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The opinion of the court was delivered by
Fontron, J.:
This is an action to recover damages resulting from an automobile collision occurring in Kansas City, Kansas. The case was tried to a jury which returned a verdict in favor of the defendant and the plaintiff has perfected her appeal to this court.
It is necessary to summarize the evidence only as it depicts the conflicting contentions of the litigants. The only point on which the parties are in agreement is that the accident occurred on Wood Avenue, along the north curb of which the plaintiff had parked her automobile, and on which the defendant was driving his car in a westerly direction.
Evidence on the part of the plaintiff tended to show that on returning to her car, which was headed west, the plaintiff backed eight or ten feet east along the curb and then shifted into the “drive” gear; that before moving forward she heard a horn, put her foot on the brake and looked to the rear where she saw the defendant’s car coming from the east; that she remained standing still to allow the defendant’s car to pass; and that while she was so stopped, the defendant’s car struck her automobile at the left rear fender.
Conversely, the defendant’s evidence was to the effect that the plaintiff’s automobile had pulled away from its parked position at the curb and was moving out into the traveled portion of Wood Avenue; that her automobile was headed in a southwesterly direction and was blocking the defendant’s lane of traffic at the time of impact; and that the right front part of defendant’s car collided with the left front of plaintiff’s automobile, after which the back parts of the cars slapped together.
The question presented by this appeal is whether it was error for the trial court to admit into evidence a report of the accident prepared by one of the investigating police officers.
The admission of the report came about in this manner. Harry G. York, the officer in question, was called by the plaintiff as a witness and testified on her behalf. During the course of his direct examination, he was handed his report of investigation for use in refreshing his recollection. As part of York’s cross-examination, the police report was offered as a defense exhibit and, over the plaintiff’s objection, was admitted into evidence.
The admissibility of a police officer’s report of an accident investigation presents no new or novel problem in this jurisdiction. In three recent cases the question has been before this court for consideration and has been passed upon. (Morlan v. Smith, 191 Kan. 218, 380 P. 2d 312; Allen v. Ellis, 191 Kan. 311, 380 P. 2d 408; Letcher v. Derricott, 191 Kan. 596, 383 P. 2d 533.) Without attempting a detailed analysis of each decision, we deem it sufficient to say that the foregoing cases establish the general rule that police reports of accident investigations are not admissible as substantive evidence. The reason for this rule is well expressed in Morlan v. Smith, supra, where it is said:
“. . . In the first place, the report was hearsay, and, secondly — the statement, ‘no improper driving indicated,’ was a pure conclusion on the part of the investigating officer dealing with the very question of negligence which the jury was impanelled to try. . . .” (p. 221.)
The defendant, however, contends that the rule announced in the above cases has no application here for the reason that the police report was offered solely to impeach York as a witness, even though the record does not indicate that the report was tendered or received for that limited purpose.
Although we recognize the rule that prior inconsistent statements made by a witness out of court may be shown to impair his credibility (Leinbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P. 2d 33), we believe that this rule has no application under the facts of this case,
York’s testimony did not conflict with the facts noted in his report. Using that report to refresh his recollection, the officer related what each litigant had told him shortly after the accident, and his testimony as to what they had said was identical with what he had written in his report. York had also prepared, hurriedly and not to scale, a freehand sketch showing the position of the cars as they came together. Since York did not witness the accident itself, his drawing had to be based on what he observed and heard after the collision happened and would be only his conclusion of where the cars met. Even so, there was no material variance between his diagram and the testimony he gave at the trial.
We believe it is apparent that the defendant’s real purpose in offering the report was to get York’s conclusions into evidence and before the jury. Under a column headed “Driver Violations Indicated,” the officer indicated that the plaintiff had been guilty of “inattention” and “improper start from parked position.” On cross-examination, and over plaintiff’s objection, officer York was queried specifically about these conclusions contained in his report.
In our judgment, the trial court committed error in admitting the report and allowing York to testify to the conclusions therein contained. York’s conclusions that the plaintiff was inattentive and was improperly starting from a parked position, when she was hit, were nothing more than his opinions dealing with a question which was for the jury to decide — was the plaintiff negligent in any particular? (Kettler v. Phillips, 191 Kan. 486, 488, 382 P. 2d 478.)
We are unable to assume that plaintiff sustained no prejudice by reason of the error. In response to special questions submitted to it, the jury found the plaintiff guilty of negligence consisting of “inattention” and “improper start from parked position.” These findings are couched in the identical words of officer York, and we may not say that his conclusions did not have an influence upon the jury’s deliberations.
The judgment of the lower court is reversed with instructions to grant a new trial.
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The opinion of the court was delivered by
Fontron, J.:
This action was brought to recover for personal injuries alleged to have been sustained in an automobile accident. The case was tried to a jury which returned a verdict for the plaintiff, and judgment was entered thereon. After his motion for a new trial was overruled, the defendant appealed. For the sake of clarity, the appellee, Ellen Matson, will hereafter be referred to as plaintiff, and the appellant, Roy Christy, as the defendant.
The plaintiff’s evidence, although much of it was disputed, fairly showed the following: At the time of the collision, the plaintiff was a passenger in a car being driven by her husband, Reuben Matson. The evening was stormy, it was snowing a little bit, and the highway was slick in spots. As the Matson car was proceeding down a long hill, cars were observed at the bottom, one of which, it turned out, was driven by a man named Murray, who had stopped his car just short of a culvert being sanded by highway employees from a truck stopped on the culvert. On observing the cars, plaintiff’s husband slowed down and applied the brakes, but because of the slippery pavement near the culvert, he was unable to stop entirely and struck the Murray car lightly. Some thirty or sixty seconds later, the Matson car was struck from the rear by the defendant, Roy Christy, the impact pushing Matson’s car into the rear of Murray’s vehicle with considerable force, and causing plaintiff’s injuries. Three occupants of the Matson car testified that Roy Christy’s wife said, at the scene of the accident, that “Roy got excited and stepped on the accelerator instead of the brake.”
Without attempting to detail the defendant’s evidence, it may be said that he contended the accident, as to him, was unavoidable because he was unaware of the icy condition of the road, although he testified that he had first seen the Matson car when he was some seven or eight hundred feet away from it.
Six specifications of error are alleged: (1) That the court personally examined jurors on the voir dire; (2) that cross-examination of a defense expert witness was permitted before his direct examination was concluded; (3) the limiting of peremptory challenges; (4) refusal to give requested instructions; (5) the overruling of a demurrer to plaintiff’s evidence; and (6) that the verdict was contrary to the evidence.
The matters of which the defendant complains in his first four specifications of error are clearly trial errors. (See State v. Aeby, 191 Kan. 333, 381 P. 2d 356.) Under long-established rules of appellate procedure applicable to this appeal, trial errors are not subject to appellate review unless the appeal is taken from the order overruling the motion for a new trial, and unless the order overruling the motion for a new trial is specified as error. (Ogilvie v. Mangels, 183 Kan. 733, 332 P. 2d 581; Shelton v. Simpson, 184 Kan. 270, 336 P. 2d 159.)
While the record reveals that the defendant did appeal from the order overruling his motion for a new trial, he does not include that ruling among his specifications of error, although we understand such failure is due to no fault of counsel who argued the appeal. Since the order overruling the motion for new trial is not specified as error, none of the trial errors contained in the defendant’s first four specifications are properly here for review.
We turn next to consider whether the order overruling the defendant’s demurrer to plaintiff’s evidence is subject to review in this appeal. G. S. 1949, 60-3306, provides how an appeal is taken and what must be contained in the notice of appeal. So far as pertinent here, this statute reads:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court . . .”
In the instant case, no appeal was taken from the court’s order overruling the demurrer to the evidence. This appeal was perfected only from the order denying the defendant’s motion for a new trial, for such is the only order set out in the notice of appeal, which reads as follows:
“Take notice that the undersigned, Roy Christy, does and has appealed from the order . . . whereby said court overruled defendant’s Motion for New Trial.”
In Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, we held:
“When a notice of appeal particularly specifies the order of the trial court from which the appeal is made, but such notice does not include the ruling on a demurrer made during the trial, the order of the trial court overruling the demurrer is no part of the appeal and presents nothing for appellate review.” (Syl. fl.)
See also Phillippi v. Speer, 152 Kan. 325, 103 P. 2d 777, where it was held that where the appeal is taken from an order of the court overruling a motion for new trial, the questions for appellate review are limited to those involved in the motion for new trial.
It is true we have held that where an appeal is taken from the judgment, we will examine whether or not error has been committed in overruling a demurrer to plaintiff’s evidence. (Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720; In re Estate of Peirano, 155 Kan. 48, 122 P. 2d 772.) The difficulty in applying that rule to this case is that here no appeal was taken from the judgment. The fifth specification of error presents nothing for us to review.
Finally, the defendant complains that the verdict is contrary to the evidence. No good purpose would be served by detailing the evidence to any greater extent than has already been done. It is sufficient to say that the record has been carefully examined and, although the testimony was conflicting in some respects, the verdict, in our opinion, is amply supported by substantial competent evidence. Consequently, it may not be disturbed on appeal. (Eisenring v. Kansas Turnpike Authority, 183 Kan. 774, 332 P. 2d 539; Kitchen v. Lasley Co., 186 Kan. 24, 348 P. 2d 588; Blakey v. Zirkle, 187 Kan. 562, 358 P. 2d 758.)
The judgment is affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action in which a subcontractor sought to foreclose a mechanic s lien for material supplied in the alteration and repair of a business building. The facts are not in dispute.
Defendant (appellee) Ash Grove Lime & Portland Cement Company, a Corporation, was the owner of the property on which the improvements were made. Jack Durham and John Jordan were defendant contractors. Plaintiff (appellant) Ekstrom United Supply Co., a Corporation, was the subcontractor which furnished materials.
The plaintiff alleged it furnished material in a specified amount for the construction and alterations and repair of a men’s shower room in the defendant’s plant building located on the described property and that it filed its mechanic’s lien statement with the clerk of the district court within the statutory time.
It was admitted that the lien statement was filed within the statutory time; the description of the property upon which the lien was claimed was properly set out in the lien statement; the account was properly attached; and the articles purchased were delivered upon the premises of the defendant and used in the improvement of the building.
Plaintiff’s mechanic’s lien statement filed with the clerk was signed:
“Ekstrom United Supply Company
“By_s/ W. L. Johnston_
“Claimant”
The verification attached to the lien statement read as follows:
“State of Kansas, Allen County, ss:
“I do solemnly swear that I am the claimant above named and that the foregoing statement is true in every particular.
. “_s/ W. L. Johnston____
“Subscribed and sworn to before me this 31st day of July, 1962.
“_s/ Berenice Dobie_
“Notary Public
“Com. Exp: 5-3-65”
The case was submitted to the trial court upon stipulated facts from which it found that the lien statement had not been verified by claimant Ekstrom United Supply Co. in accordance with the statute and entered judgment for the defendant, from which plaintiff appeals.
The sole question for determination on this appeal is whether or not the mechanic’s lien statement was properly verified.
Our mechanic’s lien statute, G. S. 1961 Supp., 60-1403, provides in pertinent part that any person who shall furnish any material under a subcontract with the contractor may obtain a lien upon the land for the amount due him for such material by fifing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished under such subcontract, a statement verified by affidavits setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, a description of the property upon which the lien is claimed, and by serving notice as provided therein.
It is a settled rule in this state that equitable considerations do not ordinarily give rise to a mechanic’s lien. Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. A lien claimant must secure a lien under the statute or not at all. (Don Conroy Contractor, Inc. v. Jensen, 192 Kan. 300, 304, 387 P. 2d 187.) The validity of a lien created solely by statute depends upon the terms of the statute, and parties may not by estoppel enact or enlarge a statute. (Clark Lumber Co. v. Passig, 184 Kan. 667, 673, 339 P. 2d 280.) There is no privity of contract between the subcontractor and the owner, and the former can only obtain a lien by compliance with the statutory provisions. It is not enough that he has furnished the material and filed a hen. The verification prescribed in the statute is one of the necessary steps. Without such verification the lien claimant obtains nothing. The right to claim and enforce his lien being statutory, compliance with the statute is a prerequisite. (Jones v. Lustig, 185 Kan. 208, 210, 341 P. 2d 1018.)
In Reeves v. Kansas Coöp. Wheat Mk’t. Ass’n., 136 Kan. 306, 309, 15 P. 2d 446, this court said:
“The verification prescribed in the statute means that tire statement filed shall be sworn to by the claimant before an officer having authority by law to administer and certify oaths and affirmations. It was evidently intended to require truth and accuracy in the statement, but, whatever the purpose may have been, it is an essential element of a valid lien. Plaintiff offered to show and did testify that when the acknowledgment was made he was sworn to the statement, but the statement filed to constitute a lien must be complete in itself and must show on its face all the matters which the statute requires to be shown to create and fix the lien. The statute is mandatory, and the lack of a verification in the statement filed, and which is to serve as a notice to the public, necessarily defeats the lien. In claims for mechanic’s liens there are some similar statutory requirements, and authorities on those cases have some application. It has been held that references and evidence outside of the lien statement are not sufficient to support a lien. . . .” [Emphasis supplied.]
In the instant case the lien statement was executed and signed by plaintiff Ekstrom United Supply Co. as claimant by W. L. Johnston. So much would appear to be regular and unimpeachable. The verifying affidavit, however, signed by W. L. Johnston in which he swears he is the claimant, says nothing about his being an agent and making it in behalf of the plaintiff or anyone else. The lien statetment filed and signed by the plaintiff alleging that it furnished the material to the defendant was not verified by plaintiff or W. L. Johnston as its agent. Failure of the plaintiff to verify its lien statement in accordance with the mandatory provisions of the statute is fatal to its right to recover in the instant action, and the judgment of the trial court must be affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the petitioner in a proceeding initiated pursuant to K. S. A. 60-1507, wherein he moved the court for an order vacating and setting aside the judgment and sentence of the court imposed upon him in a criminal action on June 25, 1962, on the ground that the sentence was imposed in violation of the Constitution and laws of the United States, and the Constitution and laws of the state of Kansas, in that he was not represented by counsel at all stages of the criminal proceedings against him. After hearing the trial court overruled the motion.
The underlying question in the case is whether the petitioners constitutional rights have been violated.
The petitioner herein, an indigent, was permitted both in the trial court, and on appeal to this court, to proceed in forma pauperis, and pursuant to rule No. 121 of the Supreme Court counsel has been appointed to represent the petitioner tibroughout the proceeding. The ne.cessary transcripts of proceedings both in the criminal case and in the instant proceeding have been supplied the petitioner.
The petitioner, appellant herein, was the defendant in criminal case No. 17,893-Cr., in the district court of Wyandotte County, Kansas. The record discloses he was taken into custody on March 15, 1962, investigated and accused by the police of the city of Kansas City, Kansas, of the crimes of burglary and larceny. A written confession was obtained by the police on March 15, 1962, and used in his jury trial. The complaint charging such felonies was filed on March 21, 1962, and a warrant issued thereon for his arrest on March 27, 1962. On the 10th day of April, 1962, the appellant, no counsel having been appointed for him, and without legal advice, waived preliminary hearing. On the 1st day of June, 1962, Edward W. Brunk. was appointed to represent him as counsel.
The testimony given by a police officer at the hearing on the instant motion was to the effect that the appellant and Charles Wells had been in custody by the police for a period of twelve hours on the morning of March 15, 1962, when the witness questioned both of the defendants together sometime between 1:00 and 3:00 o’clock p. m. on that same day. He warned the appellant that the statement he asked him to give could and would be used against him in court, and that he had a right to consult an attorney before signing the statement. The appellant answered, “Get along with it.” A written statement was then taken from both the appellant and another defendant. He testified no threats were made to the appellant, no physical violence was used on him, and that no promises were made to him of any favor to induce such statement. He said he presumed the statement was voluntary, and he presumed it was made because of a knowledge of guilt. The appellant informed the witness that he did not want to consult a lawyer because he figured it would not be of any use. He was then being accused of specific burglaries and larcenies which were later the subject of the criminal action which resulted in his arrest and conviction.
At the trial of the criminal action counsel representing the appellant objected to the use and admissibility of the confession. This objection was overruled and the confession was allowed to be used in evidence.
There is no evidence that an attorney advised or represented the appellant prior to the giving of the written statement or the furnishing of oral information to the police officer.
At the hearing on the instant motion in the trial court, counsel appointed for the appellant presented his motion. The appellant did not testify and he did not produce the testimony of any witness in support of his motion. Counsel made a statement presenting the grounds relied upon by the petitioner.
The grounds relied upon in the motion and the points designated on appeal to this court by the appellant are:
“1. Petitioner, an indigent person with very little formal education and now confined in the State Penitentiary, was denied the benefit of the advice and legal services of effective counsel as guaranteed to him by the United States Constitution, amendments 5, 6 and 14 and by Section 10 of the Bill of Rights of the Constitution of the State of Kansas at all times and places critical to the petitioner and needed by him.
“2. Petitioner had no counsel at his preliminary hearing or during the time he was being confined, investigated and accused by the police of burglary and larceny.
“3. Petitioner was compelled and coerced to be a witness against himself as he was required to make a written confession to the police which was used by the County Attorney in the jury trial of the petitioner over the petitioner’s objections.
“4. The petitioner, without aid or advice of counsel, waived preliminary hearing without full knowledge of benefits being waived or lost by him.
“5. Petitioner charges that Mr. Edward W. Brunk, attorney, of the Wyandottee County Bar, appointed counsel for the petitioner in the District Court, did not fully perform his duties and services in that he did not advise petitioner of the charges and penalties.
“6. Written notice of intent to invoke the habitual criminal statute, 21-107 (a), was not served on the petitioner or his attorney.
“7. Petitioner is being illegally confined and restrained in the State Penitentiary at Lansing, Kansas, under void sentence of the District Court of Wyandotte County, Kansas, in case No. 17,893-Cr., entitled State of Kansas v. Wayne Powers, all in violation of petitioner’s constitutional rights and guarantees.”
The trial court, after hearing the motion, overruled it and found:
1. That petitioner was given notice in writing prior to the trial of the state’s intention to invoke the habitual criminal act.
2. That the court-appointed counsel was competent and experienced to represent the petitioner in his defense of the criminal case and was not remiss in the discharge of his duties, and the petitioner was adequately represented.
3. That petitioner was adequately and fully advised of all his rights at the time or arraignment, and was not prejudiced by his waiver of his right to a preliminary hearing in view of his plea of not guilty; that the acceptance of the court of his waiver of his right to a preliminary hearing was in no way violative of petitioner’s rights.
4. That none of petitioner’s rights were violated at the trial of said cause in case No. 17,892-Cr. by the admission into evidence of petitioner’s signed statement taken before arraignment and before petitioner was represented by counsel. Petitioner was adequately and competently represented at the trial of said cause by experienced counsel; the court heard the evidence relevant to the admissibility of said statement, the proper foundation laid for said admission, and the court subsequently admitted said statement into evidence. The court found petitioner’s rights were fully protected in all respects thereto.
Thereafter the trial court permitted counsel who represented the appellant at the hearing on the motion to withdraw and appointed in his place Tudor M. Nellor, an attorney of the Wyandotte County Ear, to assist the appellant in perfecting and presenting his appeal to the Supreme Court.
In all candor counsel representing the appellant in this court concedes that findings No. 1 and No. 2 made by the trial court are supported by the record, and therefore abandons the points designated as No. 5 and No. 6, heretofore quoted. The appellant’s counsel on appeal further concedes in all candor, if this court should adhere to its past decisions, the additional points relied upon by the appellant on this appeal should not be sustained. He contends, however, in view of recent federal decisions, such additional points do have merit.
The appellant’s argument, relying upon Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733 (1963), and Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964), proceeds on the assumption that a layman is not capable of adequately representing himself in legal proceedings — that the test laid down in these cases is whether the accused is in need of legal advice. It is contended the logic of the Gideon and Escobedo cases applies to any case or situation where the accused might then or later suffer deprivation of his liberty. It is argued the incompetence, indigence, ignorance and lack of training or experience prevents an individual accused of crime from making an intelligent decision concerning the selection or waiver of counsel; that he is unable to recognize whether or not he is in a critical situation that endangers his liberty; that he does not then know he can have or needs the efficient services of counsel at that time.
The appellant’s contention is summarized in the following statement made by counsel in his brief:
“The equal protection and due process clause of the Fourteenth Amendment requires States to recognize and provide the person in criminal matters, counsel and to protect them as an ‘incompetent’ person might be protected by a guardian with special legal ability. Personal liberty is a jealously guarded right under our legal system requiring efficient services of lawyers in time to protect the rights of the person.”
In support of the foregoing contention it is argued the Escabedo case has apparently extended the constitutional counsel doctrine as first reflected in the Gideon case, and that the United States Supreme Court has applied the Gideon decision retroactively, and has in legal effect directed state courts to guarantee counsel in the preliminary hearing and accusation stage of the case.
The simple answer to the foregoing argument is that the Federal Supreme Court has never said one accused of crime is an incompetent person and entitled to counsel as such at every stage in a criminal proceeding.
No case is cited which states or suggests that counsel must be provided at the investigation stage, or preliminary hearing stage, of a criminal case in Kansas, where the defendant has not requested counsel, has been informed of this rights to counsel, and makes an intelligent waiver, as the appellant did in the case presently before the court.
Gideon v. Wainwright, supra, refers to the right of an accused to counsel at a trial unless competently and intelligently waived. The guiding hand of counsel referred to in that case pertains to the services of counsel to explain the indictment, prepare the defense, and to assist the accused in the proper admission of evidence and in the trial of the case. It considers the right of one charged with a crime to counsel at a trial, so that the trial may be fair.
The record in the instant case discloses the appellant was advised of his right to consult with an attorney prior to die taking of a statement from him by the police officer at the investigation stage of the case; that the appellant did not request counsel, and, in fact, did not want counsel.
In the instant case the appellant waived preliminary hearing and entered a plea of not guilty. This is not a trial in the ordinary sense of the word. In Kansas one may not be found guilty at a preliminary hearing, and there is no statute requiring counsel to be appointed. This court has repeatedly held that a trial court does not err in its failure to appoint counsel to represent an indigent defendant at a preliminary hearing. This point was recentiy reviewed, discussing both the state and federal cases, in State v. Richardson, 194 Kan. 471, 483, 399 P. 2d 799. (See, also, State v. Cox, 193 Kan. 571, 396 P. 2d 326; and State v. Jordan, 193 Kan. 664, 396 P. 2d 342.)
The appellant contends he was compelled and coerced to be a witness against himself.
The trial court in the criminal case made an examination and inquiry concerning tire confession, out of the presence of the jury, and was satisfied as a result thereof tiiat it was freely and voluntarily entered into. It thereafter permitted the confession to be introduced in evidence.
Here again the appellant contends under Escobedo tire burden is now on the state to prove the defendant’s “competence,” that he intelligently comprehended and that his waiver of rights was arrived at by his considered judgment as might be exercised by a knowledgeable and sophisticated lawyer. It is argued the state failed to prove this. The appellant contends the presumption is that an indigent defendant is “incompetent.” We do not agree.
An indigent person is one who is destitute of property or means of comfortable sustenance; one who is needy or poor. (Bouvier’s Law Dictionary, Vol. 1, Rawle’s Third Revision, p. 1545.) The term “indigent” is commonly used to refer to one’s financial ability, and ordinarily indicates one who is destitute of means of comfortable subsistence so as to be in want. (2 Words and Phrases, Second Series, p. 1046.)
The Escobedo case, upon which the appellant relies for this point, was discussed and quoted in State v. Richardson, supra, to which reference is made. The facts in the Escobedo case are in sharp contrast to the facts in the instant case. In Escobedo the accused had retained counsel of his own, and had requested permission to consult with his counsel prior to making a statement to investigating officers. He was not informed of his right to remain silent. Furthermore, counsel retained by the accused in Escobedo was denied access to his client. Under these circumstances the taking of a statement from the accused by a trained investigating officer in which he elicited incriminating statements, was held to be inadmissible in evidence against him at the criminal trial.
In the instant case the appellant did not request counsel of his own, or any counsel, at the investigation stage of the case, stating he did not want a lawyer. He voluntarily made a statement.
Nothing in the record before us suggests that the appellant made a coerced confession. Confessions, voluntarily made, are not inadmissible because made at a time when the accused did not have counsel. (Latham v. Crouse, 320 F. 2d 120 [10th Cir. 1963], cert. den. 375 U. S. 959, 11 L. Ed. 2d 317, 84 S. Ct. 449 [1963].)
Inasmuch as we find the Gideon and Escobedo cases inapplicable to the facts presently confronting the court, it is unnecessary to determine whether or not these decisions have retroactive application as urged by the appellant.
Other points raised by the appellant are either moot or beyond the jurisdiction of this court to entertain, and we therefore decline to comment upon them.
The judgment of the lower court 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 orders overruling (1) defendant’s demurrer (2) defendant’s motion to make definite and certain (3) defendant’s second motion to make definite and certain and (4) defendant’s motion to strike.
In brief, the amended petition (hereinafter referred to as the petition) alleged that about 5:40 p. m. on February 19, 1962, for the purpose of ruining plaintiff’s reputation as a citizen and in his professional capacity, and exposing plaintiff to public hatred, contempt, ridicule and obloquy, defendant maliciously publicized on its telecasting facilities certain false and untrue material which was known by defendant to be false and untrue as follows:
“J. P. Gendusa has, for years been getting as special assistant county attorney for Crawford County — there is no law under which he can so be appointed— but the County Commissioners pay him $308.00 per month he is now receiving, and allowing and illegal claim against the County, and this is a duty for the County Attorney. The County Commissioners who voted for Gendusa’s appointment are subject to prosecution for an unlawful claim against the County.”
The petition further substantially alleged that by reason of the publication of the above material plaintiff was deprived of public confidence, subjected to embarrassment, humiliation, mental agony and anxiety, and has been held in contempt, calumny and ridicule.
On May 18, 1962, defendant moved to make the petition definite and certain by stating who made the alleged defamatory statements on its broadcasting facilities, and whether such person was the owner or operator, or agent or employee of the owner and operator. The trial court overruled this motion on May 28, 1962.
On July 12, 1962, defendant withdrew a demurrer which it had filed on June 4, 1962, and on the same date, with permission of the trial court, it filed a second motion to malee definite and certain reading in pertinent part as follows:
“1. To state what position Plaintiff held as officer or employee of Crawford County, Kansas, on the 19th day of February, 1962, and his duties as such officer or employee.
“2. To state what monthly salary he received as officer or employee of Crawford County, Kansas, as of the 19th day of February, 1962, if he was an officer or employee of Crawford County, Kansas, on said date.”
The foregoing motion was overruled by the trial court on July 18, 1962, and defendant was allowed to introduce a certified copy of the Crawford county pay roll covering the period from May 1, 1960, to January 2,1962.
Defendant thereafter appealed from the orders of the trial court as above set out.
In support of its first motion to make definite and certain, defendant in this case, as it did in Kennedy v. Mid-Continent Telecasting, Inc., 193 Kan. 544, 548-549, 394 P. 2d 400, sets out and relies on certain provisions of G. S. 1961 Supp., 60-746a as follows:
“ ‘The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any owner, licensee or operator, shall not be liable for any damages for any defamatory statement or matter published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, -licensee, operator or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement or matter in such broadcast: . . .’” (p.548.)
A mere cursory reading of the above statute might lead one to believe it could be applicable to this situation but when carefully read and thoroughly considered, the statute, as it was in the Kennedy case, supra, must be held to be inapplicable. Therefore, the trial court did not err in overruling the first motion to make definite and certain directed to the petition. In connection with the second motion to make definite and certain, heretofore set out, the ruling of the trial court, in permitting the certified copy of the county pay roll to be offered and admitted, was proper on such a motion since the court did not make such record a part of the petition. Consequently, the only matters that could have been considered by the trial court in ruling on defendant’s demurrer to plaintiff’s petition, and, in turn, the only matters to be considered by this court on appellate review are those which appear on the face of the petition and the exhibits attached thereto and made a part thereof. In other words, evidentiary matters, such as the certified copy here involved, are not to be considered as part of a pleading when such pleading is attacked by demurrer.
We do not know what the proof will show and we are not passing on the sufficiency thereof.
Defendant’s motion to strike directed to the original petition and overruled by the trial court is mentioned in its notice of appeal, but this record does not reflect that after plaintiff filed his amended petition, such motion to strike was refiled or to be considered as an attack on the amended petition. In view of this we do not deem it necessary to discuss the motion to strike.
The questions urged herein are basically similar to those raised and fully answered in the Kennedy case, supra, and it is unnecessary to repeat them.
We conclude the trial court did not err in respect to any of the errors complained of, and further, that defendant has failed to make it affirmatively appear its substantial rights have been prejudicially affected.
Judgment affirmed.
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The opinion of the court was .delivered by
Robb, J.:
This is an appeal by plaintiff from the trial court’s findings of fact and conclusions of law and resulting judgment for defendant, and from the trial court’s further order overruling plaintiffs motions to set aside the findings and conclusions and to grant a new trial.
Plaintiff, National Farmers Union Property and Casualty Company, at all times material to this case, insured Lawrence Hartman and his son, Ralph Hartman, under a certain automobile insurance policy. Defendant, The Farm Bureau Mutual Insurance Company, Incorporated, insured a 1951 Oldsmobile owned by Phillip Zerr, Sr.
Briefly summarized, the record shows the trial court found that Ralph Hartman and Phillip Zerr, Jr., were coemployees of the Grain-field Elevator Company, Grainfield, Kansas. On July 10,1960, while Ralph, with Phillip Zerr, Jr.’s permission, was driving the 1951 Oldsmobile belonging to Phillip Zerr, Sr., an accident occurred because of Ralph’s negligence which resulted in injuries to J. J. and Theresa Meyer. Plaintiff thereafter paid to the Meyers the sum of $2,173.48 as a reasonable and necessary settlement therefor.
The omnibus clause of defendant’s policy (III Definition of Insured. [a]) issued to Zerr, Sr., on his 1951 Oldsmobile provided that it insured, among others,
“. . . any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either.” (Our italics.)
It is admitted that Ralph was a defendant’s insured if he had the permission of Zerr, Sr., to operate the 1951 Oldsmobile.
The trial court further found that Zerr, Sr., had purchased the automobile for the use and benefit of his entire family; he purchased most of the oil and gas for the car and was responsible for the repairs thereto; Zerr, Jr., purchased some oil and gas and the car was kept at the insured’s home when not being used by some member of the family; Zerr, Jr., had almost unlimited use of the car; while attending Fort Hays State College, he had driven the car to Hays for a week at a time returning home on the week-ends; he drove the car to and from work, in the evenings, and on week-ends; he was not required to account to his father as to the car’s use or did he have to ask to use it each time he took it; Zerr, Sr., was aware that Zerr, Jr., had permitted his boss, the elevator manager, to use the car on occasion and had once observed the elevator manager driving the car; there was no direct evidence that Zerr, Sr., had ever observed Ralph driving the Oldsmobile.
Conclusion of law No. 3 made by the trial court reads:
“That Ralph Hartman did not have permission either express or implied, of the named insured, Phillip Zerr, Sr. to use the 1951 Oldsmobile on July the 10th, 1960, at the time it was involved in an accident with a vehicle driven by J. J. Meyer. That Ralph Hartman was not an insured within the terms of tire defendant company’s policy.”
No contention is made by defendant here that express permission had ever been given by Zerr, Sr., for Ralph to drive the car. The result is the only real question raised by plaintiff on appeal is whether there is any substantial evidence to justify this court in reversing the trial court’s finding, and its resultant judgment, that there was no evidence to establish implied permission by Zerr, Sr., for Ralph to drive the car.
Plaintiff directs our attention to Gibbs v. Central Surety & Ins. Corp., 163 Kan. 252, 181 P. 2d 498, where the omnibus clause in an automobile liability policy limited the use of the automobile to permission of the named insured, but the facts developed therein clearly indicated the insured had given her implied permission. In a discussion in Horn v. Allied Mutual Casualty Company, 272 F. 2d 76, reference was made to the rule in our Gibbs case as follows:
“The Kansas court followed the general rule that the permission referred to in the omnibus clause may be express or implied. It may be established by a showing of a course of conduct or relationship between the parties, including lack of objection to the use by the permittee, which signifies acquiescence or consent of the insured.” (p. 79.)
Plaintiff argues that Zerr, Sr., knew his son had loaned the car to his boss, the elevator manager, and had seen him driving the car on at least one occasion, and Zerr, Sr., had made no objection thereto. Up to this point we have approximately the same question as the one presented in the Gibbs case, but the Gibbs case is not authority, or does it support, plaintiff’s contention the husband in the Gibbs case could have allowed any co-worker to operate his wife’s car with only the husband’s permission. We cannot agree from the mere circumstance that the elevator manager used tíre car, it would necessarily follow, as a matter of course, that Zerr, Sr., would be placed in a position where any of the other five employees of the elevator, including Ralph, would also be privileged to use the car, and especially is this true in Ralph’s case because Zerr, Sr., wa's under the impression Ralph was only fourteen years of age.
Plaintiff cites no cases from this jurisdiction which expand the rule in the Gibbs case as to the circumstances under which permission may be implied, and our research has produced none.
The trial court made complete and comprehensive findings of fact and conclusion of law and counsel for the parties have ably presented the appeal herein. We are bound to recognize this case does not involve permission of a spouse, as did the Gibbs case, but involves only the permission of the son, Zerr, Jr.
Although fully realizing that in this jurisdiction we have been quite liberal in granting coverage under the omnibus clauses of liability insurance policies, we are of the opinion the better rule applicable here is that pronounced by the trial court in holding Ralph was not insured within the terms of defendant’s policy because he did not have permission, either express or implied, of Zerr, Sr., to use the automobile. We, therefore, affirm the judgment of the trial court.
In view of the above, other points raised by the parties need not be discussed.
Judgment affirmed.
Wertz and Fatzer, JJ., dissent.
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The opinion of the court was delivered by
Luckert, J.:
This appeal raises the question of whether the State must prove that a sex offender acted with specific intent in failing to comply with provisions of the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. We hold that K.S.A. 22-4903, which subjects to criminal liability “[a]ny person who is required to register as provided in the Kansas offender registration act who violates any of the provisions of such act,” does not identify or require a particular intent beyond the general intent required by K.S.A. 21-3201 for all crimes. Consequently, specific intent is not necessary for there to be an offense committed under K.S.A. 22-4903.
This question reaches this court on a question reserved by the prosecution under K.S.A. 22-3602(b)(3) after the district court acquitted juvenile offender C.P.W. of an alleged violation of the reporting requirements of K.S.A. 22-4904. The appeal was transferred to this court on its own motion pursuant to K.S.A. 20-3018(c).
More specifically, C.P.W. was charged with failing to report in person to the office of the Ellsworth County Sheriff to have his photograph taken during the month of his birthday, as required by K.S.A. 2006 Supp. 22-4904(d) and (e) of the KORA. The case came before the district court for a bench trial on the parties’ stipulated facts. In its journal entry, the district court adopted the following findings of fact proposed by the State:
“1) It is undisputed that the Respondent, [C.P.W.], was a resident of Ellsworth County, Kansas, at all times relevant to this case.
“2) It is also undisputed that [C.P.W.] was convicted of a violation of K.S.A. 21-3511, to wit, aggravated indecent solicitation of a child under age 14 and, thus, required to register under the Kansas Sex Offender Registration Act, found at K.S.A. 22-4901 et seq.
“3) It is uncontroverted that the Respondent was complying with sex offender registration requirements until November of 2006. During that month, which was the montir of die Respondent’s birth, the Respondent did not appear at the Ells-worth County Sheriff s Office to have his picture taken, fill out a form, and pay Iris $20.00 fee.
“4) Notwithstanding Respondent’s ‘no show’ in November of 2006, the Respondent did appear at the Sheriff s Office and comply in May of 2007 (which would be the 6th month after his birth month, as required by K.S.A. [2006 Supp.] 22-4904[d]).
“5) Respondent first became liable to register as a sex offender upon his conviction and sentence in Ellsworth County Case No. 2005-JV-02 in March of2005. At that time, sex offenders were required to register via written reports with the Kansas Bureau of Investigation at the Topeka office of the KBI. The Kansas Legislature added more constraints or burdens to the sex offender registration process by requiring sex offenders, as of July 1, 2006, to register in person with the Sheriffs Office in the county in which they reside. Such registration was to take place in the birth month of tire sex offender (which would be November for purposes of this case) and in the 6th month following the birth month. Registration with the local Sheriff s Office included the Respondent appearing in person, filling out a form, paying a $20.00 registration fee, and having his or her picture taken.
“6) The change in the law which took effect July 1, 2006, was promulgated in the 2006 Kansas Session Laws, at Chapter 214, Section 7 and in the Kansas Register on June 1, 2006, at Volume 25, No. 22. Also, the Kansas Bureau of Investigation sent notice of the new registration requirement, which took effect July 1, 2006, to all registered offenders. A copy of the KBI notice [was] attached to the [parties’] Stipulated Facts. . . . Such mailing was sent by means of 1st Class Mail, but not certified and/or certified restricted mail. It is undisputed that a Court Services Officer, Jonathan Dahlke, represented to the Respondent that Iris registration was in order and that he need not register with the Sheriffs Office.”
The district court then focused on the lack of mens rea on the part of C.P.W., concluding:
“[T]his is a specific intent crime and the Respondent had no specific intent to violate the law as charged in the Complaint. The Court finds that the Respondent is not guilty and enters a judgment of acquittal herein.”
The State appealed on a question reserved. Because C.P.W. was acquitted of the reporting charge, his guilt or innocence is no longer at issue.
State’s Appeal
As a preliminary matter, we must first determine whether to accept the State’s appeal on a question reserved.
Recently, this court in State v. Skolaut, 286 Kan. 219, 182 P.3d 1231 (2008), reiterated the rule that appellate courts will accept appeals of questions reserved when the issues are “ ‘matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes,’ ” but will not consider cases in which the “ ‘resolution of the question would not provide helpful precedent.’ ” 286 Kan. at 224 (quoting State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 [2005]); see also, e.g., State v. Mountjoy, 257 Kan. 163, 168, 891 P.2d 376 (1995) (“We have uniformly declined to entertain questions reserved, the resolution of which would not provide helpful precedent.”); State v. Leonard, 248 Kan. 427, 433, 807 P.2d 81 (1991) (“Resolution of this issue [on a question reserved] will not provide a helpful precedent; therefore, we do not entertain it.”).
We conclude the standard for considering a question reserved is met by this appeal. The State’s reserved question does not require this court to analyze factual circumstances unique to the present case but raises a matter of statutory interpretation that would have widespread application. Further, the issue is one of first impression, is likely to arise repeatedly, and is important to the correct and uniform administration of the criminal law. Accordingly, we accept the State’s question, finding it is “a novel issue of statewide interest.” State v. Hodges, 241 Kan. 183, 190, 734 P.2d 1161 (1987).
Sex Offender Reporting
As we consider the State’s appeal, we must determine whether the State must prove that a defendant had the specific intent to violate the reporting requirements of the KORA or whether the State need only prove either (a) a violation, which would be sufficient to establish strict liability, or (b) general intent. The determination of whether a crime is a strict liability, general intent, or specific intent crime is a question of statutory interpretation and is subject to unlimited review by an appellate court. See State v. Richardson, 289 Kan. 118, 209 P.3d 696 (2009); State v. Esher, 22 Kan. App. 2d 779, 784, 922 P.2d 1123, rev. denied 260 Kan. 997 (1996), overruled on other grounds by State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006).
The statute in question in this appeal derives from the Habitual Sex Offender Registration Act (Act), which was enacted in 1993. L. 1993, ch. 253, secs. 17-26, originally codified as K.S.A. 1993 Supp. 22-4901 et seq. The Act provided for compulsory registration of habitual violent sex offenders and made violations of the Act class A nonperson misdemeanors. The Act has been amended a number of times in subsequent legislative sessions. In 1997, the legislature changed the name to the Kansas Offender Registration Act. L. 1997, ch. 181, sec. 7. In 1999, the legislature increased the penalty for violating the KORA to a severity level 10 nonperson felony. L. 1999, ch. 164, sec. 30.
In 2006, the legislature amended the KORA in several ways. Two significant changes included the legislature’s raising the severity level to a severity level 5 person felony and requiring registered offenders to report in person to the local sheriff s office twice a year — once during the month of the offender’s birthday and once during the sixth month following the birth month — to update the offender’s information, to have a photograph taken, and to pay a $20 fee. K.S.A. 2006 Supp. 22-4903; K.S.A. 2006 Supp. 22-4904(d). Since 2006, the legislature has increased the number of in-person reporting requirements for registered sex offenders. Currently, any person who is required to register “shall report in person three times each year to the sheriff s office in which the person resides or is otherwise located.” K.S.A. 22-4904(c). The offender must report once during the month of his or her birthday and eveiy four months thereafter. And each time the person reports to the sheriff s office, he or she “shall submit to the taking of an updated photograph,” and “shall remit payment to the sheriff in the amount of $20.” K.S.A. 22-4904(d), (e).
The failure to comply with the reporting requirements is criminalized by K.S.A. 22-4903(a), which states in part: “Any person who is required to register as provided in the Kansas offender registration act who violates any of the provisions of such act, including all duties set out in K.S.A. 22-4904 through 22-4907, and amendments thereto, is guilty of a severity level 5, person felony.” See State v. Cook, 286 Kan. 766, 775-76, 187 P.3d 1283 (2008) (defendant, although aware of duty to report, did not do so and was guilty of crime).
Intent
In considering the intent required by these provisions, we begin with the question of whether the crime is a strict liability offense. The State did not argue strict liability before the district court or in its brief on appeal but raised the issue in a letter of supplemental authority and at oral argument. See Supreme Court Rule 6.09 (2008 Kan. Ct. R. Annot. 47). There is no merit to this argument.
In Kansas, strict liability is limited to the circumstances defined in K.S.A. 21-3204, which states:
“A person may be guilty of an offense without having criminal intent if the crime is: (1) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described; or (2) a violation of K.S.A. 8-1567 or 8-1567a [relating to driving under the influence] and amendments thereto.”
The criminal conduct in the present case does not meet the strict liability criteria because the offense of failure to report as defined in K.S.A. 22-4903 and K.S.A. 22-4904 is a felony and is not a misdemeanor, an infraction, or related to driving under the influence.
Next, we turn to the issue considered by the district court: Whether the crime defined in K.S.A. 22-4903 for a failure to report as required by K.S.A. 22-4904 is a specific or general intent crime. Resolution of the issue is guided by several general issues related to the principles of criminal liability, most of which are stated in Article 32 of the Kansas Criminal Code. K.S.A. 21-3201 states that except as otherwise provided, criminal intent is an essential element of every crime defined by the criminal code. General criminal intent, described in K.S.A. 21-3201(a), maybe established by proof that the conduct of the accused person was intentional or reckless. The State focuses only on intentional conduct in this case, conceding that the application of reckless intent would not apply to the prosecutions of alleged violations of K.S.A. 22-4904.
Intentional conduct is defined as conduct that is purposeful and willful and not accidental. As used in the criminal code, the terms “knowing,” “willful,” “purposeful,” and “on purpose” are included within the term “intentional.” K.S.A. 21-3201(b). Simply stated, general criminal intent under K.S.A. 21-3201 is the intent to do what the law prohibits. To prove general intent, it is not necessary for the State to prove that the defendant intended the precise harm or the result that occurred. See State v. Mountjoy, 257 Kan. at 170. Further, the State “is not obligated to prove an intent to violate a particular statute but rather the intent to do the criminal act which violated the statute.” State v. Kirtdoll, 206 Kan. 208, 209, 478 P.2d 188 (1970). In other words, “all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing.” State v. Hodge, 204 Kan. 98, 108, 460 P.2d 596 (1969).
More is required if a statute requires proof of a specific intent, however. Recently we explained: “The distinction between general intent and specific intent crimes is ‘whether, in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.’ [Citation omitted].” State v. Richardson, 289 Kan. at 121. In Richardson, we held that specific intent is required by K.S.A. 21-3435(a)(l), which makes it unlawful for a person who knows he or she is infected with a life-threatening communicable disease to knowingly engage in sexual intercourse or sodomy with another individual with the intent to expose that individual to that life-threatening communicable disease. In addition to requiring general intent — made clear by requiring that the conduct must be “knowing” — the statute defines a particular intent that must accompany the specific act by requiring an intent to expose the sex partner to the life-threatening communicable disease. Richardson, 289 Kan. at 122.
As we noted in Richardson, Kansas’ appellate courts have consistently interpreted statutes that define a crime by using the phrase “with intent to” as requiring a specific intent element. We cited several examples. See, e.g., State v. Harper, 235 Kan. 825, 827, 685 P.2d 850 (1984) (burglary, K.S.A. 21-3715[a], defined as entering a building “with intent to commit a felony, theft or sexual battery therein,” is a specific intent crime); State v. Wells, 223 Kan. 94, 98, 573 P.2d 580 (1977) (indecent liberties with a child, K.S.A. 21-3503[a][l], providing that prohibited conduct be done with “intent to arouse or satisfy the sexual desires of either the child or the offender, or both,” is a specific intent crime); State v. Meinert, 31 Kan. App. 2d 492, 499, 67 P.3d 850, rev. denied 276 Kan. 972 (2003) (criminal' threat, K.S.A. 21-3419[a], defined as “any threat to . . . [cjommit violence communicated with intent to terrorize another,” requires “a specific intent such as the intent to terrorize”); State v. Ferris, 19 Kan. App. 2d 180, 183, 865 P.2d 1058 (1993) (contributing to child’s misconduct or deprivation under K.S.A. 21-3612[a][4], defined as “sheltering or concealing a runaway with intent to aid the runaway in avoiding detection or apprehension by law enforcement officers,” requires the State to prove specific intent to aid the child in avoiding detection).
In addition to those examples, the crime of felony theft is a specific intent crime. K.S.A. 21-3701 provides, in relevant part: “Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property.” (Emphasis added.) See State v. Mitchell, 262 Kan. 434, 437, 939 P.2d 879 (1997).
Yet, another specific intent crime is kidnapping. For a kidnapping to occur, the defendant must not only have the general intent to take or confine a person by force, threat, or deception but must do so with the specific intent to accomplish one of four types of objectives — (1) for ransom, (2) to facilitate flight or the commission of a crime, (3) to inflict bodily injury or to terrorize the victim or another, or (4) to interfere with the performance of any governmental or political function. See K.S.A. 21-3420 (“Kidnapping is the taking or confining of any person, accomplished by force, threat or deception, with the intent to . . . .” [Emphasis added.]); see also State v. Burden, 275 Kan. 934, 69 P.3d 1120 (2003) (discussing K.S.A. 21-3420).
In contrast to these statutes that require specific intent, neither K.S.A. 22-4903 nor K.S.A. 22-4904 identifies or requires a particular intent that must accompany the prohibited acts beyond the general intent required by K.S.A. 21-3201. A general intent — such as the act of failing to register or to report in person to the sheriff s office — is clearly all that can be read into tire plain language of K.S.A. 22-4903. Without statutory language indicating the additional specific intent, the State may prove the crime defined by K.S.A. 22-4903 for failing to comply with the requirements of the KORA, including K.S.A. 22-4904, by estabhshing a defendant acted with general intent. Specific intent does not have to be proven.
The State’s appeal is sustained.
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The opinion of the court was delivered by
Luckert, J.:
Benjamin A. Appleby was convicted of the attempted rape and capital murder of A.K., a 19-year-old college student, in Johnson County, Kansas.
The following issues are raised on appeal: (1) Are Appleby’s convictions of capital murder and attempted rape multiplicitous, meaning his sentences for both convictions result in a double jeopardy violation? (2) Did the trial court violate Appleby’s right against self-incrimination by admitting into evidence custodial statements made after Appleby had asked, while being booked on a different case, whether he would be able to talk to an attorney? (3) Did the trial court violate Appleby’s right to confrontation by admitting into evidence a computer-generated report regarding population statistics related to DNA testing? (4) Did the trial court err by giving a jury instruction containing an expanded definition of “premeditation”? (5) Did the trial court abuse its discretion in weighing aggravating and mitigating circumstances in determining whether to impose the hard 50 sentence? and (6) Is the hard 50-sentencing scheme unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000)?
