weapon, and argued that the jury should have been instructed upon the crime of simple assault and other lesser offenses. The court held that the defendant waived any right which he may have had in that respect. In the third paragraph of the syllabus of the Winters case will be found the following rule:
“Generally a verdict of guilty of a higher offense or degree, based upon satisfactory evidence and correct instructions relating to it, renders error in giving or refusing instructions . upon inferior degrees or offenses immaterial.”
We also direct attention to the language of Mr. Justice Rousseau A. Burch in the opinion of the Winters case p. 421, where it is said:
“From all the decisions noted it may be concluded that the statute means what it says and should be followed, but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions should be requested covering all lesser degrees or lesser crimes involved in the main charge which the defendant desires to be considered. A request sufficient to direct the mind of the court to the subject is enough. Good instructions need hot be offered, or a good theory for them formulated; and the evidence itself may point so plainly to the necessity for such instructions that no request is necessary. Generally, however, a failure to make the request waives error in failing to instruct, and, generally, error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions relating to it.”
Turning now to the case at bar, it is most doubtful whether the trial court noticed the short paragraph in the amendment to the motion for new trial. Further, it is not clear that section 21-934 is a lesser degree of the same offense set out in section 21-916. The question to our knowledge has never been before this court. It is clear, however, that it is almost a universal rule that to urge a trial error upon an appeal, the trial court must have been given the opportunity to pass upon the question under a motion for new trial. Furthermore, it appears that the error must have been called directly to the trial court’s attention in oral argument, or of a certainty in some other manner. Attention is directed to the following authorities and others cited therein, State v. Toelkes, 128 Kan. 293, syl. ¶ 4, 278 Pac. 20; Darling & Co. v. Petri, 138 Kan. 666, 669, 27 P. 2d 255; State v. Long, 148 Kan. 47, 48, 79 P. 2d 837; State v. Hayes, 169 Kan. 505, 219 P. 2d 442; State v. Teter, 180 Kan. 219, 220, 303 P. 2d 164.
While it would appear that the criminal act set out in section 21-916 might well differ from the act proscribed in section 21-934, we do not now pass upon that question. We are quite clear that to allow defendant to now raise this trial question on appeal would indeed amount to an actual ambush of the trial court. We hold the defendant cannot raise the question on appeal.
The defendant lastly complains of the admission of the books of account of the Aero Club Inc. and the Key Club Inc. upon the ground that doings of these corporations were not connected with the defendant so as to charge him with the illegal acts of the corporations. We have carefully read the large record, and feel that the opinion herein need not be extended by recounting all the details. It would seem sufficient to say that evidence introduced shows that the officers of such corporations were minor employees of defendant; that defendant and his wife controlled everything about the corporations; and that in fact the evidence was such that the jury might well believe the corporations were mere shams set up by the defendant for the purpose of carrying out illegal business. We find no error here.
We now turn to the cross appeal of the state. When defendant came before the court for sentence, the state showed to the court a prior conviction of felony had against the defendant in the district court of Sedgwick county. Defendant then presented a governor’s pardon showing that after the former conviction he had been pardoned by the governor of this state.
Moreover, the district court on December 16, 1959, was confronted with the ambiguous provisions of G. S. 1959 Supp., 62-2239 relating to minimum sentences.
Faced with these propositions, the learned trial judge sentenced the defendant to one year in the penitentiary as the minimum under the felony count and to ninety days in the county jail on the misdemeanor count and provided that the sentences should run concurrently. The trial court did not apply the provisions of G. S. 1949, 21-107a as to sentencing habitual criminals in assessing the penalty under section 21-916.
The state in its cross appeal asserts that the provisions of section 21-107a become mandatory upon the trial court when a former felony conviction has been shown to the court. The state also directs attention to our recent cases handed down subsequent to December 16, 1959, when the trial court entered its sentence. On June 11, 1960, this court decided the case of State v. O’Connor, 186 Kan. 718, 353 P. 2d 214, holding section 62-2239, supra, void as being judicially inoperative. Later, on November 12, 1960, in Murray v. Hand, 187 Kan. 308, 356 P. 2d 814, the court held that the fact a defendant had received a pardon on a prior felony conviction did not in any way absolve him- from the application of G. S. 1949, 21-107a based upon that prior conviction.
Now turning to the question of whether the trial court must double the sentence provided in the statute for the conviction of a new felony, if it is established that defendant has previously been convicted of a former felony, it would appear that it is the duty of the court to do so. We note the wording of section 21-107a:
“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; . . .”
Attention is also directed to the second paragraph of the syllabus in State v. Ricks, 173 Kan. 660, 250 P. 2d 773. In the Ricks case, the defendant was returned to the trial court for a proper sentence under the habitual criminal act where the trial court had failed to impose sentence under the statute.
The conclusion from all that has been said above is that the defendant’s principal appeal must be affirmed; that the state’s cross appeal compels the setting aside of the improper sentence influenced by the void statute and the court’s doubt concerning section 21-107a, and the trial court is hereby directed to bring defendant before the court and enter a valid sentence under the provisions of G. S. 1949, 21-916 and 21-107a. It is so ordered.
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The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case. The only question involved is whether there is substantial evidence in the record to support the finding of increased disability in a proceeding for review and modification of the original award.
On June 6, 1957, while engaged in building a pump shed around the draw works of an oil well, and while standing on a part of the machinery to install roof rafters, claimant momentarily lost his balance and stepped backward onto the pump belts. He was thrown to the ground and suffered severe injuries to his left leg, back and chest, and suffered belt burns on his body. He was hospitalized for ninety-six days and underwent an operation on his knee. His left leg remained numb and his back pained him almost constantly. It is conceded that his accidental injury arose out of and in the course of his employment.
On March 27, 1959, the commissioner found that claimant had suffered a 25.4% permanent partial general disability and made an award accordingly. No appeal was taken from that award.
On June 6, 1959, under the provisions of G. S. 1959 Supp. 44-528, claimant filed an application for review and modification in which he alleged that he was then totally disabled, and prayed for an order increasing the original award on the basis of total disability.
Following a hearing on this application, the record of which was made by and consisted of deposition testimony, the commissioner found—
“that the anxiety tension state for which review and modification is sought, pre-dated the accidental injury suffered by claimant June 6, 1957, and that the application to review and modify the existing award should be denied.”
Upon appeal by claimant to the district court the order of the commissioner denying an increased award was reversed, and the pertinent portion of the court’s judgment reads:
“(4) That after considering the case as a whole and reading the transcripts, briefs of counsel, and hearing arguments of counsel, I am of the opinion that the claimant is one hundred per cent (100%) totally and permanently disabled as a result of traumatic neurosis and that such condition was directly caused and is a result of the accident and injuries the claimant sustained on the 6th day of June, 1957. The fact that the claimant had a predisposition to a neurosis in that he was a potential psycho-neurotic at the time of the accident is immaterial since the accident was the exciting cause which precipitated the nervous symptoms.”
Judgment was rendered accordingly, and the employer and its insurance carrier have appealed.
Before entering into a discussion of the evidence, brief mention should be made of the review and modification statute, 44-528, above. As here material, it provides that at any time before the final payment has been made under or pursuant to any award it may be reviewed by the commissioner, the purpose being to determine whether such award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished since the date of the original award. The reason for the statute is of course evident, for, in the very nature of things, the question of the extent of disability in the first instance is oftentimes conjectural. Human nature being what it is, and medical science not being perfect, it is conceivable that a claimant may not be as badly disabled a few weeks or months after the original hearing as he seemed to be at the time the award was made. On the other hand, his condition might have grown much worse. The statute was enacted to meet such a situation and its provisions safeguard the welfare of the workman as well as the employer. (Williams v. Lozier-Broderick & Gordon, 159 Kan. 266, 270, 154 P. 2d 126.)
Because of a contention made by respondent appellants, we mention briefly the evidence at the hearing on the original award.
There was considerable testimony concerning the actual physical injuries sustained by claimant. A Dr. Moore testified that in his opinion claimant was suffering 100% disability at that time. He qualified that opinion, however, by stating that his estimate was on the basis of temporary total disability until such time as claimant’s true condition could be determined by specialists in an Oklahoma City clinic, where Dr. Moore wanted to send him. He further testi fled that at that time claimant’s condition was to a considerable extent due to a number of conditions, such as worry, mental stress and strain, and the like, all of which, coupled with his physical condition as a result of the injury, brought about what he then considered a 100% disability.
At the hearing on the application for review and modification it was brought out that while in military service in World War II the claimant had been hospitalized on at least three occasions for “emotional and nervous disorders.” Certain records of the Veterans Administration were introduced by the testimony of a Dr. Bernstorf, by deposition, and they definitely established that claimant had suffered emotional strain for a number of years.
Dr. Moore also testified by deposition at the hearing for review and modification. Rather than attempt to summarize, we quote excerpts from his testimony:
“A. As far as his original injuries are concerned, I do not feel that there is any change in his physical disabilities at that time. However, there is a psychiatric factor which I call a chronic anxiety reaction which has become worse. I feel that this is largely due to his feeling of inadequacy, his inability to work, his inability to take care of his bills, and that has been progressively worse, and it became so bad that I sent him down to the Veterans’ Administration for an evaluation and a work-up there as to what they felt could be done for his psychiatric disorder, and they found no solution for him there, nor did they feel that—
“Q. Has Mr. Hayes grown worse since the spring of 1959, in so far as his injuries are concerned?
“A. As far as his basic physical injuries are concerned, he remains about the same.
“Q. Do you notice any improvement?
“A. Very little, if any. He complains much more of other things which we cannot attribute to his physical findings. He has been worked over very thoroughly, and it is my opinion that it is psychiatric in origin and due to his chronic anxiety reaction which he has.
“Q. Do you feel that he has developed this since you last testified, or since the spring of this year?
“Mr. Hampton: Objected to as leading and suggestive.
“A. It was apparent in some degree even at the last — at that time that I had seen him — I mean excuse me, at the time I gave the evidence before, but it is more pronounced now, and is very fixed at this time.
“Q. Is it true that individuals sometimes undergo an anxiety reaction after they have had a serious injury, and some men will make a full recovery without any significant involvement or disability, whereas some individuals may become totally disabled by reason of the worrying and the concern and anxiety that follows a serious injury?
“A. That is a mouthful — and you are delving into the psychiatric field, of which I am not an expert. But many people who have some anxiety reactions may under normal circumstances adjust very well and lead fairly happy and normal lives. When a severe incapacitating accident intervenes and this individual then is faced with problems which he can no longer solve, then his anxiety then becomes much more worse — excuse me — much worse, and becomes much more of a problem to him as a result of his injury. ■ Does that answer your question?
“Q. What do you attribute the anxiety and the mental state to, is it the result of the injury?
“A. Well, as a result of the circumstances following after the injury; his inability to work and his increasing indebtedness, he is unable to provide for his wife and children, he is a chronic invalid, which works together and makes him only worse; it is a vicious cycle.
“Q. Is he able to return to any oilfield work at the present time?
“A. No, he is not able to do any labor at all, I believe. In my opinion he is 100 percent totally disabled.
“Q. Can he do any type of work, work in the general field of labor, or any light work such as a desk job or any type of work?
“A. I don’t think in his present state he is capable of any kind of work, light work or otherwise.
“Q. And you base this, Doctor, upon the physical findings as well as his nerves and mental reaction to the accident?
“A. He is limited, of course, severely in his physical field of work, but then I think the biggest problem right now lies, not entirely, but a great deal, with his mental outlook, his chronic anxiety reaction, because I don’t think anybody would hire him to begin with. I doubt if he could hold a job if they would.
“Q. Based upon your many visits at the office and in the home, as you have testified, based upon the numerous examinations you have made of this individual, do you have an opinion as to the disabilities that he has now?
“A. Yes.
“Q. What is that opinion?
“A. You are talking about in the whole, or do you want each one listed separately?
“Q. I mean just generally.
“A. He is, in my opinion, 100 percent totally disabled.
“Q. That is based upon the facts you have just related here?
“A. Yes.”
Respondents argue that inasmuch as Dr. Moore’s testimony at both hearings was to the effect that claimant was 100% disabled, it cannot be said he added any substantial testimony at the later hearing upon which the court could base its finding of 100% disability, and, the original award of 25.4% disability being unappealed from, therefore became final.
In so contending we believe that respondents inaccurately construe the testimony of Dr. Moore at the hearing on the original award. It is true that at that time he did state that in his opinion claimant was 100% disabled, but his estimate was on the basis of temporary total disability pending further evaluation by specialists, whereas at the later hearing he unqualifiedly expressed the opinion that claimant was “100 percent totally disabled.”
The above-quoted portions of the medical testimony speak for themselves. While claimant’s physical injuries were principally to his leg, back and chest — the end result was that his mental condition became such as to render him totally disabled — all of which was directly traceable to his accidental injury. Traumatic neurosis, following physical injury, long has been recognized as being compensable under workmen’s compensation laws, and the rule is applicable to such injury even though financial and other worries play a part. (Morris v. Garden City Co., 144 Kan. 790, 792, 62 P. 2d 920; Barr v. Builders, Inc., 179 Kan. 617, syl. 4, 296 P. 2d 1106.) Furthermore, it is well-settled that the workmen’s compensation act prescribes no standard of health for workmen, and where a workman is not in sound health but is accepted for employment and a subsequent industrial accident suffered by him aggravates or accelerates an existing disease, or intensifies the affliction, he is not to be denied compensation merely because of such pre-existing condition. (Strasser v. Jones, 186 Kan. 507, 511, 350 P. 2d 779.)
In Jones v. Western Union Telegraph Co., 165 Kan. 1, 192 P. 2d 141, it was said:
“The same legal principles control a case which develops from a review and modification that apply to an original hearing in a compensation case. On appeal to the district court from the award of the commissioner, in such cases, that court has the duty to determine from conflicting evidence whether there has been a change in the physical condition of a claimant, and this court cannot change the district court’s findings if they are supported by substantial competent evidence. The situation is practically the same as it is in original hearings.” (p. 8.)
This record contains substantial evidence to support the court’s finding that claimant was suffering 100% permanent disability as a result of traumatic neurosis; that such condition was directly caused by and was a result of his accidental injuries, and that claimant’s predisposition to a neurosis was immaterial in view of the fact his injury was the exciting cause which precipitated his nervous symptoms.
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
Charles Dollison (plaintiff) brought this civil action against defendant Osborne County to collect overtime pay and termination benefits. The trial court granted plaintiff s claim for termination benefits and denied his claim for overtime pay. Roth parties appeal.
Charles Dollison was employed as undersheriff of Osborne County from September 1, 1980, to January 14, 1985. His employment was terminated after the election of a new sheriff in 1984.
During his employment as undersheriff, Dollison worked approximately nine hours a day for seven consecutive days, followed by three days off. Thus, he worked a maximum of 22 days per month. Often he would be required to work overtime and, until 1982, the county compensated him with overtime pay of time-and-a-half for all hours worked in excess of 258 hours pér month. In 1982, the county secured Dollison’s written agreement to waive his right to overtime pay. After this agreement, Dollison continued to work overtime and was not given overtime pay by the county.
During the time of Dollison’s employment, Osborne County employed, in addition to the sheriff and undersheriff, one other full-time certified law enforcement officer. The county also employed five deputies as dispatchers, three full-time and two part-time.
The other four to five employees of the sheriff s department were often deputized. Their duties included radio communications, taking care of prisoners, and assisting in arrests and serving warrants. They were not inherently authorized to make arrests and were not armed, but they could be authorized to make arrests and participated in assisting arrests by other officers. They also occasionally attended law enforcement seminars; but none of them ever completed an official law enforcement officer certification program.
After his termination, Dollison sought compensation from the county commissioners for his overtime work and for accrued vacation time; he was refused. On April 19, 1985, Dollison filed suit in Mitchell County District Court. The action was transferred to Osborne County on June 6, 1985, and on July 28, 1986, the district court ruled by memorandum opinion that Dollison was entitled to receive accrued vacation benefits but not overtime compensation.
Defendant Osborne County initially raises two issues in its cross-appeal, attacking the trial court’s decision on jurisdictional grounds.
The defendant first contends that it is not bound by the decision of the district court since, by the original captioning of the action as “Charles Dollison v. Osborne County, Kansas,” it was not made a “de jure party” and thus the court lacked “subject matter jurisdiction.” If there is a defect in the captioning of the case, it would relate only to personal jurisdiction, not subject matter jurisdiction.
K.S.A. 19-105 provides: “In all suits or proceedings by or against a county, the name in which the county shall sue or be sued shall be ‘The board of county commissioners of the county of__’ ” The defendant relies entirely upon Withers v. Root, 146 Kan. 822, 73 P.2d 1113 (1937), in support of its contention. This reliance is misplaced.
In Withers v. Root, this court stated that the “board of county commissioners constitutes the governing body of the county. [Citation omitted.] The judgment could not bind the county unless it was a party to the action.” 146 Kan. at 826. However, Withers was decided under a factual situation not applicable to the present case. In Withers, the plaintiff had originally brought suit not against the county but against the county treasurer. The county commissioners in Withers were not served with process, were not made parties to the action, and did not receive notice of the action until after judgment had been rendered in favor of the plaintiff. 146 Kan. at 823. The court in Withers expressly noted:
“Process was not served on the county as required by law (G.S. 1935, 19-106), or in any other manner.
“There are some statements in the brief of plaintiff to the effect that the county attorney was in the action from the beginning. The record discloses only that he represented the county treasurer. The record in no wise discloses he represented the board of county commissioners or that any motion or pleading was ever filed in its behalf by anyone.” 146 Kan. at 826.
In the present case, the record is clear that the county attorney had been involved in the action from the very beginning. The county attorney answered the plaintiffs petition “For and in Rehalf of Defendant.” The answer expressly admits the identity of the defendant contained in paragraph 2 of the petition, which provides:
“2. Defendant is a county in the State of Kansas whose present county commissioners are as follows:
Wayne L. Green
126 N. 2nd
Osborne, Kansas 67473
Donald S. Kiper
19 Circle Drive
Downs, Kansas 67437
Eugene Smith
Paradise, Kansas 67658.”
Unlike Withers, the record precludes Osborne County from arguing that it had no notice of the proceedings against it and was unable to defend its position prior to judgment. The present case more clearly resembles Staley v. Espenlaub, 127 Kan. 627, 274 Pac. 261 (1929). In Staley, the plaintiffs had sued Wyandotte County in ejectment. The county answered but did not use the statutory designation prescribed for suits by or against counties. The trial court granted judgment for the county. The plaintiffs sought to set aside the judgment on the grounds that the answer had failed to use the statutory designation. This court stated: “While the precise statutory name by which the county should have been sued, ‘The board of county commissioners of the county of Wyandotte’ [citation omitted], was not used, identity of the defendant was unmistakable.” 127 Kan. at 631. The court continued: “The subject of who was answering was made very plain by the amended answer, and the court concludes its discussion of this rather trivial subject by announcing that the county was sued, the county answered, and the county recovered judgment.” 127 Kan. at 631.
Moreover, the argument that a county has not been correctly designated may be waived. In Railroad Co. v. Saline County, 69 Kan. 278, 76 Pac. 865 (1904), the plaintiff sued the county commissioners of Saline County but failed to use the exact statutory designation. This court held that the county waived the argument of improper designation by such actions as: (1) The county’s filing an answer admitting the defendants were acting as county commissioners, (2) the county attorney’s signing the answer as “county attorney,” and (3) the county’s filing subsequent pleadings which do contain the correct statutory designation. 69 Kan. at 280-81. The court concluded:
“The issue was one affecting the county, the officers charged with the duty of representing the county in its litigation appeared and presented that issue to the court, and the result was a judgment against the county. It is too late to say that the misnomer of the defendant in some of the pleadings nullified the judgment or relieved the county from its effect.” 69 Kan. at 282.
In the present case, the answer filed admitted the defendant was the county, the pleadings of the defendant are consistently signed by Mr. Steerman with the accompanying designation of “County Attorney,” or “Osborne County Attorney,” and the defendant filed Recommended Findings of Facts and Conclusions of Law which used the correct designation, “The Board of County Commissioners of the County of Osborne, Kansas.” We find the defendant waived any defense that might have existed.
After the present action was filed in Mitchell County, the defendant moved to dismiss, alleging forum non conveniens. The Mitchell County court transferred the case to Osborne County. The defendant contends that the Osborne County District Court was without jurisdiction to hear the case.
Defendant relies entirely upon Quillin v. Hesston Corp., 230 Kan. 591, 640 P.2d 1195 (1982). In Quillin, the plaintiff was a resident of Missouri while the defendant was a Kansas corporation with its principal place of business in Harvey County. The plaintiff filed suit in Johnson County which, on defendant’s motion of forum non conveniens, transferred the case to Sedgwick County. This court in Quillin held that, under the common law doctrine of forum non conveniens, the initial court may only dismiss the action; it may not transfer the action to a more convenient forum.
Quillin was decided under the common-law doctrine of forum non conveniens. 230 Kan. at 594. The court found no authority for transfer of an action, as opposed to dismissal, under cases applying the common-law doctrine. The court stated:
“The federal courts have long recognized the doctrine of forum non conven iens and have repeatedly declined to exercise jurisdiction under the doctrine. The result thereof was invariably dismissal until the enactment of 28 U.S.C. § 1404 (a). The change resulting from the statute is discussed in the annotation following 10 A.L.R. Fed. 352 as follows:
“ ‘The essence of the common-law doctrine of forum non conveniens is that even when an action is brought in a court which has jurisdiction of the cause and of the parties and in which venue is proper, the court may decline to exercise jurisdiction and dismiss the action if another forum would be more convenient. While this doctrine has been recognized and applied in the federal courts, an important change in the application of the doctrine in federal cases has been made by 28 USC § 1404(a), which provides: “[F]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The basic change, obviously, is that the remedy for forum non conveniens under the statute is a transfer to a convenient forum, whereas the remedy under the common-law doctrine is a dismissal.’ ” (Emphasis added.) 230 Kan. at 594.
The Quillin court then analyzed possible Kansas statutory authority for transfer and concluded none applied. Since the only possible basis for the Johnson County District Court’s action was common law forum non conveniens, dismissal and not transfer was required.
However, the statutory authority that was lacking in Quillin is no longer absent. K.S.A. 60-609 (Weeks) provided, at the time of the Quillin case, only for transfer of venue where the original county could not provide a “fair and impartial trial.” Transfers for purposes of convenience alone did not have statutory authorization.
Shortly after the court’s 1982 decision in Quillin, the legislature amended K.S.A. 60-609 in 1983 to add new subsection (a), which provides:
“Upon the motion of a party, a district court may transfer any civil action to any county where it might have been brought, after due consideration of the right of the plaintiff to choose the place of the action and a finding that a transfer will serve the convenience of the parties and witnesses and the interests of justice.”
With the existence of K.S.A. 60-609(a), transfer and not dismissal should be the preferred means of dealing with inconvenient venue where the alternate forum is another county within this state. Moreover, it is difficult to see how defendant Osborne County can complain of prejudice by the transfer to Osborne County in that defendant’s forum non conveniens motion to dismiss contended that Osborne County was a reasonable venue for the action.
We turn now to the primary issue raised by plaintiff in this appeal. He contends that the failure of the county to pay overtime wages was a violation of the Kansas Minimum Wage and Maximum Hours Law (KMWMHL). K.S.A. 44-1201 et seq. This statute is the state counterpart to the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. (1982).
In this case, there are three possible exemptions from the overtime protections of the KMWMHL or the FLSA. The district court reached its decision on the basis of the first, 29 U.S.C. § 213(b)(20) (1982), which exempts law enforcement organizations which employ fewer than five persons. The second exemption, 29 U.S.C. § 203(e)(2)(C)(i) and (ii)(II) (1982), exempts employees of governmental subdivisions who are not covered by civil service and are on the personal staff of a publicly elected officer. The final exemption excludes persons who are employed in an administrative capacity. 29 U.S.C. § 213(a)(1); K.S.A. 44-1202(e)(3). The trial court failed to distinguish between exemptions which apply only to the federal FLSA and exemptions which apply to both the FLSA and the KMWMHL. Of the exemptions cited above, only the last, the “administrative” employee exemption, could exclude Dollison from coverage of both the FLSA and the KMWMHL.
The district court addressed only one of the exemptions. It found that the Osborne County Sheriff s Department fell, within the fewer than five employees exemption, and that “[therefore, the provisions of the Fair Labor Standards Act would not apply and the County would not be obliged to pay overtime pay to the plaintiff.”
The KMWMHL provides protections for many workers in the state by ensuring that they cannot be compelled to work overtime without fair compensation:
“On and after January 1,1978, no employer shall employ an employee for a work week longer than forty-six (46) hours, unless such employee receives compensation for employment in excess of forty-six (46) hours in a work week at a rate of not less than one and one-half (1 Vz) times the hourly wage rate at which such employee is regularly employed.” K.S.A. 44-1204(a).
The law also provides for overtime pay protection for law enforcement persons, although the hours worked requirement is higher:
“No employer shall be deemed to have violated subsection (a) with respect to the employment of any employee who is covered by this section, who is engaged in the public or private delivery of emergency medical services as a crash injury management technician, emergency medical technician or mobile intensive care technician, or who is engaged in fire protection or law enforcement activities, including any member of the security personnel in any correctional institution, and who is paid compensation at a rate of not less than one and one-half illA) times the regular rate at which such employee is employed:
“(1) In any work period of twenty-eight (28) consecutive days in which such employee works for tours of duty which in the aggregate exceed two hundred fifty-eight (258) hours; or
“(2) in the case of any such employee to whom a work period of at least seven (7) but less than twenty-eight (28) days applies, in any such work period in which such employee works for tours of duty which in the aggregate exceed a number of hours which bears the same ratio to the number of consecutive days in such work period as two hundred fifty-eight (258) hours bears to twenty-eight (28) days.” (Emphasis added.) K.S.A. 44-1204(b).
All persons who are employed by an employer, with limited exceptions, are protected by this law. The KMWMHL excludes from its otherwise all-inclusive definition of “employee” anyone who is “employed in a bona fide executive, administrative or professional capacity.” K.S.A. 44-1202(e)(3). “Employers” subject to the law are defined on a similarly all-inclusive basis, K.S.A. 44-1202(d), and this court has held that the law was intended to apply to counties and their agencies. State ex rel. Ludwick v. Board of Johnson County Comm’rs, 233 Kan. 79, Syl. ¶ 2, 661 P.2d 377 (1983).
However, the Kansas law does not apply to “employers” who are obliged to meet the standards of the FLSA:
“ ‘Employer’ means any individual, partnership, association, corporation, business trust or any person or group of persons acting directly or indirectly in the interest of an employer in relation to an employee, but shall not include any employer who is subject to the provisions of the fair labor standards act of 1938 (29 U.S.C.A. § 201 et seq.) and any other acts amendatory thereof or supplemental thereto.” (Emphasis added.) K.S.A. 44-1202(d).
Those exemptions to overtime pay such as 29 U.S.C. § 203(e)(2)(C) (the “personal staff’ exemption) and 29 U.S.C. § 213(b)(20) (the fewer than five law enforcement officers exemption) which apply only to the FLSA are not relevant to the present case. Even if the requirements of these exemptions were met by the facts of this case, it would exclude plaintiff only from the protections of the FLSA; it would not exclude him from the KMWMHL. The effect of plaintiff s falling within either of the above exemptions would mean only that the employment relationship was not “subject to the . . . fair labor standards act of 1938.” K.S.A. 44-1202(d). The county therefore could still fall within the less generous but still binding overtime pay requirements of the KMWMHL.
Osborne County in its brief consistently referred to the KMWMHL as “incorporating” the provisions of the FLSA. The Kansas law does no such thing. Provisions of the KMWMHL, K.S.A. 44-1202(d), -1203(b), and -1204(c)(1), exclude from the state law only those employment relationships governed by the FLSA. If an employment relationship is excluded from the FLSA, it would not be excluded from the KMWMHL (assuming there is no independent basis for excluding the relationship from the state law). Of the exemptions relevant to this case, only the 44-1202(e)(3) “administrative” employee exemption would serve to exclude plaintiffs employment from both the federal law and the state law.
The trial court never addressed this issue and decided the case solely on the. basis of the FLSA even though the basis of Dollison’s petition was a violation of the KMWMHL. Defendant Osborne County attempts to argue that, despite the plain meaning of the state law, the legislature intended the KMWMHL to “incorporate” all the provisions of the FLSA. The only basis Osborne County advances for this argument is a comparison of K.S.A. 44-1204(a) (requiring overtime pay for work in excess of 46 hours per week) with 29 U.S.C. § 207(a)(2)(C) (1982) (requiring overtime pay for work in excess of 40 hours per week) and a comparison of K.S.A. 44-1204(b) (requiring overtime pay for law enforcement officers working over 258 hours per 28 consecutive working days) with 29 U.S.C. § 207(k) (requiring overtime pay for law enforcement officers working over 216 hours per 28 consecutive working days). Osborne County then concludes the Kansas legislature did not intend to be “as generous” as the FLSA. It is, of course, obvious that the KMWMHL is not as generous in some of its provisions as the FLSA, but to infer from this that the Kansas legislature intended to “incorporate” all the exceptions and exemptions contained throughout the FLSA defies all logic.
It may be that an employee is required to work longer before he qualifies for overtime pay under the KMWMHL than under the FLSA, but this does not detract from the plain wording of the Kansas law. If an employment relationship is excluded from the FLSA under an exemption that is unique to the federal law, the employee would still be subject to the KMWMHL, although he or she might have to work additional hours before being eligible for overtime pay.
In addition to the plain wording of the state law, several other arguments support this conclusion. First, the argument advanced by Osborne County would make the KMWMHL and the FLSA coextensive, effectively nullifying the state law. The KMWMHL now expressly excludes all that is included within the FLSA. The “incorporation” argument advanced by Osborne County would mean that the KMWMHL would also exclude all that is exempted from the FLSA, leaving nothing for the Kansas law to act upon.
Second, prior to 1974, the provisions of the FLSA were not applied to state and local government employees. 29 U.S.C. § 203(d) (1940). Amendments to the FLSA in 1974 expanded its coverage and included “public agencies” within its definition of employers subject to the Act. 29 U.S.C. § 203(d) (Supp. IV 1974). In 1976, the United States Supreme Court held, in National League of Cities v. Usery, 426 U.S. 833, 49 L. Ed. 2d 245, 96 S. Ct. 2465 (1976), that the expansion of the FLSA to cover state and political subdivision employees engaged in traditional government functions was unconstitutional as a violation of the Tenth Amendment. In the wake of National League, Kansas adopted the KMWMHL in 1977. The KMWMHL was, in part, closely modeled on the FLSA and the legislature expressly included in the law the “administrative” employee exemption of the FLSA. 29 U.S.C. § 213(a)(1); K.S.A. 44-1202(e)(3). However, the legislature did not adopt the other exemptions in the FLSA for small law enforcement departments or for “personal staff’ employees. 29 U.S.C. §§ 203(e)(2)(C), 213(b)(20). Both of these exemptions had been added to the FLSA in 1974 (Pub. L. No. 93-259, §6[a][2], [c][2][B], 88 Stat. 58, 61 [1974]) prior to the 1977 enactment of the KMWMHL and were available for inclusion in the KMWMHL if the Kansas legislature had wished to do so. Since the state legislature included some exemptions contained in the FLSA but excluded others, the obvious implication is that the legislature did not intend for the excluded exemptions to be a part of the Kansas law. In Ludwick, 233 Kan. at 86, the court noted that, in the 1979 amendments to the KMWMHL, the legislature had exempted certain classes of public employees from the law but had not exempted all public employees.
“By excluding only these [particular classes of] employees, it logically follows that the legislature intended the minimum wage and maximum hours law to cover other employees of the state, counties, and other political subdivisions.
“. . . . If the legislature had intended that the minimum wage and maximum hours law not apply to any public employees, it could easily have amended the statute at that time to specifically exclude the State and the various political subdivisions from the definition of ‘employer’ in K.S.A. 44-1202(4). It did not choose to do so. Instead it amended the statute to exclude only certain categories of governmental employees from the operation of the act.” 233 Kan. at 85-86.
Here, the legislature did not choose to include exemptions comparable to the FLSA exemptions for small law enforcement agencies or “personal staff’ employees.
Of the exemptions advocated by the county, only the exemption for “administrative” employees could exclude the plaintiff from both the FLSA and the KMWMHL. K.S.A. 44-1202(e)(3) excludes from the KMWMHL “any individual employed in a bona fide executive, administrative or professional capacity or in the capacity of an outside commission paid salesman, as such terms are defined and delimited by regulations of the secretary.” This exemption is almost identical to the federal exemption which excludes:
“any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary.” 29 U.S.C. § 213(a)(1).
The trial court incorrectly found that the less than five law enforcement employees exemption of the FLSA precluded recovery by the plaintiff. Although the U.S. Supreme Court, in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 83 L. Ed. 2d 1016, 105 S. Ct. 1005 (1985), overruled National League and makes the FLSA applicable to defendant Osborne County, the decision is not retroactively applied. Nor does the plaintiff base his claim on the provisions of the FLSA; plaintiff s claim is for overtime pay earned prior to the effective date of Garcia, and neither party claims Garcia is applicable to the present case.
The trial court erred in ruling that, because the provisions of the FLSA did not apply, the plaintiff was precluded from recovering overtime pay from the defendant. The ruling ignores the fact that plaintiff s petition was grounded in a violation of the KMWMHL, not the the FLSA. The trial court did not consider whether the plaintiff was an “administrative” employee and, therefore, the case must be remanded to determine if plaintiff is an administrative employee and therefore exempt from the provisions of KMWMHL.
We turn now to defendant Osborne County’s claim that the district court erred in its assessment of vacation benefits owed to the plaintiff. At the time of his termination, plaintiff had accumulated 13% unpaid working days and 30 days’ vacation leave. According to the county clerk, the county determined plaintiff s accrued vacation benefits by dividing his monthly salary of $1,420.00 by 31 days ($45.81 per day) for a total of $1,992.74. The district court held that this method of calculation was improper and required, as to the vacation benefits, that the county pay on a basis of $1,420.00 divided by 22 days ($64.55 per day).
Neither appellant nor appellee cites any authority for its position. The method used by the district court does not seem unreasonable. The defendant concedes that no county policy exists for computing termination or vacation pay. Had plaintiff used all 30 days of vacation leave, he would have been able to take off one full month (since he worked an average of 22 days per month) and eight working days the following month; he would have been entitled to receive pay for the entire period. The effect of the county’s position would be to allow plaintiff vacation pay only for one month even though he had well over a month (in working days) accumulated. The district court’s method of determining vacation pay was proper.
Defendant Osborne County finally contends that the court was without authority to grant the costs and argues this may be done under K.S.A. 44-1211(b) only where the court finds a violation of the KMWMHL. Since the trial court found no violation of the KMWMHL in this case, the county argues it could not grant costs.
We disagree. K.S.A. 44-1211(b) does allow costs and attorney fees to be awarded if the KMWMHL is violated. But the trial court expressly rejected the plaintiffs motion for attorney fees and granted only costs. Statutory authority exists for the granting of costs, independent of K.S.A. 44-1211(b). K.S.A. 60-2002(a) grants the trial judge the discretion to grant costs “to the party in whose favor judgment is rendered.” Here, the plaintiff was granted judgment in the reevaluation of the accrued vacation benefits. There is nothing to indicate an abuse of discretion in granting costs to the plaintiff.
The judgment is affirmed in part and reversed in part. The case is remanded to the district court with directions to proceed in accordance with the views expressed herein.
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The opinion o£ the court was delivered by
Schroeder, J.:
This is an action for damages in which the plaintiff seeks to recover for personal injuries as a result of the alleged negligence of the defendants in turning a nervous and unruly cow into a sales ring unescorted and unattended. Appeal has been duly perfected from an order of the trial court overruling a demurrer to the plaintiff’s third amended petition.
The only question actually presented for decision is whether or not the petition states sufficient facts to constitute a cause of action.
An action was filed by the plaintiff, True Gardner (appellee), against the defendants, Victor Koenig and Lester Oberhelman (appellants ). Koenig was the owner and operator of the Koenig Sales Barn on U. S. 24 east of Manhattan, Kansas, and Oberhelman was the agent and employee of Koenig at the sales barn. The parties will be referred to as they appeared in the lower court.
The third amended petition alleges in substance that on May 15, 1958, as Superintendent of Rebekah I. O. O. F. Home, the plaintiff took some hogs to the Koenig sales barn, and as a part of the sale he was directed by an employee of Koenig to take vaccination certificates to the auctioneer in a box at the south end of the show ring. The third amended petition then alleges:
“8. Plaintiff states that while he was standing at the south end of the cattle show ring talking to the defendant Victor Koenig’s auctioneer concerning the hogs vaccination certificates there was a cattle pen adjoining the southeast comer of the cattle show ring; that there was a nervous and unruly cow in said cattle pen weighing about 900 to 1000 pounds; and that while plaintiff was still in the ring and approximately six feet from the cattle pen gate with his back to the gate the defendant Lester Oberhelman, acting as agent and employee of the defendant Koenig, suddenly and without any warning to this plaintiff, opened the gate between the cattle pen and the cattle show ring letting the cow, which was unattended and without halter or other means of control, into said show ring where it immediately ran into and against the plaintiff knocking him to the ground and severely injuring him as hereinafter set out. . . .”
It then alleges the proximate cause of the plaintiff’s injuries was the negligence of the defendants in turning the nervous and unruly cow into the show ring unattended and without rope or halter, when they knew or should have known the cow would be dangerous and cause injury to someone within the ring, including the plaintiff. Other specific acts of negligence are alleged with respect to each of the defendants.
The defendants rely on the general rule of law that the owner of a domestic animal not naturally vicious is not liable for injury done by it when it is in a place where it has a right to be, unless it is known by the owner to be vicious. (McComas v. Sanders, 153 Kan. 253, 109 P. 2d 482.)
The foregoing rule may be conceded, but it does not control the facts alleged in the third amended petition. In the first place, this suit is not against the owner of the animal but against the proprietor of a public sales barn.
The third amended petition alleges facts concerning the public nature of the defendants’ business as a community sale, and the attendance of the plaintiff as a customer and patron in his legal status as an invitee. The plaintiff seeks to recover under the rule that an operator of a business or storekeeper, while not an insurer of the safety of his customers, is liable for injuries resulting from negligence on his part. (Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571; Weaver v. Laundon, 186 Kan. 551, 352 P. 2d 412; and authorities cited in these decisions.)
From the allegations in the third amended petition it is clear the cow was not led into the show ring with a halter, but was released from the pen and permitted to enter the ring unescorted, while the plaintiff was standing therein only six feet away with his back turned. In the McComas case the court held the facts alleged did not show any negligence on the part of the defendant, but great stress was laid on the fact that the defendant had ushered a horse into the show ring by a halter. There the court distinguished Slaughter v. Sweet & Piper Horse & Mule Co., (Mo. App.) 259 S. W. 131, where mules were turned into a sales ring without halters or other means of control and were driven about by men using whips. (See, Guthrie v. Powell, 178 Kan. 587, 290 P. 2d 834; and Bertram v. Burton, 129 Kan. 31, 281 Pac. 892.)
In Porter v. Thompson, (Cal. Dist. Ct. of App.) 169 P. 2d 40, the plaintiff was a prospective purchaser of cattle at an auction sale being conducted by the defendant, and it was held the defendant had a duty to exercise reasonable care to maintain supervision, a reasonably safe enclosure, and seats for customers so they would not be injured by cattle attempting to escape the enclosure. In the opinion the court said:
“. . . The question to he determined is, what would a reasonably prudent person be required to do, under such circumstances, for the protection of his invited customers. The fact that the defendants did not actually know that the particular cow in question was fractious, nervous or dangerous does not necessarily acquit them of negligence on that score. . . .” (p. 42.)
In Thompson v. Yellowstone Livestock, 133 Mont. 403, 324 P. 2d 412, the plaintiff brought an action for injuries sustained when struck by an unruly cow which climbed a barricade and fell upon the plaintiff as an invitee. The court held the complaint stated a cause of action where the allegations established a legal duty by the defendant to the plaintiff, failure to perform such duty, and dam ages proximately resulting in injury to the plaintiff from such failure. The court said it was the duty of the defendant to maintain such barrier of sufficient strength and height as to prevent animals, which had occasion to become frightened, from jumping over the fence and upon the patrons.
The Restatement of Law, Torts, § 518, Comment g, states the following rule:
“One who keeps a domestic animal which possesses only those dangerous propensities which are normal to its class is required to know its normal habits and tendencies. He is, therefore, required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm. . . .” (p. 39.)
We adopt the foregoing statement of the rule as sound law and controlling of the decision herein. The plaintiff was not required to allege the cow was naturally vicious, as contended by the defendants, to state a cause of action. It is not unreasonable to assume that the defendants should have anticipated some cows would become nervous, uncontrollable and resort to dangerous behavior when driven into a small enclosure, such as a sales ring, in the presence of numerous spectators where unfamiliar noises, commotion and confusion are encountered.
The third amended petition has plainly alleged a duty of the defendants to use due care for the safety of the plaintiff, failure to perform such duty, and damages proximately resulting in injury to the plaintiff from such failure.
On February 16, 1960, the plaintiff, True Gardner, died and this action has been revived in the name of his widow, Ora Gardner, as executrix of his estate, by order of the district court dated February 3, 1961.
The defendants mistake the function of a demurrer by attempting to raise questions which go beyond the allegations of the pleading under attack. Even assuming such questions were properly before the court, on the basis of the record here presented these additional points are not well taken.
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 defendant in the lower court from a money judgment in favor of the plaintiff in an action for breach of a written new automobile warranty.
The primary questions presented are whether the amount of the verdict is supported by the evidence, and whether the jury was properly instructed.
On the 5th day of July, 1957, the plaintiff (appellee), Victor L. Fox, purchased a new Chrysler automobile from the R. D. McKay Motor Co., Inc. (defendant-appellant), who was a franchised dealer in Chrysler automobiles in Wichita, Kansas. The purchase order listed the price of the automobile at $4,636. The appellee paid $3,100 and traded in a 1953 Hudson Hornet for which he received a trade-in allowance of $1,536. In addition he paid the sales tax of $62. The new automobile was delivered to the appellee on the 7th day of July, 1957, and an express written warranty (identical in all material respects to the Uniform Written Warranty for New Motor Vehicles set forth in Allen v. Brown, 181 Kan. 301, 310 P. 2d 923, at pages 303 and 304 of our official reports) was delivered to the appellee on the 9th day of July, 1957, as a part of the purchase.
It is established by the evidence that the appellee brought the automobile to the appellant’s service department with various complaints on numerous occasions during and after the ninety-day pe riod specified in the written warranty. Extensive repairs and replacements were made to the new Chrysler automobile by the appellant remedying various defects without cost to the appellee. Before the ninety-day period had expired all of the various defects, concerning which the appellee made complaint, were satisfactorily taken care of by the appellant except one. The automobile still had a rumbling, grating and vibration which was never fully corrected. The appellee testified the rumbling and grating in the underneath part of the automobile caused vibration that was “like you would get on one of those things you step on to rest your feet or what the barber uses on the back of your neck.” He further said as early as July, 1957, “The difficulty I had; vibrating and noise and everything, and the front end was getting to where I was afraid to take it on the road.” In viewing the evidence most favorable to the appellee this defect in the automobile was never corrected.
The appellee in his petition sought damages in the sum of $4,698 (the price paid for the automobile plus the sales tax). He also sought damages in the sum of $1,500 for the loss of the use of said automobile, and further damages for inconvenience in the sum of $500. There is no evidence in the record to indicate the appellee at any time rendered a return of the automobile to the appellant, other than for the repairs heretofore mentioned. On the contrary the evidence discloses the appellee retained the automobile and at the time of trial had it stored at his home. The action was definitely alleged and tried on the theory of contract — breach of a written warranty.
The jury returned a verdict in the sum of $4,750 upon which the trial court entered judgment. Appeal has been duly perfected from such judgment, and other specified rulings of the trial court, presenting the various questions hereinafter discussed.
The appellant contends there is nó substantial evidence to support the jury’s verdict as to the amount of damages awarded.
It must be noted the jury returned a verdict in a sum greater than the amount the appellee paid for the automobile, including the sales tax of $62, and he still has the automobile. Only one expert witness was called by the appellee to show the value of the Chrysler automobile which the appellee retained in his possession. This witness, Gene Walton, qualified as an expert on automobile values and said in substance on direct examination that the auto mobile had no retail value. On cross examination, however, he testified:
“Q. Do you want this jury to understand that your opinion is that a fifty-seven Chrysler Windsor car in driveable condition in the period of between July 9, 1957, and October 7, 1957, had actually no value?
“A. No I wouldn’t say it has no value.
“Q. You just wouldn’t know how to put a value on it?
“A. Oh, as far as putting a retail value on the car to sell to you or to any buyer that would be awfully hard to do because you just wouldn’t buy it.
“Q. You don’t know how to place a value on it?
“A. You can place a value on it but you would have to place a value of fifteen hundred or two thousand dollars in order to move any car of that caliber due to the fact that you don’t know what is wrong with it. When somebody hears and knows, or hears anything wrong with the car — ”
The most that can be said of this testimony as evidence upon which the jury could rely to base a verdict is that it established a minimum value of $1,500 on the automobile delivered. The appellant offered no evidence of value whatever.
In Allen v. Brown, supra (a case upon which the appellee relied throughout the trial of this case), the following statement was made as to the measure of damages in a case of this land:
“The measure of damages for breach of warranty is the loss directly and naturally resulting from the breach of warranty. In the absence of special circumstances showing proximate damage of a greater amount, this is the difference between the value of the goods at the time of delivery and the value they would have had if they had conformed to the warranty. It is thus clear that consequential damages, if properly pleaded and proved, may be recovered by reason of breach of warranty.” (p. 309.)
The record in the instant case discloses no evidence of consequential damages. Nothing was introduced in evidence to show the value of the use of the automobile. The most that can be said of the evidence is that each time the appellee returned the automobile to the appellant for repairs, it was retained for “a couple of days” to make such repairs, except on one occasion when it was retained for only three or four hours. This is insufficient to prove the actual damages for loss of use. There must be some evidence to show the value of that loss of use.
The appellee contends on this point the appellant is responsible for an invited error, and therefore is in no position to rely upon this failure in the record, citing Hawkins v. Wilson, 174 Kan. 602, 605, 257 P. 2d 1110. The appellee attempted to introduce testimony that he had purchased, during the period of time in question, two additional automobiles for his use. He sought to establish the value of his loss of use by showing the purchase price paid for each of these two additional automobiles. Upon timely objection the trial court properly excluded such evidence. This is not a proper method to prove the value of the loss of use of an automobile. In McCoy v. Fleming, 153 Kan. 780, 113 P. 2d 1074, the parties by an agreed statement of facts said the cost of renting or hiring another vehicle was $3.50 per day, and the court approved an allowance for the loss of use of an automobile.
The appellee made no attempt to introduce evidence as to special damages because of “inconvenience.” (Whether inconvenience is a proper element of damage in a case of this type is treated later in this opinion.) It therefore becomes apparent the jury speculated on these special damages in the absence of any evidence as to the amount of such special damages. Damages for breach of contract are limited to the pecuniary loss sustained. The record discloses no allegation or proof of any tortious act committed in connection with any breach of warranty, and the appellee neither sought nor proved any basis for punitive damages.
In view of the foregoing it was erroneous for the trial court to instruct the jury that if it found the appellee had suffered damage by loss of use of the automobile, because of the appellant’s failure to conform to the written new automobile warranty, the jury should award such damage as it found from the evidence the appellee sustained. (Iron Works v. Construction Co., 116 Kan. 482, 227 Pac. 369.) An instruction to the jury as to an item of damage for which there is no supporting evidence is an invitation to the jury to make an award on such item. The jury was entitled to consider that the court must have had some reason for instructing it on that particular item of damage and to conclude therefrom that there must be some evidence which it could consider as to such item. The trial court did not instruct the jury as to any measure of damages for the loss of use of the automobile. Thus, it is apparent the jury was permitted to proceed purely on the basis of speculation and conjecture as to this item of damages,' and there is no way of ascertaining how much of the total award for damages the jury allowed for it.
By instruction No. 1 the trial court in summarizing the pleadings informed the jury the appellee sought to recover damages for “inconvenience and handicap” in the amount of $500. The appellant contends the trial court erred in failing to give its requested instruction No. 8, which in substance was that the jury could not award any damages to the appellee for inconvenience suffered by him in connection with the use of the 1957 Chrysler Windsor automobile purchased by him from the appellant.
Inconvenience in an action for breach of contract, separate and apart from loss of use, is not a proper basis upon which to recover damages. The parties have cited no Kansas cases on this point, and our research has disclosed none. But in Cannon v. Pulliam Motor Co. et al., 230 S. C. 131, 94 S. E. 2d 397, the Supreme Court of South Carolina, in an appeal from an action on a new automobile warranty, said:
“The Court further erred in charging the jury that they could take into consideration inconvenience as an element of damages. No case has been cited and we find none sustaining such an instruction in a case of this kind.” (p. 139.)
It is difficult to conceive of any situation where inconvenience, apart from loss of use, could result in any pecuniary loss to the appellee. On the record here presented there is in fact no evidence of such loss.
The jury should have been instructed on this point because it could well have concluded from the trial court’s instructions as a whole that it could award damages to the appellee for mere inconvenience as distinguished from loss of use.
The appellant contends the trial court erred by instructing the jury that the burden was upon the appellant to prove its allegation that the condition of the automobile and the alleged adjustments made thereon complied with the warranty.
It must be conceded the burden of proof is upon the party relying upon a breach of warranty to show the warranty, the breach thereof, and that his loss resulted from the breach of such warranty. The duty of the appellant under the contract extended no further than to comply with its terms. (Anderson v. Thomas, 184 Kan. 240, 336 P. 2d 821; Harvester Co. v. Erne, 63 Kan. 858, 66 Pac. 1004; 77 C. J. S., Sales, § 365, pp. 1283, 1284; and 46 Am. Jur., Sales, § 309, p. 490.)
Applying the rules set forth in Allen v. Brown, supra, to which we adhere, the written warranty in the instant case was expressly given in lieu of all other warranties, express or implied. It is therefore clear that no breach of the written warranty could occur until the appellee had first established: (a) that the automobile was found to be defective; (b) that it was then returned to the dealer to give it an opportunity to remedy the defects, and'(c) that the dealer failed or refused to remedy the defects. The burden of proof in the first instance was upon the appellee to prove a breach of this written warranty and the burden on this issue did not shift to the appellant. For this reason the appellant charges the instruction given by the trial court was erroneous. This point is not well taken.
Attention is invited to the language used in Allen v. Brown, supra, where the court said:
“. . . The particular defect is usually unknown to the purchaser and it is upon the dealer that he relies for discovery of the defect causing the unusual mechanical functioning of the vehicle.
“Under an express warranty as alleged in the petition, it would place a tremendous burden upon the purchaser of a new motor vehicle to find the precise part or parts of the vehicle which were defective and direct the dealer to replace them or remedy the defect. If the operation of such vehicle is mechanically defective and the automobile is returned to the dealer for the purpose of correcting these defects, it is incumbent upon the dealer to find such defective part or parts and replace them pursuant to the terms of the warranty or to locate the assembly that has been improperly assembled and remedy the defect.” (p. 307.)
By instruction No. 6 the jury was instructed as follows:
“When the purchaser of a new automobile returns the automobile to the dealer for the purpose of correcting defects covered by a written new car warranty, it is incumbent upon the dealer to find such defective part or parts and replace them or to locate the assembly that has been improperly assembled and remedy the defect pursuant to the terms of the warranty.
“The dealer’s failure or refusal to remedy the defects under a new car warranty, where an opportunity is afforded to remedy such defects, fixes the liability of the dealer for breach of warranty.
“The measure of damages for breach of warranty is the loss directly and naturally resulting from tire breach of warranty. In the absence of evidence showing a greater amount of damages, the measure of damages is the difference between the value of the automobile involved at the time of delivery and the value it would have had if it had conformed to the warranty.”
This instruction given by the trial court is consistent with the language used in Allen v. Brown, supra. Here the appellant dealer in its answer relied upon the affirmative defense that it had complied with the terms of the warranty.
By other appropriate instructions the trial court fully informed the jury as to the pleadings in the case, the claims of the respec tive parties, and that the burden of proof was upon the plaintiff (appellee) to prove the case by a preponderance or greater weight of the evidence.
Upon the record presented in the instant case the appellee’s evidence showed that the new Chrysler automobile which he purchased was defective upon delivery, and the various defects were enumerated. It was not incumbent upon the appellee to show the precise nature of the defects which did exist upon delivery of the automobile. Language used in Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597, is appropriate on this point. There the court said:
“It has sometimes been said that when a party to an action has made a prima facie case, the ‘burden of proceeding’ or the ‘burden of evidence’ then shifts to his adversary. Tins is simply a way of saying that upon a prima facie case, a litigant is entitled to prevail if his adversary offers no evidence. The necessity of offering evidence to offset an adversary’s prima facie case in no way shifts the burden of proof, which continues to rest upon the party which has it. . . .’’ (p. 439.)
Instruction No. 6 of which the appellant complains does no more than place upon the appellant the burden of proving its affirmative defense, or of moving forward with its evidence to overcome, if possible, the prima facie case made by the appellee, depending upon the interpretation placed upon the appellant’s answer.
The appellant contends the measure of damage concerning which the jury was instructed in the last paragraph of instruction No. 6 was erroneous because it failed to take into account the defects which the appellant repaired without cost to the appellee.
Technically, this may be correct if such paragraph is isolated, but it must be read together with the other instructions given by the trial court. By instruction No. 7 the jury was told that if it found the automobile involved did not measure up to the written new automobile warranty in evidence at the time it was delivered to the appellee, after the appellant had a reasonable opportunity to remedy the defects or malfunctions, if any, then the appellant would be liable to the appellee for whatever damage the appellee had suffered as a result of its failure to comply with the warranty, and that it was the duty of the jury to award the appellee whatever damages they found from all the evidence the appellee had suffered thereby. Further appropriate instructions were given, and special questions were submitted to the jury. It is apparent from the answer to special questions that the jury was not mislead by instruction No. 6. After finding that the automobile in question was defective or improperly assembled at the time of delivery, and that such defects were not properly repaired, assembled or replaced free of cost to the appellee, the jury was specifically asked in the second question what defects the appellant had failed to remedy. The jury answered:
“Whatever part or parts which caused the defects evident when the car was delivered to the plaintiff from the defendant. Many parts have been replaced free of cost, however all the original defects have not been eliminated.”
While the appellant does complain of this answer given by the jury, the record does not disclose that the appellant made a request to have the jury give a more specific answer before it was discharged and the verdict accepted.
In Allen v. Brown, supra, the court was confronted with an appeal from an order overruling a demurrer to a petition, and the language quoted in instruction No. 6 declared in general terms a measure of damages for this type of case. In that case no evidence was before the court to consider. Generally speaking, the rule there stated is correct. (See, Wheeler & Wilson Mfg. Co. v. Thompson, 33 Kan. 491, 6 Pac. 902.) In the instant case numerous defects which existed at the time the new automobile in question was delivered to the appellee were remedied within the warranty period, but one principal defect remained. While it is possible the remaining defect in the automobile could be of such magnitude that the subsequent repair of other defects would not alter its value in the condition it was as of the date of delivery, it is also possible the value could be greater after certain defects had been remedied. On the facts in this case the rule would require some modification.
While the hypothetical question put to Gene Walton (the only value witness on the automobile at the trial) was possibly subject to objection for the same reason, in that it did not take into consideration those defects which had been corrected free of charge to the appellee after delivery of the new automobile, the appellant, having been met with an adverse ruling by the trial court, was obligated to pursue the point on cross examination to establish his theory of the case; that is, whether the value of the new automobile in its condition at the time of delivery would be appreciably affected by the subsequent correction of some of the defects, and how much.
From the record presented in this case it is apparent the jury added to its verdict damages for the loss of use of the new Chrysler automobile in question and/or damages for inconvenience, which were without support in the evidence. There being no way to ascertain the amount added to the verdict for these items the materiality of the error is obvious, and the verdict cannot be cured by remittitur. (Iron Works v. Construction Co., supra, at p. 484.)
Touching upon the subject of remittitur in Live Stock Co. v. Guthrie, 50 Kan. 476, 31 Pac. 1073, it was said:
“. . . This court cannot, of course, retry the facts, nor can it determine the merits of the controversy, except to inquire whether the evidence sustains the findings and judgment of the trial court. Where special findings are made which are found to be supported by the evidence, judgment may be given upon them, although contrary to the general and some of the special findings. If there was error in the admission of testimony or in the charge of the court which enters into all of the findings, a complete reversal is required. Ordinarily, in cases where there is a general finding and judgment, and material error is found, there must be a reversal and a new trial. . . .” (p.477.)
We conclude upon the basis of the record here presented the appellant’s motion for a new trial should have been sustained. The judgment of the lower court is therefore reversed with directions to grant a new trial.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a judgment of the trial court denying a writ of habeas corpus to defendant and remanding him to respondent’s custody.
On December 1, 1955, the Reno county district court sentenced defendant (under G. S. 1949, 21-555) from one to five years in the state penitentiary for the commission of the crime of issuing a worthless check (G. S. 1949, 21-554) and on December 5, 1955, he was so confined.
On November 7, 1957, defendant was paroled from the state penitentiary; he was declared delinquent on March 10, 1958, and on April 1, 1958, was convicted and sentenced to the Texas state penitentiary for a felony he committed while on parole; he was released from the Texas state penitentiary on August 29,1959, and on August 30, 1959, was returned to the Kansas state penitentiary. Since defendant had been on parole from a prior sentence for felony on December 1, 1955, he was rebooked at the time he was returned to the Kansas state penitentiary in August, 1959. He commenced serving the instant sentence December 7, 1956. He had lost no good time credits and his discharge date was computed by penitentiary officials as July 20, 1961.
After these facts were shown from the pleadings of the parties and the evidence adduced at the hearing thereon, the trial court held:
“(a) petitioner was not entitled to credit on his Kansas sentence for the time spent in the Texas penitentiary; (b) by reason of petitioner’s prior con viction, his sentence under consideration did not start on the date imposed but on the expiration of the prior sentence; (c) even if the sentence started on December 1, 1955, he still owed lOK to 11 months on the sentence, less such good behavior credits as he might earn.”
Since defendant was convicted December 1, 1955, he was subject to the provisions of G. S. 1949, 62-1528 as follows:
“. . . any prisoner at large upon parole or conditional release, who shall commit a fresh crime, and upon conviction thereof shall be sentenced anew to the penitentiary, shall be subject to serve the second sentence after the first sentence is served or annulled, said second sentence to commerce from the termination of his liability upon the first or former sentence.”
See Blount v. Hand, 187 Kan. 494, 357 P. 2d 859.
Defendant’s second contention that he is entitled to credit on his Kansas sentence for the seventeen months he spent in a Texas penitentiary is really the gist of his application for the writ. He completely overlooks G. S. 1959 Supp. 62-2250 which places discretionary power in the five member state board of probation and parole, created by G. S. 1959 Supp. 62-2228, and quotes from G. S. 1959 Supp. 62-2251:
"Any prisoner who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve such sentence concurrently with the term under which he was released, unless otherwise ordered by the court in sentencing for the new offense.” (Our emphasis.)
A short and complete answer to defendant’s argument is that the above-quoted statute in clear, unambiguous and concise language gives to the court, here the district court, power to exercise its judicial discretion in determining whether a sentence for a new infraction shall be served concurrently or consecutively with the term under which a parole prisoner was released. This court is not saying, nor does it intend to say by what is herein contained, that the board might not have allowed credit for the time defendant served in the Texas state penitentiary. Stated in another way, from the time of the issuance of the fugitive warrant, by reason of defendant’s becoming delinquent on his parole, until he was arrested and returned to the state of Kansas, defendant cannot, as a matter of right, claim credit on his sentence because he served in the penitentiary, or penal institution, of some other state. (Chambers v. Hand, 186 Kan. 380, 350 P. 2d 50.)
On the third point defendant has the burden of showing that he has satisfied his debt to society by the amount of time he has actually served after allowance has been made for good time. He admits that in order to be entitled to the writ he must be given credit for the above-described delinquent time between the issuance of the fugitive warrant and his return to custody of the Kansas state penitentiary authorities. We think this admission makes it unnecessary to repeat respondent’s computation of time as shown in the record which sets defendant’s discharge date as July 20, 1961. Defendant’s approach that he had a right to have his delinquent time while he was imprisoned in the Texas state penitentiary is untenable and has no basis under our statutes. (See, also, Wey v. Hand, 188 Kan. 192, 360 P. 2d 880.)
The trial court entered the only judgment it could under the facts, the circumstances, and the law.
Judgment affirmed.
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The opinion of the court was delivered by
Price, J.:
The question in this case is — who is legally entitled to the office of marshal of the Court of Topeka?
The facts are not in dispute.
At the November, 1958, general election one Marion T. Doss was elected to the office and assumed the duties thereof.
As a result of the August, 1960, primary election, Emil E. Stawitz was the Republican nominee for the office and Harry E. Nelson was the Democrat nominee.
Doss resigned as marshal effective September 10, 1960. Governor Docking appointed Nelson to fill the vacancy, the certificate of appointment reciting that it was “for the unexpired term.” Nelson filed his oath and bond and took over the office.
Stawitz and Nelson — the latter being the incumbent by virtue of his appointment to succeed Doss — thus were opponents at the November, 1960, general election.
Of the 135 voting precincts in Shawnee county 115 are within the city of Topeka and the remaining 20 precincts are outside the city— in the so-called “rural areas.”
Through error or inadvertence of the officials whose duty it was to prepare the ballots, the names of Stawitz and Nelson were omitted from the ballots furnished the 20 precincts outside the city of Topeka. Their names did appear, however, on the ballots furnished to the 115 precincts within the city.
The number of “rural voters” in the 20 precincts was in excess of 6,000.
Of the total votes cast in the 115 precincts within the city of Topeka for the office in question, Stawitz, the Republican nominee, received 24,457, and Nelson, the Democrat nominee, received 22,621 — giving Stawitz a majority of 1,836.
Stawitz was declared elected and a “certificate of election” was issued to him by the proper authorities. He took the oath of office and filed his bond, which was approved.
Nelson also took the oath and filed his bond, which also was approved.
A dispute arose as to “who was marshal.” Stawitz demanded the office — but Nelson refused to “surrender.” Stawitz “moved in” anyway, and both he and Nelson — for a period at least — “performed duties” as marshal.
The board of county commissioners ruled that neither would be paid any salary “until a court of competent jurisdiction determines which of the parties is Marshal of the Court of Topeka.”
Shortly thereafter Stawitz filed this action to determine the question.
The allegations of the petition, answer and reply need not be detailed. After hearing the matter on a stipulation of facts, as above related — and arguments of counsel — the trial court, on February 16, 1961, ruled that Stawitz was “entitled to hold the office of Marshal of the Court of Topeka from January 9, 1961, and for the term of said office as fixed by statute,” and that Nelson had no right or title to the office and should be excluded, ousted and removed therefrom.
(G. S. 1949, 25-313, provides that except as otherwise provided by law, the regular term of office of all state, district, county and township officers shall begin on the second Monday in January next after the election. January 9 was the “second Monday in January” following the 1960 general election.)
Nelson has appealed.
Rather than referring to the parties as plaintiff and defendant, or appellee and appellant, we will throughout this opinion refer to Stawitz, the Republican nominee for the office, and to Nelson, the Democrat nominee, by name.
The court of Topeka was created by the legislature in 1899, and reference is made to two sections of the original act appearing in the Revised Statutes of 1923.
20-1930 provided:
“The term of office of the judge, clerk and marshal of said court shall be two years, and until their successors are duly elected and qualified, and the first election of such judge, clerk and marshal shall be held at the regular election of city officers of said city of Topeka in the year 1899.” (Emphasis supplied.)
20-1931 provided:
“All vacancies in the office of judge, clerk or marshal of said court shall be filled by appointment of the governor until the next election of city officers occurring more than thirty days after such appointment.” (Emphasis supplied. )
In 1929, R. S. 1923, 20-1930, above quoted, was amended to read as follows, and we quote from G. S. 1935, 20-1930:
“The term of office of the judge, clerk and marshal of said court shall be two years, and until their successors are duly elected and qualified, and the election of such judge, clerk and marshal shall be held at the regular county general election.” (Emphasis supplied.)
In 1945 the section was again amended, and as it now appears at G. S. 1949, 20-1930, reads:
“The term of office of the judge, clerk and marshal of said court shall be two years, and until their successors are duly elected and qualified, and the election of such judge, clerk and marshal shall be held at the regular county-general election, and all qualified electors of the county shall he entitled to vote for such officers.” (Emphasis supplied.')
Throughout the years, however, R. S. 1923, 20-1931, above quoted, has remained unchanged and appears as G. S. 1949, 20-1931.
Literally speaking, therefore, G. S. 1949, 20-1930, provides that the term of office of the marshal of the Court of Topeka shall be for two years and until his successor is duly elected and qualified; that the election of such marshal shall be held at the regular county general election, and that all qualified electors of the county shall be entitled to vote for such official, whereas G. S. 1949, 20-1931, provides that a vacancy in the office of marshal shall be filled by appointment of the governor until the next election of city officers occurring more than thirty days after such appointment. The inconsistency and conflict between the two sections is obvious, for only those residing within the city of Topeka vote at the city election, which, under G. S. 1949, 13-1702, is held on the first Tuesday in April of each odd-numbered year. As suggested by counsel — the failure of the legislature also to amend 20-1931, above, must have been the result of mistake, inadvertence or oversight. In any event, it seems clear that through the enactment of other provisions, both of a general nature and those pertaining to the Court of Topeka, the section (20-1931) must be considered to have been repealed by implication.
In his letter of transmittal appointing Nelson to succeed Doss, resigned, the governor stated that he was acting under the authority of G. S. 1949, 20-1427. Obviously this was in error, for that section deals with vacancies in city courts in cities of under 18,000 population, which does not include Topeka. The parties agree, however, that the governor was authorized to fill the vacancy under G. S. 1959 Supp. 25-312, which in pertinent part reads:
“All vacancies in any state or county office, unless otherwise provided for by law, shall be filled by appointment from the governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election. . . .”
and that the erroneous reference to G. S. 1949, 20-1427, is immaterial.
In support of the trial court’s judgment that Stawitz is entitled to the office, mention is made of the fact that Nelson failed to contest the election within twenty days after the votes were canvassed, as provided by G. S. 1949, 25-1415. Reference to G. S. 1949, 25-1411, however, setting forth the grounds for contest of an election to a county office, discloses that none of the statutory grounds has application to the facts of this case.
Mention also is made of the fact that a “certificate of election” was issued to Stawitz. The performance of this purely “ministerial” act, however, was in no sense determinative or conclusive, and we regard the matter as being of no consequence on the question presented.
It also is urged that Nelson, having failed to take advantage of the provision found in G. S. 1949, 25-604, pertaining to the right of inspection of “sample ballots” by candidates and their agents during the five-day period preceding the election — is now estopped from complaining of the irregularity with respect to the omission of his name from the ballots in the 20 outlying precincts. In our opinion— as applied to the facts of this case — this contention is without substantial merit and cannot be sustained.
As previously mentioned, G. S. 1959 Supp. 25-312, above, states that all vacancies in any state or county office, unless otherwise provided for by law, shall be filled by appointment from the governor until the next general election after such vacancy occurs, token such vacancy shall be filled by election.
G. S. 1949, 25-314, reads:
“Any of said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and when elected they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified; but if appointed, they shall hold the same only until their successors are elected and qualified.” (Emphasis supplied.)
During the fall of 1960 Nelson was holding the office of marshal by appointment “until the next general election” — at which election the vacancy was to be filled. Reing an appointee he was entitled to hold the office only until his successor toas elected and qualified. The decisive point in this case, therefore, narrows down to the question whether Stawitz was “elected” at the general election. In other words, may it be said — as between Stawitz and Nelson — there was a legal election for the office of marshal?
G. S. 1949, 25-702, provides:
“In all elections for the choice of any officer, unless it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to that office; and whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding tlie provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may not be defeated by any informality of any officer.”
Counsel for Stawitz call attention to the fact that 47,078 voters (within the city of Topeka) cast their ballots for the office of marshal and expressed their preference for Stawitz by giving him a majority of 1,836 votes; that an analysis of the election résults in the 20 precincts in question shows a positive and definite “trend” in favor of Republican candidates for other offices — national, state and local; that of the 65 “write-in” votes for the office of marshal in the 20 precincts Stawitz received 40 and Nelson 25 — all of which, it is contended, raise the presumption that had the some 6,000 voters in those 20 precincts voted for the office of marshal Stawitz would have received a majority of them, and that in no event can it be said a presumption arises that Nelson would have received a sufficient number of them to offset and overcome the majority obtained by Stawitz in the other 115 precincts.
(In passing, it is to be noted that in the 20 precincts in question Democrat nominees for the office of judge of the district court [second division], attorney general and sheriff defeated their Republican opponents, their majorities being 34, 343 and 1,237, respectively.)
Counsel for Stawitz contend that under the broad language of G. S. 1949, 25-702, above quoted, “the real will of the people,” evidenced by his majority of 1,836, should not be thwarted by the fact his and Nelson’s names were omitted from the ballots in the 20 precincts because of an error on the part of those officials whose duty it was to prepare them, and we are cited to Ogg v. Glover, 72 Kan. 247, 83 Pac. 1039; Peabody v. Burch, 75 Kan. 543, 89 Pac. 1016, 12 Ann. Cas. 719, and Short v. Davis, 90 Kan. 147, 132 Pac. 1172. Reference to those cases, however, discloses such factual dissimilarities to the one before us that they are of no help on the question presented.
We have no question concerning the counting of alleged illegal ballots, the refusal to count alleged legal ballots, or the granting or refusal of permission to persons presenting themselves, to vote, and therefore that line of cases arising out of election disputes holding that the burden is upon the objector to make a showing that the result of the election would have been different in the event of a recount, or the like (Tarbox v. Sughrue, 36 Kan. 225, 12 Pac. 935; Free v. Wood, 137 Kan. 939, 22 P. 2d 978; Johnson v. Russell, 160 Kan. 91, 159 P. 2d 480; State, ex rel., v. Lane Rural High School District, 173 Kan. 1, 243 P. 2d 232; Olson v. Fleming, 174 Kan. 177, 254 P. 2d 335; Bishop v. Sewer District No. 1, 184 Kan. 376, 382, 336 P. 2d 815), also is inapplicable.
Despite the broad and sweeping provisions of G. S. 1949, 25-702, above quoted, we are of the opinion that under the facts of this case we are not warranted in holding that the statute compels the conclusion that Stawitz was legally elected and therefore entitled to the certificate of election. Further, we feel that we are not permitted to indulge in the presumption that Stawitz would still have received a majority of all votes cast had the some 6,000 voters in the 20 precincts been given the opportunity to vote for the office of marshal. In cases of this nature, involving election disputes, courts simply should not indulge in presumptions, for to do so would be to open wide the door to fraud and place it within the power of unscrupulous election officials to influence or control election results. No fraud or intentional wrongdoing is charged here, but the fact remains that a far greater number of persons were “disfranchised,” so to speak, than the majority received by Stawitz. This is not a case such as where their names were omitted from ballots furnished to only one precinct, for example, in which the total number of voters was less than the majority received by Stawitz elsewhere — in which event the result could not have been changed.
Our conclusion is, therefore, that insofar as the office of marshal of the Court of Topeka is concerned — the election was void. At the time — Nelson was holding the office by appointment “until the next general election . . . when such vacancy shall be filled by election.” (G. S. 1959 Supp. 25-312, above.) As such appointee, he was entitled to hold the office until his successor was elected and qualified (G. S. 1949, 25-314, above). The election — as to the office of marshal, being void — no one was elected. No successor having been elected, it follows, therefore, that Nelson was, and is, entitled to the office until such time as his successor is elected and qualified.
As stated earlier in this opinion, we are told that for a time at least, both Stawitz and Nelson “performed duties” as marshal. We are not advised as to whether the same has been the case following the trial court’s decision of February 16, 1961, holding that Stawitz was entitled to the office. Be that as it may, and so as to remove all doubt and uncertainty concerning the matter, both Stawitz and Nelson are deemed and held to have been de facto marshals, and no acts done by either of them “in the performance of the duties of the office” are to be construed as being invalid because of our decision in this case.
The judgment is reversed.
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The opinion of the court was delivered by
Rosen, J.:
In 1994, Ronald J. Peirano entered a plea of guilty to two counts of first-degree murder and one count of attempted second-degree murder following the shooting deaths of his two daughters and his threat to shoot his wife.
On January 23, 1995, the district court sentenced him to two concurrent life terms without parole eligibility for the first 40 years for the first two counts and a consecutive term of 49 months for the third count. The sentence imposed was identical to the sentence that Peirano and the State jointly requested.
At sentencing, the court asked Peirano whether he wanted to state any mitigating circumstances, and he said he did not. The court found two aggravating circumstances on the record; Peirano killed more than one person and he committed the crimes in an “especially heinous, atrocious, or cruel manner.” See K.S.A. 21-4636(b) and (f).
Two days later, on January 25, 1995, the district court called Peirano back for an additional hearing. The court announced that it had inadvertently failed to make the finding that there was no showing of mitigating circumstances that would outweigh the aggravating circumstances that it found at sentencing. See K.S.A. 21-4635(d). The court then proceeded to make that finding on the record.
On October 12,2007, Peirano filed a motion to correct an illegal sentence under K.S.A. 22-3504(1). The district court denied the motion, and Peirano filed a timely notice of appeal from that order, which is the subject of the present appeal.
Peirano asks this court to address two issues: Did the district court err in imposing the hard 40 sentences when it failed to make a balancing finding at the sentencing hearing; and did the district court err in concluding that the murders were committed in an especially heinous, atrocious, or cruel manner? He raises these issues in the form of a motion to correct an illegal sentence, and the threshold issue that this court must address is whether such a motion is the proper vehicle for challenging alleged procedural errors.
K.S.A. 22-3504 provides for correction of illegal sentences:
“(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.
“(2) Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which the appellate court’s review is unlimited. State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 (2009). K.S.A. 22-3504(1) applies only under very limited circumstances. State v. Davis, 288 Kan. 153, 154-55, 200 P.3d 443 (2009) (citing State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 [2006]). “An illegal sentence, as contemplated by K.S.A. 22-3504(1), is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]” State v. Gracey, 288 Kan. at 261. A sentence is illegal only if it fits within this definition. State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 (2006).
When, for example, a trial court failed to permit a defendant to offer argument in mitigation of sentence, the sentence was not illegal, because the sentencing court had jurisdiction and the sentences imposed were within the applicable statutory limits. State v. Heath, 285 Kan. 1018, 1019-20, 179 P.3d 403 (2008) (citing State v. Mebane, 278 Kan. 131, 134-35, 91 P.3d 1175 [2004]); see also Trotter v. State, 288 Kan. 112, 126-27, 200 P.3d 1236 (2009) (claim that multiple sentences arose from single wrongful act and violated Double Jeopardy Clause does not establish that sentence is illegal); State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007) (definition of illegal sentence does not encompass violations of constitutional provisions); State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007) (sentence violating identical offense doctrine is not an illegal sentence within meaning of K.S.A. 22-3504); State v. Johnson, 269 Kan. 594, 601, 7 P.3d 294 (2000) (claim that State’s comments at sentencing were inconsistent with plea agreement does not render resulting sentence illegal).
In the present case, Peirano challenges the procedures that the district court followed in applying K.S.A. 21-4635 to his sentence. The sentence itself was authorized by a valid statute, both as to its character and its term, and the sentence was not ambiguous with respect to the time and manner in which it was to be served. The sentence was therefore not illegal under the limited terms of K.S.A. 22-3504, and no reversible error has occurred.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is a common-law action against Boeing Airplane Company and the board of county commissioners of Sedgwick county to recover for injuries sustained by plaintiff, an employee of Boeing, when she was struck by an automobile being driven by a third party. The accident occurred while plaintiff was crossing a public county street adjacent to Boeing’s plant.
The theory of plaintiff’s petition is that the crosswalk in which she was struck was in a dangerous and hazardous condition amounting to a nuisance, and that such condition was created and maintained jointly by defendants.
Defendants appeal from an order overruling their joint demurrer to the petition.
The questions involved in the case will develop as the opinion progresses.
We are reluctant to encumber an opinion with lengthy quotations from pleadings. On the other hand, all questions in the case turn upon the construction to be given the material allegations of the petition, and they are of such nature that no attempt to summarize will be undertaken. After alleging the identity of the parties to the action — that Boeing maintains a general office and factory for doing business; that the board of county commissioners is charged with the duty of supervising and maintaining the county-highways in a safe condition, and that on the date in question, September 16, 1958, plaintiff, thirty-four years of age, was an employee of Boeing on the second shift from 4:80 p. m. to 11:30 p. m. —the petition alleges:
“3. The defendant, The Boeing Airplane Company, is and at all times material hereto was an industrial corporation, engaged in business for profit. Said Boeing Airplane Company either owns or has under lease numerous large and spacious factory buildings and warehouse facilities located for a distance of approximately one mile on either side of a Sedgwick County road known as South Oliver Street, the supervision and maintenance of which, at all times material hereto, was the obligation of the Board of County Commissioners of Sedgwick County, Kansas. South Oliver Street runs in a northerly and southerly direction and divides the factory grounds of Boeing Airplane Company. At all times of the day and night there is busy vehicular traffic on South Oliver Street. The Boeing Airplane Company employed in excess of 20,000 persons and operated on a 24 hour, 3 shift basis. As a result of such employment, at times of each shift change, there is and was a very heavy congestion of traffic in and out of various parking areas owned, leased or controlled by the defendant, The Boeing Airplane Company, the entrance and exits of said parking areas opening onto said South Oliver Street. Said traffic congestion had existed for a number of years, at the time of each shift change, prior to the time plaintiff received her injuries, as hereinafter alleged. The defendant, The Board of County Commissioners, had actual knowledge of said traffic congestion at time of shift changes. In addition to there being a heavy congestion of motor vehicular traffic entering into and exiting from said various entrances to and exits from said parking areas, there is at the time of each shift change and has been for a number of years prior to the time plaintiff received her injuries, a large number of pedestrians, employees of the defendant, Boeing Airplane Company, crossing east to west and west to east to the various parking areas, furnished by said Boeing Airplane Company for the use of its employees. The defendant, The Board of County Commissioners of Sedgwick County, and the defendant, The Boeing Airplane Company had long prior to the occasion on which plaintiff was injuried installed crosswalks at five places across said South Oliver Street, in the immediate plant or factory area of the defendant Boeing Airplane Company, for the use of the employees of the defendant Boeing Airplane Company, and other persons; said crosswalks being located at other than intersections of roads, streets or highways.