On review, we agree with Appleby’s arguments regarding issue one, hold that his attempted rape conviction is multiplicitous with his capital murder conviction, and vacate the sentence imposed for the attempted rape conviction. However, we affirm Appleby’s conviction and sentence for capital murder, finding that Appleby failed to establish error resulting from any of the complaints raised in issues two through six.
Factual and Procedural Background
On June 18, 2002, A.K. was murdered while working alone as an attendant at a swimming pool near her family’s home. Her brother, who also worked as a pool attendant, arrived at the pool around 5 p.m. to reheve A.K. after her shift ended, but he could not find her. He called their father, R.K., who came to the pool and searched for his daughter. Around 5:30 p.m., R.K. found A.K. in the pool’s pump room, lying face down under a pool cover. She had been severely beaten, her face was battered and bloody, and her hair was matted with blood. A.K. was naked from the waist down, her sports bra had been pushed up under her arms, and her T-shirt was wrapped tightly around her neck.
Soon after this tragic discovery, police arrived and secured the pool area. In doing so, an officer recorded the name of eveiyone present at the scene, including a “Teddy Hoover” who was later identified as Appleby. The police also secured evidence, some of which was tested for DNA. This testing revealed DNA that did not match A.K.’s. Few other leads developed from the initial investigation.
An autopsy led to the conclusion that A.K.’s death was caused by strangulation and multiple blunt force injuries, although the strangulation would have been enough to kill A.K. Dr. Michael Handler — the forensic neuropathologist who performed the autopsy and who is board certified in anatomic pathology, neuropathology, and forensic pathology — concluded there had been both ligature and manual strangulation. According to him, it would have taken approximately 10 — and perhaps as many as 16 — minutes for the assailant to strangle A.K. Because there was petechial hemorrhaging, Dr. Handler believed there were periods when the force of strangulation was stopped.
Dr. Handler also identified other injuries, which made it appear A.K. had been in a horrible fight. Both of her eyes were blackened, her lip was cut, and her arms were bruised and scraped. A.K.’s hands, especially the knuckles and fingers, were cut, and the fingers on her left hand were contorted and broken. A.K. also had bruises on her face and both hip bones, knees, feet, and upper thighs. There were two lacerations on the back of A.K.’s head, which could have been caused by a fall or by someone beating her head against the floor.
Several months after A.K.’s death, Sergeant Scott Hansen of the Leawood Police Department went to Appleby’s home in Kansas City, Kansas. At that point in time, the police knew Appleby by his alias of Teddy Hoover. Appleby agreed to speak with Sergeant Hansen and indicated that he was a self-employed pool maintenance contractor. Hansen requested a DNA elimination sample from Appleby, who said he would talk to his attorney about pro viding a sample. When Hansen tried to follow up later, he discovered that Appleby had left town.
Subsequent leads caused police to seek more information from Appleby, who they still knew as Teddy Hoover. In November 2004, the investigation ied Kansas detectives to Connecticut, where Appleby was living. Connecticut State Police discovered an outstanding arrest warrant for Appleby from 1998 and agreed to execute the warrant when Kansas detectives could be present. The purpose of this arrest was to give Kansas, detectives an opportunity to question Appleby.
After Kansas detectives arrived in Connecticut, they worked with Connecticut officers to prepare and obtain search warrants that authorized a search of Appleby’s house and the swabbing of Appleby’s mouth for the purpose of obtaining a DNA sample. Then, Connecticut police arrested Appleby at his home and executed the residential search warrant.
While the search warrant was being executed, Appleby was transported to a nearby Connecticut police station by Connecticut Detective Daniel Jewiss. On the way, Appleby volunteered that after some “trouble” in his past, he had taken on the name of his childhood friend, Teddy Hoover, who had died in an accident.
At the police station, Detective Jewiss started processing Appleby on the Connecticut arrest warrant. During the book-in process, another detective from Connecticut’s major crime unit executed the search warrant that allowed swabbing Appleby’s inner mouth for purposes of DNA testing. As we will discuss in more detail as part of our analysis of the second issue, when served with the DNA search warrant Appleby asked if he could speak to an attorney regarding his right to refuse the swabbing and, at three other points during the book-in process, asked whether he would have a chance to talk to an attorney. Appleby was told he did not have a right to refuse the execution of the warrant allowing the DNA swabbing but was told he would have the opportunity to call an attorney.
After completing most of the book-in process, Detective Jewiss told Appleby that other detectives wanted to speak to him about “an unrelated matter” and asked if Appleby was willing to talk to them. Appleby agreed and was taken upstairs to an interrogation room where the Kansas detectives waited. The detectives asked Appleby if he would answer some questions about A.K/s murder. Up to this point, Appleby had not been told that Kansas detectives were involved or that some of the warrants were related to the A.K. murder investigation.
Appleby told the Kansas detectives he wanted to.speak with them and straighten out some details from the time Sergeant Hansen interviewed him at his home in Kansas City. After being Mirandized, Appleby told the Kansas detectives that while he lived in Kansas City he used the name Teddy Hoover and had a pool company named Hoover Pools. Appleby indicated that he moved to Texas shortly after his interview with Sergeant Hansen and went back to using his real name, Benjamin Appleby; then he moved to Connecticut.
The detectives repeatedly asked Appleby if he had been at the pool where A.K. died, but Appleby told them he had never been there. After approximately 1 hour, the detectives moved him to an adjoining interview room. The second room contained items from the police investigation, such as a time line of the investigation, A.K/s photograph and obituary, an aerial photograph of the pool, a videotape, a notebook labeled with the name Teddy Hoover, and two additional notebooks labeled as crime scene and autopsy photographs. The detectives then confronted Appleby with the fact that an officer at the pool on the day of the murder had logged the presence of a man who gave the name Teddy Hoover and a telephone number. At that point, Appleby acknowledged he had been at the pool that day.
About 15 or 20 minutes later, Appleby admitted he had killed A.K. Appleby told the detectives A.K. was in the pump room when he arrived at the pool. Finding A.K. attractive, Appleby tried to “hit on her,” but A.K. rejected his advances and tried to leave the pump room. Appleby stood in her way and tried to grab her breasts and her waist. A.K. pushed Appleby and then punched him. This angered Appleby, who “lost it” and, in his own words, “just beat the shit out of her.”
Appleby described the ensuing struggle during which the two fell and Appleby hit A.K. twice in the back of the head, which rendered her unconscious. Then he straddled A.K. and removed her shorts and panties, intending to have sex with her. Appleby next stood up and found a first-aid kit stored in the pump room. From the kit, the defendant said he took a tube of ointment and used tire ointment as a sexual lubricant, but he could not obtain an erection.
Appleby also admitted to strangling A.K., although he told the detectives he could not remember what he used. At one point, Appleby suggested he used the rope on the pool thermometer in the pump room. At other times he stated he did not remember strangling A.K.
In describing what happened next, Appleby stated that as he was leaving, he thought he heard A.K. breathing and “didn’t want to leave her that way,” so he covered her up with the pool cover. He then left as a young woman drove up and honked a horn. He waved, got into his truck, and left. Appleby returned to the pool later, about 5:30 p.m., because he wanted to see what had happened; as a result, he was on the scene when the police created die crime scene log.
DNA testing performed by .two crime labs matched Appleby’s DNA to the DNA found mixed with A.K.’s DNA on the ointment tube and on her sports bra and T-shirt. In addition, Appleby was linked to the crime by the young woman who pulled up as Appleby was leaving the pool; she identified him as the man she saw.
The State charged Appleby with capital murder for the death of A.K. (Count I), under K.S.A. 21-3439(a)(4) (intentional premeditated killing in the commission of or subsequent to the offense of attempted rape), and attempted rape (Count II), under K.S.A. 21-3301 and K.S.A. 21-3502. The jury found Appleby guilty of both charges. The trial court imposed a hard 50 life imprisonment sentence for the murder conviction and a consecutive sentence of 228 months’ imprisonment for the attempted rape conviction. Appleby now appeals.
After oral arguments before this court, an order was entered staying a decision pending the United States Supreme Court’s decisions in two cases. The first, Montejo v. Louisiana, 556 U.S._, 173 L. Ed. 2d 955, 129 S. Ct. 2079 (2009), which relates to Appleby’s second issue regarding the admission of his confession, was filed on May 26, 2009. The second, Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009), which relates to Appleby’s third issue regarding the admission of the DNA testing, was filed on June 25, 2009. Following each decision, Appleby filed letters of supplemental authority pursuant to Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47), and this matter is now ready for decision pursuant to this court’s jurisdiction under K.S.A. 22-3601(b)(l) (off-grid crime).
Issue 1. multiplicity of capital murder and ATTEMPTED RAPE
Appleby’s first issue on appeal is a multiplicity and double jeopardy objection that he first asserted in a pretrial motion to dismiss tire attempted rape charge. In the motion, he argued the Double Jeopardy Clause of the Fifth Amendment to tire United States Constitution, § 10 of the Kansas Constitution Bill of Rights, and K.S.A. 21-3107 prohibit convictions on both counts alleged against him — i.e., capital murder and attempted rape. The trial court set the motion to dismiss for hearing along with several other pretrial motions. Although a ruling on this motion is not contained in the record on appeal, presumably the motion was denied because the case proceeded on both counts. Because the issue is purely one of law, we are not hindered in our review by the absence of the ruling from the record on appeal.
A. Standard of Review
When an appellate court reviews a ruling on a double jeopardy or multiplicity issue, an unlimited scope of appellate review applies. State v. Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009); State v. Harris, 284 Kan. 560, Syl. ¶ 3, 162 P.3d 28 (2007).
B. Strict-Elements Test
In raising this issue before pretrial, Appleby argued the charges of attempted rape and capital murder based on the aggravating crime of attempted rape were multiplicitous.
“ * “Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” ’ [Citations omitted.]” State v. Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006).
The procedural objection of multiplicity preserves a claim of double jeopardy, which arises when a defendant is actually sentenced twice for one offense. See Schoonover, 281 Kan. at 475. When analyzing a claim of double jeopardy,
“the overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” Schoonover, 281 Kan. at 496.
The State does not argue that the offenses were two acts of discrete conduct. Consequently, we accept that the convictions arose from unitary conduct and focus on the second inquiry of whether the conduct constituted one or two offenses by statutory definition.
When analyzing whether sentences relating to two convictions that arise from unitary conduct result in a double jeopardy violation, the test to be applied depends on whether the convictions arose from one or two statutes. If the double jeopardy issue arises from convictions for multiple violations of a single statute, the unit of prosecution test is applied. If the double jeopardy issue arises from multiple convictions of different statutes, in other words if it is a multiple-description issue, the strict-elements test is applied. Schoonover, 281 Kan. at 497.
Because Appleby raises a double jeopardy argument arising from his convictions under two different statutes, the strict-elements test applies to this analysis. The strict-elements test “serves as a rule of statutory construction to discern whether [a legislature] intended multiple offenses and multiple punishments” when a court is analyzing the claim under the Double Jeopardy Clause of the Fifth Amendment. Schoonover, 281 Kan. at 498. Similarly, when analyzing a claim under § 10 of the Kansas Constitution Bill of Rights, “the same-elements test is applied to implement the legislative declaration in [K.S.A. 21-3107] that a defendant maybe convicted of two crimes arising from the same conduct unless one is a lesser included offense of the other.” Schoonover, 281 Kan. at 498. Finally, K.S.A. 21-3107 provides a statutory defense when charges arise from the “same conduct.”
K.S.A. 21-3107 provides:
“(1) When the same conduct of a defendant may establish die commission of more tiran one crime under the laws of this state, the defendant maybe prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(a) A lesser degree of the same crime;
(b) a crime where all elements of the lesser crime are identical to some of the
elements of the crime charged;
(c) an attempt to commit the crime charged; or
(d) an attempt to commit a crime defined under subsection (2)(a) or (2)(b).”
(Emphasis added.)
C. Application of Strict-Elements Test
Recently, in Trotter v. State, 288 Kan. 112, Syl. ¶ 1, 200 P.3d 1236 (2009), we applied these principles and K.S.A. 21-3107 to a defendant’s argument that his premeditated first-degree murder conviction under K.S.A. 21-3401 and his capital murder conviction under K.S.A. 21-3439(a)(6) were improperly multiplicitous and his punishment for both crimes violated the Double Jeopardy Clause. Because Trotter was convicted of crimes defined by two separate statutes, he argued the strict-elements test applied and noted that all of the elements of premeditated first-degree murder had to be proven as some of the elements of capital murder under K.S.A. 21-3439(a)(6), which defines capital murder as the “intentional and premeditated killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.” We agreed with the defendant’s argument and concluded the premeditated first-degree murder conviction was a lesser included offense of the capital murder count and must be reversed under K.S.A. 21-3107(2). Trotter, 288 Kan. at 120-24.
In reaching this holding in Trotter, we relied on earlier decisions in which we had held that K.S.A. 21-3439(a)(6) created a unit of prosecution that is comprised of the premeditated first-degree murder of one victim and the commission of an additional, aggravating premeditated first-degree murder as part of the same transaction or common scheme. The combination of the two murders elevated the crime to a capital offense, and the two first-degree murders were recognized as lesser included offenses of the capital murder. See State v. Scott, 286 Kan. 54, 65-66, 183 P.3d 801 (2008); State v. Martis, 277 Kan. 267, Syl. ¶ 1, 83 P.3d 1216 (2004).
Further, the Trotter court noted that the key inquiry in a double jeopardy analysis is to determine what measure of punishment the legislature intended. Consequently, the Trotter court considered whether there was a legislative intent to allow the multiple punishment and concluded the plain language of K.S.A. 21-3439 did not express a legislative intent to override K.S.A. 21-3107(2), which clearly states that a defendant cannot be convicted of both a primary and lesser included offense. See Trotter, 288 Kan. at 122-23 (citing Scott, 286 Kan. at 65-66, 68).
The Trotter analysis guides our consideration of Appleby’s claim of statutory multiplicity. Although Trotter’s capital murder conviction was based on K.S.A. 21-3439(a)(6) and Appleby’s conviction is based on K.S.A. 21-3439(a)(4), we find no basis to reach a different conclusion simply because the aggravating felony is attempted rape rather than a premeditated first-degree murder. In the same manner that tire State must prove the elements of the lesser offense of premeditated first-degree murder when the charge arises under K.S.A. 21-3439(a)(6), the State must prove the lesser offense of a sex crime — in this case, attempted rape — when the capital murder charge is brought under K.S.A. 21-3439(a)(4). To prove the elements of capital murder, the State had to prove beyond a reasonable doubt that Appleby intentionally, and with premeditation, killed A.K. in the commission of, or subsequent to, the crime of attempted rape. Hence, all of the elements of attempted rape were identical to some of the elements of the capital murder, meaning the attempted rape was a lesser included offense. Under K.S.A. 21-3107(2), Appleby could not be convicted of both, and imposing sentences for both convictions violated Appleby’s rights to be free from double jeopardy as guaranteed by the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.
Recognizing this potential extension of our holding in Trotter, the State urges our reconsideration of that decision, arguing the decision is contrary to the holding in Harris, 284 Kan. 560, and the felony-murder rule, as applied through the inherently dangerous felony statute. We reject both arguments.
Regarding the first argument, the holding in Harris does not apply to the issue in this case. The specific issue raised in Harris was whether there was a double jeopardy violation because two of the defendant’s three convictions of capital murder were based on the same group of related murders. The issue arose from Harris’ multiple convictions under a single statute — K.S.A. 21-3439(a)(6), the multiple-murder subparagraph of the capital murder statute. This contrasts with Trotter’s convictions which arose under two statutes — K.S.A. 21-3439(a)(6), the multiple-murder subparagraph of the capital murder statute, and K.S.A. 21-3401, the first-degree murder statute.
Because Harris’ convictions arose from a single statute, the “unit of prosecution” test was applied to determine if there had been a double jeopardy violation. Under that test, the question is: What did the legislature intend as the unit of prosecution in a capital murder case? See Schoonover, 281 Kan. at 497-98. In Harris, we answered this question by determining that the legislature has proscribed the unit of prosecution as the murder of more than one person in one act or transaction or in related acts or transactions joined by a common scheme. Harris, 284 Kan. 560, Syl. ¶ 6. This meant that two of Harris’ capital murder convictions had to be reversed because the State charged the murders as part of one scheme. Harris, 284 Kan. at 577-78.
In reaching that holding, we recognized that “under other circumstances, a defendant may be convicted and punished appropriately and constitutionally on multiple counts of capital murder, as that offense is defined in K.S.A. 21-3439(a)(l) through (7).” Harris, 284 Kan. at 578. In this case, the State suggests that this statement in Harris supports cumulative punishment under the facts in Trotter and, by extension, in this case. The State’s argument fails, however, because it does not recognize that the comment in Harris was intended to recognize the possibility of charges being brought under different subparagraphs of the capital murder statute — i.e., two different theories — resulting in multiple counts. Further, the State confuses the unit of prosecution test applied in Harris with the multiple-description, i.e., the strict-elements, test applied in Trotter.
The distinction is clarified when the sentence from Harris is read in context; doing so explains the court was referring to a potential issue not reached in Harris and not at issue in this case. Specifically, after the sentence relied on by the State, tire court cited Brooks v. State, 973 So. 2d 380 (Ala. Crim. App. 2007), in which the defendant had been convicted of four counts of capital murder in connection with the murder of a 12-year-old boy. The offense satisfied four definitions of capital murder contained in Ala. Code § 13A-5-40(a) (2006). That potential situation and the situation actually at issue in Harris raised unit of prosecution questions, not strict-elements issues. Our holding in Trotter is consistent with the unit of prosecution analysis in Harris because, in both cases, we considered multiple murders to be one unit of prosecution.
Nevertheless, such a conclusion did not resolve the issue in Trotter because Trotter was not convicted of multiple counts arising from the same statute and, therefore, the unit of prosecution test was not the controlling test. Rather, Trotter’s convictions arose from multiple statutes; specifically, the issue presented in Trotter was whether the defendant could be convicted of one count under K.S.A. 21-3439(a)(6) — capital murder — and of another count under K.S.A. 21-3401 — premeditated first-degree murder. Under those circumstances — i.e., when punishment is imposed for violations of two different statutes — the multiple-description, otherwise known as the strict-elements, test under K.S.A. 21-3107 applies. See Schoonover, 281 Kan. at 497-98.
This case, like Trotter, presents a multiple-description issue: Can Appleby be convicted of both capital murder under K.S.A. 21-3439(a)(4) and attempted rape under K.S.A. 21-3301 (attempt) and K.S.A. 21-3502 (rape)? The multiple-description, strict-elements test applies to the determination of this issue and Harris’ unit of prosecution analysis has no application.
The second argument raised by the State is that the felony-murder rule, as applied through the inherently dangerous felony statute, specifically allows multiple convictions for both the homicide and an underlying felony. The State cites to State v. Holt, 260 Kan. 33, 917 P.2d 1332 (1996), for its holding that convictions for a felony murder and the underlying felony did not violate double jeopardy. The State relies on the Holt court’s statements that there is a “ ‘distinction between the “lesser included offense” doctrine and the “felony murder” doctrine. Each is a separate theory of law. Each exists in a distinct legal pigeonhole.’ ” Holt, 260 Kan. at 45; see also Schoonover, 281 Kan. at 489-92 (discussing felony-murder doctrine and double jeopardy).
The most obvious problem with the State’s argument is that the inherently dangerous felony statute, K.S.A. 21-3436, does not apply to tire capital murder statute. Rather, the inherently dangerous felony statute defines the homicides to which it applies by stating:
“(a) Any of the following felonies shall be deemed an inherently dangerous felony whether or not such felony is so distinct from the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401, and amendments thereto, as not to be an ingredient of the homicide alleged to be a violation of subsection (b) of K.S.A. 21-3401, and amendments thereto.” K.S.A. 21-3436.
The referenced homicide statute — the only referenced homicide statute — is K.S.A. 21-3401(b), the felony-murder statute, which applies “to the killing of a human being ... in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436.” K.S.A. 21-3439 — the capital murder statute — is neither referenced nor incorporated into the inherently dangerous felony statute — K.S.A. 21-3436.
In addition, as we noted in Trotter, the capital murder statute does not contain language similar to that found in the inherently dangerous felony statute, which provides that the homicide and the inherently dangerous felony are distinct and do not merge. Trotter, 288 Kan. at 122-23 (citing Scott, 286 Kan. at 68); compare K.S.A. 21-3107 with K.S.A. 21-3439. As we have frequently recognized, this language in the inherently dangerous felony statute reflects that the legislature understands the need to express an intent to allow convictions under two statutes for the same conduct and knows how to do so. See Schoonover, 281 Kan. at 490-91; see also State v. Farmer, 285 Kan. 541, Syl. ¶ 4, 175 P.3d 221 (2008); State v. Conway, 284 Kan. 37, 57, 159 P.3d 917 (2007); State v. Walker, 283 Kan. 587, 611, 153 P.3d 1257 (2007).
Because the legislature did not include similar language in the capital murder statute, our analysis is governed by the expression of legislative intent stated in K.S.A. 21-3107(2)(b). Applying the strict-elements test under that provision, Appleby’s two convictions — one for capital murder based upon the intentional and premeditated killing of A.K. in the commission of, or subsequent to, die attempted rape of A.K. under K.S.A. 21-3439(a)(4) and the other for the attempted rape of A.K. under K.S.A. 21-3301 and K.S.A. 21-3502 — are improperly multiplicitous and violate Appleby’s right to be free from double jeopardy. Appleby’s sentence for the attempted rape conviction must be vacated.
Issue 2. suppression of confession
Next, Appleby contends the trial court erred by admitting into evidence the incriminating statements he made to Kansas detectives.'Appleby argues the statements must be suppressed because he asked about an attorney while he was being booked on the Connecticut arrest warrant.
A. Attorney Requests
This argument differs from the typical issue arising from the application of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), in that Appleby was arrested in another state on unrelated charges, and the arresting officer, Detective Jewiss, had no intention of interrogating Appleby; typically a Miranda issue arises when there is custodial interrogation related to the crime on which the arrest was based.. Under tire circumstances of this case, the State argues Appleby’s questions about whether he would be allowed to talk to an attorney were, at most, an invocation of Sixth Amendment rights related to the Connecticut charges. Appleby argues that he was asserting his Fifth Amendment rights and the assertion applied to both cases. To understand these arguments, a more detailed discussion of the interaction is necessary.
When Appleby was arrested in Connecticut, he was arrested on the Connecticut charges only, even though the arrest was timed to occur when Kansas detectives were in Connecticut and the arrest may not have occurred if Kansas law enforcement had not contacted the Connecticut State Police Department to request assistance in investigating Appleby. But this involvement was behind the scene; the Kansas detectives did not directly participate when Detective Jewiss took Appleby into custody at his home, and Appleby was not aware of their presence until after he had asked the Connecticut detectives the four questions about whether he could talk to an attorney. Appleby did ask Detective Jewiss why there were so many officers at his house, and the detective explained a search warrant was being executed and the officers were going to search the home. Appleby questioned what the search was about, and Jewiss replied that he “wasn’t going to talk to him any further about the case; that somebody else would talk to him.”
During the approximately 3-mile drive to the police station, Detective Jewiss did not ask Appleby any questions, but Appleby volunteered information about his use of the alias of Teddy Hoover.
When Detective Jewiss and Appleby arrived at the station, Detective Jewiss began the routine book-in process on the Connecticut arrest warrant. At this point, before Appleby had been Mirandized, Appleby asked “if he was going to have the opportunity to talk to an attorney.” Detective Jewiss replied “absolutely.” Detective Jewiss testified he understood this to be a question regarding procedure, not an invocation of the right. While testifying at the suppression hearing, Detective Jewiss was asked if he was questioning Appleby at this point in time. He answered, “Not at all. I even informed him that I wouldn’t be questioning him, and that I wouldn’t talk to him about either of these cases.”
After Appleby asked about an attorney, he was read a notice of rights form that listed the three Connecticut charges — risk of injury to a minor, disorderly conduct, and public indecency. The form also advised of Miranda rights and stated in part: “You may consult with an attorney before being questioned; you may have an attorney present during questioning, and you cannot be questioned without your consent.” Appleby signed the notice of rights form, which was an acknowledgment, not a waiver of rights.
Soon after that exchange, another Connecticut detective advised Appleby of the search warrant that authorized the officer to swab the inside of Appleby’s mouth in order to obtain a DNA sample. Detective Jewiss testified that Appleby asked if he had the right to say “no” and then asked if he could speak to an attorney about his right to refuse the testing. According to Detective Jewiss, the detectives advised Appleby he could not talk to an attorney at that point regarding a search that had been authorized by a judge.
Following the DNA swabbing, Detective Jewiss continued with the book-in process on the Connecticut charges. Appleby was fingerprinted and photographed, the property on his person was inventoried, and a personal information data sheet was completed. During that process, Appleby asked two more times whether he would have an opportunity to talk to an attorney.
At the suppression hearing, Detective Jewiss repeatedly testified that he understood Appleby to be “asking about our procedure as in... will he have the opportunity to talk to an attorney.” According to Detective Jewiss, the question was never in the context of “I don’t want to talk to you” or “I don’t want to talk to anybody without an attorney here.”
Detective Jewiss testified that during die book-in process he asked Appleby his name, date and place of birth, residence, and similar book-in questions. The only other question he asked came about 30 minutes after they arrived at the police station when Detective Jewiss asked Appleby if he wanted to talk to some people about an unrelated matter. Appleby said he would. Detective Jewiss was asked if Appleby brought up the word “attorney” at that time, and he replied, “No, he didn’t.”
Detective Jewiss was also asked why he did not give Appleby the opportunity to speak to an attorney before sending him upstairs to be interrogated by the Kansas detectives. Detective Jewiss, who had repeatedly stated that he had understood Appleby to be asking about procedure and had explained that a defendant would typically be allowed to contact an attorney only after the book-in process was complete, testified that “[tjhere was still some processing that I had to continue with.”
When Detective Jewiss transferred Appleby to the Kansas detectives, he reported that Appleby had not invoked his right to counsel, “but he has asked something about an attorney when the [DNA] search warrant was being conducted.” Detective Jewiss did not tell the Kansas detectives about the other instances when Appleby asked whether he would be able to talk to an attorney.
After Detective Jewiss left, the two Kansas detectives asked Appleby if he wanted to answer some questions about the murder of A.K. He said he wanted to talk to them, and the detectives then told him he would be read his Miranda rights again since he was being interviewed “on a different charge from what he was arrested.” After being read his rights, Appleby said he understood them and was willing to answer some questions. He was questioned for approximately 2 and Vz hours, the final 20 minutes on videotape. At no point during the questioning by the Kansas detectives did Appleby indicate he wished to speak to or have the assistance of an attorney.
B. Trial Court’s Findings
Appleby filed three pretrial motions to suppress the statements he made to the Kansas detectives. After hearing the testimony we have described above, the trial court denied Appleby’s motions in a memorandum decision. The trial court explained that although Appleby’s initial motion to suppress cited to the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and to three provisions of the Kansas Constitution Bill of Rights, he later limited his claim to “the admissibility [of the statements] under the Fifth and Fourteenth Amendments.” Therefore, the trial court limited its scope of analysis.
The trial court recognized there are two questions to ask in the determination of whether a suspect has invoked his or her Fifth Amendment right to counsel: (1) whether the suspect articulated a desire to have an attorney present sufficiently clearly that a reasonable officer in the circumstances would understand the statement to be a request for an attorney and (2) whether an attorney is being requested for purposes of interrogation rather than in regard to later hearings or proceedings. See State v. Walker, 276 Kan. 939, 945, 80 P.3d 1132 (2003). The trial court concluded Appleby clearly requested an attorney, but he did not make it clear he wanted the attorney to assist with questioning rather than to have assistance with his case.
Regarding the clear indication that Appleby wanted the assistance of counsel, the trial court noted Appleby had asked four times about contacting an attorney in a period of approximately 30 minutes. The trial court found that, although Appleby’s requests were never phrased as a demand, “they clearly communicated a desire to call his attorney without substantial further delay.”
Yet, in concluding the purpose of Appleby’s request was not clear, the trial court stated:
“There are many purposes Appleby could have sought to accomplish by contacting his lawyer. At the time he made those requests, no one had indicated to him that his arrest was connected in any way to the [A.K.] murder investigation. He may have wanted his attorney to try to determine whether that was the real reason multiple officers had shown up to search his residence. Or Appleby may simply have wanted to learn the procedural steps that might take place following his arrest. Or he may have wanted his attorney to taire steps to secure his release on bond. Other purposes could have been present as well, including the desire to obtain the assistance of counsel in dealing with any questioning that might ensue after processing’ was completed.”
In addition, the trial court found:
“Appleby’s lack of intent to obtain a lawyer to assist with any pending custodial interrogation is an inference supported by his later (a) saying affirmatively that he wanted to speak to the [Kansas] detectives, (b) making an explicit Miranda waiver for them, (c) speaking with them for two and a half hours, and (d) never mentioning a lawyer during that interview.”
Consequently, the trial court denied Appleby’s motion to suppress, finding that based upon Appleby’s statements and the con text in which they were made, “he did not ask for counsel for the purpose of assisting him with an imminent custodial interrogation.”
C. Standard of Review
In reviewing the trial court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard. We do not reweigh evidence or assess the credibility of witnesses but will give deference to the trial court’s findings of fact. State v. Warledo, 286 Kan. 927, 934-35, 190 P.3d 937 (2008); State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
D. Defendant’s Arguments
Appleby argues his requests for an attorney were clear and sufficient to require the Kansas detectives to refrain from questioning him until his requests were honored or until he had initiated contact with them. Appleby contends that his statements to the Kansas detectives, therefore, should have been suppressed. To support his argument, he (1) cites a Montana case holding that law enforcement officers and, in turn, courts must broadly interpret any reference to an attorney by a suspect; (2) cites an Oregon decision to suppress a suspect’s statements under circumstances Appleby argues are factually similar to this case; and (3) argues the trial court’s reasoning imposes too exacting a standard, essentially requiring the suspect to use the specific words of “I want an attorney to assist me with your purposed custodial interrogation,” and that his statements to Detective Jewiss were sufficiently clear to invoke his Fifth Amendment right to counsel.
In making these arguments, Appleby groups together all of the instances where he referred to an attorney during the book-in process. Nevertheless, as we analyze his arguments, we recognize that one of the instances was of a different character than the others; that was the one made in response to the execution of the search warrant for purposes of obtaining DNA swabs. In that instance, Appleby clearly asked if he could talk to his attorney about whether he could refuse to allow the swabbing. In the three other instances, his questions were more general, as he asked whether he would have the opportunity to talk to an attorney. The differing nature of these questions is important as we consider the cases cited by Appleby.
1. Broad Interpretation
In arguing that any mention of an attorney must be broadly interpreted, Appleby cites State v. Buck, 331 Mont. 517, 134 P.3d 53 (2006), in which the request made for an attorney was similar to Appleby’s question about whether he could talk to an attorney about the DNA search warrant. However, Buck is not cited by Appleby because of its factual similarity but because of the court’s recognition that law enforcement officers and courts should give broad effect to any mention of an attorney by a suspect.
In Buck, when served with a search warrant allowing officers to obtain fingernail scrapings, the suspect said, “ Til just wait and talk to a lawyer.’ ” Buck, 331 Mont. at 521. Yet, when given the opportunity to call a lawyer, the suspect refused to do so. Several days later, the suspect — who had remained in custody — was again taken to the police station, Mirandized, and asked if he would answer questions. He agreed and confessed. The suspect later sought suppression of his confession, arguing his statement that he wanted to talk to an attorney before submitting to the fingernail scraping was an unambiguous invocation of his Miranda rights.
In considering this argument, the Montana court noted that in Connecticut v. Barrett, 479 U.S. 523, 529-30, 93 L. Ed. 2d 920, 107 S. Ct. 828 (1987), the United States Supreme Court observed its past decisions had “given broad effect to requests for counsel” and that Montana had a long-standing rule of liberally construing any mention of an attorney by a suspect. Buck, 331 Mont. at 536-37. The Montana court stated:
“[N]o suspect has an affirmative obligation to explain precisely why he or she wants legal assistance. . . . [I]f there is any reasonable doubt as to whether a suspect’s request for counsel is limited to only certain aspects of his or her interaction with investigating officers, the request must be construed as an invocation of the right to counsel in custodial interrogation.” Buck, 331 Mont. at 537.
Appleby urges our adoption of the same viewpoint. We reject that invitation for several reasons. First, the Montana court’s state ment cannot be isolated from the holding in the case, which followed Barrett. In Barrett, the United States Supreme Court refused to suppress a verbal statement made after a suspect told law enforcement officers he would talk to them, but he would not give a written statement before talking to his attorney. Barrett, 479 U.S. at 529-30. Considering Barrett and factually similar cases from other states, the Montana court concluded that Buck had not invoked his right to the assistance of counsel for the purpose of assisting with interrogation when he refused to submit to fingernail scraping until he had talked to an attorney. The Montana court stated:
“[A] suspect may seek legal assistance for only limited purposes in his or her dealings with law enforcement. Based upon this recognition, and pursuant to Barrett, we hold that a suspect’s request for counsel which is unambiguously limited to a police procedure that does not involve verbal inquiry, does not constitute an invocation of the right to counsel in custodial interrogation. Rather, a clearly limited request is properly construed according to its plain meaning, assuming that the suspect fully understands his or her right to counsel.” Buck, 331 Mont. at 536-37.
The same conclusion applies in this case to the one comment made by Appleby in the context of the DNA search warrant. Detective Jewiss testified that after being presented with the warrant, “Mr. Appleby then asks if he has the right to say no. He also asks if — at that point if he can talk to his attorney about his right to say no for that.” This statement was unambiguous and was a request for limited assistance. Clearly, it was not a request for the assistance of an attorney for the purpose of assisting with the custodial interrogation. Undoubtedly, it is because of the precedent of Barrett that Appleby does not isolate the DNA search-warrant comment as a clear invocation of his Fifth Amendment right to counsel and relies on Buck only for its dicta about broadly construing a suspect’s comments.
As to this latter point, we reject the Montana court’s analysis because of decisions of the United States Supreme Court decided after Barrett that are not discussed in Buck. Significant to Appleby’s argument is Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994). The Davis Court noted that Barrett, 479 U.S. at 529-30, and Smith v. Illinois, 469 U.S. 91, 96 & n.3, 83 L. Ed. 2d 488, 105 S. Ct. 490 (1984), mentioned the issue of ambiguous and equivocal requests for counsel but had “not addressed the issue on the merits. We granted certiorari, [citation omitted], to do so.” Davis, 512 U.S. at 456.
Faced squarely with the issue, the Court held that “the suspect must unambiguously request counsel.” Davis, 512 U.S. at 459. Stating the holding in another way, the Court said: “We decline petitioner s invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. [Citation omitted.]” Davis, 512 U.S. at 459. Further, the Court declined to adopt a rule requiring officers to ask clarifying questions. Davis, 512 U.S. at 461. The Court reasoned:
“We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who — because of fear, intimidation, lack of linguistic skills, or a variety of other reasons — will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. ‘[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process.’ [Citation omitted.] A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has indicated his willingness to deal with the police unassisted.” Davis, 512 U.S. at 460-61.
Applying this authority, we reject Appleby’s argument that any mention of counsel must be construed broadly. Rather, the trial court was correct in examining whether Appleby’s questions were unambiguous requests for the assistance of counsel for the purpose of the interrogation.
2. Oregon Case Law
Alternatively, Appleby argues his assertion of Fifth Amendment rights was not ambiguous or equivocal. To support this argument, he cites State v. Dahlen, 209 Or. App. 110, 146 P.3d 359, modified 210 Or. App. 362, 149 P.3d 1234 (2006) (remanded for further proceedings, not new trial).
In Dahlen, the defendant was placed in a holding cell after his arrest. Approximately 8 hours later, the suspect knocked on his cell door to get tire attention of jailers and asked, “ “When can I call my attorney?’ ” 209 Or. App. at 115. Less than an hour later, the suspect asked the same question. Then, 11 hours after his arrest, officers Mirandized the suspect, the suspect waived his rights, the officers asked questions, and the suspect confessed.
The Oregon Court of Appeals suppressed the confession after concluding the suspect’s question of when he could call his attorney was unequivocal and objectively would be understood to mean that the suspect wanted to call his attorney as soon as possible. Dahlen, 209 Or. App. at 117-19. In reaching this conclusion, the court distinguished a decision of the Oregon Supreme Court, State v. Charboneau, 323 Or. 38, 54, 913 P.2d 308 (1996). In Charboneau, the suspect asked, “ "Will I have an opportunity to call an attorney tonight?’ the Oregon Supreme Court held this request was equivocal and ambiguous and did not require the suppression of the suspect’s confession. Charboneau, 323 Or. at 52, 55-56.
As we compare the questions asked by the suspects in Dahlen and Charboneau with Appleby’s repeated questions of whether he would be able to talk to an attorney, the Charboneau question— “Will I have an opportunity to call an attorney tonight?” — is more similar. The discussion in Dahlen cites dictionary definitions and other sources to substantiate the view that asking “when” is a more definite statement than asking “will.” Dahlen, 209 Or. App. at 118. As we apply that discussion to this case, we note that asking “will” is essentially the same as asking “whether.” Hence, we find the Oregon Supreme Court’s analysis of the defendant’s question in Charboneau to be more applicable and the analysis of the question in Dahlen to be inapposite.
Interestingly, the contrast between the two statements and the discussion in Dahlen actually raises questions about the trial court’s conclusion that Appleby asserted a right to counsel even for Sixth Amendment purposes. We need not parse that question any further, however, because we agree with the trial court’s conclusion that Appleby’s statements were ambiguous and not a clear invocation of Fifth Amendment rights. As noted earlier, because of the interplay of two investigations the potential for this type of ambiguity is greater in this case than the typical scenario and, on this basis, Dahlen is distinguishable. The potential for this ambiguity did not arise under the facts of Dahlen and, consequently, did not need to be addressed.
Consequently, Appleby’s reliance on Dahlen is misplaced.
3. Fifth and Sixth Amendment Rights
Finally, disagreeing with the trial court’s conclusion that the circumstances created ambiguity, Appleby asserts that the potential interplay between Fifth and Sixth Amendment rights did not need to be considered in this case. He argues that the trial court improperly created two tests that place too exacting a standard on a suspect’s attempts to request the assistance of counsel. Further, he argues a reasonable law enforcement officer would have understood he was asserting his Fifth Amendment rights.
In response, the State contends that Appleby’s requests for an attorney are more akin to a Sixth Amendment invocation of the right to counsel than a Fifth Amendment invocation of the right to counsel. It argues Appleby’s requests could not reasonably be construed to be requests for assistance with custodial interrogation because he was not being interrogated at the time he made those requests. In addition, the State asserts that the Miranda right to counsel may not be anticipatorily invoked.
The State’s arguments bring into issue the interrelationship of Fifth and Sixth Amendment rights, which was discussed by the United States Supreme Court in McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991), under circumstances similar to those in this case — i.e., where an arrest is made in one case and an interrogation relates to another. In McNeil, the defendant was arrested in Omaha, Nebraska, pursuant to a Wisconsin warrant based on charges of an armed robbery outside Milwaukee. Milwaukee detectives went to Omaha to retrieve McNeil. The detectives advised McNeil of his Miranda rights and began to ask questions. McNeil refused to answer any questions, the interview ended, and he was taken to Wisconsin where an attorney was appointed to represent him.
Later that day, McNeil was visited by officers from a different Wisconsin county. The county detectives advised McNeil of his Miranda rights, and McNeil signed a form waiving those rights. The county detectives then asked McNeil about charges of murder, attempted murder, and armed robbery. McNeil denied any involvement in the crimes. Two days later the county detectives returned and again advised McNeil of his Miranda rights. McNeil again waived his rights and this time confessed.
McNeil sought suppression of his statement to the county detectives asserting a Sixth Amendment right to counsel, but the Supreme Court determined his confession was admissible. McNeil, 501 U.S. at 175-76, 181-82. The ruling was based on the distinction between McNeil’s Fifth and Sixth Amendment rights. The Supreme Court explained that the Sixth Amendment right to counsel had attached in the Milwaukee case. McNeil, 501 U.S. at 175; see Brewer v. Williams, 430 U.S. 387, 398, 51 L. Ed. 2d 424, 97 S. Ct. 1232, reh. denied 431 U.S. 925 (1977) (Sixth Amendment right to counsel attaches on filing of formal charges, indictment, or information; on arraignment; or on arrest on warrant and arraignment thereon). But that right, the Court explained, is offense specific and cannot be invoked once for all future prosecutions. McNeil, 501 U.S. at 175. As a result, “ ‘[incriminating statements pertaining to other crimes, as to which tire Sixth Amendment right has not yet attached, are, of course, admissible at the trial of those offenses.’ [Citation omitted.]” McNeil, 501 U.S. at 176.
A similar dividing line is not drawn, however, when the Fifth Amendment right to counsel — which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966) — is invoked (which McNeil did not do in arguing his appeal). In other words, Fifth Amendment rights are not offense specific. See Arizona v. Roberson, 486 U.S. 675, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). Thus, the McNeil Court noted that “[o]nce a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. [Citation omitted.]” (Emphasis added.) McNeil, 501 U.S. at 177. Further, Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 101 S. Ct. 1880, reh. denied 452 U.S. 973 (1981),
“established a second layer of prophylaxis for the Miranda right to counsel: Once a suspect asserts the right, not only must the current interrogation cease, but he may not be approached for further interrogation until counsel has been made available to him,’ [Edwards], 451 U.S. at 484-485, — which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U.S. 146[, 112 L. Ed. 2d 489, 111 S. Ct. 486] (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect’s statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is ‘designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights,’ Michigan v. Harvey, 494 U.S. 344, 350[,108 L. Ed. 2d 293,110 S. Ct. 1176] (1990).” McNeil, 501 U.S. at 176-77.
See also State v. Morris, 255 Kan. 964, 976-79, 880 P.2d 1244 (1994) (discussing McNeil).
Recently, in Montejo v. Louisiana, 556 U.S. 778, 173 L. Ed. 2d 955, 129 S. Ct. 2079 (2009), the Supreme Court reaffirmed this Fifth Amendment jurisprudence, concluding the three layers of protection — Miranda, Edwards, and Minnick — are sufficient. Montejo, 173 L. Ed. 2d at 968. However, the Montejo Court modified some aspects of its Sixth Amendment jurisprudence. Specifically, it overruled Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), because of that decision’s “ wholesale importation of the Edwards rule into the Sixth Amendment.’ ” Montejo, 173 L. Ed. 2d at 964, 970 (overruling Jackson).
However, except to separate the exclusionary rule that would apply under the Sixth Amendment from that which applies when Fifth Amendment rights are violated, the Montejo Court did not modify McNeil’s dividing lines between Fifth and Sixth Amendment analysis, even though much of that analysis was based on Jackson, which the Montejo Court overruled. In particular, the Montejo Court did not alter the McNeil requirement that, even if Sixth Amendment rights have been invoked, a defendant must affirmatively assert Fifth Amendment rights if subjected to a custodial interrogation in another case. See Montejo, 173 L. Ed. 2d at 968-70. As a result, if Appleby asserted Sixth Amendment rights, as the State suggests, the assertion was effective only in the Connecticut case.
Moreover, a Sixth Amendment assertion is not an assertion of the right to counsel during an interrogation — the right protected by the Fifth Amendment. The McNeil Court explained: “To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest. One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution.” McNeil, 501 U.S. at 178; see Rhode Island v. Innis, 446 U.S. 291, 300, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980) (Miranda’s safeguards and procedural protection of Fifth Amendment rights “are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.”).
Because the accused’s purpose in requesting an attorney must be determined in order to sort the interplay of these rights, the McNeil Court concluded that an effective invocation of tire Fifth Amendment right to counsel
“applies only when the suspect ‘ha[s] expressed’ bis wish for the particular sort of lawyerly assistance that is the subject of Miranda. [Citation omitted.] It requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.” McNeil, 501 U.S. at 178.
See State v. Walker, 276 Kan. 939, 945, 80 P.3d 1132 (2003) (recognizing two aspects to assertion of Fifth Amendment rights: [1] a reasonable police officer in the circumstances would understand request was made for an attorney and [2] the request was for assistance with a custodial interrogation, not for subsequent hearings or proceedings).
The Montejo Court reiterated this analysis and provided some guidance in making the determination of whether a request is for an attorney’s assistance with a custodial interrogation. It stated:
“ “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation” ....’ McNeil, supra [501 U.S.] at 182, n.3[, 111 S. Ct. 2204, 115 L. Ed. 2d 158], What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation . . . .” (Emphasis added.) Montejo, 556 U.S. at 797.
Even before the Montejo decision, the State in its brief in this case focused on McNeil’s statement and argued that Appleby could not anticipatorily assert his Fifth Amendment right. This view is supported by a majority of federal and state courts that have relied on the language in McNeil to hold that one cannot anticipatorily invoke the right to counsel prior to any custodial interrogation. See, e.g., United States v. Grimes, 142 F.3d 1342, 1347-48 (11th Cir. 1998), cert. denied 525 U.S. 1088 (1999); United States v. LaGrone, 43 F.3d 332, 337-38 (7th Cir. 1994); United States v. Thompson, 35 F.3d 100, 103-04 (2d Cir. 1994); Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir. 1994), cert. denied 513 U.S. 1160 (1995); United States v. Wright, 962 F.2d 953, 955 (9th Cir. 1992); United States v. Kelsey, 951 F.2d 1196, 1198-99 (10th Cir. 1991); People v. Nguyen, 132 Cal. App. 4th 350, 357, 33 Cal. Rptr. 3d 390 (2005); Pardon v. State, 930 So. 2d 700, 703-04 (Fla. Dist. App.), rev. denied 944 So. 2d 346 (Fla. 2006); People v. Villalobos, 193 Ill. 2d 229, 240-42, 737 N.E.2d 639 (2000); Sauerheber v. State, 698 N.E.2d 796, 802 (Ind. 1998); Costley v. State, 175 Md. App. 90, 110-12, 926 A.2d 769 (2007); State v. Aubuchont, 147 N.H. 142, 149-50, 784 A.2d 1170 (2001); State v. Wamess, 77 Wash. App. 636, 640-41, 893 P.2d 665 (1995).
Some courts have been liberal in determining the temporal range in which interrogation could be considered “imminent.” E.g., Kelsey, 951 F.2d at 1198-99 (defendant, who asked three or four times to see his lawyer while in custody during search of home, had reasonable belief that interrogation was imminent or impending, making request for counsel effective invocation of Fifth Amendment Miranda right to counsel).
Other courts have been veiy restrictive in defining “imminent,” allowing no intervening activity between the invocation of the right and the planned initiation of questioning. E.g., Nguyen, 132 Cal. App. 4th at 357 (suspect did not invoke Miranda’s protections by attempting to call attorney during arrest); Pardon, 930 So. 2d at 703-04 (interrogation of suspect was not imminent; he was merely being booked into detention, albeit on same charge on which he was later questioned); Sauerheber, 698 N.E.2d at 802 (McNeil “strongly suggests that the rights under Miranda and Edwards do not extend to permit anticipatory requests for counsel to preclude waiver at the time interrogation begins”; assertion of right when not being questioned ineffective even if in custody); Costley, 175 Md. App. at 111 (McNeil “suggests that custody, absent interrogation, is insufficient.”).
Similarly, in a case cited by the trial court — Aubuchont, 147 N.H. 142 — the court refused to suppress a statement simply because a suspect, while being arrested, yelled at his wife to call an attorney. The New Hampshire Supreme Court noted: “[T]he timing of the defendant’s request controls whether he invoked his Miranda rights. The purpose of the defendant’s request was ambiguous, because he made his request before he was subject to interrogation or under the threat of imminent interrogation.” Aubuchont, 147 N.H. at 149. As a result, the court concluded: “[I]t is unclear whether the defendant simply wished to seek advice from his attorney or whether he wished to obtain assistance of counsel for some future interrogation.” Aubuchont, 147 N.H. at 149-50.
This restrictive view is supported by the statements in Montejo that the Court had “ ‘in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation” ’ ” and “[wjhat matters for Miranda and Edwards is what happens when the defendant is approached for interrogation.” (Emphasis added.) Montejo, 173 L. Ed. 2d at 970.
Yet the Court did not clearly explain what was meant by the context of a custodial interrogation or a context other than a custodial interrogation, and the facts of Montejo are very different from those in this case and therefore do not help to explain the meaning as it would be applied in this case. As in McNeil, the focus in Montejo was whether there had been an assertion of Sixth Amendment rights that prevented further interrogation. In fact, upon his arrest, Montejo waived his Miranda rights and gave police various versions of events related to the crime. A few days later at a preliminary hearing, known in Louisiana as a “72-hour hearing,” counsel was appointed for Montejo even though he had not requested the appointment and had stood mute when asked if he wanted the assistance of an attorney. Later that same day, police approached Montejo, Mirandized him again, and asked him to accompany them to locate the murder weapon. During the drive, Montejo wrote an inculpatory letter of "apology to the victim’s widow. After the drive, Montejo met his attorney for the first time. At trial, he objected to the admission of the letter, basing his objection on Jackson, 475 U.S. 625. The Supreme Court held that the letter need not be suppressed based on an objection under Jackson, which it overruled. The Court concluded Montejo had not asserted his Sixth Amendment right to counsel. Yet, the Court concluded the case should be remanded to allow Montejo to assert an objection under Edwards, 451 U.S. 477, in other words, a Fifth Amendment objection. In discussing the Fifth Amendment right, the Court stressed that the Edwards rule was meant to prevent police from badgering defendants into changing their minds about the right to counsel once they had invoked it. Montejo, 173 L. Ed. 2d at 959. The Court made no attempt to suggest how these various Fifth Amendment principles would apply to Montejo’s circumstances.
Here, Appleby does not assert that a Sixth Amendment right to counsel requires the suppression of his confession. Nor did the trial court suppress on that basis. The trial court merely pointed to the possibility of a Sixth Amendment assertion in another case— or perhaps even the Kansas case — as a circumstance that caused Appleby’s assertion to be ambiguous. He relies on a Fifth Amendment right to counsel and suggests his questions during the book-in process asserted that right. This argument brings us to the State’s position that the right was not effectively asserted because Appleby was not in the interrogation room.
Recently, in a pre-Montejo case, the Wisconsin Supreme Court examined what the Supreme Court might have meant by its statement in McNeil that Fifth Amendment rights could not be asserted in a “context other than ‘custodial interrogation’. ...” McNeil, 501 U.S. at 182 n.3 (language quoted in Montejo, 173 L. Ed. 2d at 970). In State v. Hambly, 307 Wis. 2d 98, 745 N.W.2d 48 (2008), the Wisconsin court noted a tension between statements in various decisions of the United States Supreme Court. Specifically, the Hambly court attempted to reconcile the above-stated McNeil language witii the Miranda Court’s statement that “a pre-interrogation request for a lawyer . . . affirmatively secures [the] right to have one.” Miranda, 384 U.S. at 470. In doing so, the Wisconsin court noted the Miranda Court did not specifically address what is meant by a “pre-interrogation request” for counsel during custody and did not address at what point prior to custodial interrogation a suspect may effectively invoke the Fifth Amendment Miranda right to counsel. Likewise, the McNeil Court did not address tiie question of whether the “ context’ ” of a custodial interrogation could cover circumstances before an actual interrogation begins. Hambly, 307 Wis. 2d at 111.
In light of that tension, the Hambly court felt it important to also consider the McNeil Court’s recognition that, under Edwards, an effective invocation of the Fifth Amendment Miranda right to counsel “ ‘requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.’ ” Hambly, 307 Wis. 2d at 112 (quoting McNeil, 501 U.S. at 178). With this in mind, the Hambly court concluded the timing of the request for counsel may help determine whether the request is for the assistance of an attorney in dealing witii a custodial interrogation by the police. Hambly, 307 Wis. 2d at 112. While the Hambly court rejected the notion that a request for counsel can never be effective if made prior to interrogation, it concluded that the United States Supreme Court’s case law recognizes that a suspect in custody may request counsel and effectively invoke the “Miranda right to counsel when faced with ‘impending interrogation’ or when interrogation is ‘imminent’ and the request for counsel is for the assistance of counsel during interrogation.” Hambly, 307 Wis. 2d at 114-15; see also 2 LaFave, Israel, King & Kerr, Criminal Procedure § 6.9(g), p. 869 n.200 (3d ed. 2007) (citing cases for proposition that Miranda right to counsel may be validly asserted only when authorities are conducting custodial interro gation or such interrogation is imminent and request for counsel is for assistance of counsel during interrogation).
E. Imminent Questioning/Equivocal Assertion
This approach is similar to that followed by the trial court in this case and in past decisions of this court where the context of a statement regarding an attorney has been analyzed to view whether an objective law enforcement officer would understand there had been an invocation of Fifth Amendment rights. For example, in State v. Gant, 288 Kan. 76, 201 P.3d 673 (2009), when considering facts very similar to those in Aubuchont, 147 N.H. 142 — the case cited by the trial court — this court recently held a defendant did not assert his Fifth Amendment rights when he yelled to his companions while being arrested that they should call a lawyer. Although we did not consider the question of whether interrogation must be imminent, we did conclude the factual context revealed the defendant was directing his comments toward his companions, not police, and was not clearly and unambiguously asserting his right to counsel. Gant, 288 Kan. at 81; see Walker, 276 Kan. at 945; Morris, 255 Kan. at 976-81.
Now, we explicitly recognize what was implicit in many of our prior decisions: The timing as well as the content and context of a reference to counsel may help determine whether there has been an unambiguous assertion of the right to have the assistance of an attorney in dealing with a custodial interrogation by law enforcement officers.
This is the approach adopted by the trial court. In reaching the conclusion that the context in this case created ambiguity, the trial court made several findings that are supported by substantial competent evidence. Specifically, the trial court found that Appleby was aware he was being arrested by Connecticut authorities and was being charged for crimes committed in Connecticut. Further, Appleby had not been subjected to interrogation at that point in time about anything, in either the Connecticut or the Kansas case, and no one had indicated to him that his arrest was in any way connected to the murder of A.K. See Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 L. Ed. 2d 528, 110 S. Ct. 2638 (1990) (recog nizing “ ‘routine booking question’ exception which exempts from Mirandas coverage questions to secure the ‘ “biographical data necessary to complete booking or pretrial services.” ’ ” Moreover, Detective Jewiss had informed Appleby that he would not be questioning him and that someone else would be talking to him about “the case.” At that point in time, Appleby only knew of the Connecticut case. Hence, when Appleby asked whether he would have a chance to talk to an attorney, he knew he was not going to be questioned by Detective Jewiss. At that point in time, interrogation was clearly not imminent or impending.
It was not until minutes before the custodial interrogation with the Kansas detectives that Appleby was asked by Detective Jewiss if he would talk to some people about an unrelated matter. The trial court concluded that at that time: “Appleby undoubtedly believed that matter to be the [A.K.] murder investigation.” Yet Appleby agreed without hesitation to speak to the detectives. Then Appleby was given his Miranda rights, which he clearly waived. He never asked about an attorney again. Thus, when questioning was imminent — when Appleby was approached for interrogation — he clearly waived his right to counsel.
We agree with the conclusion reached by the trial court that Appleby’s references to an attorney during the book-in process on tire Connecticut charges did not constitute a clear and unambiguous assertion of his Fifth Amendment right as protected by Miranda. The trial court did not err in denying Appleby’s motion to suppress his custodial statements made to the Kansas detectives.
Issue 3. population statistics related to dna testing
Next, Appleby contends the trial court erred by admitting into evidence a computer-generated report regarding population statistics as they relate to DNA testing. Specifically, he argues his confrontation rights under the Sixth Amendment to the United States Constitution were violated as those rights were defined in Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
The trial court admitted the testimony of Dana Soderholm, formerly a forensic scientist for the Johnson County Crime Labora toiy — now with the Kansas Bureau of Investigation (KBI) Kansas City Regional Laboratory — who used the Polymerase Chain Reaction-Short Tandem Repeat (PCR-STR) DNA analysis to test various items containing mixtures of blood, and Lisa Dowler, a Kansas City Crime Laboratory forensic chemist, who ran DNA tests on A.K.’s sports bra. These experts were permitted to testify regarding the DNA statistical population data that was generated when they compared, via a computer software program, their tested DNA profiles with databases of DNA profiles. Dowler and the Kansas City laboratory where she is employed use a regional database. Soderholm and the Johnson County laboratory where she was employed use the Federal Bureau of Investigation’s (FBI) national DNA database known as the Combined DNA Indexing System (CODIS); the Johnson County laboratory is certified by the FBI to use the database. As Soderholm explained, when a DNA profile from a crime matches the DNA profile from a suspect, a statistical analysis is performed to determine how rare or common that particular DNA profile is in the general population. Soderholm testified:
“There is a software called Pop-Stats that is given to the labs by the CODIS group, and that is the information that we use. It is software that is already built in, and you do not get into the frequencies. You don’t change any of that. You type in your alleles and the information is then calculated within the computer, and then you print it out.
“. . . The normal procedure is if you have an inclusion, that you use Pop-Stats to generate your statistics.”
For example, with regard to the blood on the ointment tube, Soderholm testified that it was consistent with Appleby’s and the “probability of selecting an unrelated individual at random from the population whose DNA would match that DNA profile from the tube was 1 in 14.44 billion.” And with regard to one of the blood stains from the sports bra, Dowler’s testimony indicated that the chances of randomly selecting someone else in the population other than Appleby whose DNA would match the male DNA profile from the bra was “1 in 2 quadrillion.”
Appleby filed a motion to exclude the State’s DNA evidence, arguing, inter alia, that evidence of the application and use of population frequency databases by any witness who is not an expert in that field would violate his right of confrontation. After conducting a hearing, the trial court found that the use of DNA population databases did not present a Crawford issue because those databases are not, in and of themselves, testimonial in nature.
The trial court relied on State v. Lackey, 280 Kan. 190, Syl. ¶ 5, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056 (2006), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2006), where this court concluded that “[fjactual, routine, descriptive, and nonanalytical findings made in an autopsy report are nontestimonial” and, therefore, “may be admitted without the testimony of the medical examiner” who performed the autopsy. The trial court found:
“The CODIS database simply represents a compilation of DNA information obtained over an extended time period from a large population sample, along with the ability to easily compare any sample with those already compiled. The CODIS database provides routine, descriptive information that, under Crawford, is non-testimonial, at least when presented through the testimony of a qualified DNA expert.”
Disputing this conclusion, Appleby takes issue with the fact that Soderholm admitted during recross-examination that she did not know who provided the samples for the frequencies or how the databases were made. And although Soderholm had undergone some training regarding CODIS and population genetics, she was admittedly not a statistician.
Appleby, therefore, contends that he had the right to confront a statistician to explain the statistical principles used in the calculations. And he argues that he was denied any opportunity to cross-examine the FBI’s random match probability estimates because the witnesses presented at trial did not prepare the database and had no personal knowledge of the methods and procedures the FBI used to compute the statistical estimates or the set of data upon which the calculations were based.
A. Standard of Review
Appleby’s argument is subject to a de novo standard of review because he challenges the legal basis of the trial court’s admission of evidence, specifically that the evidence was admitted in violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution. State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008) (de novo standard applies to review of legal basis of admission of evidence); State v. Henderson, 284 Kan. 267, Syl. ¶ 2, 160 P.3d 776 (2007) (de novo standard applies to determination of whether the right to confrontation has been violated).
B. Testimonial
The starting point for Appleby’s Sixth Amendment Confrontation Clause objection is the United States Supreme Court’s holding in Crawford that the “testimonial statements” of witnesses absent from trial are admissible over a Confrontation Clause objection only when the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68. This analysis altered the prior rule of Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), abrogated in Crawford, 541 U.S. 36, under which a hearsay statement made by an unavailable witness could be admitted without violating the Confrontation Clause if the statement contained adequate guarantees of trustworthiness or indicia of reliability. Roberts, 448 U.S. at 66. Post-Craioford, the threshold question in any Confrontation Clause analysis is whether the hearsay statement at issue is testimonial in nature. State v. Brown, 285 Kan. 261, 285, 173 P.3d 612 (2007).
The Supreme Court did not explicitly define the term “testimonial” in Crawford. The Court did state, however, that “[wjhatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Crawford, 541 U.S. at 68; see also Davis v. Washington, 547 U.S. 813, 822, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006) (in context of police interrogations, statements are nontestimonial when made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency).
Recently, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314, 321-22, 332-33, 129 S. Ct. 2527 (2009), the second of the cases that led us to stay this opinion pending a United States Supreme Court decision, the Supreme Court held that forensic laboratory certificates of analysis were testimonial and the admission of the certificates without the testimony of the analysts violated a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment. In reaching the conclusion that the certificates were testimonial, the Supreme Court focused on two factors, stating: (1) “The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ [Citation omitted]”; and (2) “the affidavits [were] ‘ “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” ’ [Citation omitted.]” Melendez-Diaz, 557 U.S. at 310-11; cf. Brown, 285 Kan. at 291 (listing these and other factors to consider in determining if an eyewitness’ statement is testimonial).
After finding the laboratory analysts’ certificates met these tests to define testimonial hearsay, the Melendez-Diaz Court rejected the argument that a different result was justified by the objectivity of tire scientific testing and reliability of the test results. The Melendez-Diaz majority, discussing this topic in the context of responding to points made by the four dissenting justices, observed:
“This argument is little more than an invitation to return to our overruled decision in Roberts, 448 U.S. 56, [100 S. Ct. 2531, 65 L. Ed. 2d 597,] which held that evidence with ‘particularized guarantees of trustworthiness’ was admissible notwithstanding the Confrontation Clause. Roberts, Id. U.S. at 66. What we said in Crawford in response to that argument remains true:
“ ‘To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather tiran a substantive guarantee. It commands, not that evidence be rehable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. . . .
“ ‘Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.’ Crawford, 541 U.S. at 61-62.” Melendez-Diaz, 557 U.S. at 317-18.
This discussion is particularly relevant in this case because the State argues the scientific, objective nature of the DNA testing and the statistical probability program means the evidence at issue in this case is nontestimonial. The trial court accepted this argument and partially based its decision on such a rationale, as evidenced by the trial court’s reliance on and citation to Lackey, 280 Kan. 190, Syl. ¶ 5, which in turn was partially based on the rationale that an autopsy report recorded objective, scientific evidence. Melendez-Diaz undercuts this rationale.
Nevertheless, Melendez-Diaz does not answer the question of whether there was a Confrontation Clause violation in this case. Here, unlike in Melendez-Diaz, the laboratory analysts who performed the DNA testing were in court and subject to cross-examination. The hearsay at issue is the data that was relied on by laboratory analyst Soderholm in reaching her opinion regarding population frequency of specific DNA profiles. The closest the Melendez-Diaz Court came to answering this question was to rebut the dissenting justices’ argument that the holding would require several individuals from a laboratory to testify. The Court stated:
“[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. . . . [D]ocuments prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.” Melendez-Diaz, 557 U.S. at 311 n.1.
While this statement suggests that not all aspects of the testing process are testimonial and therefore subject to a defendant’s rights under the Confrontation Clause, the examples differ from the question of whether the data that underlies an expert’s opinion is testimonial. Therefore, the decision does not directly answer our question.
Nevertheless, applying the tests utilized in Melendez-Diaz, we conclude the population frequency data and the statistical programs used to make that data meaningful are nontestimonial. We first note that DNA itself is physical evidence and is nontestimonial. Wilson v. Collins, 517 F.3d 421, 431 (6th Cir. 2008); United States v. Zimmerman, 514 F.3d 851, 855 (9th Cir. 2007); see also Schmerber v. California, 384 U.S. 757, 765, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966) (holding that “blood test evidence, although an incriminating product of compulsion, [is] neither... testimony nor evidence relating to some communicative act or writing” and is therefore not protected by the Fifth Amendment).
Placing this physical evidence in a database .with other physical evidence — i.e., other DNA profiles — does not convert the nature of the evidence, even if the purpose of pooling the profiles is to allow comparisons that identify criminals. See 42 U.S.C. §§ 14132(b)(3), 14135e (2006) (stating purposes of CODIS and clearly recognizing use during trial when rules of evidence allow). The database is comprised of physical, nontestimonial evidence. Further, the acts of writing computer programs that allow a comparison of samples of physical evidence or that calculate probabilities of a particular sample occurring in a defined population are nontestimonial actions. In other words, neither the database nor the statistical program are functionally identical to live, in-court testimony, doing what a witness does on direct examination. Rather, it is the expert’s opinion, which is subjected to cross-examination, that is testimonial.
At least one other court has reached the same conclusion that the statistical data obtained from CODIS is nontestimonial. See State v. Bruce, 2008 WL 4801648 (Ohio App. 2008) (unpublished opinion). More generally, several courts have reasoned that the Confrontation Clause is not violated if materials that form fire basis of an expert’s opinion are not submitted for the truth of their contents but are examined to assess the weight of the expert’s opinion. E.g., United States v. Lombardozzi, 491 F.3d 61, 73 (2d Cir. 2007); United States v. Henry, 472 F.3d 910, 914 (D.C. Cir. 2007); United States v. Adams, 189 Fed. Appx. 120, 124 (3d Cir. 2006) (unpublished opinion); United States v. Stone, 222 F.R.D. 334, 339 (E.D. Tenn. 2004); People v. Sisneros, 174 Cal. App. 4th 142, 153-54, 94 Cal. Rptr. 3d 98 (2009); State v. Lewis, 235 S.W.3d 136, 151 (Tenn. 2007); see Note, Testimonial Hearsay as the Basis for Expert Opinion: The Intersection of the Confrontation Clause and Federal Rule of Evidence 703 after Crawford v. Washington, 55 Hastings L.J. 1539, 1540 (2004).
Here, as explained in the testimony in this case, the database and the statistical program are accepted sources of information generally relied on by DNA experts. Based on this scientific data— which by itself is nontestimonial — -the experts in this case devel oped their personal opinions. See State v. Dykes, 252 Kan. 556, 562, 847 P.2d 1214 (1993). These experts were available for cross-examination and their opinions could be tested by inquiry into their knowledge or lack of knowledge regarding the data that formed the basis for their opinion. Consequently, the right to confront the witnesses was made available to Appleby.
The trial court did not err in admitting the opinions of the DNA experts.
Issue 4. jury instruction on premeditation
Appleby next contends that the trial court’s instruction defining “premeditation,” to which Appleby objected at trial, unfairly emphasized the State’s theory and violated his right to a fair trial.
A. Standard of Review
When a party has objected to an instruction at trial, the instruction will be examined on appeal to determine if it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination an appellate court is required to consider the instructions as a whole and not isolate any one instruction. State v. Scott, 286 Kan. 54, 75, 183 P.3d 801 (2008); State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006).
B. Instruction and Arguments
The premeditation instruction given in this case tracks substantially with the pattern instruction defining premeditation, PIK Crim. 3d 56.04(b). However, it contains some additional language, and it is this additional language to which Appleby objects. The instruction, with the language added to the PIK instruction in italics, stated:
“Premeditation means to have thought the matter over beforehand. In other words, to have formed the design or intent to kill before the killing. Stated another way, premeditation is the process of thinking about a proposed killing before engaging in the act that kills another person, but premeditation doesn’t have to be present before a fight, quarrel, or struggle begins. There is no specific time period required for premeditation, but it does require more that the instantaneous, intentional act of taking another person’s life. Premeditation can occur at any time during a violent episode that ultimately causes the victims death.” (Emphasis added.)
Appleby concedes in his appellate brief that the additional statements in the trial court’s definition of premeditation are correct statements of law. See State v. Gunby, 282 Kan. 39, Syl. ¶ 9, 144 P.3d 647 (2006) (“Premeditation is the process of thinking about a proposed killing before engaging in the homicidal conduct, but it does not have to be present before a fight, quarrel, or struggle begins. Death by manual strangulation can be strong evidence of premeditation.”); State v. Scott, 271 Kan. 103, 108, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001) (“Premeditation does not have to be present before a fight, quarrel, or struggle begins.”); see also State v. Jones, 279 Kan. 395, 404, 109 P.3d 1158 (2005) (citing Scott, 271 Kan. at 111, for the rationale that the jury could find defendant’s “state of mind” changed from acting with intent to acting with premeditation “at any time during the violent episode before he caused the victim’s death, including at any time during the strangulation”).
In fact, the record reflects that the trial court relied on Gunby, 282 Kan. 39, which was also a strangulation case, in drafting the instruction. The State suggests the trial judge in this case “believed his instruction was helpful to the jury to give them additional general rules that were not arguing one side or another of the case.”
As Appleby notes, however, in Gunby the additional language was used in answering a question from the jury, not as part of the initial instruction to the jury. Appleby argues that including the language in the initial instruction unduly favored the State’s theory of the case. More fundamentally, he argues it was per se error to deviate from the pattern instruction.
C. Deviation from Pattern Instmction
First, we address Appleby’s general argument that it was inappropriate to deviate from a pattern instruction. Contrary to the implication of this argument, it is not mandatory for Kansas courts to use PIK instructions, although it is strongly advised. State v. Mitchell, 269 Kan. 349, 355-56, 7 P.3d 1135 (2000). As this court has stated:
“The pattern jury instructions for Kansas (PIK) have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions. They should be the starting point in the preparation of any set of jury instructions. If the particular facts in a given case require modification of the applicable pattern instruction or the addition of some instruction not included in PIK, the trial court should not hesitate to make such modification or addition. However, absent such need, PIK instructions and recommendations should be followed.” State v. Johnson, 255 Kan. 252, Syl. ¶ 3, 874 P.2d 623 (1994).
Hence, we find no merit to Appleby’s argument that error occurred simply because the trial court deviated from the pattern instruction.
D. Undue Emphasis
Second, we address Appleby’s contention that the alteration to a PIK instruction may not single out and give undue emphasis to particular evidence, even if it correctly states the law. To support his argument, Appleby advances State v. Cathey, 241 Kan. 715, 741 P.2d 738 (1987), disapproved on other grounds State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006).
In Cathey, the jury was instructed that evidence that a defendant had fled soon after tihe commission of the alleged offense could be considered as evidence of guilt if the jury found the defendant fled to avoid arrest and trial. The Cathey court observed that the instruction was a correct statement of the law; evidence to establish the defendant’s consciousness of guilt such as flight, concealment, fabrication of evidence, or the giving of false information is admissible as evidence in a criminal case. Cathey, 241 Kan. at 730. But the Cathey court held it was clearly erroneous for the trial court to instruct the jury on the defendant’s consciousness of guilt by flight because in State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976), the court directed that in subsequent trials the entire instruction on consciousness of guilt should be omitted from the instructions to the jury; the Cathey court noted that the reason the instruction had been disapproved is that it emphasized and singled out certain evidence admitted at a criminal trial. Cathey, 241 Kan. at 730-31.
In responding to Appelby’s reliance on Cathey, the State malees two arguments. First, the State points out that Cathey was distin guished in State v. Williams, 277 Kan. 338, 85 P.3d 697 (2004). Second, the State argues Cathey can also be distinguished because the instruction in this case merely provides a correct legal definition of the term “premeditation” rather than instructs the jury how to apply the evidence as did the Cathey instruction.
Regarding the first point, the State is correct — Williams does distinguish Cathey. See Williams, 277 Kan. at 352-53. However, the distinction made in Williams bolsters Appleby’s argument that there is a difference between emphasizing a theory when answering a question from a jury and when giving the initial instructions.
In Williams, as in Gunby, the defendant argued that the trial court erred in responding to the jury’s question about premeditation. During its deliberations, the Williams jury asked: “How long beforehand does the thought have to occur to make it premeditation?”; the word “beforehand” was circled. Williams, 277 Kan. at 351. While the court responded that no particular amount of time was required, the jury later sought a more detailed definition of premeditation. It asked whether premeditation included a preconceived plan and asked for an explanation of the relationship between intent and premeditation. The trial court responded with a correct statement of law, which was taken from State v. Jamison, 269 Kan. 564, 571-72, 7 P.3d 1204 (2000).
Williams, citing Cathey, 241 Kan. at 730-31, argued that the trial court’s second response, without mention of his mental defect, emphasized the weight of the State’s evidence of premeditation and, by the same token, deemphasized the weight of his evidence of mental defect. The Williams court found this reliance on Cathey to be faulty in that a response to an inquiry, unlike an instruction, is formulated in response to the particular question asked by the jury. A trial court’s task in responding to an inquiry is to provide guidance with regard to the subject of the inquiry. “If the subject of the inquiry involves primarily the evidence of one party,” said the Williams court, “the trial court may be hard pressed, in drafting a helpful response, to avoid singling out and emphasizing the weight of any party’s evidence.” Williams, 277 Kan. at 353. The Williams court concluded that the trial court appropriately gave a response that was formulated to help the jury understand premed itation, which had been the specific question asked by the juiy. Furthermore, the Williams court stated that if the defendant had wanted the trial court to remind the jury of the mental defect or disease defense, he could have made a request to include the mental defect instruction among those the trial court asked the jury to reread. The Williams court held that there was no abuse of discretion. Williams, 277 Kan. at 353. As Appleby notes, however, the issue arises in this case because of the trial court’s initial instructions, not because of an answer to a jury question.
The State recognizes this difference but argues the trial court was stating the law without emphasizing one side of the case or the other. To support this suggestion, the State cites State v. Green, 245 Kan. 398, 781 P.2d 678 (1989), which in turn is based on State v. Beebe, 244 Kan. 48, 766 P.2d 158 (1988). The State argues these cases suggest that the rationale of Cathey does not apply in this case because in Cathey, the instruction told the jury how to apply certain evidence in assessing the defendant’s guilt or innocence and in this caseas in Green and Beebe — the instruction merely provided the legal definition of an element of the crime or factors to be considered. We agree this is a valid distinction and, in this regard, find Beebe to be the most analogous and helpful case for purposes of our analysis.
In Beebe, the defendant, who was appealing his jury trial convictions of first-degree murder and aggravated kidnapping, argued the trial court erred in instructing the jury it could infer malice, premeditation, and deliberation from the use of a deadly weapon in the killing. The Beebe court concluded it was error to instruct that premeditation and deliberation could be inferred from the use of a deadly weapon because that fact, standing alone, does not support such an inference. Rather, a gun could be used to kill in first-degree murder, second-degree murder, voluntary manslaughter, or involuntary manslaughter. Beebe, 244 Kan. at 58.
On the other hand, the portion of the instruction relative to the inference of malice was upheld. Unlike the premeditation portion, the malice portion was an accurate statement of the law, and the Beebe court pointed out that the instruction did not require or direct that malice be found from the use of a deadly weapon. The court stated: “The use of a deadly weapon is one of the evidentiary facts from which the jury could infer malice, but we conclude it is the better practice not to give a separate instruction thereon.” Beebe, 244 Kan. at 60.
As in Beebe, the jury instruction defining premeditation in this case contained valid statements of Kansas law. While those statements of the law were added because of the facts of tire case, they did not direct the jury to a result. In other words, in contrast to the instruction at issue in Cathey — where the instruction stated that evidence of flight could be considered as evidence of guilt— there was no statement in the instruction at issue in this case that evidence of a prolonged struggle or of strangulation could be considered as evidence of premeditation. Rather, the added language explained the law recognizing that premeditation must be present before the homicidal conduct but does not have to be present before a struggle begins.
Further, Appleby fails to show that the jury instruction in this case misled die juiy or prejudiced him. Certainly, the instruction included an explanation of premeditation that Appleby would like to ignore; he would have hired the juiy to have believed he had to have premeditated the murder before he entered the pool pump room because there was no evidence to support such a finding, while there was direct and overwhelming evidence of premeditation formed before A.K.’s death. A.K. suffered a severe beating in which she sustained numerous cuts, bruises, and lacerations. And the back of A.K.’s head was bashed open in two places. Blood from A.K. and Appleby was found mixed together. There was evidence of both manual strangulation and ligature strangulation. According to expert testimony, it would have taken approximately 10 minutes — and perhaps as many as 16 minutes — for Appleby to strangle A.K. There were some periods when the force of strangulation was stopped, causing petechial hemorrhaging. The law supports a conclusion that under those facts there could have been premeditation, and the instruction merely informed the jury of that law. It did not direct them how to apply the evidence or unduly emphasize the State’s case.
While we again emphasize that trial courts should follow the pattern instructions whenever possible, we find no error in the premeditation instruction given in this case.
Issue 5. hard so sentence: weighing aggravating AND MITIGATING FACTORS
Next, Appleby argues the trial court abused its discretion in weighing the aggravating and mitigating circumstances in determining whether to impose the hard 50 sentence. Specifically, he contends that in weighing the circumstances, the court improperly viewed some of the mitigating evidence as being a negative or aggravating factor.
When reviewing the imposition of a sentence of life imprisonment without the possibility of parole for 50 years, an appellate court reviews the sentencing court’s weighing of aggravating and mitigating circumstances under an abuse of discretion standard. State v. Jones, 283 Kan. 186, 215, 151 P.3d 22 (2007); State v. Engelhardt, 280 Kan. 113, 144, 119 P.3d 1148 (2005).
Because the crime in this case occurred in June 2002, the applicable sentencing statute is K.S.A. 2001 Supp. 21-4635(a), which provided in part:
“[I]f a defendant is convicted of the crime of capital murder and a sentence of death is not imposed, . . . the court shall determine whether the defendant shall be required to serve ... for crimes committed on and after July 1, 1999, a mandatory term of imprisonment of 50 years or sentenced as otherwise provided by law.”
K.S.A. 2001 Supp. 21-4635(b) directs the sentencing court to consider evidence of aggravating and mitigating circumstances in determining whether to impose a hard 50 sentence. If the court finds that one or more of the aggravating circumstances enumerated in K.S.A. 2001 Supp. 21-4636 exist and that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances, the defendant “shall” receive the hard 50 sentence. K.S.A. 2001 Supp. 21-4635(c).
Here, the sentencing court found that one aggravating circumstance existed — the defendant committed the crime in an especially heinous, atrocious, or cruel manner. K.S.A. 2001 Supp. 21- 4636(f). As a basis for the aggravating circumstance, the court found (1) there was infliction of mental anguish or physical abuse before the victim’s death and (2) there were continuous acts of violence before and continuing after the killing. K.S.A. 2001 Supp. 21-4636(f)(3), (5). Appleby does not raise any arguments disputing these findings.
At sentencing, Appleby asserted two statutory mitigating circumstances. See K.S.A. 21-4637 (“Mitigating circumstances shall include, but are not limited to” the listed factors.). First, he argued he was under the influence of extreme mental and emotional disturbances at tire time of the incident. K.S.A. 21-4637(b). Second, Appleby contended his capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law was substantially impaired because of his mental condition at tire time of die incident. K.S.A. 21-4637(f). He also presented nonstatutory mitigating evidence that he was exposed to violence, substance abuse, lawless behavior, and abandonment during his youth.
At the sentencing hearing, Appleby presented the testimony of two experts, Dr. David George Hough, a clinical psychologist, and Dr. Edward Robert Friedlander, a board-certified anatomical and clinical pathologist.
Dr. Hough, who conducted psychological testing on Appleby, diagnosed him with intermittent explosive disorder, which Dr. Hough explained, is recognized as a mental disease or defect. According to Dr. Hough, such behavior is “driven by uncontrolled emotion, mainly rage,” and it is “manifested by such correlates as hyperarousal, a collapse of thinking or cognitive mediation.” Focusing on the crime in this case, Dr. Hough opined that “something got kindled inside [Appleby], and what got kindled was this enormous rage that was way out of proportion to anything [A.K.] could have said or done... . The best I can tell is that this was not planned or organized or premeditated or rehearsed.” Dr. Hough concluded that Appleby did not have complete control of himself during the event.
Dr. Friedlander gave expert opinion testimony regarding the events in die pool pump room. He did not view the crime scene or the autopsy, but he reviewed the report of Dr. Handler, who performed the autopsy in this case, spoke with Dr. Handler, and reviewed some of Dr. Handler’s microscopic slides. Dr. Fried-lander testified that in his opinion, A.K. was knocked out when she fell to the ground after being struck only one or two times in the mouth. Dr. Friedlander further opined that Appleby punched both of A.K.’s eyes while she was on die ground, unconscious. And he testified that he did not see evidence of petechial hemorrhaging; thus, one could not say with certainty how long A.K. had been strangled.
Appleby contends that the sentencing court did not give proper weight to his mitigating circumstances and went so far as to use the mental disorder as an aggravating circumstance against him in the balancing equation. He is specifically bothered by the court’s asking at the sentencing hearing why the mental disorder was not an aggravating circumstance: “If [Appleby] has intermittent explosive disorder and is prone to strong outpourings of rage and behavior far out of proportion to anything that occurs to him, why is that a reason for a lesser sentence instead of a greater sentence?” Defense counsel explained immediately, however, that it would show “he was not necessarily in control of his actions like the rest of us would be.” The court then pointed to the jury’s finding that the crime was premeditated. The court was clearly trying to understand how the two concepts could coexist.
Appleby also points to this statement in the court’s sentencing memorandum: “To the extent that the defendant has Intermittent explosive disorder,’ as testified to by Dr. George Hough, that does not suggest a need to lock the defendant up for a shorter, rather than a longer, period.” But Appleby fails to look at the surrounding context. In the preceding sentences, the court states that it gave “due consideration” to the mitigating circumstances presented by the defense, including the evidence, affidavits, and letters submitted by the defense. Then, in the sentence on which Appleby focuses, the court’s statements regarding Dr. Hough’s testimony suggest that the court was looking at the evidence as presented— mitigating circumstances. In the next sentence, the court indicates that Dr. Hough’s testimony failed to explain the defendant’s premeditated conduct, despite ample evidence to support the jury’s verdict. Nowhere did the court say or even imply that Appleby was going to receive a longer sentence due to his alleged mental defect.
Appleby contends that the present case is similar to Miller v. State, 373 So. 2d 882, 885 (Fla. 1979), in which the Florida Supreme Court vacated the trial court’s sentence of death because the trial court “considered as an aggravating factor the defendant’s allegedly incurable and dangerous mental illness.” In addition, Appleby cites Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), which expressly left open the possibility that in a “weighing” state, infection of the process with an invalid aggravating factor might require invalidation of a death sentence. Both of these cases are inapplicable; in this case, the trial court considered the factor as a mitigator and did not improperly consider the factor as an aggravating circumstance.
The final authority advanced by Appleby is State v. Legendre, 522 So. 2d 1249 (La. App. 1988), where the defendant was convicted of second-degree battery and received 5 years of hard labor, the maximum sentence. The evidence supported the conclusion that the defendant had the necessary specific intent to inflict serious bodily injury on the victim. According to Louisiana law, maximum sentences could “be justified only in cases classified as ‘extreme’ by the factual circumstances of the offense and the apparent [dangerousness] of the defendant.” Legendre, 522 So. 2d at 1252.
The sentencing court had evidence that the defendant was a chronic paranoid schizophrenic, and Louisiana case law indicated that mental illness should be used as a mitigating circumstance. See Legendre, 522 So. 2d at 1252. The Louisiana appellate court found that the trial court did not consider the defendant’s mental condition a mitigating circumstance in imposing the sentence. Instead, the trial court seemed to consider it an aggravating circumstance by stating that the defendant’s main problem was “ ‘his lack of insight to his illness and his refusal to take prescribed medication away from the hospital.’ ” Legendre, 522 So. 2d at 1253. The case was remanded for resentencing, the appellate court holding that when a person with a recognized, diagnosed mental illness is convicted of crimes, that condition should be considered to mitigate the type and length of sentence imposed on the offender, “even if he has been ruled legally sane.” Legendre, 522 So. 2d at 1253.
The laws in Legendre are inapplicable to the present case. Appleby essentially argues that the court failed to properly and carefully consider die mitigating evidence and, instead, focused only on evidence supporting the aggravating circumstance. But the sentencing court’s comments clearly show that the court did properly consider and weigh the defendant’s mitigators.
In this case, the trial court simply found that the State’s aggravating circumstance outweighed the defendant’s mitigating circumstances. It is well established that “ ‘[w]eighing aggravating and mitigating circumstances is not a numbers game. “One aggravating circumstance can be so compelling as to outweigh several mitigating circumstances” ’ and vice versa. [Citations omitted.]” Engelhardt, 280 Kan. at 144.
Appleby has failed to establish an abuse of discretion.
Issue 6. hard so sentence: constitutionality
Appleby contends that the hard 50 sentencing scheme is unconstitutional because it permits the sentencing court to find facts that enhance the available sentencing range, utilizing a preponderance of the evidence standard, in violation of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
This court has repeatedly rejected similar arguments challenging the constitutionality of the hard 40/hard 50 sentencing scheme and held our hard 50 scheme is constitutional. State v. Johnson, 284 Kan. 18, 22-23, 159 P.3d 161 (2007), cert. denied, 169 L. Ed. 2d 737 (2008); see also State v. Warledo, 286 Kan. 927, 954, 190 P.3d 937 (2008) (reaffirming State v. Conley, 270 Kan. 18, 11 P.3d 1147 [2000], citing Johnson with approval, and noting that the United States Supreme Court has not “altered decisions in which it recognized that the [Apprendi] prohibition does not apply when considering the minimum sentence, to be imposed”); State v. Albright, 283 Kan. 418, 424, 153 P.3d 497 (2007). Appleby presents no persuasive reason to abandon this long line of precedent.
Affirmed in part, reversed in part, and sentence vacated in part.
McFarland, C.J., not participating.
Daniel L. Love, District Judge, assigned.
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The opinion of the court was delivered by
Beier, J.:
This is an appeal filed by the State from the district court’s suppression ruling in favor of defendant Ryan Michael Schultz. On petition for review from a Court of Appeals’ decision affirming the district court in State v. Schultz, No. 98,727, unpublished opinion filed March 14, 2008, we must decide whether Schultz was subjected to a custodial interrogation while in his own apartment and, if so, whether statements made and physical evidence discovered as a result of that interrogation must be excluded.
Factual and Procedural Background
This case began when a pest control worker observed marijuana in Schultz’ apartment and informed the apartment’s property manager. The manager also stated Schultz had visited her office and “appeared to be on something because his eyes were bloodshot and he was acting a little bit awkward.” She contacted law enforcement.
Officers Bradley Rhodd and Joe Kinnett, in full police uniform, responded to the call. They knocked on Schultz’ exterior apartment door and heard rustling from inside. They waited approximately 30 seconds and then knocked again. This time the door opened slightly.
Rhodd testified that Schultz was directly behind the door and may have been opening it. Kinnett testified that he pushed the door a bit after it opened and yelled “police officers,” and then Schultz met him and Rhodd at the door. Regardless, the officers informed Schultz that they were with the Topeka Police Department and asked if they could enter. Schultz permitted the officers to come into the apartment and stand just inside the door. At that point, the officers smelled a strong odor of marijuana, and Kinnett observed marijuana on a living room coffee table.
Kinnett asked Schultz if anyone else was inside the apartment. Schultz said, “No.” Schultz’ girlfriend, a juvenile, then walked into view in the living room.
Rhodd explained that the officers had come to the apartment because of the pest control worker’s report. Rhodd suggested that it was disrespectful to put the worker in an awkward situation, and Schultz responded that he had not intended to do so. Rather, he said, he had merely forgotten to put the marijuana away. Schultz then admitted to smoking marijuana recently, but he denied possessing any more than a personal use amount.
Rhodd told Schultz that, if Schultz allowed the police to search the apartment without forcing them to apply for a search warrant, they “would be as [un]intrusive as possible” and that Schultz could walk around with them. Schultz consented to the search. His girlfriend objected, but Rhodd said that she could not interfere because she was not the tenant under the apartment lease. When Schultz appeared indecisive, Rhodd continued his effort to persuade him. Rhodd testified:
“I told him basically that either, one, I could get his consent to search and be as respectful as possible, or I could apply for a search warrant. I may or may not get one but, with the evidence that I had with the pest control worker seeing the marijuana out, with the smell of marijuana, with him admitting to having marijuana being smoked recently and having personal use in the house, I asked him to place himself in the shoes of the judge whether we could get a search warrant or not.”
Rhodd also told Schultz that the police were not interested in a small amount of marijuana but wanted to search for larger quantities. Schultz directed Rhodd to the apartment’s spare bedroom. Kinnett stayed in the living room with Schultz’ girlfriend.
In the spare bedroom, Schultz pointed to two large packages of marijuana on top of an antique record player. Rhodd later determined that the packages weighed approximately 920 grams. Rhodd also observed a scale. These observations caused Rhodd to decide that he and Kinnett were dealing with more than a personal use amount of marijuana.
Rhodd then asked Schultz to sit down at a dining room table. Schultz complied. Rhodd again explained the process of obtaining a search warrant and, again, had Schultz imagine the outcome of a warrant application. Rhodd then asked Kinnett to watch Schultz and his girlfriend while Rhodd left the apartment briefly to retrieve a form for a written consent to search.
Schultz signed the form after it was read aloud to him. He testified that he did so because the officers asked him to do so, and he admitted that neither officer shouted or threatened him. The form included a statement that Schultz could refuse to consent.
At some point during the encounter in the apartment, Schultz’ girlfriend asked if she could leave. The police told her she could not.
After signing the consent form, Schultz directed Rhodd to his bedroom closet, where he pulled out a large duffel bag. Inside, Rhodd discovered several empty sandwich bags and more than 1300 grams of marijuana packaged like bricks. Rhodd asked Schultz to go back to the living room and wait for him. Schultz complied. Rhodd continued to search the bedroom, where he found an empty cooler and detected a strong odor of marijuana. He also discovered two plastic bags of fake marijuana and a personal use amount of marijuana on a night stand.
Rhodd then asked Schultz if he had any firearms in the apartment. Schultz acknowledged that there were firearms in his bedroom closet. Rhodd retrieved two unloaded shotguns, one unloaded rifle, and an unloaded paintball gun from the closet. Rhodd then noticed the marijuana Kinnett had seen earlier on the coffee table.
Rhodd arrested Schultz and drove him to the police station. Schultz did not receive his Miranda warnings until after he arrived at the station.
Both officers testified that Schultz was veiy cooperative throughout the apartment encounter. They also testified that he never revoked his initial spoken consent to search. Rhodd said that, had Schultz asked the officers to leave, they would have done so, but then would have secured the premises and applied for a search warrant. Rhodd acknowledged that Schultz was not free to leave the apartment once the officers entered it and smelled marijuana.
The State charged Schultz with possession of marijuana with intent to sell pursuant to K.S.A. 2008 Supp. 65-4163(a)(3) and failure to affix a drug stamp pursuant to K.S.A. 79-5208.
Schultz moved to suppress the physical evidence uncovered at his apartment, as well as all statements he made before being given his Miranda warnings. Some of these statements had been made in response to questions from the officers, and some had not.
The district judge determined that Schultz’ initial spoken consent to search was voluntary, but the encounter with the officers was transformed into a custodial interrogation when Rhodd discovered the marijuana in the spare bedroom and began treating Schultz like a suspect. In view of Rhodd’s direction to Schultz to sit at the dining room table and the denial of the girlfriend’s request to leave, the district judge ruled that a reasonable person in Schultz’ position would not have believed he was free to leave the apartment. The district judge suppressed all physical evidence found after the point when the custodial interrogation began, as well as all incriminating statements made by Schultz between that point and the receipt of his Miranda warnings at the police station.
On the State’s appeal to our Court of Appeals, two members of the panel affirmed the district court’s decision, holding that Schultz was in custody and thus entitled to receive Miranda warnings as soon as Rhodd told Schultz to sit down at the dining room table. Slip op. at 11-13. The judges rejected the State’s assertion that the initial spoken consent was never revoked, apparently viewing the controlling issue as whether Schultz’ eventual signature on the written consent form was voluntary. The two members of the panel indicated that this voluntariness assessment would determine whether the written consent purged any taint arising from what they viewed as combined Fourth Amendment and Miranda violations. Concluding the written consent was involuntary, the judges observed:
“The officers were skillfully coercive in utilizing the technique of relating all of the facts they could use to request a search warrant and leading Schultz to the conclusion that one would be granted. They never told Schultz that such a search warrant could be obtained, but their conversation was designed to show that a judge would likely issue one. The change from a verbal consent to their desire to have Schultz sign a written consent shows that he was then being viewed differently by the officers.” Slip op. at 14.
The two judges also wrote that the State had advanced no persuasive authority to support its “bold argument” that nontestimonial evidence may be admitted even if a violation of a criminal defendant’s Fifth Amendment right has occurred. Slip op. at 19.
Court of Appeals Judge Thomas E. Malone concurred only in his fellow Court of Appeals judges’ result. Slip op. at 23.
We granted the State’s petition for review. The State argues that the Court of Appeals’ and district court’s decisions conflate Fourth and Fifth Amendment concepts. The State also asserts that, even if this court decides Schultz was in custody for purposes of Mir anda, the physical evidence seized during the ensuing search should be admissible because the fruit of the poisonous tree doctrine does not apply when the Fifth Amendment rather than the Fourth Amendment is at issue.
Standards of Review
An appellate court applies a mixed standard of review when deciding motions to suppress. First, without reweighing the evidence, the court determines whether there is substantial competent evidence to support the trial court’s factual findings. State v. Morton, 286 Kan. 632, 638-39,186 P.3d 785 (2008). Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594-95,153 P.3d 1257 (2007). Second, the court “conducts a de novo review of the district court’s legal conclusion drawn from those facts. [Citation omitted.]” Morton, 286 Kan. at 639.
Custodial Interrogation
The first issue we must address is whether Schultz was subjected to a custodial interrogation. We have recognized that,
“ ‘ “[t]o reduce the risk of a coerced confession and to implement the Self-Incrimination Clause” (Chavez v. Martinez, 538 U.S. 760, 790, 155 L. Ed. 2d 984, 123 S. Ct. 1994 [2003] [Kennedy, J., concurring in part and dissenting in part]), the United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602[, reh. denied 385 U.S. 890] (1966), concluded that states may not use statements stemming from a custodial interrogation of a defendant unless the State demonstrates the use of procedural safeguards to secure the defendant’s privilege against self-incrimination.’ ” Morton, 286 Kan. at 639.
Consequently, Miranda warnings are required in police encounters “ ‘ “where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ ” ’ ” Morton, 286 Kan. at 639 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 50 L. Ed. 2d 714, 97 S. Ct. 711 [1977]).
There are two parts to the inquiry on whether a custodial interrogation occurred. First, a court determines the circumstances surrounding the interrogation. Second, the court decides whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation. Again, as with motions to suppress generally, an appellate court’s first inquiiy is limited to discerning whether substantial competent evidence supports the district court’s findings of fact. We review a district court’s second determination on the legal conclusion drawn from the totality of the circumstances de novo. Morton, 286 Kan. at 638-39.
Factors to be considered on the existence of a custodial interrogation include: (1) the interrogation’s place and time; (2) the interrogation’s duration; (3) the number of police officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) the status of the person being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by the police to the interrogation location or arrived under his or her own power; and (8) the interrogation’s result, i.e., whether the person was ultimately allowed to leave, detained further, or arrested. No one factor outweighs another, nor do the factors bear equal weight. Eveiy case must be analyzed on its own particular facts. Morton, 286 Kan. at 640.
The record before us contains ample substantial competent evidence to support the district judge’s legal conclusion that Schultz was subjected to a custodial interrogation, even though the questioning took place in Schultz’ apartment. The two uniformed officers kept Schultz and his girlfriend under constant observation as soon as they entered the apartment and saw them. Rhodd told Schultz to sit down at the dining room table; later he would tell Schultz to stay in the living room while he completed his search. Rhodd also asked Kinnett to watch Schultz and his girlfriend while Rhodd obtained the consent form. The officers also denied the girlfriend’s request to leave the apartment. There can be little question, based on Rhodd’s testimony, that Schultz was a felony suspect, not a mere witness, at least as soon as the marijuana in the spare bedroom was found. The site of the interrogation and Schultz’ mode of arrival there are not persuasive in either direction. Although Schultz might ordinarily be expected to feel and exercise a certain amount of control over events in his apartment, he and any other reasonable person would be unlikely to leave once police officers were standing inside. On the last factor, the interrogation and search led to Schultz’ arrest and trip to the police station, not to his release. Moreover, although we view the situation from the perspective of a reasonable person in Schultz’ circumstances rather than from the officers’ subjective viewpoints, it is noteworthy that Rhodd and Kinnett acknowledged Schultz would not have been free to leave at any point after they smelled marijuana. This occurred immediately upon their entry into the apartment.
The wisest course for the officers would have been to give Schultz his Miranda warnings as soon as they restricted his free movement from their presence and before they began to ask him questions. Their failure to do so at least theoretically imperiled the admissibility of any evidence they gathered after Schultz was instructed to sit down at the dining room table.