“4. Said crosswalks were installed and maintained by the said Board of County Commissioners and the Boeing Airplane Company. At all times material hereto, Boeing Airplane Company voluntarily took upon itself the public duty of policing, supervising, controlling and directing pedestrian traffic across said South Oliver Street, at each of said crosswalks. The defendant, The Board of County Commissioners at all times material hereto and for a long time prior thereto knew the defendant, Boeing Airplane Company, had undertaken this public function and acquiesced therein and did nothing whatsoever in regards to the regulating, controlling, supervising or directing of pedestrian traffic at any of said crosswalks. In addition to the assumption of the public function of policing, supervising, controlling and directing pedestrian traffic at said crosswalks the defendant, Boeing Airplane Company, voluntarily assumed the public function of policing, supervising, controlling and directing motor vehicular traffic on South Oliver Street and at the entrances and exits of its various parking areas heretofore described giving ingress and egress onto said South Oliver Street. By reason of said heavily congested motor vehicle and pedestrian traffic entering and leaving the premises of the defendant, Boeing Airplane Company, at times of shift changes, there were created on numerous occasions traffic jams, the occurrence of which was well known to both defendants herein. There is and was a lack of uniformity in the policing, directing, supervision and control of traffic, both at entrances and exits to said various parking areas and at said pedestrian crosswalks in that at the entrance and exits to some of said parking areas and at two or three of said crosswalks, uniformed guards wearing luminous clothing and carrying flashlights, employees of the defendant Boeing Airplane Company, directed the flow of traffic, whereas at one of said crosswalks, in addition to uniformed guards, there was an electric stop-caution-go signal, while at the crosswalk where plaintiff received her injuries, there was at no time material hereto either uniformed guards, nor traffic signals, nor did either of said defendants take any precautions whatsoever to control, direct, police or supervise motor vehicular or pedestrian traffic, so as to provide for the safe passage of pedestrians across said crosswalk. For a long time prior to the plaintiff’s accident it was the custom of the Boeing Airplane Company to provide a greater number of guards at crosswalks and at the entrances and exits to various parking areas during the daytime shifts than were provided at the nighttime shifts, although more guards were needed to safeguard pedestrians at nighttime than daytime.
“5. By reason of the failure of defendants to provide any measure whatsoever for the protection of pedestrians crossing at the crosswalk at which plaintiff was injured, the crossing of said South Oliver Street at said crosswalk was extremely hazardous and dangerous and unsafe for pedestrian traffic and was more particularly dangerous, hazardous and unsafe at nighttime in that said crosswalk was neither lighted, nor was oncoming traffic given warning as to the existence of said pedestrian crosswalk by way of luminous warning signs or otherwise. The only warning was a small non-luminous sign bearing the words ‘Stop for Pedestrians’ located on the East side of said South Oliver Street, immediately South of said crosswalk and in such close proximity thereto as to make it physically impossible for any driver of a motor vehicle, after observing said sign, to stop prior to entering into and over said crosswalk, and which sign by reason of its non-luminous character could not be seen at night by any driver proceeding in the North-bound traffic portion of said South Oliver Street. The same situation existed as to lack of a uniformed guard, traffic signal, lighting and other means for the protection of pedestrian traffic at tire Western extremity of said crosswalk, at which there was immediately to the North of same an identical sign as that on the Eastern edge of said crosswalk, immediately to the South, of the same kind, character and location. That the crosswalk at which plaintiff was injured crossed South Oliver between Boeing ‘H’ parking lot and the Boeing Administration Building on the West side of Oliver Street. On neither side of said South Oliver Street for the distance of approximately one mile through defendant Boeing Airplane Company’s factory grounds were there at any time material hereto any street lighting.
“6. On the West side of South Oliver Street and immediately adjacent thereto, for most of the distance through Boeing Airplane Company’s factory grounds, were large factory buildings where Boeing Airplanes were manufactured and assembled, which buildings were at night well lighted. On the East side of said South Oliver Street and immediately adjacent thereto, for most of the distance through Boeing Airplane Company’s factory grounds, were parking areas, principally for the use of said defendant’s employees, wherein automobiles of employees were faced, for the most part, in a Westerly direction towards said South Oliver Street. Scattered throughout said parking areas, for the purpose of lighting same, were a number of light poles bearing large flood lights, some of which were faced in a direction toward said South Oliver Street. Immediately to the East of said parking areas at a distance from said South Oliver Street unknown to plaintiff, but well known to the defendant, Boeing Airplane Company, there were various and sundry factory buildings and immediately to the East of said factory buildings was the Boeing Flight Line along which there were 18 light poles arranged in a line parallel to said South Oliver Street for a distance of approximately one mile through said factory area, each of which poles bore a total of 18 flood lights, 12 of which faced towards the East and 6 towards the West directly towards South Oliver Street. All of said lights were lighted on the night on which plaintiff received her injuries and long prior to the time plaintiff received her injuries been so located and installed by the defendant, Boeing Airplane Company, as permanent fixtures, and lighted nightly; that the candle power, aim and direction of said lights was such that the field or pattern of light from same was extremely brilliant for a distance of approximately one mile North and South through the Boeing Airplane Company’s factory grounds, immediately adjacent to said South Oliver Street, but which field or pattern of light provided no lighting for said South Oliver Street, but which because of the close proximity thereto was at night a constant distraction to drivers of motor vehicles traveling North and South on said Street through the defendant, Boeing Airplane Company’s factory grounds, and the nature of said field or pattern of light was such as to make the headlights of a motor vehicle almost useless and to render it extremely difficult for the driver of any such motor vehicle to see any person crossing the unlighted crosswalk at which plaintiff was injured. The hazard created by reason of the location, aim, direction and pattern or field of light from said flood lights was made greater by reason of lighting from factory buildings along the west side of said South Oliver Street, immediately adjacent to but not illuminating said South Oliver Street, and said dangerous and hazardous condition was further increased at times of shift change in the nighttime by light from headlights of automobiles parked immediately adjacent to said South Oliver Street by employees of said Boeing Airplane Company in a manner directed, controlled, and supervised by the defendant Boeing Airplane Company. By reason of said illumination from said flood lights, factory buildings on the West side of South Oliver Street, southbound automobiles on South Oliver Street, and from said parked automobiles, lack of lighting, lack of traffic signal or uniformed guard to direct pedestrian traffic, an extremely dangerous and hazardous condition existed at and rendered unsafe for pedestrian traffic, the crosswalk at which plaintiff was injured. All of said factors which ren dered said crosswalk dangerous and hazardous were within the exclusive control of the defendants, who knew and had known for a long period of time of the dangerous and hazardous condition existing at the crosswalk at which plaintiff was injured, but who persisted in the continued existence and maintenance of said dangerous and hazardous condition throughout all times material hereto.
“7. Plaintiff further alleges that the defendant herein, The Board of County Commissioners of Sedgwick County, together with the County Engineer and Superintendent of Roads and Bridges for Sedgwick County, Kansas, did, in accordance with Section 68-301 of the 1949 General Statutes of Kansas, receive actual personal notice of said defective and nuisance condition of said highway at least five days prior to plaintiff’s accident herein, but that said defendant, County Engineer and Superintendent of Roads and Bridges, failed and neglected to cause said defective and nuisance condition to be repaired despite their actual personal knowledge thereof.
“8. On September 16, 1958, at approximately the hour of 11:42 P. M., following the blowing of the whistle for the end of the second shift, Marcia Ruth Wilburn left her job on the flight line of Boeing Airplane Co. located on the east side of said South Oliver Street. She walked from her job to the crosswalk crossing said South Oliver Street between said Boeing parking lot ‘H’ and the Boeing Administration Building. Said Marcia Ruth Wilburn, upon arriving at the eastern edge of said crosswalk, proceeded in a careful and cautious manner to start across the street in said crosswalk. When approximately one-half way across said street, while in said crosswalk, she was struck by an automobile driven by one Lila Avis Lee, who by reason of the unlighted condition of said crosswalk, non-luminous sign warning of said crosswalk, lack of guards or signal devices at said crosswalk, and the interfering and distracting lighting condition of the area as heretofore described, was unable to see said Marcia Ruth Wilburn until immediately prior to striking her and at a time when said Lila Avis Lee was unable to avoid striking said Marcia Ruth Wilburn. As a result of being struck by said automobile driven by Lila Avis Lee, Marcia Ruth Wilburn was thrown a distance of 75 feet, and permanently and totally injured both mentally and physically, as hereinafter described.
“9. That the sole and proximate cause of the serious and permanent injuries to Marcia Ruth Wilburn was the defective, dangerous and hazardous nuisance condition of said crosswalk within which she was injured, which was created and maintained by the defendants, the factors which rendered said crosswalk defective, hazardous, dangerous and a nuisance having heretofore been alleged.’’
Paragraph 10 describes her injuries, and paragraph 11 refers to' her life expectancy, former earning capacity, and medical bills— past, present and future. Recovery is sought in the amount of $1,250,000.
A motion by defendant Roeing to make the petition definite and certain in two particulars was overruled.
Defendants then filed a joint demurrer to the petition on the following grounds:
“1. Plaintiff’s petition fails to state facts sufficient to constitute a cause of action against the defendants and in favor of the plaintiff.
“2. That this court has no jurisdiction of the person, of the defendant, or the subject of the action.
“3. That several causes of action are improperly joined.
“4. That there is another action pending between the same parties for the same cause.
“5. That the petition shows on its face that the statute of limitations is run.
“6. That the plaintiff has no legal capacity to sue.
“7. That plaintiff’s cause of action, if any, is exclusively under the Kansas Workmen’s Compensation Law, which law constitutes an exclusive remedy.”
The demurrer was overruled, and defendants have appealed from that order.
The principal contention of Boeing is that, as to it,-plaintiffs exclusive remedy is under the workmen’s compensation act.
The board of county commissioners asserts the doctrine of governmental immunity in matters arising out of the regulation of traffic on county streets and highways.
The contentions and our conclusions thereon will be discussed separately.
With respect to the question whether the injuries are compensable under the act, it must be borne in mind that consistency of decisions involving interpretation of the act is not maintained by construing it liberally in favor of compensation where a workman seeks compensation, and strictly against compensation when he seeks damages. In other words, the same rule arid yardstick as applied to the same facts must govern, whether invoked by the employee or employer. (Shuck v. Hendershot, 185 Kan. 673, 679, syl. 1, 347 P. 2d 362.)
The petition alleges that Boeing is a “factory” employing in excess of 20,000 persons. There can be no question, therefore, that it and its employees were compulsorily under the workmen’s compensation act (G. S. 1959 Supp. 44-505, 44-507). In such cases, therefore, wherd compensation is payable, an injured employee’s remedy against his employer is exclusively under the act. (G. S. 1949, 44-501; Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 203, 231 P. 2d 239.) Boeing contends that as the petition alleges that it, Boeing, had assumed full control of all motor and pedestrian traffic on the street and at the crosswalk in question, the case falls within the rule of Teague v. Boeing Airplane Co., 181 Kan. 434, 312 P. 2d 220. There the claimant, an employee of Boeing, had parked in Boeing’s parking lot prior to the time she was to begin work, and as she proceeded to her place of work slipped on ice in the parking lot and fell. She sought compensation under the workmen’s compensation act for her injuries, and it was held that the accident was one arising out of and in the course of her employment.
Plaintiff argues the facts of that case are readily distinguishable from those here pleaded.
Finally, Boeing contends the petition charges it with negligence while plaintiff was leaving the duties of her employment, thus bringing her squarely within G. S. 1949, 44-508k, which reads:
“The words ‘arising out of and in the course of employment’ as used in this act shall not be construed to include injuries to the employee occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.” (Our emphasis.)
This statute was construed in Madison v. Key Work Clothes, 182 Kan. 186, 318 P. 2d 991, where it was said:
“Where an employee sustains injuries occurring while he is on his way to assume the duties of his employment or after leaving such duties, the proximate cause of which injury is the employer’s negligence, they are injuries arising out of and in the course of employment under G. S. 1949, 44-508k. This is the only construction that gives expression to the legislative intent of the statute.” (p. 192.)
Plaintiff, in seeking to avoid the application of the statute, vigorously contends her petition is founded, not on negligence — but on nuisance.
We pass over the many authorities cited, pro and con, dealing with “on the premises” injuries, such as the Teague case, above, and prefer to base our decision on what appears to us to be the controlling and decisive question in the case — that is — the application of G. S. 1949, 44-508k, above.
At the time and place in question, the petition alleges (paragraph 8, above) that plaintiff had left the duties of her employment and that her injuries were proximately caused (paragraph 9, above) by “the defective, dangerous and hazardous nuisance condition of said crosswalk within which she was injured, which was created and maintained by the defendants, the factors which rendered said crosswalk defective, hazardous, dangerous and a nuisance having heretofore been alleged.”
The question, therefore, is whether Boeing is charged with negligence which proximately caused plaintiff’s injuries. If so, the ap plication of 44-508k is inescapable, and her sole remedy against Boeing is under the compensation act.
As previously stated — plaintiff disclaims any theory of negligence and contends her petition is founded on nuisance — which, as contended, means the long continued maintenance of a deliberate and knowing use or condition of property in the form of a lighting arrangement, perhaps lawful in itself, but dangerous to life and unsafe by reason of its particular location on either side of a heavily traveled public road, and which such dangerous condition has resulted in damage and injury to the plaintiff. Plaintiff further argues that basic to any nuisance is the requirement that the use of property in question must be a use which endangers life or health or obstructs the reasonable use of property by others, and that that is precisely what her petition alleges.
There is no occasion here to “split hairs” in an academic discussion as to the alleged distinctions between negligence and nuisance. Briefly stated, the word “nuisance,” while perhaps incapable of precise definition, generally is held to be something which interferes with the rights of citizens, whether'in person, property, or enjoyment of property or comfort, and also has been held to mean an annoyance, and that which annoys or causes trouble or vexation, that which is offensive or noxious, or anything that works hurt, inconvenience or damage. (Hofstetter v. Myers, Inc., 170 Kan. 564, 568, 228 P. 2d 522, 24 A. L. R. 2d 188; Steifer v. City of Kansas City, 175 Kan. 794, syl. 2, 267 P. 2d 474; Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P. 2d 621, 56 A. L. R. 2d 1409.)
Although factually not precisely in point, we believe analogies are to be drawn from the case of Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78, cited above, in which it was held:
“If the injury of an employee who is under the workmen’s compensation act is in other respects ‘a personal injury by accident arising out of and in the course of employment,’ the fact that such injury was occasioned by acts or conduct constituting toantonness on the part of the employer does not take such injury out from under the act, and a common-law action to recover damages for such injury will not lie.” (syl. 3.) (Our emphasis.)
In the course of the opinion it was said:
“Whether the facts alleged in the petition show negligence only or whether they show wantonness on the part of the employer may be debatable. But even if the acts or conduct alleged do show wantonness, we find no authority either in the statute or in our decisions construing the statute that would justify us in saying that the injury was not compensable under the workmen’s com pensation act. Considering the whole subject broadly, the legislature has made certain exceptions such as agricultural pursuits (G. S. 1935, 44-505), interstate commerce (G. S. 1935, 44-506) and others, but has not included willful misconduct’ or ‘wantonness’ of the employer among the exceptions. Nor is there any distinction between ‘gross negligence’ and any other degree of negligence, as far as applicability of the act is concerned (see 71 C. J. 1485). If so compensable, an action at common law will not lie. To hold otherwise would open a by-pass around the act and permit attempted recovery in common-law actions which the act was intended to supersede. If the plaintiff here had established the same facts in a proceeding to secure compensation under the act, can there be any doubt that he would have been entitled to an award? If so entitled, it follows, under our decisions, that such relief is exclusive.” (p. 86.) (Our emphasis.)
Plaintiff refers to 44-508k as a “strange” statute which would require her to prove common-law negligence of her employer and freedom from contributory negligence on her part — although limiting recovery to the workmen’s compensation act. One answer to that, of course, is that the propriety and wisdom of the statute is entirely a matter for the legislature — and not the courts.
Notwithstanding the many arguments made in behalf of plaintiff’s position, we are concerned here only with the facts pleaded and not with the conclusion placed thereon by the pleader. With respect to Boeing, our conclusion is that it is charged with negligence which proximately caused plaintiff’s injuries while leaving the duties of her employment. Under 44-508k, and as interpreted in the Madison case, above, her injuries therefore arose out of and in the course of her employment, thus rendering them compensable under the act and barring this common-law action against her employer for damages. As previously stated, the act is not to be construed liberally in favor of compensation where a workman seeks to come within its provisions and construed strictly against compensation when he seeks damages in a common-law action. The rule is as broad as it is long — whether invoked by the employee or the employer.
As to defendant Boeing, the demurrer should have been sustained.
The remaining question concerns the liability of defendant board of county commissioners under the allegations of the petition.
What heretofore has been said concerning those allegations with respect to their charging negligence — applies equally to defendant board. Our conclusion is that it is charged with negligence. We believe that no one will seriously question the statement that, generally speaking, means taken by a municipality in the control and regulation of traffic upon the streets and highways constitute a governmental function. It is an elementary rule of law in this state that municipalities are not liable for negligence in the performance of a governmental function, unless such liability is expressly imposed by law. (Freeburne v. City of Emporia, 176 Kan. 503, 505, 271 P. 2d 298.) An exception, however, to the general rule pertaining to immunity of a governmental instrumentality from tort liability while engaged in a governmental function, is that the doctrine of immunity does not extend to acts where the conduct of the municipality results in maintaining or creating a nuisance. (Rose v. Board of Education, 184 Kan. 486, 489, 337 P. 2d 652, and authorities cited therein.) We have no doubt but that traffic conditions on the street in question — and particularly during nighttime change of workshifts at the Boeing plant — are bad, but in our opinion — as to defendant board — the facts alleged do not constitute a “nuisance.”
Plaintiffs other theory — as to liability of the county under the “defective highway” statute (G. S. 1949, 68-301) — is likewise without merit. Without laboring the point further, we simply hold that the facts, conditions and circumstances pleaded do not, as a matter of law, constitute a “defect” in the highway within the meaning of the mentioned statute and the many decisions construing it.
As to defendant board of county commissioners, the demurrer should have been sustained.
It follows, therefore, that the judgment is reversed with directions to sustain the demurrer as to each defendant.
Robb, J., dissents.
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Per Curiam:
This is an original contested proceeding in discipline filed by the office of the Disciplinary Administrator against Stanley L. Wiles of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1985. Wiles’ Kansas license was indefinitely suspended by this court in February 2007 and remains suspended. See In re Wiles, 283 Kan. 173, 150 P.3d 859 (2007).
With regard to the present case, a formal complaint was filed on January 4, 2008, and, on June 24, 2008, an evidentiary hearing was held before a hearing panel of the Kansas Board for Discipline of Attorneys. After considering the testimony and other evidence presented at the hearing, the hearing panel concluded that Wiles violated four of the Kansas Rules of Professional Conduct (KRPC):
KRPC 1.4(b) (2008 Kan. Ct. R. Annot. 432) (communication);
KRPC 3.4(c) (2008 Kan. Ct. R. Annot. 538) (fairness to opposing party and counsel);
KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law); and KRPC 8.4(g) (2008 Kan. Ct. R. Annot. 586) (misconduct).
Based on these violations and considering various aggravating and mitigating circumstances, the hearing panel unanimously recommended that Wiles be disbarred.
Before the panel and now before this court, Wiles maintains that he neither acted unethically nor engaged in the unauthorized practice of law. Before us, pursuant to Supreme Court Rule 212 (2008 Kan. Ct. R. Annot. 327), Wiles filed exceptions to the hearing panel’s findings and subsequently filed a brief with this court. We have organized the arguments raised in Wiles’ brief into four issues. In the first three issues, he argues that the record does not support the panel’s findings regarding each of the three informal complaints that formed the basis for the Disciplinary Administrator’s action, i.e., DA9874 (McKinney), DA10051 (Dorsey), and DA10206 (Dace). Finally, he argues that disbarment is inappropriate.
Before addressing the merits of the issues raised in Wiles’ brief, we also note that at oral argument Wiles generally disparaged the disciplinary process, the hearing, and die hearing panel’s conclusions. Related to some of these allegations, after the hearing panel issued its final report and Wiles submitted his brief to this court, Wiles filed a motion seeking discovery, including the deposition of the Disciplinary Administrator. Through the motion, Wiles attempted to discover the identity of individuals who were present during his disciplinary hearing and to determine if the Disciplinary Administrator had any communications regarding the informal complaints made against Wiles. We denied the discovery requests. At oral argument, Wiles renewed his complaint that discovery had been denied.
Regarding Wiles’ request for discovery, Supreme Court Rule 216 (2008 Kan. Ct. R. Annot. 340) provides procedures for discovery in attorney discipline cases. The rule allows depositions only in limited circumstances, none of which applies in this case. See Supreme Court Rule 216(f); Internal Operating Rules of the Kansas Board for Discipline of Attorneys, Rule D.4 (2008 Kan. Ct. R. Annot. 385). Wiles failed to provide exceptional circumstances warranting the discovery deposition.
As to Wiles’ other complaints about the process, Wiles failed to object to the jurisdiction or the composition of the hearing panel. In fact, he failed to raise any objection to any aspect of the panel hearing until after he filed his exceptions to the final report and his brief before this court. Supreme Court Rule 212 provides that the report and any findings or recommendations in the report are deemed admitted if timely exception is not made. Moreover, under the Internal Operating Rules of the Kansas Board for Discipline of Attorneys, Rule D.l, all questions relating to procedure or ju risdiction and objections to the composition of the hearing panel must be made by a motion in writing at least 10 days before the hearing. Wiles failed to do so. See In re Seck, 258 Kan. 530, 533-34, 905 P.2d 122 (1995) (referencing Internal Operating Rule D.l).
We note also that Wiles has not cited a meritorious due process concern. He certainly has not demonstrated prejudice as the result of his hearing being public, has not come forward with anything other than rank speculation regarding communications about the informal complaints, and otherwise has failed to show that the panel failed to properly conduct the hearing. In summary, Wiles’ objections to the disciplinary process are untimely, without support, and lack merit. We, therefore, turn to his substantive arguments.
Standard of Review
In disciplinary proceedings, this court considers the evidence, the findings of the hearing panel, and the arguments of the parties and determines whether violations of the KRPC exist and, if they do, what discipline should be imposed on the respondent. In re McPherson, 287 Kan. 434, 440-41, 196 P.3d 921 (2008); In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Any attorney misconduct must be established by clear and convincing evidence. In re Nelson, 288 Kan. 179, 183, 200 P.3d 1262 (2009); Supreme Court Rule 211(f) (2008 Kan. Ct. R. Annot. 313) (misconduct to be established by clear and convincing evidence). The touchstone of the clear and convincing standard is that the evidence must establish that the truth of the facts asserted is “highly probable.” In re B.D.-Y., 286 Kan. 686, Syl. ¶ 3, 187 P.3d 594 (2008). In making this determination, the appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. 286 Kan. at 699.
We apply these standards to the facts and violations found by the hearing panel, which related to three informal complaints submitted to the Disciplinary Administrator by clients or opposing counsel, specifically complaints related to Wiles’ representation of clients Tyrone McKinney (DA9874), Jennifer Dorsey (DA10051), and Adresie Dace (DA10206).
DA9874 — Complaint of McKinney
The final hearing report contained the following findings of fact with respect to Wiles’ representation of Tyrone McKinney:
“8. On November 8, 2005, following the Missouri Supreme Court’s suspension of the Respondent’s license to practice law in the State of Missouri, the Respondent wrote a letter to the Kansas City Area Transport Authority (‘KCATA’). The Respondent’s letterhead stated, ‘Licensed in Missouri and Kansas.’
“9. In the letter, the Respondent advised the KCATA that he
‘. . . represents Mr. Tyrone McKinney for the purpose of settlement or litigation of Mr. McKinney’s claim for personal injuries concerning a [sic] incident on one of your busses, that occurred on or about October 27, 2005 at or near 12th and Wyandotte in Kansas City, Missouri . . .
1 understand that GAB Robins is your Insurance Company. I am forwarding a copy of this Attorney Lien Letter to your Insurance Company for further handling, although GAB Robins generally denies every claim that comes to the bus company, whether the claim is good or not.’
“10. On November 15, 2005, Douglas McMillan, Assistant City Attorney for Kansas City, Missouri, responded to the Respondent’s letter. Mr. McMillan stated:
‘On November 14, 2005,1 confirmed with Missouri Chief Counsel’s Office that on September 20, 2005, your Missouri law license was suspended until September 1, 2007.
‘Mr. McKinney’s claim allegedly] occurred on October 27, 2005 at 12th and Wyandotte, Kansas City, Jackson County, Missouri. The KCATA offices are located in Jackson County, Missouri. As such, the proper venue for bringing any action on behalf of Mr. McKinney would be in the Circuit Court of Jackson County, Missouri.
‘You were suspended from the practice of law in Missouri both prior to the date of the alleged injuiy to your client and the date of your lien letter. As such, my clients, the KCATA and GAB Robins, will not acknowledge your purported lien.’
“11. On November 16, 2005, the Respondent wrote to Mr. McMillan. The reference line of the Respondent’s letter provided, ‘Julia Powell & Tyrone McKinney v. KCATA.’ Again, the Respondent’s letter stated that he was licensed in Missouri and Kansas. The Respondent’s letter provided:
1 have in my hand another one of your stupid letters like the letter that you faxed me on the Tyrone McKinney case.
‘As I told you on the telephone, I am suspended in Missouri, but I still have my Kansas Law license.
‘If you, GAB Robins, and the KCATA ignore my attorneys lien letter, you will live to regret it.’
“12. On February 7, 2006, the Respondent again wrote to the KCATA and asserted an attorney lien regarding a third client’s case, Kenya Thornton. Again, the Respondent’s letterhead indicated that he was licensed in Missouri and Kansas.”
Hearing Panel’s Conclusions Regarding McKinney’s Complaint
The focus of the hearing panel’s conclusions regarding McKinney’s complaint was Wiles’ use of professional letterhead that portrayed him as an “Attorney At Law” who was “Licensed in Missouri and Kansas” after his Missouri law license had been suspended. In finding that Wiles violated KRPC 5.5(a) by engaging in the unauthorized practice of law, the hearing panel stated:
“[T]he fact that the Respondent used letterhead which indicated that he was licensed to practice law in the State of Missouri after his license was suspended is also evidence that [he] engaged in the unauthorized practice of law. Because the Respondent continued to practice law when his license to do so had been suspended, the Hearing Panel concludes that [he] violated KRPC 5.5(a).”
In addition, tire hearing panel made the general finding that Wiles violated KRPC 8.4(g) — engaging in any other conduct that adversely reflects on the lawyer’s fitness to practice law — by continuing to practice law after his license had been suspended. And the hearing panel found that Wiles violated KRPC 3.4(c) by practicing law in Missouri following the suspension of his Missouri law license. KRPC 3.4(c) provides that “[a] lawyer shall not: . . . knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.” 2008 Kan. Ct. R. Annot. 538.
Wiles’ Disputes Regarding McKinney’s Complaint
Wiles takes issue with the hearing panel’s factual findings in paragraphs 5, 8, 11, and 12, which indicate that despite Wiles’ suspension from practicing law in Missouri on September 20, 2005, he continued sending correspondence using letterhead identifying himself as a lawyer licensed to practice in Missouri. Specifically, the letterhead stated that Wiles was an “Attorney At Law” who was “Licensed in Missouri and Kansas.”
Significantly, Wiles admits in his appellate brief that he used this letterhead after his Missouri law license was suspended. He merely attempts to minimize his culpability by arguing that his use of the misleading letterhead was “inadvertent,” that the wording was in “small type,” and that he “immediately” altered the letterhead to omit the word “Missouri” when the problem was brought to his attention by Douglas McMillan, Assistant County Attorney for Kansas City, Missouri.
Instead of accepting responsibility for his actions, Wiles appears to blame others for failing to notify him of the misleading language on his letterhead. He complains “it was not until March 8, 2006, that Mr. McMillan disclosed to anyone that [I] had on [my] letterhead” the Missouri law license designation. It was in March 2006 that McMillan specifically mentioned Wiles’ use of an inaccurate letterhead to the Kansas Deputy Disciplinary Administrator. Previously, however, via letters to the Deputy Disciplinary Administrator and to Wiles, McMillan had generally questioned Wiles’ authority to practice law in Missouri in November 2005. McMillan originally questioned Wiles’ authority to practice law when Wiles sent a letter to McMillan’s Missouri client, KCATA, regarding Wiles’ purported attorney liens in a Missouri personal injury case which began in October 2005, a date following the suspension of Wiles’ license to practice law in Missouri. Regarding Wiles’ representation of McKinney, Wiles was clearly practicing law in Missouri without a license and was using a letterhead that portrayed him to be a licensed Missouri lawyer.
A general definition of the “practice of law” has been quoted with approval as follows:
“ ‘As the term is generally understood, the “practice” of law is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity to the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court/ ” State ex rel. Boynton v. Perkins, 138 Kan. 899, 907-08, 28 P.2d 765 (1934) (quoting Eley v. Miller, 7 Ind. App. 529, 34 N.E. 836 [1893]).
In addition to that general definition, this court has established guidelines for what suspended and disbarred attorneys may and may not do. With regard to limitations, we have emphasized:
“[T]he better rule is that an attorney who has been disbarred or suspended from the practice of law is permitted to work as a law clerk, investigator, paralegal, or in any capacity as a lay person for a licensed attorney-employer if the suspended lawyer s functions are limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer and does not involve client contact. Any contact with a client is prohibited. Although not an inclusive list, the following restrictions apply: a suspended or disbarred lawyer may not be present during conferences with clients, talk to clients either directly or on the telephone, sign correspondence to them, or contact them either directly or indirectly.” (Emphasis added.) In re Juhnke, 273 Kan. 162, 166, 41 P.3d 855 (2002) (quoting In re Wilkinson, 251 Kan. 546, 553-54, 834 P.2d 1356 [1992]).
Wiles did not follow these restrictive limitations. He worked alone, unsupervised, and continued to represent McKinney in a Missouri case and to hold himself out as a licensed Missouri attorney on his professional letterhead.
Conclusions Regarding McKinney’s Complaint
Although Wiles’ admissions in his brief seem to settle the question, a review of the record also leads to the conclusion that there is clear and convincing evidence to support the hearing panel’s findings that Wiles violated KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law), KRPC 3.4(c) (2008 Kan. Ct. R. Annot. 538) (fairness to opposing party and counsel), and KRPC 8.4(g) (2008 Kan. Ct. R. Annot. 586) (misconduct) in representing McKinney.
DA10051 — Complaint of Dorsey
The final hearing report contained the following findings of fact with respect to Wiles’ representation of Jennifer Dorsey:
“13. On October 13, 2005, Jennifer Dorsey met the Respondent at his law office in Kansas City, Missouri, and retained the Respondent to provide representation regarding four potential claims. At that time, the Respondent’s office was marked with a sign that indicated that the Respondent was an Attomey-atLaw.
“14. The potential claims included (1) a claim involving an accident with U-Haul, (2) a claim involving allegations of the presence of mold in her former apartment, (3) a claim involving prescription medication, and (4) a malpractice claim involving her son, Damian. The Respondent and Ms. Dorsey executed contingency fee agreements regarding each of the four potential claims.
“15. Despite the fact that the potential mold claim arose in Missouri and would have to have been brought in a Missouri court, the Respondent never informed Ms. Dorsey that his license to practice law in the State of Missouri was suspended. Accordingly, the Respondent provided Ms. Dorsey with legal advice in Missouri regarding a Missouri law matter.
“16. Ms. Dorsey was ordered to appear in court on a matter related to the mold claim. Ms. Dorsey informed the Respondent of the court appearance. The Respondent instructed Ms. Dorsey to appear as ordered, however, he indicated that he would not accompany her. The Respondent failed to explain that he could not appear in court with her due to the suspension of his license.
“17. While the other three cases could have been brought in Kansas, the Respondent physically engaged in the practice of law in Missouri regarding these three matters.
“18. Prior to July 19, 2006, Ms. Dorsey learned that the Respondent’s license to practice law in the State of Missouri had been suspended. After learning that the Respondent was not a licensed Missouri attorney, Ms. Dorsey terminated the Respondent’s representation. Thereafter, Ms. Dorsey retained C. David Whipple’s law firm.
“19. After the Respondent learned that his representation had been terminated, on July 19, 2006, the Respondent wrote to Ms. Dorsey. In the letter, the Respondent stated:
‘Needless to say I was veiy surprised when you sent me a notice that you were taking your cases out of my hands and giving them to Davey Whipple. I was getting ready to file your case against U-Haul, when you unilaterally contacted Davey Whipple to taire over your cases.
‘In this regard, you have acted irresponsibly. You have the right to act in a irresponsible manner. But I have certain rights also. I have a right to submit and prosecute to the fullest extent my attorneys lien for work that I have done on all of your cases. I will do this with vigor. . . .
*You can tell Davey Whipple that these attorneys liens and expense liens on these cases are not negotiable.
Tou have picked your bed, now you will lie in it.’
“The Respondent asserted that he was owed $57,927.97 in fees and expenses for his representation of Ms. Dorsey.
“20. On September 12, 2006, Sheila D. Verduzco, an attorney associated with Mr. Whipple, sent a letter to the Respondent requesting that the Respondent prepare an itemization of the time spent on each of Ms. Dorsey’s cases. On September 14, 2006, the Respondent replied to Ms. Verduzco’s letter and stated, ‘[Pjlease send me $2,000.00 and I will be glad to provide you with this itemization.’ The Respondent never provided an itemization as requested by Ms. Verduzco in behalf of Ms. Dorsey.”
Hearing Panel’s Conclusions Regarding Dorsey’s Complaint
The hearing panel concluded that Wiles violated KRPC 1.4(b) (2008 Kan. Ct. R. Annot. 432) (communication) when he failed to explain to Dorsey that he could not represent her in any Missouri action, and violated KRPC 5.5(a) (2008 Kan. Ct. R. Annot. 565) (unauthorized practice of law) by engaging in the unauthorized practice of law when he met with Dorsey in Missouri and provided her with legal advice. The hearing panel stated that because Wiles still had his Kansas license to practice law, he could have advised Dorsey “in Kansas on Kansas matters” but Wiles’ “contacts with Ms. Dorsey were in Missouri.” The hearing panel further stated that one of Dorsey’s claims — involving mold at an apartment— arose in Missouri, and therefore any action would have to have been taken in Missouri and Wiles was not authorized to do so. Also, the hearing panel made general findings that Wiles violated KRPC 3.4(c) when he practiced law in Missouri after his license to practice law had been suspended and violated KRPC 8.4(g) because continuing to practice law after his license to do so had been suspended adversely reflected on Wiles’ fitness to practice law.
Wiles’ Disputes Regarding Dorsey’s Complaint
Wiles takes issue with the hearing panel’s findings in paragraphs 13, 14, 15, 16, 17, and 20 of the final hearing report. Wiles emphasizes that at the time he met with Dorsey in his Missouri law office, he was still licensed to practice law in Kansas and that all four of Dorsey’s potential claims “could” have been filed in Kansas. He further disputes the implication of the hearing panel’s findings which suggest that someone licensed to practice law in Kansas must be physically in Kansas when advising a client about Kansas law.
Despite his argument, at least one of the claims — the one relating to mold in her family’s apartment — arose in and was filed in Missouri. Even though Wiles argues that the defendant in the case lived in Kansas at the time of the incident and could have been sued in Kansas and that Dorsey later moved to Kansas, which might have given Kansas jurisdiction over the claim, the action related to a Missouri residence owned by Scomik Properties, L.L.C., incorporated in Missouri with its registered agent in Missouri. Documents in the record show that action was taken against Scomik Properties in Missouri and that Dorsey was ordered to appear in the case. Despite the case’s Missouri status, Wiles never informed Dorsey that his license to practice law was suspended in Missouri and that he was unable to appear before a Missouri court on her behalf. Instead, when Dorsey received the order to appear in a Missouri court in the mold case, Wiles told Dorsey that he “would not” accompany her. He argues that he was not obligated to disclose to Dorsey that he “could not” go to court due to his suspended Missouri law license.
Dorsey gave the following testimony at the disciplinary hearing:
"Q. Okay. And did you discuss that [subpoena] with Mr. Wiles?
“A. Yes.
“Q. Okay. Did you ask Mr. Wiles . . . what should you do?
“A. Yes.
“Q. What did he tell you?
“A. He told me I better go to court.
“Q. Okay.
“A. And I said, well aren’t you going to go and he said no, go see what they say.”
Thus, Wiles, having no license to practice law in Missouri, gave legal advice in a Missouri case and then sent his client to court without legal representation. Wiles states in his appellate brief that he would have provided Dorsey with a Missouri attorney if “Dorsey had requested” one. Yet Dorsey clearly sought legal representation and legal advice in all four cases, including her Missouri case, when she initially met with Wiles and entered into contingency fee agreements with him. KRPC 1.4(b) provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” 2008 Kan. Ct. R. Annot. 432.
Wiles also takes exception to the hearing panel’s finding that he never provided Dorsey’s new attorney with an itemization of his time spent on each of Dorsey’s cases. Shortly after Dorsey discovered that Wiles’ law license was suspended in Missouri, she fired him and retained Sheila Verduzco of the Kansas City, Missouri, Whipple Law Firm. Then, on July 19, 2006, Wiles wrote a letter to Dorsey in which he demanded payment for $57,600 in legal services. In September 2006, Verduzco, after seeking guidance from the Missouri Office of Chief Disciplinary Counsel, wrote a letter to Wiles in which she requested an “itemization of time you spent [on] each of M[s]. Dorseys cases.”
What Wiles ultimately provided to Verduzco on January 22, 2008, was a handwritten log of time spent on the Kansas U-Haul case. At the disciplinary hearing, when Wiles was asked how he arrived at his handwritten entries in the U-Haul case, he testified that he did not keep any time sheets and that he did not prepare the handwritten log until approximately 16 months after Verduzco’s request for itemized time spent on Dorsey s cases. In his appellate brief, Wiles emphasizes that he submitted an itemized log on the U-Haul case, but he does not mention Dorsey s other three cases and there is no mention in the record of any itemized billing in those cases.
Wiles also denies the accuracy of the panel’s findings in paragraphs 13 and 14 relating to Dorsey’s personal injury suit against U-Haul at the time she initially visited his law office on October 13, 2005. The reasoning behind Wiles’ U-Haul argument is unclear. Regardless, the record supports the hearing panel’s findings and shows that on October 13, 2005, Wiles and Dorsey entered into a “Contingency Agreement of Employment of Attorney-At-Law,” and it concerned the actions of “U-Haul and all others hable.”
Conclusions Regarding Dorsey’s Complaint
A review of the record leads to the conclusion that there is clear and convincing evidence to support the hearing panel’s findings that Wiles violated KRPC 1.4(b) (communication), KRPC 5.5(a) (unauthorized practice of law), KRPC 3.4(c) (fairness to opposing party and counsel), and KRPC 8.4(g) (misconduct) with regard to Dorsey’s complaint.
DA10206 — Complaint Related to Dace
The final hearing report contained the following findings of fact with respect to Wiles’ representation of Adresie Dace:
“21. Following the Kansas Supreme Court’s suspension of the Respondent’s license to practice law in Kansas, Adresie Dace retained the Respondent to assist her in recovering $15,000.00 she paid for taxes on the proceeds from a settlement of a Kansas case. The Respondent and Ms. Dace entered into a contingency fee agreement. According to the agreement, the Respondent would be entitled to 40% of any recovery as a paralegal.
“22. Despite the Respondent’s contentions otherwise, the Respondent provided Ms. Dace with legal advice.
“23. On April 26, 2007, the Respondent sent J. Nick Badgerow and Jeannie M. DeVeney a letter titled, Notice of Paralegal Lien. The Respondent asserted that Ms. Dace was entitled to approximately $15,000.00 for taxes she had to pay on a settlement against Thom America, Ms. DeVeney’s client. The Respondent’s letter stated, in part:
‘My paralegal fee to represent Ms. Dace is 40% of any and all paid on Ms. Dace’s claim for income tax reimbursement against Thom America and Thom America’s liability insureance [sic] carrier or insurance carriers.
T fully explained to Ms. Dace that I was currently suspended from practising [sic] law in Missouri at this time.
TLf [sic] litigation is necessary, I will refer Ms. Dace to a Missouri attorney to file any necessary legal papers.’
“24. On May 21, 2007, Ms. DeVeney forwarded the Respondent’s letter to the Disciplinary Administrator’s office. Thereafter, on May 9, 2007, the Respondent wrote to the Disciplinary Administrator’s office. In his letter, the Respondent stated:
‘As you well know, I am not at this time a Kansas attorney. However, your office cannot prevent me from acting as a Paralegal. You have no authority to regulate me from practising [sic] as a paralegal.
1 have acted absolutely ethically as a paralegal. I notified Ms. Adresie Dace that I was not an attorney and could only represent her as a paralegal. I told Ms. Dace that I could not go to Court on her behalf, and that I could not file any legal papers in Court on her behalf. I notified Mr. Badgerów and Ms. DeVeney that I was suspended from Practising [sic] law in Kansas, and that I was only representing Ms. Adresie Dace as a Paralegal.’ ”
Hearing Panel’s Conclusions Regarding Dace’s Complaint
The hearing panel concluded that Wiles violated KRPC 3.4(c) when he practiced law in Kansas after the Kansas Supreme Court suspended his license to practice law. The hearing panel also pointed out that Wiles failed to disclose to opposing counsel in Dace’s tax reimbursement case that his Kansas law license was suspended. Instead, Wiles only disclosed to opposing counsel that his Missouri law license was suspended.
In addition, the hearing panel concluded that Wiles violated KRPC 5.5(a) by engaging in the unauthorized practice of law when he met with Dace after his Kansas law license was suspended and provided legal advice to Dace regarding a Kansas matter. Again, the hearing panel also made the general finding that Wiles violated KRPC 8.4(g) by continuing to practice law after his license to do so had been suspended and that this action adversely reflected on Wiles’ fitness to practice law.
Wiles’ Disputes Regarding Dace’s Complaint
Wiles takes issue with the hearing panel findings in paragraph 22 of the final hearing report, arguing that he gave Dace no legal advice and that Dace merely employed Wiles as a paralegal.
There is no merit to this argument. Unsupervised, Wiles entered into a contingency fee agreement with Dace in which he agreed to assist her in recovering tax reimbursement from a settlement of a Kansas case. According to this contingency fee agreement, Wiles would be entitled to 40 percent of any recovery as a “paralegal.” Contraiy to the restrictive limitations laid out by this court in In re Juhnke, 273 Kan. 162, 166, 41 P.3d 855 (2002), and In re Wilkinson, 251 Kan. 546, 553-54, 834 P.2d 1356 (1992), Wiles’ function in Dace’s case was not “limited exclusively to work of a preparatory nature under the supervision of a licensed attorney-employer” and he did not refrain from client contact. As previously stated, this court has cautioned that under circumstances involving a suspended attorney acting as a paralegal, “[a]ny contact with a client is prohibited.” 251 Kan. at 553. This includes either direct or indirect contact. 251 Kan. at 553.
Conclusions Regarding Dace’s Complaint
A review of the record leads to the conclusion that there is clear and convincing evidence to support the hearing panel’s findings that Wiles violated KRPC 5.5(a) (unauthorized practice of law), KRPC 3.4(c) (fairness to opposing party and counsel), and KRPC 8.4(g) (misconduct) in his contacts with Dace.
RECOMMENDED DISCIPLINE
Finally, we consider Wiles’ arguments that the discipline of disbarment is inappropriate. The hearing panel’s unanimous recommendation of disbarment was based on the following analysis:
“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 duly to the legal profession.
“Mental State. The Respondent knowingly and intentionally violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the legal profession.
“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 in Kansas and eight occasions in Missouri.
“On August 19, 1991, a Hearing Panel of the Kansas Board for Discipline of Attorneys issued a final hearing report directing the Disciplinaiy Administrator to informally admonish the Respondent for having violated MRPC 1.1.
“On October 27, 1997, a Hearing Panel of the Kansas Board for Discipline of Attorneys issued a final hearing report directing the Disciplinary Administrator to informally admonish the Respondent for having violated KRPC 1.8(e).
“On December 6, 2002, tire Kansas Supreme Court published an order censuring the Respondent for having violated KRPC 1.1, KRPC 1.3, KRPC 1.4(a), KRPC 1.5(d), and KRPC 1.15(a).
“On February 2, 2007, the Kansas Supreme Court indefinitely suspended the Respondent’s license to practice law in the State of Kansas for having violated KRPC 1.4(a), KRPC 1.15(a), KRPC 3.2, KRPC 3.4(d), KRPC 8.4(c), and KRPC 8.4(d).
“On November 8,1998, the Missouri disciplinary authorities forwarded a letter of admonition to the Respondent for having violated Rule 4-1.3 and Rule 4-1.4.
“On July 21, 1999, the Missouri disciplinary authorities forwarded a second letter oil admonition to the Respondent for having violated Rule 4-1.3, Rule 4-1.4, and Rule 4-8.4(d).
“On June 5, 2000, the Missouri disciplinary authorities forwarded a third letter of admonition to the Respondent for having violated Rule 4-1.3 and Rule 4.1-4.
“On November 2,2000, the Missouri disciplinary authorities forwarded a fourth letter of admonition to the Respondent for having violated Rule 4-1.4.
“On November 2, 2000, the Missouri disciplinary authorities also forwarded a fifth letter of admonition to the Respondent for having violated Rule 4-1.3 and Rule 4-1.4.
“On August 3, 2001, the Missouri disciplinary authorities forwarded a sixth letter of admonition to the Respondent for having violated Rule 4-1.15(b).
“As a reciprocal discipline case to the censure issued by the Kansas Supreme Court, on June 17, 2003, the Missouri Supreme Court indefinitely suspended the Respondent’s license to practice law. However, the Court suspended the imposition of the suspension and placed the Respondent on probation.
“Thereafter, the Missouri Supreme Court found that the Respondent violated the terms and conditions of his probation. As a result, the Court extended the period of probation.
“On February 7, 2005, a Missouri Disciplinary Hearing Panel concluded that the Respondent violated Rule 4-1.4, Rule 4-1.5(b), Rule 4-1.15(a), and Rule 4-8.4(c), as detailed in paragraphs 23 through 35 in the Findings of Fact and paragraphs 8 through 15 in the Conclusions of Law above. The Missouri Disciplinary Hearing Panel recommended that the Respondent be disbarred. The Missouri Supreme Court declined to disbar the Respondent. Rather, on September 20, 2005, the Court suspended the Respondent from the practice of law in the state of Missouri. The Respondent could not have applied for reinstatement until September 1, 2007.
“Furthermore, the Respondent has been suspended from the practice of law before the United States District Court for the Western District of Missouri. Additionally, the United States District Court for the District of Kansas issued an order of interim suspension to the Respondent.
“Dishonest or Selfish Motive. The Respondent’s motivation for continuing to practice law after his license was suspended appears to be motivated by selfishness. The Respondent sought to recover attorneys fees for practicing law while his license to do so was suspended.
“A Pattern of Misconduct. Included in this case are three complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined on numerous occasions. Some of the previous cases have included violations of the rules violated in this case. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.4(b), KRPC 3.4(c), KRPC 5.5(a), and KRPC 8.4(g). As such, the Respondent committed multiple offenses.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent refused to acknowledge the wrongful nature of his conduct.
“Substantial Experience in the Practice of Law. The Missouri Supreme Court admitted the Respondent to practice law in 1969 and the Kansas Supreme Court admitted the Respondent to practice law in 1985. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“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:
“Physical Disability. The Respondent suffers from diabetic retinopathy which greatly limits his vision.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding.’ Standard 6.21.
‘Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.’ Standard 7.1.
‘Disbarment is generally appropriate when a lawyer:
(a) intentionally or knowingly violates the terms of a prior disciplinary order and such violation causes injury or potential injury to a client, the public, the legal system, or the profession; or
(b) has been suspended for the same or similar misconduct, and intentionally or knowingly engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession. Standard 8.1.’
“RECOMMENDATION
“The Deputy Disciplinary Administrator recommended that the Respondent be disbarred. The Respondent recommended that the Hearing Panel conclude that no violations occurred, thus, no discipline was warranted.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred from the practice of law in the State of Kansas.”
Conclusion Regarding Discipline
Wiles’ objections to these conclusions are general and make it clear that Wiles does not appreciate the seriousness of his misconduct. Despite his prior disciplinary experience, he found no obligation to follow this court’s rules, to protect the public from potential injury, or to hold the legal profession in high regard. Apparently, Wiles learned little from his prior disciplinary experiences.
Based upon this court’s consideration of the entire record, the arguments of counsel, and statements of the respondent before this court, we conclude that the appropriate discipline in this case is disbarment from the practice of law in this state.
It Is Therefore Ordered that the respondent, Stanley L. Wiles, be and he is hereby disbarred from the practice of law in the state of Kansas in accordance with Supreme Court Rule 203(a)(1) (2008 Kan. Ct. R. Annot. 266) for his violations of the Kansas Rules of Professional Conduct.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Stanley L. Wiles from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the respondent pay the costs of these proceedings.
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The opinion of the court was delivered by
Herd, J.:
This is a class action filed in August of 1979 on behalf of owners of mineral leaseholds seeking to recover suspended gas royalties from Sun Oil Company. This court affirmed the district court’s judgment for the plaintiff class in Wortman v. Sun Oil Co., 236 Kan. 266, 690 P.2d 385 (1984). The United States Supreme Court subsequently vacated and remanded this case in light of Phillips Petroleum Company v. Shutts, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2695 (1985) (Phillips).
While the facts in this case were set forth in some detail in our previous opinion, they will be summarized here for reference purposes.
During the 1960’s and 1970’s, Sun Oil Company applied to the Federal Power Commission (FPC) for gas price rate increases. While waiting for approval of such increases, Sun charged its purchasers the increased rates, but withheld the increased gas royalties from the owners of the mineral leaseholds.
In order to qualify for the price increases, the FPC required Sun to enter into an undertaking which required it to refund to its purchasers any price increases not ultimately approved together with interest at rates established by the Federal Energy Regulatory Commission (FERC) thereon. Sun then informed its royalty owners that payment of the increased price would be suspended until final approval of the rate increases.
In July of 1976, pursuant to FPC opinions 699 and 699H, Sun paid $1,167,000 in suspended royalties to owners of oil and gas leaseholds in six states: Texas, Oklahoma, Louisiana, New Mexico, Mississippi, and Kansas. This payment was a result of price increases collected by Sun between July 1974 and April 1976.
In April of 1978, pursuant to FPC opinions 770 and 770A, Sun paid suspended royalties in the amount of $2,676,000 to royalty owners with property in the six states listed. This payment resulted from price increases collected by Sun between December 1976 and April 1978.
This suit was filed on August 30,1979, to recover prejudgment interest on the suspended gas royalties and was subsequently certified as a class action. Notice of the action was sent to 3,159 class members. Of these, 105 members “opted out” of the class, although none of the members were supplied with a request for exclusion (“opt out”) form.
The district court determined prejudgment interest was due from Sun to the royalty owners and applied an interest rate derived from Sun’s corporate undertaking with the FPC. (Sun had agreed to an interest rate to be paid on accumulated amounts of unapproved price increases refunded to gas purchasers.) The district court also awarded post-judgment interest. This court affirmed the district court’s judgment in Wortman v. Sun Oil Co., 236 Kan. 266, as to prejudgment interest.
The United States Supreme Court vacated and remanded this case in light of Phillips, holding that application of Kansas contract and equity law to class actions involving gas leases predominantly in other states was sufficiently arbitrary and unfair as to exceed constitutional limits.
On remand, the district judge concluded as follows:
"I have further examined the laws of all states involved herein and applying those laws and case authorities to the facts previously determined, I come to the same result concerning FERC interest rates to be applied as before. All states involved herein recognize interest rates higher than established by a general statute in cases where a contract or agreement provides a higher rate and also in cases involving equitable and moratory interest. The laws of the other states do not conflict with the laws of Kansas on the interest rate to be used.
“The interest rates to be applied herein are the FERC interest rates according to 18 CFR 154.67 and as set forth above. The rates are 9% per annum simple interest to September 30, 1979, (after this case was filed in August, 1979) and thereafter at bank prime rates averaged and compounded quarterly, as set forth above until date of judgment. After date of judgment, the Kansas judgment rate of 15% per annum simple interest applies.” (Emphasis added.)
The district court also ruled that the Kansas five-year statute of limitations for actions on written instruments was applicable to the claims of both residents and nonresidents. Finally, the district court determined that “opt out” forms should be mailed to class members at the expense of the defendant within 15 days from the filing of the court’s decision. Sun appeals from the district court’s rulings.
The first issue on appeal is whether the district court improperly applied a prejudgment interest rate derived from Sun’s corporate undertaking with the FPC. Sun argues that under Phillips, the statutory interest rate of each state in which gas leases are located must be applied.
This issue was recently addressed and resolved in Shutts v. Phillips Petroleum Co., 240 Kan. 764, 732 P.2d 1286 (1987) (Shutts). In Shutts, this court reviewed the law of six jurisdictions containing 97% of Phillips’ nationwide leases (Texas, Oklahoma, New Mexico, Wyoming, Louisiana, and Kansas). The court concluded:
“Based upon the law of the five enumerated jurisdictions as above reviewed, and upon all of the facts, conditions, and circumstances presented by this case, we find all jurisdictions would apply equitable principles of unjust enrichment to hold Phillips liable for interest on the royalties held in suspense by Phillips as a stakeholder. Under equitable principles, the states would imply an agreement binding Phillips to pay the funds held in suspense to the royalty owners when the FPC approved the respective rate increases sought by Phillips, together with interest at the rates and in accordance with the FPC regulations found in 18 C.F.B. § 154.102 (1986) to the time of judgment herein. These funds held by Phillips as stakeholder originated in federal law and are thoroughly permeated with interest fixed by federal law in the FPC regulations as heretofore set forth in this opinion.” (Emphasis added.) 240 Kan. at 800.
Shutts is controlling here and requires us to find the district court applied the proper prejudgment interest rate to the suspended royalties.
Also, pursuant to Shutts, we hold that the applicable interest after the date of the judgment, July 14, 1986, shall be the statutory rate for each state where the gas royalty is produced.
In Kansas, K.S.A. 1986 Supp. 16-204(c) sets the rate for post-judgment interest. The statutory interest rates on judgments in all states involved in this action, other than Kansas, are: Texas— 18% (Tex. Rev. Civ. Stat. Ann. art. 5069-1.05 [Vernon 1987]); Oklahoma — 15% (Okla. Stat. tit. 12 § 727 [1985]); Louisiana — 7% (La. Civ. Code Ann. art. 2924 [West 1987 Supp.]); New Mexico — 15% (N.M. Stat. Ann. 56-8-4[1986]; Mississippi — 8% (Miss. Code Ann. § 75-17-7 [1986 Supp.]).
The appellant next alleges the district court erred in failing to require that class members receive exclusion request forms prior to entry of judgment and in ordering the appellant to pay the costs of notice.
With respect to this issue, the district court held:
“Both sides are agreed that it would be desirable to mail an additional notice with an exclusion request attached in order to avoid further arguments on due process. Copy of such notice, as requested by plaintiff class, is hereto attached and is ordered mailed by defendant to all members of the class. Such mailing may be included in the next regular monthly royalty payment disbursed by the defendants, but in no event not later than 15 days from the filing of this order. If there are members of the class not presently receiving royalty payments, on a monthly basis, or if there be members of the class who are no longer receiving royalty payments, then such notice shall be mailed by defendants within 15 days from the filing of this memorandum order.”
In order for the district court to properly assert personal jurisdiction over class members whose residences and leases are not in the State of Kansas, minimal due process requirements must be satisfied. These requirements were recently set forth in Phillips Petroleum Co. v. Shutts, 472 U.S. at 811-12:
“If the forum State wishes to bind an absent plaintiff concerning a claim for money damages or similar relief at law, it must provide minimal procedural due process protection. The plaintiff must receive notice plus an opportunity to be heard and participate in the litigation, whether in person or through counsel. The notice must be the best practicable, ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ [Citations omitted.] The notice should describe the action and the plaintiffs’ rights in it. Additionally, we hold that due process requires at a minimum that an absent plaintiff be provided with an opportunity to remove himself from the class by executing and returning an ‘opt out’ or ‘request for exclusion form to the court. Finally, the Due Process Clause of course requires that the named plaintiff at all times adequately represent the interests of the absent class members.” (Emphasis added.)
Since opt out forms were never sent to class members with the notice in this case, the district court properly determined such forms must be sent in order to meet minimal due process requirements. The appellant argues, however, that the court erred in not requiring that opt out forms be sent prior to entry of judgment and at the expense of plaintiffs rather than defendants.
Notice to class members must be sent long before the merits of the case are adjudicated. 7B Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1788 (1986). Here, while notice was sent to class members when the class was certified, it did not contain an opt out form.
Appellant cites no authority for its contention that the district court erred by not requiring opt out forms be sent prior to entry of judgment. Here, the district court had previously ruled in favor of the class and this court affirmed. While the case was ultimately remanded to the district court, members of the class were aware judgment had previously been entered for the class and the primary remaining question was what interest rate would be applied. Under such circumstances, it was proper for the district court to require that opt out forms be sent within 15 days of entry of judgment.
This leaves the issue of whether the responsibility for sending additional notice and opt out forms was properly placed with the appellant. The district court ruled that Sun was responsible for mailing notice with the exclusion request form attached to all members of the plaintiff class. The court further held that such mailing could be included in the next regular monthly royalty payment disbursed by the defendant, but in no event later than 15 days from the filing of the order.
The case of Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 40 L. Ed. 2d 732, 94 S. Ct. 2140 (1974), is relevant to our analysis of this issue. In Eisen, a federal district court held a preliminary hearing to determine how to allocate the costs of notice to the class. At the hearing, it was determined that the plaintiff class was likely to prevail on its claim and the defendants were thus ordered to pay 90% of the costs of the action.
In reversing the district court, the Supreme Court ruled that a preliminary procedure, such as that utilized by the district court in Eisen, is improper as it “may result in substantial prejudice to a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable to civil trials.” 417 U.S. at 178. The court further ruled that a plaintiff must bear the initial notice costs as part of the “ordinary burden of financing his own suit.” 417 U.S. at 179.
Since Eisen, lower courts have consistently held that notice costs must be borne by the plaintiff class. 7B Wright, Miller & Kane, Federal Practice and Procedure § 1788, p. 233. However, the Supreme Court in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 57 L. Ed. 2d 253, 98 S. Ct. 2380 (1978), left the possibility open that in some cases, the cost of notice could be placed on the defendant. The court ruled:
“In those oases where a district court properly decides under Rule 23(d) that a defendant rather than the representative plaintiff should perform a task necessary to send the class notice, the question that then will arise is which party should bear the expense. On one hand, it may be argued that this should be borne by the defendant because a party ordinarily must bear the expense of complying with orders properly issued by the district court; but Eisen IV strongly suggests that the representative plaintiff should bear this expense because it is he who seeks to maintain this suit as a class action. In this situation, the district court must exercise its discretion in deciding whether to leave the cost of complying with its order where it falls, on the defendant, or place it on the party that benefits, the representative plaintiff.”
In the instant case, the merits of the case had already been determined against the defendant, Sun. Thus, we hold under the circumstances of this case the costs of financing the additional notice were properly placed upon the defendant.
Sun next contends the district court erred in applying the Kansas five-year statute of limitations to the claims of nonresident class members insofar as those claims arose out of the 1976 payment of suspense royalties. Sun argues the United States Supreme Court’s holding in Phillips requires this court to apply the statutes of limitations of each of the states in which the claim arose.
First, it should be noted that, in Phillips, the Supreme Court was concerned with the substantive conflict between Kansas law and the laws of the states in which the gas leaseholds were located. That substantive conflict related to the interest to be applied to royalty payments — an issue already resolved by this court.
Generally, limitation statutes are considered as being remedial or procedural in their application, and do not affect the substantive rights of the litigants. 51 Am. Jur. 2d, Limitation of Actions § 21, p. 605. Accordingly, we hold that Phillips does not require application of the various states’ statutes of limitations.
Sun Oil further argues that K.S.A. 60-516 requires the application of the statutes of limitation of the states in which the individual royalty owners reside. That statute provides that when a cause of action has arisen in another state and by the laws of that state a cause of action cannot be maintained because of lapse of time, no action can be maintained thereon in this state. We hold K.S.A. 60-516 is inapplicable here because it applies only where the cause of action has arisen in another state. Here, the cause of action arose in Kansas as well as in Texas, Oklahoma, Louisiana, New Mexico, and Mississippi.
We conclude the district court did not err in applying the Kansas five-year statute of limitations to the claims of nonresident class members.
The judgment of the district court is affirmed in part and reversed in part.
Holmes, J., not participating.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the judgment of the trial court denying the issuance of a writ of habeas corpus to petitioner and remanding him to the custody of respondent.
Petitioner was originally charged in an information with the commission of the crime of second degree burglary and grand larceny and brought before the district court of Reno county for arraignment. The record shows that on March 9, 1959, at a preliminary hearing in the city court of Hutchinson petitioner had appeared and attorney John K. Leighnor had represented him wherein the testimony of witnesses was heard. A transcript of the record in the preliminary hearing was filed on March IQ, 1959, in the office of the district court clerk of Reno county. At the arraignment the petitioner told the court he was represented by Jack Leighnor even though Mr. Weinlood’s name appeared in the record as his attorney. Petitioner stated that Weinlood no longer represented him but Mr. Leighnor did. It was later explained by Mr. Leighnor - that he had previously been appointed by the court. Upon inquiry of the trial court as to the date of his appointment, Leighnor explained that he did not recall it but when he returned to his office he would check the record and call the court and supply the information. Upon request of petitioner and his appointed attorney a jury trial was granted and hearing set for April 30, 1959.
Petitioner was found guilty by the jury and upon its verdict, the posttrial evidence, and the showing of one prior felony conviction, petitioner was sentenced for a term of not less than ten nor more than twenty years for second degree burglary, and no more than ten years for grand larceny, the sentences to run concurrently. (G. S. 1949, 21-523; 21-524; 21-107a.)
Both petitioner and respondent have set out identical records. The only complaint that petitioner makes in his attack on the judgment, sentencing and commitment of the Reno county district court is that G. S. 1949, 62-1304 was not fully complied with in every respect because petitioner appeared without counsel of his own choosing and the court did not inform him of his right to be represented by counsel of his own choosing; that the court appointed counsel without giving petitioner a chance to consult his own counsel. Petitioner also complains that no transcript was made of the proceedings, as required under G. S. 1949, 62-1304.
Petitioner relies on Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225 (cert. den. May 2, 1960, 362 U. S. 970, 4 L. ed. 2d 901, 80 S. Ct. 956) and other opinions cited therein at page 356, which calls the court’s attention to Tafarella v. Hand, 185 Kan. 613, 347 P. 2d 356 (cert. den. May 31, 1960, 363 U. S. 807, 4 L. ed. 2d 1150, 80 S. Ct. 1243) where the petitioner had originally been charged jointly with Ramsey in an information. However, reading these opinions shows very quickly that when those petitioners appeared as defendants for arraignment, they were without counsel. In the last attempt of Roy Ramsey (Ramsey v. Hand, 187 Kan. 502, 357 P. 2d 810) the previous Ramsey case was fully and comprehensibly discussed, as was the Tafarella case, supra, and there would be no good purpose served in repeating everything here that was there stated. Was the district court of Reno county ever informed by defendant that he was represented by counsel of his own choosing?
The trial court asked petitioner if he had an attorney, and the answer was “yes,” and when he asked who the attorney was, the name was given. The court inquired if another named attorney no longer represented petitioner, and he replied, “He* isn’t any more.” Was the attorney who was present supposed to represent him in both cases? The answer, “Yes, sir.” All of the above indicates clearly that the trial court was making an earnest and complete effort to find out if petitioner had an attorney he wanted. It is impossible to put any other construction on petitioner’s answers to the questions of the trial court than that petitioner had had Weinlood represent him, that he had been dissatisfied, and had changed to Leighnor; that petitioner had exercised a choice of counsel with whom he appeared in court. In Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219, a case very similar to our present one, it was stated:
“If we set aside convictions and sentences for such reasons there would never be an end to a criminal case.” (p. 203.)
The Trugillo case is a much stronger case than our present one for there the petitioner’s claim was not only failure to comply with G. S. 1949, 62-1304, but the appointed counsel was incompetent to conduct a proper defense against the serious charge of first degree murder. However, this court therein denied the writ of habeas corpus.
A more recent case of similar import is Tibbett v. Hand, 185 Kan. 770, 347 P. 2d 353, where an attorney was appointed in an original criminal prosecution, and according to the petitioner’s uncorroborated contention, the official court reporter failed to transcribe the notes of the appointment of counsel on December 17, 1957. This court followed the decision in Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, and, in substance, stated that such matters are mere irregu larities and the unsupported or uncorroborated statements of the accused in a subsequent habeas corpus proceeding will not justify the issuance of a writ. The trial court did not err in denying the writ.
Affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendant from a conviction of mayhem under G. S. 1949, 21-430, and sentence and commitment to the Kansas Industrial Farm for Women pursuant to G. S. 1959 Supp. 76-2505.
The first count of the information was couched substantially in the language of G. S. 1949, 21-430, to the effect that defendant on or about December 25, 1959, in Labette county, Kansas, did willfully, unlawfully, feloniously, on purpose and of malice aforethought, maim, disfigure and disable the limbs and hand of Fred Stegmeir, by breaking his right wrist and his left hand. The second count alleged the commission of felonious assault in violation of G. S. 1949, 21-431, which count was dismissed by the state at the trial and need not be restated or considered here. Therefore, the sole remaining charge was mayhem.
The first witness for the state was Doctor John P. White who saw Stegmeir between 1:00 and 2:00 p. m. on December 30, 1959. Doctor White stated that Stegmeir’s condition at that time was one of weakness, shock, neglect and malnutrition. He thought Stegmeir had been involved in some sort of a terrific trauma or an accident. Stegmeir’s head was severely bruised, and both hands and wrists appeared to have been crushed but it was not his concern as to how it happened. He informed defendant that Stegmeir had to go to the hospital or he was going to die, and he would probably die anyway. Defendant stated she was his nurse and would not grant the permission. Later that afternoon defendant called Doctor White stating, . . they had decided she would let him go to the hospital,” and according to Doctor White’s directions she sent Stegmeir to Mercy Hospital just outside of Parsons.
Doctor White further testified, “I do have a judgment as to how his wounds could have been inflicted, by some manner, of which I am not stating . . .,” and Doctor White, in answer to a question as to any distinctive or unusual marks he noticed on Stegmeir’s body answered, “Yes. He was beaten, and had bruises — ” and then he went on with the qualifying remark, “I did not state . . . how . . .,” and the next answer was that Stegmeir had multiple contusions, abrasions, lacerations and ecchymosis on the head, arms, and wrists which appeared to be about one week old. There were peculiar marks on the wrists and swelling, but no other marks on the body. The wrists appeared to have a great amount of swelling which could have been caused by constriction. The deformity of the hands was partially due to the fracture of both wrists and hands and partially due to constriction of both wrists. Pictures of Stegmeir which had been taken after Stegmeir’s death were identified by-Doctor White.
Objection to any reference to the pictures was made by defense counsel and was overruled by the trial court. Doctor White continued that he had not seen Stegmeir after his death but markings on decedent’s head were not any different from the injuries he saw on his first call when Stegmeir was alive except for the changes that occur in death. Defendant again objected to any reference to the pictures and was again overruled. On cross-examination the witness testified that Stegmeir was eighty some years old, that he was suffering from diabetes and he could be bruised and injured very easily in a little fall or anything like that, so hitting an object which might not affect an ordinary person would cause an injury, or a black and blue spot, to Stegmeir because diabetics are more inclined to suffer bruises, contusions and lacerations than an ordinary person. Defendant had told Doctor White that Stegmeir had been caught in a car door sometime prior to the time Doctor White first saw him.
Doctor Joseph Waxse, county coroner, saw the body of Stegmeir on the morning of December 31, 1959, at a funeral home and corroborated the testimony of Doctor White as to the appearance of the hands and wrists. The marks looked about a week old. Over the objection of defense counsel, the pictures taken subsequent to Stegmeir’s death were submitted to and testified about by Doctor Waxse. On cross-examination, Doctor Waxse stated the constrictions around the wrists appeared to be due to something tight, like a heavy cord, having been applied to the wrists. He further testified the actual cause of Stegmeir’s death was bronchial pneumonia which is characteristic in elderly people.
Detective Harold Floyd, over objection of defense counsel, testified with respect to the pictures and also that he had requested Leon Crooks to take them. He, along with two other officers, went to defendant’s home on December 31, 1959. They found no one at home and they forced their way into the house. One of the other officers pulled a small bat and a stick out from under a cabinet and handed them to the witness. This testimony was allowed to stand and the exhibit marked over the objection of defense counsel. The witness apparently volunteered the statement that at the time he had had the bat in his possession, it contained a small amount of blood on it. Defense counsel objected and the court ruled, “Sustained, at this time.” In response to the next question witness stated, “It had some stain on it, yes, sir.” The bat was marked exhibit 7 and the stick was marked exhibit 8. . Before Officer Floyd testified about the stick, defense counsel objected to its relevancy and was overruled. The stick was identified as the one removed from the house along with the bat. Another objection was made on the grounds of hearsay and was overruled by the court. An attempt was made on the part of the state to get into the evidence testimony regarding blood stains but because of good and sufficient objections by defense counsel, which were sustained by the trial court, it was unable so to do. Officer Floyd together with Glen Hedrick, a deputy sheriff, went to Fredonia about January 2,1960, in an attempt to locate defendant and her daughter but did not find them there. Hedrick testified that on January 4, 1960, defendant and her daughter, registered under the names of Mrs. Grace and Mary Jones, were located at Gill’s Motel in Girard in Crawford county, and they were returned by Glen Hedrick to the jail at Oswego. Hedrick had helped in the search of defendant’s house which he said was “full of junk and was a shack” and that he could hardly get around for all the junk that was piled'inside the house.
Officer William Raney, who accompanied the previous witness Floyd to defendant’s home, testified that in his search of defendant’s house he observed a small baseball bat and a “length of sapling” down between the wall and dresser propped up at an angle and what attracted his attention to them was the fact that one of them had a stain on it and he handed them to Floyd.
Leo Warren testified that one day about 5:00 p. m. during Christmas week he had assisted in pushing defendant’s car to get it started and that Stegmeir had pushed at the side of the car. The door was open and struck a water plug as the car was pushed by. Stegmeir’s head was hurt in the process. The witness had pushed the car from the rear but he saw Stegmeir’s head was bleeding. The door had apparently closed on him and he saw blood on Stegmeir’s head. He just knew about the head. It was bleeding pretty close to the ear but he did not remember which side. Stegmeir stood up and pulled his handkerchief out of his pocket and held it up to his bleeding head.
Russell A. Gilliland testified that defendant’s attorney, Ben Humphreys, reserved a motel unit for defendant and her daughter and gave the names for the reservation under which the defendant and her daughter registered on January 4,1960.
Testimony of Harry L. Buckley showed that from his room on the second floor of the house next door to defendant’s home he had heard cursing by a voice which he thought he could recognize as belonging to defendant. Such cursing happened practically every night and he had seen Esther, defendant’s daughter, push Stegmeir and poke him with a stick but he was not sure it was with exhibit 8, the stick in question. He knew defendant had a mean disposition.
Thereupon the state rested. Defendant moved that she be discharged, which motion was by the trial court overruled.
Defendant then presented her evidence. Her first witness was Alvin Selle, deputy sheriff of Crawford county and jailer at Girard, who stated that defense counsel had informed him at 4:40 p. m. on January 4, that he would produce defendant whenever she was needed. At 4:41 Selle called the Labette county sheriff, and at 4:52 that sheriff called that they were on the way with a warrant for defendant. At 5:30 p. m. there was another call from the Labette county sheriff stating he would secure a warrant for defendant and get it to Crawford county. According to the record, testified to by Selle, which was more or less in the form of a radio broadcast, at 9:15 p. m. on January 4 a state warrant had been issued for defendant and also one for her daughter, Esther Wood. On January 5,1960, the sheriff of Labette county brought a warrant to Crawford county.
On cross-examination Selle testified that when defense counsel called him at 4:42 on January 4, Selle did not know defendant was wanted and that between January 5 when the warrant was brought to Crawford county, and January 7, he was looking for a “Black 1942 Chevy, Neosho County Tag 4616,” as stated in the warrant, because he did not know defendant. At 8:00 a. m. on January 5 defense counsel was in Selle’s office and wanted to know what was wrong with the Labette county sheriff but Selle did not know.
The second witness for defendant was Morris Whitman, chief of police at Girard, who testified that defense counsel had told him he knew where defendant was, and in a later conversation with that same counsel, he told Whitman to “Let the County pick her up.”
Defendant testified that Stegmeir was eighty-one years of age and had sugar diabetes, Rright’s disease, and either lumbago or rheumatism. She had leucoma. She was blind in one eye, partially blind in the other, and the doctors had told her she was losing her eyesight completely. Stegmeir had broken his right wrist, or something was wrong with his right hand, and then later on something was wrong with his left hand. She stated, “They were tied with a kind of a crude-made splint to kinda keep his medicine on, and to hold them so they wouldn’t turn under so.” A sling to go around his neck was made out of an old cord such as drygoods are wrapped with and there was a bandage around his wrists.
Stegmeir was in quite a bit of pain. An old torn piece of sheet had been used for the first sling but he was so strong he broke it so often they had to resort to the cord. She soaked his wrists in epsom salts, K-3 liniment, and put turpentine and lard on them. She thought he had hurt his right hand while trying to put up a storm door with her help and that of her daughter. Defendant testified that on another occasion her daughter told her Stegmeir hurt his hand while working on a tire. She corroborated the testimony of Leo Warren in regard to the injury Stegmeir received from pushing the car, and the fact that Stegmeir’s head was bleeding. Her daughter was screaming and they helped him into the house.
Defendant wanted to call the doctor but when she asked him if they should call a doctor, Stegmeir began to curse doctors and told her “No.” She kept repeating, ‘We must call the doctor.” Later they went to the grocery store to get some of Stegmeir’s candy bars, as he requested, and while they were in the store, his ear started bleeding again and one of the lady checkers offered to help but Stegmeir took defendant’s handkerchief and removed the blood from his face. They returned home and prepared supper but all he wanted for supper was his candy bars. She was going to bathe his hand in hot epsom salts water and wanted to call a doctor but he did not want to call the doctor because he would have to go to the hospital and he recalled a time when he had had a Doctor Morrow and had had to go to the Katy hospital and be operated on. He did not want any operation. He again cursed the hospitals, nurses, and doctors, and refused to let her call a doctor and when she started to use the telephone, he grabbed it out of her hand and threw it on the floor. Defendant denied that she had ever hit Fred Stegmeir.
Defendant’s daughter, Mary Esther Dixon, testified she was seven years of age when Fred Stegmeir began rooming and boarding with them. She had taken care of him whenever he got hurt. She thought he had broken his arm and she made a splint out of cardboard, cotton and cloth and tied it on with a cord-like rope.
She corroborated the car pushing incident and the fact that she had “hollered” at the time because she thought Stegmeir was dead. His right hand began to swell and she made the splint. Stegmeir had injured his hands while changing a tire and again when putting up a storm door. She denied she had ever seen her mother strike Fred Stegmeir. She tried to call a doctor but Stegmeir would not see a doctor. She could not get him into the car to go to a doctor. Every time he would get hurt she would try to have a doctor but he would neither go to one nor see one. She testified about calling Doctor White. She called the Edwards ambulance. She said it was not Stegmeir’s choice to go to the hospital. Her testimony on that point was:
“Q. Did he object at that time to going to the hospital? A. Yes, the young man that was there will tell you about that.”
The witness and her mother, although they knew Stegmeir was very much against it, still took him to the hospital.
Defendant rested, and then read into the record a motion for the court to order and direct the jury to return a verdict of not guilty for the reason that the state by its evidence had failed to prove the commission of the crime as alleged and charged in the information. The trial court overruled the motion.
The first claimed specification of error is that the trial court erred in overruling defendant’s motion to discharge and motion for a directed verdict. The evidence of the state has been set out herein in considerable detail. At the time of the motion for discharge there was an inference that defendant and her daughter had gone from their home in Parsons (Labette county) to Girard, in Crawford county, and that this was flight. However, upon the opening of defendant’s testimony it was quickly shown that before any warrant was issued for defendant, she had discussed her situation with her attorney, who had made the arrangements for her and her daughter to go to a motel in Crawford county and had directed her to go there. On January 4, 1960, her attorney had informed the sheriff in Crawford county that he knew where defendant was and would deliver her if and when a warrant was received. This information was relayed to the sheriff of Labette county. However, no warrant was issued until the next day, January 5,1960. There is no evidence before this court that any other warrant was ever issued for defendant. She had a right to employ counsel and abide by such counsel’s advice and direction (Bill of Rights, § 10, Kansas constitution) so that under these facts there was no flight from which a confession or presumption of guilt could be inferred.
The state had the duty and burden at all times to prove each and every element of the crime charged under G. S. 1949, 21-430, the material portions of which read:
“Every person who shall, on purpose and of malice aforethought . . . disable any limb or member of any person, with intent to . . . maim or disfigure such person, shall upon conviction be punished by confinement and hard labor for a term not less than five nor exceeding ten years.”
See, also, G. S. 1949, 62-1439; State v. Fisher, 140 Kan. 511, 520, 38 P. 2d 115; State v. Rehg, 157 Kan. 203, 217, 139 P. 2d 838; 2 Hatcher’s Kansas Digest, rev. ed., Criminal Law, § 195, p. 226.
Further, there is no evidence before this court from which it can be inferred that anyone disabled Stegmeir’s wrists, or hands, or any of them. The only evidence produced was that of the defendant which showed that Stegmeir had injured his wrists and hands on several occasions, two of which have been set out herein, and testified to by the defendant and her daughter. There is no proof by the state, even circumstantial (4 West’s Kansas Digest, Criminal Law, § 552 (3); State v. Ragland, 170 Kan. 346, 226 P. 2d 251; State v. Bailey, 184 Kan. 704, 711, 339 P. 2d 45), nor is any to be gleaned from the evidence of defendant, that anyone disabled any limb, or, as stated in the charge of the information, “by breaking the right wrist and the left hand of said Fred Stegmeir,” and further, there is a total lack of any evidence that defendant ever threatened such bodily harm to Stegmeir. The cursing and name-calling shown in the record could not be sufficient to establish a threat of, or the element of maiming or disfiguring set out under the requirements of the statute to constitute a violation thereof.
Because of such failure on the part of the state to prove any act of another to maim or disfigure, or to disable, any limb or member of Stegmeir’s body, we have no alternative other than to reverse the judgment of the trial court and under G. S. 1949, 62-1717, to direct that it discharge the defendant. It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
This controversy steins from an action to partition real estate.
Jean Perney, mother of the three individual plaintiffs and the wife of Francis X. Perney, died intestate July 12, 195S. Her estate was administered in the Probate Court of Shawnee County at which time her one-half interest in a house known as 207 Clay Street, Topeka, Kansas, was assigned to her husband and her three children. Francis X. Perney then owned an undivided three-fourths interest and each child owned an undivided one-twelfth interest.
In February, 1959, Francis X. Perney married the defendant, Mary Juanita Perney. Thereafter they resided in California until March, 1962, when they moved to the house at 207 Clay Street. A portion of the property had been rented for $50.00 per month while Francis and his second wife lived in California.