We now turn to suppression.
Suppression
Analysis of the suppression issue presented by this case must proceed on two independent tracks. Schultz challenged admission of both the statements he made and the physical evidence the police gathered. The United States Supreme Court treats the two types of evidence differently when there has been a Fifth Amendment violation through a failure to give Miranda warnings. The parties do not argue, and thus we do not address, any provision of the Kansas Constitution.
Statements
The district judge decided to suppress Schultz’ statements made after he was told to sit at the table. If a suspect subjected to custodial interrogation does not receive Miranda warnings, any resulting incriminating statements are generally inadmissible in the prosecution’s case-in-chief during a subsequent trial. See Miranda, 384 U.S. at 467; State v. Ewing, 258 Kan. 398, 402-04, 904 P.2d 962 (1995); see also Chavez v. Martinez, 538 U.S. 760, 766-69, 155 L. Ed. 2d 984, 123 S. Ct. 1994 (2003) (core protection of Fifth Amendment Self-Incrimination Clause prevents compelled testimony). The absence of Miranda warnings during a custodial interrogation raises a nearly irrebuttable presumption of police coercion of ensuing statements; introduction of such coerced statements into evidence impairs a criminal defendant’s Fifth Amendment rights. See Chavez, 538 U.S. at 766-69; United States v. Hubbell, 530 U.S. 27, 49-56, 147 L. Ed. 2d 24, 120 S. Ct. 2037 (2000) (Thomas and Scalia, JJ., concurring).
Under this well-established law, the district judge was correct when he suppressed the incriminating statements made by Schultz between the time he was told to sit at the table and the time he received his Miranda warnings. Nothing about this case defeats the presumption that admission of the statements in the prosecution’s case-in-chief would unconstitutionally compel Schultz to testify against himself.
Physical Evidence
At this stage of this case, there appears to be no actual controversy between the parties on whether Schultz’ initial spoken consent to search was voluntaiy. Although the officers engaged in what amounted to a game of “You Be The Judge,” Schultz clearly got the message that he had the power to force a warrant procedure. There is no evidence of an explicit revocation of this initial spoken consent at any time during the encounter at Schultz’ apartment. Counsel for Schultz stated repeatedly at oral argument before this court that there was no cross-appeal on this point.
The issue thus becomes whether the later, unwarranted custodial interrogation of Schultz automatically converted what was an authorized search into an unauthorized search by operation of law — either because it vitiated the initial spoken consent, polluted the written consent, or both. In short, we must decide whether the officers’ failure to give Schultz Miranda warnings until they took him to the station compels suppression of any physical evidence discovered by them at the apartment after the custodial interrogation began.
This question is fully answered by the United States Supreme Court’s decision in United States v. Patane, 542 U.S. 630, 159 L. Ed. 2d 667, 124 S. Ct. 2620 (2004), a decision cited by neither the State nor Schultz. In Patane, five members of the Supreme Court agreed that a mere lack of Miranda warnings does not, under the fruit of the poisonous tree doctrine developed to vindicate Fourth Amendment rights in Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), force suppression of physical evidence that comes to light because of an unwarned custodial interrogation. Patane, 542 U.S. at 636-37, 639-45. (Justice Thomas, writing for himself, two other members of the Court; Justice Kennedy, concurring in judgment for himself, Justice O’Connor).
In Patane, defendant Samuel Francis Patane interrupted an investigating detective’s recitation of the Miranda warnings, asserting familiarity with them. He continued to talk with the detective and was eventually prosecuted successfully for unlawful possession of a pistol. He had orally acknowledged having the gun and then allowed it to be retrieved from his residence. Justice Thomas, writing for himself, Chief Justice Rehnquist, and Justice Scalia, thoroughly reviewed and reinforced the limits of the remedy afforded when Miranda rights have not been recited:
“[T]he Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary-statement. Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun does not apply. . . .
“[Part] II
“The Self-Incrimination Clause provides: ‘No person . . . shall be compelled in any criminal case to be a witness against himself.’ U.S. Const., Amdt. 5. We need not decide here the precise boundaries of the Clause’s protection. For present purposes, it suffices to note that tire core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial. See, e.g., Chavez v. Martinez, 538 U.S. [at] 764-68 (plurality opinion); id., at 777-79 (SOUTER, J., concurring in judgment); 8 J. Wig-more, Evidence § 2263, p. 378 (J. McNaughton rev. ed. 1961) (explaining that the Clause ‘was directed at the employment of legal process to extract from the person’s oton lips an admission of guilt, which would thus take the place of other evidence’); see also United States v. Hubbell, 530 U.S. [at] 49-56 (2000) (THOMAS, J., concurring) (explaining that the privilege might extend to bar the compelled production of any incriminating evidence, testimonial or otherwise). The Clause cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements. See, e.g., id., at 34 (noting that the word ‘ “witness” ’ in the Self-Incrimination Clause limits the relevant category of compelled incriminating communications to those that are “testimonial” in character’); id., at 35 (discussing why compelled blood samples do not violate the Clause; cataloging other examples and citing cases); [Oregon v.] Elstad, 470 U.S. [298], 304, [84 L. Ed. 2d 222], 105 S. Ct. 1285 [1985] (‘The Fifth Amendment, of course, is not concerned with nontestimonial evidence’); id., at 306-307 (‘The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony’); Withrow v. Williams, 507 U.S. 680, 705[, 123 L. Ed. 2d 407, 113 S. Ct. 1745] (1993) (O’CONNOR, J., concurring in part and dissenting in part) (describing ‘true Fifth Amendment claims [as] the extraction and use of compelled testimony’); New York v. Quarles, 467 U.S. 649, 665-672, and n. 4[, 81 L. Ed. 2d 550, 104 S. Ct. 2626] (1984) (O’CONNOR, J., concurring in judgment in part and dissenting in part) (explaining that the physical fruit of a Miranda violation need not be suppressed for these reasons).
“To be sure, the Court has recognized and applied several prophylactic rules designed to protect the core privilege against self-incrimination. See, e.g., Chavez, supra, at 770-772 (plurality opinion). For example, although the text of the Self-Incrimination Clause at least suggests that ‘its coverage [is limited to] compelled testimony that is used against the defendant in the trial itself,’ Hubbell, supra, at 37, potential suspects may, at times, assert the privilege in proceedings in which answers might be used to incriminate them in a subsequent criminal case. See, e.g., United States v. Balsys, 524 U.S. 666, 671-672[, 141 L. Ed. 2d 575, 118 S. Ct. 2218] (1998); Minnesota v. Murphy, 465 U.S. 420, 426[, 79 L. Ed. 2d 409, 104 S. Ct. 1136] (1984); cf. Kastigar v. United States, 406 U.S. 441[, 32 L. Ed. 2d 212, 92 S. Ct. 1653] (1972) (holding that the Government may compel grand jury testimony from witnesses over Fifth Amendment objections if the witnesses receive ‘use and derivative use immunity’); Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U.S. 280, 284[, 20 L. Ed. 2d 1089, 88 S. Ct. 1917] (1968) (allowing the Government to use economic compulsion to secure statements but only if the Government grants appropriate immunity). We have explained that ‘[t]he natural concern which underlies [these] decisions is that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage.’ [Michigan v.] Tucker, 417 U.S. [433], 440-441, [41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974)].
“Similarly, in Miranda, the Court concluded that the possibility of coercion inherent in custodial interrogations unacceptably raises the risk that a suspect’s privilege against self-incrimination might be violated. See Dickerson [v. United States], 530 U.S. [428,] 434-435[, 147 L. Ed. 2d 405, 120 S. Ct. 2326 (2001)]; Miranda, 384 U.S., at 467. To protect against this danger, the Miranda rule creates a presumption of coercion, in the absence of specific warnings, that is generally irrebuttable for purposes of the prosecution’s case in chief.
“But because these prophylactic rules (including the Miranda rule) necessarily sweep beyond the actual protections of the Self-Incrimination Clause, see, e.g., Withrow, supra, at 690-691; Elstad, supra, at 306, any further extension of these rules must be justified by its necessity for the protection of the actual right against compelled self-incrimination, Chavez, supra, at 778 (SOUTER, J., concurring in judgment) (requiring a * “powerful showing” ’ before ‘expand[ing] . . . tire privilege against compelled self-incrimination’). Indeed, at times the Court has declined to extend Miranda even where it has perceived a need to protect the privilege against self-incrimination. See, e.g., Quarles, supra, at 657 (concluding ‘that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination’).
“It is for these reasons that statements taken without Miranda warnings (though not actually compelled) can be used to impeach a defendant’s testimony at trial, see Elstad, supra, at 307-308; Harris v. New York, 401 U.S. 222[, 28 L. Ed. 2d 1, 91 S. Ct. 643] (1971), though the fruits of actually compelled testimony cannot, see New Jersey v. Portash, 440 U.S. 450, 458-459[, 59 L. Ed.2d 501, 99 S. Ct. 1292] (1979). More generally, the Miranda rule ‘does not require that the statements [taken without complying with the rule] and their fruits be discarded as inherently tainted,’ Elstad, 470 U.S., at 307. Such a blanket suppression rule could not be justified by reference to the ‘Fifth Amendment goal of assuring trustworthy evidence’ or by any deterrence rationale, id., at 308; see Tucker, supra, at 446-449; Harris, supra, at 225-226, and n. 2, and would therefore fail our close-fit requirement.
“Furthermore, the Self-Incrimination Clause contains its own exclusionary rule. It provides that ‘[n]o person ... shall be compelled in any criminal case to be a witness against himself.’ Arndt. 5. Unlike the Fourth Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing. We have repeatedly explained ‘that those subjected to coercive police interrogations have an automatic protection from die use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.’ Chavez, 538 U.S., at 769 (plurality opinion) (citing, for example, Elstad, supra, at 307-308). This explicit textual protection supports a strong presumption against expanding the Miranda rule any further. Cf. Graham v. Connor, 490 U.S. 386[, 104 L. Ed. 2d 443, 109 S. Ct. 1865] (1989).
“Finally, nothing in Dickerson, including its characterization of Miranda as announcing a constitutional rule, 530 U.S., at 444, changes any of these observations. Indeed, in Dickerson, the Court specifically noted that the Court’s ‘subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming [Miranda]’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.’ Id., at 443-444. This description of Miranda, especially the emphasis on the use of ‘unwarned statements ... in the prosecution’s case in chief,’ makes clear our continued focus on the protections of the Self-Incrimination Clause. The Court’s reliance on our Miranda precedents, including both Tucker and Elstad, see, e.g., Dickerson, supra, at 438, 441, further demonstrates the continuing validity of those decisions. In short, nothing in Dickerson calls into question our continued insistence that the closest possible fit be maintained between the Self-Incrimination Clause and any rule designed to protect it.
“[Part] III
“Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule. So much was evident in many of our pre-Dickerson cases, and we have adhered to this view since Dickerson. See Chavez, 538 U.S., at 772-773 (plurality opinion) (holding that a failure to read Miranda warnings did not violate the respondent’s constitutional rights); 538 U.S., at 789 (KENNEDY, J., concurring in part and dissenting in part) (agreeing ‘that failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues’); Elstad, supra, at 308; Quarles, 467 U.S., at 654; cf. Chavez, supra, at 777-779 (SOUTER, J., concurring in judgment). This, of course, follows from the nature of the right protected by the Self-Incrimination Clause, which the Miranda rule, in turn, protects. It is ‘a fundamental trial right.’ Withrow, 507 U.S., at 691 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 264[, 108 L. Ed. 2d 222, 110 S. Ct. 1056] (1990)). See also Chavez, 538 U.S., at 766-768 (plurality opinion); id., at 790 (KENNEDY, J., concurring in part and dissenting in part) (‘The identification of a Miranda violation and its consequences, then, ought to be determined at trial.’)
“It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, ‘[t]he exclusion of unwarned statements ... is a complete and sufficient remedy’ for any perceived Miranda violation. Chavez, supra, at 790.
“Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the ‘fruit of the poisonous tree’ doctrine of Wong Sun, 371 U.S., at 488. See also Nix v. Williams, 467 U.S. 431, 441[, 81 L. Ed. 2d 377, 104 S. Ct. 2501] (1984) (discussing the exclusionary rule in the Sixth Amendment context and noting that it applies to ‘illegally obtained evidence [and] other incriminating evidence derived from [it]’ (emphasis added)). It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts.
“[Part] IV
“In the present case, the [Tenth Circuit] Court of Appeals, relying on Dickerson, wholly adopted the position that the taking of unwarned statements violates a suspect’s constitutional rights. [United States v. Patane,] 304 F.3d [1013], at 1028-1029 [10th Circuit (2002)]. And, of course, if this were so, a strong deterrence-based argument could be made for suppression of tire fruits. See, e.g., Nix, supra, at 441-444; Wong Sun, supra, at 484-486; cf. Nardone v. United States, 308 U.S. 338, 341[, 84 L. Ed. 307, 60 S. Ct. 266 (1939).
“But Dickersons characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it. And there is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent’s Glock [his handgun], does not implicate the Self-Incrimination Clause. The admission of such fruit presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal trial. In any case, ‘[t]he exclusion of unwarned statements ... is a complete and sufficient remedy’ for any perceived Miranda violation. Chavez, supra, at 790 (KENNEDY, J., concurring in part and dissenting in part). See also H. Friendly, Benchmarks 280-281 (1967). There is simply no need to extend (and therefore no justification for extending) die prophylactic rule of Miranda to this context.
“Similarly, because police cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement, as the Court of Appeals believed, 304 F.3d, at 1028-1029. Our decision not to apply Wong Sun to mere failures to give Miranda warnings was sound at the time Tucker and Elstad were decided, and we decline to apply Wong Sun to such failures now.
“The Court of Appeals ascribed significance to the fact that, in this case, there might be ‘little [practical] difference between [respondent’s] confessional statement’ and the actual physical evidence. 304 F.3d, at 1027. The distinction, the court said, ‘appears to make little sense as a matter of policy.’ Ibid. But, putting policy aside, we have held that ‘[t]he word “witness” in the constitutional text limits the’ scope of the Self-Incrimination Clause to testimonial evidence. Hubbell, 530 U.S., at 34-35. The Constitution itself makes the distinction. And although it is true that the Court requires the exclusion of the physical fruit of actually coerced statements, it must be remembered that statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination. See Part II, supra. For the reasons discussed above, we decline to extend that presumption further.” Patane, 542 U.S. at 636-44.
Justice Kennedy, writing for himself and Justice O’Connor in Patane and concurring in the judgment of their three colleagues, stated:
“In . . . Elstad, 470 U.S. [at 308], . . . Quarles, 467 U.S. [at 671], and Harris. .. , 401 U.S. [at 223-26], evidence obtained following an unwarned interrogation was held admissible. This result was based in large part on our recognition that die concerns underlying the Miranda [citation omitted] rule must be accommodated to other objectives of.the criminal justice system. I agree with the plurality that Dickerson [citation omitted] did not undermine these precedents and, in fact, cited them in support. Here, it is sufficient to note that the Government presents an even stronger case for admitting the evidence obtained as the result of Patane’s unwarned statement. Admission of nontestimonial physical fruits (the Glock [handgun] in this case), even more so than the postwaming statements to the police in Elstad and . . . Tucker [citation omitted] does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself. In light of the important probative value of rehable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect’s rights during an in-custody interrogation. Unlike the plurality, however, I find it unnecessary to decide whether the detective’s failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is lany]thing to deter’ so long as the unwarned statements are not later introduced at trial. Ante, at 641-42.” Patane, 542 U.S. at 644-45 (Kennedy, J., concurring).
Although we have not previously applied Patane in Kansas, the approaches taken by federal courts of appeals and in at least two of our sister states are consistent with it. See United States v. Shlater, 85 F.3d 1251, 1256 (7th Cir. 1996) (consent to search home not interrogation under Miranda, even though defendant’s consent provided after request for attorney pursuant to Fifth Amendment); United States v. Hidalgo, 7 F.3d 1566, 1568 (11th Cir. 1993) (Fifih Amendment does not apply even though defendant consented to search after receiving Miranda warnings); United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 1993) (incriminating evidence discovered during unwarned custodial investigation may be introduced into evidence, as defendant voluntarily consented to search); United States v. Rodgriguez-Garcia, 983 F.2d 1563, 1567-68 (10th Cir. 1993) (incriminating evidence may be admitted even though defendant consented to search after receiving Miranda warnings); Cody v. Solem, 755 F.2d 1323, 1330 (8th Cir. 1985) (consent to search not incriminating statement); Garcia v. State, 979 So. 2d 1189, 1193-94 (Fla. Dist. App. 2008) (Fifth Amendment protects only testimonial evidence; “[fjederal courts are in accord that a consent to search is not an interrogation requiring Miranda warnings.”); State v. Morato, 619 N.W.2d 655, 662 (S.D. 2000) (consent to search not an incriminating statement).
Moreover, this court has held that a valid consent to search does not require Miranda warnings. State v. Ulriksen, 210 Kan. 795, 798, 504 P.2d 232 (1972) (no previous warnings required); State v. Stein, 203 Kan. 638, 639, 456 P.2d 1 (1969) (same); State v. McCarty, 199 Kan. 116, 119-20, 427 P.2d 616 (1967), cert. denied 392 U.S. 308 (1968) (officer not required to warn suspect during consensual search that anything discovered during search may be used as evidence against him, her).
Because Schultz’ initial spoken consent was voluntary and unrevoked and the absence of Miranda warnings did not convert the officers’ authorized search into an unauthorized one as a matter of law, it was not necessary for the officers to obtain a second, written or spoken consent. Furthermore, no second voluntary consent was needed to purge prior taint arising out of either a Fourth Amendment violation or, under Patane, the officers’ failure to give timely Miranda warnings.
The district court is affirmed in part and reversed in part; the Court of Appeals is affirmed in part and reversed in part; and we remand this case to the district court with directions for further proceedings consistent with this opinion.
Rosen, J., not participating.
Marquardt, J., assigned.
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The opinion of the court was delivered by
Biles, J.:
Gary L. Momingstar, Jr., appeals his convictions and sentences for one count of rape of a child under the age of 14 contrary to K.S.A. 21-3502(a)(2); one count of aggravated battery contrary to K.S.A. 21-3414; one count of abuse of a child contrary to K.S.A. 21-3609; and one count of aggravated endangering a child contrary to K.S.A. 21-3608a. For his conviction of rape of a child under the age of 14, Momingstar received a sentence of life imprisonment without the possibility of parole for 25 years and post-release supervision for life pursuant to K.S.A. 21-4643, commonly referred to as Jessica’s Law. He was sentenced to 48 months, 34 months, and 7 months for the remaining convictions. All sentences were ordered to run concurrently.
For the reasons explained below, we affirm the convictions but vacate Momingstar’s off-grid severity level sentence under Jessica’s Law for rape of a child under the age of 14. We remand for re-sentencing on that count under the Kansas Sentencing Guidelines Act (KSGA). Our rationale for ordering this resentencing is consistent with this court’s recent dispositive holdings in State v. Bello, 289 Kan. 191, 199-200, 211 P.3d 139 (2009), and State v. Gonzales, 289 Kan. 351, 370-71, 212 P.3d 215 (2009). Both decisions conclude that to sentence a defendant to an off-grid severity level sentence under Jessica’s Law for aggravated criminal sodomy under K.S.A. 21-3506 or aggravated indecent liberties with a child under K.S.A. 21-3504, a defendant’s age must be determined by a jury. The relevant reasoning in each of those cases is applicable here.
We address three arguments raised by Momingstar in this appeal: (1) whether the jury was required to determine Momingstar was 18 years of age or older before convicting him of rape under K.S.A. 21-3502, or before sentencing him under K.S.A. 21-4643(a); (2) whether the rape instruction was clearly erroneous because it omitted Morningstar’s age as an element of rape; and (3) whether there was prosecutorial misconduct during closing arguments. We decline to address Momingstar’s alternative arguments regarding a disproportionate/cruel or unusual sentence and the district court’s denial of his request for a downward departure sentence.
Facts and Procedural Background
On October 13, 2006, Momingstar was home watching B.M., his 6-month-old daughter. Momingstar called B.M.’s mother at work. She testified Momingstar was hysterical, and he asked her to come home because B.M. was bleeding. When the mother got to the apartment, B.M. was naked and lying in an empty bathtub. She put a diaper on B.M., grabbed a blanket, and drove B.M. to the hospital. Later, she told a detective that Momingstar refused to go with them to the hospital. The examining doctor contacted police for a sexual abuse evaluation after determining there was a tear in B.M.’s vaginal wall.
A sexual assault nurse testified B.M. had a 1-centimeter laceration starting at the hymen that “went all the way through or down to her rectum.” This nurse testified she had been involved in 188 prior sexual assault cases, and she described B.M.’s injuries as the worst trauma she had ever seen to a child. She also testified the injury was caused by a blunt force trauma extensive enough to cause B.M.’s vaginal skin to rip. Disputing Momingstar’s explanation for B.M.’s injuries, the nurse testified there would not be enough force used during a diaper change to cause such damage.
The pediatric surgeon who treated B.M. testified the infant had a “grade three perineal laceration” of the tissues at the back of the vagina and of the anal sphincter that did not extend into the rectum. He described the injury as bad and extremely rare in a child. He testified B.M.’s injury was similar to one that would “occur perhaps after a precipitous delivery in a woman . . . who had not delivered before.”
Momingstar told B.M.’s mother his finger slipped inside B.M. while he was changing her diaper. Momingstar told a detective B.M. had a messy diaper and “in the process of changing that diaper that his daughter had tensed up and that his finger . . . went inside.” He also told the detective that he was changing the diaper in a bedroom, and when B.M. became injured, he tried to control the bleeding with wipes and paper towels. In the process, Momingstar told the detective he put B.M. in the bathtub so he could call B.M.’s mother.
The relevant portion of the jury instruction on the rape charge came from PIK Crim. 3d 57.01 and stated:
“The defendant is charged in Count 1 with the crime of rape. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant had sexual intercourse with B.D.M.
“2. That B.D.M. was under 14 years of age when the act of sexual intercourse occurred; and
“3. That this act occurred on or about the 13th day of October, 2006, in Sumner County, Kansas.”
Momingstar did not object to this instruction at trial. After Momingstar was convicted as charged, he filed a motion for new trial, arguing the verdict was contrary to the evidence. He also pursued a motion for judgment of acquittal, arguing there was reasonable doubt. Both motions were denied. Momingstar filed a motion for a downward departure sentence, which was also denied. Momingstar timely appealed to this court. Our jurisdiction is proper under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
(1) Is Momingstar’s conviction valid?
Momingstar argues his age — specifically, whether he was 18 years of age or older at the time the rape was committed — is an element of rape under K.S.A. 21-3502(a)(2) and under the enhanced sentencing provisions under K.S.A. 21-4643(a)(l). He argues there was insufficient evidence to convict him because the State did not introduce any evidence that he was 18 years of age or older.
The State does not contest Momingstar s claim that it did not introduce evidence regarding Momingstar’s age during trial. Similarly, Momingstar does not dispute he was 18 years of age or older. The complaint listed Momingstar’s year of birth as 1985. In his financial affidavit requesting a court-appointed attorney, Momingstar wrote he was born on June 24, 1985, making him 21 years old at the time of the offense.
Therefore, the issues regarding defendant’s age are: (1) whether his age is an element of rape under K.S.A. 21-3502(a)(2); and (2) whether his age must be proven to the jury in order to sentence him under Jessica’s Law in accordance with the dictates of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Because these questions concern statutory and constitutional interpretation, our review is unlimited. Bello, 289 Kan. at 195, 211 P.3d at 142; State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008) (statutory interpretation is a question of law subject to de novo review); State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007) (constitutionality of sentencing statute is a question of law subject to unlimited review).
Momingstar was convicted of rape under K.S.A. 21-3502(a)(2). The statute provides in pertinent part:
“(a) Rape is:
(2) sexual intercourse with a child who is under 14 years of age;
“(c) Except as provided further, rape as described in subsection (a)(1) or (2) is a severity level 1, person felony. Rape as described in subsection (a)(2), when the offender is 18 years of age or older, is an off-grid person felony.” (Emphasis added.)
K.S.A. 21-3501(1) defines sexual intercourse as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.” The sentences for off-grid crimes are set forth in K.S.A. 21-4706, which provides in relevant part:
“(d) As identified in K.S.A. . . . 21-3502, . . . and amendments thereto, if the offender is 18 years of age or older and the victim is under 14 years of age, such violations are off-grid crimes for the purposes of sentencing. Except as provided in K.S.A. 21-4642, and amendments thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 21-4643, and amendments thereto.” (Emphasis added.)
Momingstar was sentenced under K.S.A. 21-4643(a)(l), which states:
“[A] defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years ....
“(B) rape, as defined in subsection (a)(2) of K.S.A. 21-3502, and amendments thereto.”
The same crime-defining statutory structure was addressed recently in Bello. 289 Kan. at 198, 211 P.3d at 144. In Bello, the defendant was convicted of aggravated criminal sodomy under K.S.A. 21-3506 and aggravated indecent liberties with a child under K.S.A. 21-3504. This court noted each of those statutes set forth two separate severity levels of the offense applicable to the acts the defendant committed: one a KSGA nondrug grid box offense and the other an off-grid offense. 289 Kan. at 198, 211 P.3d at 144. The court reasoned:
“The determination of which offense applies turns on whether the offender was age 18 or older when committing the criminal act.
The structure of the crime-defining statutes here is akin to that of the theft statute, K.S.A. 21-3701, which describes varying levels of offenses based upon the additional fact of the stolen property’s value. See State v. Stephens, 263 Kan. 658, Syl. ¶ 2, 953 P.2d 1373 (1998) (degree of a theft crime determined by the value of the property stolen); State v. Piland, 217 Kan. 689, Syl. ¶ 3, 538 P.2d 666 (1975) (where value of stolen property is in issue, trial court should instruct the jury with respect to the element of value and require a jury finding as to value). Thus, while K.S.A. 21-4643 reiterates the age factor which elevates the sentence for aggravated criminal sodomy or aggravated indecent liberties with a child to a hard 25 life sentence, that severity-enhancing factor is initially identified in the statutes defining the respective crimes.” 289 Kan. at 198, 211 P.3d at 144.
Similarly, the express terms of K.S.A. 21-3502(a)(2) contain two elements of rape: (1) sexual intercourse; and (2) with a child who is under 14 years of age. The defendant’s age is not an element under this statute. It is the enhanced sentencing statute, K.S.A. 21-4643, that requires the additional factual determination about the defendant’s age before a court may impose a life sentence. Accordingly, the Bello court’s logic is applicable to Momingstar’s conviction for rape of a child under 14 years of age.
Omitting the defendant’s age from a complaint or from jury instructions does not eliminate the existence of the crime of rape of a child under 14 years of age or invalidate a criminal conviction for that offense. But the severity level for the offense is the applicable KSGA severity level stated in K.S.A. 21-3502(c) rather than an off-grid offense. Momingstar’s conviction for rape of a child under 14 years of age is valid.
(2) Is Momingstar’s off-grid sentence valid?
A question remains as to whether the failure to instmct the jury on Momingstar’s age means the aggravated sentence under Jessica’s Law is invalid. When, as here, a party did not object to the instruction at trial, this court reviews the instruction for clear error. See State v. Cooperwood, 282 Kan. 572, 581, 147 P.3d 125 (2006). Reversal is proper if and only if there was a real possibility the juiy would have returned a different verdict. 282 Kan. at 581. For this issue, we again turn to the rationale in Bello, where the court answered this question by applying Apprendi. The Bello court explained:
“In Apprendi, the Supreme Court clarified that merely because a state legislature places a sentence enhancing factor within the sentencing provisions of the criminal code does not mean that the factor is not an essential element of the offense. Apprendi, 530 U.S. at 495. If a ‘sentencing factor’ is used to increase a defendant’s sentence beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” (Emphasis omitted.) 289 Kan. at 199, 211 P.3d at 144.
Based on Apprendi and its progeny, the Bello court stated, “a defendant’s right to a jury trial is violated where the judge makes the sentence enhancement factfinding, rather than the jury.” 289 Kan. at 199, 211 P.3d at 144. The Bello court concluded, “[T]he fact that Bello was age 18 years or older at the time he committed the offense needed to have been submitted to the jury and proved beyond a reasonable doubt.” 289 Kan. at 199, 211 P.3d at 145 (citing State v. Gould, 271 Kan. 394, Syl. ¶ 2, 23 P.3d 801 [2001]).
In Momingstar s case, the State also failed to present evidence of his age at trial, and the jury was not instructed to make a finding regarding Momingstar s age. Applying the Bello holding to the statutes and facts applicable here, we find that when a defendant is charged with an off-grid severity level offense of rape of a child under 14 years of age, the defendant’s age is an element that must be submitted first to the jury and proven beyond a reasonable doubt before a defendant can be sentenced for the off-grid severity level offense specified in K.S.A. 21-4643.
In other words, the instructions issued do not amount to clear error because the rape conviction is valid. But the recommended rape instmction in PIK Crim. 3d 57.01, which was used in Momingstar’s case, is insufficient to sentence a defendant to the off-grid offense under K.S.A. 21-4643.
Momingstar’s conviction is upheld, but the sentence imposed on him under K.S.A. 21-4643 is vacated. The case is remanded for resentencing on Count One of the complaint (rape of a child under 14 years of age) as a felony on the KSGA nondrug sentencing grid.
(3) Was there Prosecutorial Misconduct?
Next, Momingstar argues the prosecutor committed misconduct during closing arguments when the prosecutor commented that Momingstar left B.M. unsupervised in the bathtub. Defendant argues these statements referred to evidence that was not in the record, and implied Momingstar attempted to inflict additional harm on the child. We find this argument fails under the prosecutorial misconduct test because the statements at issue did not exceed the wide latitude given prosecutors during closing arguments and the statements were not plain error.
This prosecutorial misconduct claim arises from the following statements made during closing arguments:
“The defendant caused this injury by penetrating [B.M.’s] vagina with such a force that her genitals ripped. Then he laid her in a bathtub and left her alone. During this critical medical emergency, the defendant doesn’t take [B.M.] to the hospital. He doesn’t call 911. He doesn’t even stay next to her and comfort her. What he does do is he leaves her alone in the bathtub. He calls B.M.’s mother to come home from work and take care of the situation he caused. Then he cleans up the mess.”
Momingstar did not contemporaneously object to the State’s comments, but a timely objection is not required to preserve a prosecutorial misconduct claim that occurs during closing statements. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009); State v. Decker, 288 Kan. 306, 314, 202 P.3d 669 (2009). The court employs a two-step analysis regardless of whether a timely objection is made.
First, the court determines whether the prosecutor’s statements exceeded the wide latitude of language and manner afforded a prosecutor. Inherent in this latitude is the prosecutor’s freedom to argue reasonable inferences from the evidence. Second, the court must determine whether the prosecutor’s comments constitute plain error. This occurs when the statements are so gross and flagrant that they prejudiced the jury against the defendant, denying the defendant a fair trial. This requires examination of three factors: (1) whether the misconduct is so gross and flagrant it denied the accused a fair trial; (2) whether the remarks show ill will; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the prosecutor’s statements would not have much weight in the jurors’ minds. Decker, 288 Kan. at 314-15; see State v. Tosh, 278 Kan. 83, 97-98, 91 P.3d 1204 (2004). None of these three factors is controlling. Further, the third factor can never override the first two factors until the harmlessness tests of both K.S.A. 60-261 (prosecutor’s statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (error had little, if any, likelihood of changing the outcome of trial), have been met. State v. Scott, 286 Kan. 54, 78-79, 183 P. 3d 801 (2008).
Momingstar argues the statements fell outside this wide latitude because, he alleges, there is no evidence Momingstar left B.M. in the bathtub unsupervised. On the other hand, the State argues the statements are a reasonable inference based on the evidence. The record reflects a detective testified Momingstar told her the following:
“[Momingstar] talked about using wipes as well as getting paper towels or using paper towels. He then talked about how he had taken his daughter and put her in the bathtub. . . . He talked about calling [B.M.’s mother] . . . at work and how she had come home shortly thereafter.”
We believe it is reasonable to infer from the detective’s testimony that she was reciting the sequence of events as given by Momingstar. It also is reasonable to infer Momingstar left the bathroom to call B.M.’s mother. Therefore, the prosecutor did not commit misconduct.
But even if these statements exceeded the prosecutor’s wide latitude, they still were not plain error that prejudiced Momingstar’s right to a fair trial. There is no evidence of ill will, and the evidence against Momingstar was substantial. Momingstar admitted he caused B.M.’s injuries. There was significant medical testimony that a finger slip during a diaper change would not cause the injury B.M. suffered, which was the excuse Momingstar gave. He also did not accompany his injured daughter to the emergency room. The prosecutor’s statements were designed to communicate a callous reaction Momingstar arguably had to B.M.’s injuries. In light of the substantial evidence against him, the prosecutor’s statements did not prejudice Momingstar’s defense.
Finally, and because it was briefly addressed in oral argument in response to a specific question, we note Momingstar references a tangential issue in his brief that the State failed to properly identify him at trial. But this is raised only in conjunction with the State’s failure to establish that Momingstar was 18 years of age or older, and mentioned only under the section of Momingstar’s brief dealing with the defendant’s age. No real argument is advanced, nor was there any citation to relevant case law in this regard, so we will not consider it. Issues raised in passing that are not supported with argument or cited authority are deemed waived. State v. Earned, 281 Kan. 1023, 1048, 135 P.3d 1169 (2006).
In fight of our holding, it is unnecessary to address Momingstar’s alternative arguments regarding a disproportionate/cruel or unu sual sentence and the district court’s denial of his request for a downward departure sentence.
Convictions affirmed, sentence as to Count One of the complaint (rape of child under 14 years of age) vacated, and case remanded for resentencing as to Count One.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Todd A. McGraw, of Independence, Missouri, an attorney admitted to the practice of law in Missouri in 2000, and in Kansas in 2001. The respondent’s license to practice law in the state of Kansas has been administratively suspended since October 6,2003, for failure to fulfill the minimum continuing legal education requirements and failure to pay the noncompliance continuing legal education fee.
In February 2006, the Missouri Supreme Court suspended respondent’s license to practice law in Missouri for 1 year, based on respondent’s plea of guilty in January 2006, to a charge of possession of methamphetamine, a class C felony. The respondent failed to report to the Disciplinary Administrator that his license to practice law in Missouri had been suspended. In March 2006, the Missouri Office of the Chief Disciplinary Counsel informed the Disciplinary Administrator of Kansas of tire suspension. In April 2006, the Disciplinary Administrator wrote to the respondent requesting a response to the allegations; the respondent failed to provide a written response. The respondent contends that he did not receive the letter as he was in inpatient treatment at that time.
The respondent’s case was assigned to an investigator employed by the Disciplinary Administrator. The investigator became ill and retired for medical reasons. According to the Disciplinary Administrator, the case was not reassigned for almost 2 years. In Novem ber 2008, the Disciplinary Administrator filed a formal complaint. The respondent filed an answer to the formal complaint on December 15, 2008, and a stipulation to the admission of exhibits and a plan of probation on February 18, 2009.
A hearing was held before a panel of the Kansas Board for Discipline of Attorneys, where the respondent appeared in person. Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
“2. In September, 2000, the Respondent was admitted to the practice of law in the State of Missouri. The Respondent faded to comply with the administrative requirements to maintain his law license in Missouri beginning in 2005. As a result, at that time, his license was not in good standing.
“3. The Respondent was admitted to the practice of law in the State of Kansas on April 27, 2001. On October 6, 2003, the Kansas Supreme Court suspended the Respondent’s license to practice law in the State of Kansas, for failing to comply with the annual administrative requirements to maintain a law license.
“4. In approximately February, 2003, the Respondent began using methamphetamine. Quickly, the Respondent became addicted to the drug. Several months later, on October 22, 2003, the Respondent was arrested in Jackson County, Missouri, for possession of methamphetamine, a class C felony. Even after he was arrested, the Respondent continued to use methamphetamine sporadically. [Footnote: At the hearing on this matter, the Respondent testified that his use of methamphetamine ended prior to entering treatment. The Respondent also testified that at the time he entered treatment, he was clean.’]
“5. On January 26, 2004, the Circuit Court of Jackson County, Missouri, indicted the Respondent for having possessed methamphetamine, a class C felony, on October 22, 2003.
“6. On December 31, 2005, the Respondent entered an inpatient treatment program at the Salvation Army Adult Rehabilitation in Kansas City, Missouri. The Respondent remained in treatment for six months. On July 9, 2006, the Respondent successfully completed the rehabilitation program.
“7. On January 30, 2006, the Respondent entered a guilty plea to a charge of possession of methamphetamine, a class C felony, in State of Missouri v. Todd A. McGraw, case number 16CR03006493-01, in the Circuit Court of Jackson County, Missouri. That same day, the Court sentenced the Respondent. The Court suspended the imposition of the sentence and placed the Respondent on probation for one year.
“8. The Respondent failed to report the criminal conviction to the Disciplinary Administrator.
“9. On February 28, 2006, the Missouri Supreme Court suspended the Respondent’s license to practice law in Missouri for one year. The Respondent failed to report to the Disciplinary Administrator that his license to practice law in Missouri had been suspended. The Respondent’s license to practice law in the State of Missouri remains suspended.
“10. On March 20, 2006, the Missouri Office of the Chief Disciplinary Counsel informed the Disciplinary Administrator that the Missouri Supreme Court had suspended the Respondent’s license to practice law.
“11. On April 3, 2006, the Disciplinary Administrator wrote to the Respondent and requested that the Respondent provide a written response regarding the allegations. [Footnote: The Respondent contends that he did not receive the letter, as he was in inpatient treatment at that time. Correspondence from the Disciplinary Administrator’s office is sent to each respondent’s last registered address. Pursuant to Kan. Sup. Ct. R. 208(c), attorneys are required to notify the Clerk of the Appellate Courts of any change of address within 30 days. In this case, the April 3, 2006, letter was sent to the Respondent at his last registration address. The record is void of evidence that the letter was returned to the Disciplinary Administrator. As such, the Hearing Panel finds that the Disciplinary Administrator provided the Respondent with constructive notice of the initial complaint.] The Respondent faded to provide a written response regarding the allegations.
“12. On January 30, 2007, the Respondent successfully completed the terms and conditions of his probation on his criminal conviction.
“13. On November 25, 2008, the Disciplinary Administrator filed a Formal Complaint. On December 15, 2008, the Respondent timely filed an Answer to the Formal Complaint. On February 18, 2009, the Respondent filed a plan of probation.
“CONCLUSIONS OF LAW
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 8.4(b), KRPC 8.1, and Kan. Sup. Ct. R. 207, as detailed below.
“2. “It is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s . . . fitness as a lawyer in other respects.” KRPC 8.4(b). In this case, the Respondent was convicted by his plea of possession of methamphetamine, a class C felony. The Hearing Panel concludes that the Respondent committed a criminal act that reflects directly on the Respondent’s fitness to practice, in violation of KRPC 8.4(b).
“3. Lawyers must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a ... disciplinary matter, shall not:... knowingly fail to respond to a lawful demand for information from [a]... disciplinary authority,...’ KRPC 8.1(b).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The Respondent failed to provide a written response to the initial complaint docketed by the Disciplinary Administrator. Because the Respondent failed to provide a written response to the initial complaint, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
. “AMERICAN BAR ASSOCIATION STANDARDS FOR IMPOSING LAWYER SANCTIONS
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the public to maintain his personal integrity.
“Mental State. The Respondent knowingly 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:
“Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent was convicted in the Circuit Court of Jackson County, Missouri, of possession of methamphetamine, a class C felony.
“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:
“Absence of a Prior Disciplinary Record. Other than the Missouri suspension for the same misconduct, the Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent completely acknowledged the misconduct in his Answer and at the hearing.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2001. At the time the Respondent engaged in the misconduct, the Respondent had been practicing law for a period of three years. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time he engaged in the misconduct.
“Delay in Disciplinary Proceedings. At the hearing on this matter, the Disciplinary Administrator explained that there was an inordinate delay in the disciplinary proceeding.
“Imposition of Other Penalties or Sanctions. The Respondent served one year on probation following his conviction for possession of methamphetamine, class C felony, in the Circuit Court of Jackson County, Missouri.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain the elements listed in Standard 5.11 and that seriously adversely reflects on the lawyer’s fitness to practice.’ Standard 5.12.
“RECOMMENDATION
“The Disciplinary Administrator recommended that the Respondent be indefinitely suspended. The Disciplinary Administrator recommended that the indefinite suspension be made retroactive 18 months to account for the delay in the disciplinary proceeding. Even though the Respondent previously filed a plan of probation, at the hearing, he agreed that an indefinite suspension is appropriate.
“Because the Respondent agreed with the Disciplinary Administrator’s recommendation, the Hearing Panel deems the Respondent’s request for probation abandoned. As such, the Hearing Panel does not consider the Respondent’s request for probation.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the State of Kansas. The Hearing Panel further recommends that the Court make the Respondent’s suspension effective retroactive to September 1, 2007. Making the effective date of the Respondent’s suspension retroactive to September 1,2007, is fair in light of the delay getting this case to hearing.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
Applying Kansas Supreme Court Rule 202 (2008 Kan. Ct. R. Annot. 261) concerning reciprocal discipline, and based on the documents filed in the Missouri disciplinary proceeding, the hearing panel concluded that respondent violated Kansas Rules of Professional Conduct (KRPC) 8.4(b) (2008 Kan. Ct. R. Annot. 586) (commission of a criminal act), KRPC 8.1(b) (2008 Kan. Ct. R. Annot. 579) (duty to respond to a lawful demand for information from a disciplinary authority), and Supreme Court Rule 207(b) (2008 Kan. Ct. R. Annot. 295) (duty to cooperate in disciplinary investigations/duty to report violations). The respondent filed no exceptions to the hearing panel’s findings and conclusions. Thus, the above violations are deemed admitted under Supreme Court Rule 212(c) (2008 Kan. Ct. R. Annot. 327).
The panel recommended that the respondent be indefinitely suspended from the practice of law in the state of Kansas, with the effective date of the suspension retroactive 24 months to account for the delay in the disciplinary proceeding. The respondent agreed at the hearing that suspension is the appropriate discipline. Because the respondent agreed with the Disciplinary Administrator’s recommendation, the hearing panel did not consider the respondent’s request for probation, deeming it abandoned.
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 Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel’s conclusions of law. See KRPC 8.4(b); KRPC 8.1(b); Supreme Court Rule 207(b). We therefore adopt the panel’s findings and conclusions.
The respondent agrees that indefinite suspension is an appropriate sanction in his case. We agree with the hearing panel’s recommended sanction and further agree that the indefinite suspension should be effective September 1, 2007, as a “fair [disposition] in light of the delay [by the Disciplinary Administrator] getting this case to hearing.”
Conclusion and Discipline
It Is Therefore Ordered that Todd A. McGraw be indefinitely suspended from the practice of law in the state of Kansas, effective September 1, 2007, in accordance with Supreme Court Rule 203(a)(2) (2008 Kan. Ct. R. Annot. 307).
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2008 Kan. Ct. R. Annot. 350), and in the event the respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2008 Kan. Ct. R. Annot. 365).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Jackson, J.:
The appeal herein involves a schism in the Gospel Assembly Church of Wichita. Some sixty former members of the church in 1955 filed a petition containing four causes of action in which they sought to partition the church property, and to enjoin the defendants from doing various things contrary to the alleged interests of the plaintiffs. The church was and is an unincorporated church society, and its property stood in the name of three trustees. The minister was one of the trustees and the other two had been elected by the congregation at a meeting of the church after their names had been suggested by the minister. There was a statement of trust signed and acknowledged by the trustees filed of record in the register of deeds office in Sedgwick county.
As appears from the caption above, the church trustees were not made parties, with the exception of the minister. Defendants attempted to attack the petition by motion and a demurrer on the ground that no cause of action was stated and no proper defendants were named. The trial court overruled these objections but since the case was tried to the court and evidence adduced, we shall not take time to consider the sufficiency of the pleadings. After the trial, the trial court held that plaintiffs were entitled to a partition of the church property, and entered judgment to that effect. Defendants have appealed.
In discussing the appeal, we shall continue to refer to the parties as plaintiffs and defendants.
The Gospel Assembly Church here concerned is one of the churches of a type of religious society or denomination which was founded in 1911 by a man known as the Reverend Mr. W. M. Sowders. This church was started by the present minister, the Reverend Mr. Mullineaux, when he came to Wichita in 1941. The evidence shows that the Reverend Mr. Sowders was the leader of the denomination until his death in 1951 or 1952; that thereafter, a man referred to as a Reverend Mr. Jolly attempted to take the place of Sowders, but that throughout the country, many of the Gospel Assembly ministers objected to the Jolly teachings and refused to follow him. It would appear that certain schisms were created in many of the churches.
A similar dispute among the members of the Gospel Assembly Church in Kansas City was the foundation of the case of Dawkins v. Dawkins (40,956), 183 Kan. 323, 328 P. 2d 346; and the companion case of Dawkins v. Dawkins (40,957), 183 Kan. 336, 328 P. 2d 355. Another similarity exists between the case at bar and the Dawkins cases. It would appear that both in the case of minister Dawkins and minister Mullineaux, the Reverend Mr. Jolly was able to persuade Mrs. Dawkins and Mrs. Mullineaux to lead the dissenting group in each church against their own husbands, a fact which caused a divorce in each instance.
But this court cannot attempt to decide which church faction was following the doctrines laid down by Sowders, the founder of the church. It may be mentioned that the defendants did introduce a rather large number of ministers from other cities who testified they had broken with Jolly, as had minister Mullineaux. There appears to be no ecclesiastical system in the Gospel Assembly churches to determine the true doctrine. The evidence shows that each minister and congregation actually govern their own church. The named plaintiffs appear to be the principal dissenters, some sixty in number. It is not disputed that the church numbered some three hundred-fifty to four hundred members at the time of the schism in 1955. The church with the remaining majority of the congregation has continued to operate and carry on the church affairs. The proposed new church has not been built because this suit has tied up the funds. The financial institution named as a party defendant is a depository of money of the church.
There is one fact which determines this case and shows that the trial court’s decision must be reversed. Each of the plaintiffs who testified stated emphatically that he had left the church at the time of the schism and, as far as the evidence proved, so had all of the other plaintiffs.
It is well settled law that members of a church may not voluntarily withdraw and then endeavor to claim some right in the church property. In Slinker v. Building Association, 96 Kan. 672, 153 Pac. 537, it was said:
“The evidence shows that the appellant and those acting with her have voluntarily withdrawn from the church. It is settled law that they have no interest in the property of the church, and of course they have no claim to any portion of this fund if it was in fact raised for the benefit of the church. (34 Cyc. 1167; 24 A. & E. Encyc. of L. 353, 355.)" (p. 674.)
In Dawkins v. Dawkins (40,956), supra, it was said at page 326 and 327:
“The wife and most of her witnesses were former members of the church who had severed their relations with the church and its pastor because of doctrinal differences. As such former members, they have no right to impair the title of the church property and the fiduciary relation of the pastor of the church to his charge.”
When the question is researched this court has decided a number of cases involving schisms in churches. When it can be decided by church law or ecclesiastical hierarchy which group represents the true doctrine of the church, that group will receive the whole of the church property. Rut when church members simply leave the church they forfeit any right to the church property. The following additional cases cite the rules governing church property: Venable v. Ebenezer Baptist Church, 25 Kan. *177; Comm'rs of Wyandotte Co. v. Presbyterian Church, 30 Kan. 620, 1 Pac. 109; Jackson v. Jones, 130 Kan. 488, 287 Pac. 603; United Brethren Etc. v. Mount Carmel Community Cemetery Ass’n, 152 Kan. 243, 103 P. 2d 877; Hughes v. Grossman, 166 Kan. 325, p. 330, 201 P. 2d 670; Whipple v. Fehsenfeld, 173 Kan. 427, 249 P. 2d 638; and Kansas Baptist Convention v. Smith, 178 Kan. 123, 283 P. 2d 503.
In 76 C. J. S. 850, Religious Societies it is said:
“The separation or secession of some of the members from a church does not destroy the identity of the church or lessen the rights of those adhering to the organization, even though the minister and trustees are among the seceders.
“On secession, whether by members from a church, or by a congregation from an ecclesiastical system with which it was associated, the seceding parties forfeit all rights to the church property even though they keep the name of the old society, . .
See also 45 Am. Jur. Religious Societies § 67, p. 776.
Under the evidence, none of the plaintiffs was contending they had any connection with the present church; they had “left the church”; many of these people were no longer residents of Wichita. There were some half-hearted statements that the minister had said plaintiffs could have their church contributions returned. While the minister attempted to explain this statement that the plaintiffs would have to go before the congregation, it does not seem to have impressed the trial court. However, we have been cited to no authority which supports the view that a minister of a corporate or unincorporated church may gratuitously return church contributions to certain church goers. The evidence shows that those who attended the Gospel Assembly were not known as “members” under the doctrines of the church. We see nothing in that practice which would enhance the claims of plaintiffs to the church property.
The trial court spent two weeks hearing this case, and nothing is to be gained by anyone in carrying on the dispute to further extent. Nothing said in this opinion is to be understood as an endorsement of the policies of the Gospel Assembly Churches, either in their theological beliefs or in the manner of carrying on business affairs. However, under the constitution of this nation and this state, these people, many of them lacking in formal education, have the unfettered right to go to the church of their choice, or to leave such church, as the plaintiffs have done.
The judgment of the trial court must be reversed and the court is hereby directed to enter judgment for defendants for their costs in this action.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover for personal injuries sustained in a collision of two automobiles at a city intersection. The plaintiff was a passenger in one automobile, and he alleged the collision resulted from the negligence of the defendant, the driver of the other automobile. The jury by its general verdict found for the defendant, and in answer to special questions specifically found that the defendant was not guilty of any negligence but that the plaintiff’s driver was guilty of negligence which caused the accident. Thé plaintiff appeals from orders overruling his motion for a directed verdict at the close of all the evidence, and his motion for a new trial.
The accident occurred at approximately 5:15 p. m. on August 8, 1957, at the intersection of Clark and Volutsia Streets in Wichita, Kansas. At that intersection Clark Street, an east-west street, makes a seven foot jog to the south. The defendant Bench and his wife were returning from their place of employment at Boeing Airplane Company in their 1957 station wagon. They were proceeding north on Volutsia, a north-south street, to their home two and a half blocks north of the intersection where the collision occurred. Bench was driving and he was going slow as he approached Clark Street. One block south of Clark, Volutsia Street makes a complete jog of about two widths of the street. In the block south of the Clark Street intersection construction was in progress and a truck was parked on the west side of the street. The defendant testified children usually played in the street and he always drove slow through that block on his way home. His top speed in the block was 20 miles per hour at most. The defendant slowed down as he approached the intersection and looked to the east when he was about eighteen feet from the south line of Clark Street as it extends west. He looked to the east and then to the west and saw no cars coming. When he first looked to the east he was going slow enough to stop before entering the intersection. At that time he estimated he was approximately two car lengths south of the south line of Clark Street extending west. When he reached the center of the intersection he first saw the car in which the plaintiff was riding coming from the east on Clark Street at a high speed, between 30 and 40 miles per hour, and skidding its wheels. That car was driven by Phillip R. Hurst, a friend of the plaintiff. When the defendant first saw the Hurst car in the intersection, he (defendant) was going about 15 miles per hour and he tried to pull to the left away from the Hurst car as it came toward the right side of his car. The front of the Hurst car struck the right side of the defendant’s car in front of the door and knocked the defendant’s car to the northwest corner of the intersection. While there was conflicting testimony whether the defendant braked his car prior to the impact, he testified that he did not, and the jury’s general verdict and its answers to special questions support the defendant’s testimony that he did not brake his car prior to the impact.
The extent of plaintiff’s injuries is not here involved.
The plaintiff and Hurst each was 18 years old. They had left work at the Boeing Airplane Company on their way to Burrton where they were to have dates that evening. The plaintiff testified that, as a result of his injuries, he had no independent recollection as to what happened after he and Hurst left the Roeing parking lot until he awoke in the hospital, and he did not remember the direction Hurst drove after leaving the parking lot, or how they got on Clark Street. Hurst was killed in a railroad crossing accident three days before the trial, so plaintiff’s evidence consisted of testimony of the defendant and his wife, two traffic officers of the Wichita police department, statements made by both drivers after the accident, and of the physical findings at the intersection.
At the close of all the evidence the plaintiff moved for a directed verdict which was overruled. The trial court instructed the jury, and submitted special questions. While the jury was deliberating, it sent a message to the court stating it had found the defendant was not guilty of any negligence as charged in the petition, and asked what else it should decide. The trial court gave an additional instruction that the pleadings had been amended to include all the evidence, and that if the defendant was guilty of any negligence which was a proximate cause of the collision and the plaintiff was not guilty of any negligence, then it should find for the plaintiff.
Thereafter the jury brought in a general verdict for the defendant, and answered the trial court’s special questions as follows:
“Q. Was the plaintiffs driver, Phillip Hurst, guilty of negligence which was a cause of the accident? A. Yes. Q. If you answer question No. 1 in the affirmative, state what act or acts of negligence on his part was or were a cause of the accident. A. The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway. Q. Was the defendant Bench guilty of any negligence which was a cause of the accident? A. No. Q. If you answer question No. 3 in the affirmative, state what act or acts of negligence on his part was or were a cause of the accident. A. (blank).”
Neither party objected to the answers to the special questions. The trial court accepted the general verdict and the answers to the special questions and rendered judgment for the defendant. Plaintiffs motion for a new trial was overruled, and this appeal followed.
While the plaintiff makes six specifications of error, he briefs and argues only two points. He first contends the trial court erred in overruling his motion for a directed verdict when all the evidence, including the defendant’s testimony, taken in the light most favorable to him, disclosed that he failed to look at a time when he could plainly see, and having failed to see an automobile which was their plainly to be seen, the defendant entered an open intersection simultaneously with an automobile approaching the intersection from his right, which caused the collision, and that the acts of the plaintiff in no way contributed thereto.
It would serve no useful purpose to recite the highly controversial evidence as testified to by .the parties and their respective witnesses. This was purely a fact case. The only fact not in controversy was that the accident occurred at the intersection of Clark and Volutsia Streets at about 5:15 p. m. on August 8, 1957.
The plaintiff’s argument is based upon his version of the evidence from his own witnesses and is predicated largely upon technical and involved computations based upon averages and distances which were but rough approximations, and upon conflicting evidence concerning skid marks. The record indicates the trial below was a typical negligence action in which each party was entitled to a trial by a jury upon their respective claims of negligence and contributory negligence. The jury was instructed that it was not limited to considering only the items of negligence alleged by the plaintiff but that if any other negligence appeared in the evidence, it should find for the plaintiff. The record indicates the trial court exhibited great concern to protect the rights of both parties, and liberally allowed the plaintiff to present a broad range of direct and circumstantial evidence, and expert testimony based thereon. It also allowed the plaintiff to amend his pleadings to conform to the evidence and fully and fairly instructed the jury on the question of negligence of the defendant and contributory negligence of the plaintiff and of proximate causes, and that if the plaintiff recovered, it must be on the grounds of negligence alleged in his petition as amended. No complaint is made of the exclusion of any evidence, nor of error in the court’s instructions to the jury.
The issues raised by the pleadings and the evidence were questions of fact which were properly submitted to the jury and the jury’s general verdict for the defendant constituted a finding in his favor upon all issues in the ease and also upon the question that the defendant was not guilty of any negligent act which was the proximate cause of the plaintiff’s injury. Ry its answers to the special questions the jury found in effect that the defendant entered the intersection first and that the Hurst automobile should, have yielded the right of way in accordance with instruction No. 8 which was not objected to, and with G. S. 1949, 8-550 (a).
The plaintiff’s evidence presented a situation where reasonable minds might differ on conflicting testimony as to just who was negligent, and that being the case, the motion for a directed verdict was properly overruled. What was said by Mr. Chief Justice Harvey in Lawrence v. Kansas Power & Light Co., 167 Kan. 45, 204 P. 2d 752, is clearly applicable on this point:
“The legal questions here involved are so well settled in our law that they need not be labored. The actions were ones at common law in which plaintiffs sought damages alleged to have resulted from defendant’s negligence, and defendant had pleaded contributory negligence of the plaintiffs. These are the kinds of actions in which each party is entitled to a trial by a jury as a matter of right. They should not be converted into trials 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 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. In these cases we think the contributory negligence of plaintiffs (here, the alleged negligence of the defendant) was clearly a question of fact for the jury. More than that, plaintiffs were not required to anticipate that with their car in the intersection defendant’s bus would be driven into it and against their car at a speed of twenty-five to thirty miles per hour, with its driver not watching enough to know that the car was in the intersection. Under the evidence the jury might very well have found such acts of defendant to be the proximate cause of injury.” (l. c. 49.)
Other cases which are also applicable are Rowell v. City of Wichita, 162 Kan. 294, 176 P. 2d 590; Samms v. Regier, 167 Kan. 556, 207 P. 2d 414; Mehl v. Carter, 171 Kan. 597, 237 P. 2d 240; Blankenship v. Fraker, 173 Kan. 438, 249 P. 2d 683; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909, and Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223. Cases of like effect may be found in 4 Hatcher’s Kansas Digest [Rev. Ed.], Negligence, §§ 72 to 75, incl., and West’s Kansas Digest, Negligence, § 136 (9), (14), (25) and (26).
The plaintiff’s second point is that the trial court erred in the admission into evidence of defendant’s Exhibit A. That exhibit was a written repair bill or estimate of an automobile dealer for repair of the damages to the defendant’s station wagon. It disclosed various items of damage, including the fact that the frame of the car had been knocked out of alignment. It was introduced into evidence during the cross-examination of the defendant by counsel for the defendant after the defendant had been called as a witness for the plaintiff. On direct examination plaintiff’s counsel had questioned the defendant concerning the facts surrounding the accident including the speed of his car, the estimated speed of the car in which the plaintiff was riding, and estimated distances of both cars at the time the defendant entered the intersection. The plaintiiPs first objection was solely on the ground of improper cross-examination based on the theory that he had not gone into the issues of damages on direct examination. In overruling the objection the trial court pointed out that the damage to the car had some bearing on speed. The defendant testified drat the speed was fairly represented by the items damaged to his car. When offered into evidence, plaintiff made the following objection:
“Mb. Kamas: Your honor, until they have a better foundation or a better reason for this I would like to object to it as being irrelevant and immaterial and improper cross-examination.
“Mr. Siefion: It shows where the impact was, the severity of the impact.
“The Court: Well, if you want to delete the expense items.
“Mr. Kamas: That isn’t the basis of my objection, Your Honor. I have no objection to the nine hundred dollars; it is just the relevancy of it.
“The Court: I didn’t understand you. The objection is overruled. The exhibit is admitted.’’ (Emphasis supplied.)
As it noted, plaintiff’s objection was solely on the ground of irrelevancy. He here contends that the trial court erred in overruling the objection on the ground that the exhibit was hearsay. What was said in Gaynes v. Wallingford, 185 Kan. 655, 347 P. 2d 458, fully answers the contention:
“. . . The short answer to the contention is that the appellant made no objection to the testimony as not being the best evidence, or that it was hearsay as to the appellant, and made no motion to strike the evidence for those reasons. Under such circumstances, the objection comes too late when it is first made on appellate review (Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 147 P. 2d 705.” (l. c. 661.)
In this case the appellant has the duty to make it affirmatively show that the trial court erred. A thorough examination of the record convinces us that error was not committed. This conclusion requires an affirmance of the judgment.
It is so ordered.
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The opinion of the court was delivered by
Herd, J.:
This case involves an alleged oral contract between defendant/appellant, Allen Drilling Company, and plaintiff/appellee, James Robert (Bob) Holley. Allen Drilling Company appeals from the trial court’s grant of judgment in favor of Holley.
In 1977, Bob Holley was hired by Earl Allen, who was then president and sole stockholder of Allen Drilling Company, as an oil well driller and tool pusher for the company. Holley worked for Allen Drilling until December of 1980, when he quit over a bonus dispute. He then went to work for Kaw Drilling Company.
About a month after Holley began working for Kaw, he met with Earl Allen at Allen’s request at Sambo’s Restaurant in Great Bend. Allen told Holley that if he would come back to work for Allen Drilling, he would give him a $10,000 bonus (for the prior year) and “15% off the top of what the rig (rig No. 5) made.” At trial, Holley explained this agreement as follows:
“He told me he would give me that $10,000 bonus and that Rig 5 was mine and I would have 15 percent of it and rig it up like I wanted it and take it to the field the way I wanted it and I said okay.”
Holley returned to work for Allen Drilling on January 26,1981. In March he received a check drawn on Allen Oil Company for $10,000. Earl Allen died in a plane crash in September of 1982. At the time of Earl Allen’s death, Holley had not received his claimed 15% share of the rig because Earl had “put it into production.”
Holley continued to work for Allen Drilling until August 30, 1983, when he quit because of a vacation dispute he had with the company’s new president, Dixon Allen (Earl Allen’s son). Holley then went to work for WesTech Energy. Holley filed this action on June 4,1984, seeking specific performance of the alleged oral agreement.
By stipulation of the parties, the trial of this case was bifurcated. The first part of the trial pertained to whether an oral contract existed between Holley and Allen Drilling and, if so, its terms. In addition to his own testimony, Holley presented the testimony of Lyle Jurgensen, his former employer. Jurgensen testified that Holley told him he went back to work for Allen Drilling in exchange for a “substantial bonus and/or a percentage of the rig.” Jurgensen didn’t remember exactly what percentage of the rig Holley was to receive, only that it was “considerable.”
Keith Huddleston, an electrical worker for Allen Drilling, also testified at trial. Huddleston testified that Earl Allen twice told him that Bob Holley came back to work for Allen Drilling in exchange for a “percentage of the rig.” Huddleston, like Jurgensen, could not remember the percentage of the rig Holley was to receive.
Two other Allen Drilling employees, John Johnson and Joe Levingston, testified that Bob Holley had told them about his oral agreement with Earl Allen. However, both Johnson and Levingston testified that Holley made inconsistent statements regarding the percentage of the rig he was to receive.
After hearing the evidence, the jury determined Bob Holley agreed to return to work for Allen Drilling in exchange for a $10,000 bonus and “15% of all income earned for Rig No. 5.”
The second portion of the case was tried to the court and pertained to the damages sustained by Holley. The trial court heard evidence which included the meaning of “off the top” or “off the top of what the rig made”; and the appellant’s affirmative defenses of estoppel, laches, and waiver. The trial court ruled that “off the top” referred to “the charge that was made by the company for drilling on a per foot basis.” The court then determined the total drilling charge by the company for the operative period was $3,136,012.00 and 15% of that amount, or $470,401.80, was the amount owed to Holley. The court then reduced this sum by the amount of salary paid Holley for that period, leaving a net award to plaintiff of $356,475.25.
Allen Drilling Company appealed.
The appellant first contends the trial court erred in denying defendant’s motion for directed verdict and for judgment notwithstanding the verdict because the alleged oral contract was too indefinite arid uncertain in its terms to constitute an enforceable agreement.
In ruling on a motion for a directed verdict, the court is required to resolve áll facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied and the matter submitted to the jury. This rule is also applicable when appellate review is sought on a motion for directed verdict. Further, the same test is applicable to a motion for judgment notwithstanding the verdict. Turner v. Halliburton Co., 240 Kan. 1, 6-7, 722 P.2d 1106 (1986).
Appellant claims the plaintiffs statements that he was to receive “15% of what the rig made” or 15% “off the top” are simply too indefinite to be enforceable and neither the jury nor the court was presented with a definite and certain basis for the calculation of the 15% figure.
In Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 971, 457 P.2d 691 (1969), this court held:
“As a general rule, in order for a written agreement to be binding it must be sufficiently definite in its terms and requirements as to enable a court to determine what acts are to be performed and when performance is complete. This rule, however, cannot be blindly followed as a measuring stick for determining the sufficiency and definiteness of the terms of a contract. Where a purported contract is so vague and indefinite that the intention of the parties cannot be ascertained therefrom it is unenforceable; but absolute certainty is not required — only reasonable certainty is necessary. A contract may contain some formal imperfections or be lacking in detail, but it will not fail for uncertainty if the court can ascertain the terms and conditions by which the parties intended to be bound, and thus carry their intentions into effect. The fact that the exact meaning of language used can be ascertained only by consideration of extrinsic evidence does not render the agreement unenforceable for indefiniteness or uncertainty.” (Emphasis added.)
See Brown v. Foulks, 232 Kan. 424, 434, 657 P.2d 501 (1983).
Moreover, in Hays v. Underwood, Administrator, 196 Kan. 265, 268, 411 P.2d 717 (1966), we held the law favors upholding a contract against a claim of uncertainty where one of the parties has performed his part of the contract.
In the instant case, an exception to the general rule requiring definiteness and certainty in contracts is applicable because the appellant had partially performed the agreement by paying Holley $10,000 and Holley had gone back to work for Allen Drilling Company. Further, the agreement is not unenforceable merely because the language of the contract was ambiguous or unclear. Bob Holley consistently testified to the essential terms of the agreement — that he would receive a $10,000 bonus and 15% “off the top” of what the rig made if he returned to work for the appellant. The fact that the term “off the top” may have been ambiguous did not render the agreement unenforceable. Rather, it merely made resort to extrinsic evidence permissible.
Both the jury and the trial court heard extrinsic evidence regarding the meaning of the ambiguous term. Holley testified as to the discussion he had had with Earl Allen concerning the basis for the 15% figure.
“Q: Did you have a clear understanding as to what precisely you were to get?
“A: You mean what I was supposed to receive?
“Q: Right.
“A: I was supposed to receive 15 percent of what Rig 5 made.
“Q: And what was your understanding as to — what did Mr. Allen tell you or what was your understanding or was it even discussed as to what that meant?
“A: Well, just whatever it made, I got 15 percent of it. I told him, ‘Well, you can show records, you ain’t going to make no money off the rig.’ And he said, ‘It’s right off the top, Bob, I ain’t going to cheat you.’ ” (Emphasis added.)
Further, plaintiff presented the expert testimony of C.P.A. Tom Drake regarding the meaning of “off the top” in the oil and gas industry. The accountant testified that “off the top” generally refers to the top line of a profit and loss statement — e.g., gross sales.
On the other hand, defendant’s accountant, C.P.A. Bert Erwin, testified that a contract calling for “15% off the top” would create “immediate questions” and “would need to be defined.”
Considering the evidence in a light most favorable to the plaintiff, it is clear the trial court did not err in denying appellant’s motions for directed verdict and judgment notwithstanding the verdict. Holley consistently testified regarding the terms of the agreement and his testimony was corroborated by at least two other witnesses. Moreover, the contract between Holley and Allen Drilling contained definite and certain terms, although the language of the contract was ambiguous. This ambiguity was appropriately resolved by the trial court by resort to extrinsic evidence.
Appellant next contends the trial court erred in failing to require plaintiffs expert witness, C.P.A. Tom Drake, to reveal the names and contractual arrangements of certain clients.
During the second phase of the trial which was to the court, plaintiff presented Drake’s testimony to show that the phrase “off the top” generally refers to a percentage of gross sales or revenues. Drake further testified that “off the top” employment contracts are not uncommon in the rotary drilling industry.
Upon cross-examination, the appellant attempted to obtain the names of specific clients of Drake who had utilized “off the top” employment contracts. Drake refused to disclose such information and the appellant objected. After further inquiry of the witness by the court, a recess was taken during which K.S.A. l-401(b) was presented to the court. It provides:
“No certified public accountant shall be examined through judicial process or proceedings without the consent of the client as to any communication made by the client to the certified public accountant in person or through the media of books of account and financial records, or as to advice, reports or working papers given or made thereon in the course of professional employment, nor shall a secretary, stenographer, clerk or assistant of a certified public accountant be examined without the consent of the client concerned, concerning any fact the knowledge of which any such person has acquired in such capacity or relationship with the certified public accountant. This privilege shall exist in all cases except when any such communication is material to the defense of an action against a certified public accountant and as otherwise provided by this section.”
On the basis of the statute, the court determined the information sought by the appellant was privileged and need not be revealed by the witness.
On appeal, the appellant does not challenge the court’s interpretation of K.S.A. 1-401 or its applicability here. Rather, appellant argues the court erred in denying appellant the right to cross-examine the expert witness regarding his knowledge and qualifications as an expert witness.
This argument lacks merit for several reasons. First, we have held the trial court has wide discretion in allowing the testimony of expert witnesses and the use of such testimony ordinarily goes to the weight of the evidence and not its admissibility. Kearney v. Kansas Public Service Co., 233 Kan. 492, Syl. ¶ 6, 665 P.2d 757 (1983).
Here, the trial court cannot be said to have abused its discretion by upholding the statutorily authorized accountant-client privilege, particularly where, as here, the objecting party does not challenge the applicability of the privilege.
Further, the appellant was permitted to question Drake as to whether he had, in his experience, ever seen a percentage of gross sales paid as incentive to an individual in the rotary drilling business. Drake responded that he had seen such contracts. Drake further testified on cross-examination that the phrase “off the top” is a common term used in many industries, including the oil and gas industry, and is a commonly accepted accounting term. Thus, the court permitted the expert witness to render his opinion upon facts within his personal knowledge and observation.
We hold the trial court did not abuse its discretion by permitting the witness to testify regarding the meaning of “off the top” in the oil and gas industry without revealing the names and contractual arrangements of particular clients.
The final issue on appeal is whether the trial court erred in denying appellant’s equitable defense of estoppel.
We recently defined the concept of equitable estoppel and reviewed its elements in Ram Co. v. Estate of Kobbeman, 236 Kan. 751, Syl. ¶¶ 4 and 5, 696 P.2d 936 (1985):
“Equitable estoppel is the effect of the voluntary conduct of a person whereby he is precluded, both at law and in equity, from asserting rights against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by its acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. It must also show it rightfully relied and acted upon such belief and would now be prejudiced if the other party were permitted to deny the existence of such facts.”
“There can be no equitable estoppel if any essential element thereof is lacking or is not satisfactorily proved. Estoppel will not be deemed to arise from facts which are ambiguous and subject to more than one construction.”
Appellant argues that Bob Holley was estopped from asserting the enforceability of the contract because of his failure, after Earl Allen’s death, to inform the appellant of the existence of the agreement.
While it is true that mere silence may give rise to an estoppel where under the circumstances there is a duty to speak, the trial court found there was no such duty in this case. The court reasoned:
“With regard to the defense of estoppel, this defense fails because the court can find no duty on the part of the plaintiff to inform the employer corporation of the employment contract that had been made between himself and the corporation’s agent, Mr. Earl Allen. This is particularly true when a portion of that employment contract had already been performed, the $10,000 bonus was paid. Mr. Holley had every reason to believe that the corporation knew of the employment contract. It was half performed.”
Further, it is clear Earl Allen was acting within the scope of his authority as an agent of Allen Drilling when he contracted with Bob Holley. We have held that the knowledge obtained by an agent acting within the scope of his authority is, in law, the knowledge of the principal. Mackey v. Board of County Commissioners, 185 Kan. 139, Syl. ¶ 5, 341 P.2d 1050 (1959). See Board of Leavenworth County Comm’rs v. Cunningham, 5 Kan. App. 2d 508, 512, 619 P.2d 525 (1980). Thus, Allen Drilling cannot now contend Bob Holley had a duty to inform it of the authorized acts of its agent.
The elements of equitable estoppel were not established and the trial court did not err in rejecting this defense.
This is primarily a fact case. There is substantial competent evidence supporting the verdict and findings of fact. The scope of appellate review does not permit disturbing a factual determination under such circumstances.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action where the defendant, Fred erick Martin, takes a direct appeal from his convictions of felony first-degree murder, K.S.A. 21-3401; aggravated kidnapping, K.S.A. 21-3421; and unlawful possession of a firearm, K.S.A. 21-4204(b).
The facts giving rise to Martin’s convictions are as follows. In June of 1985, Brenda Adams filed for divorce from her husband, Eddie Adams. Eddie moved out of the couple’s residence in Kansas City, Missouri, and into his mother’s home. Shortly thereafter, Brenda began seeing the appellant, Frederick Martin. Brenda and Fred had met at the Western Missouri Mental Health Center where Brenda was employed as a pharmacist and Fred as a maintenance worker.
In the early morning hours of October 11, 1985, Eddie Adams walked into Brenda’s home after seeing Fred’s car parked outside. Eddie was enraged. He began yelling at Brenda and Fred, saying, among other things, that if he had a gun, he’d kill them both. Fred, who was sitting on the bed, told Brenda to dress her 18-month-old daughter, Alicia, and leave with him. At that point, Eddie began striking Brenda, cutting her head. Brenda dripped blood from her head and nose in the bedroom, bathroom, and a hallway.
Sometime during this altercation, Fred left the house but telephoned a short time later and spoke with Eddie. About ten minutes later, there was a knock at the door. Brenda looked out the window and saw a car belonging to James (Monk) Moore parked on the street in front of the house, and Fred’s car parked in the driveway. Brenda knew Monk to be a friend of Fred’s. She then observed the door being kicked in by Fred and Monk as they entered the house.
Monk was holding a handgun, which he held to Eddie’s head, while Fred pushed Eddie toward the sofa. Monk reached into the closet and pulled out a cord from an unused telephone, and Fred used the cord to tie Eddie’s hands behind his back. Fred then threw Eddie on the floor, stuffed a T-shirt in his mouth, and tied it around the back of his head. Brenda pled with Fred to stop. Fred responded, “If you plead for his life, then you can go with him.” Brenda understood this statement to mean Fred and Monk would do the same thing to her they were doing to Eddie. She was afraid they would kill her.
Fred next took Brenda into the bedroom and explained to her that he was not going to hurt Eddie, but instead, intended only to scare him so he would stop beating Brenda. Fred then went back into the living room, leaving Brenda in the bedroom until she heard the front door close a few minutes later. Brenda ascertained the three men were gone.
About 30 minutes later, Fred and Monk returned to Brenda’s house. They began replacing the door facing which they had kicked off earlier. Brenda asked Fred what had happened to Eddie. He told her he was going to take Eddie’s car to him and if Brenda was worried about Eddie, she should call Eddie’s mother’s house where Eddie would be in 30 to 35 minutes. Fred then left in Eddie’s car with Monk following.
Fred returned in 40 minutes. He then took Brenda to the hospital for treatment for the head wound she had suffered.
No one saw Eddie Adams alive after October 11, 1985. His body was found October 30, 1985, in a vacant, weed-covered lot near Third and New Jersey in Kansas City, Kansas. An investigation revealed the victim’s neck, hands, and feet had been tied with a telephone cord and a gag made of a knit material was found in the victim’s mouth. An autopsy revealed the victim had been shot in the chest and in the back of the neck. The lack of external bleeding indicated the victim had not been moved after the shooting.
Brenda Adams was first interviewed by Kansas City police on November 1, 1985. On that date, Brenda gave a statement saying Eddie had come to her house on the evening of October 11,1985, argued with her about the divorce and child support, beat her, and then left. She further stated that after Eddie left she called Fred and told him she was scared and needed to be taken to the hospital. Fred took her to the hospital and afterwards she went to Fred’s apartment for the remainder of the evening.
In early November, the police received an anonymous tip through the TIPS hotline. The caller alleged the death of Edward Adams could have occurred at the Kansas City, Missouri, residence of Brenda Adams. Police officers proceeded to Brenda’s home and received her consent to search the residence. The search included the use of a substance called “luminol” to detect the presence of blood in the house. Blood was found in the bedroom, hallway, and bathroom of the home. However, no blood matching the blood type of Eddie Adams was found.
While the police were searching her home, Brenda was allowed to go for a cup of hot chocolate with her neighbor, Rosie Patrick. When Brenda returned she gave the police a new statement, implicating Fred Martin in the murder of Eddie Adams. In her new statement, Brenda told the police essentially the facts as stated here. She later repeated the same statement of facts at trial. Rosie Patrick also gave the police a statement, in which she said that her friend, James “Monk” Moore, told her he and “Black Jesus” (Frederick Martin) had “already done the thing on him” (Eddie Adams).
Based on these statements, the matching condition of the victim when found, and the TIPS hotline information, a warrant was issued for the arrest of Frederick Martin and James Moore. Frederick Martin was initially charged with one count of first-degree murder. The charges were later amended to include aggravated kidnapping and unlawful possession of a firearm.
At trial, Frederick Martin testified on his own behalf. He stated that he did not recall where he was on the evening of October 11, 1985. He further testified he was not involved in the incident described by Brenda Adams.
The jury found Martin guilty of all three of the charges against him. He was sentenced to consecutive life terms for the offenses of first-degree murder and aggravated kidnapping. He further received a sentence of three to ten years for unlawful possession of a firearm, with this sentence to run concurrently with the life sentence imposed for aggravated kidnapping.
Codefendant James “Monk” Moore was acquitted following a jury trial in December of 1986.
Frederick Martin perfected this appeal.
The first issue on appeal is whether the trial court erred in allowing the appellant to act as co-counsel.
In a pretrial hearing held on May 30, 1986, the court considered the appellant’s motion to act as co-counsel. During the hearing, the following conversation took place between the court, the appellant, and his court-appointed counsel, Mr. Way:
“MR. WAY: Okay. Your Honor, I have two others here; one’s the motion for a co-counsel, signed by Mr. Martin, and he may be able to articulate some of these in a different fashion than I can, however, he has set those out there and he’s fairly articulate in his written presentation, and he’s asking to be co-counsel.
“THE COURT: What do you want there, Fred; I don’t know what you’re after.
“THE DEFENDANT: Well, Your Honor —
“THE COURT: You’ve got a right to participate in the trial, but the way we run things in all trials is there can just be one attorney do the cross-examination or the direct and do the voir dire and do anything else.
“THE DEFENDANT: I understand that.
“THE COURT: You know, you can go pro se if you want to and do it all yourself, but I wouldn’t advise you to do it.
“THE DEFENDANT: All I want to do is to be assured that I will be able to exercise my constitutional rights, that’s all.
“THE COURT: All I’m saying, you can talk to Jan [Mr. Way] as much as you want and give him whatever questions you want to ask, but I’m not going to allow you both to examine witnesses or something.
“MR. GRIFFIN: The State would have no objections; I don’t care if he questions the witnesses, but exactly what you’re saying, only one does it, whether it’s Jan or whether it’s him, one can do it; I don’t care if he participates in the questions.
“THE COURT: I don’t care which one of you is.
“THE DEFENDANT: I have been denied this right previously and that’s why I put it before the Court, to ask you today.
“MR. GRIFFIN: Judge, I think for — for the record, and I think Mr. Way, as an officer of the Court could back it up, I think he’s been heard in every hearing we’ve had, isn’t that correct, Mr. Way, where he’s asked to be heard, and has been heard, whether his motions were granted or not, he has had his say.
“MR. WAY: I think the problem he envisions, Your Honor, or sees previously has to do with his motions, his written motions as from here on, we are talking more of oral presentations of the Court.
“THE COURT: From here on we are talking about co-counsel at trial and that’s what I don’t know.
“MR. WAY: It’s a little bit different function.
“THE COURT: That you understand.
“MR. WAY: Of course I understand.
“THE COURT: If somebody takes a stand and Wes examines them and cross-examines, you could do it and Jan could do it, but you’re not going to both do it.
“THE DEFENDANT: The only thing I’m asking, Your Honor, is that I be assured of the fact that I will be able to exercise my constitutional right.
“THE COURT: Let me assure you this, that you will be able to exercise your constitutional right, but I’ll have to rule on it at the time if there is something against what I just said.
“THE DEFENDANT: I’ll make myself crystal clear so there will be no misunderstanding by anybody. I may not choose to exercise my constitutional rights at all, but I want to know and be reassured that if I do make that choice, that I would be allowed to.
“THE COURT: Been here eleven years and had eleven appeals and everybody’s exercised their constitutional rights that I know of, Fred.
“THE DEFENDANT: Thank you, Your Honor.”
We conclude from this colloquy that the trial cohrt determined the appellant could act as co-counsel with Mr. Way, but only one person could act as counsel at any given time.
During the trial, the appellant cross-examined only one witness — Detective Ken Allen. Appellant now contends it was error for the court to allow him to act as co-counsel without first determining he had knowingly and intelligently waived his right to counsel. The State, on the other hand, contends the court did not err because the appellant requested only that he be allowed to act as co-counsel, and thus did not waive his right to counsel.
Let us examine this issue. In State v. Ames, 222 Kan. 88, 99-100, 563 P.2d 1034 (1977), we held that, while a party has the right to represent himself or be represented by counsel, he does not have the right to a hybrid representation. Further, the defendant who accepts counsel has no right to conduct his own trial or dictate the procedural coürse of his representation by counsel.
The appellant clearly has the right to self-representation, as recognized by the United States Supreme Court in Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975), and by this court in State v. Williams, 226 Kan. 82, 595 P.2d 1104 (1979). However, we have also noted that the election to represent oneself must be knowingly and intelligently made.
In State v. Daniels, 2 Kan. App. 2d 603, 607, 586 P.2d 50 (1978), the Court of Appeals held that a trial court must make more than a routine inquiry to determine if a waiver of the right to counsel was knowingly and intelligently made. The Court defined a waiver as an intentional waiver of a known right, made with full awareness of the effect, citing Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 2d 1461, 58 S. Ct. 1019 (1938). In order to aid the trial court judge in making this determination, the Court of Appeals set forth minimum standards of inquiry as follows:
“The ABA Standards Relating To the Function of the Trial Judge, § 6.6 at 84, 85 (Approved Draft, 1972), suggest the trial judge’s inquiry show that the defendant:
“ ‘(i) has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
“‘(ii) possesses the intelligence and capacity to appreciate the consequences of this decision; and
“ Y Hi) comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.’
“To that, we would suggest that the trial judge also inform the defendant (1) that defendant will be held to the same standards as a lawyer; (2) that the trial judge may not aid the defendant in his defense; and (3) that it is advisable to have a lawyer due to the specialized knowledge necessary to conduct a trial and the fact that a lawyer is trained in the law.” 2 Kan. App. 2d at 607-08.
See In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 209, 708 P.2d 977 (1985); State v. Williams, 226 Kan. at 83-84.
It is clear that the “minimum standards” enunciated above were not met in the instant case. The trial court did not clearly advise Frederick Martin of his right to assistance of counsel. Nor did the court inquire as to the appellant’s understanding of the consequences of his decision, the nature of the proceedings against him, or the range of permissible punishments.
However, this is not a case of pro se representation. Martin merely requested he be permitted to be co-counsel. Thus, no waiver of the right to counsel was required. He had counsel. No warning was required. This issue is without merit.
Next appellant complains the trial court erred in admitting Rosie Patrick’s hearsay statement over his objection. As a result of appellant’s cross-examination of Detective Allen, the State was permitted to introduce the statement of Rosie Patrick. It contained an extrajudicial confession of James “Monk” Moore which implicated the appellant in the murder of Eddie Adams. The appellant questioned Detective Allen as follows:
“Q: Okay, when you went downtown and you gave the statement, did you take a statement from her neighbor?
“A: Yes, I did.
“Q: Okay. And I know you don’t want to go into details of her neighbor’s statement, but did it coincide with Brenda’s any kind of way?
“A: Oh, yes.
“Q: It did coincide?
“A: Yes.
“Q: Okay. After that time had your investigation centered on any particular person at that time?
“A: Whenever I talked to her.
“Q: Right on the 4th, did it center on any particular person at that time?
“A: As soon as she told me the two names of the people that was involved in that homicide, it sure did.
“Q: Okay, centered on the defendants in this case?
“A: Yes.
“Q: Okay, Now, I am finding out. So Brenda’s statement was collaborated [sic] by her neighbor’s. All right.”
During the State’s redirect examination of Detective Allen, the prosecutor sought to admit the statement of Rosie Patrick. The court permitted its introduction since “he [Frederick Martin] opened the door” by discussing the contents of the statement during his cross-examination of the witness. The statement by Rosie Patrick was thus read to the jury. The statement read, in pertinent part:
“On 10-27-85, a week ago Sunday, a friend of mine, named James ‘Monk’ Moore, a black male, about 32 years old, came by my house. ‘Monk’ had a young lady with him but I don’t know who she was. He was driving a big car, possibly a Chrysler, that had a white top and gold bottom. He asked me if I had heard the disturbance next door and I told him I had. He said, ‘Well, that was me and Black Jesus [Frederick Martin] over there.’ ‘Monk’ said that he and Black Jesus had kicked in the door and found Edward standing over Brenda, jumping on her. He said he went up and hit Edward in the side of the face with a pistol and told him to get off‘that woman.’ I said, ‘You’re kidding,’ and he said, ‘We’ve already done the thing on him.’ My husband came in the door and that pretty well ended the conversation. I didn’t know until this past Saturday, November 2nd, 1985, that Edward Adams had been found dead.”
The statement given by Rosie Patrick contained incriminating information regarding the appellant’s involvement in Eddie Adams’ murder. However, in light of appellant opening up the issue on cross-examination of Detective Allen, we hold it was proper for the State to introduce the Patrick statement. It has long been held that, on redirect examination, a witness may be asked questions to clarify or modify statements made on cross-examination, or to explain or rebut the effect of a new matter brought out on cross-examination, even though the witness did not testify concerning such matters on direct examination. State v. Beard, 220 Kan. 580, 552 P.2d 900 (1976). This issue is without merit.
Appellant next alleges the trial court erred in failing to dismiss the charge of unlawful possession of a firearm because the evidence showed that only James “Monk” Moore possessed a gun. Thus, appellant argues he could not have exercised “dominion and control” over the gun and the element of possession necessary to convict him of unlawful possession of a firearm is absent.
We addressed the issue raised by appellant in State v. Cunningham, 236 Kan. 842, 695 P.2d 1280 (1985). There, the defendant was charged and convicted of aggravated burglary, aggravated robbery, and unlawful possession of a firearm. On appeal, the defendant argued the trial court erred in failing to dismiss the counts of aggravated robbery and unlawful possession of a firearm because there was no evidence as to whether he or his accomplice carried a gun. Instead, the testimony simply was that one of the two men carried a gun. The defendant contended that the crime of unlawful possession of a firearm requires proof of defendant’s actual control of a firearm.
We held in Cunningham that the charge of unlawful possession of a firearm does not require proof of actual control of the weapon. In support thereof, we cited a number of cases where charges of unlawful possession of a firearm were upheld without evidence of the defendant’s actual control of the gun. 236 Kan. at 845-46. We further noted:
“[A] holding that where one of two indistinguishable burglars wields a gun during the crime either or both may be charged with unlawful possession of the firearm is consistent with traditional aiding and abetting law. It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids or abets in the commission of an offense may be charged, tried and convicted in the same manner at though he were a principal. State v. Maxwell, 234 Kan. 393, Syl. ¶ 6, 672 P.2d 590 (1983). The point lacks merit.” 236 Kan. at 846.
Appellant attempts to distinguish Cunningham by arguing that in Cunningham the defendant could have been the one who held the gun, since the testimony showed one of the two robbers held the gun. On the other hand, in this case no one ever testified that the appellant held the gun.
His distinction is not valid. Cunningham and the present case are essentially the same. No testimony was presented in either case that the defendant held the gun. Further, our holding in Cunningham makes it clear the defendant can be guilty of possession of a firearm as an aider or abettor, regardless of whether he held or had control of the gun.
As a final note on this issue, appellant further argues evidence of his prior conviction was erroneously admitted. He concedes that proof of a previous felony conviction is a required element of the unlawful possession of a firearm charge (see K.S.A. 21-4204[b]), but argues the conviction was inadmissible because the charge of unlawful possession should have been dismissed. Since the unlawful possession charge was proper, evidence of the prior conviction was also properly admitted.
Thus, we conclude the trial court did not err in failing to dismiss the charge of unlawful possession of a firearm, or in admitting the evidence of appellant’s prior conviction as an essential element of the firearm charge.
■ For his next issue Martin contends his conviction of aggravated kidnapping violates the double jeopardy clause of the Fifth Amendment to the United States Constitution and Section 10 of the Bill of Rights of the Kansas Constitution because a defendant cannot be convicted of both felony murder and the underlying felony.
Appellant argues we have never considered the issue now before us; however, he fails to mention the case of State v. Crump, 232 Kan. 265, Syl. ¶ 4, 654 P.2d 922 (1982), where we specifically held:
“The crime of first-degree murder resulting from the perpetration of a separate and distinct felony which is inherently dangerous to human life is a separate and distinct statutory crime from that constituting the underlying felony and a prosecution for both crimes does not violate the prohibition against double jeopardy as proscribed by the Fifth Amendment to the U.S. Constitution.”
Crump clearly holds that a conviction of felony murder and the underlying felony does not violate double jeopardy. This issue is without merit.
Martin next urges the court to find that instruction number 8 unconstitutionally shifted the burden of disproving venue and jurisdiction to him. The instruction in question reads:
“Kansas Statutes Annotated 21-3104 provides in part:
“A. A person is subject to prosecution and punishment under the law of this state if:
“1) He commits a crime wholly or partly within this state.
“2) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state.
“B. An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state. If the body of a homicide victim is found within the state, the death is presumed to have occurred within the state.
“C. It is not a defense that the defendant’s conduct is also a crime under the laws of another state of the United States or of another country.” (Emphasis added.)
This instruction is derived from the language of K.S.A. 21-3104, which defines the scope of this state’s territorial jurisdiction.
The appellant correctly contends that the above instruction permitted the jury to presume that because Edward Adams’ body was found in Kansas, his death occurred within the state. However, the appellant argues this presumption improperly shifted the burden of disproving jurisdiction to him.
This argument is without substance. In addition to the above-quoted instruction, the jury received the standard instruction requiring the State to prove the appellant’s guilt beyond a “reasonable doubt,” and stating the law does not require the defendant to prove his innocence. More importantly, the trial court also instructed the jury as to the elements of each of the crimes for which the appellant was charged. These instructions all required the State to prove a common element: “That this act occurred on or about the 11th day of October, 1985, in Wyandotte County, Kansas.”
When instruction number 8 is read in conjunction with the other instructions, it is clear that the burden of proving or disproving jurisdiction was not placed on Frederick Martin.
Appellant, in his pro se brief, makes an additional argument with respect to the presumption issue discussed above. Specifically, he contends the evidence was insufficient to prove the murder occurred in Kansas.
As already pointed out, K.S.A. 21-3104(2) creates a presumption that death occurred within this state where the body of a homicide victim was found in the state. In the instant case, the victim’s body was found in Wyandotte County. Further, circumstantial evidence strengthened the presumption of death in Kansas. Dr. Alan Roth, who performed the autopsy on the victim, testified that the bullet in the victim’s chest went through the pulmonary artery and the aorta, injuries which normally result in massive bleeding. However, Dr. Roth testified that the lack of external bleeding indicated the victim was not moved after the shooting.
We have held that venue is a question of fact to be determined by the jury and, like any other fact, it may be proved by circumstantial evidence. State v. Johnson, 222 Kan. 465, 476, 565 P.2d 993 (1977).
Accordingly, we hold the evidence was sufficient to establish the murder occurred in Kansas.
We have considered every issue raised by appellant on appeal, even though not specifically mentioned herein, and conclude he received a fair trial.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This case resulted from the death of the plaintiff’s infant child who was fatally injured when run over by the appellant in his automobile. Damages were sought under the provisions of the wrongful death statute (G. S. 1949, 60-3203). Following trial by a jury, the trial court approved a verdict in favor of the plaintiff for $5,000 and rendered judgment thereon. The defendant filed motions for a new trial and for judgment notwithstanding the verdict which were overruled, and this appeal was timely perfected.
The plaintiff commenced this action on September 13, 1957, and alleged in his amended petition that on January 21, 1957, his fourteen-month-old daughter, Judy K. Morris, lived with his wife and him at 634 N. Young Street in Wichita; that on the evening of said day his child was run over and killed by the gross and wanton negligence of the defendant as he backed his Chrysler automobile in a westerly direction out of the driveway at his residence at 650 N. Young into the street; that the deceased was playing behind the defendant’s automobile and he failed to stop when he first noted a thumping or thudding sound. It was further alleged in paragraph five that the defendant was guilty of six specific acts of negligence, the sixth, or sub-paragraph (F) reading, “In failing to see the deceased Judy K. Morris when he could have and should have seen her.” The prayer was for damages in the amount of $25,000, and for costs.
On October 2, 1958, the defendant filed his motion and affidavit to stay further proceedings upon the ground he was adjudged a bankrupt on August 6, 1958, and attached a copy of the order of adjudication. He also moved to strike paragraph three from the amended petition for the reason the plaintiff failed to allege sufficient facts to constitute gross and wanton negligence. Both motions were overruled.
Subsequently, the defendant joined issue, and the case was tried to a jury resulting in a verdict for the plaintiff. The plaintiff’s evidence established in substance the allegations of the amended petition. In answer to special questions the jury found the defendant guilty of negligence as alleged in paragraph five, sub-paragraph (F) of the amended petition, and further found him guilty of gross and wanton conduct in operation of his automobile.
The defendant specifies as error the orders of the trial court overruling his demurrer to plantifFs evidence, denying his motion for judgment notwithstanding the verdict, entering judgment for the plaintiff, and overruling his motion for a new trial. In support of these contentions a number of arguments are made, all of which have been carefully noted and considered, but which, in our opinion, do not require a reversal.
Following the overruling of his demurrer to plaintiff’s evidence the defendant introduced his evidence and rested, and did not renew his demurrer or move for a directed verdict at the close of all the evidence. He thereby waived his right to contend the plaintiff’s evidence was insufficient to warrant its submission to the jury (Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295; In re Estate of Rogers, 184 Kan. 24, 27, 334 P. 2d 830; Liberty Glass Co. v. Bath, 187 Kan. 54, 57, 353 P. 2d 786; Ferrellgas Corporation v. Phoenix Ins. Co., 187 Kan. 530, 532, 358 P. 2d 786; Weber v. Wilson, 187 Kan. 214, 216, 356 P. 2d 659).
The court instructed the jury on all phases of the law of negligence appropriate to the issues raised by the pleadings and to the facts and circumstances established by the evidence of both parties, and properly defined proximate cause and gross and wanton negligence which became the law of the case. No complaint is made of any instructions given by the court.
No error was committed in denying the defendant’s motion for judgment notwithstanding the verdict. For the purpose of testing a ruling on a motion for judgment non obstante veredicto, such a motion admits the special findings to be true (Applegate v. Home Oil Co., 182 Kan. 655, 661, 324 P. 2d 203, and cases cited), and that all findings are supported by the evidence (Booker v. Kansas Power & Light Co., 167 Kan. 327, 332, 205 P. 2d 984; Koch v. Suttle, 180 Kan. 603, 306 P. 2d 123). See, also, Sheeley Baking Co. v. Suddarth, 172 Kan. 533, 538, 241 P. 2d 496. Applying the rule to the instant case, the defendant was found to be guilty of negligence which was conduct also found to be gross and wanton, and those findings are consistent and not inconsistent with the general verdict in favor of the plaintiff. A motion for judgment notwithstanding a general verdict should be sustained only when the special answers, complete in themselves, compel a verdict (Pearson v. Pearson, 159 Kan. 500, 156 P. 2d 852; White v. Toombs, 164 Kan. 635, 192 P. 2d 174). Moreover, it is noted that no motion was filed to set aside answers to special questions Nos. 1 and 2 finding the defendant guilty of negligence, and of gross and wanton conduct, on the ground they were not supported by the evidence.
The argument advanced in support of the contention the trial court erred in overruling the defendant’s motion for a new trial is that the jury disregarded the instructions on gross and wanton negligence and that its verdict was based on passion, prejudice and sympathy for the plaintiff. The point is not well taken. We have no quarrel with the cases cited by the defendant and the rule that a new trial will be granted where the verdict is unsupported by the evidence, or where passion and prejudice result in a verdict. Rut, no evidence has been pointed out by the defendant to require such a conclusion in this case. It is unnecessary to detail the evidence. All of it has been carefully examined and it was sufficient to permit the jury to draw inferences of the defendant’s negligence and gross and wanton conduct, and it supported the special findings and general verdict. As previously indicated, the special findings are consistent with the verdict and the verdict is consistent with and supported by the special findings, and the trial court did not err in refusing to grant the defendant a new trial.
The contention that the verdict was based on passion, prejudice and sympathy is without merit in view of the nominal judgment for $5,000. It is evident the jury was not swayed by any passionate pleas or statements of the witnesses, or of counsel, and that it gave due consideration to the evidence and instructions. In short, the record indicates the parties had a fair and impartial trial by an unbiased court and jury, and that the verdict and judgment were properly received and entered.