On May 16, 1962, Francis X. Perney died testate, a resident of Topeka, Kansas. His estate is now being probated in the Shawnee County Probate Court with Francis X. Perney, Jr. as executor. The three children of Francis and Jean Perney (his first wife) were named as sole beneficiaries under the will. Defendant, the second wife of Francis, elected to take under the law which gave her one-half of her deceased husband’s three-fourths interest.
The defendant has claimed the house as her homestead and resided therein since the death of the decedent. She spent $206.03 for taxes, insurance and improvements on the property after decedent’s death and prior to appointment of the executor in September, 1962.
The plaintiffs brought an action for partition of the property. The prayer of their petition reads:
“Wherefore plaintiffs pray that the court partition said real estate described above according to the respective interests of the parties as alleged aforesaid, or, if partition cannot be made without manifest injury, that said land be appraised and sold and the proceeds be divided according to the respective rights of the parties after the payment of the costs; that the plaintiffs be awarded possession of said property together with damages in the sum of $720.00 for the unlawful detention thereof, costs of this action, and all other proper and equitable relief in the premises.”
The defendant answered setting up the following claim for relief:
“Wherefore, defendant prays that the relief prayed for in plaintiffs’ petition be denied; that defendant be awarded judgment against the plaintiffs, and each of them, in the sum of $593.15 for said improvements upon said property and the sum of $700.00 for payment of said moving expenses; that in the event partition is made and a sale is made in partition, that the said sum of $593.15 expended by defendant for the improvements, taxes and insurance on said property be paid to defendant from plaintiffs’ share of the proceeds of said sale and for such other relief as may be deemed equitable.”
After a hearing on the issues as joined the district comt entered judgment in which it decreed partition of the property, allowed the defendant the sum of $206.03 expended as improvements, directed the payment of past due taxes, and denied the plaintiffs’ claim for rent.
Thereupon the plaintiffs appealed and the defendant cross-appealed.
The appellants’ appeal is from that part of the judgment resulting from the following conclusions made by the trial court:
“That from the proceeds of said sale and before setting apart plaintiffs’ one-twelfth interests, the Cleric of the District Court should first pay any back taxes due on said real estate, along with abstract and other expenses necessary to clear title to said real estate.
“That under the provisions of the occupying claimant law, 60-1004, G. S. of Kansas, 1963, the Clerk shall also, prior to setting apart the one-twelfth interests herein, pay to the defendant the sum of $206.03, which sum was expended as improvements by said defendant after the death of Francis X. Perney.
“That the plaintiffs, as co-tenants, are not entitled to rent herein as there has not been an affirmative action which would deprive them of their co-tenancy rights in the property. . . .”
At the outset we are confronted with appellee’s motion to dismiss the original appeal, whereupon appellee contends that the appellants acquiesced in the judgment by the following acts:
(1) The appellants’ motion to confirm report of commissioners and the order confirming report of commissioners.
(2) The appellants’ praecipe for order of sale and the order of sale.
(3) The appellants’ motion for order to vacate premises.
After careful consideration of all arguments advanced by the parties on the point now under consideration we are constrained to conclude that the appellants have acquiesced in the judgment, thus barring their right to appeal.
The court entered but one judgment in which it granted partition as requested but adjusted the equities contrary to the contentions of appellants.
In a partition decree the court may adjust all equities of the parties in the property or arising therefrom. (Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763.) The right of the court of equity to partition is subject to the power of the court to make equitable partition. (Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844.)
The record makes it appear that the appellants have proceeded to enforce the portion of the judgment which decreed partition. Having accepted the benefits of that part of the decree they cannot now appeal from the portion of the judgment they find objectionable. By their action appellants have sought and obtained enforcement of the partition order. This necessarily constitutes acquiescence in the judgment.
Under our repeated decisions anything that savors of acquiescence in a judgment cuts off the right to appellate review. See, e. g., Cohen v. Dresie, 174 Kan. 391, 256 P. 2d 845; Hawkins v. Wilson, 174 Kan. 602, 605, 257 P. 2d 1110; Peters v. Peters, 175 Kan. 422, 263 P. 2d 1019; Rose v. Helstrom, 177 Kan. 209, 277 P. 2d 633; In re Estate of Hill, 179 Kan. 536, 297 P. 2d 151, and Anstaett v. Christesen, 192 Kan. 572, 389 P. 2d 773.
We will next consider the issues raised by the cross-appeal, passing the question, which has not been raised, whether the issues have become moot by a failure to stay the proceedings in the court below.
The first contention raised by the cross-appellant is that she was occupying the property as a homestead and that it was not subject to partition. In making this contention she asks us to overrule our decision in Cole v. Coons, 162 Kan. 624, 178 P. 2d 997, where it is held:
“When real property is owned by tenants in common one cotenant cannot establish a homestead right therein as against the interests of other cotenants.
“If real property is owned by cotenants before the death of one cotenant occurs, the survivors of the deceased cotenant cannot establish a homestead right of occupancy in the property which will defeat, delay or affect partition thereof by the other cotenants.
“G. S. 1945 Supp., 59-402, does not create a homestead right and is applicable only to real property in which homestead rights can be established.
“Such statute applies only to tenancies in common created by immediate descent and does not change the status of property fixed prior to the death of a decedent.” (Syl. f f 1, 2, 3 & 4.)
We refuse to overrule Cole v. Coons, supra, and continue to adhere to the decision in that case.
Moreover, we conclude that K. S. A. 59-402 which reads: “The homestead shall not be subject to forced partition unless the surviving spouse remarries, nor until all the children arrive at the age of majority” relates to tenancies in common created by death but not before death.
Cross-appellant next contends that the trial court erred in not refusing partition under the provisions of K. S. A. 60-1003 (d) which provides:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests, or may refuse partition if the same would result in extraordinary hardship or oppression.”
In connection with the section of the statute just quoted it is suggested that she (cross-appellant) has an income of only $251.60 per month and needs the property for a home. It is also suggested that it is hard to imagine a case where equities cry louder for exercise of the foregoing section of the statute. This appeal is more a matter for consideration of charity than for equitable relief. The statute in question never contemplated that one cotenant, who might be a complete stranger to another, would be required to forego partition and furnish the other with a home because of pecuniary circumstances. The equities to which the statute refers are those which may be enjoyed jointly without partition. Equity would not deny to one cotenant his interest in the use of the property for the benefit of another.
Finally cross-appellant contends that the trial court erred in concluding:
“. . . The Clerk of the District Court should pay the balance of the proceeds, after deducting the one-twelfth interests of the plaintiffs herein, and after payment of the expenses hereinbefore enumerated, the same being the three-fourths interest of the decedent, to the executor of the estate of Francis X. Perney, deceased, there is to be governed according to the laws of this State relating to decedent’s estate.
“This court is expressly holding that it has no authority or jurisdiction to impress homestead rights on the property which is an asset in probate. The Probate Code adequately provides the procedure for setting up and claiming of homesteads. Section 59-2235 and its provisions should be followed.”
and further states:
“. . . The homestead rights obviously can be asserted against the creditors of the estate of Francis X. Perney. This is the very purpose for which homestead rights were created by the Kansas Constitution. It therefore is the position of cross-appellant-appellee that it was manifest error for the court to order proceeds of the partition sale paid to the executor of the estate of appellee’s husband and there to be subjected to the debts of his estate. . . .”
There is no sound basis for cross-appellant’s final contention. She misconstrues the judgment of the trial court. That tribunal simply ordered all of the funds derived from Francis X. Perney’s estate paid into the probate court. The probate court is to make the same determinations that it would have made had the partition action not been filed. One of its obligations is to determine whether cross-appellant has a homestead right which follows the proceeds of the sale of the real estate. If cross-appellant is dissatisfied with the action of the probate court she has the right to appeal.
What has been heretofore stated and held requires an affirmance of the judgment — and it is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by Zane Gard, plaintiff (appellant), against Sherwood Construction Co., Inc., defendant (appellee), to recover damages for the wrongful death of plaintiff’s wife arising from a car-truck collision occurring on U. S. Highway 54 west of Pratt about 5:45 p. m. on June 1, 1961.
The plaintiff commenced this action upon the theory the defendant was negligent in the following particulars: (1) failing to have his truck under control; (2) failing to stop, slow down or otherwise alter the speed, movement or direction of his truck when danger of a collision with the vehicle in which the plaintiff’s wife was riding was imminent; (3) failing to keep a proper lookout; (4) driving his truck at a dangerous and excessive rate of speed without due regard to the use, width, traffic and occupancy of the highway at the time; and (5) that defendant’s truck driver, in the exercise of reasonable care, should have seen plaintiff’s wife in a position of,imminent peril from which she could not extricate herself, and by the exercise of ordinary care, without injury to himself or others, could have stopped said truck or slackened its speed or turned the truck onto the wide shoulder of the highway and avoided striking the station wagon in which plaintiff’s wife was riding.
At the close of plaintiff’s evidence the defendant interposed a demurrer based on the theory that plaintiff’s evidence failed to show facts sufficient to constitute a cause of action in plaintiffs favor in that no actionable negligence on the part of the defendant was shown. The trial court sustained defendant’s demurrer, took the case from the jury and entered judgment for the defendant, from which order plaintiff appeals.
Plaintiff’s evidence in support of the allegations contained in his petition may be summarized as follows: The plaintiff, a physician and surgeon, accompanied by his wife and five children, started on a trip from Kansas City to Arizona on the mentioned day. The family occupied a Dodge station wagon that was pulling a rented trailer loaded with the family’s belongings. Following the station wagon and trailer at a distance of four to six car lengths was a Pontiac automobile occupied by plaintiff’s in-laws, the Wesemans, and Lester L. and lone Mast. At Pratt, the plaintiff, who had been suffering a headache, moved to the Pontiac and Mr. Weseman took control of the station wagon, which proceeded in the lead. As the station wagon and trailer went over the crest of a small grade four miles west of Pratt, plaintiff noticed the trailer weave a few times and then straighten out. After this whipping action the station wagon and trailer traveled approximately 100 to 150 feet and again began to weave. At this time plaintiff noticed a large truck approaching from the west on the same highway. The weaving of the trailer became a violent whipping that ultimately threw the station wagon into the path of the above-mentioned truck, resulting in a collision of the vehicles. Plaintiff’s wife, two of his children and Mr. Weseman were killed in the collision and plaintiff’s other three children were severely injured.
Plaintiff testified he had checked the trailer several times en route, the last time being at Pratt when they had stopped for refreshments, and at no time found any defects or malfunctioning of the trailer. It was at plaintiff’s request that Mr. Weseman proceeded to drive'the station wagon. Mrs. Gard, plaintiff’s wife, was sitting in the front seat on the right side and the children were in the back of the station wagon. Plaintiff further testified he asked Mr. Weseman to drive slowly, not to exceed thirty-five miles an hour, and on leaving Pratt, Weseman drove “O. K.” and didn’t seem to have any difficulty; that there was no weaving of the trailer during the first two or three miles but that it was as the station wagon and trailer went over the small crest that the trailer began to weave a few times; that after the first whipping action1 stopped the station wagon traveled perhaps 100 or 150 feet before anything else happened. It was at this time plaintiff noticed a large truck approaching from the west going east as it was rounding a small bend in the highway approximately one-half or three-fourths of a mile down the road. Plaintiff watched the truck and estimated it was traveling between fifty and fifty-five miles an hour.
When the trailer started weaving it was between 600 and 800 feet from the site of the scene of the accident, and when the whipping became quite violent it was about 400 feet from the point of impact. Plaintiff estimated the trailer whipped back and forth across the roadway approximately ten or twelve times, each whip becoming more violent — probably starting from a foot as it started in the weaving process and gradually increasing to eight or ten feet before it went off to the right. As the trailer whipped it would cross the center fine of the road and would whip into the eastbound lane [south side of road]. As the whipping became more violent it appeared each time that the trailer was more or less ready to jackknife, and on the last swerve it appeared that the station wagon went halfway onto the shoulder, the trailer swung out wider on the shoulder, and the station wagon then was crossing the highway. At times the trailer would swing three to five feet over the center line of the highway to the south side of the road.. During the time the trailer was whipping, the truck continued to come down the highway and did not appear to alter its course or speed.
Plaintiff further testified that as the trailer went into its more violent whipping, defendant’s truck was 1,200 to 1,400 feet from the station wagon and trailer. The station wagon was gradually decreasing its speed as it went through this series of whips, and as it veered in the final whip it was probably doing ten miles an hour. When it started to cross the roadway it was just rolling. Its speed would have been comparable to a man walking; the further it went the slower it was moving.
It was plaintiff’s testimony that the last he saw of defendant’s truck it was approximately 200 to 250 feet from the station wagon, and it had not altered its course or decreased its speed; that the station wagon was astraddle the road at the time it was struck, its right front being struck by the left front of defendant’s truck.
At the hospital defendant’s truck driver told plaintiff he thought of swerving earlier; however, he didn’t. He thought the trailer might right itself, and it didn’t. He thought the danger was going to pass, but it didn’t.
Plaintiff’s testimony that the defendant’s track did not decrease its speed or alter its course was corroborated by lone and Lester, L. Mast.
A highway patrol trooper testified to the following concerning his investigation of the accident: The highway was twenty-five feet three inches wide, the shoulder was ten to twelve feet wide; there was a ditch one and one-half to two feet deep along the shoulder with a gradual slope to the bottom of the ditch; the point of impact on the station wagon was ahead of the rear wheel; the track went through the station wagon, taking out the motor and the steering column; the driver of the truck told him he was traveling in the neighborhood of forty-five to fifty miles an hour; the total distance from the brow of the hill down to the intersection to the west where the drivers of both cars could see one another was a distance of 4,575 feet; the point of impact from the south edge of the pavement was two feet two inches; the left front of the track was two feet two inches from the right-hand side of the pavement; almost three-fourths of the truck was on the shoulder at the time of the collision; there were ninety-two feet of skid marks made by the truck up to the point of impact. It was the trooper’s belief the station wagon at the point of impact was proceeding very slowly or was practically stopped when it was struck by the track. He further testified the whipping of the station wagon and trailer left marks more than 300 feet east of the point of impact.
The trooper further testified he talked with the driver of the truck at the hospital and the driver told him that as he was proceeding east on the highway he noticed a vehicle pulling a trailer coming toward him, saw it start in a whipping or swaying motion, but didn’t think there was much danger at that point, so he proceeded on the road until all at once he saw it was becoming a violent whipping motion,, The driver said he was traveling approximately forty-five to fifty miles an hour at the time. In answer to the question propounded to him about whether or not the driver of the truck had done anything by the way of pulling over to the side or stopping or slowing down prior to the final lurch, the trooper testified the truck driver did not say but that in the course of the conversation they talked about the skid marks made by the truck, the last phases of the Dodge station wagon and the trailer when the truck driver did see the station wagon was in trouble and life could be in danger, and it was at this time he turned to the right and applied his brakes for the first time.
We must consider whether or not the plaintiff made out a prima facie case of negligence against defendant. In so doing, we must recognize certain well-established rules. With respect to the ruling on the demurrer, defendant recognizes the well-established rule that in testing the sufficiency of evidence as against the demurrer, the court shall consider all of the plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefrom, and disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory nor weigh any differences between the direct and cross-examination; and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereto, the demurrer should be overruled and the issues submitted to the jury. (Letcher v. Derricott, 191 Kan. 596, 599, 383 P. 2d 533; Carpenter v. Strimple, 190 Kan. 33, 38, 372 P. 2d 571; Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793; Sneed v. KFH Building, Inc., 186 Kan. 255, 257, 349 P. 2d 950; Reda v. Lowe, 185 Kan. 306, 311, 342 P. 2d 172; Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, 337 P. 2d 1003; Haga v. Moss, Administrator, 181 Kan. 171, 179, 311 P. 2d 281; Koch v. Suttle, 180 Kan. 603, 606, 306 P. 2d 123; Fry v. Cadle, 171 Kan. 14, 16, 229 P. 2d 724; Olson v. Maxwell [Tenth Circuit], 263 F. 2d 182.) It is also well established in this state tihat the question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury. Moreover, the question whether a negligent act is the proximate cause of an injury and whether an ordinarily reasonable and prudent man would have seen that injury might have occurred as the result of a negligent act is also a question for the jury. (Krentz v. Haney, supra, p. 430; Olson v. Maxwell, supra.) As was stated in Applegate v. Home Oil Co., 182 Kan. 655, 662, 324 P. 2d 203:
“Generally speaking, where there is a question of the negligence of an actor, the causative element of his negligence, i. e., the proximate or legal cause, is ordinarily a question for the jury. [Citing cases.] . . .”
(See, also, State Farm Mutual Automobile Ins. Co. v. Cromwell, 187 Kan. 573, 576, 358 P. 2d 761.) The proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred, an additional condition sometimes stated being that it must appear the injury was anticipated or that it reasonably should have been foreseen by the person sought to be charged with liability. (Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; Mehl v. Carter, 171 Kan. 597, 237 P. 2d 240; Applegate v. Home Oil Co., supra.)
The rule that the causal connection between an actor’s negligence and an injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause, notwithstanding the intervening cause. (Rowell v. City of Wichita, supra; Applegate v. Home Oil Co., supra; State Farm Mutual Automobile Ins. Co. v. Cromwell, supra.) As was stated in Rowell v. City of Wichita, supra:
“If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to,take such care is negligence.
“It is not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.” (Syl. f ¶ 4, 5.)
It seems unnecessary to prolong this opinion inasmuch as this case falls squarely within the facts and the rules of law enunciated in DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527. In DeGraw the plaintiff’s husband was traveling west on State Highway No. 5 riding in a Ford panel truck being driven by his brother. Traveling east on the same highway was a passenger bus owned by the defendant. The highway was of concrete slab, eighteen feet wide, and coated with ice and snow. The point of collision was about one-third of the way down a grade or hill up which the bus was proceeding. The bus driver noticed plaintiff’s vehicle as it came over the hill. It was out of control on its left side of the highway, moving slowly, but was zigzagging back and forth across the highway. The bus was traveling thirty-five to forty miles an hour. The distance to the hill which the bus was climbing was estimated to be about 700 feet. There was nothing to prevent the bus driver from seeing the truck, and the bus proceeded up the hill on its own right side of the highway. Reference to the opinion is made for further facts similar to the instant case.
The trial court in DeGraw overruled defendant’s demurrer to. plaintiff’s evidence. The case was submitted to the jury which returned a verdict for the plaintiff and which this court approved, stating:
“We think clearly these matters were properly submitted to the jury. It was for the jury to determine whether the truck was out of control, and if so, whether as a result of negligence on the part of its occupants or the condition of the highway, and whether, under the circumstances, the driver of the bus kept a proper lookout, and whether he exercised proper care in taking such steps as were possible, such as turning aside, slowing or stopping, in order to avoid the collision or at least to minimize its effects. In a case such as this it is not die function of this court to weigh evidence, and here the evidence was such that reasonable minds might differ on the question of negligence on the part of plaintiff’s deceased as well as on the part of tire bus driver. The demurrer to plaintiff’s evidence was properly overruled.” (pp. 717-718.)
It was further stated:
“While as a general rule it may be said that a driver, absent knowledge to the contrary, may assume that an approaching vehicle will obey the rules of the road and thus get over and stay on its own side of the road, yet he will not be permitted to act on the assumption where the factual basis for it has disappeared, as for example, where it appears that the driver of such vehicle on the wrong side of the road either will not or cannot turn back to his own side.
“The purpose and object of rules of the road are to avoid accidents, but one is not justified in asserting his right to use his side of the road when, by not doing so, he can avoid a collision. The fact a motorist is on the proper-side of the road does not entitle him to make an unreasonable use thereof nor relieve him of the duty to exercise due care to avoid injury to others, including those who may be on the wrong side of tire road.” (Syl. ¶¶ 4, 5.)
In the instant case we are of the opinion the trial court, in sustaining defendant’s demurrer to plaintiff’s evidence, failed to apply the aforementioned rules of law in considering the evidence. In fact, it is difficult to see how the court as a matter of law absolved defendant’s driver from negligence in light of the driver’s own statements made to the plaintiff and the highway patrolman. No useful purpose would be gained in restating the evidence. There appears to be little question but that there was evidence upon which the jury might find the defendant was guilty of negligence and that such negligence was a proximate cause of the collision and resultant death of plaintiff’s wife. It cannot be said as a matter of law that the driver of defendant’s truck was faced with an emergency, in the strict sense of that word as used in negligence cases. All the evidence points to the fact that he saw for a distance of at least one-half to three-fourths of a mile the zigzagging of plaintiff’s trailer attached to the station wagon in which plaintiff’s wife was riding. There was nothing to keep the truck- driver from observing the station wagon and trailer, no other vehicles were involved, yet he did not decrease the speed of the truck or alter its course until just immediately prior to the impact. The defendant’s driver told the plaintiff he thought the trailer might right itself, but it didn’t; he thought the danger was going to pass, but it didn’t. Under the facts in the instant case we are of the opinion it was a question for the jury whether or not defendant’s truck driver, seeing plaintiff’s station wagon and trailer out of control, exercised that degree of care that an ordinarily prudent man would exercise under similar circumstances. Moreover, plaintiff’s evidence presented a situation where reasonable minds might differ as to just who was negligent and whose negligence, if any, was the proximate cause of the injury complained of. Hence, clearly it was a question for the jury.
The legal questions here involved are so well settled in our law that they need not be labored. This was an action at common law in which the plaintiff sought damages alleged to have resulted from defendant’s negligence. This is the kind of an action in which each party is entitled to a trial by jury as a matter of right. Such an action should not be converted into a trial by the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has or has not been established. (Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 49, 204 P. 2d 752.)
The right of every individual citizen to a trial by jury is of ancient origin, and as now practiced is the result of a long process of development. Having early been regarded as a right, it was in England first guaranteed as such by the Magna Charta. It was introduced in this country by the English colonists who considered it a right under the English law, and is regarded as a basic and fundamental feature of American jurisprudence, and has since the organization of our government been incorporated in the form of expressed guaranties in the constitutions of both state and federal governments. It is a substantial and valuable right and should never be lightly denied. The law favors trial by jury, and the right should be carefully guarded against infringements (50 C. J. S., Juries, § 9, p. 722); and a trial court in the exercise of its prerogatives in determining questions of law, only, in these kinds of cases should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.
In view of what has been said, other matters discussed need not be treated. The judgment of the trial court is reversed and the case is remanded with directions to grant a new trial of the action.
Parker, C. J., Price and Schroeder, JJ., dissent.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment of the district court of Kiowa County directing the restoration of a driver’s license which had been suspended for refusal to take a blood alcohol test as provided by G. S. 1961 Supp., 8-1001, now K.S.A. 8-1001.
The facts material to the determination of the question raised, which are not in dispute, may be briefly stated.
On December 23,1962, the plaintiff, Luther T. Marbut, a resident of Greensburg, was arrested by a Kansas Highway Patrolman at a point approximately one mile west of Wellsford on U. S. Highway 54 and charged with driving a motor vehicle while under the influence of intoxicating liquor. In connection with the arrest and charge plaintiff was requested by the arresting officer to submit to a chemical test to determine the alcoholic content of his blood as authorized under 8-1001, supra.
Plaintiff refused to submit to the chemical test and the' arresting officer subsequently submitted a sworn report of the refusal to the Motor Vehicle Department of the State Highway Commission. Upon receipt of the affidavit of refusal the plaintiff’s license to drive a motor vehicle was suspended for a period not exceeding ninety days for refusal to take the test.
Thereafter, and on January 25, 1963, plaintiff was tried by the State of Kansas in the county court of Kiowa County on the charge of driving while under the influence of intoxicating liquor. At the conclusion of such trial he was found not guilty of the charge.
On March 20, 1963, an agent of the motor vehicle department heard evidence at Greensburg on the question of the surrender and revocation of plaintiff’s drivers license and it was concluded that the department’s order should be continued, and that his chauffeur’s license should be revoked for a period of one year from February 18,1963.
On April 26, 1963, the plaintiff, under the provisions of K. S. A. 8-259, filed his petition for hearing on appeal in the district court. In that pleading he stated substantially the facts as heretofore related and alleged further:
“Said petitioner further informs the Court that by the Statutes of the State of Kansas he is entitled to a hearing on the reasonableness of his refusal to submit to a chemical test and that the action of the Superintendent of the Motor Vehicle Department, in ordering a revocation of his license, was arbitrary, unreasonable, unwarranted, and was not justified as a matter of law or fact.”
In response the defendant (state) filed an answer admitting all of the allegations of the petition except the paragraph above quoted.
With issues joined as indicated the district court heard the cause and according to its journal entry concluded as follows:
“That said petitioner, in accordance with the statutes of the State of Kansas, filed his appeal from said ruling, and said matter, as previously stated, was heard by the Court on june 19, 1963.
“The Court, having heard the testimony and having examined into the facts of the case, finds that the petitioner, and plaintiff, Luther T. Marbut, was heretofore acquitted of a charge of driving while under the influence of intoxicating liquor arising out of the arrest involved in this case, and that as a result of said acquittal the matter of the reasonableness of his failure to submit to a chemical test of his blood has become a moot question.
“Wherefore, it is by the Court considered, ordered, adjudged and decreed that the petitioner, and plaintiff, Luther T. Marbut, is entitled to have his driving privileges reinstated and that his motor vehicle operator’s license should be restored to him.”
Thereupon the defendant (state) perfected the instant appeal wherein it alleges, and the plaintiff concedes, the sole question involved on appellate review may be stated thus: . ■
“Is the issue of the reasonableness for failure to submit to' a chemical test under 8-1001, G. S. Kansas, 1961 Supp. [now K. S. A. 8-1001], a moot question when the person so arrested and charged with driving a motor vehicle while under the influence of an intoxicating liquor is acquitted of such charge?”
In passing it should be stated counsel for appellee presented an argument before this court but filed no brief.
After carefully reviewing the entire record submitted we are forced to agree with appellant that the trial court has misconstrued the effect and purpose of 8-1001, supra, providing for tests for alcoholic content in the blood. Such section is not dependent on or necessarily related to K. S. A. 8-530 which provides for criminal prosecution and puishment of a person for driving while under the influence of intoxicating liquor. The blood test may be taken with or without a criminal prosecution and prosecution may take place without a blood test being suggested. (State v. Berry, 183 Kan. 792, 332 P. 2d 549.)
In fact, the blood test may eliminate the necessity for a prosecution if there was at the time less than 0.15 percent by weight of alcohol in a defendant’s blood. (K. S. A. 8-1005.) The blood test does as much to protect an innocent driver as it does to aid the state in the prosecution of a guilty one.
The nature of the two proceedings are entirely separate. One (8-530, supra) is a criminal prosecution for the violation of a criminal statute prohibiting driving while under the influence of intoxicating liquor. The other (8-1001, supra) is a civil proceeding to determine whether the appellee acted reasonably in refusing to submit to a blood test as a prerequisite to the privilege of using the public streets and highways.
The separate nature of the two proceedings was pointed out in Combes v. Kelly, (2 Misc. 2d 491), 152 N. Y. S. 2d 934, where it is said:
“The hearing before the Commissioner of Motor Vehicles, however, as previously pointed out, was not a criminal proceeding. It was an opportunity afforded the petitioner, by law, to be heard on the question of whether or not he was entitled to a continuation of the privilege of operating a motor vehicle upon the public highway.” (p. 938.)
A license to operate a vehicle upon the highways is neither a contract right nor a property light. It is mere privilege the suspension of which does not deprive the individual of due process of law.
In Lee v. State, 187 Kan. 566 (Syl. ¶ 1.) 358 P. 2d 765, this court said and held:
“It is an elementary rule of law that the right to operate a motor vehicle upon a public street or highway is not a natural or unrestained right, but a privilege which is subject to reasonable regulation under the police power of the state in the interest of public safety and welfare. (5A Am. Jur., Automobiles and Highway Traffic, § 127, p. 318; 60 C. J. S., Motor Vehicles, § 146, p. 469.). . . .
“The use of the public highways by moter vehicles, with its consequent, dangers, renders the necessity of regulation apparent. Courts may take judicial notice of the problem, both local and national, of the drunken driver on the highways with its ever increasing toll of injuries and death. In line with many other states, Kansas, through its inherent police regulatory powers, in an effort to promote publid' safety and welfare, has seen fit to enact the statutes heretofore quoted or summarized — one of which, 8-1001, puts a choice to a motorist who is accused upon reasonable grounds of driving while under the influence of intoxicating liquor. In this connection see City of Garden City v. Miller, 181 Kan. 360, 365, 311 P. 2d 306; and State v. Barry, 183 Kan. 792, 797, 332 P. 2d 549.)
“. . . Chemical tests eliminate mistakes from objective observation alone, and they disclose the truth when a driver claims that he has drunk only a little and could not be intoxicated. They protect the person who has not been drinking to excess but has an accident and has the odor of alcohol on his breath. They save a person from a drunken driving charge when his conduct creates the appearance of intoxication but who actually is suffering from other causes over which he has no control. (See Breithaupt v. Abram, 352 U. S. 432, 1 L. cd. 2d 448, 77 S. Ct. 408.)
“The statute does not compel one in plaintiff’s position to submit to a blood test, and does not require one to ‘incriminate himself’ within the meaning of constitutioanl provisions. And neither is it violative of due process (Breithaupt v. Abram, above). It gives the driver the right of choice of the statutory suspension of his license, and further gives him the right to a hearing on the question of the reasonableness of his failure to submit to the test. Furthermore, under 8-259, above, he has the right of appeal to the district court of the county of his residence. Each of these procedures was afforded to plaintiff.” (pp. 570, 571 and 572.)
We must conclude that the failure of the state to prove, beyond a reasonable doubt, that a person was driving a vehicle while under the influence of intoxicating liquor has no bearing on the question of the reasonableness of such person’s refusal to submit to the requested chemical test to determine the alcoholic content of his blood.
It clearly appeal's that where the question has been before the courts of other states they have so held. See, e. g., Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N. W. 2d 75, which reads:
“The plaintiff in his petition alleges that the revocation of his driver’s license was arbitrary and capricious because he was not convicted of an offense of operating a motor vehicle under the influence in the original court. The fact of acquittal of a criminal charge of operating a motor vehicle while under the influence of alcoholic liquor does not have any bearing upon a proceeding before the director for the revocation of a driver’s license under the provisions of law separate and distinct from criminal statutes.” (p. 423.)
See, also, Combes v. Kelly, supra, and Anderson v. Macduff (208 Misc. 271), 143 N. Y. S. 2d 257, 259.
The only issue before the district court on appellees’ petition fox-hearing on appeal was the same issue as was before the Motor-Vehicle Department of the State Highway Commission when plaintiff refused to submit to the test, i. e., “the reasonableness of his failure to submit to the test. . . .” (8-1001, supra.) The result of the prosecution for driving while under the influence of intoxicating liquor is not a matter to be considered at such hearing.
What has been heretofore stated and held requires a reversal of the judgment with directions to grant a new trial on the question of the reasonableness of appellee’s refusal to take the blood test and proceed in accord with the views expressed in this opinion.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This appeal by defendant arises out of a prosecution for murder in the first degree under K. S. A. 21-401 wherein the jury returned the following verdict:
“We, the Jury, find the defendant, Vemon Gee, guilty of murder in the first degree, as charged in the Information, and further find that the defendant, Vemon Gee, should be punished by being put to death, as provided by law.”
Defendant’s appeal is from the trial court’s approval, acceptance and adoption of such verdict, from the judgment and sentence that: “. . . the defendant Vernon Gee be hung by the Warden of the State Pentientiary at Lansing, Kansas until he is dead on the 16th day of April, 1964 . . .,” and from the order and judgment of the trial court overruling defendant’s motion for new trial.
Briefly, the pertinent facts are that prior to 6:00 a. m. on August 5, 1963, a call was received at police headquarters in Kansas City, Kansas, that a man was discharging a firearm in the northeast section of Kansas City. Immediately thereafter Harrison Vernon Hedrick, a police officer, and a companion in one police car, along with other police officers in other police cars were dispatched to the northeast section of the city to search for such a man. Hedrick and his companion and the other police cars converged upon the intersection of Third Street and Troup Avenue where two men appeared to be engaged in a conversation. When the police car in which Hedrick was riding stopped near the two men, one of them, without a word, or a warning act, came out to the curb, discharged his gun into the police car, striking and killing Hedrick.
We are immediately confronted with defendant’s contention the trial court erred in its instruction No. 24-A with regard to the burden of proof which reads:
“You are instructed in regard to voluntary intoxication, that it is incumbent upon the defendant in this case to prove to tihe satisfaction of the jury beyond a reasonable doubt that such intoxication was voluntary and it existed at the time and the place of the crime as charged in the Information; and the burden of proving these facts is on the defendant.
“Evidence in this regard may be taken into consideration as coming from either the witnesses for the State or the defendant.” (Italics supplied.)
The record discloses that the trial court, solely upon its own determination, saw fit to give the above-quoted instruction No. 24-A notwithstanding the fact that neither the state nor defense counsel requested the instruction, and that both sides objected thereto.
We are of the opinion the instruction is fatally defective to the verdict of the jury for the reason it does not state the law of Kansas as that law appears in K. S. A. 62-1439, and the cases cited thereunder. The statute reads:
“A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two or more degrees of an offense he is guilty, he may be convicted of the lowest degree only.”
We are fully cognizant of the circumstances surrounding this prosecution for a capital offense, but upon appellate review we simply cannot allow a verdict of guilty, which was returned following such an erroneous statement of the law, to stand. We are, therefore, compelled to hold the judgment of the trial court must be reversed with directions to grant defendant a new trial.
Reversed with directions.
Fatzer and Fontron, JJ., concur in the result.
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action against the defendant under G. S. 1949 (now K. S. A.) 21-407, manslaughter in the first degree, charging that the defendant struck several blows with his fists to the face and body of Harry Kepner which caused his death five days later. The case was tried to a jury which found the defendant guilty of manslaughter in the second degree, and appeal has been duly perfected to this court.
The controlling question is whether the jury was correctly instructed concerning manslaughter-in the second degree under the evidence adduced in the case.
The portion of instruction No. 5 given by the trial court, which the appellant challenges as being clearly erroneous under the evidence, reads:
“No. 5.
“The sections of the statutes of Kansas, defining the crimes and offenses charged as above stated, and which will be pertinent to your consideration of the evidence in this case, insofar as they are applicable, read as follows:
“ ‘G. S. [now K. S. A.] 21-411. Manslaughter in the second degree. The killing of a human being without a design to effect death, in the heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.’ ”
In 1905 in the case of State v. Knoll, 72 Kan. 237, 83 Pac. 622, the conviction of a defendant of manslaughter in the second degree under section 16 of the crimes act (G. S. 1901, §2001), defining manslaughter in the second degree as above quoted by the trial court (21-411, supra), was reversed on the ground the evidence in the case was legally insufficient to establish a killing in an unusual manner.
There the deceased was a small man, not very stout, in poor health, and a hunchback. The defendant was a much larger and stronger man. The deceased had a revolver, but made no attempt to use it. The defendant, who was unarmed, defied the deceased to shoot, and then grappled him and bore him to the floor. While upon the deceased he choked him and beat him with his fists until they were bloody. After the encounter the deceased was found to have a bruised and bleeding eye, a bruise on the back of his head, bruises on his breast, and the tibia of his left leg was broken.
There the deceased was suffering from chronic alcoholism and fatty degeneration of the heart. In consequence of his injury he was put to bed, and by reason of the inactivity thus enjoined, and his previous diseased condition, self-infection resultant from the inability properly to throw off the natural secretions ensued; from which complication he died thirty-two days after his injury. While his physical condition prior to his injury would eventually have resulted in his death, the injury which he received hastened that result.
These facts were said to clearly show that a homicide was committed in the heat of passion without a design to effect death and without excuse or justification. But it was held the killing was not done “‘in a cruel and unusual manner.’” (p. 239.) In so holding the court said:
"There is, of course, no fixed standard, either of cruelty or of wontedness of manner, by which homicides may be measured, and yet the legislature evidently attached much meaning to the distinction which it indicated by the use of the words quoted. By section 26 of the crimes act (Gen. Stat. 1901, §2011) the involuntary killing of another in the heat of passion by means neither cruel nor unusual is made manslaughter in the fourth degree. The punishment for manslaughter accomplished in a cruel and unusual manner is confinement and hard labor in the penitentiary for not less than three nor more than five years, while that for manslaughter by means neither cruel nor unusual is confinement and hard labor in the penitentiary not exceeding three years, or by imprisonment in the county jail for not less than six months. Cruelty and an unusual manner are therefore vital and essential elements of manslaughter in the second degree. To be such, however, they cannot be discovered in the common pitilessness and pain attending homicides generally, nor in the departure from ordinary use involved in turning common weapons or common instruments or methods of accomplishment to the killing of human beings. Fatal shootings and stabbings and poundings, mutilations of flesh and fractures of bones are all cruel enough, and they cannot be said to represent the usual demeanor of men; hence something more must have been intended. Special stress and emphasis must be imposed upon the words used in order to accomplish the legislative purpose, and this may be done without departing from their ordinary signification, since they are comparative terms susceptible of variant shades of meaning.
“It must be said, therefore, that in order to constitute manslaughter in the second degree there must be some refinement or excess of cruelty sufficiently marked to approach barbarity, and to make it especially shocking; and the unusual character of the manner displayed must stand out sufficiently peculiar and unique to create surprise and astonishment, and to be capable of discrimination as rare and strange.
“In the facts of this case it is somewhat difficult to discover a sufficient viciousness of mind on the part of the defendant, and a sufficiently grievous effect upon the deceased, to amount to that cruelty which the statute requires. Although severe pain was inflicted without necessity, and although there was not merely an indifference to such pain but a certain savage pleasure in causing it, still there is no more atrocity and no more peculiar or extreme agony than might be exhibited in, and result from, any drunken brawl.
“Conceding, however, as upon the whole it is probably wisest to do, that the spectacle of a burly, drunken bully crushing to the floor a weak and sickly cripple, snapping a bone and mauling his flesh, is too revolting to pass for less than that extreme cruelty which the law contemplates, the court is unable to say that the manner in which it was accomplished was unusual. Nothing but unaided bodily strength and energy, used according to the common custom of fighting men, appears. The fact that a leg was broken does not change the character of the means employed to break it. Death must always result to complete the crime, and if the deceased’s back or neck had been broken, or his body had been crushed by his fall or as a result of his beating, the circumstance would not have changed the character of the offense, unless perhaps the force displayed had been so tremendous as to become phenomenal. Such an exhibition could scarcely occur with those staggering, wallowing drunkards. If, therefore, the manner of the killing in this case could be said to present an instance of such aggravated cruelty as to amount to brutality, it nevertheless occurred after the ordinary manner in which brutishness is made manifest; and, since both cruelty and unusualness must be proved, the defendant was not shown to be guilty of the crime of manslaughter in the second degree. . . .” (pp. 239-242.)
A recent case decided by the New York Court of Appeals in 1949 (People v. Vollmer, 299 N. Y. 347, 87 N. E. 2d 291), cited State v. Knoll, supra, with, approval, and held there was nothing “ ‘cruel and unusual’” about the assault, for to be “‘cruel and unusual’” the manner of a homicide must have in it some aggravating element, something out of the ordinary, something shocking or barbaric. It was said the phrase could not be applied where a flurry of blows from the defendant’s fists sent the other man to his death.
The evidence in the instant case, using the appellee’s version, which the appellant does not dispute, establishes the following:
Harvey Lee Diggs (defendant-appellant) resided at Coffeyville, Kansas, and was employed by the Western Union as a lineman. His wife, Irene, with whom he lived, drank heavily and was probably an alcoholic. Irene was acquainted with an elderly man named Harry Kepner since she was a young girl. Kepner was a long-time family friend, a retired man, 78 years of age, and lived alone in a house situated near the Diggs residence. Irene was 49 years of age and had the habit of visiting Kepner at his home on occasions. She usually walked to the residence of Kepner, and they would sit and talk or watch television. Occasionally, she took beer to Kepner’s home, but Kepner never drank over one can or bottle of beer, and did not like whiskey. He would never become drunk.
Irene and the appellant, age 58, had a rather stormy marriage and many arguments took place between them over drinking. They argued over Irene’s visits to Kepner’s home. The appellant hit and struck her on many occasions and she was confined to the hospital at least twice as a result of these beatings.
On the afternoon of May 1, 1964, while the appellant and his son by a previous marriage were at work, Irene went to the home of Kepner for a visit. When the appellant and his son came home Irene was not present. They drove to several beer halls or taverns looking for her, without avail. The appellant and his son drank a quantity of beer at the taverns. They then drove to the Kepner residence and parked about a block away. The appellant told his son to stay in the vehicle, that he had some business to take care of and that it was not his son s affair. When he arrived at Kepner’s house, the screen door was hooked, but he jerked the screen door open, breaking the lock, and entered the house. He found his wife and Kepner sitting in the front room of the house watching television. The appellant started cursing and commenced striking his wife around the face and head with his hands and fists. After striking her several times, he turned to Kepner, who was then standing erect. He began striking Kepner around the face and head with his fists. As the appellant began striking Kepner, Irene arose from her chair and fled. As she left the house she heard Kepner say, “oh, oh, please don’t hit me, don’t hit me.” She heard him say this several times as she was fleeing from the house. She testified that her husband struck the first blows and that she never saw Kepner strike him in any way, nor did she see Kepner attempt to defend himself.
The appellant testified in his own behalf and stated that he was mad at the time he entered the house; he admitted striking his wife several times; and that he then began striking Kepner. The appellant testified he struck Kepner three or four times with his fists; that at no time did Kepner strike him, nor in any way did Kepner try to defend himself. He further testified that when he hit Kepner with his fists Kepner staggered back and fell into a sitting position in a chair. The evidence was that the appellant used nothing but his hands and fists in beating Kepner.
The appellant’s son testified that he arrived at Kepner’s house when the fight between his father and Kepner was over. That Kepner was standing in the middle of the room and Irene was gone. He further stated that Kepner was crying when he entered the room, and it was evident that Kepner had received a beating.
The evidence was that Kepner was a peaceful man and did. not argue with anyone.
The following day Irene went to Kepner s residence and asked him not to prefer charges against her husband, and Kepner agreed. Kepner was not feeling well, and on May 3, 1964, went to the hospital. He was suffering from a massive hemorrhage and died a day or so later without leaving the hospital.
The medical evidence was that Kepner died of a massive hemorrhage caused by a ruptured esophagus; that when he entered the hospital he had bruises and contusions about his face and body; that he had broken ribs; that both eyes were very blackened and swollen. An autopsy confirmed the cause of death. The medical testimony was that the rupture of the esophagus of the decedent was caused by the beating he received on May 1, 1964, and that he died as a direct result of that beating.
The appellee contends this court in State v. Williams, 182 Kan. 468, 322 P. 2d 726, overruled State v. Knoll, supra, by adopting the language used in the dissenting opinion of the Knoll case. The appellee argues the defendant in the Williams case used only his fists to beat the deceased while incarcerated in the bull pen of the police station at Junction City, Kansas.
The facts in the Williams case disclose that the deceased, while still handcuffed in the bull pen, was attacked by the defendant, who not only struck the handcuffed decedent several times with his fists, but also kicked him after knocking him down and into the shower stall. The fight did not end until the decedent had been knocked into the shower stall and “‘didn’t come back no more.’” (p. 469.) He was found dead in the shower stall.
We think the facts in the Williams case are sufficient to distinguish it from those in the instant case.
We adhere to the decision in State v. Knoll, supra, and think the facts in the instant case present a stronger case for the reversal of a conviction of manslaughter in the second degree than the facts in the Knoll case.
The evidence in this case did not warrant the giving of an instruction on second degree manslaughter under 21-411, supra.
It has been held the court must examine the evidence as a whole and then instruct upon such questions as the evidence naturally, reasonably and probably tends to prove. It cannot properly instruct as to any degree of the offense which the evidence does not tend to prove. (State v. Hardisty, 121 Kan. 576, 249 Pac. 617, and authorities cited therein.)
In State v. Noble, 175 Kan. 398, 264 P. 2d 479, it was held there was no occasion to instruct on manslaughter in the second degree (G. S. 1949, 21-412) under the evidence, there being no unlawful act shown. Similarly, in State v. Linwille, 148 Kan. 142, 79 P. 2d 869, it was held the essential elements to constitute the crime of manslaughter in the second degree specified in the statute — the killing of a human being without design to effect death in the heat of passion and in a cruel and unusual manner — were neither established by direct evidence nor by legitimate inference, and a conviction pursuant to an instruction thereon was reversed.
An instruction given to the jury by the trial court should be based upon the evidence in the case. Where the facts on the point are simple, and there is no dispute in the testimony, the question is one purely of law, although arising in a criminal case, and it is exclusively for the court to determine.
Accordingly, we hold the giving of an instruction on manslaughter in the second degree under 21-411, supra, on the evidence adduced in the instant case was clearly erroneous, and the appellant should be granted a new trial. In view of our decision, other points presented by the appellant become immaterial.
The judgment of the lower court is reversed with directions to grant a new trial.
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The opinion o£ the court was delivered by
Price, J.:
This is an appeal from an order dening a motion to vacate a judgment of conviction and sentence imposed thereunder.
The action arises under the provisions of K. S. A. 60-1507.
On October 16, 1948, in the district court of Crawford county Roy Ramsey was, on his plea of guilty, convicted of the offense of murder in the first degree. He was sentenced to confinement in the state penitentiary for fife (K. S. A. 21-403).
On two previous occasions Ramsey sought his release by habeas corpus proceedings in the district court of Leavenworth county.
In Ramsey v. Hand, 183 Kan. 307, 327 P. 2d 1080 (July 7, 1958) it was contended that the district court of Crawford county had no jurisdiction to accept his plea of guilty because he had not been afforded a preliminary examination; that the information filed against him did not have endorsed thereon the names of witnesses for the state; that others also were charged in the information, but that he was the only one tried; that the journal entry of conviction did not recite applicable statutes, and that he was not served with a copy of the information 48 horns prior to trial, as provided by law. Each of these contentions was found to be without merit and re jected, and what was there said and held is by reference incorporated herein.
In Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225 (August 3,1959) (cert. den. 362 U. S. 970,4 L. ed. 2d 901, 80 S. Ct. 956, May 2, 1960), the primary question was whether the district court of Crawford county was without jurisdiction to accept Ramsey’s plea of guilty because of the alleged failure of the court to find that appointment of counsel over his objection would not have been to his advantage, as provided by G. S. 1947 Supp., 62-1304 — which, so far as here material, corresponds to K. S. A. 62-1304. In holding that the contention was without merit this court set out and discussed in detail the proceedings had in the district court. What was there said and held will not be repeated here, but by reference is incorporated herein.
K. S. A. 60-1507 became effective on January 1, 1964. As material for the purpose of the action now before us, it provides:
“(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 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.”
On January 14,1964, while still confined in the penitentiary under the sentence of life imprisonment imposed on October 16, 1948, Ramsey, pursuant to the above quoted section of 60-1507, filed in the district court of Crawford county a “Motion to Vacate Judgment and Sentence.” This motion alleged that (1) his plea of guilty was induced, made and entered as a direct result of misrepresentation as to the due and probable consequences thereof; (2) the district court was without competent jurisdiction to accept the plea of guilty or to proceed to a final judgment thereon; (3) the statement obtained from him was obtained by coercion through fraud, misrepresentations and threats; j(4) he was without counsel at each and eveiy stage of the proceedings against him; (5) he was never arraigned and neither did he have a preliminary examination, and (6) his rights under the 5th, 6th and 14th amendments to the Constitution of the United States were violated.
Although a proceeding under K. S. A. 60-1507 is an inquiiy as to the validity of a sentence imposed in a prior criminal prosecution, it is a part of the new code of civil procedure. Under Rule No. 121 (a) of this court it is denominated an independent civil action, to be separately docketed, and, insofar as applicable, rules of civil procedure govern. In a technical sense, therefore, one seeking relief under the statute is a “plaintiff.” So, although Ramsey was the “defendant” in the 1948 criminal prosecution and was the “petitioner” in the two habeas corpus proceedings, he will throughout the remainder of this opinion be referred to as plaintiff.
Pursuant to the filing of the above motion the district court of Crawford county appointed Karl K. Grotheer, a member of the Crawford county bar, to represent plaintiff. A hearing was held on June 30, 1964, at which plaintiff was present in person and by counsel.
In substance, plaintiff testified that when the murder charge was pending against him in 1948 his right to a preliminary examination was not explained to him and he was not afforded such examination; he was not asked whether he wanted counsel until after he had signed a statement; he was not furnished a copy of the information prior to arraignment and that at the time he could not read and write; the county attorney promised him that if he pleaded guilty he would not have to serve more than 7 years on a life sentence and that on the strength of such promise he entered a plea; he was threatened with “hanging” unless he pleaded guilty, and that if he pleaded guilty charges of burglary and robbery pending in Douglas county against his wife would be dropped.
Plaintiff called as a witness an attorney of Crawford county who was the assistant county attorney at the time of the 1948 murder prosecution. He testified that during conversations with plaintiff it had been explained to him that statistics showed that the average person sentenced to life imprisonment on a first degree murder charge served approximately 10 years and that possibly with good behavior such a prisoner could be expected to serve between 7 and 10 years. It was his oponion that plaintiff was influenced by these statements relating to the length of time he probably would have to serve and he rather doubted that plaintiff would have pleaded guilty had such statements not been made. He made it clear, however, that he and the other officers were merely relating “statistics” to plaintiff and that no promise of confinement for only 7 to 10 years was ever made.
The state offered no evidence, but requested that the court take judicial notice of the records of the 1948 criminal prosecution and of the two habeas corpus proceedings heretofore mentioned.
The matter was taken under advisement, and on July 24, 1964, the court rendered judgment denying plaintiffs motion for relief. The court made findings and conclusions, the substance of which was that plaintiff was not indigent at the time of his arrest and trial and was financially able to retain counsel; that counsel was in fact retained by him when he was apprehended in the state of Missouri and that no request was made by him for counsel or for additional time to retain counsel of his own choosing prior to signing the written waiver of counsel and entering his plea of guilty; that the court had jurisdiction to accept the plea of guilty as fully set forth in the second of the two habeas corpus proceedings above cited; that plaintiff waived his right to a preliminary examination and no available defenses were lost at such stage of the proceedings and none of his constitutional rights were denied; that plaintiff’s contention that his plea of guilty was obtained through fraud, misrepresentations and threats was wholly uncorroborated by any other testimony and that the burden of proving such allegations rested with plaintiff; that the statement by officials as to the probable length of time plaintiff or any other prisoner would be forced to serve on a life sentence was purely “statistical” and it had not been established that such statement was in fact false, that it was not made in bad faith for the purpose of inducing a plea of guilty and did not constitute a promise of leniency which could have induced a plea of guilty; and that plaintiffs contention that he was not arraigned and did not have a preliminary examination was fully answered by this court in the first of the two habeas corpus proceedings above cited.
Plaintiff has appealed from the judgment denying relief and relies upon a number of points — several of which may be said to overlap. In substance, it is contended that on the basis of the entire record there was substantial evidence to support findings by the trial court that plaintiff was indigent and was, in fact, denied counsel notwithstanding his written waiver thereof, that he did not have the time or opportunity to employ counsel, that his written waiver of counsel was obtained by duress and that it was not intelligently and understandingly made; that plaintiff was not effectively advised of his right to remain silent before being questioned by the officers and before making a statement of guilt; that such statement taken from plaintiff was improperly admitted, and that the trial judge failed to make proper inquiry as to whether it had been freely and understandingly made; that the trial court erred in not taking into consideration the entire record of the original proceedings and of the entire record in support of the motion to vacate, and in failing to find that plaintiff’s constitutional rights were denied to him.
Although variously stated, it will be seen that plaintiff’s contentions center around the fact that he was not represented by counsel and that his plea of guilty was entered as the result of coercion and misrepresentations on the part of the officers.
We believe that resort to the record in this case completely refutes plaintiff’s contentions and that none of them can be sustained.
Plaintiff, together with two others, was charged with tire killing in this case while attempting to perpetrate a burglary, robbery and larceny of a jewelry store. He was apprehended in the state of Missouri, and, although represented by employed counsel, unsuccessfully resisted extradition to Kansas. He and his wife had about $790 at the time. He was 33 years of age, understood the English language, and could read and write. His right to counsel was explained to him. He waived his preliminary examination and at no time did he request the opportunity to employ counsel, and he advised the court that he did not need an attorney, as set out at page 353 of this court’s opinion in the second of the two habeas corpus proceedings heretofore mentioned. At no time did he request that counsel be appointed for him. In open court he signed a written waiver of counsel. This waiver stated that he had been advised by the court as to the nature of the offense with which he was charged and of the penalty prescribed by law in the event of a conviction thereof or a plea of guilty thereto; that he had been advised as to his right to counsel but that he did not desire that counsel be appointed for him, and requested that the court accept his plea of guilty to the charge and said that such statement and waiver were made voluntarily and of his own free will and accord. Following his plea of guilty he was asked if he had any legal reason to offer why sentence should not be pronounced. He replied in the negative and said—
“I never shot the man. My intentions was to gO' in when nobody was there and nobody would get hurt that way.”
meaning, of course, that one of his companion codefendants — rather than he — actually fired the shot resulting in death.
If plaintiff was not indigent at the time he, of course, has no valid complaint as to lack of counsel. If in fact he was indigent he was given every opportunity to have counsel appointed for him— but instead he effectively waived such right. And neither may it be said his rights were prejudicially affected by not having counsel at his preliminary examination. The state offered no evidence, and plaintiff made no statements which were used against him — rather, he waived his prehminary examination. Under this record that was not a “crucial” step in the proceedings and it cannot be said that his rights were prejudicially affected because of the fact he was not represented by counsel at his prehminary examination. (State v. Daegele, 193 Kan. 314, 316, 393 P. 2d 978, cert. den. January 18, 1965, 379 U. S. 981, 13 L. Ed. 2d 571, 85 S. Ct. 686; White v. Crouse, 193 Kan. 674, 679, 396 P. 2d 333).
With respect to the conversations between plaintiff and the officers as to the probable length of time he would have to serve in the event of pleading guilty to the charge — the record completely refutes the contention that the statement by the officers was in any way fraudulent, false, or a misrepresentation. The officers merely told him what “statistics” showed as to the length of time other prisoners who had been sentenced to life imprisonment had served. We have no doubt but that on numerous occasions defendants in criminal prosecutions have “inquired” as to the length of time they would have to serve in the event of conviction — either by a jury or by a plea of guilty.
Under Rule No. 121(g) of this court the movant in an action under K. S. A. 60-1507 has the burden of establishing his grounds for relief by a preponderance of the evidence. The uncorroborated statements of the movant are insufficient to sustain the burden of proof. Considering what was said and held in the two habeas corpus proceedings, and the record in the instant action, we conclude that plaintiff s contentions are completely lacking in merit and that the district court was correct in denying relief.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
Defendant appeals from the trial court’s judgment and order based on the jury’s verdict of guilty of murder in the first degree with penalty affixed by the jury at life imprisonment under G. S. 1949, 21-403, from adverse rulings of the trial court during the selection of the jury, from failure of the court properly to instruct the jury, and from all adverse rulings including the order overruling the motion for new trial.
For many years defendant had been an employee of the Rock Island Railroad Company and was well known in Belleville, Kansas. On October 10, 1963, the fatal day in question, defendant did not work. He attended a safety meeting, which lasted some forty minutes, and tihen drove out to the east part of Belleville to do some practice shooting with his small caliber pistol. He intended to lock the pistol in the glove compartment of his car where he usually kept it. En route to his car he put the pistol in his pocket to keep from alarming a passing woman driver and forgot to take it out of his pocket. He drove to downtown Belle-ville. He went to Mac’s Recreation Parlor where he was going to engage in a pool game with a friend and when he entered the building he realized the pistol was still in his pocket. He played pool for some time and around 6:00 p. m. went to Henry’s Tavern, had a sandwich, and drank a glass of beer. He gave fifty cents to a young woman, and from the proceeds thereof she and her young companions played some additional records on the music machine, and then the group of young people left. Defendant left Henry’s Tavern and started to go home. As he went by Riley’s Recreation Parlor, he looked in and saw the proprietor, Bill Riley, which was unusual. According to Riley’s own testimony, this was the first time in three year's he had worked at night. Riley introduced defendant to Amos J. Huffman, the deceased. Defendant and the deceased talked a little bit and drank some beer. Defendant saw the young woman he had given the fifty cents to come in and defendant asked her what had become of his music. She made some remarks and then went to the back of the room and in a few minutes came back and laid thirty-five cents down on the counter. Defendant told her he did not want the money, he was just kidding, and she took the thirty-five cents and went to the back of the room. Her male companion later came up and threw down fifty cents on the counter and told defendant, “There’s your money.”
Defendant was annoyed and embarrassed and talked pretty rough to the youngsters. Deceased generally butted in to the conversation and told defendant he should not talk to the youngsters that way. Defendant told deceased it was none of his business and deceased told defendant he was making it his business and would give defendant the beating of his life. The argument became loud with cursing and other vulgar expressions until Riley, the manager, separated them. This argument was around 8:30 p. m.
Defendant went back and sat down at the side of the pool hall. Huffman went up and sat on the second stool towards the front of the bar. Defendant had told deceased he was a sick man and would not go outside to fight deceased. Deceased told at least two witnesses he was going to whip defendant before he went home. About 9:00 p. m. defendant told the witness, Richard Milner, he was going to shoot deceased if he did not leave him alone. He said he was going to aim at deceased’s thigh if he did not leave him alone. Defendant stated that because of his physical condition he could not pick up a ten pound bag of sugar. Riley told defendant he wouldn’t shoot anybody, which ended the conversation.
During a conversation with a witness, Ronald Leroy Jones, defendant produced the small pistol and made a statement to the effect that if deceased did not leave him alone and get off his back, he was going to “put some holes into him,” or something to that effect. The witness Jones testified Jack Milner was standing there by him at the time. Defendant stated his health was poor and he was in no condition to withstand a beating.
Another witness, William, King, arrived on the scene about 8:30 p. m. He stated he did not know there had been a real argument between the two men. Deceased asked him who the ‘loud mouth” was and King told him that was just Casey’s (defendant’s) way. King also told deceased he worked with defendant and defendant “like a lot of us” had a temper.
Defendant told King he was going to hit deceased over the head with a beer bottle and he (King) might have to “take it up from there.” Defendant complained to King that deceased had called him an “S. O. B.” Defendant said he would have to shoot deceased down to the size of a three year old, and he “pulled a revolver from his pocket” according to the witness.
The record further discloses that defendant was fifty-four years old, more than six feet tall, and weighed only 134 pounds. Huffman, the deceased, was about forty-six years of age, six feet tall, and weighed nearly 200 pounds. Defendant was in poor health and had had three abdominal operations.
About 10:00 p. m. defendant decided to leave to go home but changed his mind and decided to get his pool cue and go next door to Mac’s and play a game. His pool cue, which was jointed, had been made for him personally, and was in a cabinet that Mr. Riley had on the east side of the pool room. The cue was in a cardboard carton and as defendant took it out of the cabinet, deceased noticed him and got up from the stool where he had been sitting, got right in front of defendant and began to back him out of the pool hall. The evidence is uncontradicted that defendant kept telling deceased to leave him alone, that in his condition defendant was not able to fight, but deceased continued to back defendant out of the pool hall. When the two men were barely out of sight of the witnesses in the pool hall, gun shots were heard and deceased backed up to the door and started in the door and collapsed in the pool hall. Defendant had emptied his pistol but stood over deceased and struck him once with the case containing his pool cue. All patrons of the pool hall had gone out the back door except the witnesses, Robert Charles Woods and Riley. As Riley moved toward the door, he said, “My God Casey, what have you done?” Defendant answered, “I shot the son-of-a-bitch.”
The autopsy conducted by two qualified doctors showed five small caliber pistol bullets had entered deceased’s body and the cause of death was gun shot wounds through vital organs in the chest.
The. sheriff and his deputies arrested defendant at his trailer home a short time after the shooting. Defendant is a married man with three children.
Particular attention is called to the fact that defendant was represented, and we think well represented, at each and every step of the proceedings by a good, capable lawyer who has practiced law for many years. He presented defendant’s defense in an excellent and professional manner and did everything he could to see that defendant’s rights were fully protected.
At the beginning 183 prospective jurors were examined and it appeared for a time it was going to be impossible to get twelve competent jurors to try the cause. Defendant’s counsel suggested that if they could abandon the case at that time, he would like to ask for a change of venue and that the state reduce the charge so the defendant could be released on bond. He further stated that Republic county is a small county, that the number of available talesmen was limited and practically everyone, except those who were absent from the county at the time, had read the inflammatory articles in the newspapers. It seemed defendant’s counsel wanted the venue changed to Cloud county, his home county. The state objected to any ruling of the court until a formal motion for change of venue had been filed. According to the trial court, fifteen jurors had actually qualified by that time and the court saw no reason why it could not summon additional prospective jurors. The evidence was not sufficient to convince the trial court a change of venue was necessary.
When the number of jurors had reached twenty-six the state made an offer to relinquish ten of its challenges, leaving twelve challenges for the defense, and defendant moved to strike eight of the venire because their testimony showed they could not sit as fair and impartial jurors. While no formal motions were ever filed pertaining to the change of venue or selection of the jury, the trial court neverthless overruled them.
Obviously, the foregoing factual statement is quite lengthy, but we think in a prosecution for a capital offense the full circumstances of the case should be presented in the written opinion of this court.
The trial court gave forty-four instructions. Defendant objected to instruction No. 7 because deliberation and premeditation have no evidence to support them, but the record reflects contrarywise. Defendant objected to instruction No. 11 because of the inclusion of the charge of murder in the first degree but we think the record makes the charge of murder in the first degree necessary and proper where it is shown that defendant took a loaded pistol out of his pocket at a range of a few feet and shot five leaden bullets into the mid-section of deceased’s body. The instruction thereupon was also proper.
Instruction No. 13, also objected to by defendant, was proper under the record and needs no particular discussion. The same is true of instruction No. 18 setting out the various degrees of manslaughter. While it may not have been necessary that an instruction be given thereon, we are unable to say that the giving thereof was reversible error. In view of the above, we think it unnecessary to cover the objection to instruction No. 30 which included first and second degree murder as well as the various degrees of manslaughter. Instruction No. 32 on the punishment for conviction of first degree murder was proper since we have already stated the instruction on first degree murder was proper.
The reasons set forth by the trial court when it overruled defendant’s motion for requested instructions appear to have been sufficient and the ruling was, therefore, correct.
This court has long been committed to the rule that it is the exclusive function of the jury, not that of the court on appellate review, to weigh the evidence and pass upon the credibility of witnesses, and that were there is any substantial, competent evidence to support the verdict, it will not be disturbed on grounds of insufficiency of the evidence. (State v. Osburn, 171 Kan. 330, 332, 232 P. 2d 451, and cases cited therein; State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573; State v. Stubbs, 186 Kan. 266, 271, 349 P. 2d 936.)
We should perhaps pause here to point out to the prosecution that the citations of authority in its brief include only the volume and page number of our Kansas Reports. It is most helpful to this court, and has been the custom for many years, to include at least the citations from the Pacific Reporter system.
We have studiously examined the entire record in this case, but we are unable to say defendant has made it affirmatively appear that his substantial rights have been prejudically affected. The record reflects that he had a full, complete, fair, and impartial trial, that he had very able and astute counsel, and that the trial court saw that every complaint made by defendant’s counsel was carefully considered and ruled upon. We, therefore, hold the trial court did not err in any of the particulars complained of and its judgment should be affirmed.
Judgment affirmed.
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Opinion of the court delivered by
Fatzer, J.:
This case has been considered by the court and the judgment is affirmed. (State, ex rel., v. Storey, 144 Kan. 311, 58 P. 2d 1051.) The case involves a pressing public question, and the court is announcing its decision so the parties as well as the legislature may be advised. A formal opinion will be filed when prepared.
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The opinion of the court was delivered by
Fontron, J.:
In this consolidated appeal, the defendant, Marvin J. Igo, challenges the sentences imposed against him in two criminal cases. The facts may be stated briefly. In the first case, No. B-11,200, the defendant was charged in two counts; one being burglary and larceny, in violation of G. S. 1949, 21-524 (now K. S. A. 21-524), and the other, uttering a forged check, in violation of G. S. 1949, 21-609 (now K. S. A. 21-609). In the second case, No. B-11,201, Igo was charged with conveying into jail a disguised instrument, proper and useful to aid a prisoner in escape, with the intent to facilitate his own escape, in violation of G. S. 1949, 21-726 (nowK. S. A. 21-726).
On September 26, 1961, the defendant appeared in the district court of Sedgwick County, Kansas, before the Honorable E. E. Sattgast, with his counsel, Messrs. Lasswell and Malone, and entered pleas of guilty to all charges. Sentence was deferred to the following day at which time the State asked that the defendant be sentenced under the provisions of the Habitual Criminal Act and, in the defendant’s presence, read into the record three prior convictions, specifying the dates thereof, the courts in which the con victions were had and the offenses involved. At the same time, counsel for the State informed the court of other offenses alleged to have been committed by the defendant subsequent to the burglary and larceny charged in this suit. Thereupon, the trial court found that the defendant had been convicted of felony on three prior occasions and sentenced him under the provisions of the Habitual Criminal Act for a term of eighteen years on each charge. All sentences were ordered to run concurrently. This appeal was then perfected.
The defendant has raised the following questions in his brief: 1. Was the finding and plea in Case No. B-11,201 (conveying a disguised instrument into jail) in conformity with the charge? 2. Was appellant deprived of his rights under Section 62-1516, G. S. 1949?
The first question arises because of a discrepancy between the wording of the charge and the recitals in the journal entry. In the information the defendant was charged with conveying a “disguised instrument” into jail, while the journal entry sets out that he pleaded guilty to and was sentenced for conveying “weapons” into jail.
Examining the record, we find that at the defendant’s arraignment on this charge, the following colloquy took place:
“The Court: Let me take up the other . . . [charge] at the same time. And in case Number B-11201 you are charged with an attempted escape, is that it?
“Mr. Goodwin: Conveying instruments.
“The Court: Conveying instruments into jail. Are you familiar with that charge?
“Mr. Las swell: Just a moment.
“The Court: You are familiar with that, and your counsel has explained it to you?
“Mr. Igo: Yes.
“The Court: And you are represented by the same counsel that you are in the other case?
“Mr. Igo: Yes.
“The Court: And you waived arraignment in that case too? If not, do you do so now?
“Mr. Lasswell: Yes.
“The Court: And at this time do you care to enter plea?
“Mr. Igo: Guilty.
“The Court: And you plead guilty because you are guilty?
“Mr. Igo: Yes, sir.”
Sentence was deferred to the next day at which time the record shows that the following proceedings, among others, transpired:
“Mr. Goodwin: And then, of course, as the Court knows, in addition to the crime of burglary and forgery and uttering or burglary and uttering to which the defendant pled guilty yesterday, he also pled guilty to the offense of attempt to carry into the jail instruments to use in escape, and I would like to advise the Court that this consisted of saw blades which were sewn into the soles of his shoes and discovered by the Marshal.
“The Court: And on your plea of guilty to transporting — or—instruments instruments into the jail for the purpose of jail bréale in Case Number B-11201 it will be the judgment of the Court that you be sentenced to the State Penitentiary at Lansing, Kansas (P 10 Tr) for a period of not less than eighteen years. I’ll permit the sentences to run concurrently.” (Emphasis supplied.)
The foregoing portions of the record make it perfectly clear that the defendant knew exactly what the charge was and that, in fact, he pleaded guilty to conveying into jail an instrument, i. e., a saw blade, secreted in the sole of his shoe. It is unnecessary to quibble over whether, as contended by the State, a saw blade falls within the category of a weapon. The most that need be said to dispose of the defendant’s first question is that he pleaded guilty to, and was sentenced for, the very crime charged in the information, and that the journal entry was in error. This would not render the sentence void. (Browning v. Hand, 184 Kan. 365, 366, 336 P. 2d 409.) Where such an error occurs, it is the court’s duty to correct the journal entry so that it speaks the truth. (Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165; Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225.) The power of a trial court to correct a record of its judgment, so that it will mirror the truth, is well discussed and documented in Tafarella v. Hand, 185 Kan. 613, 617, 347 P. 2d 356, to which attention is invited.
Turning to the second question, the defendant complains of certain remarks made by the deputy county attorney, Mr. Goodwin, immediately before sentence was pronounced. The challenged remarks consisted of a recital of recent offenses allegedly committed by the defendant, and his accomplice, in the states of Colorado, Utah, California, Arizona and Missouri. The prosecutor’s information was obtained from statements made by the defendant himself, and it was not contended that the offenses had resulted in convictions.
As we understand his argument, the defendant contends he was deprived of his constitutional rights under the Fifth Amendment and G. S. 1949, 62-1516 (now K. S. A. 62-1516) by virtue of Mr. Goodwin’s disclosures. We fail to see that the Fifth Amendment has any application to the facts of this case. The defendant was not compelled to be a witness against himself. There is nothing in the record to indicate that any pretrial statements given by the defendant were obtained from him through coercion or improper inducement of any sort. The defendant made no such claim at the time he objected to the prosecutor’s remarks, nor does he make such a contention here. He was not compelled, or even asked, to verify the statements made by the deputy county attorney.
Nor do we understand the basis for the defendant’s argument that his rights under 62-1516 were prejudiced. This statute provides what the record of conviction shall contain. It is true that the statute does specify what the record shall include, should the sentence be increased because of previous convictions, and that it also provides the defendant shall not be required to furnish evidence of previous convictions. However, the recent offenses mentioned by Mr. Goodwin were not claimed to have resulted in convictions. The provisions of the Habitual Criminal Act were invoked because of convictions based on earlier criminal offenses which are set forth in the record with particularity.
We believe that Mr. Goodwin’s oral statements relating to other offenses cannot be said to have resulted in prejudice to the defendant. The trial judge expressly stated, in pronouncing sentence, that he would “not take into consideration the various offenses orally stated by the county attorney’s office.” His fairness in this regard is amply demonstrated by the concurrent sentences of eighteen years, in spite of the State’s recommendation of twenty years, and despite the further fact that the defendant had previously been convicted of felony not only two, but three times.
The prior convictions, on which the court relied in sentencing defendant as an habitual criminal, occurred, respectively, in the district court of Sedgwick County, Kansas, in 1950; in the district court of the United States for the district of Oklahoma in 1952; and in the district court of Wilson County, Kansas, in 1956. While the record does not show that authenticated records of the prior convictions were introduced into evidence, it is clear that Mr. Goodwin read them into the record'in defendant’s presence, without objection.
It is our opinion that the defendant was properly subjected to the increased penalty. Not only did he admit having served five years on the Wilson county sentence, which alone would establish that conviction (State v. Ralph, 194 Kan. 356, 399 P. 2d 548) but he did not object to or deny Goodwin’s recitation of the other two convictions. Furthermore, at the allocution, after being told that the court would invoke the Habitual Criminal Act, the defendant replied “No Sir,” when he was asked if he knew any reason why sentence should not be pronounced.
A substantially identical situation was presented in Reffitt v. Edmondson, 177 Kan. 83, 276 P. 2d 341. In that case, the county attorney had informed the court he was told by the defendant that he had been in the Colorado penitentiary on a felony charge. In disposing of the contention that the requirements of G. S. 1949, 21-107a (now K. S. A. 21-107a) had not been met, this court said:
“. . . Petitioner argues the statement made by the county attorney to the trial court was not competent evidence under the provisions of the statute. This argument is not good in view of the fact that the statement was made in the presence of the defendant and not disputed by him.” (p. 85.)
No prejudicial error having been shown, the judgment of the lower court is affirmed but remanded with directions that the journal entry be corrected by an order nunc pro tunc, pursuant to the views expressed in this opinion.
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The opinion of the court was delivered by
Parker, C. J.:
This appeal challenges the validity of an order which reduced the amount of monthly payments decreed under a divorce and alimony judgment.
The procedural facts necessary to present the limited issue on appeal can be briefly stated.
On January 2, 1959, the district court of Sedgwick County, division No. 4, granted a divorce to Emma Jane Henderson and entered an alimony judgment in her favor against Ralph Lee Henderson in the sum of $15,000.00, payable at the rate of $125.00 per month, commencing January 2, 1959.
On June 20, 1959, Ralph Lee Henderson filed a motion for an order modifying the rate of payment of the alimony judgment. On June 29, 1959, the district court of Sedgwick County, division No. 3, entered an order granting the motion and reduced the rate of alimony payments from $125.00 per month to $50.00 per month, commencing July 2,1959.
The terms of the Sedgwick County district court commence on the third Monday in January, the first Monday in April and the third Monday in September of each year.
On November 27, 1963, Emma Jane Henderson filed a motion to vacate and set aside the order reducing the rate of alimony payments. Pertinent allegations of the motion read:
“In support of this motion plaintiif shows to the Court that said order of this Court entered on the 29th day of June, 1959, so reducing said alimony payments is in fact a void judgment for the reason that said Court did not have the jurisdiction nor authority to reduce said alimony payments.”
Later, and on December 23, 1963, the district court entered an order overruling the foregoing motion. The material portions of such order follow:
“The Court, upon hearing statements of counsel, examining the files herein, statements of the defendant, and being duly advised in the premises finds that this Court’s order of June 29, 1959, wherein the alimony payments which the defendant was ordered to pay to the plaintiff were reduced from the sum of $125.00 per month to the sum of $50.00 per month was not a void order and therefore plaintiff’s motion to vacate void judgment should be overruled.”
Thereupon Emma Jane Henderson perfected this appeal from the trial court’s order and judgment.
For informative purposes it should be noted that Ralph Lee Henderson appeared in person in the court below but makes no appearance in this court in the instant appeal.
The appellant contends that an alimony judgment is a final determination and that the district court had no authority or jurisdiction to modify it on a motion filed during a subsequent term of court.
Without specifically discussing the question the appellant appears to protect herself from any possible application of the rule that “while a void judgment cannot be validated by consent, ratification, waiver or estoppel, one may by his conduct, bar or estop himself from attacking the judgment.” (49 C. J. S., Judgments, §452, p. 883.) In this connection she points out that, in addition to the reduction in the amount of the monthly payments, the judgment reducing the amount extended the monthly payments over a period in excess of ten years and subjected the entire amount of the alimony judgment paid, or to be paid, to her to the payment of Federal income taxes. We are assured by appellant that she received detriments rather than benefits from the judgment.
The trial court in its order on the motion to vacate the judgment gave as its sole reason for denying the motion that the “. . . order of June 29, 1959, wherein the alimony payments which the defendant was ordered to pay to the plaintiff were reduced from the sum of $125.00 per month to the sum of $50.00 per month was not a void order. . . .”
We now direct our attention to the question of whether or not the involved order was void and, for reasons to be presently stated, are forced to conclude that it was.
It has long been the established rule in this jurisdiction that a judgment for alimony is a final determination of the rights of the parties.
Marriage under the civil law is a contractual relationship and when the marriage is dissolved the court winds up its affairs as it would do on the dissolution of any other partnership or joint venture. However, the winding up of the affairs is regulated by law. In addition to the dissolution of the marriage, the court must provide for the custody and support of the minor children of the marriage and the settlement of property affairs.
Under the provisions of G. S. 1949, 60-1510, as amended in 1953 (Laws of 1953, Chapter 278, Section 1), in providing for the custody and support of the minor children of the marriage the court was given specific authority to retain jurisdiction to modify or change such order. Under the provisions of G. S. 1949, 60-1511, in authorizing the court to make orders for permanent alimony and division of property, no authority was granted to retain jurisdiction or change such orders.
The question, now under consideration, was fully discussed and determined in Conway v. Conway, 130 Kan. 848, 288 Pac. 566, where it is said and held:
“In framing the existing law, the legislature had distinctly in mind and expressly dealt with the subject of continuing jurisdiction. The regulation relating to settlement of property interests follows immediately after the regulation relating to custody and maintenance of children. Continuing jurisdiction to change any order relating to custody, support and education of children was granted. No such power was granted with respect to settlement of property interests, and the omission is tantamount to express denial. The judgment for alimony is a final determination of the rights of the parties in respect to alimony. A court cannot give itself power by its own order to make future revisions of the merits of the judgment, and, of course, the parties to the action cannot confer such jurisdiction by agreement.” (pp. 850, 851.)
See, also, Hoffman v. Hoffman, 156 Kan. 647, 135 P. 2d. 887, where, in considering a divorce decree, we compiled our earlier decisions, which need not be again cited here, and held:
“After the lapse of the term at which a final judgment was rendered the district court had no power to modify or vacate the judgment, except in accordance with the express provisions of the code of civil procedure.” (Syl. ¶ 9.)
And see Hinshaw v. Hinshaw, 166 Kan. 481, 203 P. 2d 201, where, in dealing with an attempt to modify a divorce decree after the term in which it was rendered, we held:
“Except in the case of a void judgment (G. S. 1935, 60-3009) or one falling within the provisions of G. S. 1935, 60-3007, the district court is powerless to modify or vacate a judgment after the expiration of the term in which it was rendered.” (Syl. f 1.)
And in the opinion said:
“. . . A court has power, upon sufficient cause, to modify or vacate its judgment at any time during the term, but it is equally well settled that after the term expires the court is powerless to modify or vacate a judgment that is not void. (J. B. Colt Co. v. Clark, 125 Kan. 722, 266 Pac. 41; Drury v. Drury, 143 Kan. 83, 53 P. 2d 792.) There are statutory exceptions provided for in G. S. 1935, 60-3007, but the judgment in question does not fall within any of them.” (p. 486.)
It should perhaps be stated that the judgment here involved does not fall within the statutory exceptions provided by G. S. 1949, 60-3007.
It must be understood that in reaching the conclusions herein announced we are considering the rules of civil procedure as they existed prior to January 1, 1964, the effective date of the new code.
Based on what has been heretofore stated and held we can only conclude the trial court was without power, authority or jurisdiction to make its order of June 29, 1959, reducing the rate of alimony payment per month. That order was void and the original judgment as rendered retains its vitality and is not affected by the court’s subsequent action.
For the purpose of clarifying the record the void order should be vacated and set aside.
The judgment from which the appeal was perfected must be and is reversed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal in a workmen’s compensation proceeding wherein the appellant (claimant) seeks review of a decision of the district court denying him an award for personal injury claimed to have arisen out of and in the course of his employment.
The points relied on by appellant are: (1) The trial court erred in concluding that the claimant had not sustained his burden of proof by credible evidence, and (2) The trial court erred in its finding that the claimant did not sustain personal injury by accident, which finding was based upon erroneous conclusion of law.
On appeal, pursuant to K. S. A. 44-556, the district court found:
“. . . that this is an appeal from the decisions, findings, rulings and award of compensation in favor of the Claimant made and entered by the Examiner of Workmen’s Compensation on February 11, 1964; that the Claimant has failed to sustain the burden of proving and establishing that he suffered a compensable accidental injury or that the time he lost was due to an occupational disease; that he should be and is denied compensation; and that the award of the Examiner for the Workmen’s Compensation Director of the State of Kansas in favor of the Claimant should be reversed, vacated, set aside and held for naught.”