A careful examination of the record discloses no reversible error exists and the judgment is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Ron Cathey appeals his convictions of one count of aggravated battery (K.S.A. 21-3414) and one count of attempted first-degree murder (K.S.A. 21-3401). Cathey makes numerous claims, among them that the trial judge improperly admitted hearsay evidence violating his constitutional right of confrontation and that the trial judge improperly instructed the jury. We reverse and remand for a new trial.
On Saturday evening, September 7, 1985, in Pratt, Kansas, Kaycee Wheeler, accompanied by a girlfriend, Nora Parsons, asked Michael Bowers (the victim) to spend the night with her at her mother’s home. Enroute to the mother’s home, the three observed that Mark Cathey’s car had hit a parked car.
Earlier that evening, Mark Cathey, the defendant’s brother, had been drinking with Kaycee Wheeler, Nora Parsons, and Travis Parr, another boyfriend of Wheeler’s, at a local restaurant. Mark behaved boisterously.
Later that night, after he had parted company with his drinking companions, Mark Cathey used his car in an attempt to run another car, occupied by David Bishop and Jim Wenrich, off the road. A fight ensued. Mark was hit several times in the face. Soon after the fight, an off-duty police officer observed Mark Cathey’s blue Camaro hit a parked car. Mark abandoned his car and ran from the scene of the accident.
Around midnight, Mark’s brothers, Floyd Cathey and the defendant, Ron Cathey, were at Mark’s house with their girlfriends. Mark, battered and bloodied, suddenly entered his house by the back door. After reporting to the group that he had been in a fight and a car accident, Mark exited through the front door. Immediately thereafter, the police arrived looking for Mark because he had left the scene of the accident.
After the police departed, Ron and Floyd went to look for Mark. They found Mark and took him to Floyd’s girlfriend’s house. Ron and Floyd then departed to find the person who had “done this to their brother.” Unable to locate an assailant, they returned and asked a confused Mark what had occurred. Ron and Floyd believed Mark’s reply to be that Wheeler’s boyfriend, Michael Bowers, had beaten him. They left to locate Bowers and avenge their brother’s beating.
At approximately 9:00 a.m. on Sunday, the police were sent to investigate the report of a naked man lying in a back yard. They found the man, later identified as Michael Bowers, lying in the back yard of Wheeler’s mother’s home, unconscious and breathing irregularly. Bowers had been both shot below the left eye and beaten. Bowers was unable to remember anything after having been pulled out of the back door of Wheeler’s mother’s home by his assailant and was unable to identify his assailant. Both Ron and Floyd left for Colorado early that morning. Ron returned to Pratt two days later.
Law enforcement officers initially suspected that Floyd Cathey was the assailant. During the investigation of the crime, Janet Moore, Floyd Cathey’s girlfriend, gave statements to KBI agents on September 9 and September 16, 1985. She later tes tified at two inquisitions held on November 1,1985. Janet Moore maintained that she knew nothing about the shooting of Michael Bowers, Ron Cathey was also subpoenaed and testified at the inquisition on November 1, 1985.
On November 22, 1985, Moore’s sister, Nancy Jackson, gave inquisition testimony. After testifying, Nancy located Moore and informed Moore that perjury charges were pending against her. Later, Moore was given immunity by the prosecution for any perjury she had committed during the prior inquisitions. On November 25, Moore gave additional inquisition testimony which refuted her first statements. Moore testified that when Ron and Floyd returned to her house, they said “they just blew somebody away.” She stated that when she asked Floyd if he had done it, Floyd responded, “No, Ron shot him.” Moore was later charged with aiding and abetting and was placed on diversion.
On November 25, 1985, Ron Cathey was arrested for the shooting of Michael Bowers. On June 11,1986, he was convicted in a jury trial on one count of aggravated battery and one count of attempted murder. Janet Moore testified for the prosecution. Cathey appeals his convictions, raising numerous issues.
Cathey’s initial claim is that the charges of aggravated battery and attempted first-degree murder are multiplicitous, and, therefore, his convictions violate K.S.A. 1986 Supp. 21-3107(2) which states:
“Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following: . . . (d) a crime necessarily proved if the crime charged were proved.”
Multiplicity is the charging of two or more counts in a complaint where only a single criminal act is involved. State v. Garnes, 229 Kan. 368, 372, 624 P.2d 448 (1981); State v. Dorsey, 224 Kan. 152, 578 P.2d 261 (1978). K.S.A. 1986 Supp. 21-3107(1) allows charging an individual with multiple violations arising from a single transaction when the same conduct may establish the commission of more than one crime.
The principles for determining whether charges are multiplicitous are: (1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution. (2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge. (3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act. State v. Garnes, 229 Kan. at 373.
In Games, we considered the multiplicity of charges of aggravated battery and attempted murder. Games was charged with Count I, aggravated battery by shooting; Count II, aggravated battery by stabbing; and Count IV, attempted murder. The victim had been shot, then placed in a car and driven to a field. There she was robbed, taken out of the car, stabbed, run over by the car, abandoned, and left to die. Games argued, as does Cathey, that the charges in Count I, the shooting, and Count II, the stabbing, were multiplicitous with Count IV, attempted murder, because the facts formed one continuous series of events. It was determined that, since the shooting relied upon in Count I occurred at an earlier time and place than the other criminal acts, it was a separate and distinct offense and was not multiplicitous with Count IV. However, since the stabbing in Count II occurred contemporaneously with running over the victim and leaving her to die, the aggravated battery by stabbing charge was multiplicitous with the charge of attempted murder.
The multiplicity of charges of aggravated battery and attempted first-degree murder was also considered in State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984). There, since the only overt act was the shooting of the victim, basing both the aggravated battery and the attempted first-degree murder charges on a single act of shooting was clearly multiplicitous.
Here, we do not have two acts separated by the passage of time as in Games, nor do we have one act which has formed the basis of two separate charges as in Turbeville. The State argues that, though there was only one victim, there were two separate acts of violence — a beating and a shooting — and the person who inflicts such injuries can be charged with aggravated battery and attempted murder. We disagree. Where there is only one victim and two acts of violence — a beating and a shooting — occurring at approximately the same time and place, the person who inflicts such injuries cannot be charged with both aggravated battery and attempted murder. To hold otherwise would be inconsistent with our reasoning in Games that when a series of violent acts occurs simultaneously, it is multiplicitous to charge both aggravated battery and attempted first-degree murder.
Cathey’s next claim is that by admitting his inquisition statement, the trial court violated his Fifth and Sixth Amendment rights. We disagree.
The Kansas inquisition procedure is an investigatory tool available only to the attorney general, his assistant, or the county or district attorney. Though most often used to determine whether probable cause exists to support a criminal prosecution, an inquisition may also be conducted to obtain additional evidence from the same or other witnesses after a suspect has been bound over for trial. State v. Hobson 234 Kan. 133, 143, 671 P.2d 1365 (1983).
Prior to being charged, Cathey was subpoenaed to give testimony at an inquisition held November 1,1985. As is required by K.S.A. 22-3102 and K.S.A. 22-3104, Cathey was informed before testifying that he had the right to counsel and the right to refuse to answer any questions that were self-incriminating. Cathey stated that he understood the warning and that if he felt he needed an attorney at any time, he would request one. Cathey’s inquisition statement was later introduced into evidence during his trial.
Cathey claims that, since his inquisition statement was derived from a custodial interrogation, it was involuntary and should not have been admitted into evidence at trial. Miranda v. Arizona, 384 U.S. 436, 478, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
The basis for admissibility of a defendant’s custodial statement into evidence at trial is whether the individual gave the statement voluntarily after knowingly and intelligently waiving his constitutional rights. Cathey argues that, since his appearance at the inquisition was required by subpoena and his statement was made under threat of contempt, such appearance equates with custodial interrogation, requiring that he be informed of his constitutional rights as per Miranda.
A pretrial statement by an accused is involuntary if elicited either through coercion or derived from a custodial interrogation without the benefit of the Miranda warnings and a knowing and intelligent waiver of the privilege against self-incrimination. State v. Mooney, 10 Kan. App. 477, 480, 702 P.2d 328 (1985), citing Miranda v. Arizona. We have often recognized that there is a distinction between custodial and investigatory interrogation. State v. Taylor, 234 Kan. 401, 405, 673 P.2d 1140 (1983). Custodial interrogation is the questioning of persons by law enforcement officers, initiated and conducted while such persons are held in legal custody or are otherwise deprived of their freedom of action in any significant way. Investigatory interrogation is the questioning of persons by law enforcement officers in a routine manner in an investigation which has not reached an accusatory stage and where such persons are not in legal custody or deprived of their freedom of action in any significant way. State v. Price, 233 Kan. 706, 712, 664 P.2d 869 (1983).
Cathey reasons that if a witness in an inquisition is subsequently charged with a crime within the scope of the inquiry, that witness’ statement cannot later be introduced into evidence. He asserts that because individuals summoned to testify at an inquisition are subject to contempt charges for non-appearance or failing to testify, significant restraints on their freedom exist. Thus restrained, individuals later charged with a crime must be given the Miranda warning rather than the required statutory warnings.
We do not agree with Cathey’s reasoning. The statutory warnings are fully adequate to protect the constitutional rights of a witness who, after giving a statement, is later charged with a crime. An inquisition, K.S.A. 22-3101 et seq., equates with routine questioning of witnesses by law enforcement officers during an investigation of a possible crime. Both are inquiries to determine if a crime has been committed and to obtain information sufficient to charge the perpetrator of the crime. The legal distinction is that the inquisition procedure provides a county attorney, a district attorney, or the attorney general or assistant attorney general with the power to have witnesses appear at the inquisition and testify under oath.
Although the witness’ presence at the inquisition is compelled, the witness’ self-incriminating statements are not. Nor are there any physical restraints on the witness’ freedom. An individual who fails to appear after being summoned or refuses to give a non-incriminating statement is subject to civil contempt, not criminal punishment. Under such circumstances, a warning under Miranda is not constitutionally required. K.S.A. 22-3104’s statutory safeguards are fully adequate to protect an inquisition witness’ constitutional rights, even where that witness is subsequently accused of committing the crime under investigation. The trial judge did not err when he refused to suppress the defendant’s inquisition statement.
Cathey also contends that because his inquisition statement was not taken in the presence of a district judge, it could not later be admitted into evidence. The trial judge ruled that an inquisition is not required to be held in the presence of a judge.
The former inquisition statute, G.S. 1949, 62-301, provided:
“If a county attorney, attorney general, or assistant attorney general shall be notified by any officer or other person, or shall have knowledge of any violation of any law of this state relating to gambling, intoxicating liquors, or of any violation of any law where the accused is a fugitive from justice, it shall be his duty forthwith diligently to inquire into the facts of such offense, and for that purpose he is hereby authorized to issue subpoenas for such persons as he shall have any reason to believe have any information concerning, or knowledge of such offense, to appear before him, at a time and place to be designated in the subpoena, then and there to testify concerning any offense against the laws of the state; or said county attorney, attorney general or assistant attorney general may file with the judge of the district court, a judge of the city court, or with some justice of the peace of the county, a written statement signed by him, alleging any offense against the laws of this state and such judge or justice of the peace shall, on the written praecipe of the county attorney, attorney general or assistant attorney general, issue a subpoena-for the witnesses named in such praecipe, commanding such witnesses to be and appear before such judge or justice of the peace at a time stated in such subpoena, to testify concerning any offense against the laws of the state.” (Emphasis added.)
This statute was amended in 1970 and replaced by K.S.A. 22-3101. K.S.A. 22-3101 (1) provides as follows:
“22-3101. Inquisitions; witnesses. (1) If the attorney general, an assistant attorney general, or the county attorney of any county is informed or has knowledge of any alleged violation of the laws of Kansas, such person may apply to a district judge to conduct an inquisition. An application for an inquisition shall be in writing, verified under oath, setting forth the alleged violation of law. Upon the filing of the application, the judge with whom it is filed shall, on the written praecipe of the attorney general, assistant attorney general or county attorney, issue a subpoena for the witnesses named in such praecipe commanding them to appear and testify concerning the matters under investigation. Such subpoenas shall be served and returned as subpoenas for witnesses in criminal cases in the district court.”
Defendant points to the Judicial Council note following the inquisition statutes, which states:
“Judicial Council, 1969: Former Kansas statutes provided for two general types of inquisition proceedings:
(a) In cases involving alleged violations of the laws relating to gambling or intoxicating liquors or where the accused is a fugitive from justice, the county attorney or attorney general may, upon his own initiative, call and examine witnesses. In such instances the presence of a judge or magistrate is not required.
(b) In cases not included in (a) above, the county attorney may file a statement before a judge or magistrate alleging violations of law and cause the judge to subpoena witnesses for interrogation. In this case, the examination of witnesses must be in the presence of the judge or magistrate.
This article retains essentially the provisions of the former law except that when the inquisition is conducted before a judicial officer it must be conducted before a district judge. The inquisition may intrude upon sensitive areas, involving self-incrimination, privileged communications, grants of immunity, and other important rights of the witness called to testify. Hence, the section provides for counsel to advise the witness concerning his testimony.
Except for the matters noted, this section is substantially like the prior law.”
We disagree with Cathey and the conclusion reached by the Judicial Council. An inquisition is in effect a one-person grand jury which provides the attorney general, his assistant, or any county or district attorney with authority to inquire into alleged violations of the law. If the alleged violations pertain to racketeering, bribery, tampering with a sports contest, narcotics or dangerous drugs, or any violation of the law where the accused is a fugitive from justice, the officer conducting the inquisition may issue subpoenas compelling individuals to appear and testify without judicial intervention. K.S.A. 22-3101(2). All other inquiries of alleged crimes require the investigating officer to file a written verified application with a district judge to obtain subpoenas for witnesses to appear and give testimony at an inquisition. If, after reviewing the application for an inquisition, the district judge determines that the application is legally defective, to avoid abuse of judicial process, the district judge has the authority to refuse to issue subpoenas. State ex rel. Cranford v. Bishop, 230 Kan. 799, 640 P.2d 1271 (1982).
Neither the attorney general, his assistant, the county or district attorney, nor the foreman of the grand jury has contempt power to enforce orders. If a person disobeys a subpoena to appear, refuses to be sworn as a witness, or refuses to answer proper questions before the grand jury or at an inquisition, only a judge has the power of contempt to enforce compliance with the order. A witness who fails to comply with a lawful request of the grand jury or a lawful request of the officer conducting an inquisition is brought before the judge and the judge then determines whether the witness is to be found in contempt and civilly punished for failure to comply with a lawful request.
When a grand jury is conducting an investigation into alleged violations of the law, the judge is also required to perform certain statutory duties, but the judge does not participate in the investigation or attend or conduct the meetings of the grand jury. By deleting the requirement that the inquisition be conducted in the presence of a judge, the legislature intended that the inquisition procedure conform to the procedure of the grand jury.
The fundamental rule of statutory construction, to which all other rules are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statutes. When a statute is plain and unambiguous the court must give effect to the intention of the legislature as expressed. Johnson v. McArthur, 226 Kan. 128, 135, 596 P.2d 148 (1979). The plain language of K.S.A. 22-3101 provides for two types of inquisition procedures. The first requires application to a district judge for the issuance of subpoenas, the second does not; however, as in the grand jury hearings, the taking of a witness’ statement during an inquisition does not require the actual presence of a district judge. The defendant’s contention is without merit.
Defendant also cites State v. Hobson, 234 Kan. 133, for the proposition that inquisition statements are never admissible at trial. Hobson merely stated that the deposition statute, K.S.A. 22-3211, provides a method to preserve testimony in the event a “material witness” will be unavailable for trial. To insure that the accused’s right of confrontation is not violated, the statute sets forth strict rules under which such testimony may be admitted as evidence at the accused’s trial. The inquisition statutes, on the other hand, are designed to permit the county or district attorney or attorney general to subpoena and question witnesses in order to investigate criminal matters and the extent of the accused’s involvement in such activities. This testimony is not admissible at trial. 234 Kan. at 144.
Our statement in Hobson is consistent with the holding in State v. Phifer, 241 Kan. 233, 737 P.2d 1 (1987), that, where a witness is not available to testify at the accused’s trial, the transcript of the witness’ testimony given at a hearing on a motion to suppress is barred from being introduced into evidence in a criminal trial as an exception to the hearsay rule. In a criminal case, K.S.A. 1986 Supp. 60-460 bars all hearsay statements of unavailable witnesses except those statements taken pursuant to the deposition statute and the testimony transcribed at the preliminary examination. Since there is no confrontation problem, neither Hobson nor Phifer applies to a defendant’s statements taken at an inquisition.
Defendant further contends that, because he did not sign his statement, the trial court’s admission of his inquisition statement violated K.S.A. 22-3101(3), which provides:
“Each witness shall be sworn to make true answers to all questions propounded to him or her touching the matters under investigation. The testimony of each witness shall be reduced to writing and signed by the witness.”
After reading the transcript of his testimony at the inquisition, Cathey refused to sign the transcript. Neither at trial nor on appeal did Cathey claim that his refusal to sign the transcript of the inquisition was based on the fact that it inaccurately reflected his statement. Cathey first stated that he refused to sign the statement, upon the advice of his attorney, because his attorney objected to its use at trial. To now argue that the statement was inadmissible because he did not sign it is circular reasoning not permitted or contemplated by the statute. Clearly, a defendant may not prevent the use at trial of otherwise admissible testimony by simply refusing to sign the inquisition statement.
The purpose of having a witness sign the inquisition statement is twofold. First, the individual who signs the statement is identified as the person who gave the statement. Second, the individual is afforded the opportunity to review his statement and correct any errors that occurred in the transcription of the statement. Under proper circumstances, an accused’s unsigned inquisition statement may be admitted into evidence. Cathey’s contention that his unsigned inquisition statement could not be admitted into evidence in his trial is without merit.
Janet Moore gave inquisition testimony twice on November 1, 1985. After this, Janet told her sister, Nancy Jackson, that she had lied at the inquisition to protect her boyfriend, Floyd Cathey. Concerned for her sister, Nancy then placed a call to Crimes-toppers. Subsequently, Nancy Jackson and her husband, Jack, were subpoenaed for an inquisition statement on November 22, 1985. After this inquisition, Nancy told her sister, Janet, that peq'ury charges were pending against Janet for statements given in the inquisitions on November 1, 1985. Janet was then offered immunity by the State for perjury she might have committed in the inquisitions of November 1, 1985. On November 25, 1985, Janet Moore gave another inquisition statement. Charges against the defendant were filed on the same date. Janet Moore’s testimony at trial conformed with her last inquisition testimony.
Cathey argues that the grant of immunity to Janet Moore for prior perjury violates his Fourteenth Amendment rights and K.S.A. 22-3415, which provides:
“22-3415. Laws applicable to witnesses; immunity from prosecution or punishment. The provisions of law in civil cases relative to compelling the attendance and testimony of witnesses, their examination, the administration of oaths and affirmations, and proceedings as for contempt, to enforce the remedies and protect the rights of the parties, shall extend to criminal cases so far as they are in their nature applicable, unless other provision is made by statute.
The county or district attorney or the attorney general may at any time, on behalf of the state, grant in writing to any person immunity from prosecution or punishment on account of any transaction or matter contained in any statement or about which such person shall be compelled to testify and such statement or testimony shall not be used against such person in any prosecution for a crime under the laws of Kansas or any municipal ordinance. After being granted immunity from prosecution or punishment, as herein provided, no person shall be excused from testifying on the ground that his testimony may incriminate him unless such testimony is a violation of federal law. He shall not be granted immunity from prosecution for perjury or false statement or any other crime committed in giving such evidence.”
The statute clearly states that the prosecutor may grant immunity from prosecution to a witness for any matter revealed in a statement the witness is compelled to make. The last sentence of the statute indicates that once immunity from prosecution has been granted, and the witness testifies, that witness may not be granted further immunity from prosecution for perjury for that testimony.
Defendant cites State v. Bryant, 228 Kan. 239, 613 P.2d 1348 (1980), for the proposition that the statute precludes the State from granting immunity for perjury. Defendant’s reliance is misplaced. In Bryant, defendant made a motion for a new trial based on newly discovered evidence. The basis for the motion was the alleged recanted testimony of a key witness, the codefendant. Both Bryant and the codefendant had already received immunity in exchange for testifying about the other’s participation in the crime. At the hearing on Bryant’s motion for a new trial, the codefendant refused to testify, claiming his privilege under the Fifth Amendment. By testifying, the codefendant would háve admitted his earlier perjury. In rejecting Bryant’s argument that the State could or should have offered the codefendant immunity, we held that such a grant of immunity for perjury committed while already testifying under a grant of immunity was precluded by the statute. 228 Kan. at 247.
The Court of Appeals has also recently addressed this issue in State v. Brewer, 11 Kan. App. 2d 655, 732 P.2d 780, rev. denied 241 Kan. 839 (1987). In holding that the State did not err in granting immunity for perjury committed at the defendant’s preliminary hearing, the Court of Appeals correctly determined that Bryant solely forbids a grant of immunity for perjury committed while testifying under a grant of immunity. 11 Kan. App. 2d at 659 (citing United States v. Alter, 482 F.2d 1016, 1028 [9th Cir. 1973]).
The case at hand is clearly distinguishable. There was no attempt to grant Janet Moore immunity for perjured testimony given while already under a grant of immunity. The State only granted immunity for her prior inquisition testimony for which no earlier immunity had been granted and such is clearly not precluded by the statute.
Cathey next contends that his Sixth Amendment right to confront the witnesses against him was violated when, under K.S.A. 1986 Supp. 60-460(d)(3), the trial court admitted the out-of-court statements of three witnesses given to a KBI agent five days after the crime. The witnesses were the defendant’s cousin and two brothers of defendant’s girlfriend.
The testimony of the three witnesses, as related by the KBI agent, was essentially that both Floyd and Ron Cathey were at an E-Z Shop around 2:00 a.m. on Sunday, September 8, 1985. Both Floyd and Ron told the witnesses that their brother Mark had been beaten up, that they were angry about it, and that they were going out to “get his ass.” Two of the witnesses stated that Floyd Cathey had a gun in his pocket.
To admit hearsay statements under 60-460(d)(3), the trial court must find (1) the declarant is unavailable as a witness; (2) the matter described was recently perceived by the declarant and the statement made while his memory was fresh; and (3) the statement was made under circumstances so as to show that it was in good faith, before there was an action pending, and with no incentive to falsify or distort. 1 Gard’s Kansas C. Civ. Proc. 2d Annot § 60-460(d), p. 240 (1979). The trial court is necessarily given considerable discretion in admitting statements under this exception. Vernon’s Kansas C. Civ. Proc. § 60-460(d) (1965); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d) (1979). In Smith v. Estate of Hall, 215 Kan. 262, 268, 524 P.2d 684 (1974), we held that under this provision the presence or absence of an incentive to falsify or distort is a question of fact to be determined by the trial judge in light of all the circumstances. See State v. Hobson, 234 Kan. at 158; State v. Brown, 220 Kan. 684, 688, 556 P.2d 443 (1976).
However, the factors enumerated in K.S.A. 1986 Supp. 60-460(d)(3) must be balanced by the requirements of the confrontation clause of the Sixth Amendment. The right of the accused to confront the witnesses against him is a fundamental right, essential to a fair trial, and is made obligatory on the states by the Fourteenth Amendment. The major reason underlying the constitutional confrontation rule is to give a defendant charged with a crime the opportunity to cross-examine the witnesses against him. Pointer v. Texas, 380 U.S. 400, 403-04, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965).
Prior to admission of the hearsay, Cathey’s attorney claimed he would be, unable to cross-examine the missing witnesses. The trial judge replied:
“But that isn’t the test really after reading the statute. The test is whether or not the events were so recently perceived and whether his memory is fresh.”
After a later objection by the defendant, the trial court stated:
“I find that the declarant is unavailable as a witness. That the matter described was — have [sic] been recently perceived by the declarant. That he made the statement to Agent Burns while his memory was fresh. The statement was made under circumstances to show that it was made in good faith, before there was an action pending and certainly he had no incentive to falsify or distort these statements made about his friend, so I’m going to admit them.”
The trial judge did not consider the constitutional requirement of the right of confrontation.
Our hearsay rules and the Sixth Amendment’s confrontation clause are generally designed to protect similar values and stem from the same roots. If the witness is unavailable, the confrontation clause requires that the otherwise admissible hearsay statements must be shown to have an adequate “indicia of reliability.” After a showing that the hearsay statement has particularized guarantees of trustworthiness, the statement may be admitted into evidence. Ohio v. Roberts, 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985).
The rule against admission of hearsay statements stems from the long-established belief that cross-examination is the best vehicle for discovering the truth and that the most reliable statements come from the witness stand. The trial judge did not require the State to provide any foundation of reliability for the admission of the witness’ hearsay testimony. Failure of the State to show that the absent witness’ statements had a particularized guarantee of trustworthiness violated the confrontation clause of the Sixth Amendment.
Cathey’s final claim is that the trial judge erred when he instructed the jury that it could consider the defendant’s alleged flight in determining guilt or innocence.
The instruction in question reads as follows:
“INSTRUCTION NO. 19
“If you find from the evidence that the defendant, soon after the commission of the alleged offense, fled to avoid arrest and trial, you may take that fact into consideration in determining his guilt or innocence. Flight, if such occurred, is not sufficient in itself to establish guilt, and if such flight is not explained to the satisfaction of the jury then it is a circumstance which you may consider in determining the possibilities of the defendant’s guilt or innocence. The weight to which that circumstance is entitled is a matter for the jury to determine in connection with all the facts in the case.”
Evidence to establish the defendant’s consciousness of guilt such as flight, concealment, fabrication of evidence, or the giving of false information is admissible as evidence in a criminal case. However, in State v. McCorgary, 218 Kan. 358, 365, 543 P.2d 952 (1975), cert. denied 429 U.S. 867 (1976), this court disapproved instructing the jury regarding flight because the trial judge thereby emphasized and singled out certain evidence admitted at a criminal trial. We directed that, in any subsequent trial of McCorgary, the entire instruction on consciousness of guilt be omitted from the instructions to the jury. This insures that the weight of all evidence is left to the jury and special emphasis is not to be given in the instructions. See State v. Jones, 3 Kan. App. 2d 553, 598 P.2d 192 (1979).
The State argues that Instruction No. 19 was proper because it was counterbalanced by Instruction No. 11, which stated:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
The State cites Jones for the proposition that the giving of an instruction similar to Instruction No. 11 may somehow cure an improper instruction. The State’s reliance on Jones is misplaced. The court in Jones found that the giving of the instruction was harmless error because the instruction in question, stating that a person may be under the influence of alcohol “even though he may walk straight or give no visible signs of intoxication to the casual observer,” was no “grave departure” from the accepted form of approved instruction. 3 Kan. App. 2d at 555.
The purpose of instructing the jury is to guide the jurors in their deliberations and to aid them in arriving at a legally proper verdict. It is the trial judge’s duty to explain to the jury the law of the case and to point out the elements necessary to be proved by the State in a criminal case. Instructions which are erroneous and misleading can constitute grounds for a new trial. When instructing a jury, a trial judge may not single out and give undue emphasis to particular evidence, even though the instruction states the correct principle of law.
It is clearly erroneous for a judge to instruct the jury on a defendant’s consciousness of guilt by flight, concealment, fabrication of evidence, or the giving of false information. Such an instruction singles out and particularly emphasizes the weight to be given to that evidence by the jury. The flight instruction was clearly a grave departure from the accepted form. By giving the flight instruction, the trial judge violated the McCorgary prohibition. This violation and other trial errors require that Cathey’s conviction be reversed and the case be remanded for a new trial in accordance with this opinion.
Reversed and remanded for a new trial.
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The opinion of the court was delivered by
Lockett, J.:
John F. Clements, Jr., appeals his jury trial con viction of aggravated criminal sodomy (K.S.A. 1986 Supp. 21-3506[a]).
The general background facts may be summarized as follows. Clements lived with his fiancee in her trailer. The trailer was located approximately 50-70 feet from a baseball card shop operated out of a home. Eleven-year-old P.V. first met the 27-year-old defendant in early May 1985 at the baseball card shop. It was a gathering place for young boys interested in baseball cards. Defendant invited P.V. to his residence several times. Defendant was charged with having sodomized P.V. on the latter’s next to last visit to defendant’s residence in late May 1985. Two counts of promoting obscenity to a minor (K.S.A. 21-430la) involving two other young boys were filed in the same complaint. These latter charges arose from September 1985 incidents which involved showing pornographic material to the boys. Trial on all three charges occurred in December 1985, with defendant being convicted on the obscenity charges. A mistrial was declared on the sodomy charge as the jury was unable to reach a verdict. Upon retrial of the sodomy charge in January 1986, Clements was convicted. This direct appeal is from the sodomy conviction. Additional facts will be stated as necessary for determination of particular issues on appeal.
In his first issue, Clements contends the trial court improperly allowed a mental health therapist to give opinion evidence on the child victim’s credibility.
From September 1985 through the trial in January 1986, P.V. was being counseled by Thomas Pletcher, a mental health therapist. His background included experience with sexually abused victims and specialized training for the treatment of sexually abused victims. Pletcher saw P.V. in counseling seven times up to the time of Pletcher’s trial testimony. Pletcher testified as to what P.V. had told him about being sodomized by the defendant. Over defendant’s objection, Pletcher testified that P.V.’s progress in therapy during counseling was consistent with what he would expect when a young boy has been sodomized under such circumstances. Pletcher testified that had P.V. been sodomized over a period of time by a very close family member or forcibly sodomized, the psychological damage would have been greater and his progress in therapy would have been slower. Force was not involved in the incident as related by P.V. Defendant, in his testimony, denied any act of sodomy had taken place.
Clements likens Pletcher’s testimony to that held improper in State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), and State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985).
In State v. Jackson, the trial court had permitted two expert witnesses, social workers with expertise in child abuse treatment, to testify before a jury that “in their opinions the child was telling the truth and in their opinions the defendant committed the acts of molestation with which he was charged.” 239 Kan. at 470. This court reversed. Labeling the expert opinion testimony as prejudicial error, the court explained:
“Here, the witnesses attempted to serve as human lie detectors for the child and both told the jury that in their professional opinions the child was truthful and the defendant was guilty as charged. We are convinced that it was the function of the jury to hear the testimony of the witnesses as to what the child said, and then to make a determination of the reliability of the child’s statements.” 239 Kan. at 470.
We then held:
“An expert’s opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.” 239 Kan. 463, Syl. ¶ 8.
In State v. Lash, 237 Kan. 384, the defendant was accused of sexually molesting his fifteen-year-old son. A psychologist who had interviewed the son was called to testify as an expert witness. The prosecutor asked the psychologist for his opinion, based on results of his testing and interviewing the son, whether the son had been sexually molested by the father. The defense objected. The court then permitted the psychologist to testify as to whether he had an opinion whether the son had been sexually molested, but would not permit the expert to testify as to whether the son had been sexually molested by the father. 237 Kan. at 384-85. The defendant was acquitted. The State appealed on a question reserved, namely, did the trial court err in not permitting the expert to testify that in his opinion the son had been sexually molested by the defendant? We upheld the lower court’s ruling, stating:
“In the case now before us, the alleged victim was fifteen years of age and testified before the jury. The defendant, likewise, testified and denied any acts constituting indecent liberties with his son. In this case, when the prosecutor asked the psychologist to give his expert opinion as to whether the alleged victim had been sexually molested by his father, the prosecutor, in effect, was asking the expert for his opinion as to whether the son was telling the truth that his father was his molester. The question clearly was improper, since such an expression of opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence. Under the circumstances shown in the record in this case, we hold that the district court did not err in its ruling that the psychologist could not testify before the jury as to his expert opinion that the alleged victim had been sexually molested by the defendant, his father.” 237 Kan. at 386.
Defendant contends that Pletcher was improperly permitted to testify concerning P.V.’s credibility. We do not agree. Although the complained-of testimony was close to the line of impermissibility, it does not cross the line. The witness did not give an opinion as to whether or not P.V. was telling the truth. Rather, the testimony may be compared to a situation where a patient tells his treating physician he had been held without food and water in a certain type of environment, and the physician testifies the victim’s initial condition and progress in treatment are consistent with the events related to him by the patient. The physician, under such circumstances, is not testifying that any particular person committed a criminal act against his patient or that his patient is telling the truth as to how or by whose acts he suffered injury. The door is thus left open to cross-examination relative to other causal circumstances which might also be consistent with the physician’s opinion as to his patient’s condition and progress.
Mr. Pletcher’s testimony relative to his patient’s initial condition and progress during treatment may tend to corroborate parts of P.V.’s testimony inferentially, but Pletcher’s testimony is not an impermissible opinion on whether or not P.V. is testifying truthfully as to the facts giving rise to sodomy charges.
We conclude the trial court did not abuse its discretion relative to the admission of the complained-of portion of Pletcher’s testimony.
For his second issue, Clements contends the trial court erred in the giving of an instruction relative to witness credibility.
The instruction given was:
“It is for you to determine the weight and credit to be given to the testimony of each witness. You have a right to use that knowledge and experience which you possess in common with men in general, in regard to the matter about which a witness has testified. You may take into account the witnesses [’] ability and opportunity to observe and know the things about which he or she has testified, their memory, manner and conduct while testifying, and any interest they may have in the result of this trial, and the reasonableness of their testimony considered in the light of all the evidence in this case.”
Defendant argues that this instruction was prejudicial because it focused on some testimony and undercut his own testimony.
On appeal, Clements contends PIK Crim. 2d 52.09 should have been given. This pattern instruction states:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
K.S.A. 22-3414(3) provides, in pertinent part:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury.”
Defendant made no contemporaneous objection as required by the statute. Instead, defense counsel stated, “I have no objection to any of the Court’s instructions.”
In State v. Maxwell, 234 Kan. 393, Syl. ¶ 5, 672 P.2d 590 (1983), this court stated the rule of law pertaining to unobjected-to jury instructions:
“When an instruction has not been objected to at trial, this court’s scope of review is limited to a determination of whether the instruction is clearly erroneous. An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict. (Following State v. Stafford, 223 Kan. 62, Syl. ¶ 2, 573 P.2d 970 [1977].)”
See State v. Mason, 238 Kan. 129, 140, 708 P.2d 963 (1985); State v. Price, 233 Kan. 706, 711, 664 P.2d 869 (1983); State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982).
A similar challenge was made to a similar instruction in State v. Willis, 240 Kan. 580, 731 P.2d 287 (1987). In Willis, as in the case before us, there was no contemporaneous objection to the instruction. We concluded in Willis that the instruction was not clearly erroneous although the better practice would have been to have given PIK Crim. 2d 52.09. The instruction before us is virtually identical to the first paragraph of the Willis instruction and we conclude that its giving is, likewise, not clearly erroneous.
The third issue raised by Clements is whether the district court erred in not instructing the jury on the lesser included offense of indecent liberties with a child.
K.S.A. 1986 Supp. 21-3107(3) provides:
“In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
Defense counsel neither requested such an instruction nor objected to the lack of such an instruction.
We turn then to the question of whether the trial court had a duty to instruct on indecent liberties with a child as a lesser included offense to the aggravated criminal sodomy charge herein.
K.S.A. 1986 Supp. 21-3506 provides, in pertinent part:
“Aggravated criminal sodomy is:
(a)Sodomy with a child who is not married to the offender and who is under 16 years of age.”
Aggravated criminal sodomy is a class B felony. This statute was in effect in the same form in 1985.
K.S.A. 1984 Supp. 21-3503(1) provides:
“Indecent liberties with a child is engaging in any of the following acts with a child who is not married to the offender and who is under 16 years of age:
(a) Sexual intercourse;
(b) sodomy; or
(c) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.”
Indecent liberties with a child is a class C felony. Section (b), which included sodomy as a part of K.S.A. 1984 Supp. 21-3503(1), was only effective for a one-year period between July 1, 1984, through July 1, 1985. The 1985 legislature removed sodomy from the statute.
The State concedes sodomy with the child herein could have been charged as either aggravated criminal sodomy (K.S.A. 1986 Supp. 21-3506) or indecent liberties with a child (K.S.A. 1984 Supp. 21-3503[l][b]), and that the offenses are identical, the only difference being that the former is a class B felony and the latter is a class C felony. Where identical offenses are involved, the question is not truly a matter of one being a lesser included offense of the other. Each has identical elements and the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to identical offenses, a defendant can only be sentenced under the lesser penalty. Here, it would have been the better practice to have instructed on indecent liberties with a child, but the error could have been remedied by sentencing defendant as having been convicted of a class C felony rather than a class B felony. Accordingly, the sentence imposed herein must be vacated.
For his final issue, defendant contends the trial court erred in admitting evidence of prior crimes under K.S.A. 60-455.
K.S.A. 60-455 provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The State claims the evidence of Clements’ 1982 convictions in Alaska of sodomy and lewd acts involving five boys was admissible to show plan or scheme under K.S.A. 60-455. In 1981, while serving in the United States Navy, Clements was stationed in Alaska. The State asserts Clements’ plan or scheme was to become involved in Boy Scout work so he could befriend young boys, gain their confidence so they would be alone with him without concern, and then sodomize them. It contends that four years later, a similar plan was utilized by Clements in visiting the baseball card shop frequented by young boys and gaining their friendship and confidence, which ended in P.V. being sodomized in defendant’s home.
Clements argues that the evidence was introduced to prove his inclination, tendency, propensity, or disposition to commit sodomy. After reviewing the record, we agree.
Evidence that a person has committed a crime or civil wrong in the past is not admissible as an inference that the person committed a subsequent crime or civil wrong. K.S.A. 60-455, under specific circumstances, allows the State in its case in chief to introduce evidence of a prior crime or civil wrong when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. When ruling on the admissibility of evidence of a prior conviction under 60-455, the judge must (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine that fact is a disputed material fact, and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury. If the potentiality of natural bias and prejudice overbalances the contribution to the rational development of the case, the evidence must be barred. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974).
Before trial, the State announced that it would introduce evidence of Clements’ prior convictions. The State assured the trial judge that it was not offering the evidence of Clements’ prior convictions just to prove that he had a prior conviction for a similar offense but to show Clements’ plan or scheme. The State contended that it would prove that four years earlier Clements had become involved with Boy Scouts so that he could prey on young boys. The defendant objected. The trial judge did not rule on the admission of the defendant’s prior convictions until after the trial had commenced. Unfortunately, the record of the State’s case in chief is devoid of any such evidence of a plan or scheme. The trial record reveals the State presented only evidence of Clements’ prior convictions for sodomy in its case in chief.
The deputy county attorney in his opening statement pronounced:
“Now, the defendant, he will testify — he will tell you that the defendant did not admit the crime, he denied it, but Lt. Murphy will tell you, ladies and gentlemen of the jury, that at some point in the investigation he determined that Mr. Clements . . . may have been charged while in the Navy with similar offenses. By that I mean sexual abuse of young children. Lt. Murphy will then testify that he inquired of the Navy about that and that he received from the Navy certain documents, and while he is on the stand, I will hand him and he will testify concerning the Navy personnel record of John F. Clements, Jr. Contained in — within those Navy records, personnel records is information indicating that in April of 1980, this defendant was convicted of various counts of sodomy, sodomizing young boys and of engaging in lewd and lascivious behavior with young boys and was sentenced by a general court martial and confined to a Navy brig for a period of time for those offenses. Now, ladies and gentlemen, as the Court has told you and as Mr. Stansbury has told you and I will tell you again, the State has the burden of proving this case beyond a reasonable doubt.
During the State’s case in chief, the trial court ruled on the State’s motion to admit evidence of defendant’s prior convictions, stating:
“I was asked to admit the authenticated records, personnel records of the defendant which were submitted to the Court plus a certified copy of a journal entry. I think the first thing that a trial court has to do is to weigh this type of evidence to balance that type of evidence for it[s] probative value against any prejudicial effect, and the Court feels that in this particular instance the probative value does outweigh any prejudice or effect that the admission of those two exhibits might have on the jury. Once again, I am allowing this only for the purposes of plan or scheme, and I realize that plan is the only thing that is going, but the appellate court has sometimes used plan and scheme more or less interchangeably.”
After additional testimony, the State called the investigating officer, Detective Murphy of the Rutler County Sheriff s department, as a witness. Detective Murphy testified about his investigation and was then asked to identify the records of the defendant’s prior conviction. The defense attorney’s objection to the admission of the records into evidence was overruled by the judge. The trial judge then instructed the jury:
“Ladies and Gentlemen of the Jury: At this time you are instructed that evidence — this evidence hasn’t been introduced as yet, but apparently is going to be by the State and tending to show that prior to the time alleged in the Information and on another occasion the defendant committed other acts and crimes similar to the charge of aggravated criminal sodomy as is found in this particular 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 for the offense charged here, and the same is insufficient in standing by itself to support a verdict of guilty to the charge of aggravated criminal sodomy. 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 plan or scheme as it relates and is relevant to the offense of aggravated criminal sodomy. This evidence should be considered along with all of the other evidence for this purpose only and should be disregarded for any other purposes.”
He then admitted Clements’ Navy record into evidence.
Detective Murphy then testified:
“Q (By Mr. Ward) Detective Murphy, you are a former serviceman, aren’t you?
“A Yes, 1 am.
“Q Are you familiar with the service initials that are used in the service for . various words?
“A Oh, lots of them, yes sir.
“Q Okay. Would you tell the jury, if you can, what that page on State’s No. 6 that you have been referring to says, please?
“A What it is referring to is a general court martial in which the offense is a violation of the Uniform Code of Military Justice, Article 125, and six counts, all counts of that article.
“Q (By Mr. Ward) I mean — got to paraphrase it in your own words. What does that document say?
“A One through five specifications did at the naval station, Adak, Alaska. Pardon me. Commit sodomy with a child under the age of sixteen — No. 1, on or about 6 September 1981. Number 2, on or about 23 August 1981. Number 3, on or about 24 August 1981. Number 4, on or about 27 August 1981. Number 5, on or about 30 May 1981; and Number 6, on or about August 1981, at Great Sitkin Island, Alaska. The violation of the Uniform Code of Military Justice, Article 134, two specifications of both specifications — Commit a lewd act upon the body of a male under sixteen years of age. Number 1, at Naval station at Adak, Alaska, on or about 30 May 1981; and Number 2, at Great Sitkin Island, Alaska, on or about 20 August 1981.
MR. STANSBURY: That is on page number—
“Q (By Mr. Ward) Detective Murphy, do you know what the word ‘specification’ means as used by the military?
“A Specification to my knowledge as used by the military means ‘count.’
“Q Okay. Please proceed with your recitation of that first paragraph there.
“A There was a sentence adjudged and I am not sure what the CHL X 10 years is there and FF of $300 X 2 years.
“Q Do you know what FF means in military usage?
“A I believe that is forfeiture of fine, and the RIR, which to my knowledge is a reduction in rank to E-l and a DD, which is a dishonorable discharge.
“Q Now, I believe in all fairness to the defendant that there is a later paragraph perhaps on this same page that modifies that previous sentence adjudged; and would you please read to the jury paragraph number two?
“A 82 August 02, I believe it is 1982 August, Convening. Commander, Naval Base, Seattle, Washington. In the foregoing case, General Court Martial of ET3 John Frank Clements, Jr., U.S. Navy, That part of the — I am losing my place here — That part of the sentence which adjudged a dishonorable discharge is disapproved and only so much of the sentence as reflects a BCD — which is a bad conduct discharge — is approved. The remainder of the sentence is approved except that portion thereof which adjudged CHL in excess of 18 months will be suspended for a period of six months from the date of trial, at which time, unless sooner vacated, the suspended portion will be remitted without further action. The forfeiture of pay shall apply to pay becoming due on and after the date of this action. The Navy Brig, Naval Station, Seattle, Washington is designated as the place of CHL.
“Q Now, Lt. Murphy, think about CHL for a minute, What might that be? What would that mean? Would that mean ‘confinement for hard labor?’
“A Very possibly.
“Q Okay.
“A The ROT is forwarded to the Judge Advocate General of the Navy for review by the court of military review. The ROT means ‘record of transcript’ I believe.
“Q Okay. Lt. — Detective Murphy, let me hand you what has already been labeled Plaintiff s Exhibit No. 7 for identification purposes and would ask you to examine that, please.
“A Yes sir.
“Q Have you had an opportunity to look at Plaintiff s Exhibit No. 7 before your court appearance here today?
“A Yes sir, I did.
“Q Have you compared the contents of Plaintiff s Exhibit No. 7 with the contents of Plaintiffs Exhibit No. 6 that you have just read to the jury?
“A Yes sir.
“Q What appears to be the difference after you have compared the two?
“A Exhibit No. 7 is a military form of a journal entry which breaks down more explicit the charges that I just read from the other.
“Q Okay. As I understand it, it is another version of the same information?
“A Yes sir.
“Q Only in different terms.
“A Yes sir.
“Q What is this document labeled State’s Exhibit No. 7 — what is it?
“A It would be a journal entry from the court martial.
“Q Okay. Would you please turn to page 3 of that document and tell me if that document is certified and a true and correct copy of that journal entry?
“A It is certified to be a true copy signed by a C. G. Baker.
“Q Okay. Your Honor, my notes reflect that State’s exhibit No. 5 was not admitted into evidence but that State’s Exhibit Nos. 6 and 7 have been admitted by the Court.
“THE COURT: That is correct.
“MR. WARD: I have no further questions, Judge.”
The State rested its case without presenting any evidence of the defendant’s plan or scheme to prey on young boys in Alaska. Even before the record of Clements’ prior convictions was admitted into evidence, the State’s attorney, in his opening statement to the jury, referred to the convictions. On direct examination Clements admitted that he had pleaded guilty to some of the prior charges. On cross-examination, the State then brought out the details of the Alaska offenses.
Here, the State failed to show plan or scheme. It only proved that the 1981 and the 1985 offenses were violations of the same or similar statutes. K.S.A. 60-455’s rule limiting evidence of other crimes and civil wrongs was not enforced. The evidence of Clements’ prior convictions to prove that he preyed on young boys was improperly admitted into evidence.
Clements is not entitled to a perfect trial but he is entitled to a fair one. The erroneous admission of evidence does not always require a new trial. Where the erroneous admission of evidence amounts to a denial of substantial justice, the defendant is entitled to a new trial. The admission into evidence of other crimes did not comply with the strict requirements of60-455 and resulted in a denial of substantial justice. Therefore, Clements did not receive a fair trial and this conviction must be reversed and the defendant granted a new trial.
Reversed and remanded for a new trial.
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The respondent, J. Richard Lake, appeals from the disciplinary panel’s finding the respondent violated DR 5-101(A), DR 5-104(A), DR4-101(B)(1) and (2), DR 5-105(A), and DR 1-102(5) of the Code of Professional Responsibility (235 Kan. cxxxvii). The panel recommended discipline by public censure.
The respondent first represented the complainant, Peggy Sue (Alley) Hamner, in divorce'proceedings in early 1983. Lake also represented Ms. Hamner in two matters related to the divorce after the divorce decree was entered on March 21, 1983.
As a result of Lake’s efforts, Ms. Hamner received an income tax refund, which she testified respondent encouraged her to invest in a restaurant operation in a building respondent owned in Holton. Complainant further testified respondent drafted a contract whereby she would purchase the existing restaurant from the current operator, Micheál Ireland, and he also drafted a promissory note between the complainant and Ireland. Additionally, Lake met with Ireland and Ms. Hamner on several occasions before Ms. Hamner purchased the restaurant operation from Ireland.
Ms. Hamner opened her restaurant, “Mom’s Kitchen,’’ in July of 1983. Around the time the business opened, Ms. Hamner discussed the possibility of a partnership with Shirley Turner. Ms. Turner drafted some proposed partnership agreements which Ms. Hamner delivered to respondent’s office. Ms. Hamner asked Lake to draw up a partnership agreement, but no agreement was ever drafted. The relationship between Ms. Hamner and Ms. Turner deteriorated and Ms. Turner withdrew from the restaurant operation in August 1983.
During the time the restaurant was open, respondent not only acted as complainant’s landlord, but also leased Ms. Hamner restaurant equipment; devised a bookkeeping system for the restaurant; helped Ms. Hamner compute her payroll; prepared a Small Business Administration (SBA) loan application for the restaurant which he signed in his capacity as attorney-at-law; and gave Ms. Hamner advice as to how to operate the restaurant.