Judgment was rendered in accord with the foregoing findings and this appeal followed.
The issues will be simplified by stating at the outset that in his brief and on oral argument appellant concedes that in this case he is not claiming compensation for an occupational disease but is claiming compensation for personal injury by accident, hence the propriety of the trial court’s ruling as it relates to an occupational disease is not involved on appellate review.
Thus it appears the controlling question presented by this appeal is whether the record discloses sufficient competent evidence to support the trial court’s finding, inherent in its journal entry of judgment, that appellant had not sustained personal injury by accident arising out of and in the course of his employment.
In any approach to the foregoing question it should be stated that the rule in this jurisdiction, so often repeated as to hardly require reference to our decisions, is that it is the function of a trial court to pass upon the facts in a workmen’s compensation case and that under K. S. A. 44-556 this court is limited on appellate review to “questions of law” which in final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial evidence. See, e. g., McDonald v. Rader, 177 Kan. 249, 251, 277 P. 2d 652; Kafka v. Edwards, 182 Kan. 568, 571, 322 P. 2d 785, and the numerous decisions there cited, also Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 356 P. 2d 804. And it should be added that under all our decisions the question of whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and when determined by the district court will not be disturbed by this court, where there is substantial evidence to sustain it. (See Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370, and Kafka v. Edwards, supra.
Moreover, in the face of the record presented, it should be stated, that despite some specious argument of appellant to the contrary we are convinced the duties and obligations of this court in determining the question now under consideration are those described and set forth in Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259 (repeated in Allen v. Goodyear Tire & Rubber Co., supra, and Cross v. Wichita Compressed Steel Co., p. 346, supra), where it is said:
“Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmen’s compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact, (citing cases.)” (pp. 259, 260.)
The tangible facts essential to a proper understanding of the events, conditions and circumstances giving rise to appellant’s initiation of the involved claim can be briefly stated.
The record discloses that on June 5, 1963, the appellant, a painter and interior decorator, awakened on the morning of that day wiih a headache; that sometime during the day, while at work on his usual job, he asked his fellow workmen for an aspirin for his headache. Later in the day he had a severe headache attack which caused him to stop work and resulted in his being taken to the hospital. He was released from the hospital in two days and went back to work on June 25,1963, at his usual vocation.
By way of deposition Dr. E. A. McClintock, who the parties stipulated was a fully qualified practicing physician, testified on direct examination as follows:
“. . . that he examined Kenneth R. Mannell on November 26, 1963, at which time he gave a general physical examination complete with a neurological examination. Based upon the history which he took from Mr. Mannell and the examination which he made of him, it is his opinion that the claimant suffered from a disease and the job and work had nothing to do with it.
“He testified by way of explanation that the claimant has periodic hypertension and had such at the time he went into the hospital with an episode of hypertensive encephalopathy, meaning that he has high blood pressure. It produces headaches, and that is the disease that he suffers from. The condition existed prior to his going to work and was not precipitated by the work.
“A. My opinion is that the individual suffered from a disease, and the job and the work has nothing to do with it.
“Q. You say the individual suffers from a disease. Can you explain that in more detail?
“A. This individual has periodic hypertension, and has had such that at a time he went into the hospital with an episode of hypertensive encephalopathy, meaning that he has high blood pressure. It produces headaches, and that is the disease that he suffers from.
“Q. All right, sir, can that disease that causes this condition be precipitated, or aggravated, or made worse by activities such as Mr. Mannell participated in on or about June 5, 1963?
“A. Well, Mr. Mannell had the headache before he went to work that morning; therefore, the condition existed prior to his going to work, and it was not precipitated by the work.”
On cross-examination Dr. McClintock further testified:
“Q: Doctor, let’s assume that he did not have this type headache when he went to work on this morning, but this headache struck him suddenly as he came down off a ladder; would you have an opinion in that case as to whether the exertion would increase his blood pressure, and precipitate an episode of June 5?
“A. It would not.
“Q. (By Mr. McCullough) It would have nothing to do with it?
“A. No.
“Q. . . . My question is, would your opinion be changed as to whether or not the exertion of climbing off the ladder may not have influenced the onset of this headache?
“A. No.
“Q. You think it had nothing to do with it?
“A. Correct. It had nothing to do with it.”
Having reviewed the entire record in the light of the well-established rules, to which we have previously referred, we have no difficulty whatsoever in concluding that the heretofore quoted testimony of Dr. McClintock is more than sufficient to require this court to conclude as a question of law that the trial court’s factual finding appellant did not sustain personal injury by accident arising out of and in the course of his employment in the episode of June 5, 1963, is fully sustained by substantial competent evidence. That, under the decisions to which we have heretofore referred, means such finding cannot be disturbed and compels an affirmance of the judgment. This, we may add, must be our conclusion under the established law of this jurisdiction even though, as appellant contends and as we franHy concede, there is evidence of record which, if the trial court had seen fit to give it credence, would have supported a contrary finding.
Moreover, we find nothing in the decisions cited by appellant’s astute and diligent counsel which warrant a contrary conclusion under the confronting facts and circumstances.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
The original opinion in this case (Yeates v. Harms, 193 Kan. 320, 393 P. 2d 982) affirmed the judgment and orders of the trial court sustaining the defendant hospital’s demurrer to plaintiff’s evidence, overruling plaintiff’s motion to set aside its ruling on the above demurrer, granting judgment to defendants, and overruling plaintiff’s motion for new trial.
In his motion plaintiff complains that this court in its original opinion did not meet the issue contained in specifications of error No. 3 and No. 4 reading as follows:
“3. The Court erred in permitting the defendant to cross examine Doctor Jack Weaver regarding the practice of specific ophthalmologists in cities other than Wichita without making any showing that such communities were similar to the Wichita community or that the practice of such specific individual ophthalmologists conformed to the standard, approved practice in the community in which they practiced.
“4. The Court erred in permitting the defendant to testify regarding the practice and procedure of cataract operations by specific individuals in communities other than the Wichita, Kansas, community without any showing that such communities were similar to the Wichita community or that such practices were the standard, approved practices in such communities.”
Plaintiff did not press the foregoing in his oral argument on rehearing before this court, but he did stress other points involving this courts consideration of the competency of certain evidence admitted by the trial court pertaining to the hospital, particularly a hypothetical question asked of Doctor Jack Weaver and his answers thereto, which we hereafter quote in pertinent parts along with objections of counsel:
“Q. I want you to assume with me these facts, doctor: That on June 13, a physician in this community performed cataract surgery on an eye of a patient in St. Francis Hospital; that approximately 24 hours later, at least the early morning between 8 and 9 o’clock of June 14th, this physician came into the hospital and examined the patient’s eye and informed the patient that he would be out of town the next morning and therefore would not see him until the following afternoon of the 15th. That a few hours, around 11 or 12 o’clock after the doctor was in on June 14th, the patient got a severe pain in the eye which had the cataract removed from it on the 13th; that he called the nurse in from the hospital, the patient did, and requested that they get in touch with the doctor that had performed the surgery, and that the nurse then informed him they could not get in touch with the doctor and and he requested that some other doctor be called in, or an interne be called up to see him and she informed him, the nurse, he was informed by the nurse in the hospital, that they could not call in another doctor without the consent and instructions and permission of the doctor who had performed the surgery, and that this man lay in the hospital from — let’s see — noon on June 14th until sometime between 1 and 2 o’clock of June 15th in the afternoon and he had had severe pain in the eye that had been operated on. That when the doctor that performed the surgery came in to see him on that day at sometime between 1 and 2 o’clock, he took the bandage off of the eye and saw pus in the eye and stated that there was infection in the eye and that it could only have happened in surgery. Assuming those facts to be true, do you have an opinion as to whether or not the physician’s failure to have a stand-in or call-in doctor to be contacted under these circumstances, departed from the standard approved medical practice in the treatment of cataract surgery patients in this and similar communities?
“Q. Now assuming the same hypothesis, do you have an opinion as to whether or not, the hospital, or the nurse at the hospital’s refusal to call in a doctor or interne departed from the standard approved medical procedure used by hospitals in this community under these ciscumstances?
“Mr. Blaes: To which we object; no showing that the doctor is in a position to answer that question.
“The Court: I am going to permit him to answer ‘yes’ or ‘no’. Do you have an opinion?
“A. Yes.
“Q. Well then doctor, assuming this same hypothesis, and that no interne was called, or house doctor from the hospital, would that in any way depart from the standard which I have just asked you about?”
Counsel further objected and a colloquy occurred at this time between counsel and the trial court, and the court, in admitting the testimony, limited Doctor Weaver s answer to the last above-quoted question to his opinion. The doctor's answer was, “In my opinion, this would.”
At page 325 of our original opinion the testimony of William Farmer, practicing attorney in Wichita, was referred to as cumulative. However, a more searching examination of his testimony shows that during a conversation he had with Doctor Harms concerning the period in which infection in an eye would be discovered, Doctor Harms stated it was forty-eight hours because the period of incubation of bacteria is from forty-eight hours to five days; Harms had discovered the infection approximately forty-eight hours after the operation; Harms had stated the infection possibly may have been caused by any one of the three instruments which enter the eye in a normal cataract operation. As we stated in the original opinion, where a more detailed statement of the facts appears, all of the instruments used in this operation were the property of Harms. He had taken his instruments to the hospital the night before the operation in order for them to be sterilized. It was the duty of the hospital staff to place some of them in a solution and to sterilize the others in an autoclave.
Mr. Farmer further testified with, respect to a conversation he had with a student nurse at the hospital who had been in charge of the instruments at the time of plaintiff’s second operation. She stated she knew she was the one who handled the instruments on this occasion because, although she did not recall this particular operation, she did remember the patch plaintiff had over his left eye. She restated the general procedure followed by the hospital in sterilizing instruments.
As a result of a more meticulous examination of the above portions of the record, we conclude there is some substantial competent evidence showing negligence on the part of the hospital under our general rules regarding evidence when attacked by demurrer, which need not be reiterated here, whereby a question for the jury is presented. There being some substantial competent evidence from which a jury could find the hospital guilty of negligence which was a proximate cause of the plaintiff’s injuries, it follows the trial court erred in sustaining the hospital’s demurrer to the plaintiffs evidence. Where the facts, as here, are in dispute the existence of negligence on the part of the hospital, and whether such negligence, if any, was a proximate cause of the injury sustained by the plaintiff, are questions for the jury.
The foregoing rule on proximate cause has been variously stated in many of our cases (see 4 Hatcher’s Kansas Digest, rev. ed., Negligence, § 74, p. 293, and 1964 Cumulative Supplement, Negligence § 74, p. 76; 7A West’s Kansas Digest, Negligence, § 136 [25]; pp. 249-251, and 1965 Cumulative Pocket Part, Negligence, § 136 [25], pp. 36, 37) and see, also, Strohmyer v. Ventura, 178 Kan. 597, 290 P. 2d 1001.
We are convinced the result reached in our original opinion cannot stand and in furtherance of justice, plaintiff is entitled to a new trial as to the defendant hospital.
Judgment affirmed as to the defendant doctor and reversed with directions to grant a new trial as to the defendant hospital.
Parker, C. J., and Price, J., dissent in part, being of the opinion that the demurrer of the defendant hospital to plaintiff’s evidence was properly sustained.
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The opinion of the court was delivered by
Price, J.:
In this case the defendants were charged with the offense of robbery in the first degree (K. S. A. 21-527). Separate trials were had. Each was convicted as charged, and each has appealed. The appeals have been consolidated.
The questions presented are concerned with whether the prosecutions were barred by the statute of limitations, and with alleged misconduct of counsel for the state during the trial.
As to the first proposition the record shows the following:
On September 30, 1960 a complaint was filed in the magistrate court of Johnson county charging defendants with robbery in the first degree on September 8, 1960. The essence of the charge was that they had forcibly taken money (approximately $360.00) from one Kyser which belonged to Arthur Monteil.
On the same date the complaint was filed a warrant was issued and delivered to the sheriff.
Defendants were not arrested until August, 1963.
On October 23, 1963, both defendants, being represented by their own employed counsel (Mr. W. C. Jones), waived a preliminary examination and were bound over to the district court for trial.
An information was filed (case no. 4644) and on the opening day of the January 1964 term defendants waived arraignment and entered pleas of not guilty.
Upon the state’s motion, the information was amended whereby the owner of the money was changed from Arthur Monteil to that of “Louis and Arthur Monteil, Inc.”
Defendants moved to quash on the ground they had not had a prehminary examination on the charge in the information, as amended. The trial court ruled that they were entitled to a preliminary examination on the information, as amended. The state then, on March 16, 1964, filed a complaint directly with the clerk of the district court (case no. 4725) and a warrant was issued forthwith. Being required by the court to elect, the state elected to proceed upon the new complaint and warrant in case no. 4725, and the original charge (case no. 4644), which had come up through the magistrate court, was dismissed. The trial court then held a preliminary examination on the complaint and warrant, and defendants were bound over for trial. An information was filed containing the allegation that defendants “have been out of the jurisdiction of the State of Kansas since the commission of said offense until August 26, 1963, and August 8, 1963, respectively.”
At the preliminary examination before the trial court on the new complaint and warrant, and also throughout the trial, defendants contended that the prosecutions were barred by the statute of limitations.
The point calls for an examination of several pertinent statutes.
K. S. A. 62-501 provides that prosecutions for treason and murder may be commenced at any time after the commission of the offense.
K. S. A. 62-502 provides that a prosecution for an offense must be commenced within sixty days after its commission where the penalty cannot exceed a fine of ten dollars.
K. S. A. 62-503 reads: “In all other cases, prosecutions for an offense must be commenced within two years after its commission.”
K. S. A. 62-504 reads:
“If any person who has committed and offense is absent from the state, or so conceals himself that process cannot be served upon him, or conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.”
K. S. A. 62-505 reads:
“Where any indictment or information shall be quashed, set aside, or judgment reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense."
Defendants contend that the complaint which was filed directly in the trial court on March 16, 1964, the warrant issued thereon, and the information upon which they were tried in April, 1964, all being filed more than two years after September 8,1960 — the date of the offense — the prosecutions were barred under 62-503, and that the information did not sufficiently allege facts to bring the matter within the exception contained in 62-504. It further is contended the trial court erred in ruling that as a matter of law the prosecutions were not barred, and in refusing an instruction whereby the jury was to decide the point as a question of fact.
The contentions are without merit and cannot be sustained.
The offense was committed on September 8, 1960. A complaint was filed and a warrant was issued on September 30, 1960. The long delay between the issuance of the warrant and the arrest and trial of defendants was occasioned by the fact that in October, 1960, both were convicted of robbery charges in the state of Missouri and were confined in the Missouri penitentiary until released to Kansas authorities in August, 1963, on detainers from Johnson county. In State v. Woolworth, 148 Kan. 180, 81 P. 2d 43, (cert. den. 317 U. S. 671, 87 L. Ed. 539, 63 S. Ct. 80) it was held:
“A prosecution is deemed commenced so as to toll the statute of limitations when a complaint has been sworn to and a warrant issued in good faith. The fact that the warrant was not served on defendant where he secreted himself or was out of the state does not prevent the filing of the complaint and the issuing of the warrant from tolling the statute.” (Syl. 3)
“The pendency of a complaint, as well as the pendency of an indictment or information, meets the provisions of G. S. 1935, 62-505, so as to toll the statute of limitations.” (Syl. 4)
The amendment of the information in the manner heretofore related so as to correctly name the owner of the money taken in the robbery was proper (K. S. A. 62-808), and did not alter the situation. The fact that information was later dismissed also was of no consequence so far as the two-year statute is concerned (62-505 and State v. Cashman, 174 Kan. 272, 276, 277, Syl. 3, 4, 5, 255 P. 2d 660, in which the points under consideration are fully discussed). The original warrant having been issued within the two-year period — allegations in the information to toll the statute were unnecessary and may be regarded as surplusage (Woolworth case, above, Syl. 2, and State v. Watkins, 190 Kan. 446, 447, 375 P. 2d 634). The trial court was correct in ruling that as a matter of law the prosecutions were not barred, and the requested instruction was properly refused.
It is contended that in the closing argument in the trial of defendant Stewart the assistant county attorney was guilty of misconduct in that he made improper and prejudicial statements to the jury. The remarks were to the effect that “the prosecution would not have been carried on unless the state had felt the defendant was guilty — that the man who did it (the robber) was in the court room — that the state had carried the burden and as a result of its evidence the weight has shifted to the other side of the (counsel) table” — and so forth. In response to defendant’s objection the court commented to the effect that “it was argument, and is to be considered by the jury as such.”
We have examined the statements in question and, all things considered cannot say that they exceeded or went beyond the limitations of “fair argument.” Rules pertaining to such matters are set forth in State v. Majors, 182 Kan. 644, 323 P. 2d 917. It has not been established that defendant’s rights were in any way prejudicially affected and his contention is held to be without merit. (See generally, The State v. Hinkley, 81 Kan. 838) 850, 106 Pac. 1088.)
Evidence of guilt in these cases was overwhelming. We find nothing in the record approaching reversible error. Motions for a new trial were properly overruled. In each case the judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order and judgment correcting an erroneous sentence imposed in a criminal action.
The chronological facts required for a proper understanding of the single issue raised by this appeal will be related as briefly as the state of the record permits.
On March 18, 1960, Eddie D. Cox, represented by competent court-appointed counsel, was convicted by a jury of the crimes of assault with intent to kill (G. S. 1949, 21-431) and kidnapping in the first degree (G. S. 1959 Supp., 21-449). He was duly sentenced and subsequently appealed. This court in State v. Cox, 188 Kan. 500, 363 P. 2d 528, reversed and remanded the case with directions to grant a new trial.
Upon return of the case to the district court of Geary County an amended information was filed charging Cox with commission of the crimes for which he had been previously convicted.
On September 12,1961, after the court had reappointed his former counsel to represent him in the second trial, Cox was formally arraigned upon the amended information and, following some discussion between court and counsel, voluntarily entered a plea of guilty to the lesser crime of kidnapping in the second degree (G. S. 1949, 21-450), such crime being a lesser offense included in the offense charged in count two of the amended information. This plea was accepted by the state and entered by the trial court as Cox’s plea to count two. Cox then voluntarily entered a plea of guilty to the crime of assault with intent to kill as charged in count one.
Thereupon, based upon the aforesaid pleas, the trial court ordered, adjudged and decreed,
“. . . that the defendant be confined in the Kansas State Penitentiary at Lansing, Kansas, for the period of time of 25 years, or until otherwise discharged as provided by law, for the offense of kidnapping in the second degree as included in the offense charged in Count 2 of the amended information. This sentence is imposed under G. S., 21-450.
“. . . that the defendant be confined in the Kansas State Penitentiary at Lansing, Kansas, for a period of time from 1 to 10 years, or until otherwise discharged as provided by law, for the offense of assault with intent to kill. This sentence imposed under G. S. 1949, 21-431.
“. . . that said sentences shall he served concurrently.”
Approximately two years after he had been sentenced and confined in the penitentiary under the foregoing sentences, to be exact on August 9, 1963, Cox filed a motion for a nunc pro tunc order in the district court of Geary County wherein he alleged that the sentence of twenty-five years for kidnapping in the second degree was erroneous, in that G. S. 1949, 21-450, provides that the punishment for such offense shall not exceed thirty years and asked for an order correcting such sentence and for imposition of the sentence required by law.
On September 4, 1963, the trial court gave consideration to the foregoing motion and, after finding that his sentence was in effect an illegal sentence insofar as it pertained to the kidnapping sentence and should be set aside and corrected, ordered and directed that Cox be brought before it on March 4, 1964, so that his erroneous kidnapping sentence could be set aside and a legal sentence, as required by 21-450, supra, be imposed against him.
At. the hearing on March 4, 1964, the state, for the first time throughout the entire proceedings, sought to introduce evidence of prior convictions and asked the court to sentence Cox as an habitual criminal under G. S. 1949, 21-107a. The trial court refused to allow the state to introduce evidence for the purpose of augmenting the sentence under the provisions of 21-107a, supra. In making its ruling it stated:
“The Court is of the opinion and takes the position and makes the decision that this case is here for corrective purposes only and for that alone and it may do and can do and must do only that that it could have done and should have done on September 12, 1961; that it is not within the province of the Court nor would it be the consent of the Court to let the defendant withdraw his plea of guilty to one of the counts. He stands before the Court guilty on both counts. He would not let the defendant diminish his plea nor will we let the State nor the Court permit the State to enlarge. This case was closed, the defendant stood before the Court guilty. We cannot go back of that and open it and let other evidence and testimony come in even as to the Habitual Act. The Court committed an error on September 12, 1961, and it may correct that error and do nothing more and it must stay within tiróse bounds, within those limitations, and accordingly the objection of the defendant to the introduction of testimony and introduction of evidence pertaining to previous convictions is sustained, . .
The court then set aside the initial sentences and proceeded to impose a sentence of not to exceed ten years on the assault count (21-431, supra) and a sentence of not to exceed thirty years on the kidnapping count (21-450, supra), as required by the respective statutes, the sentences to run concurrently. In addition it directed that the time defendant had spent in jail and in the Kansas State Penitentiary, from January 6, 1960, to the date of its order, should be deducted from, and credited to, his sentence.
Thereupon the state perfected the instant appeal under a single specification of error charging that the trial court erred in refusing to allow it to introduce evidence of prior felony convictions of the appellee (Cox) pursuant to 21-107a, supra, so that it could request that appellee be sentenced as an habitual criminal.
From the foregoing factual statement it becomes obvious the sole appellate question here involved is whether the state has a right, for the first time, to insist upon the introduction of evidence for the purpose of the imposition of a sentence pursuant to the Habitual Criminal Act (G. S. 1949, 21-107a) when a defendant appears for resentencing more than two years after the original sentence was imposed.
We have no hesitancy in concluding that the all-decisive question just posed must be answered in the negative. Although such question is one of first impression in this state, and the decisions of the courts of other states are not of assistance because of differences in the language of the applicable statutes, we are convinced the provisions of 21-107a, supra, foreclose any other conclusion.
The Habitual Criminal Act anticipates but one proceeding at which all evidence will be introduced and but one sentence rendered. It is not anticipated that there will be a trial on the main issue of guilt and a sentence rendered and then a subsequent trial on the issue of previous convictions and another sentence rendered on that basis. Indicia of this is to be found in the Act itself, the pertinent portion of which reads:
“. . . Judgment in such cases shall not be given for the increased penalty, unless the court shall find, from the record>and other competent evidence, the fact of former convictions for felony committed by the prisoner, in or out of this state.”
Moreover, our criminal statutes provide that the defendant shall be sentenced immediately after a plea of guilty or a conviction. G. S. 1949, 62-1722, reads:
“In any criminal action in which defendant pleads guilty, or is found guilty by a jury, or by the court if the trial is to the court, if defendant is not then in custody of the sheriff, he shall be taken into custody at once; and unless he announces that he desires to file a motion for a new trial, he shall be sentenced either on that date or at a fixed time within ten days.”
If the state desires that prior convictions be considered for the purpose of increasing the sentence under 21-107a, supra, the facts to support such sentence must be presented by evidence before sentence is pronounced. The state cannot be permitted to take advantage of a void sentence and reach out — two years after the taking of evidence as to the propriety of the original sentence was closed — and bring in new evidence for the purpose of giving the defendant a larger sentence than that which could have originally been imposed.
The appellant contends that when a defendant has been lawfully convicted of a crime and receives a void sentence the result is the same as if he had never been sentenced at all. In this connection our attention is called to statements made by this court to the effect that where a sentence is void it is not a sentence or judgment and never was such. Cases cited are In re Howard, 72 Kan. 273, 83 Pac. 1032; In re Lester, 128 Kan. 784, 280 Pac. 758; Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837; and Johnson v. Hand, 189 Kan. 103, 367 P. 2d 70. The rule relied on was specifically announced in In re Lester, supra, and the reason therefore stated.
In the Lester case the petitioner argued that because the original sentence was void he should be discharged and that any attempt to correct the sentence would constitute a second jeopardy. In the opinion this court said:
“. . . Since the sentence is void, it is not subject to correction as it might have been if it were merely voidable or irregular; but being void, it is not a sentence or judgment and never was such. It is exactly the same as if no attempt had ever been made to pronounce a sentence on the verdict. The verdict is valid and the case stands ready for sentence and judgment upon the verdict.”
The purpose of the rule announced in Lester, and other cases of like import, was to avoid the claim of double jeopardy. None of the decisions cited and relied on by appellant purport to hold that the state may, for the first time, insist upon the imposition of a sentence pursuant to the Habitual Criminal Act when a defendant appears for resentencing more than two years after his original sentence was imposed — and we know of no decisions in this jurisdiction that do so.
Of a certainty, it cannot be said that the original sentence in the case at bar, although void, furnishes no purpose whatsoever. It does fix the time at which the corrected sentence begins to run. See, e. g., McCarty v. Hudspeth, 166 Kan. 476, 480, 201 P. 2d 658; and Lawton v. Hand, 183 Kan. 694, 698, 331 P. 2d 886. 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.
Appellant vigorously argues that the legal effect of appellee’s situation is no different from that of the appellant in State v. Tague, 188 Kan. 462, 363 P. 2d 454. We disagree and submit that the situation in Tague was quite different. In that case the state, at the hearing prior to imposition of the initial sentence, introduced evidence of prior convictions under the Habitual Criminal Act. Notwithstanding, the trial judge refused to sentence the defendant as an habitual criminal. We held that under such circumstances sentence under the Habitual Criminal Act was mandatory and that failure to impose it was reversible error. In the case at bar, as we have previously pointed out, there was no attempt whatsoever to introduce evidence as to prior convictions until two years after the conviction for which the appellant has now been resentenced.
Finally, having reviewed the record in the light of what has been heretofore stated and held, we have no difficulty whatsoever in concluding that in this jurisdiction (1) after the time for commitment to prison under a valid conviction has become fixed, whether the sentence imposed is valid or invalid, the state cannot introduce additional evidence for the purpose of increasing the sentence under which the defendant has been committed; and (2) if the sentence is invalid the authority of the trial court, when the defendant appears before it for correction of the sentence and for resentencing, is limited to a corrected sentence which must be based on the identical facts, conditions and circumstances existing at the time of the imposition of the original sentence.
We find nothing in the record or in claims advanced by the state which warrants or permits a reversal of the trial court’s order and judgment. Therefore it must be affirmed.
It is so ordered.
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The opinion of the court was delivered by
Hatcher, C.:
The appellee has filed a motion for a rehearing challenging that part of the original opinion dealing with the quality of evidence required to meet the “clear and convincing test” necessary in establishing an oral contract with a person since deceased.
We have considered the motion for rehearing and find no issues pertaining to the question which was not fully considered and determined in the original opinion. The motion for rehearing is therefore denied.
However, the serious argument of able counsel leads us to extend the opinion in one respect. The motion challenges that part of the original opinion which reads:
“Also in reviewing the sufficiency of such evidence on appeal a much different rale is applied than is applicable to the review of evidence in the ordinary civil action. If the trial court finds that such an oral contract was made this court will not only review the record for the purpose of determining if there is any substantial evidence to support the finding but will consider the evidence for the purpose of determining whether it is clear and convincing.” (In re Estate of Shirk, 194 Kan. 424, 427, 399 P. 2d 850.)
Appellee suggests that this is a new and questionable role for the appellate court in tire review of such proof and further states:
“Without overruling its many prior decisions on the subject the Court has arrogated to itself the task of reweighing the evidence when it has not seen and heard the witnesses and has before it only a summary of their testimony.
“Heretofore this Court held it was without jurisdiction to weigh evidence and determine the credibility of witnesses. . . .”
It was not the intention of this court to depart from the long established rule that it would not weigh evidence on appeal. We have not done so. In reviewing the record for the purpose of determining whether there is clear and convincing evidence to support the judgment this court does not weigh the evidence. It considers only the evidence of the successful party for the purpose of determining whether it is substantial and of that quality required to be clear and convincing.
The approach to the question has been somewhat confused by statements that it is the trial court that must be satisfied that the evidence is clear and convincing (Jones v. Davis, 165 Kan. 626, 197 P. 2d 932; Texas Co. v. Sloan, 175 Kan. 735, 267 P. 2d 919), and that it will be presumed that the trial court applied the proper test in considering the evidence and finding the facts (Klein v. Blackshere, 113 Kan. 539, 215 Pac. 315). The statements correctly state the law insofar as they go. It may be said that in every case the trier of facts must be satisfied with the evidence, there must be some evidence to support the findings, and on appeal it will be presumed that the findings are supported by evidence unless there is a showing to the contrary.
Perhaps the rule is more completely stated in those cases which hold that it will be presumed in the absence of a showing to the contrary that the trial court applied the proper test as to clear and convincing evidence. (Kull v. Pearl, 147 Kan. 329, 337, 76 P. 2d 790; In re Estate of Sheets, 175 Kan. 741, 267 P. 2d 962.) If a review of the record discloses no evidence of a clear and convincing quality there is a showing contrary to the presumption.
In the early case of Jackman v. Development Co., 106 Kan. 59, 187 Pac. 258, after approving the following definition of “clear and convincing” evidence:
“ ‘It is meant that witnesses shall be found to be credible — that the facts to which they testify are distinctly remembered — that details are narrated exactly and in due order — and that their statements are true. . . .” (p. 64.)
this court set forth its duty on appellate review when the quality of evidence to be “clear and convincing” is being considered. It was held:
“The evidence upon which the judgment in the present case rests is examined, and held to meet the test of ‘clear, distinct and satisfactory proof,’ and the findings being supported by competent and substantial testimony, it will be presumed that the trial court applied the proper test in weighing the facts.” (Syl. 2.)
It is clear from the Jackman case that the appellate court examines the record and must be satisfied that the findings of the trial court were supported by a quantum of competent and substantial testimony of the quality required by the standard of clear, convincing or satisfactory proof.
In the recent case of In re Estate of Dull, 184 Kan. 233, 336 P. 2d 435, this court after reviewing the testimony of the material witnesses stated:
“In view of the above and other testimony disclosed in the record, we are of the opinion that the evidence was sufficiently clear and convincing to support the judgment and findings of the trial court.” (p. 239.)
The only difference in the statement of the rule in the two cases is that in the Shirk case the court said it would consider the evidence, and in the Dull case it in effect said it had considered the evidence, to determine if it was sufficiently clear and convincing.
Other courts have arrived at the same conclusion although perhaps with the same difficulty.
In 5A C. J. S., Appeal & Error, §1656 (9), p. 519, the rule is thus stated:
“. . . A finding that evidence is sufficient to be clear and convincing should not be disturbed unless it may be said as a matter of law that no one could reasonably find the evidence to be clear and convincing.” (See, also, Paulsen v. Coombs, 123 Utah 49, 253 P. 2d 621.)
The Ohio Supreme Court has met the issue squarely, stating in Cross v. Ledford, 161 Ohio St. 469, 120 N. E. 2d 118:
“Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. See Ford v. Osborne, 45 Ohio St., 1, 12 N. E. 526, Cole v. McClure, 88 Ohio St., 1, 102 N. E. 264, and State v Rimenik, 115 Ohio St., 11, 152 N. E. 14.” (p. 477.)
Perhaps it should be suggested in conclusion that this court does not lay down a rule of law for the guidance of the trial courts without reserving the right to review and police their actions should they be charged with erroneous or arbitrary application or misapplication of the rule.
APPROVED BY THE COURT.
Schroeder, J., dissents.
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The opinion of the court was delivered by
Wertz, J.:
This was an action brought by the state against Alice Mitchell, also known as Alice Mitchell Clounch, hereinafter referred to as defendant, to abate a liquor nuisance under the provisions of K. S. A., chapter 41, articles 8 and 9.
It was stipulated defendant was the owner of the city property in question; that it was the homestead of the defendant and her husband; that the property was used for the illegal possession and sale of intoxicating liquor, and, as such, constituted a common nuisance; and that a permanent injunction might issue to enjoin the unlawful use of the property in the future.
Upon the issues joined and the stipulations of the parties, the trial court found the defendant guilty of illegal possession and sale of intoxicating liquor in violation of K. S. A. 41-901, and maintaining a common nuisance contrary to K. S. A. 41-805. The court then ordered that a permanent injunction issue against the defendant’s property and home thereon, and assessed the costs of prosecution against defendant as provided by 41-806. The trial court further found the property to be the homestead of the defendant and her husband and that the provisions of 41-806, insofar as applicable to a padlock order of the house, had no application to the homestead of defendant and her husband and refused to issue an order padlocking the home under the provisions of 41-806 in that it would violate article 15, section 9, of our state constitution.
At the outset it may be stated defendant’s husband was not made a party to this action.
It is the state’s sole contention that under the provisions of 41-806 the trial court erred in failing to issue a padlock order against the home and in holding that 41-806 violates the defendant’s homestead rights granted by article 15, section 9, of the Constitution of the State of Kansas, the pertinent part of which reads:
“A homestead to the extent of . . . one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all improvements on the same, shall he exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, . . . but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon:
The padlocking of a homestead for the violation of any law is not specifically mentioned or even implied in the exceptions above stated. Admittedly, padlocking of a homestead is not a forced sale, but this section is enlarged by the clause “and shall not be alienated without the joint consent of husband and wife.” The word “alienated” as used in our constitution means a parting with or surrendering of some interest in the homestead. (Vining v. Willis, 40 Kan. 609, 613, 20 Pac. 232.)
Nearly one hundred years ago, in Morris v. Ward, 5 Kan. 239, 244, Justice Valentine, in speaking for this court, stated:
“. . . It [the homestead] was not established for the benefit of the husband alone, but for the benefit of the family and of society — to protect the family from destitution, and society from the danger of her citizens becoming paupers.
“The other view of the homestead laws, and the one which we adopt, is that no incumbrance or hen or interest can ever attach to or affect the homestead, except the ones specifically mentioned in the constitution. . . . These are hens for taxes, for the purchase money, for improvements made on the homestead, and hens given by the ‘joint consent of the husband and wife.’ No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any vahdity; nothing that he alone can do or suffer to be done, can cast the slightest cloud upon the title to the homestead; it remains absolutely free from all hens and incumbrances except those mentioned in the constitution.”
In keeping with this decision, this court later held in Coughlin v. Coughlin, 26 Kan. 116, that a husband could not, without the consent of his wife, execute a lease of a homestead, and give possession thereof to a tenant, although the title to the premises was in his own name, when the lease interfered with the possession and enjoyment of the premises by the wife as a homestead.
The constitutional provision defines a homestead as a residence occupied by the family of the owner. Clearly, by the very nature of this provision, the possession of the homestead is an acquired interest. Therefore, the state’s act of padlocking the premises would not only deny the interest of both defendant and her husband but would also defeat the very purpose of the provision: to protect the family and society from the hardships which occur when a family loses its home. It cannot be said that the padlocking of a homestead is within a specified exception or is voluntarily permitted with the consent of both husband and wife.
The homestead provision of our constitution sets forth the exceptions and provides the method of waiving the homestead rights at tached to the residence. These exceptions are unqualified. They create no personal qualifications touching the moral character of the resident nor do they undertake to exclude the vicious, the criminal, or the immoral from the benefits so provided. The law provides for punishment of persons convicted of illegal acts, but the forfeiture of homestead rights guaranteed by our constitution is not a part of the punishment.
The parties have stipulated the property in question is the homestead of the defendant and her husband, and no useful purpose can be served by restating the law as set forth in our prior homestead decisions. It suffices to say that Kansas has zealously protected the family rights in homestead property by liberally construing the homestead provision in order to safeguard its humanitarian and soundly social and economic purposes; and nothing less than the free consent of the resident owner of the homestead, and joint consent of husband and wife where the relation exists, will suffice to alienate the homestead, except under the specified exceptions provided in the constitution. (In re Estate of Dittemore, 152 Kan. 574, 576, 106 P. 2d 1056; Hawkins v. Social Welfare Board, 148 Kan. 760, 763, 84 P. 2d 930.)
The test for determining whether a structure is a homestead is determined by its use or occupancy as a residence, and an incidental departure for business purposes does not deprive it of its homestead character under the homestead exemption law. (Anderson v. Shannon, 146 Kan. 704, 710, 73 P. 2d 5, 114 A. L. R. 200; Bebb v. Crowe, 39 Kan. 342, 346, 18 Pac. 223; Rush v. Gordon, 38 Kan. 535, 16 Pac. 700.)
The state urges we adopt the view taken by other jurisdictions relating to the homestead in cases involving liquor violations. We have read and considered these views and find they are distinguishable on the basis they were established either by statutory grant or by different constitutional provisions. This court has no power to engraft amendments to our state constitution (art. 14, §§ 1, 2), and upon the matter of homestead, not only is legislative aid dispensed with, but legislative interference is foreclosed, and no conditions may be imposed by statute upon the enjoyment of the homestead right. (Cross v. Benson, 68 Kan. 495, 502, 75 Pac. 558.) In Towle v. Towle, 81 Kan. 675, 680, 107 Pac. 228, this court, in analyzing the legislature’s power with regard to homesteads, stated:
“The only limitation it [the constitution] places upon the legislature is that the legislature shall enact no law restricting the homestead right guaranteed by the constitution. (Chambers v. Cox, 23 Kan. 393; Cross v. Benson, 68 Kan. 495 [75 Pac. 558].) As was said in the opinion in Sumner County v. Wellington, 66 Kan. 590, 593 [72 Pac. 216]: ‘Our constitution limits, rather than confers, power, and hence we look to it to see what it prohibits, instead of what it authorizes.’ (Citing cases.)”
(See, also, Schumacher v. Rausch, 190 Kan. 239, 244, 372 P. 2d 1005.)
The homestead provision specifically enumerates the only circumstances where a homestead claimant may be deprived of his status. Therefore, the trial court did not err in holding the padlocking provision of 41-806, insofar as it applies to a homestead, is in conflict with article 15, section 9, of the Constitution of the State of Kansas. The court’s ruling does no injustice in the instant case inasmuch as the legislature has provided adequate remedies for punishment of defendant in the event she violates the injunction order issued or again violates the Kansas liquor control act.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Luckert, J.:
Abel Salas raises a veiy narrow issue of whether K.S.A. 21-2512 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it allows postconviction DNA testing of evidence if a defendant is convicted of premeditated first-degree murder but does not allow such testing if the defendant is convicted of intentional second-degree murder. To establish the equal protection violation, Salas argues that the class of individuals who commit first-degree murder is indistinguishable from the class of individuals who commit intentional second-degree murder because, as he phrases his argument, the “two crimes involved here are substantially similar as to the necessary elements.” We reject this argument; comparing the elements as Salas invites us to do reveals the crimes are distinguishable.
The issue reaches this court after Salas filed a motion for DNA testing under K.S.A. 21-2512. The motion was filed approximately 5 years after a jury convicted Salas of intentional second-degree murder and criminal possession of a firearm related to the death of Tracie Simon, who was found lying in a pool of blood on the floor of a hotel room. On appeal, the Court of Appeals affirmed both the conviction of intentional second-degree murder, which had been submitted to the jury as a lesser included offense of premeditated first-degree murder, and the conviction of criminal possession of a firearm, which had been charged in the complaint. The Court of Appeals also affirmed Salas’ sentence of 255 month’s imprisonment. State v. Salas, No. 86,422, unpublished opinion filed May 3, 2002, rev. denied September 24, 2002.
In Salas’ motion, he requested DNA testing of several items of evidence collected from the scene of Simon’s murder, including gloves, a hat, burnt cigarettes, swabs from beer bottles, swabs from beer cans, and swabs from a smudge on a window. Salas alleged in his motion that the evidence had either not been subjected to DNA testing, or retesting with new DNA techniques would provide “a reasonable likelihood of more accurate and probative results.”
At the hearing on the motion, Salas recognized that K.S.A. 21-2512, the only statute allowing postconviction DNA testing, does not allow testing if a defendant has been convicted of intentional second-degree murder. In relevant part, K.S.A. 21-2512 provides:
“(a) Notwithstanding any other provision of law, a person in state custody, at any time after conviction for murder as defined by K.S.A. 21-3401, and amendments thereto, or for rape as defined by K.S.A. 21-3502, and amendments thereto, may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material . . . .”
Hence, under the statute, postconviction testing is allowed only if a defendant was convicted of premeditated first-degree murder under K.S.A. 21-3401(a), felony murder under K.S.A. 21-3401(b), or rape under K.S.A. 21-3502.
Despite there not being any statutoiy authorization for DNA testing in Salas’ case, he argued the coverage of the statute must be expanded to avoid an unconstitutional result; he argued K.S.A. 21-2512, as written, violates the Equal Protection Clause. To support his argument below, Salas drew the district court’s attention to State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004).
In Denney, this court concluded that aggravated criminal sodomy, which was not included in K.S.A. 21-2512 as a crime for which DNA testing could be conducted, was indistinguishable from rape under the facts in that case. The court reasoned that rape could consist of something less than voluntary consent to penetration of the female sex organ by the male sex organ, while aggravated criminal sodomy could consist of something less than voluntary consent to penetration of another female bodily orifice by the male sex organ. Hence, at least for purposes of determining if DNA testing would be allowed, under the facts of the case, the two crimes were so indistinguishable that K.S.A. 21-2512 violated equal protection. To remedy the violation, the Denney court extended tíre statute’s coverage to include testing for aggravated criminal sodomy.
The district court found Denney distinguishable from the present case and rejected Salas’ equal protection argument, concluding that there is much more of a “difference between first-degree murder and second-degree murder than [between] the two sex offenses that were involved in the Denney case.” The court further expressed concern that if DNA testing for second-degree murder is permitted under current law, a door would open to requests for DNA testing involving other offenses not specifically identified in K.S.A. 21-2512. “[W]e’re going to have to go to voluntary [manslaughter], then how about involuntary [manslaughter], and maybe we should get into the nonhomicide cases where the stakes are very high and the sentences are very long.” Ultimately, the court found no equal protection violation.
On appeal, Salas again concedes that K.S.A. 21-2512 does not provide him a right to DNA testing and focuses on an equal protection argument by comparing the similarity between premeditated first-degree murder and intentional second-degree murder.
As we consider this argument, our standard of review is unlimited as it is anytime an appellate court examines whether a statute creates an unconstitutional classification. Hall v. Dillon Companies, Inc., 286 Kan. 777, Syl. ¶ 10, 189 P.3d 508 (2008); see State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) Although our review is unlimited, it is based on a presumption that a statute is constitutional. Hence, courts must resolve doubts regarding a statute’s constitutionality in favor of its validity. In fact, “[t]his court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if this can be done within the apparent intent of the legislature in passing the statute.” State v. Martinez, 268 Kan. 21, Syl. ¶ 2, 988 P.2d 735 (1999); see State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006); State v. Van Hoet, 277 Kan. 815, 829, 89 P.3d 606 (2004).
When the constitutionality of a statute is challenged on the basis of an equal protection violation, the first step of analysis is to determine the nature of the legislative classifications and whether the classifications result in arguably indistinguishable classes of individuals being treated differently. Only if there is differing treatment of similarly situated individuals is the Equal Protection Clause implicated. See Hodges v. Johnson, 288 Kan. 56, 72, 199 P.3d 1251 (2009); Denney, 278 Kan. at 652; see also Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985) (guiding principle of equal protection analysis is that similarly situated individuals should be treated alike). After determining the nature of the legislative classifications, a court examines the rights which are affected by the classifications. The nature of the rights dictates the level of scrutiny to be applied — either strict scrutiny, intermediate scrutiny, or the deferential scrutiny of the rational basis test. The final step of the analysis requires determining whether the relationship between the classifications and the object desired to be obtained withstands the applicable level of scrutiny. State v. Limon, 280 Kan. 275, 283-84, 122 P.3d 22 (2005); see Denney, 278 Kan. at 651, 654 (applying rational basis test); see also District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 68-69, 174 L. Ed. 2d 38, 129 S. Ct. 2308 (2009) (considering due process attack on Alaska’s postconviction DNA testing statute; noting that “[a] criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man” and consequently a State “has more flexibility in deciding what procedures are needed in the context of postconviction relief’).
In regard to the first step of the analysis, the United States Supreme Court has held that an individual complaining of an equal protection violation has the burden to demonstrate that he or she is “similarly situated” to other individuals who are being treated differently. Because the complaining party has this burden and also because a court presumes a statute is constitutional, the parameters of a court’s consideration of whether individuals are similarly situated is set by the distinctions argued by the complaining party. See Heller v. Doe, 509 U.S. 312, 319-21, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993); Congregation Kol Ami v. Abington Township, 309 F.3d 120, 137 (3d Cir. 2002) (citing Cleburne, 473 U.S. at 447-501); Hodges, 228 Kan. at 72-73; Limon, 280 Kan. at 283-84.
Here, Salas has set narrow parameters, arguing “that second degree murder and first degree murder were substantially similar offenses.” Building his argument, he further limits the comparison by stating that the two crimes are “substantially similar” because
“the only difference between the two offenses is premeditation. For Murder in the First Degree, the State must prove premeditation. Both offenses require the intentional killing of another human being. Therefore, the two crimes involved here are substantially similar as to the necessary elements, and are arguably indistinguishable on that basis.”
Salas again advances Denney, 278 Kan. 643, for support of this argument.
As previously noted, in Denney the classifications at issue were distinguished by whether the individual was convicted of rape or aggravated criminal sodomy. In concluding the classifications were “arguably indistinguishable” we stated:
“In short, rape can consist of something less than voluntary consent to penetration of the female sex organ by the male sex organ, while aggravated criminal sodomy can consist of something less than voluntary consent to penetration of another female bodily orifice by the male sex organ. Here, Denney clearly committed the latter: penetrating his victims’ anuses with his male sex organ. Accordingly, we hold that Denney, convicted of aggravated criminal sodomy under such circumstances, is arguably indistinguishable from those people who are convicted of rape [using] the male sex organ.” 278 Kan. at 653-54.
Simply put, both crimes in Denney involved something less than voluntary consent to penetration of a female bodily orifice by the male sex organ. Hence, the required elements were arguably indistinguishable.
Salas argues that, in a similar fashion, premeditated first-degree murder and intentional second-degree murder are “substantially similar as to the necessary elements, and are arguably indistinguishable on that basis.” As the State notes, however, the identity of elements that existed in Denney does not exist in this case. Rather, the crimes of premeditated first-degree murder and intentional second-degree murder are distinguished by the premeditation element.
Recently, we stated: “Comparing premeditated first-degree murder and intentional second-degree murder leads to the conclusion these crimes are clearly not identical. . . . The difference between premeditated first-degree murder and intentional second-degree murder is that premeditated first-degree murder includes the element of premeditation. K.S.A. 21-3401(a); K.S.A. 21-3402(a).” (Emphasis added.) State v. Warledo, 286 Kan. 927, 951, 190 P.3d 937 (2008) (applying Kansas’ identical offense sentencing doctrine). Indeed, this court has characterized premeditation as “the defining element of premeditated first-degree murder in K.S.A. 21-3401(a).” State v. Cook, 286 Kan. 1098, 1101, 191 P.3d 294 (2008). In contrast, intentional second-degree murder has no requirement that the defendant think the matter over beforehand. See State v. Cosby, 285 Kan. 230, 239, 169 P.3d 1128 (2007) (in premeditated first-degree murder case, “[t]he prosecutor then repeated the correct definition of premeditation as ‘thinking the matter over beforehand’ ”); PIK Crim. 3d 56.04(b) (2004 Supp.) (“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act.”).
Hence, we reject Salas’ argument that premeditated first-degree murder and intentional second-degree murder are substantially similar as to the necessary elements and are arguably indistinguishable on that basis. Because Salas has made no other argument, he has failed to meet his burden of establishing that he is similarly situated to those who have a right to DNA testing under K.S.A. 21-2512, and his equal protection argument fails.
Affirmed.
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The opinion was delivered by
Beier, J.:
Defendant Wallace L. Dixon, III, brings this appeal challenging his convictions on two counts of felony murder and other offenses arising out of an apartment explosion in Emporia. We affirm.
Dixon challenges: (1) refusal to grant a mistrial because a witness altered his opinion on the stand; (2) refusal to grant a mistrial because a juror saw Dixon in shackles; (3) refusal to give instructions on certain lesser included offenses; (4) refusal to give a unanimity instruction regarding the underlying crime for the burglary charges; (5) adequacy of the felony-murder, burglary, and criminal damage to property elements instructions; (6) admission of evidence that Dixon’s mother attempted to obstruct investigation of the explosion; and (7) cumulative error.
Factual and Procedural Background
This appeal follows Dixon’s retrial after our decision in State v. Dixon, 279 Kan. 563, 112 P.3d 883 (2005) (Dixon I). Our opinion in Dixon’s first appeal recites much of the pertinent factual and procedural background, which we will not repeat here. It is enough to say that Dixon was involved in a series of events leading up to a July 29, 2001, explosion and fire at an Emporia apartment complex, which resulted in the deaths of Dana Hudson and her infant son, as well as injuries to other residents and those who attempted to assist at the scene.
On remand, the district judge initially denied a defense motion to change venue but granted it after jury questionnaires were returned. The case was moved from Lyon County to Saline County. The charges at issue in the second trial mirrored those in the first: two counts of first-degree murder, in violation of K.S.A. 21-3401; aggravated arson, in violation of K.S.A. 21-3719; six counts of aggravated battery, in violation of K.S.A. 21-3414(a)(2)(A) and (B); two counts of burglary, in violation of K.S.A. 21-3715; felony theft, in violation of K.S.A. 21-3701; criminal damage to property, in violation of K.S.A. 21-3720; aggravated assault, in violation of K.S.A. 21-3410; and criminal possession of a firearm, in violation of K.S.A. 21-4204.
The State notified the court and Dixon of its intent to pursue the alternative charge of felony murder based on aggravated arson, anticipating correctly that the evidence in the second trial would be largely identical to the evidence in the first. The following events and comparisons between the first and the second trials bear specific mention because of their particular importance to the issues here.
Expert Testimony
Ethan Griffin, one of Dixon’s accomplices, had testified during the first trial that he believed Dixon kicked the stove in Alicia Shaw’s apartment, which he saw lying on its side when he and Dixon left the apartment. In the second trial, Griffin was a hostile witness. He admitted that he had heard the stove fall and that he had testified before that Dixon had kicked or pushed the stove.
Dixon’s theory of the case was that agents of the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) pressured Griffin into fabricating this portion of his story because ATF believed a gas leak from the stove was the best explanation for the explosion at the apartment complex. Defense counsel maintained that the evidence, including bum patterns and expert testimony from ATF’s Peter Lobdell, would demonstrate that the stove was upright when the explosion occurred.
As he did in the first trial, Lobdell, a certified fire investigator with ATF, testified for the State concerning the cause of the explosion and fire. Dixon’s counsel objected to a portion of Lobdell’s testimony on the ground that it represented a change from his prior testimony and his original report.
In the first trial, Lobdell had observed that flexible tubing connecting the rigid natural gas supply pipe to the stove was intact but that the “supply pipe was manually manipulated to cause it to fail, to leak and emit gas into the apartment.” In his expert opinion, he said, the manipulation of the pipe was an intentional criminal incendiary act. On cross-examination, he suggested that, in light of bum patterns on the stove, it could not have been situated on its side during the explosion.
On retrial, Lobdell again explained that the flexible tubing was intact and that the supply pipe had been manipulated and cracked. On cross-examination, however, he suggested that the stove could have been either on its side or upright at the time of the blast; he had no way to be certain. Lobdell acknowledged that he had said during the first trial that he did not think the stove could have been on its side. His ultimate opinion — that the pipe had been manually manipulated, creating a gas leak, and that the explosion was caused by an “intentional incendiary act” — remained unchanged.
The State also offered the testimony of a second expert, Dr. Mario P. Gomez, a professor of mechanical engineering, whom the ATF had hired to work as a consultant with Lobdell. Gomez testified at both trials that his observations led him to believe the supply pipe was “voluntarily” cracked or broken and had leaked natural gas into the apartment. Because natural gas is lighter than air, Gomez testified, it pooled near the ceiling, and the explosion created a powerful blast downward from a point somewhere above the apartment’s refrigerator. Gomez opined at both trials that he believed the stove was on its side during the explosion. He also stated that he had learned since writing his report that the stove was found on its side, which was consistent with the damage he observed. He clarified, however, that the stove could have been either on its side or upright at the time of the explosion, that it made no difference whether it was standing, because “the same side was hit by the wave.”
Dixon’s counsel sought a mistrial after hearing Lobdell’s testimony, claiming that the prosecution failed to notify the defense of Lobdell’s change in his opinion. The State argued that there was no 180-degree change in the testimony, that the prosecution was unaware Lobdell had modified his opinion, and that the detail regarding the position of the stove was not significant. The district judge recessed to review case law, then questioned the prosecutor about whether the State had requested updated reports from its experts and questioned the defense about how the detail affected its strategy. The judge also reviewed a third expert’s report, which had been obtained but not admitted by defense counsel; this report suggested that the stove may not have been upright at the time of the explosion. Ultimately, the judge denied the request for mistrial, stating:
“In considering this motion for mistrial, I note that the testimony of [Lobdell] in tire first trial of the case fairly clearly evidenced his belief that the stove was upright at the time of the blast damage. His testimony here at this trial, in my view, indicated that that was still his belief, but he further expanded his opinion in this trial and went out on a limb to indicate that there may have been one other position for tire stove that would have allowed it to receive the same amount of damage during the explosion as he observed, thinking the stove was upright. That was an expansion of his opinion, but apparently it is not reflected in any report nor did he make that information known to the State at any time prior to his testimony so that the State could have passed that to defense counsel.”
The judge also noted that there had been no change in Gomez’ opinion, who believed that the stove was on its side, despite a diagram in his report showing the stove sitting upright. The district court also observed that State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 (1985), to which the defense had directed his attention, did not require mistrial if an expert changes his or her position. Only if “the defendant has relied upon it to the point where now the defense would have been seriously prejudiced, then no admonition from the Court or instructions from the trial judge is going to make any difference and a mistrial would be mandated.” The judge concluded that reports from other experts had put the defense on notice that there were questions about the position of the stove at the time of the blast. Furthermore, the defense had received a full opportunity to cross-examine, which established that there was “plenty of confusion as to where the stove was or was not”; there was no clear prejudice to defendant’s position in any significant respect; and, “[i]f anything; [the discrepancy] has given the defense yet another tool to point out that perhaps the testimony, certainly, of [Lobdell] should not be accepted.”
Shackles
During the retrial, it came to the district judge’s attention that one juror had seen or heard Dixon in leg shackles and had told at least three other jurors about it. Dixon requested a mistrial, citing Deck v. Missouri, 544 U.S. 622, 635, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005). The State asserted that Kansas law did not require a mistrial if the jury inadvertently viewed a defendant in leg restraints and that a curative instruction should be adequate to correct any problem.
The district judge questioned the juror directly, and the juror said he heard Dixon coming into the courtroom with shackles and told three other jurors. The judge asked the juror if the incident would “in any way affect the manner in which you have viewed this case” or “cause you to feel one way or another for or against [Dixon’s] guilt or innocence.” The juror replied, “No.” The judge did not follow up with the three other jurors before denying the motion for a mistrial. The judge asked the defense if a curative instruction was desired; when he did not receive a direct response, the following instruction was given:
“Members of the jury, late this morning it came to my attention that one or more of you may have had occasion to observe [Dixon] while coming or going from the courtroom and may have shared information regarding your observations [with] other jurors. I want to malee clear to you that the manner in which [Dixon] arrives in the courtroom is not a matter that has any bearing whatsoever on this proceeding. It makes no difference. You’re to draw no inferences from anything that you have seen or heard, and specifically I’m instructing you to disregard in these further proceedings any information with regard to the mode, mechanism of the transport or the appearance of [Dixon] here in anyway. Simply put, it’s not appropriate to consider those things.”
Defendant’s Mother
On the morning of July 29,2001, when Shaw learned of the blast and fire at her apartment, she. called Dixon and accused him of causing it. Shaw testified that when she called she was in her car with her sister, who had been Dixon’s girlfriend, and a friend, Jessica Todd Bickerstaff. The women were driving to Emporia after spending the previous night in Topeka. At some point, Shaw hung up on Dixon. A call then came in on Shaw’s sister’s cell phone from Dixon’s mother, Gwen Rios. Shaw answered the call. Shaw testified that, once Rios recognized that she was spealdng with Shaw, Rios asked her if something had happened at her apartment. Shaw told Rios that she knew Dixon had something to do with it and that she was going straight to the police when she arrived in Emporia. Rios pleaded with her, “ ’Oh, please don’t do that. Can we talk first? I can replace everything that you lost.’ ” Shaw testified that Rios “wanted to give her money not to tell [the police], to replace any furniture or anything that I had lost.” Shaw did not accept Rios’ offer.
Bickerstaff also testified about the call. Todd asserted that Dixon’s mother said she would replace Shaw’s lost belongings, that she would give Shaw “money for a new place and new toys for her kid and she wouldn’t have to worry about anything if she — if she didn’t say anything . . . about [Dixon’s involvement in the apartment] complex blowing up.”
Dixon’s counsel objected to this evidence; the district judge noted the objection but did not sustain it.
In Dixon’s later testimony, Dixon said that he had called his mother after Shaw accused him of being involved in the explosion and fire, that he told his mother that Shaw and her sister were making accusations, and that he hoped his mother could talk more calmly with them.
fury Instructions
Dixon requested instructions on second-degree murder and involuntary manslaughter as lesser included offenses of felony murder, suggesting that evidence of either aggravated arson or burglary as the underlying felony was weak or inconclusive. The State argued in response that Dixon need not be charged with or convicted of an underlying felony in order for the felony to support felony murder and that proof of burglary does not require commission of the offense intended when an unlawful entry is made. The district judge rejected the defense request for the lesser included instructions, noting that the evidence in support of the felonies was nearly identical in both trials and that Dixon had not been entitled to the instructions in the first trial.
Verdict
The jury found Dixon guilty of two counts of felony murder, based on the underlying felony of burglary, attempted burglary or flight from burglaiy; two counts of aggravated battery; two counts of burglary; theft of an undetermined value; felony criminal damage to property worth at least $500 but less than $25,000; and criminal possession of a firearm. The jury acquitted Dixon of aggravated arson, two counts of aggravated battery, and aggravated assault. The district judge dismissed the remaining counts after a defense motion at the close of the State’s case.
Mistrial for Change in Expert Testimony
A district judge may declare a mistrial if prejudicial conduct makes it impossible to proceed with a trial without injustice to the defendant. K.S.A. 22-3423(l)(c). Declaration of a mistrial is a matter entrusted to the district court’s discretion, and the judge’s choice will not be set aside without an abuse of that discretion. State v. Daniels, 278 Kan. 53, 66-67, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004); State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001). An appellate court’s inquiry should consider whether a limiting instruction was given, the degree of prejudice, and whether any evidence improperly admitted would affect the outcome of the trial. State v. Sanders, 263 Kan. 317, 324, 949 P.2d 1084 (1997).
As before the district judge, Dixon attempts on appeal to compare his situation to that in Lewis, 238 Kan. 94. He also directs our attention to State v. Campbell, 29 Kan. App. 2d 50, 23 P.3d 176 (2001).
In Lewis, two defendants were accused of forcing their way into the home of their former drug supplier, placing a knife to his throat, and demanding money. When none was forthcoming, the victim was beaten. The altercation resulted in a cut on the victim’s arm and violent separation from much of his hair. The victim reported the incident, and a search of one defendant’s car revealed a large knife, a small knife, and a hunk of unattached hair.
Before trial, the State informed the defendants that a KBI report showed the victim’s blood on two jackets taken from the defendants but not on the large knife. At trial, defendants’ theory was that they were both at the victim’s apartment; that one defendant got into an argument with the victim and the victim struck him; that, while fighting, the victim cut himself on broken glass; and that the victim called police with the stoiy of the break-in and knifing because he was spiteful and vengeful. Defendants repeatedly relied upon the absence of blood on the large knife, which, in their view, made the State’s theory of the crime impossible. Defendants did not know until the KBI expert testified for the State on direct examination that she had erred when she reported no blood from the victim on the large knife. The State had not disclosed this development, and the defense moved for a mistrial. The district judge denied the motion, instead striking the expert’s testimony and giving a limiting instruction to the jury.
On appeal, the Lewis defendants argued that the district judge erred in denying the mistrial, and this court agreed. Noting that a judge’s power to declare a mistrial must be exercised with great caution, we held that a mistrial is warranted if the damaging effect of prejudicial conduct cannot be removed by admonition and instruction. This court regarded the prosecutor’s failure to disclose to the defendants and the district judge that its expert would testify in a manner materially contrary to her written report as such was prejudicial conduct; it could not be effectively cured by striking the expert’s testimony or by giving a limiting instruction. Lewis, 238 Kan. at 97-99.
In Campbell, the defendant was tried in the death of her critically ill 2-year-old child, and one of the pivotal issues involved the child’s time of death. The defendant informed a police investigator that she checked on her daughter sometime after 4 a.m. and suctioned secretions from her daughter’s trachea tube. The defendant also said that she checked on her daughter at 6 a.m. and that she was alive at that time. By 7 a.m., she said, her daughter was not breathing and the trachea tube had been removed.
Given the defendant’s commitment to this sequence of events and its timing, the defense made specific pretrial discovery requests for any evidence indicating time of death. The prosecutor deliberately failed to disclose that the daughter’s pediatrician placed the time of death somewhere between 9:40 p.m. the previous evening and 3:50 a.m. on the date of death.
On appeal of the defendant’s convictions for, inter alia, second-degree murder, our Court of Appeals held that a prosecutor who has or knows of evidence vital to the case and who deliberately misleads defense counsel into believing that no such evidence exists is guilty of prosecutorial misconduct sufficiently serious to trigger a reversal of the defendant’s convictions. Campbell, 29 Kan. App. 2d at 61-62.
Contrary to Dixon’s argument, this case bears little similarity to Lewis and Campbell. First, there was no nefarious conduct by the prosecutor in this case, a lynchpin for the reversals in Lewis and Campbell. There is nothing in the record on appeal to dispute the State’s assertion that it was unaware before Dixon’s second trial of Lobdell’s modified opinion concerning the position of the stove at the time of the blast.
Moreover, unlike the situations in Lewis and Campbell, the discrepancy in the expert’s testimony in this case was relatively minor. The two versions of Lobdell’s testimony were not irreconcilable, as the district judge noted. The opinion drawn out at the second trial was merely an expanded — and somewhat weakened — version of the first opinion. At the first trial, Lobdell said that the stove was upright. In this trial, he said it could have either been upright or on its side. This situation is clearly distinguishable from those in Lewis, where the information was the opposite from that expected, and in Campbell, where the defense had been led to believe that information introduced by the State did not exist. Indeed, to the extent Lobdell’s modification injected uncertainty into his analysis, that uncertainty undercut the State, not the defense.
Dixon also fails to acknowledge that the nature of the discrepancy here could not reach the level of obvious prejudice present in Lewis and Campbell. Those cases involved testimony that was absolutely critical to the defense. Here, the State’s expert, Gomez, and the expert consulted by the defense in the case all opined the stove could have been on its side or upright. There was a great deal of inconsistency on this point, even without Lobdell’s change. The defense could not have been surprised by this view of the evidence. In addition, Lobdell and Gomez consistently agreed that the explosion was fueled by natural gas leaking from a fracture or break in the supply pipe. If the jury agreed with this, then it mattered little whether the stove was upright or on its side as a result of the second break-in. No participant other than Dixon was identified as touching the stove; each of the three other individuals involved in the crimes confirmed that they heard, saw, or learned that Dixon had “shoved,” “kicked,” “pushed,” or “pulled . . . out” the stove.
Given all of the above, we hold that the district judge did not abuse his discretion in denying Dixon’s motion for mistrial based on Lobdell’s testimony.
Mistrial for Jury Knowledge of Shackles
Dixon invokes federal and state precedent to support his argument that a mistrial was required because a juror viewed him in leg restraints. See Deck, 544 U.S. at 635; State v. Ninci, 262 Kan. 21, 53-54, 936 P.2d 1364 (1997).
Quoting Holbrook v. Flynn, 475 U.S. 560, 568, 570, 89 L. Ed. 2d 525, 106 S. Ct. 1340 (1986), the United States Supreme Court in Deck stated that “shackling is ‘inherently prejudicial.’ ” 544 U.S. at 635. Defendant Carman Deck had been convicted of first-degree murder, and related offenses, and had been sentenced to death. After Deck’s postconviction relief motion resulted in a remand for resentencing, Deck was restrained by leg irons, handcuffs, and a belly chain during the second penalty proceeding. The death penalty was again imposed; the Supreme Court of Missouri affirmed; and the United States Supreme Court granted certiorari.
The Supreme Court held that due process prohibits routine use of physical restraints visible to a jury during the guilt phase of criminal trial, 544 U.S. at 626-29; courts also may not routinely place defendants in visible restraints during the penalty phase of capital proceedings. 544 U.S. at 632-33. Deck’s shackling was not shown to be specifically justified by circumstances and thus offended due process. The Court stated that no showing of prejudice was required to make out a due process violation from routine use of visible shackles. 544 U.S. at 634-35.
“[W]here a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove ‘beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.’ [Citation omitted.]” 544 U.S. at 635.
This court has had several occasions to address shackling of criminal defendants in trial and similar issues.
In our most recent case, State v. Powell, 274 Kan. 618, Syl., 56 P.3d 189 (2002), this court upheld the decision of a district judge to permit defendant Richard Powell to wear a stun belt during the evidence phase of his capital murder trial. The use of the belt was not shown to have been a factor in Powell’s decision not to testify; and, while in custody pursuant to his conviction in a prior case for involuntary manslaughter, Powell had stabbed another inmate, kept a shank in his shampoo bottle, and been the last individual to leave the jail’s gymnasium before a shank was found there.
In State v. Davidson, 264 Kan. 44, Syl. ¶¶ 2-3, 954 P.2d 702 (1998), this court held that it was error for the district judge to tell the jury that the sheriff s purpose for using a leg brace such as that used on the defendant was to prevent escape. However, this court held the error harmless.
In Ninci, 262 Kan. at 53, this court noted the holdings of other courts that a defendant generally has a right to appear before a jury free of shackles or other restraints, because such restraints present an unacceptable risk of prejudicial effect. See Holbrook, 475 U.S. at 570; Kennedy v. Cardwell, 487 F.2d 101, 104-08 (6th Cir. 1973) (shackling, as last resort, not abuse of discretion in circumstances before court), cert. denied 416 U.S. 959 (1974); United States v. Samuel, 431 F.2d 610, 614-15 (4th Cir. 1970), cert. denied 401 U.S. 946 (1971). Defendant Michael D. Ninci argued that a leg brace he was compelled to wear compromised his presumption of innocence and denied him a fair trial. Observing first that Ninci must carry a burden to show prejudicial error, this court stated: Because the restraint was so unobtrusive and it was not clear the jury noticed it, it was not inherently prejudicial, and there was no abuse of discretion in allowing the brace to be worn. 262 Kan. at 53-54.
“Ninci presented no evidence that the jury knew he was wearing a leg brace, or that the jury detected his slight limp, or that the jury knew his bmp was caused by a leg brace, or that the jury knew the leg brace was on for restraint reasons instead of for medical reasons.” Ninci, 262 Kan. at 53-54.
In State v. Cahill, 252 Kan. 309, 314-16, 845 P.2d 624 (1993), this court held that a defendant’s right to fair trial was not violated when the district judge denied his motion to excuse the jury panel on the ground that, inter alia, some jurors may have seen him in shackles immediately before he was brought into the courtroom.
In State v. Alexander, 240 Kan. 273, 275-76, 729 P.2d 1126 (1986), defendant Donald Eugene Alexander cited Estelle v. Williams, 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691, reh. denied 426 U.S. 954 (1976), to support his argument that it was error to allow testimony about him residing in jail. In Estelle, a lower court had denied the defendant’s request for civilian clothes rather than jail garb to wear to court. The United States Supreme Court ruled that, consistent with the Fourteenth Amendment to the United States Constitution, the State could not compel an accused to wear identifiable prison clothes during jury trial; however, because the defendant did not timely object, there was no compulsion and no error. 425 U.S. at 512-13. This court noted in Alexander:
“Kansas has addressed the issue of a defendant wearing prison clothes during his jury trial and has ruled that a defendant’s appearance in prison clothes does not in and of itself constitute reversible error, that prejudice to the defendant must be shown. [Citations omitted.]
“Other jurisdictions have held where the defendant is seen in shackles, handcuffs, or prison clothes by the jury, such error was harmless error in light of die evidence presented of defendant’s guilt. [Citations omitted.]” 240 Kan. at 275.
In State v. Williams, 228 Kan. 723, Syl. ¶¶ 7-9, 621 P.2d 423 (1980), this court upheld a district judge’s carefully considered decision to shackle a defendant during trial because the defendant had broken a glass door and a window after trial commenced.
“Generally, ‘the rule is that freedom from handcuffs during the trial of a criminal case is an important component of a fair and impartial trial.’ State v. Yurk, 203 Kan. 629, 631, 456 P.2d 11 (1969). Freedom from shackles during trial is the norm and a defendant in a criminal case should not be tried while in handcuffs, leg irons, or other shackles except in unusual, compelling, and exceptional circumstances. Where shackles or physical restraints are employed, the record should clearly reflect the reason why restraints are ordered. Ordinarily, if the record does not show disruption of trial or other obvious reasons, the trial court should hold a hearing, preserve the evidence by means of the record, and state the reasons for ordering the restraint. See State v. Stewart, 276 N.W.2d 51 (Minn. 1979); People v. Duran, 16 Cal. 3d 282, 127 Cal. Rptr. 618, 545 P.2d 1322 (1976); and Annot., 90 A.L.R.3d 17, § 11. When exceptional circumstances are present and the trial judge has substantial reason to believe that the defendant, if not physically restrained, will harm himself or others in attendance at trial, or will be so disruptive as to prevent the trial from proceeding, the judge in his discretion may order the minimum restraints necessary. We emphasize that circumstances justifying the use of shackles, handcuffs or other physical restraints on the defendant during trial are extremely rare. Trial courts should order restraints only when it becomes apparent that other means will not be effective.” Williams, 228 Kan. at 730-31.
In Yurk, this court recognized that a defendant’s freedom from handcuffs during a criminal trial is an important component of fairness, yet defendant Franklin R. Yurk’s motion for mistrial, predicated on the handcuffs he wore in the hallway of the courthouse while being transported from the jail to the courtroom was properly overruled. In that case, it was not claimed that Yurk was forced to appear in handcuffs in the courtroom or before the jury, and there was no showing that any juror saw him in handcuffs during transport. Yurk, 203 Kan. at 631.
Even if the United States Supreme Court’s decision in Deck has recalibrated the test to be applied when we examine a due process challenge to courtroom shackling of a criminal defendant — demanding the State demonstrate lack of prejudice flowing from the practice rather than the defendant demonstrating its presence— we are not compelled to rule for Dixon on this issue.
First, as in Cahill and Yurk, the record demonstrates that Dixon was never forced to wear shackles in the courtroom. Rather, he evidently was restrained in the courthouse hallway. Shackling of a defendant while in transit through a public hallway is entirely different from shackling at the defense table during a jury trial. We think it highly unlikely that any juror in a double homicide case would be shocked or, for that matter, improperly influenced merely because the accused is transported securely. Any Deck recalibration of the prejudice burden or standard is therefore inapplicable.
Further, Dixon can demonstrate no prejudice here, certainly none sufficient to justify our reversal of the district judge’s denial of Dixon’s motion for mistrial for abuse of discretion. The record demonstrates that the juror questioned by the court may actually have seen nothing at all. Rather, the juror momentarily heard what he believed to be shackles. He then described what he had heard to three other jurors. The juror who heard the shackles denied that the experience would affect his impartial decision making. Although it would have been reassuring for the district judge to have questioned the other jurors, it was not absolutely necessary here. The judge’s specific curative admonishment to the entire juiy was an excellent alternative to ameliorate any ill effect from a relatively minor incident.
Lesser Included Offenses
Dixon next argues that the district court erred in failing to give his requested instructions on second-degree murder (a killing “committed unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life”) and involuntary manslaughter (unintentional killing committed recklessly) as lesser included offenses of felony murder.
When murder is committed during the commission of a felony, the ordinary rule requiring instructions on lesser included offenses does not apply. State v. Branning, 271 Kan. 877, 887, 26 P.3d 673 (2001). In a felony-murder case, a district judge is not required to instruct on lesser included offenses unless the evidence of the underlying felony is weak or inconclusive. 271 Kan. at 887. In other words, instructions on lesser included offenses are not appropriate in those cases in which the evidence of the underlying felony is strong. State v. Oliver, 280 Kan. 681, 703-06, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006).
We note as a preliminary matter that a similar claim of error was decided against Dixon in his first appeal. We concluded that Griffin’s testimony “provided substantial and conclusive proof of Dixon’s criminal damage to property. And it could reasonably be inferred from the evidence that Dixon entered the apartment with the felonious intent to criminally damage property. No lesser offense instructions were required.” Dixon I, 279 Kan. at 572; see also 279 Kan. at 604 (ruling evidence of intent to commit theft on second entry sufficient). But our previous decision is not dispositive on this issue now. Portions of Griffin’s testimony from Dixon’s first trial were used to refresh Griffin’s recollection or to impeach him in the second trial. Griffin was designated as hostile to the State during the second trial; although the evidence elicited from him was not substantially different from that elicited before, it was by no means identical. The defense is correct that the testimony of both Griffin and Jerry Hall, another of Dixon’s accomplices, was arguably less damning the second time around. We must therefore consider anew whether the evidence in Dixon’s second trial merited lesser included instructions on second-degree murder and involuntary manslaughter.
In this case, the felony-murder convictions were based on the underlying felony of the second burglary. This court has consistently held that a defendant need not be prosecuted for or convicted of an underlying felony in order to be convicted of felony murder. See K.S.A. 21-3401(b); State v. Herron, 286 Kan. 959, 189 P.3d 1173 (2008); Dixon I, 279 Kan. at 571; cf. State v. Engelhardt, 280 Kan. 113, 133, 119 P.3d 1148 (2005) (although accused not required to be charged with, prosecuted for, or convicted of underlying felony to be convicted of felony murder, jury must be instructed on underlying felony). Here, Dixon was convicted of the second burglary, which he challenges on other grounds detailed in subsequent sections of this opinion.
On this issue, he asserts that the evidence of the second burglary was weak or inconclusive because the State’s proof of his intention to commit any of the three alternative predicate felonies — aggravated arson, criminal damage to property, and theft — for the burglary based on the second time he entered Shaw’s apartment was inadequate. This court must determine whether substantial evidence supports each alternative means to commit that burglary, that is, whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 (1994). If so, the evidence of the underlying felony of burglary was not weak or inconclusive.
Although Dixon testified in his second trial and stated that he did not return to the apartment a second time, the weight of evidence — direct and circumstantial — stood against him.
Rodney Hayes, Griffin, and Hall testified that, after the first break-in during which they stole a television, a video-recorder, a lamp, and a jewelry box, Dixon returned to Shaw’s apartment with Griffin and entered it a second time. Griffin testified that on this second trip, Dixon threw a candle at a television, tore curtains off a window, “tore up” the living room, trashed the kitchen, and “kicked” or “pushed” the stove. Hayes testified that he knew Dixon and Griffin had gone back to the apartment, and, the next day as the group traveled home, Griffin told Hayes that Dixon had gone “crazy, grabbing everything he could get his hands on, throwing stuff around, breaking it,” that he “tried to throw something through the front window,” and that he had “grabbed” or “pulled” the stove and “a pipe started hissing, seeping gas.” Hall testified that he heard after the fact that Dixon and Griffin had gone back to the apartment and that Dixon had “pulled the stove out.”
Shaw testified that Dixon was angry with her sister for leaving him, that he was trying to find her and her sister the night of the crimes, that the women had lied about being in Emporia when they were actually in Topeka, that Dixon had called her and her sister 108 times during that night, that Dixon called on her cell phone from her apartment at 6 a.m., that she woke up later that morning to news of the explosion, and that she immediately suspected Dixon.
Bickerstaff, with whom Shaw and her sister had spent the night, corroborated Shaw’s testimony, saying she heard Dixon say, “I’m tired of playing games. I’m sick of playing games. Watch the news tomorrow. Everybody’s shit’s going up in flames.”
Ample evidence at the second trial also demonstrated that, after the first break-in, Dixon drove to a gas station and Griffin pumped $1.60 worth of gasoline into a bucket and put it inside Dixon’s Suburban. Dixon testified that he had no idea Griffin would put gas in the bucket and that, when he asked why it was in his truck, Hayes explained it would dissolve cocaine if the group was stopped by police. In contrast, Hayes, Griffin, and Hall testified that they obtained the gasoline at Dixon s direction and did not know its intended use. They complained about the smell of the gasoline and its sloshing out of the bucket, and that they could not smoke with it in the vehicle. Griffin testified that he heard Dixon say, “I’ll bum it up”; but ultimately he told the others to throw the gasoline out, which they did.
Terry Jones, Dixon’s cellmate, testified that he believed Dixon was arguing with his girlfriend and intended to burn a house. Other evidence established that Dixon had told several different stories to the police and that he tried to bribe two eventual jailhouse informants to testify to a fictional account of events.
Our comprehensive review of the evidence at Dixon’s second trial persuades us that the proof of each of the three alternative predicate felonies for the second burglary, which in turn underlay the felony-murder charges, was sufficient to eliminate the requirement for the lesser included instructions Dixon sought. Dixon’s intent upon the second entry to commit aggravated arson was evidenced by the purchase of gasoline and the comments about “burning up” the place and property “going up in flames,” even though he was ultimately acquitted on the aggravated arson count. His intent to commit criminal damage to property was supported by Griffin’s testimony and the substantial additional damage that occurred during the second trip to the apartment. His intent to commit theft, while less clear in relation to the second break-in, could, as we held in his first appeal, reasonably be inferred from the theft that occurred during the first burglary. Dixon I, 279 Kan. at 604.
“The nonexistence of direct evidence of defendant’s intent does not end the inquiry. Intent, a state of mind existing at the time the offense is committed, does not need to be and rarely can be directly proven. It may be established by acts and circumstances and inferences reasonably deducible from evidence of acts and circumstances.” 279 Kan. at 604 (citing State v. Wilkins, 269 Kan. 256, 264-68, 7 P.3d 252 [2000]).
The second jury, we note, did convict Dixon on the first burglary as well as the second. Dixon is not entitled to reversal on this lesser included instruction issue.
Unanimity Instruction
Dixon also asserts that he was entitled to a unanimity instruction on the predicate felony for the second burglary, which supported the felony-murder charges. As discussed with regard to the previous issue, the jury was allowed to consider Dixon’s intent to commit the alternative predicate felonies of aggravated arson, criminal damage to property, and theft.
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“ ‘In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all [jurors] must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ ” Timley, 255 Kan. at 289-90.
This is clearly an alternative means rather than a multiple acts case. Having already decided that the evidence of each of the alternative means of committing the second burglary was adequate, we conclude that Dixon’s unanimity instruction argument is without merit. See State v. Griffin, 279 Kan. 634, 662-63, 112 P.3d 862 (2005). We are not inclined to abandon the valid legal and practical distinctions between these types of cases. We also note that Dixon does not challenge the sufficiency of the evidence supporting the alternative predicate felonies for the first burglary, as he did regarding aggravated arson after his first trial.
Bursary Elements Instruction
Dixon next argues that the juiy was not properly instructed on the intent necessary to find him guilty of the second burglary and, thus, the felony murders it supported. Specifically, Dixon contends that the instructions did not tell the jury what malees criminal dam age to property, one of the alternative predicate felonies for the burglary, a felony rather than a misdemeanor.
Under the law governing this case, criminal damage to property was a felony only if the value of the damage was more than $500 but less than $25,000. See K.S.A. 21-3720 (Furse 1995). The burglary elements instruction did not include the dollar amounts for criminal damage to property, but the criminal damage to property elements instruction did include the correct amounts. The jury got no other definition of criminal damage to property and entered a special verdict, finding that Dixon caused at least $500 but less than $25,000 damage. The jury was not asked to and did not malee a particular finding on whether Dixon intended to do felony-level criminal damage to property upon each entry into Shaw’s apartment.
This court has often stated that jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case and the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Hunt, 257 Kan. 388, 392, 894 P.2d 178 (1995); see State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995). Errors that do not affirmatively prejudice the substantial rights of a complaining party do not require reversal if substantial justice has been done. State v. Holbrook, 261 Kan. 635, 636-37, 932 P.2d 958 (1997); State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994).
On pattern instructions, we have said:
" ‘ "The use of PIK instructions is not mandatory, but is strongly recommended. The pattern instructions have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” ’ [Citations omitted.]” Holbrook, 261 Kan. at 637.
Instructions Nos, 14 and 17, consistent with PIK Crim. 3d 56.02, set out the elements for felony murder, i.e., a killing “done while in the commission of, attempting to commit, or in flight from a burglary,” and stated the elements of burglary as:
“1. That [Dixon] knowingly entered or remained in a building which is a dwelling; “2. That [Dixon] did so without authority;
“3. That [Dixon] did so with the intent to commit a theft, and/or aggravated arson, a felony, and/or criminal damage to property, a felony, therein; and
“4. That this act occurred on or about tire 29th day of July, 2001 in Lyon County, Kansas.”
Instruction No. 24, in accord with PIK Crim. 3d 59.17, again set out the elements for a burglary, defining it exactly as it had been defined in Instructions Nos. 14 and 17 and again listing the three possible felonies Dixon could have intended to commit on entry. It also directed the jury to Instructions Nos. 18, 25, and 26 for the three alternative predicate felonies for the second burglary.
Instruction No. 26, in accord with PIK Crim. 3d 59.23 and PIK Crim. 3d 59.70, set out the elements of only felony criminal damage to property:
“1. That Eastgate Plaza, Inc., was tire owner of property described as Eastgate Plaza Apartments, 707 B; that [Shaw] had an interest as a renter in property located in the residence described as Apartment 707 B of Eastgate Plaza Apartments;
“2. That [Dixon] intentionally damaged, destroyed, or substantially impaired the use of the property owned by [Shaw] and/or Eastgate Plaza, Inc., by means other than by fire or explosion;
“3. That [Dixon] did so without the consent of [Shaw] and Eastgate Plaza, Inc.; “4. That the property was damaged to the extent of at least $500 but less tiran $25,000; and
“5. That this act occurred on or about tire 29tlr day of July, 2001 in Lyon County, Kansas.”
These instructions were given in accord with the pattern instructions. Read together, they fairly and accurately state the law, and there was no possibility that this jury could have been misled. The only definition of criminal damage to property given to the jury was the definition of felony criminal damage to property. A jury cannot be presumed to have legal knowledge outside the statements of law in the instructions. This jury was plainly instructed that Dixon was guilty of burglary if he entered the apartment with the intent to commit criminal damage to property as defined. The burglary instruction referred the jury to the instruction setting out the elements of felony criminal damage to property, including the necessary value of the property. The jury unanimously found Dixon guilty of felony criminal damage to property, and its special verdict form indicated that it found the property damaged was valued at least $500 but less than $25,000. A further refinement of the instructions or the verdict form was not necessary to protect Dixon’s rights.
Admission of Evidence Regarding Defendant’s Mother
Dixon properly objected to admission of testimony about his mother’s offer to replace Shaw’s property in exchange for Shaw’s silence about her suspicions regarding Dixon. He contends the testimony was irrelevant and unduly prejudicial.
Dixon asks this court to review the admission of this evidence de novo, because the district judge failed to state his rationale for the admission. The State maintains that the admission decision should be reviewed only for abuse of discretion. This court has stated many times in the past that it reviews the admission or exclusion of evidence under an abuse of discretion standard. See, e.g., State v. Jenkins, 272 Kan. 1366, 1378, 39 P.3d 47 (2002); State v. Wagner, 248 Kan. 240, 243, 807 P.2d 139 (1991). But we have recently clarified this standard of review, reaffirming relevance as the first consideration of a district judge. See K.S.A. 60-407(f); State v. Engelhardt, 280 Kan. 113, 126, 119 P.3d 1148 (2005); State v. Carter, 278 Kan. 74, 77, 91 P.3d 1162 (2004); State v. Bloom, 273 Kan. 291, 303, 44 P.3d 305 (2002). Evidence is relevant if it has any tendency in reason to prove any material fact. K.S.A. 60-401(b). To establish relevance, there must be some material or logical connection between the asserted facts and the inference or result they are intended to establish. Carter, 278 Kan. at 77. State v. Lumley, 266 Kan. 939, 950-51, 976 P.2d 486 (1999).
“The concept of relevance under Kansas law includes both whether evidence is probative and whether it is material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard.” State v. Vasquez, 287 Kan. 40, Syl. ¶ 3, 194 P.3d 563 (2008).
See State v. Reid, 286 Kan. 494, 503-09, 186 P.3d 713 (2008).
Furthermore, “ ‘[ojnce relevance is established, evidentiaiy rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.’ ” State v. Gunby, 282 Kan. 39, 47, 144 P.3d 647 (2006) (quoting Carter, 278 Kan. at 77). If the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, this court reviews the decision de novo. Gunby, 282 Kan. at 47-48.
If the record in this case showed only that Dixon’s mother spontaneously called Shaw and offered to replace the items in Shaw’s apartment that were damaged or destroyed and that the call had nothing to do with Dixon, then we would agree that testimony about the call tested the limits of both the abuse of discretion probative value standard and the de novo materiality standard encompassed by the concept of relevance under Kansas law. But that is not what the record shows. Dixon’s mother’s call was not spontaneous; it was prompted by Dixon’s telephone conversation with Shaw and her accusation of him, followed by Dixon’s telephone conversation with his mother. The record also shows the call may have had everything else to do with Dixon as well; he not only hoped his mother could speak more calmly with Shaw but, Shaw testified, the mother’s offer was expressly conditioned on Shaw keeping her suspicions of Dixon to herself. The conversation and its timing and content were, as a matter of law, material to Dixon’s possible consciousness of guilt and attempt at a coverup. Further, it was not an abuse of discretion for the district judge to decide that the web of telephone conversations was probative on these material considerations.
We also do not regard the admission of this evidence as unduly prejudicial. See State v. Clark, 261 Kan. 460, 477, 931 P.2d 664 (1997). It certainly tended to inculpate Dixon rather than exculpate him, but, given the largely consistent stories of his three accomplices about Dixon’s leadership role in the burglaries and other crimes and from others about his motives, it is simply impossible that any juror’s vote on guilt turned on Dixon’s mother’s evidently misguided or malign effort to help her son.
Cumulative Error
Dixon’s last challenge in this appeal is based on his assertion that cumulative error cost him a fair trial. Cumulative error, considered collectively, may be so great as to require reversal of a defendant’s conviction. The test is whether the totality of the circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found under the cumulative error doctrine if the evidence against the defendant is overwhelming. State v. Cosby, 285 Kan. 230, Syl. ¶ 9, 169 P.3d 1128 (2007). Moreover, this doctrine does not apply if no error or only one error supports reversal. See State v. Carter, 284 Kan. 312, 332, 160 P.3d 457 (2007). Having held there was no error under Dixon’s other appellate issues, we do not apply the doctrine here. There was no cumulative error.
Affirmed.
Davis, Nuss, and Luckert, JJ., not participating.
Greene, Hill, and Leben, JJ., assigned.
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The opinion of the court was delivered by
Davis, J.:
This inverse condemnation appeal comes before us on the landowner s petition for review of the decision by the Kansas Court of Appeals in Estate of Kirkpatrick v. City of Olathe, 39 Kan. App. 2d 162, 178 P.3d 667 (2008). The landowner claimed that his home was substantially damaged as a result of the City of Olathe’s construction of an adjacent roundabout, which altered the flow of groundwater in the area. The district court awarded the landowner compensation under K.S.A. 26-513. The Court of Appeals reversed, concluding that mere damage to real property is not compensable under Kansas eminent domain law unless the damage is necessary to the completion of a public improvement project. 39 Kan. App. 2d at 169-70.
The facts giving rise to this action and its disposition are accurately recounted in the Court of Appeals opinion:
“Archie Kirkpatrick owned and resided in property that sits on the northwest comer of the intersection at Ridgeview Road and Sheridan Avenue when the City approved a plan to improve that intersection with the construction of a roundabout. As part of the intersection improvement, the City took by eminent domain 355 square feet of Kirkpatrick’s property for a permanent road right-of-way and 426 square feet for a temporary construction easement. Kirkpatrick did not appeal the compensation awarded in the eminent domain proceeding.
“The City began construction of the roundabout in early 2000 and completed it in July 2001. According to the district court, the City became aware of‘potential drainage problems’ soon after it began construction and concluded the water problems would subside after construction was complete. In late June 2001, [Wayne DuVall,] a friend of Kirkpatrick’s, excavated near the house to determine the cause of the basement water problems at Kirkpatrick’s residence. During excavation, DuVall noticed that the hole he dug was dry from the surface down 4 feet, but from there, wet to the bottom of the approximately 9-foot hole. DuVall installed a second sump pump but apparently did not fix the basement water problems, and water continued to enter the house after it rained. Kirkpatrick hired the May Development Company (May) to do additional foundation repair to his house in the summer of 2003. Over the course of the summer, May installed another sump pump in the house, jacked up the house, and installed piers and steel supports along the back foundation. During early August 2003, the basement floor cracked.
“In September 2003, Kirkpatrick filed a claim under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq., against the City. Kirkpatrick alleged the City had damaged or taken his property ‘due to [the] change of grade or disruption of natural underground barriers as a result of the construction of public improvements located at the intersection of Ridgeview Road and Sheridan Avenue . . . .’ Recause the City did not respond to Kirkpatrick’s claim within 120 days, Kirkpatrick filed his petition against the City on January 21, 2004, and later amended to include the project engineer, the construction contractor, and the project inspector as defendants after these parties were brought in through third-party actions. After Kirkpatrick’s death in September 2005, Kirkpatrick’s estate (Kirkpatrick or Estate) was substituted as plaintiff.
“The City filed two summary judgment motions in which it argued that it was immune from liability for the tort claims under the KTCA and that the property Kirkpatrick alleged was taken without compensation was acquired in the City’s condemnation proceeding. It does not appear that it ruled on the first summary judgment motion, but the district court denied the second motion. The district court rejected the City’s second motion for summary judgment after concluding that whether the City’s diversion of groundwater into Kirkpatrick’s property was a natural consequence of the improvement or resulted from a negligent deviation from the approved design was a substantial material fact that precluded summary judgment.
“The court later held a bench trial on Kirkpatrick’s action. In its journal entry of judgment, the district court concluded that the City conformed to the necessary standard of care in designing the roundabout. Further, the court concluded that no party had negligently deviated from the approved plan, and thus no party negligently caused damage to Kirkpatrick’s property. The court then analyzed the inverse condemnation claim and concluded that the City partially took Kirkpatrick’s property by damaging it without paying just compensation for its taking.
“Based on the court’s findings, Kirlqpatrick orally moved for attorney fees and offered to give the court a copy of Bonanza, Inc. v. Carlson, 269 Kan. 705, 9 P.3d 541 (2000). After considering the parties’ motions and arguments, the court awarded Kirkpatrick fees under K.S.A. 58-3502 over the City’s objections.” 39 Kan. App. 2d at 163-65.
The City appealed, arguing that its actions in constructing the roundabout did not constitute a compensable taking of the Estate’s property. The Court of Appeals agreed and reversed. 39 Kan. App. 2d at 170. We granted the Estate’s petition for review; we now reverse the decision of the Court of Appeals and affirm the judgment of the district court.
Court of Appeals Decision
In reaching its decision, the Court of Appeals considered the Kansas Eminent Domain Procedure Act (EDPA), K.S.A. 26-501 et seq., as well as Kansas case law regarding inverse condemnation. The Court of Appeals noted a “fundamental tension” between the statutory language of the EDPA, which recognizes that a compensable taking includes “property damaged” during the course of a public improvement project, and this court’s case law, which has held that damage is only compensable if it is “necessary” to the completion of such a project. Estate of Kirkpatrick, 39 Kan. App. 2d at 167-69. Compare K.S.A. 26-513(a) with Deisher v. Kansas Dept. of Transportation, 264 Kan. 762, 772, 958 P.2d 656 (1998). Despite the express provision of the statute relating to “property damaged,” the Court of Appeals concluded it was bound to follow the “controlling Supreme Court authority” holding “that mere damage to an adjoining property is not a compensable taking unless the damage was necessary to the completion of the public use project.” 39 Kan. App. 2d at 169. The Court of Appeals concluded that
“the City excavated adjacent land and changed the grade in constructing the roundabout, but no property or property right was taken. Moreover, the City may have caused more water to invade Kirkpatrick’s property than before the construction, but any such invasion or diversion of water was not necessary to the public improvement.” 39 Kan. App. 2d at 169.
We granted the Estate’s petition for review to clarify the apparent discrepancy between the plain language of the EDPA and our case law.
Discussion and Analysis
This court has long recognized that “the right to take private property for a public use is inherent in the state.” State, ex rel. v. Urban Renewal Agency of Kansas City, 179 Kan. 435, 438, 296 P.2d 656 (1956). Nevertheless, the State’s power of eminent domain is limited by both federal and state law. In particular,.the Fifth Amendment to the United States Constitution, made applicable to the states byway of the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.”
Since the enactment the EDPA in 1963, procedures governing the exercise of eminent domain in Kansas have been defined by statute. See L. 1963, ch. 234, sec. 13. Notable to our discussion here, K.S.A. 26-513 commences with a codification of the Fifth Amendment, providing that “[p]rivate property shall not be taken or damaged for public use without just compensation.” K.S.A. 26-513(a).
Ordinarily, eminent domain proceedings are initiated by the condemning authority to determine the extent of the property taken and the compensation due under EDPA and the United States Constitution. See, e.g., Miller v. Glacier Development Co., 284 Kan. 476, 499, 161 P.3d 730 (2007). Inverse condemnation proceedings, such as those giving rise to the present appeal, are initiated by the party having a property interest (instead of the condemning authority) and are available when private property has been taken for public use without the initiation of formal condemnation proceedings by the government. Kau Kau Take Home No. 1 v. City of Wichita, 281 Kan. 1185, 1189, 135 P.3d 1221 (2006), cert. denied 549 U.S. 1265 (2007); see Nat’l Compressed Steel Corp. v. Unified Gov’t of Wyandotte County/Kansas City, 272 Kan. 1239, 1245, 38 P.3d 723 (2002) (inverse condemnation action “available only where private property has been actually taken for public use without formal condemnation proceedings and it appears that there is no intention or willingness of the taker to bring such proceedings”).
To succeed on a claim for inverse condemnation, a party must establish that he or she has an interest in real property affected by a public improvement project and that a taking has occurred. The question of whether there has been a compensable taking is one of law. Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007). The question we confront in this case is whether the damage caused to the Estate’s property by the City’s construction of the roundabout was compensable under our eminent domain law.
Actions Requiring Compensation under Kansas Law
K.S.A. 26-513(a), which defines the actions for which compensation is required under Kansas eminent domain law, states: “Private property shall not be taken or damaged for public use without just compensation.” (Emphasis added.) This language has remained unchanged since the EDPA’s original enactment in 1963. See L. 1963, ch. 234, sec. 13. Under the plain language of the statute, compensation is required for both physical takings of property interests and “damage” to private property that results from a public improvement project.
The remainder of K.S.A. 26-513 contemplates that damage to private property resulting from a public improvement project may require compensation under Kansas law. Most notably, K.S.A. 26-513(d) provides a nonexclusive list of factors that should be taken into consideration when determining the compensation that is due to a landowner. Among other items listed, the statute includes the following factors that must be considered when calculating a condemnation award: “[ljoss of trees and shrubbery”; “[cjost of new fences or loss of fences and the cost of replacing them with new fences of like quality”; “[djamage to property abutting on a right-of-way due to change of grade”; “[l]oss of or damage to growing crops”; and “[c]ost of new drains or loss of drains and the cost of replacing them with drains of like quality.” K.S.A. 26-513(d)(7), (8), (10), (12), and (14). In these instances, the requirement for compensation arises not from a physical taking of the land but rather from damage to the property that “affects the value of the property remaining” after the government action. See K.S.A. 26-513(d)(7), (8), and (14).
The statutory recognition that compensation may be required for damage to property — in the absence of a physical taking — is consistent with decisions of the United States Supreme Court, which hold that compensation under the Fifth Amendment must be provided for damage to property that is the “direct result” of the governmental authority’s action and “constitute^] an actual, permanent invasion of the land.” See Sanguinetti v. United States, 264 U.S. 146, 149, 68 L. Ed. 608, 44 S. Ct. 264 (1924).
Despite the plain language of K.S.A. 26-513, however, the Court of Appeals correctly noted that this court’s case law has in most instances precluded recovery for damage to property in inverse condemnation actions. Instead, this court has limited recovery for property damage in inverse condemnation to cases where the “damage was . . . necessary to the taking of the property for public use” and has narrowly interpreted this “necessity” requirement to mean that the condemning authority “needed” the damage to occur in order to complete the project. (Emphasis added.) See Deisher, 264 Kan. at 774. Otherwise, we have limited compensable takings to instances where the condemning authority has “ac quir[ed] . . . possession as well as the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides. [Citations omitted.]” 264 Kan. at 772.
The conclusion that compensation is only required where a transfer of property rights has occurred or where property damage is needed to complete a public improvement project is not based in the language of the EDPA, however. Rather, the definition comes from this court’s case law predating the adoption of the eminent domain statutes.
One of the first cases to define a compensable taking in this way was Sester v. Belvue Drainage District, 162 Kan. 1, 173 P.2d 619 (1946), which involved an action by a landowner for damages suffered as a result of the widening of a drainage district. The Sester court held that the landowner’s damages did not constitute a “taking” under the Fifth Amendment to the United States Constitution:
“The right to sue a public body under the constitutional guaranties does not extend to cases where land is not actually taken but is only indirectly or consequentially damaged. There is a great difference between intentional taking of land in the exercise of governmental power and injury resulting to land as a consequence therefrom. A consequential injury is not a taking of private property for public use within the meaning of the Fifth Amendment.” 162 Kan. at 6.
Despite this statement, the Sester court recognized that its analysis might differ if the Kansas Legislature were to enact a statute making property damage compensable. 162 Kan. at 8-9. But while “[s]ome states [had] enacted statutes which extend the state’s liability to the point of allowing recoveiy for damages caused by public use, . . . Kansas [had] not.” 162 Kan. at 9. Because Kansas had not adopted a constitutional provision or statutory scheme indicating otherwise, Sester held that damage resulting from a public improvement project was not compensable under eminent domain. 162 Kan. at 8-10.
This exclusion of property damage from die definition of a compensable taking was repeated 2 years later in Foster v. City of Augusta, 165 Kan. 684, 199 P.2d 779 (1948). In diat case, several landowners brought an inverse condemnation action for flood dam age to their property that resulted from the city’s building and maintaining a levee. The Foster court concluded that this type of property damage was not compensable in eminent domain. 165 Kan. at 691. To arrive at this conclusion, the court noted:
“A study of our statutes and decisions discloses the word ‘take’ or ‘taken,’ as used in our law of eminent domain, means the acquiring of possession and the right of possession and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides.” 165 Kan. at 690.
The Foster court again emphasized that “[o]ur legislature is free ... to determine . . . what is meant by the word ‘taking,’ and what shall be compensated for by reason of the taking.” 165 Kan. at 690. In the absence of a legislative decree, however, the court held that “[ojwners of other property nearby or adjoining that which is taken are not entitled to receive any compensation, though in fact they may sustain some loss or injury, such being regarded as consequential and damnum absque injuria.” 165 Kan. at 691. See also Steck v. City of Wichita, 179 Kan. 305, 313, 295 P.2d 1068 (1956) (quoting Foster’s definition of “taking”).
Justice Hoch, joined by Justice Wedell, dissented from the majority’s conclusion in Foster that property damage is not compensable in eminent domain, writing:
“I am not prepared to say that there can be no ‘taking’ in the constitutional sense except as to properly the title of which is acquired under eminent domain. And more particularly am I not willing to say now that in the absence of specific statutory provision therefor, ‘owners of other property nearby or adjoining that which is taken (by condemnation under eminent domain) are not entitled to receive any compensation though in fact they may sustain some loss or injury, such being regarded as consequential and damnum, absque injuria.’ I am not unmindful of the many cases in which recovery has been denied for damages denominated ‘consequential.’ Without quibbling as to the appropriateness of the term ‘consequential’ as used in some cases, I think it may fairly be said that such cases relate in most instances to damages incidental and more or less remote in character, as for example, the added inconvenience for ingress and egress resulting to other property owners. But where land is substantially damaged direcdy as the planned or inevitable result of a project such as flood control or diversion, I do not subscribe to a broad and unqualified rule that in no case can there be recovery in the absence of a statute specifically providing therefor.” Foster, 165 Kan. at 694-96 (Hoch, J., dissenting in part).
In 1963, the Kansas Legislature adopted the EDPA, including K.S.A. 26-513(a), which states that “[p]rivate property shall not be taken or damaged for public use without just compensation.” (Emphasis added.) L. 1963, ch. 234, sec. 13. It would appear that by enacting this language, the legislature was responding to Foster and Sester by clearly stating that just compensation must be provided for property damage resulting from public improvement projects. See Foster, 165 Kan. at 690; Sester, 162 Kan. at 9. The statutory language requiring compensation for property taken or damaged (not merely taken and damaged) further illustrates the legislature’s intent to adopt the broader definition of eminent domain outlined by Justice Hoch in his Foster dissent.
This court’s decisions following the adoption of the EDPA — and most significantly, of K.S.A. 26-513(a) — for the most part have not acknowledged this statutory language, however. See Kau Kau Take Home No. 1, 281 Kan. at 1189 (“A compensable taking requires the government to acquire possession as well as the right of possession and control of tangible property to the exclusion of the former owner.”).
For example, in Sanders v. State Highway Commission, 211 Kan. 776, 508 P.2d 981 (1973), landowners brought an inverse condemnation action against the Kansas Highway Commission when a highway project adjacent to their back yards resulted in the soil crumbling and sliding onto the right-of-way. The district court found that the erosion of the soil was caused by the highway project, which had removed lateral support for the landowners’ properties. Nevertheless, the district court granted the Commission’s motion for summary judgment, concluding that the Commission’s actions did not constitute a taking under our state’s case law.
This court reversed the district court’s decision on appeal, finding that the removal of lateral support constituted a taking under Kansas law. 211 Kan. at 786. The court did not reach this decision based on the language of the EDPA, however. In fact, the Sanders court did not cite the EDPA at all. Rather, the court found that “[t]he common law right to lateral support of natural soil is a valuable right which accompanies the ownership and enjoyment of the land itself’ and “may not be taken while constructing highway improvements without acquisition and payment, the same as any other right or interest in real property.” 211 Kan. at 786. Thus, the court reached the conclusion that the damage in Sanders was compensable by defining the loss of lateral support as a “taking” — not by way of the plain language of K.S.A. 26-513(a).
A few years after deciding Sanders, the court employed a similar analysis in Ventures in Property I v. City of Wichita, 225 Kan. 698, 594 P.2d 671 (1979). At issue in Ventures was whether a city’s zoning regulations could so restrict a landowner’s use of his or her property as to require compensation under the United States Constitution. The Ventures court held that pervasive regulation and zoning that deprive a landowner of reasonable use of his or her land requires just compensation. See 225 Kan. at 705-07, 713-14. The court noted in its decision that the trend among states was to conclude that “direct physical invasion of property is not required under the eminent domain section of the constitution for a property owner to be entided to compensation for damaging his [or her] property for public use. [Citation omitted.]” (Emphasis added.) 225 Kan. at 708. Nevertheless, as in the court’s previous decision in Sanders, Ventures failed to cite K.S.A. 26-513 or the EDPA.
Because the discussion of compensation for property damage in Ventures is limited to the court’s analysis of approaches taken by other jurisdictions rather than the EDPA’s binding statutory language, this court’s subsequent decisions limited the Ventures court’s holding to its facts: namely, that pervasive zoning may so limit the use of property as to constitute a taking. See Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 129, 671 P.2d 511 (1983) (“Ventures does not radically relax the concept of Taking,’ as asserted by the plaintiff herein. Rather, Ventures characterizes an exception to the general rule that mere plotting and planning in anticipation of a public improvement does not constitute a taking or damaging of the property affected unless such plotting and planning is coupled with a legal restriction on the landowner’s use of the property.”).
Instead of recognizing the statutory language of K.S.A. 26-513(a), which plainly states that compensation must be paid for property damage resulting from a public improvement project, each of these decisions adhered to 'pre-EDPA caselaw defining “ ‘take’ (or ‘taken’) in Kansas eminent domain law to mean the acquiring of possession as well as the right of possession and control of tangible property to the exclusion of the former owner.” 234 Kan. at 125 (citing Steck and Foster). This disregard for the EDPA provisions has led to legal acrobatics in many of our recent inverse condemnation decisions, illustrated most pointedly by the court’s opinion in Deisher, 264 Kan. 762.
Deisher presented the question of whether an action for damage incurred during a public improvement project is subject to the 15-year statute of hmitations for eminent domain proceedings or the 2-year hmitations period for negligence. See 264 Kan. at 772-73. The plaintiffs in Deisher claimed that blasting associated with a highway improvement project adjacent to their home caused a shift in the groundwater on their property, resulting in a loss of water in the plaintiffs’ well. The district court dismissed the case, finding that the suit sounded in negligence and that the 2-year statute of hmitations for negligence actions had run. This court affirmed, holding that actions for property damage that is not necessary to the completion of a public improvement project are subject to the 2-year hmitations period for tort claims. 264 Kan. at 775. To reach this conclusion, the Deisher court relied primarily on language in this court’s case law defining compensable takings and on Olson v. State Highway Commission, 235 Kan. 20, 679 P.2d 167 (1984).
Deisher began its analysis with a discussion of condemnation actions in Kansas. Unlike many of the cases decided after the adoption of the EDPA in 1963, the Deisher court quoted all of K.S.A. 26-513 in its opinion, including the language stating that “[pjrivate property shall not be taken or damaged for public use without just compensation.” K.S.A. 26-513(a); see Deisher, 264 Kan. at 770. Other than quoting this language, however, the court made no reference to the import of the statutory provisions. Instead, immediately after quoting K.S.A. 26-513, Deisher reverted to the preEDPA definition of compensable takings, stating: “This court has previously defined ‘take’ (or ‘taken’) in Kansas eminent domain law to mean the acquiring of possession as well as the right of posses sion and control of tangible property to the exclusion of the former owner, with such title in fee or easement as the statute under which the proceeding is had provides.” 264 Kan. at 772 (citing this court’s pre-EDPA decisions in Steck and Foster). Deisher made no reference to the obvious discrepancy between these two definitions of which actions require compensation.
Turning to the area of tort liability, Deisher concluded that under this court’s previous decision in Olson, actions for damages to real property must be raised in tort, not inverse condemnation. Deisher, 264 Kan. at 774-75. Olson involved an action in negligence and strict liability brought by landowners against the Kansas Department of Transportation and a construction company for damage to real property caused by a highway construction project. Because the plaintiffs brought only tort (not inverse condemnation) claims, none of the parties disputed that the 2-year statute of limitations defined by K.S.A. 60-513(a)(4) applied. See Olson, 235 Kan. at 23. Rather, the question presented in Olson was whether the discovery doctrine codified in K.S.A. 60-513(b) — which states that the limitations period commences when the fact of the injury becomes reasonably ascertainable — applied in that case. 235 Kan. at 23-24. Contrary to Deisher s reliance on Olson, the Olson court did not hold that actions for damage to real property can only be raised in tort or that such actions are always subject to the 2-year statute of limitations.
Ultimately, Deisher concluded that damage to real property is not compensable in eminent domain if “the property damage was not necessaiy to the taking of the property for public use.” 264 Kan. at 774. In other words, if “damages [are] not a necessary consequence of a taking” but instead “result[] from the negligence of the State or one acting on behalf of the State,” the only remedy for those damages is an action for negligence, which is subject to the 2-year statute of limitations. 264 Kan. at 774. Because “[t]he State neither needed the Deishers’ water nor needed to divert their water” to complete the highway project in question, the Deisher court held that the plaintiffs’ case was correctly dismissed as being barred by the 2-year statute of limitations for tort actions. 264 Kan. at 774-75.
At least one recent opinion of this court has relied upon Deisher for the proposition that damage to real property is only compensable under eminent domain if it is “necessary” to the completion of a public improvement project. See Kau Kau Take Home No. 1, 281 Kan. at 1190 (“The alleged damage to Appellants’ property caused by the contractors driving over the property was not necessary to the completion of the City’s project. The alleged damage was caused by the contractor’s negligence.”). Contrary to this court’s decision in Deisher and its similar statements in subsequent cases, however, K.S.A. 26-513(a) does not state that damage to property is only compensable under eminent domain if the condemning authority “needs” the damage to occur in order to complete the project.
Inverse condemnation claims stem from the recognition that the government from time to time fails to initiate a traditional eminent domain proceeding but nevertheless takes actions that require compensation. K.S.A. 26-513 deals entirely with the compensation requirement — whether in a traditional eminent domain proceeding or in inverse condemnation — and with the logistics of calculating a compensation award. Our review of the plain language of K.S.A. 26-513 demonstrates that the legislature has made a determination that in order to protect the constitutional and statutory rights of Kansas citizens, it is necessary for the State or other condemning authority to provide “just compensation” for property that is “taken or damaged for public use.” K.S.A. 26-513(a). The term “[necessity” as a subheading within K.S.A. 26-513(a) refers to this statutory and constitutional requirement for just compensation.
We note that the Deisher holding has an additional ramification in the case before us. Here, the district court concluded that the workers employed by the City who constructed the roundabout did not act negligently. The court also found, however, that the change in grade associated with the new roundabout directly caused the alteration in groundwater flow that damaged the Kirkpatrick’s (and subsequently, his Estate’s) property. If we were to apply the holding in Deisher to this case, even though the Estate’s property damage was caused by the condemning authority in con junction with a project on a public roadway, the Estate would have no recourse at law.
The plain language of K.S.A. 26-513(a) states that a condemning authority must provide just compensation for real property that is “taken or damaged for public use.” The most basic principle of statutory interpretation is that “the intent of the legislature governs if that intent can be ascertained.” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003). For this reason, “[wjhen 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.]” 275 Kan. at 305. In order to give full effect to K.S.A. 26-513 and the other provisions of the EDPA, we disapprove of our prior caselaw that fails to take into account the statutory requirement that just compensation be provided for property damaged for public use.
We note, however, that not all property damage is compensable in eminent domain. For example, this court has long held that although rental income produced by the land itself may be used to determine the value of the real property subject to a condemnation action, a decrease in profits from a business conducted on the real estate is not compensable. See City of Bonner Springs v. Coleman, 206 Kan. 689, 694, 481 P.2d 950 (1971). Likewise, other items of personal property are not compensable in condemnation actions unless the property is a fixture. See City of Wichita v. Eisenring, 269 Kan. 767, 783, 7 P.3d 1248 (2000). In either case, the reason for the exclusion is that damage to personal property is not part and parcel to the condemnation of the real estate in question, but rather is a tangential consequence of that condemnation.
For this reason, the majority of jurisdictions that require compensation for property damaged in association with public improvement projects exclude consequential damages, finding instead that damage must be the direct, natural, or inevitable result of the governmental action to be compensable. See, e.g., Sanguinetti, 264 U.S. at 149-50 (stating that damage to property is not compensable in eminent domain if it is not “tibe direct or necessary result” of the condemnation action or “within the contemplation of or reasonably to be anticipated by the government”); Plunske v. Wood, 171 Conn. 280, 284, 370 A.2d 920 (1976) (concluding that, in determining damages in a condemnation action, “[t]he court should consider any and all damages which will foreseeably follow from the proper construction of the project, including any damage to the remainder which is a necessary, natural and proximate result of the taking”); Dahlman v. Milwaukee, 131 Wis. 427, 439-40, 111 N.W. 675 (1907) (clarifying that removal of building’s lateral support due to re-grading of a street was not “a mere consequential damage” but instead required compensation). American Jurisprudence summarized this trend as follows:
“Although there are certain indirect or consequential damages which may arise from a condemnation for which there can be no recoveiy, many states provide for compensation where property has been damaged through eminent domain. The constitutional provisions requiring compensation for damage have been given a liberal construction, and a landowner is entitled to compensation for damages to property whether or not there is direct physical injury to property.” 26 Am. Jur. 2d, Eminent Domain § 128, p. 536.
These authorities are fully in accord with the standard set forth by Justice Hoch in his Foster dissent over 60 years ago, where he distinguished between cases involving property damage “incidental [to a governmental undertaking] and more or less remote in character” — which he would find do not require compensation — and cases where “land is substantially damaged directly as the planned or inevitable result” of a public improvement project. Foster, 165 Kan. at 696 (Hoch, J., dissenting in part). We adopt this interpretation.
In order for damage to real estate to be compensable under K.S.A. 26-513(a) and the other provisions of the EDPA, that damage must be substantial and must be the planned or inevitable result of government action undertaken for public benefit. Such a standard is in keeping with the legislature’s statutory enactments as well as our well-established rule that tangential or consequential damages do not require compensation in condemnation actions. Damage that is tangential or consequential to a government action is more appropriately addressed in the realm of tort law. See Sanguinetti, 264 U.S. at 150.
Application to the Instant Case
In the case before us, the district court concluded based on the evidence that the alteration in the flow of groundwater on the Estate’s property was the direct result of the City’s actions in constructing the roundabout adjacent to the Estate’s property. The district court also found that the City was aware of the alteration in the groundwater during its construction of the roundabout, but the City decided to take no action to remedy that change. These findings are supported by substantial evidence in the record. Because the damage sustained by the Estate’s real property was the inevitable result of the change in groundwater level, the district court correctly found that this damage was compensable in an inverse condemnation action.
The City argues that even if this court determines that compensation may be required for damage to property in some cases, no compensation should be required here because, according to the City’s brief on appeal, the damage to the Estate’s property was temporary and subject to abatement. The City asserts that the damage to the Estate’s property could have been alleviated by the installment of a foundation drain. Nevertheless, the City recognizes that “the trial court’s findings of fact clearly reflect the court’s belief that the City should have installed a foundation drain ($15,000.00 to $18,000.00) for Plaintiff in 2001.” (Emphasis added.) For support of its argument, the City relies primarily on Bowen v. City of Kansas City, 231 Kan. 450, 455, 646 P.2d 484 (1982).
This claim fails for a number of reasons. First, we note that Bowen involved an action for nuisance — not for inverse condemnation — where different principles govern recovery. Moreover, contrary to the City’s assertions, this court has not limited compensation in eminent domain to cases where a taking or other governmental encroachment has been permanent. For example, we have long recognized the need for compensation for temporary easements required to complete public improvements. See Shipe v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 210 P.3d 105 (2009). Finally, the City’s argument fails to apprehend the nature of our inquiry in this inverse condemnation action. The direct cause of the damage to the Estate’s property — and the basis for the district court’s compensation award — is the roundabout itself, which permanently altered the flow of groundwater on the Estate’s property. There is no question that the roundabout is a permanent structure.
We pause to emphasize the scope of our decision in this case relating to the district court’s condemnation award. In its brief on appeal, the City claimed that the court’s condemnation award to the Estate was erroneous because damage is not compensable in Kansas under eminent domain. Today, we clarify that under the plain language of K.S.A. 26-513(a), compensation was required for damage to the Estate’s properly that was the substantial, direct, and inevitable result of the construction of the roundabout in question.
At no time during the pendency of this appeal does the City or the Estate argue error in the amount of the compensation award itself or in the appropriateness of the manner in which the district court assessed that award. Issues not raised on appeal are deemed abandoned and are not before us for review. Roy v. Young, 278 Kan. 244, 248, 93 P.3d 712 (2004). Therefore, although we affirm the district court’s award of damages to the Estate in the amount of $17,000, we make no comment on the appropriateness of that amount or the calculation of that award.
The district court correctly determined that the City was required to provide just compensation for damage to the Estate’s property directly caused by the City’s construction of a roundabout. The district court’s award of $17,000 to the Estate in this inverse condemnation action is therefore affirmed.
Attorney Fees
Because we affirm the district court’s condemnation award in favor of the Estate, we must also review the court’s decision to award the Estate its attorney fees and litigation expenses. After the court announced its judgment in favor of the Estate on its inverse condemnation claim at trial, the Estate moved for costs and attorney fees. The district court took this request under advisement and asked the parties to submit written argument on the issue. In its written memorandum, the Estate indicated that between October 2003 and January 2006, it had been billed $86,738 in legal fees and $13,738 in expenses; it also included itemized billing statements to this effect.
The district court ultimately awarded the Estate attorney fees in the amount of $37,375 and costs in the amount of $13,291.75.
On appeal, the City claims that the district court was without statutory authority to award attorney fees in this case. The City also argues that the Estate’s posttrial request for attorney fees was unfair and caught the City by surprise; that the attorney fee amount was unreasonable; and that the award was not supported by substantial competent evidence.
Standard of Review
In Kansas, a party’s request for attorney fees cannot be granted absent statutory authority or agreement applicable to the parties. Hawkinson v. Bennett, 265 Kan. 564, 575, 962 P.2d 445 (1998). The question of whether the district court had the authority to award attorney fees under a particular statute or agreement is a question of law over which appellate review is plenary. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). In cases where a district court has authority to award attorney fees, that decision is reviewed for an abuse of discretion. A party challenging such an award must show that no reasonable person would agree with the district court’s decision or that the decision was not supported by substantial competent evidence. Davis v. Miller, 269 Kan. 732, 750-51, 7 P.3d 1223 (2000).
Discussion
The district court based its award of attorney fees in this case primarily on our decision in Bonanza, Inc. v. Carlson, 269 Kan. 705, 9 P.3d 541 (2000). Bonanza involved a successful inverse condemnation action against the Kansas Department of Transportation (KDOT) stemming from a highway improvement project. This court interpreted the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Federal Act), 42 U.S.C. § 4601 (1994) et seq., in conjunction with Kansas statutes and KDOT regulations, to require the payment of the landowners’ attorney fees and expenses. In particular, Bonanza held that because KDOT had adopted regulations pursuant to the Federal Act specifically requiring the payment of attorney fees in condemnation actions, those regulations authorized the district court to award attorney fees to the landowners in that case. 269 Kan. at 720-21.
In the case before us, the district court concluded — purportedly based on Bonanza — that because the City received federal funding for the underlying public improvement project (which involved, among other items, the construction of the roundabout in question), it was required to comply with the provisions of the Federal Act. The district court noted, as Bonanza also recognized, that the Federal Act requires agencies that receive federal funding for improvement projects to make assurances that they will reimburse attorney fees and other litigation expenses for successful inverse condemnation actions.
The City argues that the district court’s reliance on Bonanza was unfounded, as that decision was based primarily on the language of the KDOT regulation authorizing attorney fees in condemnation actions. The City correctly points out that KDOT is not a party to this case and was not associated with the construction of the roundabout in question.
It is true that our decision in Bonanza was based primarily on the KDOT regulation in that matter. Contrary to the City’s arguments on appeal, however, this fact does not alone establish that the district court was without authority to award attorney fees. The landowners in Bonanza limited their argument regarding attorney fees to the state statutes and regulations governing that case, and our decision did not exceed the scope of their claims. See 269 Kan. at 714 (noting that “the landowners contend that their rights originate in state law which by reference adopts federal regulations”). Thus, our decision in Bonanza is inapposite to the question presented here — whether the district court in this case had authority to award attorney fees and other litigation expenses.
The provision of the Federal Act that guided the district court’s decision in this case is 42 U.S.C. § 4655(a)(2) (2006), which states in relevant part:
“(a) Notwithstanding any other law, the head of a Federal agency shall not approve any program or project or any grant to, or contract or agreement with, an acquiring agency under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the acquisition of real property on and after January 2, 1971, unless he receives satisfactory assurances from such acquiring agency that—
“(2) property owners will be paid or reimbursed for necessary expenses as specified in sections 4653 and 4654 of this title.”
Notable to our discussion, 42 U.S.C. § 4654(c) (2006) states that condemning authorities must “reimburse” successful plaintiffs in inverse condemnation actions for their “reasonable costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.”
In 1973, the Kansas Legislature adopted the Relocation Assistance for Persons Displaced by Acquisition of Real Property Act (Kansas Act), K.S.A. 58-3501 et seq., for the specified purpose of “authorizing] compliance with” the Federal Act. K.S.A. 58-3501. K.S.A. 58-3502 states that the State of Kansas, its agencies, or its political subdivisions “shall” comply with the requirements of the Federal Act in order to receive “federal financial assistance ... to pay all or part of the cost” of a public improvement program. K.S.A. 58-3502(4) requires the State and its agencies and political subdivisions involved in affected projects to “pay or reimburse property owners for necessary expenses as specified in” 42 U.S.C. §§ 4653 and 4654 (2006).
There is no question that the City received federal funding to complete the public improvement project at the heart of this case, including the construction of the roundabout adjacent to the Estate’s property. The only way that the City could have received this funding under the Federal Act was to make “satisfactory assurances” that the affected property owners would be reimbursed their attorney fees and other litigation costs associated with successful claims for inverse condemnation. See 42 U.S.C. § 4654. The City had the authority to make these assurances to the federal government under the Kansas Act. See K.S.A. 58-3506.
The City argues that even if it did receive federal funding, the district court was without authority to award attorney fees and lit igation expenses in this case because the Estate failed to provide any specific city ordinance authorizing the payment of attorney fees in inverse condemnation actions (similar to the KDOT regulation discussed in Bonanza) or any evidence of the particular assurances the City provided to the federal government. We disagree.
This court has long recognized that attorney fees may be awarded pursuant to a statute or agreement. See Hawkinson, 265 Kan. at 575. Here, the fact that the City received federal funding for its improvement project acts as compelling circumstantial evidence that the City agreed to pay the costs of litigation (including attorney fees) associated with successful inverse condemnation actions arising from the project.
A number of other jurisdictions have come to similar conclusions that the agreement between the federal government and the condemning state, state agency, or state political subdivision — defined by the Federal Act and evidenced by the acceptance of federal funding — gives state courts authority to award attorney fees and other litigation expenses. See McCarran Int’l Airport v. Sisolak, 122 Nev. 645, 675, 137 P.3d 1110 (2006) (“Because Sisolak is a property owner who was successful in his inverse condemnation action, the plain terms of the Relocation Act allowed the district court to award reasonable attorney fees and costs.”); see also Wolfson v. City of St. Paul, 558 N.W.2d 781, 783 (Minn. App. 1997) (“The federal statute dictates that an agency will not approve any federally funded, project unless assurances are received that property owners will be paid or reimbursed for necessary expenses as specified in sections 4653 and 4654 of this title.’ . . . The federal statute dictates that federally funded projects must comply with the federal statute, including the section on reimbursement of litigation expenses.”).
We agree with the reasoning articulated in these cases and conclude that the district court had authority to award the Estate attorney fees and litigation expenses for its successful inverse condemnation claim in this case.
The City argues that even if the district court had the authority to award attorney fees and costs, it abused its discretion when it did so here because (1) the manner in which the request for at tomey fees was made did not give the City fair notice of the issue; (2) the attorney fee award was unreasonable; and (3) the amount of the award was not supported by substantial evidence.
These arguments are without merit. Because the City had made previous assurances to the federal government that it would reimburse attorney fees and other litigation expenses in order to receive federal funding at the outset of the public improvement project, it cannot now claim surprise when a request for such reimbursement was made. Furthermore, the district court arrived at the amount in question after receiving considerable briefing and argument by the parties, coupled with lengthy and detailed descriptions of the claimed legal expenses. The district court was careful to explain how it arrived at the award amount in question, which was roughly $50,000 less than the amount originally requested by the Estate. We cannot say that the attorney fees and litigation expenses awarded are unreasonable in light of the complexity and duration of this case.
The district court’s award of $37,375 in attorney fees and $13,291.75 in other litigation expenses is affirmed.
For the reasons stated in this opinion, the decision of the Court of Appeals reversing the district court is reversed. The decision of the district court is affirmed.
McFarland, C.J., and Luckert, J., not participating.
Hill, J., and Larson, S.J., assigned.
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Per Curiam,-.
This case presents a certified question from the United States District Court for the District of Nebraska relative to a pending action in which Northern Natural Gas Company (Northern) is claiming professional negligence/malpractice against its former legal counsel, Martin, Pringle, Oliver, Wallace & Bauer, L.L.P. (Martin Pringle). The legal malpractice claim in Nebraska emanates from Martin Pringle’s representation of Northern in an action against Trans Pacific Oil Corporation in the United States District Court for the District of Kansas. With respect to the certification order, the parties stipulated to the following facts:
"1. Northern is a Delaware corporation with its principal place of business in Omaha, Nebraska.
“2. Martin Pringle is a Kansas limited liability law partnership formed in Kansas.
“3. Northern engaged Martin Pringle to represent its legal interests in various matters, including but not limited to, litigation captioned Northern Natural Gas Company v. Trans Pacific Oil Corporation, et al., No. 02-1418-JTM (D. Kan.) (hereinafter ‘Trans Pacific’ litigation).
“Natural Gas Storage
“4. The Federal Energy Regulatory Commission (‘FERC’) is the federal agency charged with overseeing gas storage activities under the Natural Gas Act, 15 U.S.C. 717, et seq.
“5. The Kansas Corporation Commission (‘KCC’) oversees gas storage operations in Kansas. Among other things, it has created procedural mechanisms for natural gas storage field operators to provide notice of any potential leak of a storage field and procedures for an operator to request an expansion of the boundaries of an existing storage field. See KAN. ADMIN. REGS. 82-3-1002(f), 82-3-1003(i), 82-3-1003(k)(l)(B), 82-3-1006 (c).
“6. In 1993, the Kansas Legislature enacted KAN. STAT. ANN. 55-1210, which provides, in relevant part, as follows:
‘(c) With regard to natural gas that has migrated to adjoining property or to a stratum, or portion thereof, which has not been condemned as allowed by law or otherwise purchased:
(1) The injector . . . shall not lose tide to or possession of such gas if such injector . . . can prove by a preponderance of the evidence that such gas was originally injected into the underground storage.
1993 Kan. Sess. Laws, Ch. 102, 1.
“7. The statute took effect July 1, 1993.
“8. Litigation concerning the general topic of storage gas migration in Kansas has occurred both before and after the enactment of KAN. STAT. ANN. 55-1210.
“Northern’s Natural Gas Storage Activities in Kansas
“9. Northern owns and operates an underground natural gas storage field in and around Cunningham, Kansas.
“10. The Cunningham Field was discovered in approximately 1931.
“11. Northern is an ‘injector’ within the meaning of KAN. STAT. ANN. 55-1210.
“12. The shallowest formation in the Cunningham Field is the Kansas City/ Lansing formation.
“13. Deeper formations — including the Simpson formation, the Viola formation and the Arbuckle formation — were historic producers of oil and gas, but production ultimately depleted the native reserves in these formations.
“14. In approximately the mid- to late-1970’s, Northern began its gas storage operations in the Cunningham Field.
“15. The KCC and the Federal Power Commission, the predecessor to the FERC, authorized Northern to store gas in the Viola formation.
“16. Later, the KCC and FERC authorized Northern to store gas in the Simpson formation, as well as the Viola formation.
“17. In 1987-1988, Trans Pacific Oil Corporation (‘Trans Pacific’) drilled two wells on property adjacent to the northern certificated boundary of Northern’s storage field.
“18. The Trans Pacific wells, known as the Park 1 and the Park 1A wells (‘Park wells’) produced oil as well as natural gas.
“TRANS PACIFIC ACTION
“19. In November 2002, Northern commenced litigation against Trans Pacific and other related entities, claiming Trans Pacific was producing gas at the Park wells that had migrated from Northern’s Cunningham storage field. One issue in the Trans Pacific litigation was whether Northern was permitted to make a claim for gas that had allegedly migrated to the Park wells before July 1, 1993, the effective date of KAN. STAT. ANN. 55-1210, but which had not been produced by Trans Pacific prior to that date.
“20. In the Trans Pacific litigation, the District Court submitted a Special Verdict Form to the jury with the following as Question 1: ‘On or after July 1,1993, did Northern’s stored gas migrate to the area of the “No. 1 Park” and “No. 1 Park A” wells?’ The jury answered ‘no’ to this question.
“21. On appeal, Northern challenged the District Court’s interpretation of KAN. STAT. ANN. 55-1210 contained in Question 1 of the Special Verdict Form.
“22. The Tenth Circuit issued an Order and Judgment in which it is held as follows on that issue:
‘However, Northern did not object to Special Verdict Form Question 1, which contained the court’s “interpretation” of 55-1210 and specifically asked the jury to determine whether Northern’s stored gas had migrated to Trans Pacific’s wells on or after July 1, 1993, at either the instruction conference or upon it being submitted to the jury. Therefore, Northern has waived the right to appellate review. Northern Natural Gas Co. v. Trans Pacific Oil Corp., 248 Fed. Appx. 882, 888-89 (10th Cir. 2007).’
“NEBRASKA LITIGATION
“23. Northern asserts a claim of professional negligence/malpractice against its former legal counsel, Martin Pringle, relating to the Trans Pacific litigation.
“24. To prevail on its claim, Northern must demonstrate, among other things, an alleged breach in the failing to preserve for appeal the issue of the proper interpretation of KAN. STAT. ANN. 55-1210.”
The Nebraska federal district court found that “[i]t appears to the Court that an issue of Kansas state law may be determinative of this litigation and there is no clear controlling Kansas state law precedent.” Accordingly, it certified the following question:
DOES AN INJECTOR OF NATURAL GAS INTO UNDERGROUND STORAGE, WHO DEMONSTRATES SUCH GAS WAS ORIGINALLY INJECTED INTO UNDERGROUND STORAGE BUT MIGRATED TO ADJOINING PROPERTY OR TO A STRATUM OR PORTION THEREOF WHICH HAS NOT BEEN CONDEMNED AS ALLOWED BY LAW OR OTHERWISE PURCHASED, LOSE TITLE TO OR POSSESSION OF THE MIGRATED GAS WHEN THE GAS MIGRATED BEFORE JULY 1, 1993, THE EFFECTIVE DATE OF THE CONTROLLING STATUTE, KAN. STAT. ANN. 55-1210, AND WAS NOT CAPTURED OR REDUCED TO POSSESSION BY ANOTHER PRIOR TO JULY 1, 1993?
ENABLING STATUTE/STANDARD OF REVIEW
The Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq., provides that the Kansas Supreme Court
“may answer questions of law certified to it by ... a United States district court . . . when requested by the certifying court if there are involved in any proceeding before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court and the court of appeals of this state.” (Emphasis added.) K.S.A. 60-3201.
We review certified questions using an unlimited standard. American Family Mut. Ins. Co. v. Wilkins, 285 Kan. 1054, 1058, 179 P.3d 1104 (2008).
STATUTORY PROVISION
Northern’s arguments center on the interpretation of K.S.A. 55-1210, which was enacted in 1993, with an effective date of July 1, 1993. That statute provides:
“(a) All natural gas which has previously been reduced to possession, and which is subsequently injected into underground storage fields, sands, reservoirs and facilities, whether such storage rights were acquired by eminent domain or oth erwise, shall at all times be the property of the injector, such injector’s heirs, successors or assigns, whether owned by the injector or stored under contract.
“(b) In no event shall such gas be subject to the right of the owner of the surface of such lands or of any mineral interest therein, under which such gas storage fields, sands, reservoirs and facilities lie, or of any person, other than the injector, such injector’s heirs, successors and assigns, to produce, take, reduce to possession, either by means of the law of capture or otherwise, waste, or otherwise interfere with or exercise any control over such gas. Nothing in this subsection shall be deemed to affect the right of the owner of the surface of such lands or of any mineral interest therein to drill or bore through the underground storage fields, sands, reservoirs and facilities in such a manner as will protect such fields, sand, reservoirs and facilities against pollution and the escape of the natural gas being stored.
“(c) With regard to natural gas that has migrated to adjoining property or to a stratum, or portion thereof, which has not been condemned as allowed by law or otherwise purchased:
(1) The injector, such injector’s heirs, successors and assigns shall not lose title to or possession of such gas if such injector, such injector’s heirs, successors or assigns can prove by a preponderance of the evidence that such gas was originally injected into the underground storage.
(2) The injector, such injector’s heirs, successors and assigns, shall have the right to conduct such tests on any existing wells on adjoining property, at such injector’s sole risk and expense including, but not limited to, the value of any lost production of other than the injector’s gas, as may be reasonable to determine ownership of such gas.
(3) The owner of the stratum and the owner of the surface shall be entitled to such compensation, including compensation for use of or damage to the surface or substratum, as is provided by law, and shall be entitled to recovery of all costs and expenses, including reasonable attorney fees, if litigation is necessary to enforce any rights under this subsection (c) and the injector does not prevail.
“(d) The injector, such injector’s heirs, successors and assigns shall have the right to compel compliance with this section by injunction or other appropriate relief by application to a court of competent jurisdiction.”
SUMMARY OF THE PARTIES’ ARGUMENTS
In its initial brief, one of Northern’s arguments is that the plain language of the statute manifests a legislative intent to vest title to and possession of all storage gas with the injector, regardless of when the gas was injected or when it might have migrated outside the certified boundaries of the gas storage field. It points to the use of the phrases “has been previously reduced to possession” and “at all times” in K.S.A. 55-1210(a), and “was originally injected” and “has migrated” in K.S.A. 55-1210(c) to support its “plain language” argument.
Northern also contends that public policy considerations dictate that we adopt its interpretation of the statute. It notes that the legislature acknowledged the importance of providing for the storage of natural gas to make natural gas more readily available to consumers and to provide a better year-round market for the gas fields. See K.S.A. 55-1202. Further, Northern contends that requiring it to identify when gas migrated outside the storage field would place an impossible evidentiary burden on the injector.
Further, Northern’s view is that K.S.A. 55-1210 abolished the rule of capture in this state with respect to injected gas, and therefore, all injected gas which had not been captured, i.e., produced and reduced to possession, by the adjacent landowner before July 1,1993, remained the personal property of Northern. On the other hand, Northern also argues that the statute operated to revest the injector with title to the injected gas and such a return transfer of title was recognized in this court’s prior decision in Union Gas System, Inc. v. Carnahan, 245 Kan. 80, 86, 774 P.2d 962 (1989).
Martin Pringle responded by pointing out that the deep-rooted presumption is that legislation will apply prospectively, unless the legislature clearly and unequivocally manifests its intent to apply a statute retroactively. It argues that the legislature did not manifest that retroactive intent in K.S.A. 55-1210. Moreover, Martin Pringle argues that prior to the July 1, 1993, effective date of K.S.A. 55-1210, Northern had lost title to that injected gas which had migrated outside its storage field under the ownership-in-place concept, which vested ownership in the adjoining landowner so long as the gas remained under that adjacent land. Therefore, a construction of K.S.A. 55-1210 which destroys the adjacent landowner’s vested right to produce the gas existing under the adjacent land on July 1, 1993, would constitute an unconstitutional taking of property without just compensation.
Martin Pringle further contends that Northern miscontrued the pre-July 1, 1993, rule of capture to mean that an adjacent landowner had to actually produce the migrated gas to obtain title to it. Rather, the law firm argues that the ownership-in-place doctrine vested title to the migrated gas in the adjacent landowner when it became part of the adjacent land, regardless of whether the gas had been produced. Likewise, Martin Pringle argues that Northern’s reliance on the Union Gas case is misplaced because that case dealt with a formal expansion of the storage field through certification and condemnation, an action which Northern could have attempted, but did not. Martin Pringle also attempts to debunk Northern’s public policy arguments by: (1) pointing out the other remedies which are available to a gas storage field operator when the stored gas migrates to adjacent land, such as seeking formal expansion of the storage field boundaries; and (2) explaining how an injector can prove the time at which gas migrated with the aid of a computer-generated simulation, an example of which was attached to its brief.
In its reply brief, Northern asserted that it is not seeking a retroactive application of K.S.A. 55-1210, notwithstanding its declaration that the statute abolished the rule of capture and any supplemental ownership-in-place doctrine. The apparent argument is that adjacent landowners had no right, title, or interest in uncaptured injection gas, so that the statute took nothing away from them. Northern also made the rather incredible argument that Martin Pringle did not have standing to argue against an unconstitutional interpretation of the statute because the law firm did not have any claim to the migrated gas. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 (2008) (court has duty to construe statute in a constitutional manner).
In addition to the parties involved in the Nebraska malpractice action, other entities joined the fray in our court. Trans Pacific Group and Trans Pacific Royalty Owners (collectively referred to as Trans Pacific) filed a motion requesting leave to file an amicus curiae brief, a motion to argue, and a motion to continue. Val Energy, Inc., and Nash Oil & Gas, Inc. (Nash), filed a motion for leave to file an amicus curiae brief and a motion to argue. We granted the motions to file amicus curiae briefs but denied the motions to argue and to continue.
Trans Pacific points out that the “question as to the proper interpretation of.K.S.A. 55-1210(c)(l) previously arose, was briefed, and was decided adversely to Northern in Northern Natural Gas Co. v. Trans Pacific Oil Corp., 2005 WL 2334688 (D. Kan.), aff'd 248 Fed. Appx. 882 (10th Cir. 2007).” Trans Pacific suggests that Northern’s certified question is a thinly veiled attempt to obtain a different interpretation of the statute from state court in an action where the potentially adversely affected landowners or royalty owners are not participating. It challenges the obtuse wording of the question and contends the factual premise upon which it is based is implausible. Given that the jury found no migration after July 1,1993, Northern would have to prove that its storage gas was migrating to Trans Pacific’s wells prior to July 1, 1993, but somehow the migration stopped when the legislature passed the statute. On the merits of the question, Trans Pacific’s arguments against a retroactive application of the statute track those of Martin Pringle but do so utilizing facts from the underlying litigation that are outside the facts submitted with the certified question.
Val Energy and Nash were not parties to the underlying case. However, Northern sued Nash in the federal District of Kansas, alleging that their wells were producing storage gas that had migrated outside of Northern’s storage field. The district court granted summary judgment in favor of Nash on statute of limitations grounds and alternatively on the preclusive effect of the jury trial in Trans Pacific. The Tenth Circuit Court of Appeals affirmed the decision on the statute of limitations grounds. Northern Natural Gas Co. v. Nash Oil & Gas, Inc., 506 F. Supp. 2d 520 (D. Kan 2007), aff'd 526 F.3d 626 (10th Cir. 2008). Northern also filed suit against Val Energy but dismissed the claims without prejudice. Val Energy claims that the case was dismissed pending the determination of this certified question.
Val Energy argues that we should decline to answer the certified question because it is not determinative of any issues in the malpractice lawsuit. It contends that even if the certified question is answered in Northern’s favor, Northern would still have to prove all of the elements of the malpractice claim, including that it would have received a favorable decision from the Tenth Circuit. On the merits, the amicus brief reiterates that the legislature did not manifest an intent to apply the statute retroactively and argues that the public policy cannot be to give injectors unlimited rights to the detriment of pre-existing property rights.
Both Northern and Martin Pringle filed reply briefs to address the amici curiae briefs. Northern essentially rebutted every point made by the amici, injecting more facts not in the record. Martin Pringle argued the propriety of the certified question, asserted its standing to argue against an unconstitutional interpretation of K.S.A. 55-1210, and declared its agreement with the amici’s interpretation of the statute.
PROPRIETY OF CERTIFIED QUESTION
Amici assert that the certified question presented will not be determinative in the legal malpractice action from which it comes. They suggest that the parties’ joint motion to certify the question was a manipulative attempt to obtain a collateral reversal of the federal district court’s interpretation of K.S.A. 55-1210. Their arguments are not totally unsupported.
The district court’s minute sheet from the Nebraska action accompanied the certification order. That document reflects that Martin Pringle had received an extension of time to file its answer to the legal malpractice petition, and, indeed, had not filed its answer when the Nebraska district court certified the question to this court. Although Northern apparently filed a brief in support of the joint motion for certification, it does not appear that the district court conducted a hearing or that Martin Pringle submitted a brief.
Martin Pringle argues to this court that a certified question is determinative in the underlying litigation when it disposes of a pivotal issue. However, one might ruminate on the efficacy of determining pivotal issues before the defendant answers the petition. For instance, one defense might be that the law firm cannot be held Hable for a mistaken opinion on a point of law that has not been settled by a court of last resort and on which reasonable doubt may be entertained by informed lawyers. See Bergstrom v. Noah, 266 Kan. 847, 880, 974 P.2d 531 (1999). A subsequent opinion settling the point of law is not determinative on that defense. Like wise, an answer to the certified question from this court that favors Martin Pringle does not unequivocally establish that the Tenth Circuit Court of Appeals would have reached the same conclusion in the actual Trans Pacific litigation. We find the discussion of certification by the New Mexico Supreme Court to be more persuasive:
“The intent of the certification of facts and determinative answer requirements is that this Court avoid rendering advisory opinions. Relative to the first requirement, it is sufficient if the certification of facts and the record contain the necessary factual predicates to our resolution of the question certified, and it is clear that evidence admissible at trial may be resolved in a manner requiring application of the law in question. Relative to the second requirement, our answer must be determinative in that it resolves the issue in the case out of which the question arose, and the resolution of this issue materially advances the ultimate termination of tire litigation.” Schlieter v. Carlos, 108 N.M. 507, 508, 775 P.2d 709 (1989).
Moreover, Northern’s arguments to this court give credence to the amici’s position. Rather than relate its proposed answer to the legal malpractice action, Northern focuses entirely on the reasons it should win against the absent adjacent landowners/royalty owners. For instance, in denying that it is asking for a retrospective statutory interpretation, Northern declares that “Northern merely seeks to lawfully protect its substantial capital investment in natural gas storage inventory by maintaining title to natural gas previously produced, purchased, and injected by Northern at great expense into underground storage facilities ultimately for the benefit of natural gas consumers.”
Likewise, Northern’s challenge to Martin Pringle’s standing to raise the unconstitutional taking issue plays squarely into amici’s arguments that Northern is seeking to take advantage of the adjoining landowners’ absence in this action.
Nevertheless, by ordering a briefing schedule, this court implicitly accepted the certified question from the Nebraska district court. We are loathe, at this late date, to find that the Nebraska court erred in its findings that the question was determinative of the action in that court. Accordingly, we will proceed to the merits of the certified question.
However, we pause briefly to discuss this court’s apparent prior practice of accepting all certified questions without prior review. K.S.A. 60-3201 clearly says this court “may” answer such questions. Other states have exercised that discretion. See, c.g., CSX Transportation, Inc. v. City of Garden City, 279 Ga. 655, 658, 619 S.E.2d 597 (2005) (dechning to answer certified questions because the questions had been addressed previously, were advisory, were anticipatory, or should be made under federal law); Brady v. PPL Montana, LLC, 343 Mont. 405, 405-06, 185 P.3d 330 (2008) (dechning to address certified question because unwilling to address constitutional issues in a vacuum); Grant Creek Water Works v. Com’r of Rev., 235 Mont. 1, 3-4, 775 P.2d 684 (1988) (dechning to answer because the issue presented would not control outcome of tax court litigation and beheved the tax court could resolve the issues of Montana law by applying well-settled principles of statutory construction); Luckey v. Butler Cty., 112 Ohio St. 3d 1467, 861 N.E.2d 142 (2007) (after reviewing prehminary memoranda pursuant to court rules, declines to answer certified question); Ball v. Wilshire Ins. Co., 184 P.3d 463, 466-67 (Okla. 2007) (declining to answer certified question because it may result in an advisory opinion because federal case may be dismissed for lack of jurisdiction, and see footnote 13 listing cases dechning to address certified question); Cray v. Deloitte Haskins & Sells, 925 P.2d 60, 62 (Okla. 1996) (dechning to answer certified question because it was appellate review of a federal judge’s ruling under the guise of a certified question); Jefferson v. Moran, 479 A.2d 734, 738 (R.I. 1984) (dechning to answer because addressing certified question is discretionaiy and the answer would not resolve the controversy because state court involvement was necessary for the party to get relief); Hoffman v. Regence Blue Shield, 140 Wash. 2d 121, 128, 991 P.2d 77 (2000), disapproved on other grounds Wash. Indep. Tel. Ass'n v. WUTC, 148 Wash. 2d 887, 64 P.3d 606 (2003) (dechning to answer second certified question because “any decision without a complete record could affect issues outside the questions certified and possibly bind entities who are not parties”). Henceforth, we intend to join our sister states in exercising our discretion on questions certified to this court.
PRIOR LAW
As a prelude to our discussion of the interpretation of K.S.A. 55-1210, we will review what the law was immediately prior to the July 1,1993, effective date of that statute. We begin with a century-old case, establishing that petroleum and gas belonged to the owner of the land “as long as they are on it, or in it, or subject to [the landowner s] control. When they escape and go into other lands, or come under another’s control, the title of the former owner is gone.” Zinc. Co. v. Freeman, 68 Kan. 691, 696, 75 Pac. 995 (1904). Under this “ownership in place theory,” Kansas landowners owned a present estate in the oil and gas in the ground. Mobil Oil Corp. v. Kansas Corporation Commission, 227 Kan. 594, 609, 608 P.2d 1325 (1980); see Richards v. Shearer, 145 Kan. 88, 64 P.2d 56 (1937).
That caselaw was developed with respect to native gas, rather than gas which had been captured and then returned to its natural habitat for storage purposes. In Anderson v. Beech Aircraft Corp., 237 Kan. 336, 699 P.2d 1023 (1985), this court had an opportunity to review a dispute involving the ownership of non-native gas that Beech Aircraft had injected into an underground reservoir for storage. The specific question presented was:
“Do owners of land and of an oil and gas lease have the right to produce as their own non-native gas from their land, which gas has previously been purchased, injected, and stored in a common reservoir by another landowner having no license, permit, or lease covering the land from which the non-native gas is produced?” 237 Kan. at 340.
The Anderson court explained:
“As far as natural gas is concerned, Kansas has long recognized the law of capture, holding that natural gas in the ground is part of the real estate until it is actually produced and severed. At that point, it becomes personalty. Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P.2d 463 (1935); Gas Co. v. Neosho County, 75 Kan. 335, 89 Pac. 750 (1907); In re Estate of Sellens, 7 Kan. App. 2d 48, 637 P.2d 483 (1981), rev. denied 230 Kan. 818 (1982).” 237 Kan. at 342.
The opinion then reviewed cases from outside jurisdictions addressing the issue of title to stored gas. For instance, some courts adopted a nonownership theory whereby once non-native injected gas migrated into the land of an adjoining landowner, an owner of the non-native gas was not Hable for trespass because he no longer owned the gas. See Bezzi v. Hocker, 370 F.2d 533 (10th Cir. 1966); Hammonds v. Central Kentucky Natural Gas Co., 255 Ky. 685, 75 S.W.2d 204 (1934); Protz v. Peoples Natural Gas Co., 93 Pitts. Leg. J. 239, aff'd 94 Pitts. Leg. J. 139 (1945). Other courts rejected the nonownership theory, finding that once natural gas was reduced to possession, title was not lost by injecting the gas into a natural underground reservoir. Cf. Ellis v. Arkansas Louisiana Gas Co., 450 F. Supp. 412 (E.D. Okla. 1978), aff'd 609 F.2d 436 (10th Cir. 1979), cert. denied 445 U.S. 964 (1980); White v. New York State Natural Gas Corporation, 190 F. Supp. 342 (W.D. Pa. 1960); Lone Star Gas Company v. Murchison, 353 S.W.2d 870 (Tex. Civ. App. 1962); see Anderson, 237 Kan. at 342-45.
Anderson also looked at various state statutes regulating the underground storage of natural gas. It noted that Missouri and Oklahoma had adopted statutes which made the injected gas subject to the law of capture if it migrated from the contained area. Washington, Georgia, Louisiana, and Colorado statutes provided that injected gas shall remain the property of the injector but preserved the rights of owners to drill through the underground reservoir. 237 Kan. at 345-46. The opinion noted that Kansas statutes permitted natural gas public utilities to condemn property for underground storage of natural gas. 237 Kan. at 346-47.
Ultimately, Anderson determined that applying the law of capture carried out the then-existing statutory scheme for underground gas storage. Accordingly, Beech Aircraft lost its ownership of the injected gas which had migrated to adjoining land. However, as Northern points out, the Anderson decision was premised upon certain facts: a natural gas utility was not involved; no certificate authorizing an underground storage facility had been issued by the Kansas Corporation Commission; and Beech Aircraft had used the property of the adjoining landowner for gas storage without authorization or consent. 237 Kan. at 348. Nevertheless, as subsequently clarified in Union Gas System, Inc. v. Carnahan, 245 Kan. 80, 86, 774 P.2d 962 (1989), those conditions do not save Northern from Anderson s rule.
In Union Gas, a natural gas public utility had injected gas in a sandstone formation. The boundaries of the storage area were unknown, but Union Gas suspected that it extended onto an adjoining landowners farmland. The adjacent landowners rejected Union Gas’ attempts to obtain a storage lease even though the landowners were aware the company believed its injected gas was migrating to the adjoining land. After the Anderson decision, the landowners and their lessees began production of both native and non-native natural gas from the adjoining land.
Eventually, Union decided to condemn the landowners subsurface for its use in underground gas storage. K.S.A. 55-1204 required Union Gas to obtain a certificate from the Kansas Corporation Commission (KCC) as a condition precedent to filing its petition of condemnation. The KCC issued its certificate on January 13,1986, and on March 11,1986, Union Gas filed its statutory condemnation petition in district court. A number of issues arose in the condemnation which found their way to this court on appeal.
One of the holdings in Union Gas wás that the injector was entitled to an offset against the condemnation award for the gas which was produced by the adjacent landowner from and after the January 13,1986, certification date, rather than from April 9,1987, which was the actual date of taking in the condemnation action. Interestingly, the opinion required that the offset value of the gas had to be reduced by Union Gas’ share of the cost of production, which specifically included a reasonable rental for the use of the adjacent land for storage, i.e., recognizing that an injector takes something of value from an adjacent landowner when it stores its migrated gas under the adjacent land without consent or authority. 245 Kan. at 88-89. Nevertheless, Northern divined that a “key principle” emerged from Union Gas’ holding on the certificate date offset, which it stated as: “title to migrated storage gas previously subject to the Rule of Capture revests in the injector immediately when the Rule of Capture ceases to apply.” Of course, Union Gas said no such thing.
To the contrary, Union Gas specifically rejected the injector’s attempt to recover a setoff for all of the migrated injection gas that the landowners had produced, based upon Anderson. Union Gas, like Northern, tried unsuccessfully to distinguish Anderson by arguing that it, unlike Beech Aircraft, was a natural gas public utility. Union Gas clarified that such a utility has the statutory ability to obtain a certificate for an underground gas storage area and that the failure to use that remedy places the utility squarely under the rule of Anderson. 245 Kan. at 86-87. Given that Northern did not obtain a certificate to condemn the adjacent landowners’ property prior to July 1, 1993, the adjoining landowners possessed a right, title, and interest in and to the gas which had migrated to the adjoining property as of that date.
INTERPRETATION OF KS.A. 55-1210
Northern does not seriously dispute the general proposition that a statute operates prospectively unless its language clearly indicates the legislature intended it to operate retrospectively. See Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220, 73 P.3d 753 (2003). Instead, it asks us to parse the statute to find clear intent from the use of the present perfect tense. To the contrary, as Martin Pringle points out, the legislature is well aware of the presumption against retroactive application of a statute and has on many occasions demonstrated an ability to clearly and unequivocally state its retroactive intention without relying solely on verb tense. See State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991).
Additionally, substantive laws affect vested rights, and as such they are not subject to retrospective legislation which would constitute the taking of property without due process. Owen Lumber Co., 276 Kan. at 221-22. As discussed above, prior to July 1,1993, the landowners adjoining Northern’s underground gas storage area possessed the legal right to produce and keep the injected gas which had migrated onto their property, unless and until Northern obtained a certificate to expand its storage area onto their land and paid them for that privilege through a condemnation action. K.S.A. 55-1210 abolished that right, as well as permitting migrating gas to trespass upon adjoining land. Such a substantive change to vested rights cannot apply retroactively.
Accordingly, we answer the certified question, “yes.” An injector of natural gas into underground storage, who demonstrates such gas was originally injected into underground storage but migrated to adjoining property or to a stratum or portion thereof which has not been condemned as allowed by law or otherwise purchased, loses title to or possession of the migrated gas when the gas mi grated before July 1, 1993, the effective date of the controlling statute, K.S.A. 55-1210, and was not captured or reduced to possession by another prior to July 1, 1993.
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The opinion of the court was delivered by
Holmes, J.:
Union Pacific Railroad Company (Union Pacific or appellant), a Utah corporation doing business in Kansas, appeals from an order dismissing its claim filed against the Estate of E. F. Madden, Deceased, in the District Court of Ellis County, Kansas. The Court of Appeals affirmed the decision of the district court (In re Estate of Madden, 11 Kan. App. 2d 540, 729 P.2d 464 [1986]), and Union Pacific filed a petition for review by this court which was granted.
Only one issue is asserted in the petition for review: Whether a known creditor may constitutionally be barred by the nonclaim statute, K.S.A. 59-2239, when the only notice given of the appointment of the decedent’s personal representative is publication notice under K.S.A. 59-2236.
The trial court’s dismissal was entered as a matter of law without an evidentiary hearing and for purposes of appeal the facts will be construed in a light most favorable to the appellant’s assertions. Those facts are fully set forth in the Court of Appeals opinion and need not be repeated in detail here but will be greatly summarized. E. F. Madden was the lessee of property on the appellant’s right-of-way under a written lease which expired June 30, 1984. Madden had constructed improvements upon the property and failed to remove them when the lease terminated. Union Pacific had the structures removed at a cost of $18,400 and, as provided under the terms of the lease, sought reimbursement from Mr. Madden. On October 10, 1984, appellant contacted Madden’s attorneys, Thomas C. Boone and Caleb Boone of Hays, regarding the low bid for removal. Caleb Boone indicated to Union Pacific that if Union Pacific removed the structures in accordance with the lease, Mr. Madden “would fulfill his obligation under the terms of the lease.” On October 25.1984, Madden died. On November 1, 1984, Union Pacific, by certified mail addressed to E. F. Madden, demanded reimbursement for the removal expense and Madden’s son, E. F. Madden, Jr., signed the return receipt. On November 6, 1984, Thomas C. Boone wrote regarding “the Madden matter” alleging Union Pacific had breached the terms of the lease agreement, but he did not specify the nature of the alleged breach. The letter indicated a copy was sent to “Mr. E. F. Madden.” On November 8.1984, a petition for probate of the deceased’s will was filed by an attorney other than the Boones and the first notice to creditors was published on November 15, 1984. On March 19, 1985, appellant acknowledged that Madden was entitled to credit for salvage, which was subsequently determined to be an amount of $1,000. On May 15, 1985, the period for making claims against the estate of E. F. Madden expired. On May 29, 1985, Thomas C. Boone informed appellant’s attorney that E. F. Madden had died. On June 3, 1985, appellant filed its petition for allowance of demand against the Madden estate in the amount of $17,400 ($18,400 less $1,000 credit for salvage). The estate, through the Boones, asserted the defense that the claim was not filed within six months from the first publication of notice to creditors and was barred by K.S.A. 59-2239. The district court dismissed the claim. Additional facts will be set forth as they become necessary to the issue on appeal.
While estoppel was asserted before the Court of Appeals, the only issue raised by the petition for review is whether a known creditor may constitutionally be barred by the nonclaim statute when the only notice given of the appointment of a decedent’s personal representative is publication notice under K.S.A. 59-2236. The nonclaim statute, K.S.A. 59-2239, as it existed at the pertinent times herein, provided in part:
“All demands, . . . against a decedent’s estate, . . . not exhibited as required by this act within six (6) months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment . . . .”
The time limitation of the statute was amended by the 1985 legislature to four months (K.S.A. 1986 Supp. 59-2239), but the amendment does not affect the issue before this court.
Union Pacific relies on three cases to support its position that K.S.A. 59-2239 is unconstitutional because it does not provide for actual notice to known creditors. The first is Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), where the Supreme Court struck down a provision of a common trust fund statute which allowed for notice by publication to known beneficiaries of a common trust fund to inform them of an action that would settle any claims they had against the trustee. The Court stated its definition of procedural due process:
“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457; Grannis v. Ordean, 234 U.S. 385; Priest v. Las Vegas, 232 U.S. 604; Roller v. Holly, 176 U.S. 398. The notice must be of such nature as reasonably to convey the required information, Grannis v. Ordean, supra, and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Goodrich v. Ferris, 214 U.S. 71.” 339 U.S. at 314.
Recause the adjudication before the court would deprive those known beneficiaries, whose addresses were also known, of substantial property rights (the right to sue the trustee for improper management of the fund would be terminated by the court decree), the notice by publication was held insufficient as not meeting the requirements of due process.
After Mullane was decided, several states were faced with the issue of whether their probate nonclaim statutes, providing only for notice publication, were constitutional. First, in Gano Farms, Inc. v. Estate of Kleweno, 2 Kan. App. 2d 506, 582 P.2d 742, rev. denied 225 Kan. 844 (1978), the Kansas Court of Appeals was faced with a situation where the debtor died a resident of one county and notice to creditors was published in that county. The creditor, who had sold goods on credit to the debtor, was located in another county and did not learn of the debtor’s death until after the nonclaim statutory time period had run. The creditor’s claim, which was filed after the nonclaim statute period, was disallowed, and the creditor on appeal argued it was entitled to actual notice and the nonclaim statute was unconstitutional. The Court of Appeals ruled the nonclaim statute was constitutional and based its rationale on two factors. First, the court noted that the cases cited in Mullane holding actual notice was required involved notice in a proceeding that would affect a property right and the purpose of the notice was to, in effect, make the party allegedly notified a party to the proceeding. The Court of Appeals reasoned that the purpose of the notice under the nonclaim statute is not to make the creditor a party to the proceeding, but to inform the creditor that he may become a party if he wishes. The second factor upon which the court’s opinion is based is that the nonclaim statute is merely a statute of limitations and it is the running of the time period, rather than any court order, which cuts off the creditor’s claim. Other states have reached the same conclusion. See In Matter of Estate of Fessler, 100 Wis. 2d 437, 302 N.W.2d 414 (1981); Baker Nat. Bank v. Henderson, 151 Mont. 526, 445 P.2d 574 (1968); Continental Coffee v. Est. of Clark, 84 Nev. 208, 438 P.2d 818 (1968); New York Merch. Co. v. Stout, 43 Wash. 2d 825, 264 P.2d 863 (1953).