The business failed financially and Mom’s Kitchen closed on September 15,1983. As a result of the failure of the business, five separate civil and criminal actions were filed against Ms. Hamner.
The respondent admits he represented Ms. Hamner on her first bad check charge in Shawnee County. The respondent negotiated a plea bargain with the Shawnee County District Attorney’s Office whereby Ms. Hamner was permitted to plead to a reduced charge (a Class A misdemeanor). Further, the respondent appeared with Ms. Hamner at her November 18, 1983, sentencing. This case culminated in November 1983 and was active throughout the period Mom’s Kitchen was operating.
During the time Lake represented the complainant in the Shawnee County criminal action, he served as Jackson County attorney. During this same time period, a second criminal action against Ms. Hamner was filed in Jackson County as the result of an insufficient funds check written on the Mom’s Kitchen account. This case was eventually terminated with no conviction.
The first civil action in Jackson County against the'\complainant, filed by the Holton Recorder, arose out of unpaid advertising expenses. Both Ms. Hamner and Ms. Turner were named defendants in this action and the respondent entered an appearance on behalf of Ms. Turner. In a letter to plaintiff s attorney dated October 3, 1983, respondent stated he knew Ms. Turner was not a partner in the business due to his familiarity with the relationship between Ms. Hamner and Ms. Turner. On December 23, 1983, a default judgment was entered against Ms. Hamner and the case was dismissed against Ms. Turner.
A second civil suit was filed against Ms. Hamner in Jackson County as a result of Ms. Hamner’s default on her promissory note to Micheál Ireland. Ms. Hamner testified she took the petition and summons to the respondent who agreed to represent her. The respondent denied he was contacted by Ms. Hamner regarding this suit. Default judgment was entered against the complainant in this case in December 1983.
A third criminal action was filed against the complainant on January 5, 1984, in Jackson County. This case was also the result of an insufficient funds check written by Ms. Hamner on the Mom’s Kitchen account. The respondent and complainant both testified that respondent told complainant he could not represent her in this matter because he was county attorney of Jackson County. The case was eventually dismissed at preliminary hearing.
The disciplinary panel determined the respondent had acted as complainant’s attorney, landlord, and business advisor; that respondent prosecuted complainant at the same time he was acting as her attorney in another matter and generally representing complainant; that respondent defended complainant in Shawnee County on the worthless check charge at the same time he represented Jackson County as county attorney; and, finally, respondent represented complainant’s former business associate in a civil suit to the detriment of complainant and utilized information obtained from complainant in connection with such representation.
The panel concluded respondent’s disregard of basic conflict of interest rules in so many situations required a recommendation he be publicly censured by the Supreme Court. Respondent appeals.
The respondent first argues the panel failed to prove by clear and convincing evidence that he had committed any ethical violations.
The standard of proof to warrant a finding of attorney misconduct requires the charge be established by substantial, clear, convincing, and satisfactory evidence. State v. Hohman, 235 Kan. 883, 686 P.2d 122 (1984); State v. Scott, 230 Kan. 564, 570, 639 P.2d 1131 (1982).
Respondent disagrees with the panel’s conclusion that respondent’s financial, business, and property interests in the restaurant building and equipment affected the exercise of his personal judgment on behalf of complainant. Accordingly, the panel determined respondent should not have accepted employment by complainant after he established a business rela tionship with her and that acceptance of such employment violated DR 5-101(A) (235 Kan. cxlv).
Respondent argues the only employment he accepted from Ms. Hamner after renting the restaurant to her was to represent her on the bad check charge. Respondent claims it “escapes the imagination” as to how his landlord/tenant relationship with Ms. Hamner could have affected his professional judgment in representing her on a bad check charge.
The panel concluded, based upon clear and convincing evidence, that the respondent had represented the complainant in other legal matters in addition to the Shawnee County criminal action after leasing to her the restaurant building and equipment. Respondent set up a bookkeeping system for complainant, he prepared documents for obtaining an SBA loan and signed them in his capacity as her attorney, and he discussed with complainant the terms of a partnership agreement and advised her on how to conduct her business. Respondent was thus placed in a position of having given legal representation to the plaintiff in connection with the restaurant and yet, when the business failed, he was placed in a position of having to protect his own financial interests.
We hold the evidence was sufficient to show the respondent violated DR 5-101(A).
Respondent next contends the hearing panel incorrectly concluded that respondent utilized information gained from Ms. Hamner in his representation of Ms. Turner in violation of DR 4-101(B)(l) & (2) (235 Kan. cxlv) and DR 5-105(A) (235 Kan. cxlvi). Lake argues the only information he used in representing Ms. Turner was gained from Ms. Turner herself. The facts clearly prove otherwise.
In a letter to opposing counsel in the Holton Recorder case, respondent stated that he knew from conversations with both Ms. Turner and Ms. Hamner that Ms. Hamner had no intention of forming a partnership with Ms. Turner. As a result of respondent’s efforts, Ms. Turner was dismissed from the lawsuit and a default judgment was entered against Ms. Hamner.
We hold the panel correctly found respondent’s conduct violated DR 4-101(B)(l) & (2) and DR 5-105(A).
Finally, respondent contends the hearing panel incorrectly concluded he violated DR 5-105(A) and DR 1-102(A)(5) (235 Kan. cxxxvii) by his representation of the complainant in the Shawnee County criminal case at the same time that he, or his office, prosecuted complainant in Jackson County.
The panel relied on Opinion 28 of the Committee on Professional Ethics of the Bar Association of the State of Kansas, dated May 8, 1965, which states:
“A county attorney, whose duty it is to prosecute crimes committed within the county, may not, while in office, properly undertake the defense of one accused of a crime in another county.”
Despite the Committee’s opinion, respondent argues his conduct may have been appropriate due to this court’s holding in State v. Rice, 227 Kan. 416, Syl. ¶ 4, 607 P.2d 489 (1980). We held in Rice:
“Lawyers holding part-time positions as judges or prosecuting attorneys should not appear as counsel for defendants in criminal matters in the courts in which they have responsibility. However, they may befar enough removed that they can appear in other courts, in which they have no substantial responsibility by reason of their government employment, as counsel for criminal defendants without giving an appearance of impropriety and without creating a conflict of interest.” (Emphasis added.)
The key to our holding in Rice and its application to the present case is in the italicized phrase quoted above. Here, Lake was clearly not “far enough removed” that he was able to appear on behalf of the complainant in other courts. In addition to the fact that Lake represented Ms. Hamner in Shawnee County while similar criminal charges were pending in Jackson County, respondent was inextricably involved in the business, the financial failure of which resulted in the criminal charges.
The evidence clearly and convincingly supports the panel’s conclusions that respondent violated DR 5-105(A) and DR 1-102(A)(5).
Respondent also maintains the discipline by public censure recommended by the panel is inappropriate. Respondent cites a number of cases where public censure has been imposed, and contends public censure is too harsh in this case.
After carefully considering the record herein, a majority of the members of the Court approve and adopt the report of the Board for Discipline of Attorneys. Justice Allegrucci would discipline the respondent by private censure.
IT IS THEREFORE ORDERED that J. Richard Lake be and he is hereby disciplined by public censure and the costs herein are assessed to the respondent.
Dated this 1st day of May, 1987.
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The opinion of the court was delivered by
Prager, C.J.:
This is an action brought for wrongful discharge by two former employees against the Coleman Company, Inc., of Wichita (Coleman) and two of its supervisors, Ralph Call and Robert Sloan. The two plaintiffs, Randy Morriss and Debra White, alleged in their petition that Coleman breached an im plied contract of employment: (1) By discharging them without good cause, and (2) by terminating their employment in bad faith, thus violating an implied covenant of good faith and fair dealing. The plaintiffs further alleged that the two supervisors, Call and Sloan, had tortiously interfered with their contract rights. In addition, the plaintiffs asserted three other tort claims against the defendants which have been abandoned on appeal. The district court granted the motion for summary judgment filed on behalf of all defendants. The plaintiffs appealed.
The Court of Appeals heard the case and, in an unpublished opinion No. 58,967 filed on November 26, 1986, reversed the trial court’s order granting summary judgment for tortious interference and breach of implied contract in favor of the defendants. Both the plaintiffs and defendants filed petitions for review which were granted by this court on all issues raised in the Court of Appeals.
The rules to be applied by an appellate court in a case where summary judgment was granted by the trial court are well established. Summary judgment is proper only when the pleadings, affidavits, and the discovery record show there are no genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). In reviewing a summary judgment, an appellate court must read the record in the light most favorable to the party who opposed the motion. McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶ 4, 662 P.2d 1203 (1983). Thus, this court must give the plaintiffs the benefit of all favorable inferences arising from the record.
At the time the defendants’ motion for summary judgment was granted, the plaintiffs through discovery had obtained documents and admissions from defendants and had taken a partial deposition of Robert Sloan. The depositions of both plaintiffs had also been taken, but a pretrial conference had not yet been held. The underlying circumstances of both plaintiffs’ employment and termination are not in dispute although plaintiffs contend material issues of fact are still unresolved.
Viewing the evidentiary record in the light most favorable to the plaintiffs, the facts in the case before the trial court at the time of entry of summary judgment were as follows: The plain tiff, Debra White, was employed by Coleman in 1977 as a secretary. During her tenure, White received consistently favorable job performance evaluations and regular salary increases. Defendant Call told her she was the best secretary he had ever had and referred to her as an excellent secretary. At the time of her firing, White was the executive secretary to Call. The other plaintiff, Randy Morriss, was employed by Coleman as a production supervisor. Like White, Morriss also received consistently favorable job performance evaluations and salary increases. He was promoted to department manager and eventually to manufacturing engineer, the job he held when he was terminated in November of 1984. Morriss was married but separated from his wife at the time of his termination. The defendants concede that Morriss, as well as White, were good employees.
Robert Sloan was employed by Coleman in September 1965, and he has held various positions with the company. At the time plaintiffs were terminated, Sloan was factory manager at the “downtown” Coleman factory in Wichita. Morriss worked under Sloan, although Morriss’ direct supervisor was Dan Jonker. Sloan in turn reported to Call. Thus, both White and Morriss worked under Call, but only White was directly supervised by him.
The Coleman Company is engaged in the business of manufacturing various types of recreational and outing products. Like most large companies, Coleman utilizes both formal and informal personnel policies and procedures. Supervisory personnel and representatives have disseminated these policies and made them known to their subordinates. According to Sloan, these “policies” state the “employee rights and responsibilities” and govern the conduct of both employer and employees.
There are three categories of Coleman employees:
(1) factory hourly employees, who work in the factory and are paid an hourly wage;
(2) office hourly employees, such as White, who work in clerical/secretarial positions; and
(3) monthly salaried employees, such as Morriss, who are principally supervisory employees.
Coleman disseminates to the factory hourly employees a personnel manual applicable to them. However, employees in the latter two categories, including White and Morriss, are not issued individual copies of a personnel manual. Instead, they are governed by the rules and regulations set forth in a supervisor’s manual which is disseminated only to supervisory employees. The rules and regulations in the manual are made known to affected employees by their immediate supervisor. In addition, according to Sloan, each supervisor is free to promulgate rules and regulations which apply only to his or her subordinates. Coleman, in both its employees’ handbook and in its supervisor’s manual, states without equivocation that its purpose is to ensure “fair and uniform treatment of all employees.”
The manual, which is issued to the hourly factory employees states:
“The basic plan for us all is to build and sell quality products that people will be proud to own; to serve growing markets for the benefit of shareholders and employees; to emphasize productivity to gain an edge against competition; to strive for reasonably stable, safe, comfortable, and efficient working conditions; and receive fair treatment, wages, and benefits.”
In the manual, it is stated that factory employees are entitled to receive respectful, honest, and fair treatment from supervisory employees; to have an opportunity to build a career with a company that values increasing skills, experience, and loyalty; to have an opportunity to contribute their ideas, problems, and complaints in effective ways; and to work with a company whose products, policies, and practices they can respect and thereby be proud to contribute their talents and their efforts. The manual stresses the team concept and contains a section governing disciplinary actions. That section states:
“Any group of people needs a set of rules to work and live by. These rules need to be simply stated, consistently applied; and there needs to be a system to provide, where necessary, interpretation and resolution of disputes.”
It states that, since no one is perfect, disciplinary action is merited at times. The section then sets forth the procedure for disciplinary action by written notice, suspension, or discharge. It states that a written reprimand will be used first unless the facts or circumstances warrant suspension or discharge. Whenever an employee with seniority status is to be discharged, he or she shall first be suspended without pay for not more than five work days and notified in writing on the reprimand form that dis charge will occur at the end of the suspension period. If an employee feels that he or she has been improperly disciplined, then he or she may initiate a complaint in writing through the Employee Relations Counselor and action may be taken to reduce or rescind a suspension or discharge. A number of specific violations are set forth which may result in suspension or discharge. Certain violations of the rules are to result in immediate discharge. The clear implication from the factory employees’ manual is that Coleman and its employees are all working together and the rights of all will be respected.
The supervisor’s manual, which is applicable to nonfactory employees such as Morriss and White, states that its purpose is to ensure fair and uniform treatment of all employees. This manual is in the form of a number of bulletins that are issued from time to time and which apparently are not distributed to the individual employees but only to the supervisors who in turn are required to communicate the contents to the employees. The introduction to the supervisor’s manual states: “[I]t is essential that we all, employees and supervision, have a thorough understanding of the policies of the Company and work together in harmony in the best interests of all.”
bulletin No. 38 states that Coleman will only discharge its employees for good cause, and Sloan admitted that this is, in fact, Coleman’s policy. Sloan stated that, in practice, this means that Coleman only discharges employees if a good reason exists. He also testified that an employee is normally warned of a performance deficiency and is permitted to take corrective action before being discharged. The only exception is a situation where an employee flagrantly violates company rules in a manner where corrective measures are neither feasible nor warranted. Morriss testified that, as a supervisor, he regularly utilized the personnel manual and was well aware of the company’s policy of terminating employees only for good cause. White also testified that she knew of the “good cause” termination policy and the company’s policy of resorting to termination only after other measures had failed.
Other provisions of the supervisor’s manual referred to Coleman’s “constant and conscientious effort to see that all of its employees are treated with consideration and fairness” and also stated various actions which may constitute grounds for termination. For instance, an employee’s off-duty conduct is not grounds for termination except under certain specified conditions. On the other hand, other specific conduct or action will result in termination or discipline.
In the supervisor’s manual there is a paragraph which states one of its purposes is as follows:
“To provide all of us as Coleman employees of the Company, through written reference, a better understanding of our privileges and obligations which are an inherent part of our employment. Nothing in this policy manual should be construed as an employment contract or guarantee of employment.” (Emphasis supplied.)
The defendants, both in the trial court and on this appeal, relied very heavily on the last sentence just stated to sustain their position that Coleman had the right to fire the plaintiffs at any time with or without cause.
The facts surrounding the termination of Morriss and White are undisputed at this time. Coleman allows management to purchase company cars, and Call was entitled to receive the next available company car. Unfortunately for Call, the next car was located in Greenville, South Carolina, and he had to persuade someone to retrieve his vehicle. White advised Morriss of Call’s personal dilemma. Morriss was interested in making the trip, and White so advised Call, who readily agreed. Without first consulting Morriss, Call told White to make plane reservations for Morriss for the following Tuesday morning. However, Morriss had a conflict in a night class at Wichita State University, and Call agreed that Morriss could leave on Wednesday instead. In addition, Morriss requested to take an extra travel day. Call approved the travel plans for Morriss.
The South Carolina trip was scheduled when the factory was to be shut down for inventory. Thus, neither plaintiff expected to work after Wednesday. White and Morris discussed the possibility of traveling together, and, late Tuesday, White decided to go along. White took the day off on Wednesday as she was entitled to do, but did not tell Call what she intended to do. The couple then flew out of Wichita on Wednesday morning without telling anyone except a friend of Morriss’s. White paid her own expenses. Roth plaintiffs believed the trip was strictly a private matter.
Unknown to Morriss and White, Sloan suspected that something was amiss. Sloan expressed those suspicions to Call. Call did not request Sloan to investigate; however, Sloan then took the initiative and requested the Director of Security to verify whether Morriss and White left for South Carolina together. The investigator reported back to Sloan that Morriss and White had, in fact, flown out of the airport together. Armed with that information, Sloan relayed his findings to Call. Call telephoned White’s mother and he was told she did not know where her daughter was. Without any further information at his disposal, Call decided to terminate Morriss and White. He did not attempt to contact his employees in South Carolina; rather, he terminated them after they had delivered his car to Wichita. Roth plaintiffs immediately met with Call to learn why they had been terminated. Call only said he could not articulate the reasons; he did not say that no reason was needed. The plaintiffs then met with Sheldon Coleman, Jr., who refused to countermand Call’s decision because Mr. Coleman was new on the job. Call ultimately explained that he had terminated the plaintiffs for “dishonesty,” “breach of trust,” and “for increasing the company’s insurance liability.” Throughout this litigation, Coleman has never argued that the plaintiffs were terminated for good cause. Coleman only takes the position that the employees were employees at will and could be terminated at any time for good or bad cause or for no cause at all.
There is evidence in the record which would indicate that Call had strong religious beliefs and values, and was a very difficult supervisor to work for, and that he terminated plaintiffs simply because he disapproved of their taking a trip together without being married.
In his deposition, Sloan testified as to his conversation with Call when the decision to terminate was made. Sloan testified that, in his judgment, it would not have been grounds for termination if Morriss had taken his wife or a male employee without clearing it with his employer. Although this matter has not been determined by the trier of fact, a reasonable person might be led to conclude that the plaintiffs were terminated simply because Call did not think that a married man and an unmarried woman had any business traveling together on an airplane trip to another city. The evidence was undisputed that both White and Morriss were considered to be good employees who received regular promotions and were apparently well thought of by their supervisors. In the event of a trial of this case, the defendants would have been provided an opportunity to introduce evidence to the contrary and to show the reason or cause for the plaintiffs’ termination.
In granting summary judgment, the district court concluded, as a matter of law, that Morriss and White had no fixed term of employment and, because they were employees at will, they could be terminated at any time for any reason or for no reason. The trial court found that there was no implied contract of employment of the plaintiffs with Coleman and that the termination did not violate any clear statutory policy established to deal with the employment-at-will doctrine. Stated simply, the trial court found that, because the plaintiffs were employees at will and there was no express or implied contract covering the duration of their employment, the defendants were entitled to summary judgment as a matter of law on the plaintiffs’ claim for a breach of contract. Likewise, the trial court granted summary judgment on the plaintiffs’ claim of tortious interference as against the defendants Call and Sloan, as Well as other tort claims.
In order to determine this appeal, it would be helpful at the outset to examine the employment-at-will doctrine as traditionally applied in Kansas and other jurisdictions. Under the American common law an employer may discharge his “at-will employee” for good cause, for no cause, or even for a wrong cause, without incurring liability to the employee for wrongful discharge. This unbridled freedom has been relied on by courts down through the years to disallow a cause of action by an employee based upon wrongful discharge. This employer latitude is said to be reenforced by the principle of mutuality of obligations. If the employee is free to quit at any time, then the employer must be free to dismiss at any time. The termination-at-will doctrine, although generally applied by the courts throughout the United States, has recently been severely criticized by legal scholars and the courts.
Some courts have refused to adhere to the traditional rule, finding little cause to recommend its continued application in instances in which the employer’s conduct undermines an important public policy. Federal and state legislation has been enacted which is designed to restrict an employer’s ability to terminate a worker arbitrarily. Although no court has entirely abolished the employment-at-will doctrine in court decisions, the cases throughout the United States indicate a trend to avoid the injustice of the rule. State courts have recognized causes of action based on the theories of wrongful discharge, violation of public policy, and breach of contract.
One method commonly used by the courts is to interpret employment contracts more broadly and to recognize an implied obligation on the part of the employer not to terminate an employee arbitrarily where a policy or program of the employer, either express or implied, restricts the employer’s right of termination at will. For example, some courts have relied on employee manual guidelines which set out the grounds and procedures for discharge in cases where the discharged employee claims that those policies have become part of the employment contract, thus barring the employer from violating its own policies in discharging an employee. This exception is based on an implied contract theory.
Another exception to the termination-at-will doctrine has been recognized by some courts in suits of a tort nature for retaliatory discharge based on the theory that dismissal of employees for reasons violative of a particular public policy should be actionable, although other courts have expressly declined to recognize such a limitation on the employer’s right of termination. A variety of motives for dismissal on the part of employers has been advanced by disgruntled employees as so violative of public policy as to give rise to such a cause of action: Retaliation for the employee’s opposition to illegal or unethical activities of the employer; retaliation for filing workers’ compensation claims; retaliation for exercise of rights under labor-management relations statutes; penalizing the employee for refusal to take a polygraph examination; penalizing the employee for taking time to serve on jury duty; and various other violations of alleged public policy interests.
In more recent years, some courts have adopted an exception that a termination of an at-will employee, not founded in good faith or just cause, violates an implied covenant of good faith and fair dealing in the performance and enforcement of every contract. This exception is based upon the theory that parties to contracts and commercial transactions must act in good faith toward one another. Some of the states have adopted the rule that good faith is assumed or implied in every contract, including employment contracts.
These various exceptions to the termination-at-will doctrine are discussed in comprehensive annotations at 12 A.L.R.4th 544 and 33 A.L.R.4th 120.
The history of the employment-at-will doctrine in Kansas is quite comparable to that in other states. Historically, the Kansas courts have adhered to the traditional employment-at-will doctrine. In Swart v. Huston, 154 Kan. 182, 117 P.2d 576 (1941), it was held that, in the absence of an express or implied contract between an employee and his employer covering the duration of such employment, no action for discharging the employee from service can be maintained against the employer. The court based this holding on a theory of mutuality, noting that the plaintiff employee was privileged to quit whenever he chose, and conversely, the defendant employer could therefore discharge the employee at any time without being penalized for doing so.
In Johnson v. National Beef Packing Co., 220 Kan. 52, 551 P.2d 779 (1976), this court followed the general rule, holding that, in the absence of a contract, express or implied, between an employee and his employer covering the duration of employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged.
The court quoted from 53 Am. Jur. 2d, Master and Servant § 27, p. 103, which states as follows:
“Where no definite term of employment is expressed, the duration of employment depends on the intention of the parties as determined by circumstances in each particular case. The understanding and intent of the parties is to be ascertained from their written or oral negotiations, the usages of business, the situation and object of the parties, the nature of the employment, and all the circumstances surrounding the transaction.”
In Johnson, the court used language that rejected the notion that a company policy or personnel manual may constitute an express contract of employment or serve as a basis for establishing a contract of employment by implication. A statement in the employer’s company policy manual provided to plaintiff several months after his initial hiring noted specifically that no employee shall be dismissed without just cause. The court concluded that the terms of the personnel manual could not be construed to mean a fixed or definite period of employment, nor could an implied contract be inferred.
Despite this strict adherence to the employment-at-will doctrine in Johnson, the Kansas appellate courts in more recent cases have noted the development of various theories in other jurisdictions which have led to the erosion of the doctrine. In Murphy v. City of Topeka, 6 Kan. App. 2d 488, 630 P.2d 186 (1981), the Court of Appeals took a step away from the strict application of the traditional rule and toward recognizing causes of action in tort for wrongful discharge. In Murphy, the plaintiff was employed by the City of Topeka and, after sustaining injuries on the job, filed a workers’ compensation claim as authorized by statute. Murphy was offered further employment only on the condition that he withdraw his compensation claim. When Murphy refused, his employment was terminated. The Court of Appeals, after an analysis of the public policy underlying the workers’ compensation act, held that the discharge of an employee in retaliation for filing a workers’ compensation claim is actionable at law and may support an award of both actual and punitive damages. Murphy is important because it opened the way to judicial recognition of a variety of public policy considerations which could support actions for tortious retaliatory discharges.
In Cain v. Kansas Corporation Commission, 9 Kan. App. 2d 100, 673 P.2d 451 (1983), the plaintiff Cain brought an action against the KCC seeking damages for breach of contract and retaliatory discharge. The court recognized that the tort of retaliatory discharge recently had become a part of the Kansas judicial process. The court stated that the tort of retaliatory discharge is an exception to and in mitigation of the principle that an at-will employee can be terminated at any time, with or without cause, but that the remedy is available mostly where the discharge seriously contravenes a very clear public policy. Under the factual circumstances presented, however, the court in Cain upheld the decision of the district court denying plaintiff s claim for breach of his employment contract and for retaliatory discharge.
The next case on the subject is Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659, 684 P.2d 1031 (1984), where Syllabus ¶ 4 states:
“In the absence of a contract, express or implied, between an employee and his employer covering the duration of his employment, the employment is terminable at the will of either party, and the employee states no cause of action for breach of contract by alleging that he has been discharged. (Following Johnson v. National Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779 [1976].)”
In Allegri, the plaintiff alleged that he had an implied-in-fact contract with the defendant employer with terms defined by the parties’ course of dealing and the employee handbook’s progressive discipline policy which led plaintiff to believe he could be terminated only “for cause.” Although not relying completely on the terms of the handbook, the court concluded that sufficient factual issues remained unresolved to foreclose summary judgment. Allegri is important because it established clearly the rule that intent of the contracting parties is normally a question of fact for the jury and that the determination of whether there is an implied contract in employment requires a factual inquiry. The court placed a great deal of emphasis on the provisions of the employees’ handbook and communications and discussions between the plaintiff and his supervisors. The court in the last paragraph of the opinion at 664 noted that “in proper circumstances an employee at will (i.e., without a contract for a specific duration) may bring a tort action for retaliatory discharge when the termination is based on retaliation constituting a contravention of public policy. [Citations omitted.] An action for wrongful discharge, as that term is generally used, alleges breach of an employment contract and, obviously, requires proof of the existence of such a contract.”
Our most recent case on the subject is Anco Constr. Co. v. Freeman, 236 Kan. 626, 693 P.2d 1183 (1985), where this court again recognized the employment-at-will doctrine and then cited Murphy v. City of Topeka, 6 Kan. App. 2d 488, as requiring a limited public policy exception to the doctrine. It was held that, when an employee is terminated in violation of federal public policy, no state cause of action is pled, and that the National Labor Relations Board had exclusive jurisdiction over the plaintiff s claim.
In the case now before us, the plaintiffs maintain that the trial court erred in entering summary judgment in favor of the defendants because there was a genuine issue of fact as to whether or not their employment had been terminated in violation of an implied contract that an employee would not be terminated by the Coleman Company except for good cause under circumstances similar to those in Allegri v. Providence-St. Margaret Health Center, 9 Kan. App. 2d 659. The plaintiffs rely not only on the statements contained in the personnel manuals but also on the basis of verbal and nonverbal conduct of the Coleman supervisors and Coleman’s established policies in dealing with its employees. The defendants rely to a great extent on the paragraph in the supervisor’s manual quoted earlier in the opinion to the effect that “nothing in this policy manual should be construed as an employment contract or guarantee of employment.” The Court of Appeals in its opinion considered the provisions in the manual along with the conduct of the parties and concluded that the evidence developed at the time summary judgment was granted was sufficient to require the denying of defendants’ motion for summary judgment. In reaching that conclusion, the Court of Appeals followed the rule stated in Syllabus ¶ 5 of Allegri, which states:
“Where it is alleged that an employment contract is one to be based upon the theory of ‘implied in fact,’ the understanding and intent of the parties is to be ascertained from several factors which include written or oral negotiations, the conduct of the parties from the commencement of the employment relationship, the usages of the business, the situation and objective of the parties giving rise to the relationship, the nature of the employment, and any other circumstances surrounding the employment relationship which would tend to explain or make clear the intention of the parties at the time said employment commenced.”
The majority of this court has considered the entire record in this case and concluded that there was a legitimate issue of fact whether there was an implied contract by Coleman to treat its employees fairly and in good faith and that an employee would not be terminated except for just cause.
The disclaimer in the supervisor’s manual quoted above does not as a matter of law determine the issue. It has not been established that the disclaimer was brought to the personal attention of its employees or that it was intended by Coleman to create an unqualified employment-at-will relationship, especially in view of other provisions in the manual and the statements made by Coleman’s supervisors to the employees. There has been no trial in this case, and we only hold that the evidence presented in the record at the time summary judgment was granted was insufficient to require summary judgment in favor of defendants as a matter of law. The ultimate decision of whether there was an implied contract not to terminate the plaintiffs without just cause must be determined from all the evidence presented by the parties on that issue. We thus hold that the trial court erred in sustaining the defendants’ motion for summary judgment as to that implied contract claim.
In addition to the implied contract argument, plaintiffs also contend the defendants breached an implied convenant of good faith and fair dealing, thus entitling the plaintiffs to recover either in tort or in contract. The implied covenant of good faith and fair dealing is stated in Restatement (Second) of Contracts § 205 (1979), in the following language:
Ҥ 205. Duty of Good Faith and Fair Dealing
“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”
The comment under § 205 of the Restatement declares that good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving “bad faith” because they violate community standards of decency, fairness, or reasonableness.
Although the implied covenant of good faith and fair dealing has not been specifically recognized by this court in the area of termination of employment contracts, it has been recognized in other areas of contract law. K.S.A. 84-1-203, which is a part of the Uniform Commercial Code, provides that “[e]very contract or duty within this act imposes an obligation of good faith in its performance or enforcement.” In the official UCC comment to that statute, it is stated that the principle involved is that in commercial transactions good faith is required in the enforcement and performance of any duty. The concept is broad and applies generally to the performance or enforcement of every contract or duty within the act.
It is further stated that the obligation of good faith has been a part of commercial transactions in the past. The term “good faith” is defined in K.S.A. 1986 Supp. 84-1-201(19) to mean “honesty in fact in the conduct or transaction concerned.”
In recent years, a number of state jurisdictions have adopted and applied the implied covenant of good faith and fair dealing to a terminable-at-will employment contract. In Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974), the Supreme Court of New Hampshire held that in all employment contracts, whether at will or for a definite term, the employer’s interest in running his business as he sees fit must be balanced against the interests of the employee in maintaining his employment, and the public’s interest in maintaining a proper balance between the two. It further held that a termination by the employer of an employment-at-will contract is not in the best interest of the economic system or the public good where such termination is motivated by bad faith or malice or based on retaliation. However, the rule does not interfere with the employer’s normal exercise of his right to discharge, which is necessary to permit him to operate his business efficiently and profitably.
In Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977), the controlling issue on appeal was whether a bad faith termination of an employee constituted a breach of an at-will employment contract. The Supreme Court of Massachusetts recognized that traditionally an employment contract which is “at will” may be terminated by either side without reason. The written contract between the parties reserved to the parties the explicit right to terminate the contract without written notice. The court stated that it did not question the general principles that an employer must have wide latitude in deciding whom it will employ and that an employer needs leeway in employing employees. The court recognized the employer’s need for flexibility in the face of changing circumstances and for a large amount of control over its work force. However, the employer’s decision to terminate its at-will employee should be made in good faith. The court stated that good faith and fair dealings between parties are pervasive requirements in our law, and it can be said fairly that parties to contracts or commercial transactions are bound by this standard.
The Supreme Court of Oklahoma recently applied the implied covenant of good faith to a termination of an at-will contract between an insurance company and its general agent. In Hall v. Farmers Ins. Exchange, 713 P.2d 1027 (Okla. 1985), the Supreme Court of Oklahoma, relying primarily upon Monge and Fortune, held that the implied covenant of good faith extends to a covenant not to wrongfully resort to a termination-at-will clause.
The court stated in the opinion as follows:
“This court has long recognized that parties should be free to contract for any lawful purpose upon such terms and conditions as they believe to be in their mutual interest. Such freedom is not absolute however, and the interests of the people of Oklahoma are not best served by a marketplace of cut-throat business dealings where the law of the jungle is thinly clad in contractual lace.
“In this spirit, we have recognized, as have many jurisdictions, that each contract carries an implicit and material covenant by the parties to act toward each other in good faith.” 713 P.2d at 1029.
Although not all inclusive, recent cases from other jurisdictions adopting the implied covenant of good faith and fair dealing in employment-at-will contracts include:
Alaska: Knight v. American Guard & Alert, Inc., 714 P.2d 788 (Alaska 1986).
California: Koehrer v. Superior Court, 181 Cal. App. 3d 1155, 226 Cal. Rptr. 820 (1986); Gray v. Superior Court, 181 Cal. App. 3d 813, 226 Cal. Rptr. 570 (1986).
Massachusetts: Fortune v. National Cash Register Co., 373 Mass. 96, 364 N.E.2d 1251 (1977).
Montana: Crenshaw v. Bozeman Deaconess Hosp., 213 Mont. 488, 693 P.2d 487 (1984); Flanigan v. Prudential Federal Sav. & Loan,_Mont. _, 720 P.2d 257 (1986).
New Hampshire: Cilley v. N.H. Ball Bearings, Inc., 128 N.H. 401, 514 A.2d 818 (1986); Howard v. Dorr Woolen Company, 120 N.H. 295, 414 A.2d 1273 (1980); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974).
Oklahoma: Hall v. Farmers Ins. Exchange, 713 P.2d 1027 (Okla. 1986); Grayson v. American Airlines, Inc., 803 F.2d 1097 (10th Cir. 1986).
Texas: Ramos v. Henry C. Beck Co., 711 S.W.2d 331 (Tex. App. Dallas 1986).
Virgin Islands Petersen v. First Federal Sav. & Loan Ass’n of P. R., 617 F. Supp. 1039 (St. Croix D.V.I. 1985).
Likewise, recent cases from jurisdictions rejecting the implied covenant of good faith and fair dealing in the context of employment-at-will include:
Colorado: Pittman v. Larson Distributing Co., 724 P.2d 1379 (Colo. App. 1986).
Connecticut: Magnan v. Anaconda Industries, Inc., 193 Conn. 558, 479 A.2d 781 (1984).
District of Columbia: Minihan v. American Pharmaceutical Ass’n, 812 F.2d 726 (D.C. Cir. 1987).
Illinois: Scott v. Sears, Roebuck & Co., 798 F.2d 210 (7th Cir. 1986).
Indiana: Hostettler v. Pioneer Hi-Bred Intern., Inc., 624 F. Supp. 169 (S.D. Ind. 1985).
Louisiana: Frichter v. National Life & Acc. Ins. Co., 620 F. Supp. 922 (E.D. La. 1985).
Maryland: Borowski v. Vitro Corp., 634 F. Supp. 252 (D. Md. 1986).
Minnesota: Dumas v. Kessler & Maguire Funeral Home, 380 N.W.2d 544 (Minn. App. 1986).
Nebraska: Jeffers v. Bishop Clarkson Memorial Hosp., 222 Neb. 829, 387 N.W.2d 692 (1986).
New Mexico: Salazar v. Furr’s Inc., 629 F. Supp. 1403 (D.N.M. 1986).
Kansas cases have recognized the requirement of good faith in cases involving construction contracts where the parties have agreed that a certain individual, as an umpire, shall have the final decision on any dispute that might arise between the parties to the agreement.
In Edwards v. Hartshorn, 72 Kan. 19, 82 Pac. 520 (1905), there was a provision in a contract between a contractor and subcontractor for the grading of a railroad that the work should be done under the supervision of the chief engineer of the former, who should make estimates as a basis for the payment of the work done, and that his decision as to all matters of dispute between the parties should be final and conclusive. It was held that such a decision is prima facie conclusive upon all matters submitted to the umpire and fairly and honestly decided by him. However, if there be fraud or mistake so great and palpable as to imply bad faith, or the umpire fails fairly and honestly to perform the function assigned to him, his decision will have no binding force.
Likewise, in Wilson v. Drainage District, 113 Kan. 82, 213 Pac. 635 (1923), it was held that it is competent for the parties to a contract to agree that the finding of an engineer or other designated person upon the quantity and character of work done shall be conclusive, in which case the finding can only be impeached for bad faith or what amounts to that.
After a careful consideration of these various cases, pro and con, the majority of the court has concluded that the principle of law stated in Restatement (Second) of Contracts § 205, that every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement, is overly broad and should not be applicable to employment-at-will contracts.
As to the claim asserted against the defendants Call and Sloan for tortious interference, we agree with the Court of Appeals that the factual circumstances must be more fully developed before the issue of liability or nonliability can be determined. Summary judgment was prematurely entered by the trial court and the case is reversed on that issue.
The judgment of the district court is reversed and the case is remanded for further proceedings in accordance with the views expressed in this opinion. The judgment of the Court of Appeals is affirmed.
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Per Curiam:
This original action in discipline was filed by the office of the Disciplinary Administrator against Daniel L. Swagerty, of Dodge City, for his failure to properly represent his clients in an adoption matter.
Respondent and the office of the Disciplinary Administrator submitted the matter to a panel of the Kansas Hoard for Discipline of Attorneys on an agreed stipulation of facts. Highly summarized, respondent acknowledged that in the representation of the proposed adoptive parents in an adoption proceeding he failed to notify the husband of the child’s mother that the child was being placed for adoption. Respondent contended originally that he did not know the child’s mother was married at the time of the adoption hearing although he later admitted this was not true. He was also unaware of, or overlooked, the presumption contained in K.S.A. 23-124 (repealed L. 1985, ch. 114, § 30) that every child born during marriage is presumed to be legitimate and the child of the mother’s husband. As a result, the presumed father was given no notice of the adoption proceedings and his consent to the adoption was not obtained as required by statute. K.S.A. 59-2102. Later, the adoptive parents were required to conduct additional proceedings with proper notice to and consent from the child’s father.
Respondent stipulated that he had violated several of the disciplinary rules contained in the Code of Professional Responsibility, Supreme Court Rule 225 (235 Kan. cxxxvii). The panel recommended that respondent be disciplined by public censure. No exceptions were filed to the panel report.
It is noted that respondent has practiced law in Kansas for many years without any prior complaints being lodged against him. Respondent appeared before this court and candidly admitted he had violated the disciplinary rules and the Code of Professional Responsibility. While the seriousness of the respondent’s actions in this case would ordinarily require more severe sanctions, we agree with the recommendations of the hearing panel that, based upon the unusual facts herein and respondent’s lack of any prior record of disciplinary complaints, public censure is the appropriate discipline.
It Is Therefore By The Court Ordered that Daniel L. Swagerty be and he is hereby disciplined by public censure and that this order shall be published in the official Kansas Reports.
It Is Further Ordered that the costs herein be assessed to the respondent.
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The opinion of the court was delivered by
Herd, J.:
Appellants Earl and Lucy Thompson and Frederick and Louise Hartwig appeal from the district court’s grant of summary judgment in favor of appellee Federal Deposit Insurance Corporation (FDIC).
The facts are not in dispute. On August 8, 1980, the former Mission State Bank & Trust Company (Bank) was declared insolvent by the Kansas State Bank Commissioner and the FDIC was appointed as receiver. On that same day, the FDIC as receiver sold certain assets of the Bank to the FDIC in its corporate capacity.
The appellants had borrowed $1,050,000 from the Bank as evidenced by two identical promissory notes, each of which provided it was subject to the Kansas Uniform Consumer Credit Code (UCCC), K.S.A. 16a-l-101 et seq. The two promissory notes and security therefore were part of the assets of the Bank which the FDIC, as receiver, sold and assigned to FDIC in its corporate capacity. Appellants paid both notes in full, then filed a declaratory judgment action on January 9, 1984, alleging the FDIC had violated the provisions of the UCCC by taking assignment of and undertaking direct collection of payments from or enforcement of rights against the appellants arising from supervised loans when the FDIC was neither a supervised lender nor an exempt organization as defined in the code. Appellants claimed the notes were void as a result of the alleged violations, and sought recovery of statutory penalties, attorney fees, and costs.
Appellants later amended their petition to claim in the alternative that the FDIC in its corporate capacity was not the owner of the promissory notes which are the basis of the action because it failed, in its capacity as receiver, to obtain the proper order from the Kansas State Bank Commissioner as required by 12 U.S.C. §§ 1821(e), 1823(d) (1982), and K.S.A. 9-1304 and K.S.A. 1986 Supp. 9-1906.
On April 1, 1985, the district court dismissed appellants’ alternative cause of action finding appellants did not have standing to enforce the provisions of K.S.A. 9-1304 and 12 U.S.C. § 1823(d). On March 12, 1986, the trial court issued a second memorandum decision granting summary judgment to the FDIC, holding it was not required to comply with the licensing provisions of the UCCC. Appellants appeal.
The first issue is whether the supremacy clause of the United States Constitution prevents the State of Kansas from requiring the FDIC to acquire a license in order to carry out the duties assigned to it by Congress.
In 1981, when the FDIC as receiver sold appellants’ notes to the FDIC in its corporate capacity, the UCCC provided the following requirements for making supervised loans:
“Unless a person is a supervised financial organization; or is an agricultural credit corporation organized under the laws of the United States or the state of Kansas; or has first obtained a license from the administrator authorizing such person to make supervised loans, such person shall not engage in the business of
“(1) making supervised loans; or
“(2) taking assignments of and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans, but such person may collect and enforce for three months without a license if the person promptly applies for a license and such person’s application has not been denied. Nothing in this section shall be construed to require the licensing of an attorney who is forwarded contracts for collection.” (Emphasis added.) K.S.A. 16a-2-301.
K.S.A. 16a-2-301 was amended in 1985 to provide as follows:
“Unless a person is a supervised financial organization; or is an agricultural credit corporation organized under the laws of the United States or the state of Kansas; or has first obtained a license from the administrator authorizing such person to make supervised loans; oris the federal deposit insurance corporation acting in its corporate capacity or as receiver, such person shall not engage in the business of
“(1) making supervised loans; or
“(2) taking assignments of and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans . . . .” (Emphasis added.) K.S.A. 1986 Supp. 16a-2-301.
While the current statute clearly exempts the FDIC from its licensing requirements, appellants argue the law in effect at the time of the transactions in question here required unsupervised lenders to obtain a license from the administrator before taking assignment of and undertaking direct collection of payments from or enforcement of rights against debtors arising from supervised loans. Appellants reason that FDIC did not have the authority to take assignment of their loans since FDIC was not (1) a supervised financial organization, or (2) an agricultural credit corporation; nor did the FDIC promptly (or at any time) apply for a license after undertaking the assignment and collection of the notes.
The FDIC contends, and the district court held, that the supremacy clause of the United States Constitution prohibits the state from requiring the FDIC to obtain a license under the UCCC.
The supremacy clause, Article 6 of the United States Constitution, provides in pertinent part:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The United States Supreme Court first interpreted the supremacy clause in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819). In McCulloch, the court was asked to determine the validity of an 1818 Maryland law which imposed a tax on “all Banks, or branches thereof, in the State of Maryland, not chartered by the legislature.” 17 U.S. (4 Wheat.) at 317-18. Congress had recently created a nationally chartered Bank of the United States and when McCulloch, the cashier of the Baltimore branch, refused to pay the tax, the State of Maryland filed suit to collect.
Chief Justice John Marshall, writing for a unanimous court in McCulloch, stated:
“If any one proposition could command the universal assent of mankind, we might expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. . . .
“The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, ‘anything in the constitution or laws of any State to the contrary notwithstanding.’ ” 17 U.S. (4 Wheat.) at 405-06.
The McCulloch court determined the Maryland law was unconstitutional and void and concluded:
“The Court has bestowed on this subject its most deliberate consideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the constitution has declared.” 17 U.S. (4 Wheat.) at 436.
Professor Tribe, in his treatise on constitutional law, describes the rule of McCulloch as follows:
“McCulloch thus announced the prophylactic per se rule that has been followed ever since. If Congress does not authorize state taxation or regulation of federal instrumentalities, the possibility of interference with substantive federal policy is sufficient to raise a presumption of immunity.” Tribe, American Constitutional Law § 6-28, p. 392 (1978).
Here, the possibility of state interference with substantive federal policy is clear. The FDIC, as receiver of a failed bank, typically employs a “purchase and assumption” transaction in which the FDIC arranges for another member bank to “purchase” the failed bank and reopen it without interruption of banking operations. Since the purchasing bank typically only purchases those assets it wishes to take over, FDIC in its cor porate capacity often purchases the remaining assets. Thus, the FDIC has been given authority under a comprehensive federal scheme of regulation to take assignment of and undertake direct collection of payments from debtors such as the appellants. A state licensing requirement such as that provided for in K.S.A. 1986 Supp. 16a-2-301 could interfere with that scheme since it would be up to the administrator whether or not to license or authorize the FDIC to conduct such transactions.
Though this issue has not been resolved by state appellate courts, it has been considered by the federal district court of Kansas.
In Federal Deposit Ins. Corp. v. Gates, 594 F. Supp. 36 (D. Kan. 1984), the FDIC in its corporate capacity as purchaser of assets of a state bank sued to collect on certain promissory notes executed by defendants to the bank. The defendants counterclaimed, contending the FDIC violated K.S.A. 16a-2-301 when it undertook collection of payments and enforcement of rights against defendants arising from supervised loans without obtaining a license from the Kansas Consumer Credit Commissioner. The federal district court, after setting out the relevant statutes and discussing the purposes and policies underlying the UCCC (see K.S.A. 16a-l-102[2]), stated:
“Kansas Comment 1 to this section [K.S.A. 16a-2-301] makes clear that supervised financial organizations, because they are already supervised by a state or federal agency, are not required to be licensed. One of those supervising agencies is the FDIC. It would be ridiculous for this court to assume that Kansas would exempt from licensing banks subject to FDIC supervision in the making and collection of loans, but would require licensing of the FDIC when it undertakes the collection on loans purchased as a result of a failure of a bank.” 594 F. Supp. at 41.
On motion for reconsideration, the federal court also considered the constitutional issue now before this court and held that if Kansas were to require the licensing of the FDIC before the FDIC could exercise its powers granted under the federal law, the state law would violate the supremacy clause of the United States Constitution. 594 F. Supp. at 43.
We' agree with the federal court and hold that McCulloch is controlling on the issue in this case. For Kansas to require the FDIC to obtain a license to do business in this state is violative of the supremacy clause, Article 6 of the United States Constitution.
The legislature’s 1985 amendment to K.S.A. 16a-2-301 is irrelevant and is merely recognition of the supremacy clause.
In light of our holding, it is unnecessary to address the other issue raised on appeal. The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This is a criminal action in which the defendant was convicted by a jury for unlawfully operating a motor vehicle upon a public highway, while under the influence of intoxicating liquor, in violation of G. S. 1959 Supp., 8-530.
The evidentiary facts, events and circumstances giving rise to the institution of the action may be stated tihus.
On February 16, 1960, at approximately 8 p. m., Carlys Johnson, who was returning to his furniture store located near the intersection of K-10 Highway and Nieman Road in Johnson County, observed a Plymouth automobile parked in the middle of such highway, some two or three miles west of his place of business. Mr. Johnson proceeded on to his store and remained there until approximately 9 p. m. At or about that time he observed the same Plymouth automobile parked in front of his store with the motor running and the headlights on. He also observed a man slumped over the steering wheel of that vehicle. Thereupon Johnson went to a nearby filling station and advised a part-time policeman of the situation in order that the law enforcing authorities might be informed.
As Johnson returned to his store the man in the Plymouth automobile drove onto K-10 Highway, turned around, and headed east on such highway. Immediately thereafter, and after traveling a very short distance, the Plymouth automobile stopped on the highway with its lights on and the motor running. In view of the heavy trafiic, Johnson took measures to warn other drivers on the highway of the precariousness of the situation by focusing the headlights of his car on the Plymouth and by flashing his red blinker lights.
The Plymouth automobile remained parked on the highway for a period of five to ten minutes. During this time Mr. Jones, an associate of Johnson, approached such automobile and asked the driver thereof to pull it off the highway. This request was complied with. Mr. Jones then asked the driver of the Plymouth if he was in trouble, if he was sick or if he could help him in any way. Immediately following this inquiry, the driver got out of the car and pointed a revolver at Jones and Johnson. Thereupon, after exchanging some hurried explanatory remarks, the parties went over to a nearby liquor store where it was light in order that further explanation and identification could be made. All three men had just started for the liquor store when Edgar Balgrave, a Johnson County patrolman, arrived on the scene. Officer Balgrave then followed the men into the liquor store, where, after asking a few questions, he ascertained the name of the driver of the Plymouth was Milton M. Thomson and arrested him for driving while under the influence of intoxicating liquor and for assault with a deadly weapon.