In Estate of Fessler, the Supreme Court of Wisconsin agreed with the rationale found in Gano Farms. The court concluded that Mullane did not control the issue of whether the due process clause required more than notice by publication under the state’s nonclaim statute. The court stated:
“It is evident upon a reading of [the cases following Mullane] that the scope of the Mullane rule is limited to those rights or interests jeopardized by judicial or quasi-judicial actions or proceedings. It is therefore crucial to this review to determine whether or not [the creditor’s] claim has been extinguished by adjudication or by some other means.
“[The creditor’s] claim was extinguished by operation of sec. 859.01, Stats. This section requires that claims in probate be filed within a specified period of time, and if a claim is not filed it is barred forever. It is settled law in Wisconsin that this statute is essentially a statute of limitations. Estate of Palmer, 68 Wis. 2d 101, 107, 227 N.W.2d 680 (1975); Estate of Lathers, 215 Wis. 151, 251 N.W. 466 (1934).
“The bar created by operation of a statute of limitations is established independently of any adjudicatory process. It is legislative expression of policy that prohibits litigants from raising claims — -whether or not they are meritorious— after the expiration of a given period of time.
“We conclude that [the creditor’s] probate claim was cut off by operation of a statute of limitation and not by action of a judicial body. Therefore, the Mullane rule has no application.” 100 Wis. 2d at 447-48.
The second case relied on by Union Pacific is Mennonite Board of Missions v. Adams, 462 U.S. 791, 77 L. Ed. 2d 180, 103 S. Ct. 2706 (1983), which involved the notice necessary under the state statute for sale of real property for failure to pay taxes. There, the statute provided for the owner of the property to receive notice of the tax foreclosure by certified mail, but no provision was made to notify a mortgagee of the property. The Mennonite Board of Missions held a mortgage upon the property being sold and learned of the sale only after the redemption period had run. The Board then challenged the validity of the foreclosure. The Court ruled the statute allowing for notice by publication was unconstitutional. The Court found the mortgagee had a legally protected property interest, which was a matter of public record, and the foreclosure proceeding would adversely affect that interest. The Court stated:
“Since a mortgagee clearly has a legally protected property interest, he is entitled to notice reasonably calculated to apprise him of a pending tax sale. Cf. Wiswall v. Sampson, [55 U.S. (14 How.) 52, 67,14 L. Ed. 322] (1853). When the mortgagee is identified in a mortgage that is publicly recorded, constructive notice by publication must be supplemented by notice mailed to the mortgagee’s last known available address, or by personal service. But unless the mortgagee is not reasonably identifiable, constructive notice alone does not satisfy the mandate of Mullane.
“. . . Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interest of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” 462 U.S. at 798-800.
The last in the trilogy of cases relied upon by Union Pacific is Continental Ins. Co. v. Sister Moseley, 100 Nev. 337, 683 P.2d 20 (1984) (Moseley III). There, Continental had filed a civil action against the debtor prior to her death. Continental received notice of the death on the last day for filing claims against the decedent’s estate pursuant to the nonclaim statute. Continental filed its claim two days after the time period had run. When its claim was dismissed, Continental appealed and argued the notice by publication to creditors violated procedural due process. The first time the case was heard, Continental Ins. Co. v. Moseley, 98 Nev. 476, 653 P.2d 158 (1982) (Moseley I), the Nevada court ruled publication notice satisfied Mullane as notice by publication was reasonably and sufficiently calculated to provide actual notice to Continental. The court noted that Continental did in fact receive actual notice on the last day for filing claims. Notice by publication was viewed by the court as furthering the State’s policy to “provide an expeditious and comparatively unencumbered means of accomplishing estate administration.” 98 Nev. at 478. On appeal to the United States Supreme Court, the Court, in a memorandum opinion, which did not address the facts or merits of the action, vacated that decision and remanded the case for further consideration in light of Mennonite Board of Missions v. Adams. Continental Insurance Company v. Moseley, 463 U.S. 1202, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983) (Moseley II). On remand, the Nevada court noted the estate had actual knowledge of Continental’s claim against the decedent and that Continental was listed in the petition for summary administration. Without mentioning or determining whether the creditor had a legally protected property interest or whether an adjudication was involved in the probate proceeding depriving the creditor of his property, the court ruled more than service by publication was required:
“The issue presented by this appeal, therefore, is whether the estate’s complete reliance on supplying notice by publication in these circumstances complied with the requirements of due process.
“The guiding principle to be applied was expressed in Mullane v. Central Hanover Tr. Co., 339 U.S. 306 (1950):
‘An elementary and fundamental requirement of due process in any pro ceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections . . . .’
339 U.S. at 314.
“In Mennonite, the Supreme Court applied this principle and found that mere constructive notice afforded inadequate due process to a readily ascertainable mortgage holder. Given the facts of this case and the holdings in Mennonite and Mullane, we conclude that more than service by publication was required in order to afford due process to appellant. We therefore reverse the orders of the district courts and remand these matters for further proceedings consistent with this opinion.” Moseley III, 100 Nev. at 338.
Union Pacific argues that by vacating and remanding Moseley I, the United States Supreme Court has directly held that mere publication notice to a known creditor in probate proceedings does not comport with due process. Two states which have addressed the issue of whether their nonclaim statutes providing for publication are constitutional since the Moseley remand by the Supreme Court do not agree with Union Pacific’s contention.
In Estate of Busch v. Ferrell-Duncan Clinic, 700 S.W.2d 86 (Mo. 1985), the creditor had provided medical services to Busch prior to his death. The creditor’s claim against the estate was rejected as being barred by the nonclaim statute and on appeal, relying on Mennonite Board of Missions v. Adams, the creditor asserted the due process argument. After reviewing Mullane and subsequent cases, the court found those cases requiring more than publication notice involved facts where a person’s rights or interests are sought to be affected by a judicial or quasi-judicial decree. The court agreed with Gano Farms, Inc., 2 Kan. App. 2d 506, that the purpose of notice under the nonclaim statute is not to make a creditor a party to the proceeding, but to notify the creditor it may become a party if it wishes. The court also found the nonclaim statute to be a statute of limitations, and that it is the independent running of the statute that bars the creditor’s claim, and not an adjudicatory proceeding.
The creditor in Estate of Busch also cited Moseley III in its argument to the court. In a footnote to the opinion, the court stated:
“Plaintiff also cites Continental Ins. Co. v. Moseley, 683 P.2d 20 (Nev. 1984), following remand from the Supreme Court, 463 U.S. 1202, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983). The Nevada Supreme Court applied Mullane, and held that a known estate creditor’s claim could not be barred by the running of a nonclaim statute unless ‘more than service by publication’ was afforded the creditor. The Supreme Court’s procedure — granting certiorari, vacating and remanding for further consideration in light of Mennonite Bd. of Missions, supra — does not conclusively indicate that the Supreme Court has held, or will hold, Mullane applicable in the circumstances of the remanded case. We are not persuaded by the Nevada court’s holding after considering the Mennonite case.” 700 S.W.2d at 87 n.2.
The other state to have addressed the issue of whether its nonclaim statute is constitutional is Illinois in Gibbs v. Estate of Dolan, 146 Ill. App. 3d 203, 496 N.E.2d 1126 (1986). There, the claimants purchased a motorcoach in December 1983 from a dealership which was a sole proprietorship of Dolan. The motorcoach did not operate satisfactorily and the claimants repeatedly took it to the dealership for repairs. In March 1984, Dolan died and the claimants immediately learned of his death when they contacted the dealership about repairs to their motorcoach. Claimants, who were threatening legal action, continued to meet with the dealership’s representatives in an effort to resolve the problems they were having with their motorcoach. Finally, in January 1985, the claimants filed a claim against the decedent’s estate. The nonclaim statutory time period had expired on September 27, 1984, and the claim was disallowed. The claimants argued the nonclaim statute, “providing for notice by publication, denied them due process of law since it was not reasonably calculated to apprise them of the six-month claims limitation period where the estate knew their names and addresses and, in fact, did send notice of the claims period to at least one other claimant.” 146 Ill. App. 3d at 206. The Illinois court made the same distinction as have other courts, stating:
“[The nonclaim statute] is not directly concerned with giving notice of an adjudication of rights, but rather, with giving notice of the limitations period for seeking an adjudication of rights. This situation should not, therefore, be viewed as necessarily subject to the Mullane and Mennonite Board of Missions due process requirements for notice of an adjudication, but instead is more closely analogous to requiring notice of a limitations period. Unlike the notice required prior to an adjudication, the Supreme Court has specifically stated that due process does not require potential defendants to notify potential plaintiffs of the impending expiration of a limitations period. Texaco, Inc. v. Short (1982), 454 U.S. 516, 536, 70 L. Ed. 2d 738, 755, 102 S. Ct. 781, 796.
“Claimants contend that they were deprived of property when they lost their cause of action due to a failure to be notified of the impending expiration of the estate-claims period; that, however, is not the type of notice protected by Mullane and Mennonite Board of Missions. As is plainly evidenced by a reading of Mullane and Mennonite Board of Missions in conjunction with Texaco, Inc. v. Short, those cases concerned notice of a pending adjudication, not notice of the impending expiration of a limitations period.” 146 Ill. App. 3d at 208-09.
In a scholarly and comprehensive article, one commentator has concluded the Kansas nonclaim statute is probably unconstitutional. Kuether, Is Kansas Probate Non Claim Statute UnconstitutionalP, 54 K.B.A.J. 115 (1985).
“Although it is a very close question, it is my conclusion that the nonclaim statute most likely will be held to be unconstitutional as to known or reasonably ascertainable creditors in estates undergoing administration. The probate proceeding is too similar to a judicial accounting, as in Mullane, to justify the lack of actual notice to creditors who are reasonably ascertainable. Starting the running of the ‘statute of limitations’ with the first published notice to creditors in the probate proceeding creates a situation in which it is the initiation of a proceeding by petition and notice to creditors, which cuts off the creditors’ rights without notice. It is not an independent statute of limitations. There does not appear to be any substantial counter-balancing reason for the failure to notify known creditors.” 54 K.B.A.J. at 123. (Emphasis added.)
The basis of the author’s conclusion that the statute is unconstitutional seems to be his determination that the filing of the petition with the court and the published notice to creditors starts a proceeding which will determine creditors’ claims and is so similar to a judicial accounting, as in Mullane, that actual notice must be given to readily ascertainable creditors. With the possible exception of the Nevada Supreme Court in Moseley III, no court, however, has adopted this view. We also note the Nevada court did not elaborate on, or specifically address, the reasons for its finding that publication notice in that case was insufficient. The mere filing of a petition with the probate court to initiate probate proceedings and the related published notice to creditors only begin the running of the nonclaim statutory time period. Independent of any court action, the nonclaim statute, being a statute of limitations, cuts off the creditor’s right to assert a claim against a decedent’s estate. In Texaco, Inc. v. Short, 454 U.S. 516, 70 L. Ed. 2d 738, 102 S. Ct. 781 (1982), the United States Supreme Court ruled that specific notice is not necessary under a self-executing statute that establishes the circumstances in which a property interest will lapse through the inaction of its owner; i.e., the due process clause does not require a defendant to notify a potential plaintiff that a statute of limitations is about to run.
While we agree with Professor Kuether that the issue before the court “is a very close question,” we disagree with his conclusion that the nonclaim statute is unconstitutional as to known or reasonably ascertainable creditors. It is universally recognized that in probate proceedings involving a decedent’s estate some speedy finality of the proceedings must be reached for the benefit of all parties interested in the estate. In 3 Bartlett’s Kansas Probate Law and Practice § 1316 (rev. ed. 1953), the author states the purpose of the nonclaim statute:
“An evident purpose of the statute is to protect the executor or administrator against stale claims and to enable him to close the estate and distribute the balance thereof without unnecessary delay. A primary purpose is the speedy settlement of the estates of deceased persons in the interest of creditors, heirs, legatees, and devisees, and to render certain the titles to real estate. A speedy administration of the estate is for the benefit of creditors, who have the priority of right; and, when their claims are satisfied, for the payment of legacies or distribution to the heirs. When beneficiaries or heirs succeed to the estate it should be to a title freed from the incumbrance of or liability to debts. In subservience to this purpose has been the uniform construction of these statutes, and especially of the statute of nonclaim. In the absence of this statute, a settlement of an executor or administrator and the payment of legacies or distributive shares would be attended with the peril of future litigation by creditors against the beneficiaries and distributees to subject their legacies or distributive shares to the payment of debts. In making distribution or paying legacies, the personal representative would act at his own hazard.”.
Likewise, it has long been recognized that the nonclaim statute is a statute of limitations applicable to claims against a decedent’s estate. Union Nat’l Bank & Trust Co. v. Estate of Werning, 233 Kan. 671, 665 P.2d 192 (1983), and cases cited therein. We agree with the Court of Appeals’ reasoning in Gano Farms, and those cases which recognize the distinction between the application of a statute of limitations and a notice which actually makes the party notified by publication a party to the action and then affirmatively affects that person’s property rights. To hold that a decedent’s personal representative must give actual notice to all “known or reasonably ascertainable creditors” would be not only time-consuming but extremely difficult to administer. Professor Kuether, in his article, discusses at some length the practical problems of such a requirement. Every claim, not actually filed within the time limits of the statute, would be open to subsequent litigation to determine whether the creditor was known or could have been reasonably ascertained and whether the creditor may or may not have had actual knowledge of the death of the debtor. Every such claim would become a trial to determine factual issues which could result in defeating the purpose of seeking a speedy resolution of a decedent’s estate. We conclude that the nonclaim statute, now K.S.A. 1986 Supp. 59-2239, being a statute of limitations and not an adjudication of rights, is not unconstitutional as a violation of the due process rights of a known creditor.
The decision of the Court of Appeals and the judgment of the district court are affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover a balance alleged to be due the plaintiffs under the terms of a written agistment agreement, whereby they leased the defendants the 11,000 acre Mulvane Ranch, located in Chase and Morris Counties, Kansas, for pasturage purposes and subsequently pastured 2,003 head of defendants’ cattle (steers) in such pasture during the 1958 pasture season.
No issue is raised regarding the pleadings. Therefore reference thereto will be brief and the allegations thereof when mentioned, except for one particular, will be highly summarized.
The amended petition, which includes a copy of the contract, contains all allegations required to state a cause of action against the defendants for recovery of the balance of $3,750.74, alleged to be due and payable under the terms of that agreement, for the number of defendants’ steers pastured on the Mulvane Ranch during the 1958 season.
The contract attached to the amended petition is important and pertinent portions thereof should be detailed. Limited as indicated, such agreement reads:
"This Contract made and entered into March 15, 1958, by and between Mulvane Ranch, by its agent, David M. Hughes (Los Angeles, California), Party of the First Part, and Frank W. Atkinson of Burdick (Morris County), Kansas and Henry C. Hitch of Guymon, Oklahoma, Parties of the Second Part.
Witnesseth: . . . said parties'hereby agree as follows: . . . First Party agrees to lease . . . Second Parties the pasture known as Mulvane Ranch . . . containing Eleven Thousand . . . acres, more or less, for the sum of Forty Thousand . . . Dollars.
“. . . Second Parties agree to stock said pasture with not less than Two Thousand . . . steers . . . Second Parties agree to pay . . . First Party at the rate of Twenty . . . Dollars per head for all steers in excess of Two Thousand head so stocked.
“. . . Second Parties agree to deliver to . . . First Party between April 24, 1958, and June 1, 1958, said . . . cattle at the stock yards, at Rockland, Kansas, to be pastured by said First Party not later than October 15, 1958.
“. . . First Party agrees to receive said cattle at the within named place; to have an abundance of salt at all times; to use every reasonable effort to maintain water, and to return said cattle to Rockland station stock yards, upon the request of said Second Parties, and to load them on cars as furnished. . . . First Party agrees to pay for all cattle that may be lost, strayed, or stolen, at the average net selling price of said cattle, . . . but not for those that die from natural or unavoidable causes, . . .
“. . . Second Parties agree to pay . . . First Party for pasturing, salting, watering, and caring for said cattle Twenty . . . Dollars per head, or until the amount of Forty Thousand . . . Dollars has been paid and to pay in addition at the rate of Twenty . . . Dollars per head for all steers in excess of Two Thousand . . . head as the steers are shipped to market, or delivered to the owner, . . .”
Defendants’ amended answer denies all allegations of the amended petition not specifically admitted; admits the allegations contained on page 1 of that pleading and those on page 2, except the last paragraph thereof; asserts Keith W. Gibb was acting within the scope of his authority as agent of the plaintiffs; states the defendants orally instructed the plaintiffs to keep three groups of cattle, therein identified, separated, to maintain the division and “trap” fences and gates in proper repair, and to separate "buffers” from other cattle; and then alleges that in caring for the steers mentioned in the petition plaintiffs were guilty of nine specific acts of negligence which resulted in the loss of several steers and in the loss of an average gain in the remainder, all of these damages resulting in a loss to defendants in an amount of money, which was far in excess of the unpaid balance claimed by plaintiffs in their petition to have been due under the contract.
Defendants also included in their amended answer a cross-petition wherein they made the allegations of the amended answer a part thereof and then, by way of counterclaim, prayed that they recover judgment for the amount of damages therein claimed to have been sustained by reason of plaintiffs’ alleged negligence.
For all purposes here pertinent it may be stated the plaintiffs’ reply and answer to the amended answer and cross-petition contained a general denial and otherwise joined issues on all questions raised by that pleading.
With issues joined as indicated the cáse came on for trial in the district court of Morris County, whereupon counsel for the respective parties announced in open court that the only issues to be tried were those issues of set-off and counterclaim as alleged in the amended answer and cross-petition of defendants and in the reply and answer to the amended cross-petition of the plaintiffs. It was further stipulated that, except for such issues, judgment should be entered in favor of plaintiffs in accordance with the prayer of their amended petition.
. Thereupon a jury, which we take note was composed of jurors from the Flint hills — blue stem pasture area of Kansas, was duly empaneled and sworn to try the cause. The defendants then introduced their evidence in support of their cross-petition as amended and rested. Whereupon the plaintiffs demurred to such evidence. When this demurrer was overruled the plaintiffs introduced their evidence in defense and rested. Defendants then introduced their rebuttal evidence and rested.
Thereafter the court instructed the jury in writing, counsel for both sides presented oral argument and the jury was permitted to retire to the jury room to commence its deliberations, taking with it special questions which had been submitted by the court. Subsequently the jury returned with a general verdict for the plaintiffs and against the defendants, together with three of the submitted special questions and its answers thereto which read:
“1. State whether the defendants’ steers had any habits, characteristics, or conditions which imposed any extra burden on the plaintiffs in caring for them and which were not reasonably included or anticipated in the agistment contract.
“Answer: Yes.
“2. If you answer Special Question No. 1 in the affirmative, then state whether the plaintiffs' manager Bill Gibb informed the defendants with reasonable promptness of any unusual habits, characteristics or conditions of which the defendants did not already have knowledge.
“Answer: Yes.
“3. State whether tire defendants knew or should have known that their implantation of the steers with stilbestrol would create a problem in caring for the steers which would not ordinarily be encountered or anticipated by an agister.
“Answer: Yes.”
Special questions 4 and 5, as submitted by the trial court, were returned by the jury unanswered for the reason that question 4 required no answer unless question 3 had been answered by the jury in the negative and question 5 did not call for any answer unless the jury by its general verdict allowed, which it did not, the defendants damages, as claimed in their amended answer and cross-petition.
Following rendition of judgment in accord with the verdict defendants filed a motion to set aside the answers to the special questions, based on the ground such answers were not supported by the evidence, and a motion for a new trial, based on the first four subsections of our statute (G. S. 1949, 60-3001), prescribing grounds for the granting of such a motion. When these motions were overruled the defendants perfected the instant appeal.
The issues involved will be simplified by stating at the outset that, although numerous specifications of error appear in defendants’ abstract, the only errors complained of in their brief are limited to two specifications of error, Nos. 1 and 2, relating to the instructions given by the trial court and to requested instructions refuseds,by that tribunal. In that situation the universal and long established rule of this jurisdiction is that all other specifications of error must be regarded as abandoned (See e. g., Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859; also decisions cited at page 727 of the opinion of Blakeman v. Lofland, 173 Kan. 725, 252 P. 2d 852). For our latest expression on the subject see Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 358 P. 2d 786, and decisions there cited, where it is said:
"In defendant’s abstract are found twenty-two separate specifications of error. In defendant’s brief, only eight alleged errors are argued. It may be that some of the assigned errors are combined in the eight argued, but it must be noted this court has long been committed to the rule that specified errors not argued in the brief are deemed to have been waived . . .” (p. 531.)
What has been heretofore stated makes it appear our decision of this case is limited to alleged instructional errors. Even so the issues with respect to such questions will be further clarified by reference to established rules of this court relating to verdicts and special findings.
One of such rules is that a general verdict resolves all issues of fact, supported by evidence, in favor of the prevailing party, and that such a verdict must stand unless tire effect of special findings, when considered as a whole, is such as to overthrow it. (See Epple v. Kress & Co., 187 Kan. 452, 457, 357 P. 2d 828; Blakey v. Zirkle, 187 Kan. 562, 564, 358 P. 2d 758; Grigsby v. Jenkins, 183 Kan. 594, 596, 331 P. 2d 284.)
In connection with the matters just mentioned it must be remembered that the parties stipulated that the only issues to be tried in the cause now before us were those issues raised by the defendants’ set-off and counterclaim in their amended answer and cross-petition and in the plaintiffs’ reply and answer to that pleading; likewise kept in mind that under the allegations of the amended answer and cross-petition, as previously indicated, the defendants based their right to relief, almost if not entirely, on certain acts of negligence, alleged to have been committed by the plaintiffs, which were specifically charged to have resulted in and were the cause of the death of certain of their steers and the loss of weight to others. Under the rule last above mentioned all these issues were decided adversely to the defendants. Moreover, and conceding the steers pastured under the contract in question were seriously injured and lost weight as the result of “bulling,” the same rule compels the conclusion that issues brought into the case as to (1) whether defendants implanting such steers with stilbestrol prior to their delivery caused a subsequent extraordinary and uncontrollable condition in the herd; and (2) whether plaintiffs, under such conditions, exercised the degree of care required of them by the terms of the contract (See, e. g., Cox v. Chase, 95 Kan. 531, 535, 536, 148 Pac. 766), were also questions of fact which were likewise resolved by the jury against the defendants.
We are not disposed to here detail the testimony adduced by the respective parties during the trial of the case, as disclosed by a lengthy record. It suffices to say that, after an extended examination of the record and careful consideration of all contentions made by counsel in support of their respective positions with regard to the status of the evidence, we are convinced, that even though it must he conceded the evidence was highly conflicting, such record discloses substantial competent evidence to sustain both the verdict and the answers to the special questions; and equally convinced the special findings are not inconsistent with the general verdict.
Thus we come to instructional claims of error advanced by defendants as grounds for reversal of the judgment. In approaching these questions it should be pointed out that in reviewing such claims the rule of general construction is that instructions must be construed together and if taken as a whole they properly state the law they are sufficient (Giltner v. Stephens, 166 Kan. 172, 200 P. 2d 290; Wing v. Mid-Continent Seeds, 170 Kan. 242, 246, 225 P. 2d 78; Casner v. Common School District No. 7, 175 Kan. 551, 556, 265 P. 2d 1027; West’s Kansas Digest, Trial, § 295; Hatcher’s Kansas Digest [Rev. Ed.] Trial § 185.)
In this connection it is interesting to note that in instructions, to which no objections were made, the trial court: In Instruction No. 5 advised the jury the burden of proof was on the defendants upon their cross-petition and before they could recover they must prove that at or about the times complained of plaintiffs were guilty of negligence which was the proximate cause of the damages to defendants’ cattle. In Instruction No. 6 defined negligence as the want of ordinary care and stated that the right of a party to recover requires that the injury complained of be the proximate result of some alleged act or acts of negligence. In Instruction No. 7 defined proximate cause and natural and probable consequences. In Instruction No. 8 specifically instructed the jury as follows:
“. . . that it was the duty of the plaintiffs to exercise that degree of care for defendants’ cattle which would have been exercised by a reasonably prudent person for his own animals under the same or similar circumstances. If you find that the plaintiffs failed to exercise such care, then plaintiffs were guilty of negligence. If you further find that such negligence resulted in damage to the cattle as a proximate cause thereof, your verdict shall be in favor of the defendants upon that issue.”
And in Instruction No. 11 advised die jury that:
“In the absence of special provisions in the contract of agistment, an agister does not insure the safety of the animals covered by the contract. He is liable for loss or damage to them only on proof by a preponderance of the evidence that he has been guilty of negligence or want of ordinary care, as defined above, and that such negligence or want of ordinary care was the proximate or producing cause of the loss or injury.”
Another Instruction (No. 12), of which no complaint is made, reads:
“You are instructed that the duty of caring for defendants’ cattle rested upon the plaintiffs. It is admitted that they delegated the duty of caring for the cattle to Bill Gibb. If you find from the evidence that Bill Gibb failed to exercise the care for the cattle which would have been exercised by an ordinarily prudent person for his own animals, plaintiffs are liable for such lack of ordinary care upon the part of Bill Gibb to the same extent as if they had been personally guilty of the acts or omissions of Bill Gibb constituting his failure to exercise ordinary care.”
Another such Instruction (No. 14) reads:
“You are instructed that it is admitted by plaintiffs that they knew the necessity for separating bullers from the other cattle to prevent injury to the bullers from the other cattle. It then became the duty of plaintiffs either to separate the bullers from the other cattle or, if unable to do so, to notify the defendants of the fact that bullers were in the herd and of plaintiffs’ inability to protect them by pasturing them separately. If you find that plaintiffs failed to cut out the bullers and failed to notify defendants of their inability to pasture the bullers apart from the other cattle, you will find that plaintiffs were guilty of negligence.”
The first of three instructions complained of by defendants is Instruction No. 9. It reads:
“The contract by which the plaintiff David M. Hughes, agreed to lease to the defendants the pastures of the Mulvane Ranch for the grazing of the steers is known in law as a contract of agistment, and the person who takes in livestock to graze on his pastures is known as an agister. Such contracts are similar to leases on land. While they provide for some personal services in connection with the pasturing of cattle, such personal services are incidental.”
We see nothing wrong with the foregoing instruction. Indeed we believe it is warranted by one of our own decisions (Lips v. Opp, 150 Kan. 745, 96 P. 2d 865) where, in dealing with the nature of, and the force and effect to be given, an agistment contract containing provisions remarkably similar to the one here involved, it is said:
“Much emphasis has been put on that feature of the contract which calls for certain services on plaintiff’s part. We believe the emphasis has been misplaced. While it is true that the contracts in question call for some personal services in connection with the pasturing of cattle, still from the nature of the contracts it seems clear that personal service was incidental, as in the case of handling a ship under charter. The principal consideration for the promised payment of money was the furnishing of the pastures — the grass and water that made the land pasture land.
“These contracts were only incidentally contracts for personal service. While technically not leases, they are similar to leases. The use of the land was the all-important consideration. The contracts provided that appellee should receive the cattle, furnish pasture for them, supply salt and water, and care for and return the cattle. Of course, the main object of an agistment contract is the furnishing of pasture land on which the cattle might graze and gain weight. The principal service contemplated by the contracts was simply a duty on plaintiffs part to see that the cattle did not escape, or die from lack of food and water. . .” (pp. 751, 752.)
Further support for the conclusion just announced is to be found in well-recognized legal treatises.
See 2 Am. Jur., Animals, § 21, which reads:
“The particular kind of bailment under which a man, for a consideration, takes in cattle to graze and pasture on his land is technically termed an agistment. An agister is bound to take reasonable or ordinary care of the animals committed to his charge; but in the absence of a special contract, he is not an insurer of their safety and, in the event of loss, is hable only on proof of negligence or want of ordinary care on his part.
“In accordance with the rule as to ordinary bailments of animals, the bailee’s liability may depend upon the terms of the agreement in the particular case, as, for example, where he agrees to insure the animals or to furnish care of a specified nature or to perform specified acts.
“By the term ordinary care and diligence is meant that degree of care that a man of ordinary prudence would exercise under the same or similar circumstances with reference to his own property.” (p. 709.)
See, also, 3 C. J. S., Animals, § 17, where it is said:
“In the absence of special agreement, an agistor is bound to exercise ordinary diligence in keeping, feeding, sheltering, and otherwise caring for animals committed to his custody, and is liable for loss or injury to the animals resulting from his breach of such duty; exercise of ordinary care satisfies the agistor’s obligations, he is not an insurer; and he may not be held responsible for loss or damage occurring without his fault.” (pp. 1108, 1109.)
And see 3 C. J. S., Animals, § 17, which reads:
“In accordance with the general rule, as set forth in Bailments § 22 [6 C. J. p. 1110 note 25-p 1113 note 58], that a bailee and bailor may by special contract enlarge or restrict the liability ordinarily imposed upon a bailee, the parties to a contract of agistment, such as a partido contract, may stipulate as to the kind and degree of care required of the bailee, and the liability of an agistor may be limited or enlarged by a special contract.
“Contracts expressly requiring an agistor to take good care of animals, or such care as he would take of his own animals, call for nothing further than the obligation of reasonable care which is implicit in contracts of agistment and add nothing to what the law would require in the absence of special agreement.” (pp. 1110, 1111.)
Next it is urged that the trial court erred in giving Instruction No. 10, which reads:
“In the absence of special provisions in the contract of agistment, the agister is entitled to assume that the animals to be committed to his care are of the kind and character normally and usually encountered in the kind de scribed in the contract, and that they will not have any unusual or abnormal conditions, habits, or characteristics which put extra burdens on die agister and which were not reasonably anticipated by him or provided for in the contract. He is not required to provide any special care for such animals, the hazard of any such special care still being upon the owner of the animals. The agister under such circumstances would be required only to take such steps as would be reasonably necessary to promptly notify the owner of the condition of the animals and of the need for such special care, and to protect the animals as well as he reasonably could with his available help and facilities until such time as the owner has an opportunity to care for them himself.”
There is much to be found in the heretofore quoted statements from 2 Am. Jur. and from 3 C. J. S. to require approval of the instruction just quoted. Even so we do not feel it is necessary to approve it wholly upon that premise. It suffices to say that in our opinion it properly protects the rights of the parties to an agistment contract such as is here involved and contains a fair statement of what should be the law of this state under the conditions and circumstances therein outlined. Therefore such instruction is approved on that basis.
Finally the defendants argue that the trial court erred in submitting Instruction No. 13, which dealt entirely with their obligation to lessen or mitigate the damages they were seeking to recover under the allegations of their amended answer and cross-petition. It is neither necessary nor required that we here decide that question. All that need be said is that by its verdict the jury refused to allow defendants’ claim for damages, hence it cannot be successfully argued that defendants were prejudiced by the submission of such instruction. Under our early decisions (e. g., Branner v. Stormont, 9 Kan. [2d] 51; M’Intosh v. County of Crawford, 13 Kan. [2d] 171; Wilkes v. Wolbach, 30 Kan. [2d] 375, 2 Pac. 508), our present statute (G. S. 1949, 60-3317), and later decisions construing the force and effect to be given its terms (See Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§509, 538, 592, and West’s Kansas Digest, Appeal & Error, §§ 1026, 1034, 1068 [4]), error complained of which does not prejudice the substantial rights of a party affords no sound basis for the reversal of a judgment and must be disregarded.
We have carefully considered all arguments advanced by defendants in support of their claims of error regarding the instructions (Nos. 9, 10 and 13)‘complained of, as well as the decisions cited m their support, and find nothing in the arguments or decisions which warrants or permits a conclusion the trial court committed reversible error in submitting them. Moreover, having considered such instructions together with the other instructions given by that tribunal, which we have heretofore referred to at length in order that there may be no possible misunderstanding respecting their force and effect, we are convinced that all the instructions submitted, when considered as a whole, fairly and substantially state the law applicable to the theories of the parties to the case as presented by the evidence adduced by them in the court below. It follows, without laboring contentions advanced with respect thereto, that the trial court did not commit reversible error in refusing two instructions requested by the defendants.
The judgment is affirmed.
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal from the district court’s judgment based upon the jury’s award in a landowner’s appeal in a matter of condemnation by the State Highway Commission under eminent domain. Johnson, the appellant, owns a 240 acre farm lying north of U. S. highway No. 54. In improving the highway by enlarging the right of way, the commission condemned 20.31 acres along the road on the south side of the Johnson farm. The jury’s verdict in the district court awarded Johnson $4,068.36, which verdict was approved by the trial court and for which a judgment was entered.
In appealing to this court from the above judgment, there has been a most serious failure to follow the rules of this court in preparing a so-called abstract. This so-called abstract is not an abstract at all; it merely contains the pleadings, journal entries and a complete transcript of the testimony as prepared by the court reporter including the title of the transcript and the certificate of the reporter at the end. All this is in direct violation of rule No. 5 of this court, 186 Kan. XI, G. S. 1949, 60-3826, and also violates the civil code, G. S. 1949, 60-3312.
The matter has been before this court before. Mr. Justice Dawson, subsequently Chief Justice, referred to such a violation of the rules in Hughes v. Vossler, 110 Kan. 279, 203 Pac. 1107, and said:
“On the theory that a printed transcript, incorrectly called an abstract, was necessary to enable this court to determine the merit of these two specified errors, we are presented with a printed document of 254 pages, not more than a mere fraction of which has the slightest relation to die matters to be reviewed. In Bruington v. Wagoner, 100 Kan. 439, 440, 164 Pac. 1057, it was said:
“‘Ordinarily it is sheer waste of a client’s money to print endless pages of conflicting testimony for presentation on appeal.’
“A printed transcript of all the testimony for plaintiff and defendant, questions and answers, material and immaterial, is very far from an abstract conforming to the code of civil procedure pertaining to appeals, as explained and interpreted in Railway Co. v. Conlon, 77 Kan. 324, 99 Pac. 148; Hills v. Allison, 79 Kan. 617, 100 Pac. 651.” (p. 280.)
Here the so-called abstract amounts to 452 pages. Despite the length of the record, it does not contain any of the court’s instructions to the jury and it appears that appellants made no objection to the trial court’s instructions.
Appellant lists some twelve specifications of error, but argues some of them together, and some others are rather overlapping. It will not be necessary to take up all of the specifications in this opinion although the court has laboriously examined all of them in the voluminous record furnished us.
The first matter argued in the brief is that the trial court refused to instruct the jury at the beginning of the trial and refused to allow counsel to- tell the jury that they might take notes as to the evidence of the different witnesses if they so desired. Appellant refers us to State v. Keehn, 85 Kan. 765, 118 Pac. 851, United States v. Chiarella, 184 F. 2d 903, and to other cases. None of the authorities to which we have been directed would support the position of the appellant. In the Chiarella case, where Judge Learned Hand wrote the opinion, the court affirmed the instruction of a judge in a criminal case that the jury might not take notes. It would seem to be true that there is authority that a trial judge in his discretion may allow the jury to take notes. It will be noted in the present case that the judge said if any of the jury wanted to take notes of their own volition he would not stop them but he refused to give a preliminary instruction that they could do so. We find no reversible error in this matter.
The appellants argue the trial court erred in admitting certain maps of the new road in evidence because these maps were copies of the master map kept in Topeka, and because none of the witnesses available had made the copies or compared them with the original. The record would seem to have a short answer for this objection in the following:
“The Court: Are those tire plats from which this highway was constructed?
“A. Yes.”
Actually the principal question between the parties to this litigation was whether or not there was a spring located in the bed of a creek upon the land taken and whether the Johnsons were thus deprived of this spring water for their cattle. All parties agreed that the spring had gone dry at the time the land was taken by the highway commission on December 21, 1956. The commission’s witnesses contended that the spring was not taken or if it was the Johnsons still had similar springs in the creek bed after it crossed the highway. This was a question for the jury under proper instructions and the jury undoubtedly resolved the question.
The commission introduced a moving picture which under the evidence was taken on January 6, 1959. The appellants argue that this picture could not be shown as a comparison of the amount of water in the creek in December, 1956. Everyone would agree to that since 1956, which was a dry year, cannot be compared with 1959 as to amount of water since 1959 was a wet year. This moving picture and the testimony of the commission’s geologist showed springs in the bed of the creek on the Johnson land after the creek had crossed the highway. The spring water seemed to be much warmer and was not frozen in January, 1959 as was the rest of the creek. This was competent evidence which tended to show that tlie Johnsons had not been deprived of the spring water. This was the position of the appraisers who testified at the trial.
Appellants also object that the trial court refused to strike the testimony of the three appraisers of the land when their testimony was offered by the commission on the ground that they had not followed the rule as to damages set out in the case of Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 384 P. 2d 315. The main question seems to be on the damages allowed for a fence which, before the condemnation, separated the Johnson land from the highway. The commission allowed Johnson to move the fence back onto the part of the land not taken. The witnesses also testified concerning some alfalfa located on the land taken and that this alfalfa was included in fixing the amount of damages for the land taken. The witnesses allowed damages to the remaining land apparently for the purpose of fixing the fence. From the record of the cross examination we cannot find where the witnesses violated the rule announced by the Hoy case. Furthermore, there might be some doubt where the jury is correctly instructed on the elements of damage that, even if the testimony of the appraisers had been somewhat deficient, such testimony would be subject to being stricken. But we pass that question.
At the time of the motion for new trial, the appellants attempted to prove that the jury had misbehaved in considering the question of damages in this case. But the great weight of the evidence was to the effect that there was no “quotient verdict” rendered in the case. The members of the jury who were called to testify stated they each put down a figure representing the damages which in their opinion should be allowed and that the sum total was divided by twelve. But the testimony seemed clear that the jury did not consider this quotient arrived at as binding and took several votes as to amounts after that quotient had been secured. Under well settled rules, we cannot find reversible error from the above evi dence. In Schaake v. Railway Co., 102 Kan. 470, 170 Pac. 804, in an eminent domain case in which the opinion was written by the late Mr. Chief Justice Johnston, the second paragraph of the syllabus reads:
“A verdict of a jury will not be set aside because in considering the amount to be allowed for the land taken, as one of the items of the total damages, each of the jurors set down his estimate of such damages and these were added together and the amount divided by twelve, where it does not appear that they agreed in advance that the result so obtained should be their finding, and where an amount differing from the result was adopted upon subsequent consideration, and also where the total amount of damages allowed was determined without resorting to the method of addition and division.”
We have carefully considered the record in this case and find no reversible error. Therefore, the judgment appealed from must be affirmed. It is so ordered.
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The opinion of the court was delivered by
McFarland, J.:
Wendy L. Blake, a minor, was injured when struck in the eye by the aluminum cap ejecting from a two-liter plastic Pepsi-Cola bottle she was attempting to open with pliers. This product liability action was brought on her behalf by her three co-conservators against various corporations involved in the chain of manufacture and distribution of the Pepsi-Cola product. The exact relationship of each defendant to the product is not relevant to the issues before us and need not be set forth herein. Wendy’s parents, Oscar M. Blake and Yasuko Blake, had individual claims for property damage to their home arising from the incident and thus appear in the caption as party plaintiffs as well as co-conservators. No issue in the appeal relates to their individual claims and, for purposes of this opinion, Wendy will be referred to as the sole plaintiff. Plaintiff Wendy L. Blake appeals from the district court’s approval of a purported $14,000 settlement of all claims.
The facts bearing on the circumstances of the settlement must be set forth in considerable detail. Plaintiff was twelve years old on October 1, 1981. On that date, she was having difficulty removing the cap from the two-liter Pepsi-Cola bottle. She ultimately attempted to remove the cap through the use of pliers. The cap separated from the bottle with considerable force and struck plaintiff in her right eye. As a result of the accident, plaintiff was hospitalized for ten days and suffered permanent damage to her eye, including the inability to see out of the eye when looking straight ahead, frequent headaches, blurred vision, a cataract, and an increased risk of developing glaucoma.
Three co-conservators were appointed for Wendy. They were her parents (Oscar and Yasuko Blake) and a Sterling, Kansas, druggist who was a longtime family friend (James E. Brock). E. Dexter Galloway, a Hutchinson attorney, handled the appointment of the conservators and filed the instant action on Wendy’s behalf on June 30, 1983. Discovery proceeded. The defense produced an expert who would testify that the threads on the cap had been stripped, which indicated the cap had been turned the wrong way — thereby permitting the cap to shoot off the bottle as a result of the carbonation in the beverage as opposed to the more gradual release of pressure accompanying the correct opening of such a bottle. Wendy admitted she could not recall which way she twisted the pliers in opening the bottle. Plaintiff did not have an expert on bottling industry practices, and her sole expert on liability was a McPherson metallurgist. Pretrial conference was set for October 26,1984, with trial scheduled for November 26, 1984. At Galloway’s request, the pretrial conference was rescheduled for October 29, 1984. The pretrial confer ence was converted to a discovery conference, at which Galloway advised the court that: (1) a Texas attorney named Richard Roth would be assisting him; (2) discovery could be completed by April 1985; and (3) he wished to employ an expert to examine the cap. The defendants objected to the addition of the expert witness and the district court refused to add the witness. A new discovery cutoff date of February 10, 1985, was set with trial to commence March 25, 1985. A pretrial conference for February 22,1985, was set. Counsel were advised these were “firm” dates. Upon inquiry by the court, Galloway advised he had offered to accept $150,000 in settlement and defense counsel advised this was unacceptable and the case would likely proceed to trial.
On December 18, 1984, Galloway commenced the first of multiple efforts to extend and/or continue the three dates set at the October 29, 1984, conference, all such requests being refused by the district court.
On February 5,1985, William Sampson, attorney for defendant PepsiCo, Inc., telephoned Galloway with a $14,000 settlement offer on behalf of all defendants. That evening Galloway met with Wendy’s parents at their home. He advised them of the settlement offer. He also advised that he did not think it was fair. He then stated the problems of continuing the litigation, as he viewed them, including: (1) liability concerns relating to Wendy possibly having turned the cap contrary to the arrow on the cap; (2) plaintiff s lack of a good expert witness on bottle caps, and the court’s refusal to add such a witness; and (3) the additional financial requirements. In this last regard, Galloway told the Blakes he could not advance any additional costs and that the Blakes would have to produce several thousand dollars in cash prior to trial. Galloway advised that his fee and advanced expenses would be $9,000 of the $14,000 settlement. Galloway further advised that if the settlement offer were to be accepted they should so advise him by 10:00 the following morning.
After Mr. Galloway left, the Blakes had a talk with Wendy about the settlement offer, as she had not been present during Galloway’s meeting with her parents. Wendy did not believe the settlement was fair. The Blakes were very concerned over the prospect of having to generate several thousand dollars in additional costs if the case proceeded. They are a family of modest means. Oscar Blake has been disabled since 1966, and his only income is from social security. Yasuko Blake’s employment consists of cleaning a dormitory at Sterling College each morning and cleaning the office of a local business in the evening. Additionally, she makes custom draperies. Mrs. Blake, a native of Japan, is not very familiar with the American legal system. The Blakes had no way to raise the needed expense money except to mortgage their home, and they were afraid they might lose their home as a result thereof.
The following morning, Mr. Blake reluctantly telephoned Galloway and advised him that he and his wife would accept the $14,000 settlement offer if Wendy could get half of it. Galloway agreed to reduce his claim to 50% of the settlement. Galloway advised them the matter would have “to go before the Court” before it would be final and that he would draw up “some papers” for their signature.
The same morning that he talked to Mr. Blake, Galloway telephoned the PepsiCo attorney to advise him the settlement offer had been accepted. The same day the PepsiCo attorney telephoned the district judge to advise him of the settlement. The pretrial and trial dates were cancelled by the judge. A few days later a settlement hearing was set by the district judge for March 5, 1985, upon the telephone request of one of the defense counsel. On February 13, 1985, Galloway took an instrument entitled “Application to Approve Settlement” to the Blakes’ home for their signatures. Mr. and Mrs. Blake signed the instrument but retained it in order to acquire the signature of James E. Brock, the third co-conservator. Mrs. Blake took the instrument to Brock, who signed it believing, he testified, that a trial had occurred. This was Brock’s first involvement in the purported settlement. Brock felt the money was inadequate, but he believed there was nothing to be done about it. A few days later, Brock learned there might be other “options” and requested that his name be removed from the instrument, which was still in the Blakes’ possession. Brock then conferred with his brother, Ralph Brock (a Wichita attorney in the firm subsequently retained to represent Wendy). James Brock then drew a line through his signature on the instrument and wrote “not approved” over his signature. The Blakes did the same thing as to their signatures. This left only Galloway’s signature intact. The instrument was never returned to Galloway or filed with the court. It is in this case only as an exhibit.
On or about February 19, 1985, Mr. Ken Peterson, of the law firm of Morris, Laing, Evans, Brock & Kennedy, Chartered, telephoned the district judge herein to advise he was now representing the plaintiff and requested cancellation of the scheduled settlement conference on the basis the proposed settlement was no longer in effect. The district judge advised him the settlement conference would proceed.
On February 21, 1985, plaintiffs new counsel entered their formal appearance herein. The following day they filed a Motion to Quash Hearing Regarding Proposed Settlement and Alternative Motion to Disapprove and Reject Proposed Settlement and a Motion to Dismiss without Prejudice. The various defendants filed motions to approve and enforce the settlement. All motions were taken up at the scheduled settlement hearing on March 5, 1985. In addition to testimony taken and exhibits offered, the parties requested the court consider all deposition testimony. At the settlement hearing, all three conservators testified that they disapproved of the settlement. Wendy Blake testified that the settlement was not fair and she had never approved of it. Additionally, Don Foss, a Great Bend, Kansas, lawyer with over 44 years’ experience, testified that the settlement of $14,000 was “grossly inadequate.”
The district court overruled plaintiff s motions to dismiss and to disapprove and reject the proposed settlement and sustained the defendants’ motions to approve the settlement. The district court found that a valid, binding, and fair settlement had occurred and that the same should be approved. It is from these determinations that plaintiff appeals.
Numerous issues are raised, but we conclude the first issue is determinative of the appeal. That is whether the district court erred in considering and approving the proposed settlement under the circumstances herein.
Plaintiff argues that the proposed settlement was not properly before the court inasmuch as Galloway lacked authority to advise defense counsel the settlement offer had been accepted where he had never presented the offer to one of the three co-conser vators. This point has merit. That Galloway was aware there were three conservators is undeniable. He had been the attorney who prepared the pleadings setting up the conservatorship and had commenced the action herein which petition shows Brock as a conservator in the caption and alleges in its body that Brock is a duly appointed conservator for the plaintiff. Additionally, the instrument entitled “Application to Approve Settlement”, subsequently prepared by Galloway, begins:
“COME NOW Oscar M. Blake, Yasuko Blake and James E. Brock, Conservators for Wendy L. Blake, a minor, by E. Dexter Galloway, their attorney, and apply to the Court for an Order approving settlement of the chose in action in favor of Wendy L. Blake for injuries sustained October 1, 1981.”
Clearly, under the circumstances herein, there was not a valid acceptance of the settlement offer when Galloway communicated the purported acceptance to the PepsiCo attorney on February 6, 1985.
The defendants sought enforcement of the settlement as accepted by Galloway. Inasmuch as Galloway did not have authority from Brock to settle, Galloway lacked authority to communicate an acceptance of the offer of settlement. The fact that Brock later signed the application for approval of the settlement when the same was presented to him by a co-conservator, but withdrew his approval before the same had been returned to Galloway and/or filed with the court, is immaterial to the issue of whether there was an acceptance of the offer of settlement on February 6, 1985. We conclude there was no valid acceptance of the offer of settlement under the circumstances herein and it was error for the court to consider and approve the same.
Although other issues raised need not be determined by virtue of our decision on the first issue, some additional comments are in order. At the hearing, no application to approve the settlement by the plaintiff was on file with the court. At the hearing, all three conservators and the minor plaintiff expressed their strong disapproval of the offer on the basis of its inadequacy. Only plaintiffs former attorney and the defendants were in favor of court approval of the purported settlement. The district court, in effect, forced an unwanted settlement upon the plaintiff and her conservators. Such is clearly not the purpose of a hearing seeking court approval of the settlement of a minor’s personal injury litigation.
The judgment of the district court approving the purported settlement is reversed and the case is remanded for further proceedings.
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The opinion of the court was delivered by
Herd, J.:
The State appeals upon questions reserved and from the dismissal of criminal charges against Michael D. Costner pursuant to K.S.A. 1986 Supp. 22-3602(b)(l) and (3).
On January 21,1986, Costner was charged with three counts of the sale of marijuana, K.S.A. 1986 Supp. 65-4127b(b)(3), and one count of possession of marijuana with the intent to sell, K.S.A. 1986 Supp. 65-4127b(b)(3).
At Costner’s February 13, 1986, preliminary hearing, the only witness to testify was Officer Stanley Cutliff, the undercover police detective who made the three purchases of marijuana and who was present at the time of Costner’s arrest. Officer Cutliff testified he purchased marijuana from Costner on three occasions — December 20, 1985, January 6, 1986, and January 14, 1986. On this last date, the officer’s purchases were part of a pre-planned “buy-bust” operation coordinated with other police officers. According to plan, when Officer Cutliff paid Costner $600 for a large baggie of marijuana, other officers entered the appellee’s residence and the appellee was arrested.
During cross-examination of Officer Cutliff, Costner attempted to inquire about a previous uncharged incident during which Officer Cutliff had been present at the appellee’s home. The State objected on the grounds a response to the question might require the witness to divulge the identity of a confidential informant. This objection was overruled and the witness was permitted to state that he was previously present at the appellee’s home on December 5, 1985. However, when appellee continued this line of questioning by asking who was present at appellee’s home on December 5, 1985, the State again objected on the grounds the witness’s response would reveal a confidential informant. The trial court responded to this objection by stating, “You can’t have a confidential informant who is present at a transaction. That’s not possible.” However, the judge concluded that if the State could prove to him that “there is some law that clothes the identity of persons present at someone’s house with another known person with a cloak of confidentiality” then the judge would not require that the identity of the informant be disclosed.
During continued cross-examination the following colloquy occurred between the appellee and Officer Cutliff:
“Q (By Mr. Howard) Okay. Let’s go then forward to December 20th. You stated that you pulled up to the — Mr. Costner’s residence there at 953 Coolidge; is that correct—
“A Yes.
“Q —Officer?
“A Yes.
“Q And you then knocked on the door, and Mr. Costner opened up the door; and what did you say to him at that time?
“A I told him, ‘Hello,’ asked how he was doing.
“Q And what did Mr. Costner than say?
“A He didn’t quite remember me. I gave him my name. Then he asked me what I was interested in.
“Q Well, did you — When you told him your name, did you tell him that you’d been over there at a previous occasion?
“A Yes.
“Q Did you name a person that you’d been over there with on a previous occasion?
“A A first name.
“Q What was that first name?
“MR. SLOAN: Your Honor, I’ll object as calling for confidential informant.
“THE COURT: Oh, nonsense, Mr. Sloan. It’s a part of the conversation in the transaction. Overruled.
“Q (By Mr. Howard) I ask you again: What was the name that you gave Mr. Costner?
“A I believe it was Rick.
“Q You believe, or are you sure?
“A I believe that’s what the name was I gave him, yes.
“Q Are you sure, or do you believe that?
“A Yes.
“Q Are you sure?
“A I am sure.”
No further information was elicited regarding the identity of the confidential informant or what the informant had said or done during the December 5, 1985, meeting. The witness did testify, however, that besides himself, the only parties present in the appellee’s home on the dates the charged incidents occurred were the appellee, the appellee’s wife, and an unknown female (who was present only on January 6, 1986).
At the end of the preliminary hearing, the judge ruled there was probable cause to believe the appellee committed the offenses with which he was charged. When the prosecutor requested the court to clarify its ruling regarding the confidential informant issue, the court stated:
“THE COURT: I’ve ruled that your characterization of the individual as a confidential informant is incorrect. He is not a confidential informant. He’s just another person that was present at some transaction. And that the theory that I’ve heard before that you can somehow say somebody be present face-to-face with someone and have them then be considered to be a confidential informant is a contradiction in terms, and that they are not covered by any theory or rule which protects confidentiality of informants. I have not ordered you to do anything, if you choose to do what you’re allowed to do under the law with this case, because that’s solely your decision; but you’ll have to make the choice.”
The State then asked the court for additional time to produce a slip opinion in the case of State v. Schilling, 238 Kan. 593, 712 P.2d 1233 (1986). The court agreed to recess until later than afternoon. When the proceedings continued that afternoon, the court discussed its interpretation of the Schilling case:
“Now, all I’ve really said is the Supreme Court has said that what — in January 17th [in State v. Schilling], unbeknownst to me, that what I said and firmly believe to be the case is not a true definition of an informer. And they’ve clearly said that, and we’re all bound by that. So, I’ve got to go on that; and I don’t think it’s necessary for me to make any further rulings. I’ve made my order. And I noticed in the Schilling case the Supreme Court never told Judge Deer that he couldn’t impose any sanction. They just said that he had to impose the least onerous sanction. And, as I recall, and if there’s any question about it I’ll reiterate it, I said you’re under a duty to disclose the name of that individual to Mr. Howard. That’s what I said. Is that correct or incorrect?”
The trial judge made no provision in his order for the imposition of sanctions if the State failed to obey the disclosure order, so appellee subsequently filed a motion requesting dismissal of the case. On May 9, 1986, the court granted appellee’s motion to dismiss after giving the State additional time to comply with the order.
The State appealed the questions reserved and the dismissal pursuant to K.S.A. 1986 Supp. 22-3602(b)(l) and (3).
The sole issue on appeal is whether the district court abused its discretion in ordering the prosecution to disclose the identity of the confidential informant.
The issue of whether or not a witness must disclose the identity of an informer is governed by K.S.A. 60-436, which provides:
“A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.”
In the instant case, the court made conflicting findings with respect to the disclosure of the informant. The trial court stated several times that a person whom the appellee has met “face to face” cannot be a confidential informant. However, if there were no confidential informant involved in the present case, the trial court would have no need to order the disclosure of an informant’s identity pursuant to K.S.A. 60-436(a) or (b). Yet, that is what the trial court did when it stated that the informer’s identity had been “otherwise disclosed” by the detective’s reference to “Rick” at his second meeting with the appellee.
It should first be noted the trial court incorrectly determined a confidential informant cannot be someone who participates in criminal activity or has been “face to face” with the appellee. As the late Chief Judge Foth stated in State v. Knox, 4 Kan. App. 2d 87, 94, 603 P.2d 199 (1979): “ [I] n formers come in two varieties: those who merely furnish information to the police, generally relied on to establish probable cause; and those who actually participate in or observe the criminal activity.” (Citing Roviaro v. United States, 353 U.S. 53, 61, 1 L. Ed. 2d 639, 77 S. Ct. 623 [1957]). The simple fact that an individual participates in criminal activity which results in the defendant’s conviction is insufficient to show that the defendant knows the individual’s full identity or whereabouts.
Further, the trial court incorrectly determined that the identity of the State’s confidential informant was “otherwise disclosed” by Officer Cutliff s reference to “Rick” in his December 20 meeting with the appellee. There is no evidence the appellee knew “Rick,” Rick’s full name, or his whereabouts. This situation is very similar to one before this court in State v. Schilling, 238 Kan. 593.
In Schilling, the confidential informant (“Susan”) introduced a police officer to the defendant — Susan’s boyfriend. Susan was present when the first sale of marijuana took place but the sale formed no part of the charges remaining against the defendant after the preliminary hearing. Susan had no part in the sales which were .the basis of the remaining charges.
The defendant filed a motion seeking disclosure of Susan’s full identity on the basis she was a potential witness in the several transactions between the defendant and the State. Further, defense counsel thought he might have represented Susan in another proceeding and he needed to know whether he had a conflict of interest. The trial court ordered disclosure of the informant’s full name. At a later rehearing on the motion, the trial court ordered the prosecuting attorney to either release the name or dismiss the case with prejudice or show cause why she should not be found in contempt. Under these circumstances, the State dismissed.
On appeal, this court was asked to determine whether the trial court erred in ordering the State to disclose the informant’s identity. We first set out the provisions of K.S.A. 60-436 and then stated: “Susan’s full identity has not been previously disclosed and thus subsection (a) of the statute is inapplicable.” 238 Kan. at 597.
This holding is controlling in our determination of the present case. In Schilling, the informant’s full name and whereabouts were not known by the defendant. That is also the case here. If the defendant knew the informant’s full name and how to locate him, he would not be seeking disclosure of the-information. Also, in the present case, we do not even know if “Rick” truly was the informer’s first name or if that was a pseudonym given by Officer Cutliff. Thus, the present case is a stronger case than Schilling for finding the identity of the informant had not been “otherwise disclosed.” Subsection (a) of 60-436 is inapplicable.
Unlike the trial court in Schilling, the trial court here made no finding that disclosure of the informant’s identity was essential to assure a fair determination of the issues. Nor did the appellee argue that disclosure was necessary for a fair trial. We have often held that before disclosure of the identity of an informant will be ordered, it is incumbent upon the defendant to show that the identity of the informer is material to his defense. State v. Schilling, 238 Kan. at 599; State v. Pink, 236 Kan. 715, 722, 696 P.2d 358 (1985). The appellee failed to sustain that burden in the present case and the court made no such finding. Thus subsection (b) of 60-436 is also inapplicable.
We hold the trial court erred in finding that a person who is involved in a transaction with a defendant cannot be a confidential informant. Further, the trial court erred in determining that the informant had been “otherwise disclosed” under K.S.A. 60-436(a).
The judgment of the trial court is reversed and this case is remanded for further proceedings.
Lockett, J., concurring.
Prager, C. J., dissenting.
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The opinion of the court was delivered by
Wertz, J.:
Leo R. Partch, plaintiff (appellant), brought this action against Emil Hubele, defendant (appellee), for the recovery of actual and punitive damages for personal injury and property damage sustained by him as a result of the alleged negligence of defendant in the operation of his truck. The petition contained two causes of action; the first set forth the facts relied on as a basis for a recovery of actual damages and the second set forth the facts relied on as grounds for recovery of punitive damages. From an order of the trial court sustaining defendant’s demurrer to plaintiff’s second cause of action, plaintiff appeals.
It appears, from a perusal of plaintiff’s second cause of action, that the accident happened in the daylight; that as plaintiff was driving his automobile north on a blacktop road he approached the rear of a farm truck driven by defendant at a speed of about thirty miles an hour, approximately 300 feet from an intersection of a township road. Plaintiff pulled a few feet to the left of the center, intending to pass, and when he was approximately sixty feet to the rear of the truck, it started angling to the left. Plaintiff returned to the right side of the road, applying his brakes and reducing his speed to that of the truck when about twenty feet behind it. Defendant’s truck continued angling to the left until it was left of the center of the road, then slowed abruptly about twenty feet from the mentioned intersection. Plaintiff immediately applied his brakes, and suddenly, without warning, the truck turned sharply to the right. Plaintiff then turned his automobile to the right and came to an immediate stop. Thereupon, the right front corner of the truck bed struck plaintiff’s automobile, driving it into a concrete culvert railing east of the north-south highway on a side road.
Plaintiff further alleged that defendant willfully drove his truck upon the highway with the stock rack thereon so constructed as to afford him no opportunity to see or signal, either directly or by the use of a mechanical device, oncoming traffic from the rear; that plaintiff sounded his horn to warn defendant of his presence when 360 feet from the intersection and sixty feet to the rear of defendant’s truck, and when about ten feet from the intersection and to the rear and on the right of defendant’s truck; that defendant should be deemed to have realized the imminence of danger to plaintiff in making a right turn from the left lane of traffic directly in front of plaintiff’s vehicle, and that by reason thereof defendant was guilty of wanton negligence.
Defendant apparently concedes that the alleged facts were sufficient to constitute a cause of action for negligence, but contends that such acts were neither gross, willful nor wanton and that no action could be maintained for punitive damages.
The question for our consideration is whether the petition alleged facts, as distinguished from descriptive terms, from which the court could conclude defendant was charged with the knowledge of plaintiff’s immediate presence and realized the imminence of injury to plaintiff because of his acts, but refrained from taking steps to prevent the injury because of his indifference to its possible occurrence.
In Dill v. Miles, 181 Kan. 350, 353, 310 P. 2d 896, it was stated:
“The general rale to be used in determining whether the facts of a given case constitute gross and wanton negligence has long been settled in this jurisdiction, our last declaration appearing in Long v. Foley, 180 Kan. 83, 89, 299 P. 2d 63, wherein, in quoting from Bailey v. Resner, 168 Kan. 439, 442, 214 P. 2d 323, it was stated:
“ ‘. . . a wanton act is something more tiran ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It might be said to include a willful, purposeful, intentional act, but not necessarily so; it is sufficient if it indicates a reckless disregard for thé rights of others with a total indifference to the consequences, although a catastrophe might be the natural result.’
“In Frazier v. Cities Service Oil Co., 159 Kan. 655, 666, 157 P. 2d 822, we stated:
. . it may be concluded that as to injuries inflicted, wanton conduct or wantonness comes between negligence on the one hand and willful or malicious misconduct on the other; that it is more than negligence and less than willfulness, and to constitute wantonness tire acts complained of must show not simply lack of due care, but that the actor must be deemed to have realized the imminence of injury to others from his acts and to have refrained from taking steps to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure another, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.’ ”
For other recent decisions where the rules above quoted are adhered to and pertinent portions thereof are stated in one form or another, see Perry v. Schmitt, 184 Kan. 758, 339 P. 2d 36, and Allman v. Bird, 186 Kan. 802, 806, 807, 353 P. 2d 216.
An examination of the petition reveals no specific allegation that defendant saw or knew plaintiff’s car was approaching him from the rear, or that he knew plaintiff was in imminent peril. One cannot be held guilty of wanton conduct if the conduct occurs before the peril is discovered. It may be conceded that a motorist who, while driving on a highway, makes a right turn from the left lane without the proper signal or warning is guilty of lack of due care. However, such facts, standing alone, fall short of establishing that the motorist who so drives is consciously willing that injury result to others as a consequence of his careless conduct. We are of the opinion that the petition did not allege facts sufficient to warrant a recoveiy of punitive damages, and the judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Price, J.:
Were we to accept this case on its merits, the question presented would be whether a clerk of a district court is entitled to retain personally fees collected in naturalization and passport proceedings.
The action was brought for a declaratory judgment pursuant to the provisions of G. S. 1949, 60-8127, et seq. Highly summarized, the pleadings disclose the following:
The plaintiff is the duly elected, qualified and acting clerk of the district court of Ford county, and her petition alleges that defendants are certified public accountants and were employed by the board of county commissioners of Ford county to audit the books and records of offices and officers of the county for the year 1957, and that defendants made such an audit, included in which was an audit of plaintiff’s office. It is further alleged that in defendant’s audit report filed with the board of county commissioners certain statements were made by defendants concerning the fees of plaintiff which resulted in a difference of opinion as to the meaning of certain statutes, namely, G. S. 1949, 28-101, and G. S. 1959 Supp. 28-170.
The petition further alleges that plaintiff is entitled to retain and disburse, as provided by federal law, all fees collected by her for her service to the federal government in matters concerning naturalization and passport cases, whereas defendant accountants contend that such fees collected by her should be remitted to the treasurer of Ford county to become a part of the general fund of the county.
The prayer seeks a declaratory judgment finding and adjudging that such fees may be retained by plaintiff and disbursed as provided by federal law and regulations, and that they need not be remitted to the county treasurer, and that costs of the action be assessed to defendants.
Defendants’ answer admits they are certified public accountants; that they were employed by the board of county commissioners of Ford county to audit the plaintiff’s office for the year 1957, and that they made such audit in their capacity as certified public accountants. It is further alleged that under no circumstances are defendants entitled to any part of the fees involved in the action, and that they have no interest in such fees or their proper disposition except as the same may be concerned in the proper discharge of their legal duties as certified public accountants.
The answer then demurs to the petition on the ground it fails to state a cause of action against defendants for the reason that any dispute between plaintiff and defendants amounts to a mere difference of opinion and does not constitute an actual legal controversy between the parties which may be determined in a declaratory-judgment action, and for the further reason that Ford county and the state, being the parties primarily and beneficially interested in the final determination of plaintiff’s right to retain personally the fees in question, and thus being necessary parties — are not parties to the action.
The answer further alleges that the audit report prepared by defendants was made pursuant to certain mentioned statutory provisions and rules and regulations prescribed by the state budget director; that any opinion stated by them in their audit report on the subject of fees involved in the action was given in compliance with such statutes, rules and regulations, and opinions on the subject rendered by the office of the attorney general.
The prayer is that the action be dismissed on the ground there is no justiciable legal issue between the parties, or, in the event the .action not be dismissed, for a declaratory judgment finding and adjudging that G. S. 1959 Supp. 28-170, and G. S. 1949, 21-1607, and other pertinent statutes and regulations, require that naturalization .and passport fees collected by plaintiff in her official capacity as clerk of the district court be remitted by her to the county treasurer to become a part of the county general fund.
The reply was in the form of a general denial.
Upon the issues thus joined the parties proceeded to trial. Evidence, both oral and documentary, was received, and it also was stipulated that the 1957 audit report of plaintiff’s office prepared by defendants contained the following statement;
“The Clerk of the District Court keeps for her services one-half of the naturalization fees and all of the passport fees. This is a violation of the provisions of Section 28-170 and 21-1607, 1949 G. S.”
At the conclusion of the hearing judgment was rendered for plaintiff, holding that she was entitled to retain personally the fees in question, and it was further ordered that the costs of the action be taxed to plaintiff “and are a legal charge as expense of her office to Ford County.”
The journal entry of judgment contains specific recitals that the demurrer contained in defendants’ answer was overruled; that defendants’ demurrer to plaintiff’s evidence, on the ground it was insufficient to show a justiciable issue between the parties, also was overruled; that at all appropriate times throughout the hearing defendants raised the question whether the case was such that the. declaratory-judgment statute was applicable, and that at all such times their contentions with respect to the question were overruled.
Their motion for a new trial being denied — defendants have appealed.
In their brief defendants state that, having gone through the expense of the trial and this appeal, they abandon the questions raised by their demurrer and suggest that the ultimate issue be decided by this court at this time.
With all due deference to the position thus taken, we nevertheless are of the opinion that the question — being one of jurisdiction— can be raised by this court even on its own motion.
The provisions of the declaratory-judgment act (G. S. 1949, 60-3127, et seq.) need not be set out, but it consistently has been held the act is available to a litigant only in cases of actual controversy, and that all persons interested in the controversy must be made parties. (West v. City of Wichita, 118 Kan. 265, syl. 2, 234 Pac. 978; Williams v. Flood, 124 Kan. 728, 729, 262 Pac. 563; State, ex rel., v. Wyandotte County Comm'rs, 128 Kan. 516, 520, syl. 2, 279 Pac. 1; Garden City News v. Hurst, 129 Kan. 365, 282 Pac. 720; Kittredge v. Boyd, 137 Kan. 241, 242, 20 P. 2d 811; Kern v. Newton City Commissioners, 151 Kan. 565, 572, 100 P. 2d 709, 129 A. L. R. 1156; City of Cherryvale v. Wilson, 153 Kan. 505, 509, syl. 1, 112 P. 2d 111; Boeing Airplane Co. v. Board of County Comm'rs, 164 Kan. 149, 155, syl. 2, 188 P. 2d 429, 11 A. L. R. 2d 350.)
In the Kittredge case it was said:
“Even in a case where a mere declaratory judgment is sought, an actual controversy must exist before this court or the district court would have jurisdiction to make a binding adjudication concerning it.” (p. 242.)
In the Boeing case it was held:
“There must be at least two parties who can assert rights which have developed or will arise against each other before an actual controversy can exist which is justiciable under our declaratory judgment act.” (syl. 2.)
In the case of Garden City News v. Hurst, above, plaintiff newspaper publishers brought a declaratory-judgment action against the probate judge of Finney county for the purpose of having a legal construction placed on certain statutes as applied to a monthly publication meeting the requirements of the law as a newspaper in which legal publications could be made. The petition alleged that the probate judge denied that the paper was such a legal publication as was lawfully entitled to publish notices, and the plaintiffs contended that the actual effect of defendant probate judge’s interpretation of the mentioned statutes resulted in the plaintiffs being deprived of their legal right to publish notices were it not for the mistaken interpretation by the defendant. The syllabus of the case reads:
“Where the publishers of a weekly newspaper make the probate judge the only defendant in an action for a declaratory judgment as to the interpretation of the statute giving the requirements of newspapers entitled to publish legal notices, alleging in the petition that the probate judge denies that their paper is a legal publication and lawfully entitled to publish such notices, and that he would not approve such if furnished in his court, and the answer admits that such is his interpretation of the law and his attitude, there exists between the plaintiffs and defendant no actual controversy, as is required by R. S. 60-3127 for a declaratory judgment.”
In the course of the opinion it was said:
“The declaratory-judgment provision of our law being modern in its use, and an extension of judicial power, is always carefully safeguarded by the courts, and would in this case, as in all such, have been first considered without a suggestion from anyone. Even by agreement of the parties, jurisdiction under this act cannot be conferred.” (p. 366.)
“The first question for consideration in all cases of this kind is whether or not an actual controversy exists. It is very evident there is a difference of opinion, but that is not enough. How will it affect the probate judge if this case should be decided against him? The worst that could possibly result to him would be that he was mistaken in his opinion. That is hardly an actual controversy as intended by the statute. Plaintiffs reason out the actual effect on their side of the question, viz., that they are being deprived of their legal rights to legal publications which they might get for their newspaper by the mistaken interpretation and erroneous judgment of the probate judge. That may cause an actual deprivation, but it is not an actual controversy.” (pp. 366, 367.)
“We can easily see how the plaintiffs herein are interested in having a favorable construction placed upon the statute, but no plausible reason or suggestion has been ventured as to the probate judge having any interest or any obligation, liability or privilege resulting from a decision in the matter involved. We therefore conclude that there exists between the plaintiffs and the probate judge no actual controversy as required by statute in order to authorize and justify the rendering of a declaratory judgment on the interpretation of R. S. 64-101 and 64-102.” (p.368.)
The foregoing reasoning is applicable to the present case. It is obvious that as between plaintiff clerk of the court and defendant certified public accountants there is merely a difference of opinion— but that is not enough to bring the matter within the purview of the declaratory-judgment act. Defendants are in no way beneficially interested in the question whether plaintiff is entitled to retain personally the fees in question. Our conclusion is that between plaintiff and defendants there exists no actual controversy as required by the declaratory-judgment act in order to authorize and justify the rendering of a declaratory judgment on the interpretation of statutes pertaining to the collection and disbursement of the fees in question.
The judgment is therefore reversed with directions to dismiss the action.
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The opinion of the court was delivered by
Holmes, J.:
William Mayfield appeals from a judgment denying his motion to set aside a conviction for theft by deception rendered in 1978. The Court of Appeals affirmed the order of the district court in an unpublished opinion. State v. Mayfield, No. 59, 226, decided October 30, 1986. We granted appellant’s petition for review and we now reverse the decision of the Court of Appeals and the judgment of the district court.
In the spring of 1978, Mayfield was charged with the crime of theft by deception. K.S.A. 1986 Supp. 21-3701(b). At the time of the alleged crime, February 8, 1978, appellant was only seventeen years of age. However, by the time of his arrest, he was eighteen years of age. He was serving in the United States Navy at the time. Mayfield was also charged in a separate case with defrauding an innkeeper. K.S.A. 36-206. At the time of this alleged crime, April 24, 1978, he was eighteen years of age. On July 7, 1978, pursuant to a plea bargain, Mayfield pled guilty to the crime of theft by deception, and the charge of defrauding an innkeeper was dismissed by the State. After serving thirty days of a one-to-ten-year sentence, Mayfield was placed on probation and returned to duty in the Navy. As a condition of probation, Mayfield was ordered to make restitution and pay the costs of the action. On January 11, 1980, the probation was terminated by order of the district court.
On October 18, 1985, Mayfield filed a motion with the district court for an order setting aside the conviction and for dismissal of the action for lack of prosecution. It was the position of the appellant that as he was a juvenile at the time of the alleged crime of theft by deception, the district court had no jurisdiction to charge him with a crime or to accept his plea of guilty to a criminal offense. Mayfield asserted that the court had jurisdiction to proceed only under the Kansas juvenile code, K.S.A. 1977 Supp. 38-801 et seq., and lacked jurisdiction to proceed with criminal charges against him for a criminal violation. The Kansas juvenile' code has now been supplanted by the Kansas juvenile offenders code (K.S.A. 38-1601 et seq.).
K.S.A. 1977 Supp. 38-802(b)(l) provided:
“As used in this act, unless the context otherwise indicates:
(b) ‘Delinquent child’ means a child less than eighteen (18) years of age:
(1) Who does an act . . ., which if done by a person eighteen (18) years of age or over, would make such person liable to be arrested and prosecuted for the commission of a felony . . . .”
K.S.A. 1977 Supp. 38-806(c) provided in part:
“[WJhen any person charged with having committed an act of delinquency before reaching the age of eighteen (18) years is brought before the court after reaching said age, the court shall proceed pursuant to the Kansas juvenile code . . . .” (Emphasis added.)
K.S.A. 1977 Supp. 38-808 provided a procedure where certain individuals charged under the juvenile code could be prosecuted as an adult. However, such procedure was not followed here.
It is conceded by the State that at all times relevant herein Mayfield was charged as an adult pursuant to the criminal code and proceedings were never commenced pursuant to the Kansas juvenile code. When Mayfield appeared before the district court on July 7, 1978, the court started the hearing by inquiring:
“THE COURT: . . . How old are you, Mr. Mayfield?
“THE DEFENDANT: Eighteen.
“THE COURT: Eighteen?
“THE DEFENDANT: Yes, your Honor.”
It appears that no one thought to inquire of the defendant as to his age on February 8, 1978, the date the alleged crime was committed. The record is silent as to any knowledge by the Court, State, or defense counsel that defendant was a juvenile when the alleged crime occurred. It is interesting, however, that while the record does not disclose the actual facts upon which the charge of theft by deception was based, the State’s brief reads:
“The Police reports regarding the Theft by Deception showed that on February 8, 1978, the Defendant had informed the victim, Mr. John Swisher, owner of Swisher TV and Appliance Center, that he was 19 years old. The Defendant also completed an application for credit on or about February 8, 1978. On this application, Mr. Mayfield listed his age as 18. Based on this information, the State of Kansas filed criminal charges in the District Court against the Defendant.” (Emphasis added.)
Thus, it appears the charge was based upon the defendant’s obtaining merchandise on credit by misrepresenting himself to be an adult. If, indeed, that was the basis for the original charge, the State must have known Mayfield was not eighteen years of age when the alleged crime occurred. We will not speculate further on that apparent inconsistency.
The district court and the Court of Appeals both found that Mayfield had waivéd any objection to jurisdiction. The Court of Appeals stated:
“We are satisfied that a juvenile who misrepresents his age or intentionally withholds this information from the district court hearing the criminal charges waives the right to be heard in juvenile court.”
The court then cites several decisions from other jurisdictions as support for its statement. While it is true a juvenile may waive certain rights, such a waiver must be made knowingly and voluntarily. State v. Muhammad, 237 Kan. 850, 703 P.2d 835 (1985). Suffice it to say, there was absolutely no evidence that Mayfield misrepresented his age to the court, intentionally or otherwise. He answered all questions propounded to him truthfully and there is no showing that he knew of his rights under the Kansas juvenile code, that he intended to waive personal jurisdiction, or that his defense counsel knew he was a juvenile at the time of the alleged offense. We find no basis for a conclusion that Mayfield had waived his rights under the Kansas juvenile code or waived personal jurisdiction.
The Court of Appeals also found that the district court had subject matter jurisdiction because the alleged offense was a felony. We do not agree that because the offense is categorized as a felony under the criminal code that the court obtained subject matter jurisdiction. At the outset we note that subject matter jurisdiction cannot ordinarily be waived. In In re Estate of Freshour, 177 Kan. 492, Syl. ¶ 3, 280 P.2d 642 (1955), we held that “[j Juris diction of the subject matter of an action is vested by statute and cannot ordinarily be conferred on a court by consent, waiver or estoppel.”
In 1985 Mayfield was charged in the United States District Court for the District of Kansas with several counts of federal firearms violations based upon his possession of firearms after having been convicted of a felony. The underlying felony supporting those charges was the conviction in 1978 of theft by .deception. After being advised of the facts surrounding this conviction, Judge Kelly, in a well-reasoned opinion, stated:
“K.S.A. 38-815(e) requires that whenever a person 18 years of age or older is taken into custody for an alleged act committed prior to the time the person reached 18, the law enforcement officer shall refer the matter for proceedings pursuant to the juvenile code. According to K.S.A. 38-806(a), proceedings concerning any ‘delinquent child’ (defined in K.S.A. 38-802(b) as a child less than 18 years old who does an act which would be punishable as a felony under the criminal code) are to be governed by the provisions of the juvenile code. Under 38-808(b), a person between the ages of 16 and 18 must be prosecuted under the juvenile code unless a hearing is held on motion of the district attorney and the court finds the child is not a ‘fit and proper’ person to be dealt with under the juvenile code. It is clear that unless the 38-808(b) procedure is followed, the district court has no jurisdiction to try the child under the criminal code.
“In State v. Chatmon, 234 Kan. 197, 671 P.2d 531 (1983), the Kansas Supreme Court held that in any criminal action the trial court must have jurisdiction over the offense charged and that a judgment rendered with lack of jurisdiction is void. The Chatmon court relied on State v. Minor, 197 Kan. 296, 300, 416 P.2d 724 (1966), wherein it was stated, ‘This court has repeatedly held that a judgment which is void for want of jurisdiction may be attacked at any time and may be vacated because it is a nullity.’
“Based on the foregoing Kansas statutes and cases, this Court finds the Cowley County District Court lacked jurisdiction to convict Mayfield under the Kansas Criminal Code, and therefore, the 1978 conviction of theft by deception is void ab initio.” United States v. Mayfield, 628 F. Supp. 1515 (D. Kan. 1986).
The learned trial judge then dismissed the federal charges which were dependent upon prior conviction of a felony. We agree with Judge Kelly’s analysis of the jurisdictional issue in this case. Although the decision of the federal district court has now been reversed on other grounds, the federal appellate court also appears to have recognized that Mayfield’s conviction in 1978 in Cowley County District Court was void for lack of jurisdiction. United States v. Mayfield, 810 F.2d 943, 944 (10th Cir. 1987).
In the early case of State v. Dubray, 121 Kan. 886, Syl., 250 Pac. 316 (1926), the court held:
“On September 28 a boy who became sixteen years old on June 3 was arrested for statutory rape committed on May 27, all in the same year, and was brought before a justice of the peace. At a preliminary examination the boy’s age was disclosed, and the justice of the peace transferred the case to the juvenile court. The juvenile court referred the case to the district court for trial, a jury impaneled by the district court found the boy guilty, and the district court sentenced him on the verdict to the reformatory. Held, the district court had no jurisdiction to pronounce sentence on the verdict.”
Justice Rurch, writing for a unanimous court, stated:
“The legislature intended that police officers, constables and sheriffs, police courts, justices of the peace and district courts, and everybody else concerned with the consequences of breaches of the criminal law, should get it completely out of their minds that a delinquent child is to be regarded or treated as a criminal. A violation of law, which if committed by an adult would be rape, is not a crime if committed by a boy under the age of sixteen years. It is an act of delinquency. Whether an act constitute delinquency or crime is determined by the factor of age. So determined, the character of the act is fixed, remains constant, and, if delinquency, does not enlarge to crime by lapse of time. The juvenile court has exclusive jurisdiction over delinquencies (State v. Dunn, 75 Kan. 799, 90 Pac. 231; Swehla v. Malone, 114 Kan. 712, 220 Pac. 299); and the juvenile court does not lose jurisdiction by delay in obtaining personal jurisdiction over the delinquent, whether the delay be occasioned by failure to discover the delinquency, neglect or inability promptly to institute delinquency proceedings, or deliberate postponement of delinquency proceedings with a view of invoking the criminal law.
‘The statute defines a “delinquent” child to be one who, of the ages specified, commits any of the acts named, including the crime charged here, and then vests in county courts of the state exclusive jurisdiction to try such “delinquent” children. They become “delinquent” children by the commission of the act denounced, when the acts are committed, and the jurisdiction then vests exclusively in the county court, which court having thus acquired exclusive jurisdiction cannot be ousted by its failure to act. The very purpose of this law, as has been declared by this court upon more occasions than one, is to provide for the protection and care of juvenile offenders in a humanitarian effort to prevent them from becoming outcasts and criminals, rather than to inflict punishment for their delinquencies. To hold that the officers charged with the execution of the law may defer action until the offending child has passed the age thus protected by the statute, and then prosecute him as a criminal and not as a juvenile, would defeat the very purpose of the law, and cannot be sanctioned.’ (Mattingly v. Commonwealth, 171 Ky. 222, 224.)” 121 Kan. at 895-96.
In State, ex rel., v. Owens, 197 Kan. 212, 416 P.2d 259 (1966), the juvenile judge of Sedgwick County asserted that certain sections of the Kansas juvenile code were unconstitutional. Among the provisions of the code alleged to be unconstitutional was that subjecting youths sixteen and seventeen years of age to the juvenile code. The Supreme Court described at length the provisions of the code, its background, and its objectives, and referred repeatedly to the exclusive original jurisdiction of the juvenile court. The court stated:
“So long as the proceeding in the juvenile court is in the nature of a protective proceeding entirely concerned with the welfare of the child, and conforms to the substantive requirements of essential due process, there is no constitutional shortcoming. The whole design of the juvenile law is to avoid charging the juvenile offender with crime, thus making inappropriate application of the criminal laws of the state. The breadth of the court’s authority to deal with juveniles is matched by a corresponding breadth of responsibility to protect the minor’s interests. The validity of the whole juvenile system is dependent upon its adherence to its protective, rather than its penal, aspects.” p. 223.
In State v. O’Keith, 136 Kan. 283, 15 P.2d 443 (1932), the defendant, thirteen years of age, was arrested in 1919 and charged with burglary and grand larceny and five days later pled guilty. In 1931, a motion was filed to set aside the judgment of conviction. The court stated:
“A district court in this state is altogether without jurisdiction to deal with delinquencies of infants under sixteen years of age. It is the deliberate policy of this state that infants of tender years, however erring or wayward they may be, shall not be regarded as criminals or dealt with as such.” p.285.
Numerous earlier cases are cited in the opinion. For a more recent discussion of jurisdiction in juvenile cases, see State v. Lowe, 238 Kan. 755, 715 P.2d 404 (1986).
Although, since court unification in 1977, we no longer have separate juvenile courts, the policy adopted by the legislature and consistently recognized by the courts has not changed. The jurisdiction of the district court over juvenile offenders in 1978 was based solely upon compliance with the provisions of the Kansas juvenile code and today is based solely upon the provisions of the Kansas juvenile offenders code. (K.S.A. 38-1601 et seq.)
K.S.A. 1977 Supp. 38-801 (now K.S.A. 38-1601), provided in part:
“This act shall be liberally construed, to the end that each child coming within its provisions shall receive such care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. In no case shall any order, judgment or decree of the district court, in any proceedings under the provisions of this act, be deemed or held to import a criminal act on the part of any child . . . .”
Thus, we think it is abundantly clear that the Kansas juvenile code (and now the Kansas juvenile offenders code) established an exclusive procedure for those subject to its provisions and the district court did not have jurisdiction of the subject matter of the action against appellant. To obtain such jurisdiction the proceedings had to be instituted under the provisions of the Kansas juvenile code as it existed in 1978. Failure of the State to proceed in accordance with the code deprived the court of jurisdiction to accept appellant’s attempted plea of guilty to a crime when the acts complained of were done by appellant at a time when he was under the age of eighteen. The district court and the Court of Appeals were in error in concluding that as the acts of Mayfield would have constituted a felony if he had been an adult, the court had jurisdiction of the subject matter. The subject matter of the action was not a criminal prosecution for a felony but a juvenile proceeding which was never commenced pursuant to the juvenile code.
The decision of the Court of Appeals is reversed, the judgment of the district court is reversed, and the case is remanded with directions to set aside the convicti m.
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The opinion of the court was delivered by
Beier, J.:
This case arises out of a 2003 accident between a Unified Government of Wyandotte County and Kansas City, Kansas (Unified Government), street department truck occupied by employee Douglas Phillips and a vehicle driven by a juvenile. Phillips filed suit against his insurance company, Mid-Centuiy Insurance Company (Mid-Century); the Unified Government’s insurance company, St. Paul Fire & Marine Insurance Company (St. Paul); and the juvenile. After settling with the juvenile and dismissing the action against Mid-Century, Phillips pursued this suit against St. Paul for underinsured motorist (UIM) benefits. Both parties filed motions for summary judgment. The district judge granted Phillips’ motion and awarded him attorney fees. We granted Phillips’ petition for review from a divided Court of Appeals decision reversing and remanding to the district court in Phillips v. St. Paul Fire & Marine Ins. Co., 39 Kan. App. 2d 758, 184 P.3d 280 (2008).
Initially, three issues present themselves: Was the Unified Government’s earlier rejection of a $500,000 UIM coverage limit controlling for its 2003 St. Paul Policy? Was the district court correct in determining that St. Paul denied Phillips’ UIM claim without just cause or excuse, making St. Paul hable for Phillips’ attorney fees? And, if so, was the amount of the attorney fees awarded by the district court reasonable?
Arguments and Procedural History
Phillips contends that St. Paul’s UIM coverage limit for its 2003 policy is $500,000. St. Paul contends that the 2003 policy for the Unified Government limits UIM coverage to $50,000 under a writ ten rejection of the higher coverage limit signed by the insured for a policy issued for an earlier year. Both parties invoke K.S.A. 40-284(c), which provides that an insured has a right to reject the otherwise statutorily required higher UIM coverage limit. The statute also states:
“A rejection by an insured named in the policy of the uninsured motorist coverage shall be a rejection on behalf of all.parties insured by the policy. Unless the insured named in the policy requests such coverage in writing, such coverage need not be provided in any subsequent policy issued by the same insurer for motor vehicles owned by the named insured, including, but not limited to, supplemental, renewal, reinstated, transferred or substitute policies where the named insured had rejected the coverage in connection with a policy previously issued to the insured by the same insurer.” (Emphasis added.)
There is no dispute that St. Paul provided automobile insurance to the Unified Government in 2003. It had not done so in 2000, 2001, or 2002; but it had done so in 1999. In 1999, Unified Government Risk Manager David Coleman signed a Kansas Uninsured Motorist Coverage Excess Limit Rejection form, making the UIM coverage limit $50,000 rather than $500,000. When the Unified Government resumed its relationship with St. Paul in 2003, Coleman again signed a UIM rejection form but forgot to include the $50,000 UIM coverage limit on the form. St. Paul employees noted that the 2003 rejection form had not been properly completed, yet St. Paul issued a new policy to the Unified Government. The policy’s Auto Coverage Summaiy listed the $50,000 UIM limit, and Coleman stated that $50,000 was the amount of coverage the Unified Government intended to obtain from St. Paul in 2003. The parties do not dispute that $50,000 is the amount of UIM coverage the Unified Government paid for in the 2003 policy year.
The district judge ruled in favor of Phillips in this dispute, having been persuaded that the 2003 rejection form constituted “an unlawful attempt to condition, limit or dilute” mandatory UIM coverage.
On appeal to our Court of Appeals, the majority of the panel reviewed our decision in Mitchell v. Liberty Mut. Ins. Co., 271 Kan. 684, 24 P.3d 711 (2001), and concluded that a policy that “ ‘replaces another policy between the same parties and [that] con tains substantially the same provisions . . . qualifies as a “renewal” policy under [K.S.A. 40-284(c)].’ ” Phillips, 39 Kan. App. 2d at 762-63 (quoting Mitchell, 271 Kan. at 697). In addition, the panel majority ruled that an insured who had chosen a lower benefit limit in writing would continue to have coverage subject to that lower limit until the limit was specifically altered. Under this reasoningthe Unified Government thus “rejected excess [UIM] coverage in its 2003 policy through its previous rejections,” despite the gap between its 1999 and 2003 policies with St. Paul. 39 Kan. App. 2d at 761.
Judge Jerry G. Elliott dissented, stating that the Court of Appeals’ majority’s reliance on Mitchell was misplaced: “Simply stated, the Mitchell court’s ruling relies heavily, if not exclusively, on the long-term, unbroken relationship between insured and insurer. The Mitchell court even remarked about problems created in situations where coverage lapsed or where the terms of coverage markedly changed. [Citation omitted.]” 39 Kan. App. 2d at 765 (Elliott, J., dissenting). Judge Elliott would have affirmed the district court’s decision in favor of Phillips.
On petition for review, Phillips makes what are, essentially, policy arguments. He insists that the rejection provision of K.S.A. 40-284(c) must be narrowly applied to achieve the intended protection of the UIM coverage mandate. He also argues that a 1986 amendment to the statute and Mitchell contemplated “a continuing business relation between the same parties and no lapses in coverage” to trigger rejection of a higher UIM limit. A contrary reading of the statute, he asserts, can lead to absurd results, leaving an insured with a lower UIM coverage limit because of an old rejection that has been forgotten.
In response, St. Paul makes a “plain meaning” argument that K.S.A. 40-284(c)’s language is clear and unambiguous. Under its reading of the statute, even if the 2003 rejection form was legally ineffective, the Unified Government’s 1999 written rejection of a higher UIM coverage limit was controlling. St. Paul further argues that Mitchell does not apply to this case because Mitchell analyzed an earlier version of the statute and that, in any event, Mitchell never required a continuing business relationship between the insured and insurer to extend and enforce an earlier rejection.
Standard of Review
“ ‘ " ‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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 is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment,-the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.’ [Citation omitted.]” ’ ” Troutman v. Curtis, 286 Kan. 452, 454-55, 185 P.3d 930 (2008) (quoting Nungesser o. Bryant, 283 Kan. 550, 556, 153 P.3d 1277 [2007]).
Because there is no factual dispute in this case, our review is unlimited. Cooke v. Gillespie, 285 Kan. 748, 754, 176 P.3d 144 (2008). In addition, statutory interpretation raises a question of law on which this court has unlimited review. Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).
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. Nine, 283 Kan. 64, 77, 150 P.3d 892 (2007). Our first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinaiy meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
‘When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
We agree with St. Paul that K.S.A. 40-284(c) is plain and unambiguous. Specifically, 40-284(c) states that valid UIM rejection forms will remain in force and effect for “any subsequent policy” with the same insurer unless the insured requests a change in writing. The “any” in the phrase “any subsequent policy” is deliberately broad and indefinite. It explicitly includes several types of subsequent policies but, again explicitly, is not limited to those listed. See Higgins, 288 Kan. at 364 (K.S.A. 2008 Supp. 44-510k[c] phrase “include, but . . . not limited to” exemplary, not exclusive). Because the validity of the 1999 rejection is unchallenged, it controls the UIM coverage limit on the 2003 policy. The 2003 rejection form, although imperfectly filled out and therefore subject to attack when standing alone, certainly does not constitute a written revocation of the 1999 rejection or an election to obtain or pay for the higher UIM coverage limit of $500,000. It is no surprise that Coleman’s affidavit is completely consistent with this reading of the necessarily uncontested documentary evidence.
Although we need not rely upon either, we also note that neither legislative history nor our decision in Mitchell compels a ruling in favor of Phillips. Mitchell analyzed the 1981 version of 40-284(c), which continued the legal effect of a previous written rejection only when there was a “supplemental to a renewal policy,” not when there was “any subsequent” policy. K.S.A. 40-284(c) (Ensleyl981). Under the now ineffective statutory language, we said:
“It appears that the legislature in subsection (c) intended to simplify further rejections in subsequent policies by the same parties by requiring the named insured to request in writing the higher coverage if desired. Where the parties remain the same and the coverage remains virtually identical, requiring further rejections within that existing relationship would run counter to the legislative intent to simplify the rejection process. Yet, there would be cases where coverage lapsed or where the terms of the coverage markedly changed within that relationship to signal that the new policy issued was not ‘supplemental to a renewal policy’ requiring a new rejection.” Mitchell, 271 Kan. at 695.
Both the Court of Appeals’ majority and the dissent attributed more significance to this paragraph and its discussion of the meaning of a “renewal policy” than they now deserve. Simply put, under the current language of40-284(c), the 2003 policy need not qualify as a renewal policy for the 1999 rejection to control. Similarly, the Mitchell court’s emphasis on the importance of a continuing rela tionship between the insured and insurer — with no lapse as we had here between 1999 and 2003 — matters only to the identification of a “renewal policy,” not to the identification of “any policy,” which is the language before us now. Compare K.S.A. 40-284(c) with K.S.A. 40-284(c) (Ensley 1981). The fact that the 2003 policy was “new” does not mean it was not “subsequent.”
In the face of clear and controlling language in the current version of K.S.A. 40-284(c), Phillips’ policy arguments are unavailing. We are not free to adopt a new policy or to alter the language chosen by the legislature. See Higgins, 288 Kan. at 364. K.S.A. 40-284(c) is plain and unambiguous. It governs. When an insured has previously rejected a higher coverage limit for statutorily mandated UIM insurance, that rejection controls any subsequent policy issued by the same insurer to the same insured for such insurance unless the insured has revoked the earlier rejection in writing. The subsequent policy need not be a renewal policy, and an intervening lapse in coverage or the business relationship of the insured and insurer does not automatically revoke an earlier rejection.
Summary judgment in favor of St. Paul is required. The second and third issues set forth initially regarding the propriety and the amount of the attorney fees award to Phillips are moot, as our decision on the merits requires the award to be vacated.
The judgment of the district court is reversed, and the attorney fees award is vacated. The judgment of the Court of Appeals is affirmed.
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The opinion of the court was delivered by
Jackson, J.:
Frank Mueseler, now deceased, was in his life time a farmer in Rrown county. Upon his death in December, 1957, his will was probated in the probate court of Brown county having been admitted to probate on January 24,1958, and on the same date the executor named in the will was appointed. The three Lutheran church societies were the only named beneficiaries under the will.
Karl H. Mueseler is the only child and sole heir of the above named testator. Kárl made no objection to the will until the executor had sold the real estate then owned by the testator, paid the debts and otherwise administered the estate. The executor then filed his petition for final settlement in which he named the above church societies as legatees and devisees. At this time Karl filed his “objections, exceptions and defenses” to the executor’s petition.
The chief “objection” contained in the above pleading and the only one concerned in the present appeal was stated in part as follows:
“4. That on or about the 2nd day of February, 1955, and for some time prior and subsequent thereto, very friendly and confidential, social and business relations existed between Karl H. Mueseler and his father, Frank Mueseler, induced and sustained by mutual business dealings and transactions particularly as to farming in which they were at times mutually and jointly interested. That at about the time aforementioned, the said Frank Mueseler expressed and stated to Karl H. Mueseler that he wished to retire from active farming, and yet have ready cash to care for himself without disposing of all his holdings, which then consisted of 200 acres of land in Brown County, Kansas, and some personal property.
“That to effect this desire of Frank Mueseler, Karl H. Mueseler met with Frank Mueseler and his attorney Roy V. Nelson, at said attorney’s office in Hiawatha, Kansas, on or about the date first above mentioned. There the matter was discussed and an agreement was reached between Karl H. Mueseler and his father, Frank Mueseler, whereby Frank Mueseler would convey to Karl H. Mueseler, an 80 acres of land, described as: (Land described) assessed at the value of $5425.00, for which Karl H. Mueseler would pay to Frank Mueseler such money as Frank Mueseler would require and need. That at this time Frank Mueseler suggested a maximum payment from his son Karl H. Mueseler, of $18,000.00, and Karl H. Mueseler suggested a maximum payment for said land of $15,000.00, but no agreement was had on the maximum to be paid Frank Mueseler by Karl H. Mueseler for said land. That at this time Karl H. Mueseler stated to his father, Frank Mueseler and his attorney, Roy V. Nelson, that he was unable to finance such a purchase and undertaking without mortgaging his own property, and thereupon Frank Mueseler stated that whatever Karl H. Mueseler paid, even up to the maximum of $18,000.00, as suggested by the father, would not matter because Karl H. Mueseler would receive all of his father’s property upon the death of his parents as their only child. Roy V. Nelson, attorney for the father, made similar statements in behalf of Frank Mueseler to Karl H. Mueseler at or about said time, telling Karl H. Mueseler of a last will and testament of Frank Mueseler devising and bequeathing all property to Karl H. Mueseler after the fife estate of testator’s wife, Anna Mueseler. That the spouse of Frank Mueseler was at this time incompetent, and did not enter into any part of the transaction. At this time it was knowledgeable to all parties present that Frank Mueseler had executed a last will and testament, accomplishing by its terms, bequests and devises to his only child, Karl H. Mueseler, subject to the aforementioned life estate of testator’s spouse, mother of Karl H. Mueseler. On such inducement, Karl H. Mueseler agreed to the acceptance of said deed, and the payments to be made by him to Frank Mueseler, but with no agreement or understanding as to the maximum to be paid, and pursuant thereto, Karl H. Mueseler mortgaged other property of his own and began payment to Frank Mueseler for the deed which Frank Mueseler executed to said property and delivered to Karl H. Mueseler, . .
The pleading continued by alleging the recording of the deed to the eighty acres, just referred to, and further alleging that Karl made payments to his father from time to time beginning in April, 1955 and ending in March, 1957. The payments totaled $11,-703.94. It was also alleged that the wife and mother died on February 2, 1957, and that the land conveyed to Karl by his father was then free of any inchoate claim of the mother based upon the fact that she had not signed the deed to Karl. It was further alleged that because of the confidential relations existing between Karl and his father, he relied upon his father to keep his promises and leave the father’s estate to him; that without the knowledge of Karl, the father made the present probated will 'leaving his estate to others; that Karl not knowing of the new will of his father continued to make payments to him under the above alleged agreement. Karl then alleged in effect that the beneficiaries under the probated will should take nothing and that he should, as beneficiary under the alleged contract and as sole heir of his father, be declared to be the sole owner of the estate.
Karl later filed his petition to transfer the hearing of the above matters to the district court. The district court took jurisdiction of the hearing and after a full hearing denied the claims of Karl and ordered that the estate should be distributed as provided in the will and the report of the executor. Karl has appealed to this court from the decree of the district court.
In discussing the questions presented to this court, we shall for the sake of brevity continue to refer to the appellant by this first name. We shall also observe in the beginning that, as we read the record, the learned trial judge decided the question of Karl’s rights to the estate principally upon one question. The district court decided that Karl had not proved that there was in fact any oral contract to leave the father’s estate to Karl.
We would first point out that under the decisions of this court the trial court was under a duty to find that the contract had been pleaded and proved by clear and satisfactory proof and also that the party asserting the contract had complied with the contract and should in equity and good conscience be entitled to possess the fruits of such contract.
In the case of Jones v. Davis, 165 Kan. 626, 631, 197 P. 2d 932, plaintiff attempted to set up an oral contract under which plaintiff claimed an interest in real estate of a decedent. At page 631 of the opinion, the court set out the rule applicable to the trial court in passing upon such contracts as follows:
“On many occasions this court has had before it contracts of the general nature of the one now under consideration, and in connection therewith has discussed the nature and validity of such contracts, the sufficiency of pleading and proof of the asserted contract, and whether in equity it should be enforced. In the briefs many of these decisions are cited in support of contentions advanced but limits of space prevent detailed reference to them. Both parties direct our attention to Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665, where the plaintiff was denied relief. In the opinion, prepared by Mr. Justice Harvey, may be found an exhaustive review of our previous decisions, and listing those where relief was allowed and where it was denied. Although reference is made to that opinion for a more complete statement, in effect the court held that it must be pleaded and shown by clear and satisfactory proof that there was a contract, and compliance therewith by the party asserting the same under which, in equity and good conscience, he should possess and enjoy the property as against those who would otherwise be entitled to it. The principles laid down in the above case have been followed in many subsequent decisions, among which are the following: Smith v. Nyburg, 136 Kan. 572, 16 P. 2d 493; Logston v. Needham, 138 Kan. 439, 26 P. 2d 443; Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006; Trackwell v. Walker, 142 Kan. 367, 46 P. 2d 603; Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571; Dent v. Morton, 148 Kan. 97, 79 P. 2d 875; Popp v. Wilhelm, 150 Kan. 753, 96 P. 2d 620; West v. Sims, 153 Kan. 248, 109 P. 2d 479; Bond v. Bond, 154 Kan. 358, 118 P. 2d 549; Staab v. Staab, 160 Kan. 417, 163 P. 2d 418; as well as many others cited therein.” (Emphasis supplied.)
Of course, the facts of the case of Jones v. Davis, supra, differed from the particular facts in this case, but we believe the rule as to the amount of proof of the oral contract applied with equal force to this case. The Jones case has been cited with approval in the following recent cases: In re Estate of Spark, 168 Kan. 270, 212 P. 2d 369; In re Estate of Boiler, 173 Kan. 30, 244 P. 2d 678; Texas Co. v. Sloan, 175 Kan. 735, 267 P. 2d 919; and Pattimore v. Davis, 180 Kan. 534, 305 P. 2d 835.
We now turn to the abstract to study the proof offered by Karl as to the existence of the alleged oral contract. Karl’s wife testified that the father wanted to quit farming and move to town and needed money to buy a place in town; that the father approached his son about the latter buying an eighty acre tract. The father wanted $18,000 maximum and his attorney talked of $15,000 as did Karl.
“Well, he wanted the money to buy a place in town and he approached us about the place and we wasn’t interested. We had all we could handle as it was.”
The wife’s testimony as shown in the abstract continues:
“Q. Did there come a time when they did come to an understanding about the purchase of this land?
“A. They didn’t come to very much of an understanding. We were going to but it but there was no understanding. He said he had to have Two Thousand dollars to pay down on that house.
“Q. Did you hear any conversation at that time about what was to be paid and how it was to be paid?
“A. No, he said that morning, once he said, You just pay me as I need it’ and he wouldn’t say, he said, ‘you needn’t come to any price. You are going to get it all some day.’”
After the first of the year, the father talked to his son, Karl, again about buying the land.
“Q. And did he say anything to Karl at that time?
“A. Well, I don’t think any more was said except that — except he said there was no use to say anything about price. That he was going to get it all someday.
“Q. Do you know whether there was anything paid to Frank Mueseler about this time?
“A. Yes, he gave him a check the 11th of January for a down payment on the house.
“Q. Did there ever come a time when they were no longer on friendly terms, Karl and his father?
“A. Well, I guess so.
“Q. You guess so, do you know so?
“A. I know so.
“Q. About when was that?
“A. Probably about the first of the year in ’56.”
A neighboring farmer testified that the father approached him about buying the eighty — that the witness asked if Karl did not want the place, and that later the father returned and said Karl was going to buy it. “It is better that way, Karl is going to get it all anyhow.”
Karl then testified in his own behalf. He identified the deed for the eighty acres and the checks given to his father for payment. He related that he went to the office of his father’s attorney where the deed was made out. There was no writing besides the deed. The record of Karl’s testimony continues:
“Q. Did there come a time when Mr. Nelson talked to you or wrote you about interest payments?
“A. He wrote about the interest but not the payments cause there never was an—
“Q. You mean the payments, I mean interest?
“A. Yes, it was about the interest but not about payments cause there never was no agreement about the payments.
“Q. Do you know of any interest payments that you did make, what they were based on?
“A. I didn’t pay interest cause I thought he didn’t expect interest, then here come a letter from Mr. Nelson. My father said for him to collect interest from me. ‘Karl hadn’t paid the interest’ he said.
“Q. Following this payment in January, and following the deed being given you in February, 1955, where did your father go? Did he stay on the farm or what?
“A. After the first payment?
“Q. Yes.
“A. Well, he went to Powhattan.
“Q. Was there anything ever said to you about any will and testament of your father’s?
“A. Yes, he gave the impression to me that I was getting it all under the conditions we agreed with.
“Q. What did Mr. Nelson say to you?
“A. Well, when he was making up this agreement?
“Q. No, about any will or testament or disposition of Frank Mueseler.
“A. He would disinherit me if I antagonized him.
“Q. Did he say anything else?
“A. He said I was going to get it all anyway, and not to antagonize him.
“Q. Now did you ever see any other will of your father?
“A. Yes.
“Q. When was that?
“A. At the hearing of the will. We were down at the office at the hearing of the will and Mr. Nelson had two sheets of paper out there and he said ‘Your dad had two wills before this one. In one you were going to get it all.’ In the first one, I was disinherited and the next one I got it all and the last one I was disinherited again.
“Q. The last one you made reference to, is that the one that was filed?
“A. Yes.’’
A nephew of the father, who was also a neighboring farmer, testified about two conversations with the father. In the first, he had complimented his uncle on the fact that he understood he was intending to leave his estate to his son Karl. In the second conversation, the witness told of criticizing his uncle because the witness had heard that his Uncle Frank had changed his will and was leaving his estate to strangers. The witness testified:
“I said to him, ‘Why did you do a thing like that, Uncle Frank?’ and he said ‘Because he don’t pay me any more. I sold him that place and everything and he just don’t pay me any more,’ that is all I can recollect about that.”
It may be observed that Karl testified he did not know his father had disinherited him until the father’s will was probated. Rut he testified as shown above that his father’s attorney warned him that if he antagonized his father, the father would do so. This might well indicate that the attorney did not understand that there was any contract binding upon the father to leave his estate to the son.
We think that upon the above evidence the trial court can not be said to have erred in holding that the alleged oral contract was not clearly proved. In fact, a careful examination will show that nowhere was there shown any definite promise on the part of the father. True, at the time the deed for the eighty acres was given to the son, the son was the ultimate legatee and devisee of his father’s estate, but there is shown to have been no promise on the part of the father not to change the will. The father’s attorney warned the son about antagonizing the father, and yet the son quibbled over paying the father money for his living expenses. Perhaps, the son was too much like his father in wanting to get a good bargain. While we are inclined to sympathize with the son under all of the facts, we can not say that the trial court erred in holding the father was not shown to have contracted away his right to change his will.
Other matters are discussed in the briefs, but none which would help the appellant. The judgment appealed from must be affirmed and it is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
This case involves four hackberry shade trees growing in the parking in front of the plaintiffs’ property. The action was to enjoin the State Highway Commission, the Hall Brothers Construction Company, a partnership, and the city of Marysville from removing the trees to construct a new sidewalk in conjunction with a highway improvement project on South 10th Street. The appeal is from an order denying a temporary injunction.
The essential facts are as follows: The plaintiffs are the owners of two lots located on the east side of South 10th Street, a north-south street, which is also designated as U. S. Highway No. 77. Their home is located on the property and fronts on the street and highway. When that part of the city was platted, a strip of land 80 feet in width was dedicated to the public for 10th Street. The street was surfaced with brick paving, cement curbs and gutters, and from the back of the east curb to the back of the west curb it was 31 feet wide.
On November 10, 1958, the city governing body adopted Ordinance No. 770 authorizing and directing the mayor and city clerk to execute contracts between the city and the commission (G. S. 1949, 68-402b) whereby the commission was authorized to act for the city and in its place and stead to obtain benefits and assistance in widening, resurfacing and changing the grade of U. S. Highway No. 77 under a federal aid program. On November 24, 1958, a final agreement was entered into for such an improvement extending from 10th and Elm Streets south past the plaintiffs’ property to the south city limits.
The final plans and specifications of the project called for widening 10th Street 22 feet, that is, the east curb was to be moved eleven feet east and the west curb was to be moved eleven feet west. The street was to be resurfaced with concrete paving, and the old sidewalks, including the sidewalk along the west line of the plaintiffs’ property, were to be torn out and new four-foot-wide sidewalks installed. Due to the railroad crossing just south of the plaintiffs’ property the original grade of the street and the sidewalk were to be raised between one and two feet in front of the plaintiffs’ property.
In the early spring of 1960 the commission awarded a contract to the construction company for the project. When the plaintiffs’ application for a temporary injunction was heard on May 11, 1960, South 10th Street had been widened, raised, curbed and paved, and all the trees in the parking area, north and south of the plaintiffs’ property and on both sides of the highway, had been removed. The four hackberry trees, almost adjacent to the new curb, were still standing, and the old sidewalk, still in place, was two feet below the grade of the new curb. Hence, the only work remaining to complete the project was to remove the hackberry trees, build the new sidewalk and grade the parking from the new curb line to the plaintiffs’ property line.
After hearing all the evidence and viewing the premises, the district court found that no arbitrary, capricious or wanton acts, or lack of good faith existed on the part of the city, the commission, or the construction company, and denied the plaintiffs’ application for temporary injunction.
The plaintiffs contend the evidence showed that it was not necessary to remove the trees for the widening of the street and highway, nor for the construction of a new sidewalk; that the governing body of the city and the employees and agents of the commission acted arbitrarily and capriciously in ordering the trees removed and that the decision to do so was made without fair and reasonable consideration, and that the district court erred in refusing to grant the injunction.
Rollin Fincham, a resident engineer of the commission, testified that the plans and specifications for the project had been prepared by the commission’s planning department and had been approved by the United States Bureau of Public Roads, the commission, and the governing body of the city. Further, that the four hackberry trees, between twelve and thirteen inches in diameter, were a foot and a half to two feet east of the back side of the new curb and that future damage to the new curb and gutter would result from their roots if they were allowed to remain; that the distance from the east side of the trees to the plaintiffs’ west property line was ten feet; that the plans and specifications called for raising the elevation of the new sidewalk to conform to the grade of the street and to build it two feet back of the east curb; that the old sidewalk was located one foot inside the plaintiffs’ property line and the new sidewalk was to be located approximately seven and a half feet west of then- property line; that when the new sidewalk was constructed on the elevation of the grade of the street there would be a slope down to the plaintiffs’ property, and that if it were constructed east of the trees there would be a sharp three-foot slope and it was necessary to build the sidewalk closer to the curb to give sufficient distance for a more gradual slope so as not to dump surface water upon the plaintiffs’ property too fast.
The plaintiff, Ray E. Heinzelman, testified that he did not make application to the governing body of the city as required by Ordinance No. 192 when he planted the four trees fifteen years ago. That ordinance requires any person desiring to plant trees upon the parking adjacent to his property to petition the governing body for permission to do so, and if granted, the city may designate the variety of trees to be planted and require the applicant to bring the parking ground to grade. He further testified that he presented an alternative plan to the governing body of the city and to agents and employees of the commission to construct the new sidewalk immediately east of the four trees and that the only difference between his plan and that of the commission was basically a difference of judgment, opinion and policy as to the method of widening the street and grading the parking area.
It is well settled in this state that an abutting lot owner has an interest and ownership in the shade trees planted and growing in the parking in front of his lots, which gives him a standing in court to prevent an unauthorized and unjustified destruction of the trees by officers or others. (G. S. 1949, 12-1611; Paola v. Wentz, 79 Kan. 148, 98 P. 775; Remington v. Walthall, 82 Kan. 234, 108 P. 112.) See, also, Heller v. City of Garden City, 58 Kan. 263, 48 P. 841. However, where a city adopts a plan to improve its streets by widening, grading or otherwise improving them, upon ground which has been dedicated for that purpose, and the execution of the plan requires the removal or destruction of shade trees growing within the lines of the street or sidewalk on which the improvement is made, their removal for the completion of such work affords no cause of action to the adjacent lot owner since his interest must yield where it conflicts with that of the community or as far as the rights of the public are concerned. (Remington v. Walthall, supra; Ditzen v. Kansas City, 138 Kan. 830, 28 P. 2d 739; 5 McQuillin on Municipal Corporations [2d ed., § 2149].) In the Ditzen case it was held:
“A city may remove shade trees growing on. the street fronting on the residence of the contiguous lot owner, where it is necessary to the widening and paving of the street, determined upon by the city, without liability to the abutting owner.”
While the plaintiffs concede the force and effect of the foregoing authorities, they assert they are not here seeking damages against any of the defendants for the removal of the trees, and contend the authorities are inapplicable where only injunctive relief is sought against the city and the commission. They rely heavily upon Paola v. Wentz, supra, where, in order to clear the way for the building of a sidewalk, officers of the city were about to cut down three shade trees standing in the street when Wentz, the owner of the abutting property, commenced a suit and procured an injunction. Upon appeal it was held:
“Assuming that the question whether a shade tree growing in the street should be removed is one to be determined by the city officers, not subject to review by the courts, yet in order for their determination to be conclusive it must be made fairly and in good faith; if made arbitrarily, action under it may be enjoined as an abuse of discretion.
“The officers of a city may not, against the objection of the abutting owner, remove a shade tree from the street merely for the sake of enabling them to place a sidewalk in a position different from that prescribed by ordinance.” (Syl. ff 1, 2.) (Emphasis supplied.)
A careful reading of the opinion discloses that the plan there involved was only to construct a new sidewalk — no widening of the street or change of grade was to be made, and no evidence was introduced by the city tending to show the necessity of removing the shade trees to construct the new sidewalk. On the question of the necessity of removing the trees, it was said:
“The evidence developed that an ordinance provided that sidewalks in that locality should be five feet in width, and that the inside fine should correspond with that dividing the street from the lot. The trees stood less than five feet from the fence, which was supposed to stand upon the property line. The plaintiff, however, introduced a mass of testimony which tended to prove, and in view of the decision of the trial court must be regarded as having proved, that the fence was out of place, and stood in the street, and that there was room for a five-foot walk between the trees and the true fine. . . .” (l. c. 149.) (Emphasis supplied.)
In the opinion the court reiterated the superiority of the rights of the city to that of a property owner concerning trees in the parking, but affirmed the decision on the basis of the trial court’s finding for the plaintiff that the trees presented no obstruction to the building of a sidewalk of the width desired and occupying the position described in the ordinance with respect to the true property fine.
This brings us to the ultimate question, did the governing body of the city and the commission act arbitrarily and capriciously in adopting the plans and specifications for making the improvement on South 10th Street, which, to carry out, required the removal of the four hackberry trees? Upon that question, the burden of proof was upon the plaintiffs, and the district court made the following finding:
. . there isn’t anything here to indicate that the city, or any to whom it has delegated its authority, has acted arbitrarily and capriciously.”
We think the evidence amply supports the district court’s findings. There is nothing in the record to suggest that the project was unreasonably or arbitrarily entered into, or that any of the defendants acted in bad faith, or that the decision to remove the plaintiffs’ trees was the result of an exercise of discretion which was in fact abused. On the contrary, the defendants acted under authority of law to plan the project and make the improvement, and the construction of the new sidewalk was in conjunction with and a part of a larger project, that is, to widen, raise and resurface South 10th Street. The testimony disclosed it was necessary that the hackberry trees be removed to insure against future damage to the new curb and gutter from the growth of their roots, and to prevent the dumping of surface water upon the plaintiffs’ property too fast. The most that can be said is that a difference of opinion existed between the city and the commission, and the plaintiffs, with respect to the location and construction of the new sidewalk and the proper method of grading the parking, but courts are not authorized to adjudicate a mere difference of opinion between a property owner and a city government touching the necessity, desirability, or execution of a public improvement so long as the court fails to find that the city has abused its power or has acted capriciously, arbitrarily or unreasonably. (Fairchild v. City of Holton, 101 Kan. 330, 333, 166 P. 503; Root v. City of Topeka, 104 Kan. 668, 180 P. 229.)
The plaintiffs having failed to make it affirmatively appear that error was committed in the court below, the judgment is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Parker, C. J.:
This was an action under the Federal Employers Liability Act to recover for injuries alleged to have been sustained by plaintiff by reason of the alleged negligence of defendant.
After joinder of issues by appropriate pleadings the cause was tried and submitted to a jury which ultimately returned a general verdict along with its answers to special questions in favor of the defendant. Thereafter, following consideration of plaintiff’s motion to vacate the jury’s verdict and its answer to special question No. 1, and to grant plaintiff a new trial, the trial court sustained the motion and granted plaintiff a new trial. This appeal, wherein it is conceded the sole question involved on appellate review is whether the trial court erred in granting a new trial after the verdict for the defendant, followed.
After carefully considering the briefs of the parties the court has decided that, without burdening its reports with a detailed factual statement, the single issue presented by the appeal may be disposed of on the basis of findings made by the trial court in a memorandum decision, in which it notified counsel it was granting plaintiff a new trial. These findings were subsequently incorporated in its journal entry of judgment.
So far as here pertinent, the findings, to which we have just referred, read:
“In addition thereto, the Court finds that the first, second, third, fourth, fifth, seventh, eighth and ninth grounds for plaintiff’s motion as set forth in said motion have not been established, and on all said grounds, said motion should be overruled.
“On the sixth cause listed in plaintiff’s motion, to-wit: ‘Erroneous instructions given by the Court,’ the Court has reached the conclusion that the motion should be sustained. In so doing, the Court recognizes the wording of special question No. 1 varies from the wording of the petition in instruction No. I, and the Court notes that instruction No. 16 refers the Jury to the allegations in instruction No. 1, and it is the Court’s feeling that the Court erred in permitting the wording of special question No. 1 to be more restrictive as to date than the allegations of the petition which were given to the Jury in instruction No. 1 and referred to thereafter in the instructions by such terminology as appears in instruction No. 16. The mere fact that the jury was bothered by this discrepancy sufficiently to question the Court after deliberations had commenced is indicative to the Court that the discrepancy might well have been prejudicial to the plaintiff’s cause of action.
“In so ruling, the Court realizes that counsel for both parties were innocent of any attempt to mislead the jury by the wording of special question No. 1, and the Court did not notice said discrepancy, but should have, and in failing to do so, erred, and the Court feels that the ends of justice require that the verdict of the Jury be vacated and the answer to special question No. 1 be set aside and plaintiff is hereby granted a new trial.” (Emphasis supplied.)
Directing our attention to the second paragraph of the heretofore quoted findings the appellant contends the trial court granted the motion for a new trial solely upon the sixth ground thereof, i. e., erroneous instructions and in so doing clearly set forth the only reason for its order sustaining the motion. If the premise upon which appellant bases this contention were to be accepted as warranted by the findings in their entirety there would be much merit to contentions advanced by its ingenious counsel challenging the propriety of that ruling. However, it is neither necessary nor required that we here labor contentions based upon that construction.
The difficulty from appellant’s standpoint, as we view it, is that it either fails or refuses to recognize the force and effect to be given the conclusion announced by the trial court, in the third paragraph of the above quoted findings, wherein it stated “and the Court feels that the ends of justice require that the verdict be vacated” and then rendered judgment accordingly.
After carefully considering all arguments advanced by the parties with respect to the construction to be given the findings in their entirety, it is the unanimous opinion of the members of this court that by the language used in the paragraph last above mentioned the trial court definitely indicated, in language so clear and unequivocal there could be no mistaking it, that it was dissatisfied with the verdict and was vacating such verdict and granting the appellee a new trial on that ground as well as the one previously mentioned in its findings.
With the findings construed as just indicated, this case falls squarely within the rule announced in our comparatively recent decision of Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, where it is held:
“When a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial.” (Syl. f 2.)
And in the opinion said:
“. . . The trial court expressed as clearly and concisely as it could its dissatisfaction with the verdict of the jury when considered in the light of all the evidence and tire pleadings in the case. Having expressed dissatisfaction with the verdict, the trial court could do no other than grant a new trial. The trial court has an important function to perform when the verdict is challenged by a motion for a new trial. On that motion the trial court declared its disapproval of the verdict. From the beginning it has been the rule that if a verdict rendered by a jury does not meet the approval of the trial court, no duty is more imperative than to set the verdict aside and grant a new trial. This rule has been adhered to without variableness or shadow of turning. It is well stated in Bishop v. Huffman, 175 Kan. 270, 274, 275, 262 P. 2d 948, wherein the court said:
“ ‘The result is, that under the confronting facts and circumstances of this case, the propriety of the ruling granting a new trial must be examined in the light of principles to which this court has universally adhered, i. e., that if a trial court is dissatisfied with a verdict it not only has the authority but it is its duty to set such verdict aside (See Schroeder v. Texas Co., 169 Kan. 607, 609, 219 P. 2d 1063, and decisions there cited); that an order of a trial court sustaining a motion for a new trial will not be reversed unless abuse of discretion is apparent (See Bateman v. Roller, 168 Kan. 111, 112, 211 P. 2d 440); and that the granting of a motion of such nature rests so much in the trial courts sound discretion that its action with respect thereto will not be held to constitute reversible error on appellate review unless the party complaining thereof has clearly established "error with respect to some pure, simple, and unmixed question of law (Bateman v. Roller, p. 113; supra; Schroeder v. Texas Co., p. 609, supra)’.” (p. 352.)
More recent decisions dealing with principles of law relating to the consideration and disposition of appeals from orders sustaining motions for a new trial are Abercrombie v. State Highway Commission, 185 Kan. 47, 340 P. 2d 377, and McClay v. Highway Commission, 185 Kan. 271, 272, 273, 341 P. 2d 995.
See, also, the numerous decisions listed in Hatcher’s Kansas Digest [Rev. Ed.], New Trial § 25, Appeal & Error, §§ 458 to 463, inch; West’s Kansas Digest, New Trial § 110, Appeal & Error §§ 977 to 979, inch; Dassler’s Kansas Code, Annotated, Pleading and Practice [Supplementary Edition], Chap. 77, § 17, p. 711.
What has been heretofore stated and held requires affirmance of the trial court’s order and judgment vacating the verdict and granting the motion for a new trial. It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
Plaintiffs (appellees), Jack and Dorotha Carpenter and Otto Plagens, successors in title from C. C. Fager, brought this action against the heirs of C. C. Fager, deceased, defendants (appellants), and others not concerned with the question involved herein, to quiet title to the property in question involving some thirty-two acres, .92 of an acre of which is in controversy. From an order of the trial court finding plaintiffs to be the owners in fee simple of the real estate in question, subject only to the surface easement of the Sunflower Improvement District for improvement district purposes, and entering judgment accordingly, quieting title in plaintiffs, defendants appeal.
In September, 1951, C. C. Fager owned the thirty-two acres of land, and at that time the Sunflower Improvement District instituted condemnation proceedings condemning, for public use, the .92 of an acre, consisting of a narrow strip twenty to eighty feet wide across the southernmost portion of the land now in possession of the plaintiffs. A sewage disposal plant operated by Sunflower occupies the surface of the narrow strip condemned for that purpose.
After the death of C. C. Fager, the remaining land lying immediately north of and contiguous to the Sunflower strip was surveyed by metes and bounds and included in the inventory of Mr. Fager’s estate. In 1952, this land was conveyed by the executors of tlie Fager estate to the Southwestern Electrical Company. It, in turn, conveyed the property to the Carpenters, who, in turn, conveyed a one-half interest to Plagens. All the deeds described the property in metes and bounds and did not describe any portion of the land condemned by Sunflower, although it was contiguous thereto.
This action apparently arose as a result of our decision in Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338, wherein we held that under the applicable statute Sunflower had no right to condemn the fee in the .92 of an acre, and that Sunflower did not acquire title to the minerals in place by the condemnation proceedings. We stated therein that the general rule is that eminent domain statutes will be construed to authorize only the taking of an easement on or title to land sufficient for the public use intended rather than a fee title, unless the statute clearly, either expressly or by necessary implication, provides otherwise. It follows that Sunflower, by its condemnation, took nothing more than an easement and only so much of the surface as was needed to build thereon and operate a good and sufficient disposal plant for the public, and the fee title to the .92 of an acre, therefore, remained in C. C. Fager.
It is the contention of the plaintiffs that when the executors of the estate of C. C. Fager, deceased, conveyed the tract of land adjoining the property condemned by Sunflower, the grantors conveyed the servient estate in the property so condemned. Plaintiffs base their argument on the general rule followed in' this state that when an owner conveys a tract of land abutting on a small parcel in which the grantors own the servient estate and another party owns the dominant estate for easement or right-of-way purposes, the conveyance passes such servient estate to his grantee, unless the intention not to do so is clearly indicated, by specific reservation, in the deed.
The defendant trustees and heirs contend that such grant to the plaintiffs did not pass the servient estate in the property condemned by Sunflower for the reason that the grantors did not intend to convey the servient estate, and for the further reason that a dominant-servient estate situation does not exist in a case where property is condemned for public use other than for highway and railroad purposes, and that the highway and railroad rule should not be extended to apply in the instant case.
We think plaintiffs’ contention is correct. One whose property is subjected to condemnation for public use is nonetheless the owner of the fee and holder of the ultimate title. He has what the law calls the servient estate. The public body for whose purpose the condemnation was made has what is called the dominant estate, and while the fee holder, after condemnation, may not interfere with the rights of the holder of the dominant estate, yet, as owner, he may still continue to use the property for any purpose which does not frustrate the public use for which the property was condemned. (Harvey v. Railroad Co., 111 Kan. 371, 372, 207 Pac. 761; Federal Farm Mortgage Corp. v. Smith, 149 Kan. 789, 791, 89 P. 2d 838.) That the presumption embodied in the highway rule should be applied in the instant case is evident from the language of Mr. Justice Burch, speaking for this court in Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 204, 205, 237 Pac. 913, 42 A. L. R. 228:
“The deed was to be interpreted most favorably to the grantee. The probability that the grantor would purposely deprive his grantee of the benefit of the servient soil, and reserve what in the great majority of instances would be of no use to the grantor, was always slight. Experience revealed that separate ownership of long, narrow strips of land distinct from the territory adjoining on each side was prolific of private dispute and public disturbance, and public policy became an important factor in the interpretation. Therefore it became settled doctrine that a deed of land abutting on a road passes a moiety of the road, unless intention not to do so be clearly indicated.”
It was further stated, quoting from Van Winkle v. Van Winkle, 184 N. Y. 193:
“ ‘Where a survey gives the dimensions and quantity of the land conveyed exclusive of the public way, it does not operate to destroy the presumption that the fee to the roadbed was conveyed, . .
See also Barker v. Lashbrook, 128 Kan. 595, 279 Pac. 12.
A conveyance by a grantor of a parcel of ground abutting an easement without a clear reservation of any right to the servient estate grants, in addition to the parcel, all rights which the grantor may have by reason of such easement, even though the metes and bounds description in the conveyance extends only to the boundary of the easement. In other words, a conveyance of land abutting an easement gives the grantee the same right of ownership to the easement as the grantor had, unless the grantor makes his purpose to exclude clear by express declaration, or equivalent to express declaration, in the instrument. (Bowers v. Atchison, T. & S. F. Rly. Co., supra; Greenberg v. L. I. S. Co., 161 Ohio St. 351, 119 N. E. 2d 292, 49 A. L. R. 2d 974.)
In United States v. Magnolia Petroleum Co. (10th Cir.), 110 F. 2d 212, 217, 218, it was stated:
“It is the general rule that the servient estate in a strip of land set apart for a railroad or highway right-of-way, or for a street, or a small area set apart for school, church, or other public purpose, passes with a conveyance of the fee to the abutting legal subdivision or tract out of which the strip or small area was carved even though no express provision to that effect is contained in the instrument of conveyance, . . . Shell Petroleum Corporation v. Corn, 10 Cir., 54 F. 2d 766; Shell Petroleum Corporation v. Hollow, 10 Cir., 70 F. 2d 811; Roxana Petroleum Corporation v. Sutter, 10 Cir., 28 F. 2d 159; Shell Petroleum Corporation v. Ward, 5 Cir., 100 F. 2d 778; Bowers v. Atchison, T. & S. F. Rly. Co., 119 Kan. 202, 237 P. 913, 42 A. L. R. 228; Barker v. Lashbrook, 128 Kan. 595, 279 P. 12. In Paine v. Consumers’ Forwarding & Storage Co., 6 Cir., 71 F. 626, 632, it was said: ‘The evils resulting from the retention in remote dedicators of the fee in gores and strips, which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lots. And modern decisions are even more radical in this regard than the older cases.’” (Emphasis supplied.)
We could mention many other decisions holding that the servient estate in a small tract, usually in the form of a strip set apart for highway or other public use, passes with a conveyance of the fee to the abutting tract of which the strip was formerly a part. The servient estate passes with such a conveyance, even though no express provision to that effect is contained in the instrument. The rule is that such estate passes, unless it is excluded by clear, unequivocal and unmistakable language. (Shell Petroleum Corporation v. Hollow [10th Cir.], 70 F. 2d 811, 814.)
It is obvious from the mentioned cases that the highway rule is applicable in a situation where the land abutting a public easement is conveyed. In other words, the fact that there is an easement necessarily implies the interest in the servient estate still belongs to the abutting landowner, and when the abutting land is conveyed by the owner who says nothing about the servient estate, the law pre sumes he intended to also convey the servient estate. Defendants contend they had no intention of conveying the servient estate. This is not the interpretative test. The test is whether the deed expressed intention to exclude from the grant the land lying under the easement. It is apparent the deed did not do so, and the servient estate passed with the conveyance of the land abutting thereon. (Bowers v. Atchison, T. & S. F. Rly. Co., supra, p. 208.) To hold otherwise would unnecessarily encumber a great number of land titles in our state. If the grantors of the Fager estate intended to reserve the servient estate they should have made clear and explicit provisions in the deed for so doing. This they failed to do and the conveyance of the land by the executors passed the interest in the servient estate to the succeeding grantees, plaintiffs herein.
Defendants’ other contentions have been considered and, in view of what has been heretofore stated, are found to be without merit substantial enough to authorize a reversal of the judgment. The judgment of the trial court quieting title in the plaintiffs is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
The defendant (appellant), Earl Wilson, David McCleveland and Eugene Artry were jointly charged in three separate counts of an information: Count one was kidnapping the complaining witness, Connie Porting, and inflicting bodily harm upon her in violation of G. S. 1959 Supp., 21-449; count two was forcible rape upon Connie Porting (G. S. 1949, 21-424), and count three was assault upon her with intent to kill. At defendant’s request a severance was had. He was separately tried and convicted of kidnapping in the first degree, and the jury, under the provisions of section 21-449, fixed his punishment at death. He was also convicted of forcible rape, and of inflicting great bodily harm on, or- endangering the life of, Connie Porting in violation of G. S. 1949, 21-435.
Defendant’s motion for a new trial was overruled and the verdict of the jury was approved by the trial court. Defendant was sentenced to be hanged on the kidnapping count, was sentenced on the second count to imprisonment for not less than five nor more than twenty-one years, and on the third count to imprisonment for not less than one nor more than five years. This court ordered a stay of execution (G. S. 1949, 62-2414) pending termination of. his appeal.
It may be stated that we are neither authorized nor have we any disposition to debate the question of the wisdom of capital punishment. The legislature determines the policy of the state in that regard and enacts statutes which the courts are bound to follow. (State v. Miller, 165 Kan. 228, 194 P. 2d 498; State v. Andrews, 187 Kan. 458, 357 P. 2d 739.)
At the outset, it should be stated that the defendant, in his oral statement to law-enforcing officers and in his signed question and answer statement and/or confession, admitted his participation in the kidnapping and forcible rape of the complaining witness and in the infliction of great bodily harm upon her. However, he denied that he personally committed rape or inflicted bodily harm upon her.
In order to give adequate consideration to the questions raised on appeal in this case, it was necessary for this court to obtain a transcript of the testimony taken at the trial in the court below. A brief review of the record as disclosed by the transcript follows: At approximately eight o’clock on the evening in question, David McCleveland, Eugene Artry and Earl Wilson, the defendant (appellant), were riding around Kansas City in a Chevrolet automobile driven- by defendant. All three men were in the front seat. After drinking one quart of wine, they pawned defendant’s topcoat for three dollars to purchase a second quart and continued driving around the city. At approximately 11:00 p. m., the defendant parked the automobile at the end of a Kansas City bus line, near a drug store and liquor store. At that time the bus stopped and the complaining witness, Connie Porting, an unmarried girl. seventeen years of age, got off and proceeded across the street, behind the car in which the three men were sitting. Connie started running and some remarks regarding why she was running were made by the defendant and his two companions. A decision was made by the three of them to “get her.” Connie lived a block and a half from the bus stop. She ran toward her home, and defendant started the automobile and followed her. Connie ran into the yard of a friend near the street corner and hid behind a high hedge. Losing track of her, they turned down the next street, thinking she had proceeded in that direction. Connie, in her belief that she could run home before the defendant and his companions encircled the block, started running south on 33rd street.
As Connie passed the corner and ran through the intersection, one of the three men got out, grabbed her and forced her into the front seat of the automobile. Connie was screaming and kicking. Porch lights went on in the neighborhood. Defendant and the other two men, in fear, raced from the scene, and after they had driven some distance Connie was pulled over into the back seat by Artry. McCleveland then climbed back into the front seat with defendant. Connie continued kicking and screaming, and defendant and his two companions continued beating and hitting her in an effort to keep her quiet. There was a sheet of some sort in the back seat and this was placed over her head and she was forced down in an attempt to hide her and keep her quiet and to prevent her from attracting attention. She was also blindfolded. While still in the car they removed Connie’s underclothes and skirt and continued to beat and strike her.
The defendant continued driving and stopped first at a dark place on the railroad tracks. The three men were afraid, however, that Connie’s screams would be heard, so defendant continued driving until he reached highway No. 32 and then drove until he got to a dark street, ending up at a place beyond the city dump, where defendant was employed. The three men were familiar with that part of the community. They came across a basement which appeared to be a foundation put in with the intention of later completing a house. There was lumber and construction material there. Defendant backed the automobile down near the foundation and Connie was dragged from the car (all her clothing had by then been removed), and she was taken into the basement, where she was horribly beaten and horribly raped.
The defendant stated to officers, both orally and in writing, that Artry pulled Connie out of the car and took her into the basement and McCleveland followed them later; that he (defendant) entered the basement some twenty minutes thereafter and saw Artry stand ing over the girl and McCleveland at her side; that Connie had nothing on and was lying on the ground; that Artry held a razor to Connie’s throat and threatened to kill her, and that he also hit and slapped her about the face; that about three hours later the three men left Connie, naked, in the basement and “started up the hill,” whereupon Artry said he had forgotten something and returned to the basement, remaining with the girl approximately ten minutes more. Then the three men again drove away, leaving Connie lying on the ground.
As defendant and his companions crossed a bridge over the Kansas river they stopped and threw Connie’s skirt, gloves and billfold into the water. Defendant then drove to “the bottoms,” where they purchased another quart of wine. The razor was thrown out of the window of the car and was later recovered by officers on information furnished by defendant.
Connie Porting testified, in addition to many of the facts heretofore related, that on the night in question, after she had gotten off the bus at the end of the line, she was grabbed by Eugene Artry and forced into the car driven by the defendant and was struck several times in the head and choked; that she was struck by the defendant while in the front seat of the car and after she was dragged from the car, and was raped by him. (Connie was later discovered and taken to a hospital.)
Doctor Nash, a gynecologist, examined Connie early the next morning in the hospital. He testified that the right side of her face was badly beaten and swollen; that she had a very black eye, her nose was bruised and her lower lip was cut considerably, primarily on the inside of the mouth; that her face was extremely swollen and the right side from her eye clear down into her throat, in addition to the swelling, was completely blackened; that the right side of her throat was swollen to the extent that it was almost continuous with her jawline, straight down to her shoulder and was also black and blue, and that there was practically no area on her body that didn’t show evidence of either scratches or bruises. The doctor further testified that the lips of the vagina were swollen and, so far as discoloration was concerned, they were almost as bruised as her face; that the hymenal ring was torn in fifteen to twenty places and was stretched and bruised; that at the time he examined her she had ceased any bleeding from it but the slightest touch would make thé tom areas bleed again; that the trained technician’s report showed the fluid in the vagina “was loaded with spermatozoa,” or male germ cell, and that the presence of the spermatozoa and the condition of the hymenal ring showed actual penetration, which had happened within the last twelve hours.
No useful purpose would be gained in relating the other horrid details which occurred on the night in question. Defendant’s full and complete statement and confession was introduced in evidence, with his consent, as a part of the state’s case, and he offered no evidence in his own behalf. The case was submitted to the jury under instructions to which there was no objection.
The county attorney, in his closing argument to the jury, made, among other statements, the following:
“Mr. Ray says these boys did not kill the complainant. In one sense of the meaning of the word “Idll’, perhaps they did not. In another sense, I wonder. Let me quote from George Sokolsky, a syndicated columnist, who writes for newspapers over the nation, his column appearing in the Kansas City Kansan, which was printed on February 29th, just past, dealing with the Chessman case, and I quote:
“Mr. Ray: I object to bringing the Chessman case into this.
“The Court: Just a minute, now. What is your objection?
“Mr. Ray: I don’t know what is coming here. It’s something on the Chessman case, and certainly, the Chessman case is controversial, and I object to it.
“Mr. Foster: If the Court please, this statement has nothing to do with that at all.
“Mr. Ray: I don’t know what it says—
“Mr. Davis: We ought to get it straight. The defendant read from the Baptist and other religious conventions and various things along that line.
“The Court: There is one difference: There was no objection.
“Mr. Davis: Well, we wanted to read from it, and we will read from some others, too, if you will open the door for it.
“The Court: The jury will keep in mind this is not evidence the attorneys are giving you. It is their argument in persuading or trying to persuade you as to their theory of the case. I guess I’ll have to let him go ahead; I don’t know what’s coming.
“Mr. Foster: (Reading) ‘The mother of a raped girl recently was quoted as saying, “My daughter was only seventeen when she was kidnapped. Her clothes were tom off and for hours she was terrified; she was abused, and caused her to lose her mind and life among normal human beings.’
“Miss Porting — Connie—has recovered to a great extent. Miss Porting will, in time, be perfectly normal again, thanks to the wonderful family she has; thanks to her belief in God; thanks to the wonderful people of this town in which she lives. . . .”
The jury retired to deliberate upon their verdict. Shortly thereafter, and on the same day, they sent a note to the court requesting that the testimony of three of the eighteen witnesses (Connie Porting, Lieutenant Grable and Leona McCleveland) be read to them. After the testimony of Leona McCleveland and Lieutenant Grable was read to the jury by the court reporter, the trial court stated:
“The Court: Do counsel have any objection to them taking a transcript of Connie Porting’s testimony? Is that a complete transcript, Charley?
“Court Reporter:, That is a complete transcript of the testimony of the witness Connie Porting. .
“Mr. Foster: For the record, that is an accurate transcript?
“Court Reporter: That is an accurate transcript.
“The Court: The jury may, then, take it along as being the desired testimony of the witness, Miss Porting. Does that answer your question now, Mr. Foreman?
“Foreman of the Jury: Thank you, Your Honor.”
The transcript of the testimony of Connie Porting was allowed to stay with the jury for the “second and third days of deliberation.”
The jury commenced their deliberations on Friday, March 11, 1960, at 1:29 p. m., were excused at 5:10 p. m., reconvened Saturday, March 12 at 9:30 a. m., and at 3:00 p. m. were excused until 9:30 a. m., Monday, March 14, when, at 10:08 a. m., they returned their verdict. In other words, the jury were allowed to separate for some forty-one hours.
Defendant first contends the trial court erred in permitting the county attorney, in his closing argument, to read from an article written by Sokolsky concerning the Caryl Chessman case, recently appearing in the daily newspaper, which the county attorney and the court well knew at the time was one of the most controversial, both nationally and internationally, cases of the day. It is defendant’s contention that the mere mention of the Chessman case, together with the quotation from Sokolsky, led the jury to believe that Connie Porting was losing or had lost her mind, when there was no evidence to sustain such assumption.
Our examination of the evidence reveals that the article was neither offered nor received in evidence; that there was no evidence to indicate that Connie was losing or had lost her mind or that her mind was affected by reason of her terrible experiences on the night in question. The argument can only be deemed an appeal to prejudice and passion and an attempt to introduce facts not disclosed by the evidence. It was extremely improper and prejudicial to defendant’s rights. The court’s order overruling counsel’s objection to the argument put the court’s stamp of ap proval on the state’s argument and reasoning and- the purported facts therein stated.
It is the duty of the county attorney in a criminal prosecution to see that the. state’s case is properly presented with earnestness and vigor, and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve. When a prosecuting attorney persists in objectionable argument, as in the instant case, then the court may, and should, declare a mistrial or grant a new trial. (State v. Majors, 182 Kan. 644, 647, 648, 323 P. 2d 917.)
Long ago, in State v. Baker, 57 Kan. 541, 46 Pac. 947, is was said:
“Where the county attorney in his closing argument to the jury repeatedly uses abusive and improper language calculated to create prejudice against the defendant, and the court, after objection made, fails to check him or to instruct the jury to disregard his remarks, the defendant is entitled to a new trial.”
See also State v. Ryan, 141 Kan. 549, 553, 42 P. 2d 591; 88 C. J. S. Trial § 202, p. 401.
In an even earlier case, State v. Gutekunst, 24 Kan. 252, it was stated:
“We take this opportunity, however, of calling attention to the duty of the district courts in jury trials to interfere in all cases of their own motion, where counsel forget themselves so far as to exceed the limits of professional freedom of discussion. Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, the interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion.” (Emphasis supplied.)
To the same effect, see State v. Netherton, 128 Kan. 564, 279 Pac. 19.
The primary purpose of argument by counsel is to enlighten the jury so that they may render a correct verdict, and counsel should not go beyond the scope of legitimate argument, and his arguments must be confined to the law and the evidence in the case, under consideration. Counsel may indulge in impassioned bursts of oratory, or what he may consider oratory, as long as he introduces no facts not disclosed by the evidence. (88 C. J. S. Trial § 169, p. 337.) In summing up a case before a jury, counsel may not introduce or comment on facts outside the evidence. (State v. Lopez, 182 Kan, 46, 50, 318 P. 2d 662; State v. Alexander, 89 Kan. 422, 428, 131 Pac. 139.) The objectionable argument by the county attorney tran scends the limits of fair discussion of the evidence, and the overruling of defendant’s timely objections thereto constituted prejudicial error.
Defendant contends that the trial court erred in allowing the transcript of the testimony of Connie Porting, the complaining witnessj to be taken to the j'ury room and kept throughout the jury’s deliberations.
This precise point has not been decided by this court. Defendant cites no authority to sustain his contention and the state cites none to justify the trial court’s action. In our limited time for research we found the question had been passed upon in other jurisdictions. The action of the trial court in sending the transcript of the evidence to the jury appears to be without precedent. It is generally held, sometimes under statutory authority, that where the jury, after retirement, return to court with a request for information regarding the evidence on an important point as to which they are in doubt, the trial court may, in its discretion, permit the jury to have the testimony of a certain witness read to them (89 C. J. S. Trial §479, p. 126).
In State v. Solomon et al., 96 Utah 500, 509, 510, 87 P. 2d 807, the court, in a criminal case charging defendant with participating in a riot, after stating that it was in the trial court’s discretion to permit most written instruments introduced as exhibits, such as diagrams, maps, et cetera, to go to the jury, said:
“But the testimony of a witness is in a different category. Such is the provision of the statutes and the common law always excluded depositions and written testimony from being carried from the bar by the jury. We can see no reason why the court should depart from the well established rule. It may often happen that the testimony on one side is oral from witnesses produced before the jury, while the testimony for the other side on essential matters is in the form of depositions or in the transcript from testimony at a previous hearing. If the hearing lasts for any length of time and the jury takes the depositions or transcript to be read and discussed while the oral evidence contra has in a measure faded from the memory of the jurors, it is obvious that the side sustained by written evidence is given an undue advantage. The law does not permit depositions or witnesses to go to the jury room. Why should a witness be permitted to go there in the form of written testimony? State v. Moody, 18 Wash. 165, 51 P. 356; Welch v. Insurance Company, 23 W. Va. 288; Tabor v. Judd, 62 N. H. 288.”
In Commonwealth v. Ware, 137 Pa. 465, 479, 20 Atl. 806, it is stated:
“The second assignment alleges that the trial was unlawful and irregular because the court did not, at the request of the jury, send out to them the testimony of Joseph Louden, to settle a disputed point in regard to what he had testified to. This assignment cannot be sustained. It would have been a mistake to send out his testimony. If the jurors had desired information as to any matter of fact or question of law, they could have come into court and stated their difficulty to the trial judge. He would have answered their inquiries, either as to the facts or the law. The sending out of a part of the testimony to the jury room is without precedent, and would have been a palpable error.” (Emphasis supplied.)
In Payne v. State, 199 Wis. 615, 629, 630, 227 N. W. 258, the court, in a murder prosecution where the jury had been permitted to take a deposition to the jury room, stated:
“While it is held that the matter of permitting exhibits to be taken to the jury room is a matter resting within the discretion of the trial court (Wunderlich v. Palatine Fire Ins. Co. 104 Wis. 382, 80 N. W. 467), attention should be paid to the nature of the exhibits. Generally there could be no harm in permitting a jury to refresh its memory with reference to the contents of a written instrument by an examination of the instrument. Where, however, the testimony bearing on one side of a controversy is in the form of a deposition or other written statement, and the testimony on the other resting entirely on parol evidence given in the court, it is obvious that to permit a jury to take the written portion of the testimony to the jury room, compelling them to rely upon their memories for the testimony on the other side, gives one side of the controversy an undue advantage, and it would seem plain that such exhibits should not be permitted to be taken to the jury room. 2 Thompson, Trials (2d ed.) §2578.”
We are o£ the opinion that when the court permitted the jury to take to the jury room the transcript of Connie Porting’s evidence and to keep such transcript throughout almost all of their deliberation, such action placed undue emphasis on her testimony; in fact, it was equivalent to sending the complaining witness into the jury room, where she continued to plead her cause. Such action of the trial court amounted to prejudicial error.
It is next contended that the trial court erred in permitting the jury to separate for approximately forty-one hours after they had deliberated for two days.
Out of an abundance of caution, it is better practice to not permit a jury to separate during the trial of a capital case, but the court’s allowance of such separation does not constitute reversible error, unless it is established that it tended to prevent a fair- and due consideration of the case. (State v. Howland, 157 Kan. 11, 138 P. 2d 424; State v. Haines, 128 Kan. 475, 278 Pac. 767; State v. Netherton, 128 Kan. 564, 279 Pac. 19; Odell v. Hudspeth [Tenth Circuit], 189 F. 2d 300.)
In the instant case there is no showing that the separation was •without the order or the permission of the lower court or that the jury was not properly instructed prior to separation. It is not shown that a request was made by the defendant or his counsel that the jury be kept together, nor is there any showing that such separation had any effect on the jury in reaching their verdict.
In view of what has been said, we are compelled to hold that the defendant was not afforded a fair trial guaranteed him by the federal and state constitutions. The judgment of the trial court is therefore reversed, with directions to set aside the verdict and grant the defendant a new trial.
It is so ordered.
Parker, C. J., and Price and Robb, JJ., dissent.
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The opinion of the court was delivered by
Robb, J.:
This appeal is from the judgment, order, and decision of the trial court and from the order overruling plaintiffs’ motion for new trial.
On August 15, 1957, plaintiffs purchased lot 27, block 29, in the original town addition to the town of Latham, Kansas. Previously in May, 1955, defendants had acquired lots 28 and 29 of the same block which lots were south of and adjacent to plaintiffs’ property. The trial court in a memorandum opinion found from competent, substantial evidence that a fence had been constructed between the properties more than fifty years ago and had been recognized thereafter as the boundary line. In the formal journal entry of judgment the trial court found generally in favor of defendants and that defendants were not occupying any property belonging to plaintiffs. Judgment was entered accordingly. Hence this appeal.
We have carefully examined the record in this case and there is only one conclusion that can be made from thereon. Plaintiffs have failed to make it affirmatively appear that the trial court committed reversible error with respect to any of the particulars complained of and for this reason we are compelled to hold the judgment of the trial court must be affirmed in all respects.
Judgment affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is an action by a wife to recover damages foían intentional personal injury inflicted by her husband pending a divorce action.
The facts presented in chronological order are as follows:
On October 19, 1962, the defendant, Eugene Milton Toler, filed an action for divorce against his wife, Margaret Kathryn Toler. On December 3, 1962, after being duly summoned, Margaret entered her appearance in the divorce action and Judge E. E. Sattgast entered an order directing Eugene and Margaret not to molest each other. On December 4, 1962, Eugene drove his automobile against the automobile of Margaret witih the alleged intention of killing her, resulting in her serious injury.
On February 7, 1963, Margaret was awarded a divorce decree on her amended cross-petition.
On October 11, 1963, more than six months after the granting of the absolute decree of divorce, Margaret commenced this action against Eugene for damages. In her petition she specifically alleged:
“On or about December 4, 1962, at the approximate hour of 12:40 A. M., the Plaintiff was driving a 1954 Chevrolet automobile in a southerly direction, with all lights illuminating, in the 2100 block of North Broadway, having just passed the intersection of 21st Street and North Broadway at a reasonable rate of speed and upon the inside lane for southbound traffic. At this time and place a 1955 Buick, license No. SG 92588, owned and operated by the Defendant, struck the rear of Plaintiff’s vehicle at about the center, throwing her vehicle forward. Immediately thereafter, the Defendant backed his car up, drove over on the sidewalk west of North Broadway in front of Hanson Furniture Company and while the Plaintiff’s vehicle was at rest and she still in it, rammed his car against hers three separate and distinct times, seriously and permanently injuring the Plaintiff.”
Defendant filed his answer and plaintiff replied.
The specific allegations of the pleadings are not material to a determination of the legal question presented for appellate review. After joinder of issues the defendant filed the following motion:
“Comes now the above-named defendant and moves the Court for judgment upon the pleadings filed herein and/or pursuant to G. S. 1949, 60-2704 and 60-2902 for the determination of a question of law prior to trial of the above-entitled action on the issue of facts, movant contending the issue of law to be:
“Whether in tire State of Kansas a wife may maintain an action in tort for personal injuries or property damage against the husband allegedly arising out of acts of the husband occurring during the existence of the marriage?”
After consideration of well prepared briefs submitted by both parties the trial court entered judgment in which it concluded:
“. . . the Court finds that in the State of Kansas a wife may not maintain an action in tort for personal injuries or property damage against the husband allegedly arising out of actions of the husband occurring during the existence of the marriage and that judgment for the defendant should be entered upon the pleadings filed herein.”
Thereupon plaintiff perfected the instant appeal.
Appellant first contends that the case of Sink v. Sink, 172 Kan. 217, 239 P. 2d 933, should be overruled as in violation of G. S. 1949, 23-203, Section 18 of the Kansas Bill of Rights, and the spirit of Section 6 of Article 15 of the Kansas Constitution. In Sink v. Sink, supra, we held: “Neither spouse may maintain an action in tort for damages against the other.” (Syl.)
The opinion in that case considered the statute and constitutional provisions which the appellant has again attempted to raise. We adhere to the conclusion reached in the Sink case and it would serve no useful purpose to extend this opinion by again reiterating what was there said and held. The Sink case was cited with approval in the recent case of O’Grady v. Potts, 193 Kan. 644, 645, 396 P. 2d 285. Readers who desire to review the more recent decisions on the general rule announced in the Sink case are referred to 43 A. L. R. 2d, Anno., 632 to 671, inch For additional annotations see A. L. R. 2d Supplement Service for 1960, 1961, 1962, 1963 and 1964.
Appellant suggests without further argument that:
“Even if it is not overruled, tire Sink case is clearly and easily distinguishable from the case at bar. The fact situation in Sink v. Sink involved an allegation of negligence as the result of an automobile accident. Moreover, the litigants were not separated, in the process of divorce or already divorced. In the case at bar, the facts involve an intentional assault and battery committed during the pendency of a previously initiated divorce. Surely this Court under these facts can at least restrict the Sink holding to its own facts and distinguish it from what is involved here.”
Conceding that the facts in the case at bar are somewhat dissimilar to those in the Sink case, they are not such as require the application of a different principle of law.
The fact that the husband and wife are having marital difficulties or that one of them has filed an action for divorce does not change the marital relationship. The parties remain husband and wife until a divorce decree is granted. Complete dissolution of the marriage relation immediately follows the decree. See Johnson v. United Workmen, 91 Kan. 314, 316, 137 Pac. 1190.
A personal injury whether administered intentionally, wantonly or by negligence constitutes a tort. Any private wrong constitutes a tort. A private wrong covers all of those' duties due from one person to another. For definition of a tort see 52 Am. Jur., Torts, § 2, and 86 C. J. S. Torts, § 1.
It must be conceded there is a conflict of decisions as to whether an exception should be made to the general rule and recovery permitted by one spouse for personal injuries intentionally inflicted by the other. We are convinced the better rule is that no exception should be made to the general rule, to which this court has adhered. There should not be an abrogation of the long-established common law rule barring a personal injury action by one spouse against the other by the courts unless there has been a complete change in the conditions which brought the rule about. The abrogation, if desirable, is one calling for legislative action and should be without the sphere of judicial decisions.
The judgment is affirmed.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s order dated October 8, 1963, on a special appearance, sustaining defendant’s motion to quash the service of summons on defendant, and from its order of October 30, 1963, overruling plaintiff’s motion to reconsider.
On May 17,1961, defendant by the operation of its quarry caused a landslide to come down on plaintiff’s railroad tracks whereby plaintiff suffered damages. Plaintiff’s petition filed May 10, 1963, contained the following allegation:
“Defendant is a corporation organized and existing under and by virtue of the laws of the State of Kansas and authorized to do and doing business in the State of Kansas and its correct post office address is Bridgeton, Missouri.” (Our italics.)
As a result of the above, and on May 10, 1963, praecipe for summons was filed and a summons was issued directed to the Secretary of State. The return of summons dated May 14,1963, in connection with which a returned receipt was requested, shows it was directed to defendant as follows:
“To: Registered Office of West Lake Quarry and Material Company, c/o The Corporation Company, Inc., Resident Agent, First National Bank Building, Topeka, Kansas.”
On July 1, 1963, defendant appeared specially for the purpose of quashing the pretended service of summons for the reason that the petition alleged defendant to be a Kansas corporation, and the attempted service on defendant was not proper, with the result the trial court was without jurisdiction of either the person of the defendant or the subject matter of this action.
In its journal entry of judgment the trial court recognized that venue for an action against a domestic corporation is covered by the provisions of G. S. 1949, 60-504, and service upon such a corporation is covered by G. S. 1949, 60-2518. It reviewed the fact that plaintiff had announced the use of the word Kansas in the petition (heretofore quoted) was a clerical error because defendant is actually a foreign corporation organized and existing under and by virtue of the laws of the state of Missouri but that proper service on a foreign corporation had been obtained under G. S. 1961 Supp. 17-504 and plaintiff requested leave to amend its petition.
Defendant announced it was unable to agree to such an amendment and plaintiff’s counsel then stated that since no responsive pleadings had been filed to its petition, plaintiff had the right to amend without leave of court and stated the petition would be so amended in order to correct the above-mentioned clerical error.
The trial court ordered that defendant’s motion to quash the service of summons be sustained.
On October 17, 1963, which was after the expiration date of the two year statute of limitations (G. S. 1949, 60-306, Third), plaintiff filed its amended petition under G. S. 1949, 60-756, which reads:
“The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to tifie proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition.”
We have carefully examined the authorities submitted in this case and are convinced that the most compelling are certain portions of the opinion in Butter Tub Co. v. National Bank, 115 Kan. 63, 67, 222 Pac. 754, and the provisions of G. S. 1949, 60-759, reading as follows:
The court or judge may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform in any respect to the provisions of this code, the court or judge may permit the same to be made conformable thereto by amendment.”
In the Butter Tub case, supra, where plaintiff had alleged in its petition, affidavit in garnishment, and affidavit for service by publication that the defendant, The Vail Cooperage Company, was a corporation organized and existing under and by virtue of the laws of the state of Indiana, and more than a year later plaintiff amended its petition by changing the name of the defendant to A. T. Vail, Doing Business Under the Trade Name of The Vail Cooperage Company, tins court held the amendment did not change plaintiff’s cause of action, and in the opinion it was said:
“In some courts such an error as described here is fatal to the proceedings, as not bringing the right defendant into court, or as suing the wrong party. In those jurisdictions an amendment to correct the defect is deemed bringing in new parties, and is, therefore, not allowed. The weight of authority and the better reasoning, however, appears to support the theory that the plaintiff may amend his pleading or process in order to properly designate the defendant. The amendment may be made in furtherance of justice when the amendment does not change substantially the claim or defense (Civ. Code 140; R. S. 60-759). It cannot here be said that the wrong party sued. There was no misdescription in the name of the defendant. Plaintiff’s error was in alleging ‘The Vail Cooperage Company,’ to be a corporation. There was no corporation under the name of ‘The Vail Cooperage Company.’ The publication notice was directed, not to a corporation, but to ‘The Vail Cooperage Company.’ There was no change of parties when plaintiff amended its petition. It is a salutary rule that cases should be determined on their merits, rather than on technicalities of procedure — on matters of substance, rather than matters of form.
“This court has gone far in allowing amendments in furtherance of justice, even to the extent of substituting one party for another, when it was discovered that a mistake of parties to the controversy had been made.” (p. 67.)
Our conclusion is we find the trial court in the case at bar committed reversible error in not allowing plaintiff to amend its petition and in its order sustaining defendant’s motion to quash the service of summons. We, therefore, hold the judgment of the trial court be reversed, that its order sustaining defendant’s motion to quash be set aside, that plaintiff’s amendment to its petition be allowed, and the court proceed with the trial of the cause.
In view of the above conclusion other matters urged on appeal need not be discussed.
Judgment reversed with directions.
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The opinion of the court was delivered hy
Wertz, J.:
Defendant was convicted by a jury of assault and battery (G. S. 1949, 21-436) and sentenced to pay a fine of $200 and costs. From an order overruling his motion for a new trial and the subsequent imposition of the sentence, defendant has appealed.
The complaint charged that on December 21, 1963, the defendant, Glenn Ringler, did unlawfully assault, beat and wound one Hubert Cooper. The pertinent facts follow.
During the fall of 1963 Hubert Cooper rented a dwelling from Glenn Ringler, defendant (appellant). On December 1, Cooper notified defendant of his intention to vacate the premises as of January 1, 1964. On the evening of December 21, Cooper telephoned Ringler’s residence and advised that he was in the process of moving out of the house, that he had drained the water pipes, but that the propane tank had run dry. Ringler then contacted Cooper, who still had the keys to the house, and asked to be permitted to enter the house and check the plumbing. Cooper, accompanied by Albert Rippe, met Ringler, Paul Privett and two other temporary employees of defendant at the house. Cooper unlocked the door and admitted the group to the house. A tour of inspection which terminated in the kitchen was made of the house. The light switch in the kitchen was turned on but the light in the ceiling failed to function. Cooper climbed upon a chair and removed the globe from the light fixture. While Cooper was standing on the chair holding the globe in his hands in front of him, defendant walked over and struck Cooper across the face, knocking him to the floor.
At the trial defendant admitted lunging forward and making contact with Cooper, causing him to fall from the chair. This statement was supported by the testimony of other witnesses. Defendant contends he thought Cooper was going to throw the light globe at him or one of those present, or was going to break it, and thus struck Cooper in defense of his person and property. The evidence disclosed that up to the time of the alleged assault there were no harsh words or argument between Cooper and the defendant.
In the district court the defendant maintained that his actions were in self-defense of person and property, and that he used only such force against Cooper as was necessary to restrain him from injuring his person or destroying his property, and requested the trial court to give an instruction to the effect that defendant had the right and might use such force as was reasonably necessary to defend himself against an assault by Cooper on his person or the destruction of his property.
It may be here noted that the trial court instructed that defendant might use such force as was necessary to repel an attack upon his person but refused to instruct that defendant might also defend against the destruction of his property. The court gave instruction No. 7, which was as follows:
“The defendant in this case denies that he did strike the complaining witness Hubert Cooper, but claims that if he did so he did so> in self-defense, and you are instructed that if a person is assaulted by another in such a manner as to give him reasonable grounds to believe that there is a design on the part of the assailant to do him bodily harm and there is immediate danger that such design will be accomplished and if he honestly believes that such design on the part of his assailant and such danger to himself actually exists, then he has the right to stand his ground and to use such force as shall, on reasonable grounds appear to him, to be necessary to repel the attack, but if he uses greater force than reasonably appears to be necessary, he himself becomes the aggressor and his plea of self-defense cannot avail him.”
The defendant’s sole contention on appeal is that the trial court erred in failing to instruct the jury also that the defendant could lawfully use that amount of force which was necessary under the circumstances to repel Cooper from destroying defendant’s property, i. e., the light globe.
It is true that one of the court’s duties is to instruct the jury on the law applicable to the theories of both parties so far as they are supported by any competent evidence. The instructions given must be germane to the issues raised by the pleadings and must be limited to those issues supported by some evidence. (Schmid v. Eslick, 181 Kan. 997, 1004, 317 P. 2d 459; Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452.) Where no evidence is presented, or the evidence presented is undisputed and is such that reasonable men could not accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury. In that event, the matter becomes a question of law for the court’s determination. (Schmid v. Eslick, supra.) This court has consistently held that an instruction which is a correct statement of the law as an abstract proposition should not be given in a case unless it is applicable to the facts disclosed by the evidence received at the trial. (Houghton v. Sabine Lumber Co., 128 Kan. 584, 278 Pac. 758; Honick v. Railway Co., 66 Kan. 124, 71 Pac. 265.)
In tibe instant case an examination of the record fails to reveal any evidence which indicates that Cooper at any time by, any overt action showed his intention to destroy any property of the defendant, and the court properly refused defendant’s requested instruction.
No other questions being raised on the appeal, the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action to recover damages for personal injuries as the result of a collision between two automobiles.
As the determining issue involves the trial court’s post-verdict directions to the jury, the facts may be highly summarized.
On the 4th day of January, 1962, the claimant, Marjorie Collett, was driving an automobile in a westerly direction on a Marion County, Kansas highway about one-half mile west of the city of Ramona, Kansas. At the place mentioned the claimant’s car collided with an automobile being driven in an easterly direction by Conrad J. Schnell. The claimant was seriously injured. Schnell died four days later. His will was probated and the claimant filed a petition for allowance of demand for her injuries suffered in the collision in the probate court against the executor of the estate of Schnell. The petition for allowance of demand, in due course, reached the district court where the case was tried to a jury. At a pretrial conference it was determined that the only controverted facts were the location of both vehicles just prior to and at the time of impact in relation to the center of the roadway and the extent of claimant’s injuries. We ignore the trial proceedings and consider next the conduct of the jury. The jury, after deliberating, returned to the courtroom and announced that it had reached a verdict. The trial court read the verdict and the answers to special questions in silence.
The following proceedings then took place:
“The Court: Lady and gentlemen of the jury, the court finds that your verdict and answers to the special questions are inconsistent. The court is going to direct you back to the jury room, ask you to read the instructions of the court, and to reconsider your decision. Mr. Bailiff, will you please take the jury back into the jury room. I want these to go with them, though (returning documents to bailiff). Go with the bailiff, please. (Emphasis supplied.)
“The Court: Just a moment. For the record, lady and gentlemen of the jury, reread your verdict, reread your answers to your special questions, and reread the instructions.
“Thereupon the jury in charge of their bailiff was again sent out to the jury room to further consider on their verdict and special questions in this case.
“The Court: Now for the record, the special questions, gentlemen, and the verdict, could not be reconciled, but they were so unable to be reconciled that they belied the truth of either. But the court at this time, because of the method the court has taken, would want you both to so object to the means that the court has taken by sending them back to the jury room to reconcile the same, if you so desire.”
It was then disclosed that the jury had returned a general verdict in favor of the plaintiff in the amount of $21,125.00 and answered special questions, only three of which are material here, as follows:
“3. Were there tire marks laid down by the Collett car just before the collision?
“Answer: Yes.
“4. If you answered No. 3 in the affirmative, then state where such tracks were from the center of road.
“Answer: 14 inches to the left of center.
“5. If you find that at the time of the collision that the Collett car was partly south of the center of the road, then state whether this directly or proximately caused or contributed in any degree to the force of the collision of the cars and to the injuries claimed by the plaintiff.
“Answer: Contributed."
There followed an off the record discussion of the court’s procedure in returning the jury to the jury room for further considera tion but it does not appear that any specific objection was made at that time. The jury returned in due course with the same general verdict and had answered questions 3, 4 and 5 as follows:
“3. Were there tire marks laid down by the Collett car just before the collision?
“Answer: No visible marks proved to jury.
“4. If you answer question No. 3 in the affirmative, state where such tracks were from the center of the road.
“Answer: Don’t know.
"5. If you find at the time of the collision the Collett car was partly south of the center of the road, then state whether this directly and proximately caused or contributed in any degree to the force of the collision of the cars and to the injuries claimed by the plaintiff.
“Answer: Contributed according to Clothier’s first report.”
The jury was dismissed and the defendant then filed its objections to the court’s procedure in handling the jury. The motion was later argued to the trial court and overruled. Judgment was rendered on the general verdict and amended answers to the special questions. A motion for a new trial was also overruled and the defendant has appealed.
The appellant presents its chief claim of error as follows:
“It is Defendant’s contention that the Court erred as a matter of law, after the jury had reached a verdict, and had answered the special questions, in stating to the jury that their verdict and the answers to the special questions were inconsistent, and in sending them back to the jury room to read the instructions and to reconsider their decision, and to reread the verdict, reread the answers to the special questions, and reread the instructions.”
We must agree with appellant’s contention. It is error for the trial court to indicate to the jury the need for having the answers to special questions consistent with the general verdict. It is the sole duty of the jury to find the facts according to the evidence and to answer the special questions truthfully without reference to the effect on the general verdict. Any effort on the part of the trial court to influence the jury in this regard destroys the entire purpose of special questions.
We have in this case a good illustration of the unfortunate results that follow such a practice. When the jury first returned it stated that there were tire marks laid down by appellee’s car just before the collision and that the tracks were fourteen inches over the left center of the road. After the trial court stated that it found that the “verdict and and answers to special questions are inconsistent” and instructed the jury to retire and reconsider the instructions and its decision, the jury returned with findings contrary to what it had originally found. When the juiy returned the second time it stated that “no visible marks were proved to jury,” and that it did not know where such tracks were from the center of the road. It would be difficult to reach any conclusion other than that the trial court influenced the jury in its second set of answers to the special questions. This the trial court may not do. We definitely disposed of this question in Thornton v. Franse, 135 Kan. 782, 12 P. 2d 728, where it is stated at page 787 of the opinion:
“It is the duty of the jury to answer special questions as they find the facts to be from the evidence, without regard to how their answers may affect the general verdict. Any instruction or statement by the court to the effect that the answers to special questions should be made with the view that they harmonize with the general verdict is erroneous. (Lynch v. Payne, Agent, 117 Kan. 5, 10, 230 Pac. 85; Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439; Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064; Dry-Goods Co. v. Kahn, 53 Kan. 274, 36 Pac. 327; Usher v. Hiatt, 18 Kan. 195; Railway Co. v. Kennedy, 8 Kan. App. 490.)
"Some of the language used by the court is open to that interpretation, if indeed it does not compel it, hence the judgment appealed from must be reversed. The practice cannot be permitted of having the jurors’ attention called to the fact that their answers to special questions do not accord with the general verdict, and after doing so and rereading instructions and giving explanations, having the jury again retire to consider their answers to special questions.” (Emphasis supplied.)
Cases cited by appellee to the effect that the court may require the jury to complete indefinite and incomplete answers (Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080) and that the jury may be returned where one of the jurors disagrees with the answer to a special question after being polled (Farmer v. Central Mut. Ins. Co., 145 Kan. 951, 67 P. 2d 511) or disagrees with the verdict (Morgan v. Bell, 41 Kan. 345, 21 Pac. 255) have no application to the question under consideration.
The appellee contends that the appellant waived his objections to the trial court’s action in sending the jury out for further deliberation, by failing to make any objections prior to the dismissal of the jury. In support of her contention the appellee cites numerous cases which adhere to the rule that in the absence of any objection to the verdict or special questions until after the jury is discharged, a litigant is deemed to have waived any objections he might have thereto. (Watkins Co. v. Hanson, 185 Kan. 758, 347 P. 2d 447; Kitchen v. Lasley Co., 186 Kan. 24, 348 P. 2d 588; Banbery v. Lewis, 173 Kan. 59, 244 P. 2d 202.)
We have no intention of deviating from the above rule. However, we do not believe that the rule has any application to the facts and circumstances under consideration. The appellant is not directly complaining of the jury’s answer to the special questions. He is satisfied with the first set of answers, the only answers that carried any validity. The appellant is objecting to the conduct of the trial court when it informed the jury that it found their verdict and answers to the special questions to be inconsistent and instructed the jury to return to the jury room, “reread your verdict, reread your answers to special questions, and reread the instructions,” and the abortive results which followed.
We have concluded the directions of the trial court were clearly erroneous. This court adheres to the rule that where the instructions or directions of the trial court are in themselves erroneous, an appellant is not estopped of complaining of them as error by not having objected at the time they were given.
In Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597, we state at page 439 of the opinion:
“Objection was not made to this instruction at the time it was given but the alleged error in giving the instruction was urged upon the motion for a new trial. Although the general rule is that instructions to which no objection is made when given may not be reviewed upon appeal, we have said that this rule should not be applied where the instruction is clearly erroneous. In Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859, after stating the general rule (with many cases cited, p. 287), it was said:
“ ‘It must, however, also be conceded the rule does not apply to an instruction which is in itself erroneous and an appellant is not estopped from complaining of it as error by not having objected to it at the time it was given. (Richardson v. Business Men’s Protective Ass’n, 129 Kan. 700, 284 Pac. 599; Doyle v. City of Herington, 142 Kan. 169, 45 P. 2d 890, and Lukens v. First National Bank, supra.)’ (p. 288.)”
It should be noted that the appellant was not informed as to the findings and verdict, nor given an opportunity to object to the trial court’s directions before the jury was returned to the jury room. The appellant did by its objection before the verdict was approved, and in its motion for a new trial, call the trial court’s attention to its error and give it an opportunity to correct it.
The appellant further contends:
“Defendant thus contends, that where the first answers to questions 3, 4 and 5 establish Plaintiff’s contributory negligence in driving to left of center of road just before the collision, Defendant would have been entitled to judgment on the answers to these questions notwithstanding the general verdict for Plaintiff. The trial court erred in sending the jury back to the jury room with the instructions as indicated, and in cases such as this, this Court is authorized to order the proper judgment to be entered.”
We cannot direct a judgment on the special findings in this case because the trial court has not approved the jury’s first answers to the special questions, and from the state of the record this court has no assurance that it would. A similar situation was before this court in Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 139 P. 2d 157, where it is stated:
“. . . When a general verdict is returned by the jury it becomes the duty of the trial court to determine whether the verdict should be approved. This is said to be one of the most important duties of the trial court. In doing so the court should exercise an independent judgment formed from judicial consideration of the evidence. This rule has been discussed so thoroughly in former decisions that there is no need to expand the discussion here. (See Posey v. Johnson, 145 Kan. 742, 745, 67 P. 2d 598, and cases there cited.)
“The same general rule applies to the court’s approval of answers to special questions, except that a special question pertains to a particular fact; rules of law are not involved. (Swan v. Salt Co., 86 Kan. 260, 119 Pac. 871; Shore v. Shore, 111 Kan. 101, 205 Pac. 1027; Kansas Wheat Growers Ass’n v. Rinkel, 126 Kan. 733, 734, 271 Pac. 311; 64 C. J. 1183.)
“In a case such as this, an action at common law for damages, in which the parties are entitled to a trial by jury, the court’s powers extend no further than to approve or disapprove the verdict, or the answers to special questions. . . .” (p. 192.)
If the trial court is dissatisfied with the jury’s answers to special questions, its only recourse is to grant a new trial. It cannot substitute its answers to the special questions for that of the jury nor require the jury to return particular answers. If that were permitted to be done it would amount to forcing the parties to a trial by the court denying them a trial by jury.-
The judgment is reversed with instructions to grant a new trial.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This was an action for damages for alleged negligence in designing and constructing a grain storage elevator which resulted in a partial collapse of the structure.
The facts as disclosed by the testimony, which was necessarily extensive and highly technical, will be summarized.
In 1958, the plaintiff, James G. Winn, was named as a trustee of a profit-sharing trust which was formed for the benefit of officers, administrative and clerical employees, and salesmen of the Abilene Flour Mills Company and another related enterprise. In the summer of 1958, the trust entered negotiations with the Sampson Construction Co., Inc. (hereinafter called Sampson), for the erection of a two million bushel grain storage facility on real estate owned by the trust, directly across the railroad tracks from the Milling Company operations. Due to the fact that the trust was new Sampson asked for and secured a guaranty from the Milling Company to insure the financial aspects of the contract.
Sampson had erected other grain elevators for other companies associated with the Milling Company. In past contracts Sampson had used its printed form of agreement similar to or identical to the instant one. While this form contract provided that the responsibility of soil conditions rested upon the owner, no soil testing had been done in past years. The earlier structures had settled, however, and settlement was to be expected in a structure of this kind in carrying the heavy load. The real estate upon which the proposed structure was to be erected was transversed by a main city sewer line of the City of Abilene. The parties were concerned about limiting the amount of settlement so as not to interfere with the operation of the sewer line. Therefore, soil testing was arranged by Sampson with the Oklahoma Testing Laboratories in an effort to determine what settlement should be anticipated. A report from that company was not promptly forthcoming and a second test was arranged for by Sampson with Paul Garber of Kansas City, Missouri. The trust reimbursed Sampson for the costs expended by it to the Oklahoma Testing Laboratories and by agreement reimbursed Sampson for one-half of Garber’s costs.
The written agreement entered into by the parties expressly provided that plans and specifications were attached to it. However, in actuality, neither plans nor specifications were then in existence and the plans were actually drawn and amended in the ensuing months, as the construction progressed, but long after the contract was signed.
Sampson moved on the job site immediately after the contract was signed between the parties and commenced preparing forms to be used in the erection of the structure. On October 20, 1958, Sampson was advised by telephone by Garber that the load he had intended placing upon the soil was in excess of the capability of the soil. Thereafter, Sampson reported this conclusion to the trust and Milling Company and there then followed a discussion of what course to take. Representatives of the trust suggested building on different ground but Sampson discouraged this. The question of piling was discussed but was ruled out by Sampson. Thereafter, Sampson agreed to return to its office and to come up with a proposal after consulting with its engineering staff. In succeeding days Sampson returned with a drawing or sketch of a type of foundation that it represented would accomplish the objective of building the structure at the proposed site. The cost of this addition was negotiated and it was then agreed that the trust would pay $65,000 in addition to the $750,000 previously agreed upon. The subsequent agreement proposed the addition of a slab extension to extend an additional eight or thirteen feet beyond the perimeter of the upright bin walls. Sampson felt that the extension should be an additional thirteen feet and on its recommendation that this was more desirable, the additional money to be paid to Sampson was agreed upon. Sampson stated that he had employed this design previously. Subsequently Sampson prepared and forwarded to the trust a supplemental agreement reflecting the additional money to be paid. Sampson designed the new foundation around the Garber report and told the trust representatives that by so doing: “We will have a good, safe elevator.”
Construction then continued through the winter months of 1958, and 1959. Loading and testing commenced in the late spring and early summer of 1959, under the supervision of Sampson employees. While in progress certain difficulties were noted in a car tunnel under the structure and Sampson’s attention was called to it. Remedial action was undertaken by Sampson for this problem. Later it was noted that the elevator was tipping slightly to the south. This was not unusual and Sampson employees gave directions to transfer the loading on a systematic basis to the north bins and then the east and west bins. As this was being accomplished there occurred suddenly and violently a failure in the bin walls on the bins on the north at the extreme west end. This phenomenon continued for several hours and was characterized by the crumbling and popping of the north wall of the north bins at intervals until the failure had occurred along the entire north side of the elevator into and including the eastern-most bins.
Emergency measures were undertaken immediately by all of the parties and as a part thereof the parties promptly agreed to employ a soil stabilization contractor to undertake the pumping of grouting cement under high pressure into the soil immediately under the structure. This process continued for the ensuing months during which time the vertical bin walls that had failed were removed and replaced. The structure today is in operation although it is badly damaged and there was testimony that it is subject to having further trouble.
The petition alleged that the defendant negligently designed and built the foundation of the structure and claimed damages as follows:
“As a proximate result of defendant’s negligence, plaintiff has been damaged in losses to the structure in the amount of $411,531.23 expense in moving and loss of grain in the amount of $7,400.00; damage and replacement of sewer in the amount of $2,500.00; and loss of profits in the amount of $201,610.68 as hereinbefore itemized. [Less $100,000 due on contract price.]
“Wherefore, the plaintiff prays judgment against the defendant for the sum of $523,041.91, and for the costs of this action. . . .”
The defendant answered with a general denial and cross petition for the balance due on the contract in the amount of $100,000 and $116,682.75 for stabilization and rehabilitation of the elevator.
The jury answered special questions and returned a verdict in favor of the plaintiff in the sum of $274,529 less $100,000 due on the contract. The verdict was reduced to judgment and the defendant has appealed.
The appellant first contends that “there was no evidence that the negligence found by the jury could have been the proximate cause of the failure.”
The jury answered special questions as follows:
“No. 1. If you find that failure of the elevator was caused by soil conditions, do you find that such conditions were known or should have been reasonably anticipated from the reports available to defendant?
“Answer: Yes.
“No. 2. If your answer to question 1 is affirmative, do you find that defendant negligently designed the elevator in view of such knowledge?
“Answer: Yes.
“No. S. If your answer to question 2 is affirmative, state in what particular the design was negligent.
“Answer: Negligent in the design, engineering, and construction of the slab, specifically in the lack of tying in of the steel in the bottom of the cantilever and in addition, the inadequate amount of steel reinforcement.”
The chief objection is directed to the answer to question No. 3.
It cannot be argued there is not ample evidence to support a finding of negligence in the designing of the elevator. The testimony generally was to the effect that the slab or cantilever design tended to increase rather than decrease the hazard to be avoided.
An investigation into the cause of the failure was undertaken three days after it occurred by a nationally recognized firm of engineers. One of the senior engineers of the firm testified that the failure was the result of faulty design. It was his opinion that the foundation slab extension — the thirteen foot apron subsequently incorporated into the design — created a problem which caused the failure. This slab extension induced a condition that caused the slab to flex or bend in the center where the load was, resulting in the entire load being carried by the outer bin walls, which in turn were incapable of carrying it. The flexing or deformation of the footing resulted in a crack that extended the entire longitudinal distance of the structure. The downward bowing of the center of the slab was made inevitable by the absence of re-enforcing steel in the slab at the point where the bowing and crack occurred. It would have taken two and one-half times as much steel to properly resist the stresses.
A second structural engineer and one who had actually designed scores of grain storage facilities, including ones much larger than this one, believed that the failure was a result of faulty design. The foundation was not structurally stable. The use of the extension to spread a load backfires by creating a bending movement under the center of the structure which, in effect, creates a hinge permitting the center of the slab to bend and break. The failure would have occurred on any type of soil.
Appellant makes no objection to the general finding of negligence in the design, engineering and construction of the slab but objects to the particulars found by the jury in which there was negligence in the design. Appellant states:
“There was absolutely no testimony that the slab would have been one iota more rigid by use of increased steel and tying in the bottom of the slab. . . .”
We cannot agree with appellant’s contention. There was engineering testimony as follows:
“A. (continuing) the thing actually cracked. There was a very high stress. In the bottom of that slab. And there was no steel there. This undoubtedly resulted in the crack.
“Q. In other words, there wasn’t enough steel that carried clear through, and across, that bottom, to carry the weight of that — normal weight of that elevator, was there?
“A. It did not have enough strength to resist the forces. Right.”
There was additional testimony:
“Q. Would you ever, as an engineer, have approved such a design?
“A. Absolutely not.
“Q. In the placement and size of the steel used in this drawing, I will ask you if it was used and placed in accordance with good engineering design and practice?
“A. No sir.
“Q. Was the design as used in the blueprints, and as used in the construction, one in acceptance with good engineering design and practice?
“A. Absolutely not.
“Q. In your opinion, sir, as an engineer, was the design used, a safe design?
“A. No, sir.
“Q. Would you say this was negligently designed?
“A. I would say that this was negligently designed, and it was designed to fail.”
“A. It would take approximately two and a half times as much steel as what they had in there, to properly resist the stresses; and so that it would be within the stresses you are allowed to use in a good standard engineering practice.
“Q. So it was weak by two and a half times?
“A. Yes.
“Q. At that point?
“A. (no audible answer.)
“Q. Right? Is that right?
“A. (witness nodding head in up and down direction.)
“Q. Now, had it hooked on to anything that carried out across in the two foot area, would it have strengthened it somewhat?
“A. It would have strengthened it somewhat. Yes.”
“. . .If that was better soil, it would still break. It would break simply because with this type of design, there is no way to prevent this flexion. And as long as it flexes and loses contact with the bottom of the bin, the entire tremendous load there, is transferred on these edges. That crushes it, and that is the end of it. . . .” (Emphasis supplied.)
We have not attempted to present even a small part of the testimony presented in a voluminous record which indicates negli gence in the design and construction of the elevator. We do not have the responsibility of demonstrating the preponderance of the evidence. This court searches the record for the purpose of determining whether there is any competent evidence to support the findings and verdict. If so this court will not weigh the evidence. Findings of fact determined on conflicting evidence are conclusive. (Kramer v. Farmers Elevator Co., 193 Kan. 438, 393 P. 2d 998.)
The appellant further complains that there was error in the admission of evidence as to the loss of use of the elevator because the elevator was leased to the Abilene Grain Co. and the lease contained no provision for abatement of rent for any cause whatsoever. Appellant contends that die cause of action for loss of use vested exclusively in the lessee, and that the cause of action was in tort and not assignable.
There might be some merit to appellant’s contention had the structure been suitable for the purpose for which it was rented but was rendered unsuitable by a trespassing third party and there was no provision in the lease for abatement of rent.
In the instant case the appellee was suing the appellant for a breach of warranty that it would properly design and construct a grain elevator. The failure of the appellant to properly design and construct the elevator had caused appellee to rent to the Abilene Grain Co. a structure which was not fit for the purpose for which it was rented.
Under date of May 27, 1960, Abilene Grain Co. and appellee Winn entered into a contract. This contract provided that Abilene Grain Co. would defer its claim for a refund of the rentals paid for the year ending May 31, 1960, pending disposition of his suit against appellant. Appellee Winn agreed that he would refund to Abilene Grain Co. an amount based upon “proportion of occupancy of the facilities usable by us throughout the period of repair” payable out of the proceeds of judgment or settlement of Winn’s claim against appellant.
The appellant contends that as a matter of law the Abilene Grain Co. had no claim for refund of rent. It cites 52 C. J. S., Landlord and Tenant, § 486, p. 255, which reads in part:
At common law a lessee of premises which are accidently destroyed subsequent to the making of the lease cannot be relieved from an express covenant to pay rent, unless he has stipulated in the lease for a cessation of the rent in such case, or the lessor has covenanted to rebuild. Also equity will not reheve from an express covenant except in case of fraud, accident, or mistake. In some jurisdictions a view at variance with the general rule has been taken. The rule is apparently more favorable to the tenant under the civil law than under the common law. . . .”
We also note the statement in 51 C. J. S., Landlord and Tenant, § 303, p. 960:
“In the absence of fraud or concealment by the lessor of the condition of the property at the date of the lease, there is no implied warranty that the premises are tenantable or even reasonably suitable for occupation, and the rule of caveat emptor applies, and under such circumstances the tenant ordinarily is deemed to take the premises as he finds them, having a duty to investigate for himself, and assuming the risk of structural defects, except such as he could not discern with reasonable diligence and with a knowledge of which the landlord is chargeable. There is no implied warranty that the premises are safe, or that their physical condition shall remain unchanged during the term of the lease, and no implied covenant or duty rests on the landlord to maintain the premises in a safe and tenantable condition. . . .”
It should be noted that the common-law rule as quoted above has not been without criticism in this jurisdiction. In Saylor v. Brooks, 114 Kan. 493, 220 Pac. 193, it was stated at page 494:
“. . . The common-law rule holding the tenant to the payment of rent after that which makes the contract of value to him has ceased to exist is criticised in an often-cited opinion written by Mr. lustice Brewer, in a case which was decided upon another phase. (Whitaker v. Hawley, 25 Kan. 674.)”
In Whitaker v. Hawley, cited in the above opinion, it was held:
"Quaere, is the doctrine of the old common law that, upon a covenant to pay rent in a lease of lands and buildings for a term of years, the rent may be recovered notwithstanding the total destruction by accidental fire of the buildings, in force in this state?
“Even if this common-law doctrine be in force, yet where, by a single instrument, real and personal property are leased for a gross rental, and the personalty is a substantial part of the leased property, upon a total destruction by accidental fire the lessee is entitled to an abatement of the rent equal to the proportionate rental value of the personalty.” (Syl. I and 2.)
We do not propose to enter into a lengthly discussion as to the general right to the abatement of rent and the right to sue in connection therewith on the failure or partial failure of a rented structure but rather limit our decision to the particular facts and circumstances of the present case.
We conclude that where, through faulty construction, a grain elevator has hidden defects which renders it unfit for the extent of the use for which it was rented, the lessee has the right to a reasonable abatement of the rent and the lessor can, under an agreement such as described above, join damages for loss of use in an action against the contractor for breach of a covenant to properly design and construct the elevator.
The extensive record has been carefully considered in connection with other alleged errors and we find no trial errors that would require the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Parker, C. J.:
This workmens compensation case was instituted by Maxine H. Tilton (hereinafter referred to as the claimant or appellant), as the widow of Freddie Tilton, deceased, against The Board of County Commissioners of the County of Riley (hereinafter referred to as the respondent or appellee). The appeal is from a judgment rendered by the district court of Riley County in favor of appellee.
The facts are not in dispute.
Freddie Tilton had worked for the Riley County Road and Bridge Department for about twenty years. On February 18, 1963, he and five or six other road and bridge employees had been engaged in reconstructing an old township road. The reconstruction of the road involved cutting and pulling down trees, some of which were thirty feet high, so that the road could be graded and resurfaced. Tilton was killed when a branch came off one of the trees, that was being pulled over by a bulldozer, and struck him in the chest.
The parties stipulated that Tilton was employed by Riley County, which regularly employed more than five employees in the road and bridge department; that his death resulted from an accident arising out of and in the course of his employment; that at the time of such accident claimant (Maxine) was the lawful wife of Freddie; that she was wholly dependent upon him for support; and that there were no other dependents.
The Workmens Compensation Examiner found:
“It is found by the Examiner that the Claimant was engaged in engineering work; that the work was hazardous; that the Commissioners of Riley County, Kansas had elected to come under the Workmen’s Compensation Act on July 21st, 1931. That this election was declared invalid and cancelled by the Workmen’s Compensation Commissioner [now Director] on June 12th, 1934. That a directive was issued by the Commissioner of Workmen’s Compensation on April 5th, 1935 requesting elections based on Senate Bill No. 124. That after the cancellation no new election was filed by the Commissioners of Riley County, Kansas. That under 44-505 the County is not under the Workmen’s Compensation Act unless they clearly elect to come under the act. There was no election on file by Riley County at the time of the deceased’s injury and death. That the parties are not governed by the Kansas Act.”
The award was made against the claimant and in favor of the respondent, “Riley County and Riley County Board of Commissioners.”
Claimant appealed to the district court which approved the award. She then appealed to this court from the judgment of the district court.
Appellant contends that, as the work being performed was dangerous, the Riley County Road and Bridge Department was under the Workmen’s Compensation Act by virtue of the term “county and municipal work” as used in G. S. 1961 Supp., 44-505 which, so far as here pertinent, provides:
“This act shall apply only to employment in the course of the employer’s trade or business in the following hazardous employments: Railway, motor transportation line, factory, mine or quarry, electric, building or engineering work, laundry, natural-gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein is inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen. . . .”
Determination of the question thus raised by appellant requires consideration of the language of the original enactment, its amendments and this court’s interpretative opinions. The section of the statute now under consideration was first enacted in 1911 (Laws of 1911, Chapter 218, Section 6.). It was amended in 1913 (Laws of 1913, Chapter 216, Section 2.). So far as here material the 1913 amendment, which first received consideration by this court, provided as follows:
“This act shall apply only to employment in the course of the employers trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain; each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workman engaged therein are inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system, of compensation for injuries to workmen. . . .” (Emphasis supplied.)
In Gray v. Sedgwick County, 101 Kan. 195, 165 Pac. 867, an employee of Sedgwick County was injured while working on a county road which was being resurfaced. He sued the county under the Workmens Compensation Act. A demurrer to the petition was overruled and the county appealed contending that it was not an employer engaged in a trade or business within the terms of the statute. This court held:
“The general purpose of the workmen’s compensation act is to provide for compensation to workmen injured in hazardous employments carried on for the purpose of business, trade or gain.
“A county in resurfacing a county road is. not engaged in trade or business within the terms or operation of the workmen’s compensation act. (Syl. ill and 2.)
And in the opinion said:
“This section seems to cover, first employment in the course of the employer’s trade or business in certain places or kinds of work, and, second, all employments dangerous in the way mentioned and conducted for the purpose of business, trade or gain. The words ‘county and municipal work’ were added by the legislature of 1913, and if applied only to the case of one who contracts to do county or municipal work and employs workmen therein, are clear enough. But running through the entire language are the two ideas, not only of an employment in certain classes of work but an employment therein by an employer in the course of his trade or business conducted for a profit. The provisions of the statutes of various states are quoted showing that in many of them the clear use of terms has left the matter as to municipalities free from doubt, but they do not aid much in the construction of the statúte before us.
“As applied to this case the amended provision may be thus read:
“ ‘This act shall apply only to employment in the course of the employer’s trade or business on, in or about . . . county and municipal work, and all employments wherein a process ... is carried on, which [employment] is conducted for the purpose of business, trade or gain; each of which employments [all those previously mentioned] is hereby determined to be especially dangerous . . . and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen.’ ” (pp. 196, 197.)
The statutory section, now under consideration, was again considered in Robertson v. Labette County Comm’rs, 122 Kan. 486, 252 Pac. 196, and it was held;
“A county, in constructing a hard-surface road, is not engaged in trade or business within the meaning of the workmen’s compensation law.” (Syl. ¶ 1.)
The appellee lays great stress on the fact that in 1927 (Laws of 1927, Chapter 232, Section 5) the legislature eliminated the phrase “which is conducted for the purpose of business, trade or gain.” The amendment did nothing more than to eliminate a nonsensical phrase. As the act stood before the 1927 amendment it read in substance:
“That this act shall apply only to employment in the course of the employer’s trade or business . . . which is conducted for the purpose of business, trade or gain; . . .”
After the elimination of the last quoted phrase the act still applied only to “employment in the course of the employer’s trade or business,” a phrase which eliminates “county and municipal work” performed in a governmental capacity.
This court had the section under consideration after the 1927 amendment in Simpson v. Kansas City, 137 Kan. 915, 22 P. 2d 955, (decided June 10,1933) where it said and held:
“The principal question raised by the appeal is whether the city, in performing its governmental functions, in operating under the workmen’s compensation act without having filed with the compensation commissioner its election to do so. Prior to the rewriting of our compensation act in 1927 (Laws 1927, ch. 232, R. S. 1931 Supp. 44-501 et seq.) it had become the settled law of this stale that counties and muncipalities of the state, in performing their normal functions, were not engaged in ‘trade or business’ for profit, and were not within the provisions of the workmen’s compensation act. (citing cases.)
“Rut if the municipality, exercising its proprietary capacity through the water and light department, produced water or electric energy which it sold to consumers, its employees in that department were within the act, for, with respect to such functions, the city was engaged in trade or business for a financial return or profit. . . .” (p. 916.)
“The later act took from the earlier one the word ‘on, in or about,’ which had produced so much uncertainty in litigation, and made a few other changes in the language. However, the statute as now before us applies ‘only to em ployment in the course of the employer’s trade or business.’ The common meaning of the words ‘trade or business’ is that which one conducts for financial return or profit, and the words in the earlier act had been so construed in the cases above cited. In this case the city, of course, was not, while repairing streets, engaged in a trade or business for financial return or profit. Moreover, the earlier and later statutes apply to the employer’s trade or business in certain hazardous employments ‘as to each of which employment it is deemed necessary to establish a new system of compensation for injuries to workmen.’ This necessarily carries the thought that there previously existed a system by which injured workmen might be compensated as the result of injuries, such as an action for damages at common law. No such cause of action existed against counties and municipalities except to the extent they were made liable by statute. If the legislature intended to create a liability against counties and municipalities where none existed, it would have done so in language so clear it could not well be misunderstood, as has been done with respect to injuries resulting from defects in county, township and state highways. (R. S. 68-301; R. S. 1931 Supp. 68-419.)” (pp. 917, 918.)
We are impelled to conclude that if the legislature intended to create a compulsory liability against counties and municipalities where none existed, it would have done so in language so clear that it could not well be misunderstood.
The appellant next contends that Riley County had filed its election with the Workmen’s Compensation Commissioner to come under the act and that the election had never been withdrawn.
The determination of this question requires the consideration of additional facts.
Laws of 1927, Chapter 232, Section 5 provided in part:
“. . . Agricultural pursuits and employments incident thereto are hereby declared to be nonhazardous and exempt from the provision of this act: Provided, That employers whose work, trade or business is not such as described and included in this section of this act, and employers commencing or renewing in this state any work, trade or business, may elect to come within the provisions of this act by filing with the commission a written statement of election to accept thereunder and such election shall be effective when so filed, and such election shall continue in effect unless and until such employer thereafter desiring to change his election shall do so by filing a written declaration thereof with tlie commission, . .
In July, 1931, the County Commissioners of Riley County filed a paper with the Workmen Compensation Commissioner which read:
“Election of Employer to Come Within
The Provisions of Chapter 232,
Session Laws of Kansas, 1927.
“To the Commissioner of Workmens Compensation:
“You are hereby notified that Commissioners of Riley County, Kansas, Manhattan, Kansas, hereby elect to come under the provisions of Chapter 232, Session Laws of Kansas, 1927, being ‘An act relating to workmen’s compensation’; that said Commissioners of Riley County, Kansas, is an employer of labor, and is engaged in the business of building roads, bridges, culverts, etc., city of_and in the county of Riley, in the State of Kansas.”
In Kopplin v. Sedgwick County Comm'rs, 139 Kan. 837, 32 P. 2d 1058, (decided June 9, 1934), this court, in considering the authority o£ a municipality to elect to come under the Workmen’s Compensation Act, held:
“Municipalities, in the exercise of their normal functions and not engaged in trade or business, do not operate under the workmen’s compensation act, and they are not authorized by said act to elect to come within its provisions and be bound thereby.” (Syl.)
and in the opinion said:
“. . . Municipal corporations have only such powers as are expressly granted or necessarily incident to those granted (State, ex rel., v. City of Coffeyville, 127 Kan. 663, 274 Pac. 258), and at no place in the various acts with reference to municipal corporations is there any grant of power to them to elect to come within the provisions of the workmen’s compensation act, which on its face and under decisions of this court rendered, in part, prior to the amendments relied on, did not apply to municipal corporations.
“In the recent case of Simpson v. Kansas City, 137 Kan. 915, 22 P. 2d 955, it was held that___
“ ‘Municipalities, in the exercise of their normal functions and not engaged in trade or business, do not operate under the workmen’s compensation act.’ (Syl.)” (p. 840.)
In 1935, following rendition of the foregoing decisions, the Workmen’s Compensation Commissioner addressed a communication to all counties, including Riley County, informing them that their elections were invalid. That notice read:
“There was filed in the office of the Commissioner of Workmen’s Compensation an election by Commissioners of Riley County, Kans., engaged in the business of road, bridge, culvert constr., to operate under the Kansas Workmen’s Compensation Act, said election being filed the 21st day of July, 1931.
“For reason stated in bulletin inclosed said election is invalid and not binding.
“If perchance notices have been posted advising employees they are subject to the supervision of the compensation act, it might be well to withdraw such notices.
“For injuries sustained by employees where insurance has been carried there may be a right of action by the- injured direct again to the insurance carrier on the policy, but, even so, the proceeding would not be before the Commissioner of Workmen’s Compensation. (For information as to this see Robertson v. Labette Co., 122 Kan. 486, and again 124 Kan. 705.)”
The bulletin enclosed with the foregoing communication read:
“Elections by Governmental Agencies
to Operate Under the Workmen’s
Compensation Law
[Laws of 1935, Chapter 202, Section 1]
“Senate Bill No. 124 which takes effect from and after publication in the statute book, which will likely be by the forepart of June, provides:
“ ‘That the state highway commission, each county, city, school district, sewer district, drainage district and other public or quasi-public corporation of the state of Kansas . . . may elect to come within the provisions of
this act by filing with the commission a written statement of election to accept thereunder, and such election shall be effective when so filed, and such election shall continue in effect unless and until such governmental agency or employer thereafter desiring to change such election shall do so by filing a written declaration thereof with the commission, and the employee of any such employer so filing such election shall be included herein unless such employee elects not to come within this act as provided by Section 51 of this act . . .’
“Heretofore and under the present law a number of governmental agencies filed elections to operate under the compensation act which elections were canceled on a ruling of the Supreme Court that governmental agencies were not authorized by law to make such elections.
“It is the opinion of the commissioner that the new enactment will not revive the canceled elections now on file, and that any governmental agency desiring to operate under the workmen’s compensation act will be obliged to file a new election.
“Form for such election will be furnished by the commissioner on request.”
There has been no subsequent election filed.
The appellant contends that legislative enactment of 1935 (Laws of 1935, Chapter 202, Section 1) and subsequent enactments (now G. S. 1961 Supp., 44-505 and 44-505a) authorizing all governmental subdivisions to elect to come under the Workmen’s Compensation Act, gave legality to the unlawful election attempted by Riley County in 1931.
We cannot agree with the appellant’s contention. Political subdivisions have only such powers as are expressly granted or necessarily incident to those granted. (State, ex. rel., v. Rural High School District No. 7, 171 Kan. 437, 233 P. 2d 727; Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 397 P. 2d 357.)
There was no legislative authority prior to the enactment of Laws of 1935, Chapter 202, Section 1, authorizing a political subdivision to elect to come under the provisions of the workmen’s compensation act. There being no legislative authority, any attempt to make such election was void and of no effect. Subse quent legislation does not breathe life or validity into prior unauthorized acts except by specific curative provisions.
This court’s function is to interpret and not to rewrite a statute. (Dougan, Administratrix v. McGrew, 187 Kan. 410, 357 P. 2d 319.) Courts should not judicially legislate to broaden the plain letter of a statute. (State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 258 P. 2d 225; State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806.)
The judgment of the trial court is affirmed and it is so ordered.
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The opinion of the court was delivered by
Robb, J.:
Defendant appeals from the judgment of the trial court allowing a lump sum judgment for child support payments due under a decree of a Reno, Nevada, court, and also from the compounding of interest monthly upon the monthly payments of $67.50 from September, 1958, through March 19,1964.
As it develops, the only question here centers around the allowance of the lump sum judgment based on the past due and unpaid monthly payments within the last five years prior to the filing of this action together with limitations upon the trial court’s jurisdiction as to the allowance of interest.
A brief factual statement leading up to the present lawsuit, which was instituted by plaintiff against her former husband in the Barton county, Kansas, district court, may be helpful to a better understanding of the appeal.
Plaintiff and defendant were married on February 17, 1941, at Louisville, Kentucky. During the marriage Donna Lee Netherton was born in 1943. Another child, Sherelyn Ann Netherton, was bom on May 11, 1946. Defendant testified he entered the military service from Kentucky in December, 1942, that he went overseas in March, 1945, and reverted to inactive duty on December 7, 1945, at Fort Bliss, Texas. Defendant then went to Reno, Nevada, where he field for and obtained a divorce decree on April 11, 1946. About eighteen months later defendant moved to Wichita, Kansas, where he made child support payments in the sum of $67.50 per month until February or March, 1947.
Defendant’s original divorce action had been tried upon the basis of an agreement entered into and signed by the parties on April 8, 1946. The pertinent part of the agreement reads:
“4. That the wife shall have the sole custody and control of the minor child of the parties, to-wit: Donna Lee Netherton and the husband agrees to pay to the wife the sum of Sixty-seven and 50/100 Dollars on the first of each and every month hereafter during die minority of said minor child for the support and maintenance of said minor child. That as to the child to be bom the issue of the marriage in May, 1946, it is the understanding and agreement of the parties hereto that said sum of Sixty-seven and 50/100 ($67.50) Dollars shall also be applied towards the support and maintenance of said minor child to be born; it being the understanding of the parties hereto that the husband will be only liable and responsible for the sum of Sixty-seven and 50/100 ($67.50) Dollars in any event. That as to the custody of the minor child which is yet to be bom, the parties hereto agree that said child if bom shall be placed in the sole and exclusive custody and control of the wife; provided, however, that if die husband makes the payments as herein agreed upon that he shall have the right to visit the minor child and/or children at all reasonable times and places.
“That the husband further agrees to pay all necessary medical, doctor and/or hospital expenses incurred by the wife in connection with the birth of said minor child upon the wife furnishing to husband statements and/or bills showing the respective charges in connection therewith and the husband further agrees to keep the wife informed as to lois place of residence until said statements are received by him from tire wife, at which time he will promptly pay the said bills so presented to him.”
The agreement referred to making provision for the support and maintenance of “minor child and/or children” and defendant further agreed to pay all expenses connected with the birth of Sherelyn Ann Netherton.
The agreement was approved, adopted and confirmed by the trial court in Reno, Nevada, at the time the original divorce decree was entered on April 11, 1946. Any question with regard to interpretation of the agreement by the trial court in the divorce action, as argued by defendant, is laid at rest by defendant’s answer filed December 24,1963, wherein he alleged and stated:
“Defendant specifically denies that Sherelyn Ann Netherton .is the issue of this defendant; that the agreement entered into by and between the parties hereto specifically took into contemplation the support of said child; that the agreement provided for support and maintenance of said child or children until the youngest became twenty-one years of age.”
At a pretrial conference held on December 11, 1963, it was decided that the substantive law of Nevada and the procedural law of Kansas should apply in this case.
In view of the above facts and circumstances we are of the opinion the trial court in our present case was correct in its ruling that it could not go behind the judgment of the Reno, Nevada, court and the agreement between the parties upon which such judgment was based.
The applicable rule of law covering the precise point here involved was set out in Fischer v. Kipp, 177 Kan. 196, 277 P. 2d 598, where this court stated:
"... a properly authenticated judgment rendered by a court of one state is, under the full faith and credit clause of the United States Constitution, Article 4, Section 1, entitled in the courts of another state to the force, the effect, and the full faith and credit, it has by law in the courts of the state where the judgment was rendered.” (pp. 197-198.)
Here, as in the Fischer case, it is conceded the judgment relied on was authenticated in the manner required by G. S. 1949, 60-2853, now K. S. A. 60-465.
This brings us to the paramount question and that is whether the trial court exceeded its jurisdiction by compounding the interest monthly in computing the amount of the lump sum judgment. The judgment covered the five year period from September, 1958, until the action was commenced plus the time the action was pending and until judgment was entered on March 19, 1964, in the amount of $67.50 per month bearing compound interest at six per cent on each monthly payment, which became a final judgment when it became due and unpaid. Under the provisions of K. S. A. 16-204 there can be no compounding of the simple rate of interest. In other words, the interest should be computed at six per cent simple interest from the date each monthly payment became due to the date of judgment.
The case is remanded to the district court with directions to recompute the interest in conformity with the views expressed herein.
Affirmed as modified.
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The opinion of the court was delivered by
Wertz, J.:
This action was instituted by Theodore and Edna F. Rardin, upper landowners, and Harold Teasley, their tenant, plaintiffs (appellees), against defendants (appellants) Frank and Adelore Marcotte, lower landowners, for a permanent injunction against defendants’ keeping and maintaining on their land a dam which caused water to back up on plaintiffs’ land. Defendants secured joinder of the City of Palco as a party plaintiff (appellee), hereinafter referred to as the city, and then answered by requesting injunctive relief against the plaintiffs to keep them from emptying and draining sewage waters from above onto defendants’ land, and also requested damages against the plaintiffs Rardins. The matter was submitted to the court on the testimony of the parties and an agreed statement of facts. The trial court entered judgment in favor of plaintiffs, and defendants have appealed.
Summarily, the stipulated facts were: The respective parties were the owners and tenants of the lands in question; the City of Palco was a municipal corporation; there was a natural watercourse draining the City of Palco running through plaintiffs’ land and onto and through the land of the defendants and such watercourse drained into the south fork of the Solomon river; the City of Palco voted bonds in 1953 for the construction of a municipal sewage disposal plant and made application to the state for a permit to discharge sewage water from the plant into the waters of this state; a permit was granted to the city on July 13,1953; the city purchased from the Rardins a tract of land for the building of the sewer disposal plant; the city completed its plant in 1954, enclosing the property with a steel fence, and the plant has been in use since that time; the sewage water runs into twelve-inch pipe which emerges from the ground seven feet south of the fence line between plaintiffs’ and defendants’ land; during the year 1954 defendants advised the mayor of Palco they did not want the sewage water running from the disposal plant onto their land; that if the city would pipe the disposal water across defendants’ alfalfa ground to the pasture immediately east of the alfalfa ground, this would be acceptable; defendants’ then counsel wrote to the city’s mayor but made no claim for damages; in 1956 defendant met with the city and demanded it do something about the situation, but nothing was done prior to the filing of the action by the plaintiffs in 1962; in the spring of 1961 defendants constructed on their land a dam forty-eight yards long, not counting the spillway, across the watercourse; the line fence now stands in a pond formed by water from the dam; on May 14, 1963, a pond of sewage water impounded by said dam upon plaintiffs’ land was approximately fifty-two yards wide at the fence, and was backed up in the watercourse over plaintiffs’ land for approximately 160 yards, covering approximately one-half to one acre of ground; defendants never contacted plaintiffs Rardins with regard to the sewage water until the filing of the action in 1962.
It was further stipulated that at no time prior to building the dam in question nor at any time since have the defendants made application to or received permission from the chief engineer of the division of water resources of this state for construction of the dam in question.
Rriefly stated, at the trial plaintiffs Rardins claimed that defendants unlawfully constructed the dam to Rardins’ detriment and asked its maintenance be enjoined. The defendants contended the plaintiffs Rardins permitted the city to dump the treated sewage water onto Rardins’ land, thereby causing an increased flow of water onto defendants’ land to their damage; and as against the city, it was maintaining a nuisance by dumping the sewage water into the watercourse, causing excessive flow of the same over defendants’ land. The city contended the defendants unlawfully constructed and were unlawfully maintaining the dam, having secured no permission from the chief engineer of the division of water resources of the state for its construction, and that the dumping of the treated sewage water into a natural watercourse and tributary to the Solomon river was authorized by proper state authority, and that such sewage water contains no noxious odors and does not constitute a nuisance.
The court made a general finding that the plaintiffs were entitled to judgment against the defendants for the removal of the dam and the restoration of the watercourse to normalcy, and that the defendants were entitled to no relief against either the city or the Rardins on the cross petition.
Defendants first contend the trial court erred in ordering the removal of the dam and the restoration of the channel of the watercourse. At the outset it may be stated that the legislature made it unlawful subsequent to April 2, 1951, the effective date of the passage of G. S. 1961 Supp., 24-105, for a landowner to construct or maintain a levee under conditions which had the effect of obstructing or collecting and discharging with increased force and volume the flow or surface water to the damage of the adjacent owner without first making application to the chief engineer of the division of water resources of this state for the construction of such dam or levee, and by G. S. 1961 Supp., 24-126, the legislature made it unlawful for any person, without obtaining the approval of plans for the same by the chief engineer of the division of water resources, to construct, cause to be constructed, maintain or cause to be maintained, any levee or other such improvement on, along or near any stream of this state which is subject to floods, freshets or overflows, so as to control, regulate or otherwise change the flood waters of such stream.
An analogous case was before this court in Simon v. Neises, 193 Kan. 343, 395 P. 2d 308, wherein the mentioned statutes were discussed and applied, and many of the authorities cited by the parties in the instant case were discussed. No useful purpose would be gained in again restating the rules of law therein applied which are applicable in this case.
Where, as in the instant case, the construction of the dam by the defendants caused the natural flow of the water, whether surface water or water from the sewage disposal plant, to be obstructed and discharged upon the land of the plaintiffs Rardins to their damage, the trial court, under the stipulated facts and evidence, properly enjoined the maintenance of the offending dam and properly directed its removal. The dam in question was constructed by defendants in violation of the aforementioned legislative mandate and, in fact, was unlawfully constructed and maintained at all times.
Defendants contend the trial court erred in not enjoining the city from discharging the water from the sewage disposal plant into the watercourse in question, and that the acts of the city in so discharging the water constituted a nuisance. The parties stipulated that the city had made application to the state for a permit to discharge sewage water into the waters of the state, and that in pursuance of said application a permit was granted to the city in 1953, signed by the governor, the attorney general and the secretary of the board of health as provided by G. S. 1949, Ch. 65, Art. 1, subsection “Water Supply and Sewage.” In view of the stipulation, it cannot be said that the city was illegally discharging the sewage water into the watercourse in question.
We held in Adams v. City of Arkansas City, 188 Kan. 391, 400, 362 P. 2d 829:
“The gravamen of the offense in actions of this nature is not necessarily negligence but nuisance, and is dealt with by the law of nuisance, whether the nuisance is negligently caused or otherwise. It cannot be said that a sewage disposal plant is a nuisance at all times and under any circumstances, regardless of location or surroundings. Thus, it is not a nuisance per se under the generally accepted definition of such term. A sewage disposal plant may be so constructed, maintained or operated that, through die emission of noxious or disagreeable odors, or through the discharge of improperly digested sewage upon land or into a watercourse, it becomes a nuisance in fact of per acelderts. (See, 40 A. L. R. 2d 1206 [§ 13].)”
There is no evidence in the record that the sewage water from the disposal plant ejected into the watercourse in question contained any noxious or disagreeable odors or that any improperly digested sewage was discharged into the watercourse. Absent these prerequisites, the trial court did not err in refusing to enjoin the city.
Defendants concede in this case they are asking no money damage against the City of Palco by reason of the discharge of tibe sewage water into the watercourse running through defendants’ land.
Defendants also contend the trial court erred in not allowing them damages against plaintiffs Rardins. The gist of their argument is that the Rardins permitted the city to eject the sewage water from the disposal plant into the watercourse on the Rardins’ land which in turn increased the flow of the water onto the defendants’ land to defendants’ damage. We find no merit in defendants’ contention. As stated, the city secured permission from proper statutory authorities to eject the sewage water into the watercourse on Rardins’ land. The city had previously purchased the tract from the Rardins for the construction of the plant. The Rardins had no control over the acts of the city, nor was it incumbent upon the Rardins to bring any action against the city for the benefit of the defendants. There is no evidence the Rardins did any act to increase the flow of the water into the watercourse to defendants’ detriment.
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
Price, J.:
This is an action to recover for personal injuries sustained by the decedent, and also for his wrongful death, alleged to have been caused by the negligence of defendants in an automobile collision which occurred on July 31,1963.
The collision occurred in the state of Missoui.
The decedent, and all parties to this action, were, and are, domiciled in Kansas.
The underlying and controlling issue in the case is which law governs the substantive rights of the parties — that of Missouri where the tort occurred — or that of Kansas where all parties resided, and still reside, and where suit was brought.
The appeal by plaintiff, in her capacity as surviving widow and also as administratrix of decedents estate, is from an order of the trial court sustaining defendants’ motion to strike certain allegations from the petition.
We do not propose to take up and discuss the pleadings in detail. The petition appears to be drawn on the theory of the right of recovery under the law of either or both Missouri and Kansas. The ruling of the trial court apparently was based upon the proposition that the substantive rights of the parties are governed by the law by Missouri, and the allegations which were stricken sought recoveiy for elements of damage over and beyond those permitted by the law of Missouri.
In other words — and it is substantially conceded — if the trial court was correct in its basic premise, then its order in striking was correct — and so we proceed to the decisive question in the case.
Plaintiff concedes that the rule in Kansas — as well as the majority rule throughout the country — is that in actions of this kind the law of tire state where the tort occurred is to be applied to the substantive rights of the parties. It is contended, however, that, following a recent trend in the decisions of other states, this court should depart from its established rule and should go on record in holding that where, as here, all parties were and are residents of Kansas, the substantive law of this state should be applied— the argument being that such a holding would more nearly take into account the interests of the state having “significant contact” with the parties to the litigation. In this connection we are referred to Richards v. United States 369 U. S. 1, 7 L. ed. 2d 492, 82 S. Ct. 585 (1962) where in Headnote No. 8 (Lawyers’ Edition) it is stated:
“The general conflict of laws rule, followed by a vast majority of the states, is to apply the law of the place of the injury to the substantive rights of the parties, but the recent tendency of some states has been to depart from this rule in order to take into account the interests of the state having significant contact with the parties to the litigation.”
There is no doubt as to the general rule followed by a great majority of the states in which the question has arisen. In the Annotation at 15 A. L. R. 2d 762, at page 765, the following statement is made:
“The great weight of judicial authority is inclined to the view that questions as to the measure and amount of damages recoverable or a limitation on that amount are just as much questions of substantive law and therefore governed by the law of the place where the fatal injury was inflicted, as the right generally to recover for the wrongful death.”
In a later Annotation covering the same subject in 92 A. L. R. 2d 1180, it is said:
“It is the general rule, subject to some exceptions . . ., that, questions as to the measure, extent, or amount of damages recoverable in a wrongful death action are to be determined by the law of the place where tire wrong causing the death occurred, this rule being generally founded upon the view that the measure, extent, or amount of damages for wrongful death pertains to a matter of the substance of the right to recovery, which should be governed by the law of the place wherein the cause of action arose.” (pp. 1185, 1186).
To the same effect, see 25 C. J. S. Death § 28, p. 1097, and 16 Am. Jut., Death, §§ 389, 390, 394, pp. 253, 255, 257.
In Vrooman v. Beech Aircraft Corp., 183 F. 2d 479, (10th Circuit) Headnote No. 3 of the opinion reads:
“In tort action brought in federal court on ground of diversity of citizenship, law of state where wrong occurred determined whether plaintiff sustained legal injury."
See also La Prelle v. Cessna Aircraft Co., (District of Kansas) 85 F. Supp. 182.
In Koster v. Matson, 139 Kan. 124, 30 P. 2d 107, the action was one to recover for personal injuries sustained in an automobile accident which occurred in the state of Nebraska. In the course of the opinion it was said: “Since the accident occurred in Nebraska, the liability of defendant is to be determined by the law of that state. . . .” (p. 126.)
In Pool v. Day, 141 Kan. 195, 40 P. 2d 396, the action was against the administrator of the estate of Brady to recover for personal injuries received by plaintiff when riding in the automobile driven by Brady, and who was instantly killed in the accident which occurred in the state of Oklahoma. Both plaintiff and Brady were residents of Kansas. It was held:
“In an action for the recovery of damages for personal injuries sustained in an automobile accident, the liability of the defendant is to be determined by the laws of the state where the injury was sustained, and such liability may be enforced in the courts of this state, which have jurisdiction of the subject matter and can obtain jurisdiction of the parties, unless such enforcement is contrary to the laws, public policy and good morals of this state.” (Syl. 1.)
From what we have been advised by the parties concerning the wrongful death statute of Missouri, enforcement of it by the courts of this state is not in violation of any positive law of this state and is not contrary to the laws, public policy and good morals of this state.
Various other matters argued in the briefs have been noted, but require no discussion. The trial court, and not this court, is the forum in which the pleadings are to be framed. The extent of our ruling is that the law of Missouri — where the tort occurred — governs the substantive rights of the parties. Such allegations of the petition as are outside the scope of the Missouri statute and law were properly stricken.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is a damage action for personal injuries sustained by the plaintiff while attempting to stop a moving truck which had been parked on a highway by one of the defendants in the action. The case was tried to a jury which returned, a verdict for the plaintiff in the sum of $4,414.27. Appeal has been duly perfected from a judgment entered thereon, and numerous errors have been assigned.
Only those questions material to a disposition of the appeal will be considered. They are: First, whether Charles E. Lake, Jr., a minor defendant, was properly served with summons; and second, whether the trial court properly instructed the jury concerning the “rescue doctrine.”
Charles E. Lake, Jr. (defendant-appellant) at all times material to this litigation was a minor. Service of summons was made upon Charles E. Lake, Jr. personally, and upon William M. Lake as his guardian. Charles had lived with his grandfather, William M. Lake (also made a defendant in the action and served with summons as such) for a period of ten years during which the grandfather assumed parental control and stood in the relationship of “loco parentis” to Charles. The grandfather had never adopted Charles and there was no showing that he had ever been appointed his legal guardian. Edward F. Wiegers, the attorney defending Charles, was appointed guardian ad litem by the trial court after Charles was served with summons.
Insofar as the record discloses Charles had no parents in the state of Kansas upon whom service of summons could be made. The record is silent as to whereabouts or existence of his natural parents.
At the time of the accident in question both Charles and William Hollé, Jr. (plaintiff-appellee) were working for William M. Lake, who was named a co-defendant in the original action but released by the jury which absolved him of any negligence. Charles was driving his grandfather’s truck, loaded with turkeys, when a turkey escaped from the truck. By reason thereof the truck was stopped and parked on a small incline. Both Charles and William Hollé, Jr. got out of the truck to catch the turkey, when the truck commenced moving downhill.
Hollé then jumped on the running board of the truck to keep it from running into an embankment on the side of the highway. The truck was left in gear and as it rolled the motor “turned over” causing the truck to jerk, throwing Hollé under the rear wheel of the truck, thus resulting in his injuries.
The evidence disclosed there was no person in sight that could be injured by the runaway truck, and that had Hollé just let the truck go it would have hit the embankment in the ditch and stopped.
The direction in which the truck was moving was away from Charles and Hollé.
At no time in the trial court did the appellant Charles challenge the jurisdiction of the trial court on the ground that the service of process upon him as a minor was defective. This question is being raised for the first time on appeal.
It must be conceded that a jurisdictional question of this nature may be raised for the first time on appeal in the Supreme Court.
The point presently under consideration is controlled by Dougan, Administratrix v. McGrew, 187 Kan. 410, 357 P. 2d 319, 86 A. L. R. 2d 1174. There the provisions of G. S. 1949, 60-408, which authorize service of process on minors, were before the court for construction. Upon the factual situation it was impossible to obtain service of process upon the parents of a minor defendant within the state of Kansas because his parents resided in the state of Missouri. Furthermore, no guardian had been appointed for the minor in the state of Kansas. The court held service of process upon the minor valid, saying:
“The section then took its present form in R. S. 1923, 60-408. This one-hundred-two-year history indicates a legislative intent to equate service upon a minor and his natural guardian in all respects with that upon an adult. (See, Walkenhorst v. Lewis, 24 Kan. 420; and Land Co. v. Cole, 52 Kan. 790, 35 Pac. 827.) It must be emphasized, and we repeat, 60-408, supra, in its present form permits service upon a minor who has no living parent or legally appointed guardian, his legal rights being fully protected by the appointment of a guardian ad litem.
“Having given careful consideration to the decisions heretofore cited and the legislative history of 60-408, supra, as reflected upon the statutory enactment as it presently appears, we hold the provision, ‘If there be a natural or legally appointed guardian for such minor, . . . service shall also be made in the same manner upon such guardian,’ implies that there be such guardian upon whom service of process can be obtained ‘in the same manner’ as service upon the minor. In other words, this being an action in personam in a Kansas court, the provisions of 60-408, supra, do not require service of process upon the natural guardian, a nonresident, who cannot be served in Kansas, and who cannot be served with valid process in tihe state of his residence. Under these circumstances, the statute contemplates that personal service of summons upon the minor is sufficient to confer jurisdiction upon the trial court over the minor defendant in the action. . . .” (pp. 416, 417.)
Assuming that service of process upon William M. Lake, the grandfather, as the “natural guardian” of Charles was void (See, Paronto v. Armstrong, 161 Kan. 720, 171 P. 2d 299), the trial court nevertheless did appoint a guardian ad litem after service of process upon the minor. It thereby fully complied with the provisions of 60-408, supra, and acquired jurisdiction over the minor defendant. In such situation the minor’s rights are fully protected by the appointment of a guardian ad litem.
Apparently the appellant takes the position that the record must affirmatively show why service of process was not made upon a natural guardian of the minor, before service of process upon the minor is valid under 60-408, supra. This relates to the burden of proof.
We think if service of process upon a minor is valid, the record need not disclose why the service is valid. If such service of process is challenged, either in the trial court or in the Supreme Court on appeal, it becomes the burden of the party attacking the service to prove its invalidity by a sufficient record on appeal.
The contributory negligence of the appellee Hollé in attempting to stop the runaway truck was a material issue in this case. A demurrer to the plaintiff’s evidence in the lower court was overruled, and it must be said the evidence upon the issue of contributory negligence properly called for its submission to the jury.
As to contributory negligence under the so-called rescue doctrine, the appellant requested the following instruction:
“The law presumes that every person will at all times use ordinary care for his own safety. One who is aware of a danger and fails to use ordinary care to avoid injury therefrom is guilty of contributory negligence. This rule is subject to a limitation where a person risks danger in order to rescue another person from peril, based on the principle that it is commendable to save life. It is the law that one who sees a person in imminent and serious peril caused by the negligence of another, cannot be charged with contributory negligence in risking his own life or serious injury to himself in attempting to effect a rescue, provided that the attempt is not recklessly or rashly made. In other words, in attempting to save the life of another, one is justified in exposing himself to danger in a manner that under ordinary circumstances would deprive him of legal redress for the injuries sustained; but he cannot rashly or recklessly disregard all consideration for his own personal safety without being guilty of contributory negligence. However, a person is not excused of contributory negligence merely in an effort to save property.” (Emphasis added.)
The trial court’s instruction No. 9 was identical in all respects to the above requested instruction except that it omitted the last sentence which is italicized.
By the court’s instruction No. 10 the jury was instructed:
“No. 10.
“It is not contributory negligence for a plaintiff to expose himself to danger in a reasonable effort to save a third person or the land or chattels of himself or of a third person from harm. It is for the jury to determine from the evidence whether the plaintiff used due care and acted as a reasonably prudent man would act under the same or similar circumstances.” (Emphasis added.)
The substance of the foregoing instructions given by the court was directly contrary to the appellant’s request — that a person is not excused of contributory negligence merely in an effort to save property. In doing so, we think the trial court instructed contrary to the law of Kansas. Both the pleadings and the evidence adduced at the trial warranted the giving of a correct instruction on the point.
The rescue doctrine in Kansas has been held to be applicable to excuse contributory negligence only where an attempt is made to rescue persons from peril. It has not been applied to rescue property from peril.
Before the turn of the century in the landmark case of Condiff v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 256, 25 Pac. 562, the rescue doctrine was announced in the following language:
“We are in full accord with the decision announced in Eckert v. Railroad Co., 43 N. Y. 502, and similar cases, that ‘the law has so high a regard for human life it will not impute negligence to an effort to preserve it unless made under circumstances constituting rashness in the judgment of prudent persons;’ but where a person voluntarily places himself, for the protection erf property merely, in a position of danger, we are not prepared to say that he is not negligent. . . .” (pp. 260, 261.) (Emphasis added.)
Although the double negative used by the court in the italicized portion of the foregoing quotation may have conveyed doubtful meaning, the subsequent decision of Smith v. Ice and Delivery Co., 117 Kan. 485, 232 Pac. 603, clarified the point by summarily stating the rule as follows:
“The law treats the voluntary risking of one’s own life as negligence per se if the purpose is merely to protect property, but not if it is to save human life. . . .” (p.486.)
Other decisions tending to confirm this statement of the law are Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288; Brock, Administrator v. Peabody Cooperative Equity Exchange, 186 Kan. 657, 352 P. 2d 37; and Jobst v. Butler Well Servicing, Inc., 190 Kan. 86, 372 P. 2d 55. (See, also, 38 Am. Jur., Negligence, § 228, p. 912.)
The appellee seeks to justify the trial court’s instructions in the case on the ground that the evidence disclosed the appellee was quite concerned with the various possibilities, such as someone else coming down the road.
On the evidence, however, it was apparent the truck, had it been left alone, would have gone into an embankment on the side of the road, and it was admitted that so far as the appellee could see down the road, there was no other person or vehicle on the highway.
In order to justify one in risking his fife or serious injury rescuing another person from danger, the peril threatening the latter must be imminent and real, and not merely imaginary or speculative. There must be more than a mere suspicion that an accident to some person may follow if a rescue is not performed. (38 Am. Jur., Negligence, § 228, pp. 912, 913.)
Accordingly, we hold the trial court erred in failing to properly instruct the jury as above indicated on an issue vitally material to a decision in the case.
Other points raised by the appellant are immaterial to a decision on this appeal.
The evidence is such that this court cannot say as a matter of law the appellee was guilty of contributory negligence. Therefore, the judgment of the lower court is reversed with directions to grant the appellant a new trial.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order sustaining a motion to quash a petition for an alternative writ of mandamus which sought to compel the State Labor Commissioner to hold an election to determine the bargaining unit for the employees performing custodial and maintenance tasks for the Board of Education of the City of Wichita.
The facts which are alleged in the petition may be summarized.
The plaintiff is an association of employees who are performing custodial and maintenance tasks for the Board of Education of the City of Wichita. A majority of such employees are members of the association. The members obtained a union charter from an international union which is sanctioned by the AFL-CIO. It is not disputed but what the union so chartered is a union within the general statutes of Kansas and the federal laws covering employer and employee relations.
In June, 1962, pursuant to G. S. 1961 Supp., 44-816 and applicable rules and regulations of the State Labor Commission, the plaintiff filed a petition with the State Labor Commissioner requesting his determination of the proper bargaining unit for the custodial and maintenance employees of the Board of Education of the City of Wichita. G. S. 1961 Supp., 44-816 insofar as material here provides as follows:
“Within sixty (60) days after the taking effect of this act, the state labor commissioner shall adopt rules and regulations governing the conduct and canvassing of elections for the selection of collective bargaining units, and by collective bargaining units relative to approval of all-union agreements, strikes, walk outs, or cessation of work or continuation thereof. . . .”
Rule 49-6-2 of the Rules and Regulations of the State of Kansas Department of Labor provides in part as follows:
“Any employee, labor organization, or the agent of either of them may petition the commissioner to determine a collective bargaining unit for all employees in a unit appropriate for such purpose, and for a determination of said unit whenever such a question arises. The petition shall be prepared on a form furnished by the commissioner and the original and three (3) copies shall be signed and filed with the commissioner. . . .”
The State Labor Commissioner informed the plaintiff that, based on the opinion of the Attorney General, he could not hold the election because the Board of Education of the City of Wichita was not an employer within the meaning of the word “employer” as used in the state labor statutes. The plaintiff then filed its petition for an alternative writ of mandamus alleging the facts set out above in detail and praying for relief as follows:
“Wherefore, plaintiff prays for an order of this Court requiring the defendant, Hon. Harold L. Smith, Commissioner of Labor for the State of Kansas, to conduct forthwith among the custodial and maintenance employees of the Wichita Board of Education, Wichita, Kansas, an election for the purpose of selecting the bargaining unit, or appear and show cause why not, for the costs of this action, and for such other and further relief as the Court may deem just and equitable.”
The defendant, Harold L. Smith, State Labor Commissioner of Kansas, moved to quash the order to show cause which was issued in lieu of the alternative writ. Five reasons were argued why the relief prayed for should not be granted.
The trial court sustained the motion to quash on the following ground and did not consider the others:
“The plaintiff cannot maintain the instant suit for the further reason that the defendant is not authorized to conduct an election such as requested for the reason that the statutes governing conduct of such elections and labor management relations in general do not apply to the State of Kansas or any of its political subdivisions such as a school district.”
The plaintiff has appealed. Leonard R. Williams succeeded Harold R. Smith as State Labor Commissioner on June 1, 1963, and has been substituted as appellee in this appeal. A single question is presented for determination: Is the Board of Education of the City of Wichita an “employer” within the meaning of the Kansas employer and employee relations statute, G. S. 1949, 44-801 et seq., as amended?
We are constrained to conclude that the Board of Education of the City of Wichita is a political subdivision and that the statutes covering employer and employee relations and collective bargaining units are not intended to apply to employment by political subdivisions.
A school district is an arm of the state existing only as a creature of the legislature to operate as a political subdivision of the state. A school district has only such power and authority as is granted by the legislature and its power to contract, including contracts for employment, is only such as is conferred either expressly or by necessary implication. (Schofield v. School District, 105 Kan. 343, 184 Pac. 480; Rose v. School District No. 94, 162 Kan. 720, 179 P. 2d 181; State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865.)
The existence of a school district as a political subdivision of the State of Kansas was established and recognized as early as Beach v. Leahy, 11 Kan. 23, 29.
With regard to the powers of a school district and the limitations thereon, this court stated in State, ex rel., v. Rural High School District No. 7, 171 Kan. 437, 441, 233 P. 2d 727:
“In tliis state it has long been the rule that school districts and other subdivisions of the state have only such powers as are conferred upon them by statute, specifically or by clear implication, and that any reasonable doubt as to the existence of such power should be resolved against its existence. (School District v. Robb, 150 Kan. 402, 93 P. 2d 905, 124 A. L. R. 879; Township Board of Ash Creek v. Robb, 166 Kan. 138, 199 P. 2d 521; Byer v. Rural High School Dist. No. 4, 169 Kan. 351, 219 P. 2d 382.)”
The general rule recognized in this jurisdiction, that statutes limiting rights or interests will not be interpreted to include the sovereign power unless it be expressly named or intended by necessary implication (State v. Book Co., 69 Kan. 1, 24, 76 Pac. 411; State v. Kaemmerling, 83 Kan. 387, 111 Pac. 441), applies to statutes limiting the power to control compensation, terms and conditions of employment.
The entire matter of qualifications, tenure, compensation and working conditions for any public employee involves the exercise of governmental powers which are exercised by or through legislative fiat. Under our form of government public office or public employment cannot become a matter of collective bargaining and contract.
The objects of a political subdivision are governmental — not commercial. It is created for public purposes and has none of the peculiar characteristics of enterprises maintained for private gain. It has no authority to enter into negotiations with labor unions concerning wages and make such negotiations the basis for final appropriations. Strikes against a political subdivision to enforce collective bargaining would in effect amount to strikes against the government.
The statutes pertaining to employer and employee relations must be construed to apply only to private industry, at least until such time as the legislature shows a definite intent to include political subdivisions. We find nothing to indicate that the legislature intended to embrace political subdivisions in the term “employer” as used in G. S. 1961 Supp., 44-802 ( 4) and thus make political subdivisions and governmental agencies subject to the labor laws of the state including collective bargaining.
It appears to be a uniform rule that the wages, hours and working conditions of governmental employees are tobe fixed by statutes, ordinances or regulations and that state laws which in general terms secure the rights to employees to enter into collective bargaining agreements with respect to such matters are not intended to apply to public employees. (31 A. L. R. 2d 1142; City of Springfield v. Clouse, 356 Mo. 1239, 206 S. W. 2d 539; King v. Priest, 357 Mo. 68, 206 S. W. 2d 547; Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A. L. R. 967.)
It necessarily results that since the Board of Education was not an employer as that term is used in the employer and employee relations statute, G. S. 1949, 44-801, et seq., as amended, it was not subject to the provisions of the act, and the State Labor Commissioner was without authority to conduct an election to determine a collective bargaining unit for the Board of Education’s employees. Mandamus will not lie to compel the performance of an unauthorized act on the part of a public official.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying relief in an action to recover damages for the breach of a lease agreement containing an agreement to construct a building to house a general shoe store.
The facts essential to the disposition of the controversy may be summarized.
In May, 1960, the incorporators of plaintiff made an oral agreement with defendants for a lease covering a shoe department which defendants proposed to furnish in connection with a building to be constructed on Main Street in Great Bend, Kansas. In June, 1960, plaintiff was incorporated and the incorporators became its officers. Immediately after the oral agreement for a lease the incorporators of plaintiff ordered shoes for delivery in July and August for fall business in the Great Bend shoe department.
On July 14,1960, the parties signed a written lease for a generally understood part of the projected building and Richard J. Gunn promised an opening date in late October, 1960. Under the prior oral understanding, an opening date of September 1,1960, had been agreed upon and the July and August shoe deliveries were contracted for an opening on that date. Plaintiff admits that it knew the latter part of May that a September 1, 1960, opening could not be made and that the store could not even be built by that time.
Defendants had been engaged in the general clothing business for some years and in October, 1960, were carrying on such business at two locations which they designated as temporary. Defendants also owned the location of the proposed new building and by October, 1960, the old building thereon was torn down. No construction of a new clothing building was ever commenced.
In October, 1960, it was agreed that plaintiff would begin selling its shoes at the defendants temporary locations and it did so. Richard J. Gunn at this time represented the new building would be built by March 1, 1961. In the fall of 1960, plaintiff ordered shoes for 1961 spring sales. The fall 1960, shoes and spring 1961, shoes were delivered and sold through the temporary locations. During this period defendants periodically blamed delay in the beginning of new construction on various problems and indicated later completion dates.
On July 9, 1961, plaintiff moved its stock of unsold shoes to another town where it had an established business. At all times the plaintiff’s operations in Great Bend were at a loss and the operating losses at Great Bend, together with the losses taken on the shoes so removed amounted to $11,035.92.
Under the facts thus stated plaintiff brought an action for damages. The case was tried before the court without a jury and judgment was rendered for defendants. Plaintiff appealed challenging the validity of the judgment on numerous grounds.
The appeal was for argument before this court on November 5, 1964. The appellees did not appear for argument, neither did they file a brief in support of their judgment. The appellant in its argument and brief raised questions which left a serious doubt as to the propriety of the judgment rendered by the trial court. The appellees were therefore ordered to file a brief in this court in support of their judgment and the case was set for additional argument on January 21, 1965. The appellees ignored the directive of this court and again failed to appear for argument or file a brief in support of their judgment.
It cannot be argued that appellant has not suffered damages. The trial court stated in its memorandum decision:
“Turning again to the evidence in this case, the court feels and finds that if the special circumstances were communicated the amount of injury which would ordinarily follow a breach of this contract would in no way approximate the damages here claimed. Had the parties at the time provided for damages, the defendants would not have agreed to damages in any way approximating those here claimed. At the time of executing the contract neither party could reasonably foresee such loss as this as reasonably liable to result from a breach. It cannot be assumed in this case that the value of defendants’ performance would ‘at least equal’ the expense here claimed by plaintiff.
The fact that the prayer of a petition is for damages in excess of what the evidence establishes is not grounds for denial of such relief as is established. The fact that a plaintiff attempts to establish damages in excess of what the trial court believes proper is not grounds for denying such relief as is supported by the evidence. However, the appellees may have contended that the appellant proceeded on the wrong theory of relief and produced no evidence on any proper theory of damages. We are not informed as to appellees’ contentions.
It may be generally stated that the damages to which the party to a contract is entitled because of its breach are such that rise naturally from the breach itself or are reasonably supposed to have been within the contemplation of the parties, as a result of a breach, at the time the contract was made. The rule was approved in Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706 where it is stated at page 150:
“. . . This brings the case within the rule of Hadley v. Baxendale, 9 Exch. 341, decided in 1854, Baron Alderson stating the same, as follows:
“ ‘Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in tire contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.’ ” (See, also, Crabb v. Swindler, Administratrix, 184 Kan. 501, 508, 337 P. 2d 986; Gilbert v. Grubel, 82 Kan. 476, 108 Pac. 798.)
The rule measuring damages has also been applied in an action for damages for breach of a lease agreement. In Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513, it was held in the first paragraph of the syllabus:
“It is a general rule that damages may be recovered when they arise naturally — that is, according to the usual course of things — from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it.”
In determining what might reasonably have been contemplated, the nature and purpose of the contract, and the attending circumstances known to the parties at the time the contract was executed, should be considered. In Taylor v. Spencer, 75 Kan. 152, 88 Pac. 544, in considering some of the direct and proximate losses it was held in the first paragraph of the syllabus:
“Where one party to a contract terminates it wrongfully, the other party, in an action for damages on account of the breach, may recover all the direct and proximate loss sustained on account thereof, including expenses incurred, expenditures made in preparation to perform his part of the agreement, loss of time, and for his own personal services.”
It is a well established rule in this state that expenditures made in anticipation of, or in preparation for, the performance of a contract in which default is made or fulfillment prevented are recoverable (King v. Machine Co., 81 Kan. 809, 106 Pac. 1071).
It would appear quite probable that a party who leased space for a shoe store in a building to be constructed for occupancy on a particular date would order shoes in advance to be available at the opening date. It would also appear quite probable that shoes being seasonable, a serious loss would occur if a sales location was not made available. It would further appear probable that the interested parties would attempt to minimize the loss by finding a substitute location from which the shoes purchased in anticipation of the lease could be sold. These are matters which the trial court will give consideration under the facts and circumstances of the particular case when the new trial occurs.
We make no attempt to suggest or discuss specific alleged trial errors. We have every confidence that the able trial judge will correct all trial errors, if any, when the case is retried. The appellees not having sufficient interest or confidence in their judgment to attempt to support it, we conclude that a new trial should be granted.
The case is remanded with instructions to grant a new trial.
APPROVED BY THE COURT.
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