During the course of the conversation, at the place mentioned, Officer Balgrave asked Thomson to submit to a recognized chemical test of his breath, as authorized by G. S. 1959 Supp., 8-1001, and he agreed to do so. Later, and upon his arrival at the court house, Thomson stated that the test was not necessary and, in response to an inquiry by one Williams, a deputy sheriff, as to whether he would take such test, stated that he would not do so. Thereupon the officers gave Thomson certain physical dexterity tests and, upon the basis of such tests and his previous conduct and actions, charged him by complaint in magistrate court (1) with feloniously endangering the lives of others contrary to G. S. 1949, 21-435; (2) with driving a motor vehicle upon a public highway while under the influence of intoxicating liquor contrary to G. S. 1959 Supp., 8-530; and (3) With carrying a concealed weapon contrary to G. S. 1959 Supp., 21-2411.
Following preliminary proceedings in magistrate court, not here in question, defendant was bound over to district court. There an information was filed charging him with the same crimes set forth in the complaint, i. e., (1) feloniously endangering the lives of others; (2) driving a motor vehicle upon a public highway while under the influence of intoxicating liquor; and (3) carrying a concealed weapon.
After arraignment and entry of a plea of not guilty a jury was empaneled and sworn to hear and determine whether Thomson was quilty or innocent of the charges made against him. At the close of its evidence the state moved that Count 3, charging Thomson with carrying a concealed weapon, be dismissed. This motion was sustained. Thereupon, and after the overruling of his demurrer to the evidence relating to Count 1 (endangering the lives of others), the defendant adduced his evidence and the state adduced rebuttal evidence. Subsequently the cause was submitted, under written instructions, to the jury which, after several hours of deliberation, returned a verdict finding the defendant guilty of the crime of driving under the influence of intoxicating liquor as charged in Count 2 of the information and not guilty of the crime of endangering the lives of others as charged in Count 1.
Following the return of the verdict defendant filed a motion for a new trial as to Count 2. After a full and complete hearing such motion was overruled by the trial court and the verdict was approved. Thereafter, having permitted statements by counsel for the respective parties concerning their views as to the sentence which should be imposed, the trial court rendered its judgment against the defendant wherein it directed that he be fined the sum of $300 and costs, which costs should include $180 for jury fees. This appeal followed.
In our disposition of this appeal claims of error advanced by appellant will be discussed in the order in which they appear in his specifications of error and are argued in his brief.
1. Appellant’s first complaint is that statements made by the trial court and an assistant county attorney in connection with the introduction of some of his evidence amounted to such misconduct that it requires a reversal of the trial court’s judgment and sentence. From a factual standpoint the most that can be said of this complaint is that in permitting appellant to introduce a Tetter in evidence, objected to by the state on grounds which appear to have considerable merit, the trial court stated that such evidence would be admitted for what it was worth, whereupon the assistant county attorney made the gratuitous statement “Thanks for the Court’s observation.” Upon objection by counsel for appellant to both statements and his comment he was sure the court by its statement did not intend to influence the jury in its decision, the court immediately turned to the jury and said “No, members of the jury, all of this is for your consideration for whatever you want to weigh it, just like all the other evidence.” Thereupon, in the presence of the jury, appellant’s counsel said “That is right.” Moreover, we note that in its instructions, the court advised the jury that the jurors were the exclusive judges of the weight of all evidence admitted and that it must make up its verdict only from the evidence which was introduced and accepted during the trial.
This court has been required to determine questions dealing with alleged prejudicial conduct on the part of court and counsel during the trial of a case on many occasions. By the very nature of things each case has been decided on its particular facts and circumstances. However, it may be stated that all decisions dealing with the subject recognize the rule, so well established as to require no citation of the authorities supporting it, that in order to warrant or require the granting of a new trial for alleged misconduct on the part of court or counsel the conduct complained of must affirmatively appear to have been of such nature that it prejudicially affected the substantial rights of the complaining party. We have carefully reviewed the entire record in the light of the foregoing rule and are convinced that, under the confronting facts and circumstances, the conduct on which appellant relies to sustain his position on the claim of error now under consideration did not prejudicially affect his substantial rights. It follows such claim lacks merit and cannot be upheld (G. S. 1949, 62-1718).
2. In this claim of error appellant complains because the trial court refused his request for an instruction based upon the provisions of G. S. 1959 Supp., 8-1005, which, so far as here pertinent, reads:
“Any criminal prosecution for the violation of the laws of this state relating to driving of a motor vehicle while under the influence of intoxicating liquor, . . . evidence of the amount of alcohol in defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substances may be admitted, and shall give rise to the following presumptions:
“(a) If there was at that time less than 0.15 percent by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor;
“(b) If there was at that time 0.15 percent or more by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.” (Emphasis supplied.)
The first portion of the requested instruction reads:
“You are instructed that evidence of the amount of alcohol in the defendant’s blood at the time alleged he was driving while under the influence of intoxicating liquor shall give rise to the following presumptions:”.
The two remaining paragraphs of such requested instruction are identical in form and language to subsections (a) and (b) of the above quoted section of the statute.
In other words, by the instruction as requested, appellant sought to invoke the benefits of the provisions of 8-1005, supra, even though, as previously indicated, he had not submitted to any of the chemical tests contemplated by its terms and there was no evidence of record whatsoever that he had done so.
In view of what has been heretofore related the answers to all contentions advanced by appellant in support of his position on this claim are short and simple. In the first place the provisions of 8-1005, supra, have application only, and are limited, to presumptions arising in a criminal prosecution for driving while under the influence of intoxicating liquor where the defendant has submitted to one of the chemical tests specified in G. S. 1959 Supp., 8-1001 and 8-1005, supra. In the next, since the facts of record make it clearly appear the appellant did not submit to any of such tests in connection with the case at bar, there was no occasion for the trial court to submit the defendant’s requested instruction and it would have committed reversible error if it had done so.
3. We are not disposed to labor contentions advanced by the parties respecting statements made by counsel in aggravation or mitigation of punishment. It suffices to say that an examination of the record discloses all such statements deal with matters which had been brought to the court’s attention by evidence adduced during the trial of the case and that in our opinion none of them prejudicially affected the appellant’s substantial rights. Moreover, it must be remembered, it is presumed that the court in inquiring as to circumstances of aggravation or mitigation disregards all incompetent evidence or statements (15 Am. Jur., Criminal Law, §519, p. 168). Finally it should be stated that the result of the hearing in aggravation or mitigation of punishment belies all contentions made by appellant to the effect statements made by counsel for the appellee resulted in prejudice to appellant’s substantial rights. In this connection it is to be noted that for his conviction, under the provisions of G. S. 1959 Supp., 8-530, the court could have punished appellant by imprisonment for not more than one year or by a fine of not less than $100 nor more than $500, or by both such fine and imprisonment, whereas, after the hearing, it required him to pay a nominal fine of $300 only. Under these circumstances it cannot be successfully argued, and we refuse to hold, that statements made at the hearing prejudicially affected his substantial rights and thus resulted in reversible error.
4. In his last specification of error appellant charges, and in his brief argues, that the court erred in assessing jury fees and mileage against him as a part of the costs of the action. Heretofore we have pointed out that in its judgment and sentence the court fined appellant the sum of $300 and costs, specifying that the costs should include $180 for jury fees. We note the record discloses that questions pertaining to mileage were raised in post-trial judgment motions. For that reason present consideration of appellant’s contentions will be limited to the status of the judgment when rendered.
In connection with his attack against the judgment appellant contends there is no established rule or statute whereby jury fees can be assessed as costs and no decisions of this court warranting a conclusion they can be so assessed. We do not agree.
Although reference thereto is not required for purposes of disposing of the claim of error now under consideration it should be stated, at the outset, that there is no merit whatsoever in contentions advanced by the appellant to the effect there is no statutory authority in this state evidencing an intent on the part of the legislature to require a defendant, who has been convicted of an offense against the laws of the state, to be assessed with the costs, including jury fees, of the criminal action resulting in his conviction. A few of our statutes indicating that this is true will now be noted.
G. S. 1959 Supp., 62-1901, formerly G. S. 1868, Ch. 82, § 325, provides:
“The costs incurred on the part of the prosecution shall be paid by the county in which the offense is committed, when the defendant shall be convicted and shall be unable to pay them . . .”
G. S. 1949, 62-1904, also in force and effect since 1868 (G. S. 1868, Ch. 82, § 328), provides:
“Whenever any person shall be convicted of any crime or misdemeanor, no costs incurred on his part, except fees for board, shall be paid by the state or county.”
G. S. 1949, 28-150, formerly Laws of 1881, Ch. 108, § 1, and later appearing in G. S. 1889, § 3042, reads:
“In all cases where the fees prescribed by this act in criminal cases for the sheriff, clerk, constables, justices of the peace, witnesses for the state, and jurors, are not paid by the defendant or the prosecuting witness, they shall be paid by the county in which the criminal prosecution is instituted: Provided, That no such fees shall be paid by the board of county commissioners until the sheriff shall have filed his affidavit that said fees cannot be collected from any other source.” (Emphasis supplied.)
It is interesting to note that the Laws of 1881, Ch. 108, § 1, now 28-150, supra, as above quoted, merely expanded the coverage of an earlier statute (G. S. 1868, Ch. 39, § 19) dealing with the same subject.
G. S. 1959 Supp., 28-122, in force and effect on all dates here in question, provides that jurors shall receive $5.00 per day for their services.
Having referred to pertinent statutes, it can now be stated that, in our opinion, this court almost one hundred years ago laid to rest all contentions advanced in support of appellant’s position the trial court erred in assessing jury fees against him as a part of its judgment.
As early as Board of Commissioners v. Whiting, 4 Kan. (2nd Ed.) 273, it was held:
“When any person has been convicted of crime, he is liable for all costs made, both in the prosecution and defense of the case.” (Syl. f 1.)
And in the opinion, after calling attention to then existing statutes similar in import to those above mentioned, said:
“By taking these provisions together, and the application of just and established rules of construction, we are able to understand that the law-making power in this enactment meant to provide—
“1. That when any person has been convicted of a crime against the laws, such person is liable for all the costs which are properly chargeable under the law; that is to say, he is liable for all costs made by prosecution, and for all costs made in his own behalf.” (*p. 280.)
Nearly fifteen years after its decision in tire Whiting case, and long after the early statutes, to which we have heretofore made reference, were in force and effect, in The State v. Granville, 26 Kan. (2nd Ed.) 158, this court held:
“A judgment of conviction in a criminal case in the district court carries costs against the defendant. (Commissioners v. Whiting, 4 an. 273.) [Comm’rs v. Hanback, 4-282; C. L. 1881, ch. 39, § 19; S. L. 1885, ch. 127, sec. 2.]” (Syl. ¶ 1.]
And in the opinion said:
“The only question before us is one of taxation of costs; and first, counsel challenge the right to render any j'udgment of costs. The argument is, that costs were unknown to the common law, and that there is no statute declaring in terms that, upon conviction in the district court, the j'udgment shall carry costs against the defendants. Notwithstanding the apparent defect in the statute, this question is not an open one, having been determined in the early history of this court in the case of County Commissioners v. Whiting, 4 Kas. 273. It was there decided that, when any person has been convicted of crime, he is liable for all costs, both in the prosecution and the defense of the case. There was then, as now, no statute specifically declaring that such j'udgment should carry costs; but the implications of the statute were so clear that the court felt warranted in so ruling. That decision, having been made more than a dozen years ago, and having been accepted by the profession and by the legislature ever since as a correct expression of the statute, ought not to be disturbed. If the legislature had thought that such ought not to be the law, it would so have expressed itself in subsequent statutes. The court having once construed the statutes, and the legislature having taken no steps to change them, it is to be taken as though the legislature had unmistakably so expressed its intent; and while there is room for the very plausible argument made by counsel, yet it is also evident from many sections of the statutes then as now in force, that the legislature supposed that such judgments carry costs.” (pp. 160, 161.)
Resort to Shepard’s Kansas Citations discloses that in this jurisdiction the foregoing decisions have never been criticized, disapproved or overruled and we know of, and are cited to, no Kansas authorities expressing conclusions contrary to those therein announced. Moreover the record makes it appear that the case at bar was tried by a jury of twelve for the period of three days at a time when, under the statute (28-122, supra), each juror was entitled to be paid $5 per day. Therefore, based on what is said and held in Board of Commissioners v. Whiting, supra, and in The State v. Granville, supra, we hold the trial court did not err when, in its original judgment and sentence, it directed that the appellant pay the costs of the action and that such costs should include $180 for jury fees.
Finally it should be stated that appellant has included in his abstract a record disclosing that, some four months after rendition of the trial court’s judgment and sentence, he filed a motion to retax the costs and that in its ruling on that motion the court directed that the costs should include mileage of the jury. The appellant has not specified the ruling on such motion as error and we are not required to review it. However, without laboring questions raised with respect thereto, we are inclined to the view, unless the facts which do not appear from the record presented disclose that the jury was called specially for the trial of the instant case, and it only, that mileage fees should not be taxed as a part of the costs.
The judgment is affirmed.
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The opinion of the court was delivered by
Herd, J.:
This is a suit by the residuary legatees under the will of Nona Morton to determine the ownership of certain savings accounts established by Nona Morton in the Franklin Savings Association. The appellees are the named beneficiaries of the accounts who were named to receive the proceeds upon the decedent’s death. The trial court granted judgment for the named beneficiaries. The Court of Appeals reversed. See In re Estate of Morton, 12 Kan. App. 2d 26, 733 P.2d 834 (1987).
Prior to her death, Nona E. Morton established two savings accounts, Numbers 98871 and 41792, at the Franklin Savings Association. The accounts were each entitled “Discretionary Revocable Trust Agreement,” and named Nona Morton as both grantor and trustee, and designated Mary, Frank, and Ronnie Moore as beneficiaries.
The agreements provided in relevant part:
“The funds in the account indicated on the reverse side of this instrument, together with earnings thereon, and any future additions thereto are conveyed to the trustee as indicated for the benefit of the beneficiary or beneficiaries as indicated. The conditions of said trust are: (1) The trustee is authorized to hold, manage, pledge, invest and reinvest said funds in his sole discretion; (2) The undersigned grantor reserves the right to revoke said trust in part or in full at any time and any partial or complete withdrawal by the original trustee if he is the grantor shall be a revocation by the grantor to the extent of such withdrawal, but no other revocation shall be valid unless and until written notice it [sic] given to the institution named on the reverse side of this card ... (4) This trust, subject to the right of revocation, shall continue for the life of the grantor, and at his death, the proceeds may be delivered by the association to the beneficiary or to his heirs, or to his trustee on his or their behalf ... (6) The institution in which such funds are invested is authorized to pay the same or to act in any respect affecting said account before or after the termination of this trust upon the signature of the trustee and has no responsibility to follow the application of the funds.”
At some point, these two original accounts were transferred to new accounts, which at the time of Nona Morton’s death were designated as NOW Account 001-0126096 and CD 001-0107394.
On September 6, 1973, Ernest Watkins was appointed as a voluntary conservator for Nona Morton. In order to obtain higher interest rates, Watkins transferred the money in the accounts to additional accounts, which also included certificates of deposit. The signature card forms of the accounts remained constant except on one occasion when the Franklin Savings Association used a different form. This was later corrected by Nona Morton’s conservator in order to preserve what he believed was Nona Morton’s original intent.
As interest accumulated on the accounts, it was withdrawn as needed by Watkins and placed in a checking account which was used to pay Nona’s expenses.
Nona Morton died on November 10, 1982. During the probate of her estate, the trust accounts established at Franklin Savings became the subject of a dispute between the appellants (who are the residuary legatees of Nona Morton’s will) and the appellees, Mary and Ronnie Moore. The appellants contend the accounts were invalid Totten trusts and thus should be distributed under the residuary clause of the will. Appellees, on the other hand, argue the accounts were valid and the funds should be paid to the named beneficiaries.
The district court upheld the trust arrangement and reasoned that since Totten trusts are similar to “payable on death” accounts which are statutorily authorized by K.S.A. 1986 Supp. 9-1215, Totten trusts must also be valid.
The Court of Appeals reversed the district court and concluded the trusts were invalid because (1) they did not satisfy traditional trust principles; and (2) they were testamentary in nature and failed to comply with the statute of wills, K.S.A. 59-606. We granted appellees’ petition for review.
This case presents an issue of first impression — whether Tot-ten trusts are valid in Kansas. Totten trusts, sometimes described as tentative trusts or savings account trusts, are created by depositing one’s own money into a bank, savings and loan, or credit union account as “trustee” for certain named beneficiaries. The depositor retains the power to withdraw any or all of the principal or income from the account or to otherwise revoke the trust. The trust beneficiaries’ right to the trust funds does not arise until the depositor’s death. See Note, Will Substitutes in Kansas, 23 Washburn L.J. 132, 153-54 (1983); Restatement (Second) of Trusts § 58 (1957). Totten trusts derive their name from the leading case establishing their validity, Matter of Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The typical Totten trust is described in Comment, Totten Trusts in Kansas, 9 Kan. L. Rev. 46 (1960), as follows:
“A deposits money in a savings account in his own name as trustee for B. A retains the passbook and all control over the account during his lifetime, even making withdrawals for his personal use from time to time. A dies. B, unaware of this account until A’s death, claims the account as beneficiary of the trust. A’s executor claims it as part of A’s estate.”
The trusts created by Nona Morton in this case contain all of the characteristics outlined above and are appropriately termed “Totten trusts.” Nona Morton deposited money in savings accounts in her own name as trustee for the beneficiaries Ronnie, Mary, and Frank Moore. Either Nona or her conservator retained control of the accounts during Nona’s lifetime for her personal use. At Nona’s death, the beneficiaries claimed they were entitled to the proceeds of the accounts as beneficiaries of the trusts, while the residuary legatees claimed the proceeds as part of the estate.
The determination that the trusts involved are “Totten trusts” brings us to the question of whether such trusts are valid in this state. Resolution of this issue requires consideration of a number of other questions, the analysis of which is described in 1A Scott on Trusts § 58.3 (4th ed. 1987):
“Where a person makes a deposit in his own name in trust for another and the inference is or the evidence shows that the depositor did not intend to create a trust, no question arises as to the effect of the Statute of Wills. In such a case on the death of the depositor the beneficiary is not entitled to the deposit, not because the disposition is testamentary, but because no trust was ever created in his favor. On the other hand if the inference is or the evidence shows that the depositor intended to create an irrevocable trust, no question arises as to the effect of the Statute of Wills. In such a case on the death of the depositor the beneficiary is entitled to the deposit and can charge the estate of the depositor with liability for any withdrawals that he may have made for his own benefit during his lifetime. The disposition is not testamentary since it is not ambulatory. This is true even though the depositor reserved power to use the income arising from the deposit for his own benefit, since the trust as to the principal is irrevocable.
“Where, however, the inference is or the evidence shows that the depositor intended to create a trust but also intended to reserve power during his lifetime to deal with the deposit in any way he should choose, the question arises whether the making of such deposit is a testamentary disposition and invalid under the Statute of Wills.”
Thus, the initial question for determination is whether the savings accounts established by Nona Morton constitute valid trusts under the laws of this state.
This court set forth the elements necessary to create an express trust in Shumway v. Shumway, 141 Kan. 835, 842, 44 P.2d 247 (1935). These elements are: (1) an explicit declaration and intent to create a trust; (2) definite property or subject matter of the trust; and (3) the acceptance and handling of the subject matter by the trustee as a trust. See Jennings v. Jennings, 211 Kan. 515, Syl. ¶ 3, 507 P.2d 241 (1973); Pizel v. Pizel, 7 Kan. App. 2d 388, 392, 643 P.2d 1094, rev. denied 231 Kan. 801 (1982).
With respect to the intent element, the Court of Appeals held that the facts and circumstances surrounding Nona Morton’s dealings with these accounts contradict her declaration of trust intent on the signature cards. The court noted that the decedent did not deal with the subject property to the benefit of the named beneficiaries, but instead controlled the movement of the monies in and out of the accounts and always treated the accounts as her own to be used for her needs and benefit. We disagree with this conclusion that the decedent’s actions nullified the trust.
In determining the validity of Totten trusts, most jurisdictions hold that the form of the deposit is conclusive as to trust intent unless evidence is shown the depositor had a contrary objective. Bogert, Trusts and Trustees § 47 (2d ed. rev. 1984). In the instant case, the trust instruments are entitled “Discretionary Revocable Trust Agreement” and contain specific trust language. Thus, we hold Nona Morton’s intent to establish a trust is established from the face of the instrument.
The Court of Appeals further determined that, because of the trustee’s retention of the power to revoke and the power to use both principal and income, the trust relationship appears illusory and creates the opportunity for fraud. This determination is not in accord with our decision in Ackers v. First National Bank of Topeka, 192 Kan. 319, 325, 387 P.2d 840 (1963), where we held a grantor’s right to remove trust assets or revoke the trust did not necessarily invalidate the trust. See In re Estate of Ingram, 212 Kan. 218, 510 P.2d 597 (1973), and In re Estate of Morrison, 189 Kan. 704, 371 P.2d 171 (1962). Moreover, as with the issue of intent, it is generally held that the inference from the form of a savings account deposit is that a revocable trust is created. 1A Scott on Trusts § 58.4, p. 214. Restatement (Second) of Trusts § 58 (1957), states:
“Where a person makes a deposit in a savings account in a bank or other savings organization in his own name as trustee for another person intending to reserve a power to withdraw the whole or any part of the deposit at any time during his lifetime and to use as his own whatever he may withdraw, or otherwise to revoke the trust, the intended trust is enforceable by the beneficiary upon the death of the depositor as to any part remaining on deposit on his death if he has not revoked the trust.”
We hold all the elements necessary to the creation of a valid trust are present here: (1) declaration and intention to create a trust, (2) description of the property, and (3) trustee’s handling and acceptance of the subject matter as a trust; and that Nona E. Morton created valid savings account trusts.
In spite of the finding the decedent created valid trusts, we must still determine whether such trusts are testamentary in nature, and accordingly must comply with the statute of wills, K.S.A. 59-606, which provides in pertinent part:
“Every will, except an oral will as provided in K.S.A. 59-608, shall be in writing, and signed at the end thereof by the party making the same, or by some other person in the presence and by the express direction of the testator and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard the testator acknowledge the same.”
It is argued the issue of whether Totten trusts are testamentary in character is resolved by Truax v. Southwestern College, 214 Kan. 873, 522 P.2d 412 (1974).
Truax concerned the validity of payable on death (P.O.D.) accounts. P.O.D. accounts are established where funds are deposited in a bank or savings and loan association for the benefit of another, and are payable upon the death of the depositor. 23 Washburn L.J. at 147. While Totten trusts and P.O.D. accounts are similar in that they have the same effect, they are distinguishable in that P.O.D. accounts are based on contract, rather than trust principles. In a P.O.D. account, the bank or savings institution, under the terms of its contract with the depositor, agrees to pay the proceeds remaining in the account to a named beneficiary upon the depositor’s death. Thus, the named beneficiary’s claim to the proceeds of the account is based on a third-party beneficiary theory.
The Truax court held the attempted dispositions were invalid since the P.O.D. accounts in question were not executed in compliance with K.S.A. 59-606. The court reasoned as follows:
“The transfer of a bank account, to take effect at the death of the depositor, who retains control during his life, is testamentary in character and void if not executed as a will, whether the intention of the depositor is to provide for a trust or to make a direct gift.” 214 Kan. 873, Syl. ¶ 5.
Appellees argue Truax is inapplicable here because that case concerned P.O.D. accounts rather than Totten trusts. They reason that any statements made in Truax regarding the validity of similar arrangements are purely dicta. However, we do not find it necessary to reach the issue of whether Truax invalidated Totten trusts since Truax has been legislatively overruled by K.S.A. 1986 Supp. 9-1215, K.S.A. 1986 Supp. 17-5828 and K.S.A. 1986 Supp. 17-2263.
The Kansas Legislature enacted what are now K.S.A. 1986 Supp. 9-1215 -1216; K.S.A. 1986 Supp. 17-5828 -5829; and K.S.A. 1986 Supp. 17-2263 -2264 in 1979 in order to authorize the transfer of property through P.O.D. accounts without compliance with the statute of wills.
K.S.A. 1986 Supp. 17-5828 provides in part:
“An individual adult or minor, hereafter referred to as the owner, may enter into a written contract with any savings and loan association located in this state providing that the balance of the owner’s deposit account, or the balance of the owner’s legal share of a deposit account, at the time of death of the owner shall be made payable on the death of the owner to one or more persons or, if the persons predecease the owner, to another person or persons, hereafter referred to as the beneficiary or beneficiaries. . . .
“Transfers pursuant to this section shall not be considered testamentary or be invalidated due to nonconformity with the provisions of chapter 59 of the Kansas Statutes Annotated.
“Every contract authorized by this section shall be considered to contain a right on the part of the owner during the owner’s lifetime both to withdraw funds on deposit in the account in the manner provided in the contract, in whole or in part, as though no beneficiary has been named, and to change the designation of beneficiary. The interest of the beneficiary shall be considered not to vest until the death of the owner.”
K.S.A. 1986 Supp. 9-1215 is nearly identical to K.S.A. 1986 Supp. 17-5828 and K.S.A. 1986 Supp. 17-2263, except that 9-1215 applies to banks rather than savings and loan associations or credit unions.
With the enactment of the above statutes, the legislature effectively overruled the Truax decision with respect to payable on death accounts. Thus, the question this court must now decide is whether Totten trusts, such as the ones created by Nona Morton in the instant case, also come within the statutorily created exception to the statute of wills.
The district court determined that since P.O.D. accounts are now authorized by statute and since the end result of a Totten trust is identical to that of a P.O.D., Totten trusts are valid dispositions of property and need not comply with the statute of wills. The Court of Appeals disagreed, and held that the fact that the legislature created an exception to the statute of wills for P.O.D. accounts does not validate the use of Totten trusts.
An examination of K.S.A. 1986 Supp. 9-1215, K.S.A. 1986 Supp. 17-5828, and K.S.A. 1986 Supp. 17-2263 leads to the conclusion that these enactments do validate Totten trusts. The statutes clearly refer to accounts whereby the account owner enters into a written contract with the bank or other institution providing that the balance should be paid to the named beneficiary at the owner’s death. Both P.O.D. accounts and Totten trusts require the bank, savings and loán institution, or credit union to pay the proceeds of the account to the named beneficiaries upon the death of the depositor. When we look beyond form to substance, we see such language is broad enough to show the legislature intended to remove those types of accounts from the statute of wills. Accordingly, we hold the statutes apply to savings account trusts as well as P.O.D. accounts.
We affirm the trial court and reverse the Court of Appeals.
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Per Curiam:
This original action in discipline was filed by the office of the Disciplinary Administrator against Douglas A. Price of Humboldt. Respondent has been the subject of several prior disciplinary proceedings and has been suspended from the practice of law in Kansas since July 9, 1985. In re Price, 237 Kan. 624, 701 P.2d 1337 (1985); In re Price, 238 Kan. 426, 709 P.2d 986 (1985).
The instant complaint is based upon respondent’s representation, or lack thereof, in the matter of the Estate of Merle K. Bagnall, deceased, in the District Court of Allen County. After being notified of the complaint filed against him, respondent totally failed to respond or to cooperate with the office of the Disciplinary Administrator. He failed to appear before the panel of the Board for Discipline of Attorneys and failed to appear before this court when ordered to do so. Such failure constitutes a clear violation of Supreme Court Rule 207 (235 Kan. cxxvi). State v. Savaiano, 234 Kan. 268, 670 P.2d 1359 (1983). It is noted that respondent showed similar disdain for the rules of this court and the Code of Professional Responsibility in the previous actions.
The panel in this case found the respondent neglected the probate proceedings in the Bagnall estate which he originally filed on August 14, 1981. It found:
“[TJhe Respondent has failed, refused and neglected to complete the matters pertaining to the estate, although he has been requested to do so. There has been no accounting nor determination of heirship. There has been no report of either Kansas inheritance tax or federal estate tax prepared by the Respondent. The estate has incurred a Kansas inheritance tax liability for interest of $1,643.75 due to delinquent reporting.”
The panel unanimously found that Respondent violated DR 6-101(A)(3) (235 Kan. cxlvii) in that he neglected a legal matter entrusted to him and recommended that respondent be disbarred. We agree.
Respondent, for the last several years, has shown a total lack of responsibility in representing his clients as is demonstrated by the earlier cases. He has shown no respect for his oath as an attorney or for the courts in which he has appeared. Respondent’s repeated neglect of his clients’ affairs shows a lack of ability or desire to represent those clients and a total disregard for the judicial system and the administration of justice. Such repeated and intentional failures require more severe sanctions than would a single isolated incident. See ABA Standards for Imposing Lawyer Sanctions § 8.1, p. 47 (1986); Benson v. State Bar, 13 Cal. 3d 581, 119 Cal. Rptr. 297, 531 P.2d 1081 (1975); The Florida Bar v. Glick, 397 So. 2d 1140, 1141 (Fla. 1981).
It Is Therefore By The Court Ordered that Douglas A. Price be,.and he is hereby, disbarred from the practice of law in the State of Kansas; the privilege and license of Douglas A. Price to practice law in the State of Kansas are hereby revoked, and the Clerk of the Appellate Courts is directed to strike the name of Douglas A. Price from the roll of attorneys in the State of Kansas.
It Is further Ordered that this order of disbarment shall be published in the official Kansas Reports and that the costs of this action be assessed to the respondent.
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The opinion of the court was delivered by
Wertz, J.:
On February 19, 1947, Arthur L. Kessler, plaintiff (appellant), was granted a divorce from Catherine Kessler, defendant (appellee), by reason of her incurable insanity (G. S. 1945 Supp., 60-1501, Eleventh. Defendant, at the time of the divorce decree, was, and had been for more than five years, an inmate of Larned state hospital, a state institution for the insane. In the decree, the plaintiff husband was given all the real and personal property of the parties, consisting of a substantial amount of land and other property, and was ordered to pay a specified sum for the support and maintenance of the defendant then due the state board of administration. The judgment further provided that the plaintiff was to pay defendant’s guardian five dollars a week for her support and maintenance until further order of the court. The trial court’s judgment also provided that plaintiff should not be relieved from contributing to the support and maintenance of the defendant, and the court specifically retained jurisdiction of the case for the purpose of making future orders for defendant’s support and maintenance under section 60-1501.
While the record in this case is incomplete, we are advised by defendant’s counsel that defendant, while still insane, was discharged from the hospital in June, 1959, and was placed in a private care home, and that plaintiff ceased making payments for defendant’s support on October 1, 1959. On November 12, defendant’s guardian filed a motion in the original divorce action which, among other things, asked the trial court to require the plaintiff to pay the Larned state hospital the balance due and owing it for the care and maintenance of defendant, and to pay the guardian of the person and estate of defendant the amount due for her support and maintenance subsequent to October 1, 1959. The motion also sought an order fixing future support and maintenance payments by plaintiff, and an order requiring plaintiff to pay reasonable attorney fees incurred by the guardian in enforcing the prior judgment and order of the court.
The trial court, in sustaining the pertinent portion of the motion and in clarifying the journal entry of judgment in the divorce action, found that the plaintiff was liable for the amount necessary for the reasonable support of defendant, regardless of whether she was kept in a state or a private institution; that the plaintiff was liable for the back support he had declined and refused to pay, and that each of the overdue support payments should be a judgment as it became due. The court further found that the eleventh ground for divorce as it applies to insane persons as set out in section 60-1501 “places the insane spouse in the same category as dependent minor children and specifically was passed with that intention and is enforceable the same as child support in other cases, and that public policy demands that the husband of a divorced-insane wife is and shall be responsible for the reasonable care of such wife.” The court entered judgment in accordance therewith and ordered plaintiff to pay the attorney fees incurred by defendant’s guardian for services rendered in preparing and presenting the motion upon which the relief was granted. Plaintiff appeals only from the order of the trial court allowing attorney fees.
Plaintiff contends that there is no statutory provision for the allowance of attorney fees in die instant case. Defendant contends that attorney fees were properly allowed under G. S. 1949, 60-1507.
G. S. 1949, 60-1507 provides that in a divorce action the trial court may make such order relative to the expenses of the suit as will insure to the wife an efficient preparation of her case. Plaintiff contends that inasmuch as the decree of divorce had been granted, the trial court had no right to allow attorney fees to defendant in this proceeding. This brings us to the question of whether the above statute provides for the allowance of attorney fees to a guardian who institutes proceedings on behalf of an insane wife to enforce a previous judgment requiring that her former husband pay both back and future payments due for her support and maintenance under section 60-1501.
In Maston v. Maston, 171 Kan. 112, 115, 229 P. 2d 756, we stated that under the provisions of G. S. 1949, 60-1507 attorney fees have been allowed the wife in resisting an application by her husband to take from her the custody of their children awarded her in the divorce action (Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33). We have also allowed attorney fees to the wife in resisting an application brought by her husband to set aside a judgment for child support (Bush v. Bush, 158 Kan. 760, 150 P. 2d 168). Attorney fees have been allowed when a former wife seeks an order increasing the support money for the children and makes a showing before the court that she is not financially able to employ counsel (Davis v. Davis, 148 Kan. 826, 84 P. 2d 849).
It is the law of this state that a wife may recover reasonable attorney fees from her husband when she is compelled by his wrongs to employ counsel to protect her rights. When a former wife seeks to defend or enforce a judgment, attorney fees are properly allowable (Maston v. Maston, supra). In other words, after a divorce is granted, attorney fees are allowable if a wife is forced, due to the action or inaction of her former husband, to come into court to protect a right granted her by the judgment in a divorce action.
G. S. 1945 Supp., 60-1501 provides, among other things, that a decree granted on the ground of incurable insanity shall not relieve the successful party from contributing to the support and maintenance of the defendant. One who obtains a divorce from an insane wife under the mentioned statute is under the continuing duty to care for and maintain her (Sandhagen v. Vogel, 147 Kan. 570, 77 P. 2d 949). Under the provisions of the mentioned statute, the trial court, when granting the divorce, is required to make an order for the support and maintenance of the defendant. Subsequent to the decree of divorce, the district court has, under the mentioned statute, a continuing jurisdiction to enforce its judgment and to change or modify the order made therein for the support and maintenance of the insane person, when facts and circumstances are shown which make such change or modification proper, or when there are shown changed circumstances which necessitated application to the lower court for an increase in the amount of the support and maintenance of such insane person.
In the instant case, the trial court made in its original decree an order for the support and maintenance of the defendant in a specified amount and specifically reserved jurisdiction for the purpose of making future orders for the support of defendant. Inasmuch as plaintiff failed to make the payments for defendant’s support as provided by the judgment, the trial court was justified in allowing attorney fees incurred by the guardian in an attempt to collect support money due and to obtain such relief in the way of future payments for the support and maintenance of defendant as the trial court might see fit to allow in the interest of justice.
We agree with the trial court that section 60-1501 places the insane spouse in the same category as dependent minor children and the provision therein for support of the insane person is enforceable the same as in child support cases. Public policy demands that the husband of a divorced insane wife be responsible for her reasonable care. We are of the opinion that when the former husband fails to comply with the previous judgment of the trial court with reference to the payment of such care and maintenance and it becomes necessary for the former wife’s guardian to take affirmative action to recover such support, attorney fees are properly allowable under the rule of the aforementioned cases. The judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Jackson, J.:
The appellee-petitioner filed his petition for a writ of habeas corpus against the warden of the penitentiary in the district court and the district court, after making findings of fact which are not in dispute, allowed the writ as of October 3, 1960. The warden has appealed.
The findings of fact of the district court may be summarized briefly as follows:
Petitioner was convicted on his plea of guilty of burglary in the second degree and sentenced to a term of not less than five years nor more than ten years as provided by law in the district court of Linn county on December 18, 1952; that petitioner was confined in the penitentiary under said sentence until May 1, 1956, when he was paroled; that on July 11, 1957, petitioner was declared delinquent on parole and a parole violator’s warrant was issued for his arrest; that petitioner was arrested at the request of the Kansas authorities as a parole violator by the Missouri authorities in Jackson county, Missouri on July 30, 1957; that the Missouri authorities on said day charged petitioner as a fugitive from justice from the state of Kansas and, with the exception of one day when he was free on bond, kept him confined in the Jackson county jail from that time until January 28, 1958, at which time the proceedings were dismissed because no extradition warrant was ever received for his extradition to Kansas.
Later on petitioner was brought back from the state of Illinois and returned to the state penitentiary on July 8, 1959.
Petitioner claimed in the petition, and the district court so found, that he was entitled to credit for the time he was incarcerated in the Jackson county, Missouri jail from July 30, 1957 to January 28, 1958, and therefore would be entitled to his release from the penitentiary on October 3, 1960. The warden on the other hand contends that petitioner is not legally entitled to such credit and should have served time in the penitentiary until March 30, 1961.
The solution of the above question depends upon the provisions found in Laws 1957, Ch. 331, which appears in G. S. Supp. 1959, Ch. 62, art. 22. Section 62-2250 of the above statute reads in part as follows:
“Upon such arrest and detention, the parole or probation officer shall immediately notify the director and shall submit in writing a report showing in what manner the prisoner had violated the conditions of release. Thereupon, or upon an arrest by warrant as herein provided, the director shall cause the prisoner to be brought before the board for a hearing on the violation charged, under such rules and regulations as the board may adopt. If the violation is established, the board may continue or revoke the parole or conditional release, or enter such other order as it may see fit.
“A prisoner for whose return a warrant has been issued by the director shall, if it is found that the warrant cannot be served, be deemed to be a fugitive from justice or to have fled from justice. If it shall appear that he has violated the provisions of his release, the board shall determine whether the time from the issuing of the warrant to the date of his anest, or any part of it, shall be counted as time served under the sentence.” (Italics supplied.)
Section 62-2252 of the same statute reads in part as follows:
“The period served on parole or conditional release shall be deemed service of the term of imprisonment, and, subject to the provisions contained in section 25 [62-2250] herein relating to a prisoner who is a fugitive from or has fled from justice, the total time served may not exceed the maximum term or sentence.”
Petitioner makes no contention that the state board of probation and parole has made a finding that he should be granted credit for the time he was incarcerated in Missouri as described above. This being the case, it must be clear that no such order has been made. We have held definitely that only by affirmative action may time in which the prisoner is a fugitive with a warrant issued for his arrest pending against him be credited to his account see Chambers v. Hand, 186 Kan. 380, p. 384, 350 P. 2d 50. But petitioner contends rather that he had been served with the warrant for his arrest, and was held under that warrant in the county jail in Missouri; that under such a situation the statute allows him credit for such incarceration.
The trouble with the above argument is that although the Missouri authorities may have had a copy of the warrant at the time of petitioner’s arrest in Missouri, the warrant had no force in that state and he was arrested only by the authority of the state of Missouri. (State v. Martin, 89 Kan. 678, 131 Pac. 1190.) The petitioner remained a fugitive from justice in Kansas at all times. Various hypothetical propositions might be supposed if it be thought that the Missouri authorities were acting under the Kansas warrant, but we need not extend the opinion further.
The trial corut expressed an opinion that the Kansas authorities were not diligent in obtaining petitioner’s return to Kansas from Missouri. On the showing, we would agree but the statute gives only the board of probation and parole the power in its discretion to allow such time. This the board has failed to do. The district court erred in allowing the writ in this case, and the order must be reversed. It is hereby so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
This action was commenced pursuant to G. S. 1949, 44-512a to recover a lump-sum judgment for all past due and unpaid, and future installment payments of a workmen’s compensation award. Judgment was in favor of the workman-plaintiff, and the employer-defendant has appealed.
On October 28, 1960, the workmen’s compensation commissioner entered an award of compensation in favor of plaintiff in the total sum of $15,654.31 plus all medical expense not to exceed $2,500. On December 12, 1960, plaintiff served a written demand upon defendant pursuant to G. S. 1949, 44-512a to pay all amounts due and owing to him under the compensation award, and further, that should defendant fail to pay such amounts within two weeks, suit would be brought for the entire amount of compensation awarded. Defendant failed to comply with the statutory demand, and plaintiff commenced this action.
In his answer defendant alleged that he timely perfected an appeal to the district court from the award of the workmen’s compensation commissioner in favor of plaintiff pursuant to G. S. 1949, 44-556, as amended, and further, that a supersedeas bond in the amount of $36,308.62 was filed in such appeal proceeding and was approved by the clerk of the district court within two weeks from the date of service of plaintiff’s statutory demand. A copy of the supersedeas bond was attached to defendant’s answer, and omitting the caption, date and signatures, reads:
“The State of Kansas, County of Ford, ss:
“Whereas, on the 28th day of October, 1960, a finding and award was made by the Workmen’s Compensation Commissioner of Kansas in favor of said Ben Teague and against George-Nielsen Motor Co., his employer, and Universal Underwriters Insurance Company, as insurance carrier, for workmen’s compensation in the amount of $15,654.31, plus all medical expenses, past, present and future, not to exceed the sum of $2,500.00; and
“Whereas, the said George-Nielsen Motor Co. and Universal Underwriters Insurance Company, respondent and insurance carrier, have appealed to the District Court of Ford County, Kansas, from said award, and intend to prosecute proceedings to reverse, vacate or modify the same, and desire a stay of execution thereon, or other proceedings to enforce the same, until the final determination of said appeal.
“Now, Therefore, we, George-Nielsen Motor Co. and Universal Underwriters Insurance Company, as principals and The Fidelity and Deposit Co. of Maryland, as surety, hereby undertake to the said Ben Teague in the penal sum of $36,308.62, that the said George-Nielsen Motor Co. and Universal Underwriters Insurance Company will pay the amount of said award if the same, or any part thereof, be affirmed or the appeal be dismissed, or the part of such amount as to which said award is affirmed, if affirmed only in part, and all damages and costs which may be awarded against the appellants upon the appeal, and if the appellants do not make such payment, within thirty (30) days after the ruling of the court upon such appeal, or do not appeal to the Supreme Court of Kansas, and file a proper Supersedeas Bond in connection therewith, judgment may be entered, on motion of said claimant in his favor, against the surety, for such amount, together with the interest that may be due thereon, and the damages and costs which may be awarded against the appellants upon the appeal.”
Defendant further alleged that plantiff was not entitled to prosecute the action, and the prayer was that plaintiff take nothing and defendant have judgment for his costs.
At the trial, the district court found that, among other things, defendant failed to comply with the statutory demand within the two-weeks’ period following service upon the defendant. It further found that the supersedeas bond filed by defendant and his insurance carrier did not stay the action commenced under G. S. 1949, 44-512a, and entered a lump-sum judgment in favor of plaintiff in the amount of $15,038.82.
The sole question presented is whether an employer, who timely appeals from an award of compensation to the district court and who fails to make compensation payments to the workman, may secure a stay of such payments pending the appeal and remove the foundation for an action under G. S. 1949, 44-512a by filing a supersedeas bond within two weeks after receipt of the statutory demand. In discussing this question we note that defendant’s appeal from the award of the workmen’s compensation commissioner is still pending and undisposed of in the district court.
Defendant contends such a bond is authorized by G. S. 1949, 44-530 relating to stay of proceedings upon an award by the compensation commissioner, and by 60-3322 relating to the stay of execution on appeals taken to reverse a judgment or final order of a court directing the payment of money, and relies upon language in the recent case of Bentley v. State Department of Social Welfare, 187 Kan. 340, 356 P. 2d 791, and upon Paul v. Skelly Oil Co., 134 Kan. 636, 640, 7 P. 2d 73. We are not persuaded the contention is meritorious. In the first place, G. S. 1949, 60-3322 is inapplicable. That statute was a part of the code of civil procedure when it was enacted in 1909 (Laws 1909, Ch. 182, §586; R. S. 1923, 60-3322). It has been repeatedly held by this court in a long line of decisions that the Workmen s Compensation Act of 1927, as amended, establishes a procedure of its own covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is substantial, complete and exclusive in itself, and that the rules and methods provided by the code of civil procedure not expressly included in the act or necessarily implied from its express provisions are not available in any respect in determining rights under the act; hence, no borrowing from the code is warranted to supply that which may be lacking. (Anchor Casualty Co. v. Wise, 172 Kan. 539, 543, 241 P. 2d 484; Clark v. Winfield Hospital & Training Center, 186 Kan. 705, 707, 352 P. 2d 442; Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P. 2d 869.) See, also, 5 Hatcher’s Kansas Digest [Rev. ed.], Workmen’s Compensation, § 142; West’s Kansas Digest, Workmen’s Compensation, §§ 1165, 2084. In the second place, there was no execution to be stayed. Proceedings under the act to obtain compensation are administrative. (Lenon v. Standard Oil Co., 134 Kan. 289, 5 P. 2d 853.) An award of the Workmen’s Compensation Commissioner is not precisely a judgment since it is not a decree of a judicial tribunal, but the statute outlines a procedure by which it may be given that effect. (Resnar v. Wilbert & Schreeb Coal Co., 132 Kan. 806, 809, 297 P. 429.) An award is always open to modification at the instance of either party until final payment has been made (G. S. 1959 Supp., 44-528), and in that respect it lacks the elements of res judicata which is the distinctive feature of a judgment. (Resnar v. Wilbert & Schreeb Coal Co., supra.) Aside from a proceeding to review and modify (G. S. 1959 Supp., 44-528), the only recourse for an aggrieved party is an appeal from the findings and award of the commissioner to the district court. (Fleming v. National Cash Register Co., 188 Kan. 571, 576, 363 P. 2d 432.) That court considers and passes upon both the law and the facts and makes its findings and conclusions and renders a judgment. (Lenon v. Standard Oil Co., supra.)
The Paul case, supra, relied upon by defendant is not helpful to him. The appeal there was not, as here, from the award of the compensation commissioner to the district court, but was to the supreme court to reverse a judgment of the district court awarding compensation to a workman, and it was held that the appeal did not stay execution. There is no analogy between a compensation proceeding as it exists after an appeal is taken to the supreme court from an award of compensation which is affirmed or modified by the district court, and as it exists after an appeal has been taken from an award of the commissioner to the district court and, as here, remains undisposed of. In the former, a judgment results in favor of the workman and if unappealed from and unpaid and not modified by the commissioner on application to review and modify (G. S. 1959 Supp., 44-528), may be enforced by execution (Lenon v. Standard Oil Co., supra). In the latter, the appeal is pending and undisposed of, and, as previously indicated, an award of the commissioner is not precisely a judgment.
Defendant contends that Bentley v. State Department of Social Welfare, supra, supports his contention that the supersedeas bond stayed the instant action. In that opinion we said:
“Under the statute, the employer may appeal at will, but if served with the required notice under section 44-512a, he should pay the' compensation to date or make some agreement and bond for the same. . . .” (l. c. 342.) (Emphasis supplied.)
In Harris v. Moore Associates of Topeka, No. 42,578, 188 Kan. 822, 365 P. 2d 1085, this day decided, the Bentley case was reexamined and adhered to. However, it was specifically stated in the opinion that,
“What the court really had in mind in the language quoted above, was that the compensation act and section 44-512a thereof has no provision staying proceedings during appeals. . . .”
As interpreted in the Harris case, the Bentley case is not authority that an employer and his insurance carrier who appeal to the district court from an award of compensation in favor of a workman may make some agreement or file a supersedeas bond pending the appeal and secure a stay of payment of compensation, or an action commenced pursuant to 44-512a for nonpayment.
Defendant lastly argues that G. S. 1949, 44-530 authorized the filing of the supersedeas bond. We do not agree. G. S. 1949, 44-529 and 44-530 were a part of the original act of 1927 and must be considered together. Section 44-529 provides in substance that if the workman is in doubt as to the security for payment of his compensation at any time before final payment has been made, upon notice to the employer he may apply to the commissioner for a lump-sum award equal to 95 percent of the past due and prospec tively due payments under the award, and if the evidence shows a reasonable doubt as to the security, the commissioner may make a lump-sum award and forward a certified copy thereof to the district court upon which, after ten days’ notice to the employer, judgment may be entered which judgment may be enforced by execution (G. S. 1949, 44-512a; Resnar v. Wilbert & Schreeb Coal Co., supra; Lenon v. Standard Oil Co., supra), unless the employer provides a certificate of a licensed or authorized insurance company that the amount of compensation to the workman is insured by it or a proper bond is filed and approved by the commissioner to secure the payment of compensation. G. S. 1949, 44-530 provides in substance that when a workman makes application to the commissioner for a lump-sum award against his employer, and before judgment has been granted, the employer may stay the application by filing with the clerk of the district court a bond to be approved by the clerk to secure payment of the compensation, or by filing a certificate of a licensed or authorized insurance company that the payment of the compensation is insured by it.
It is obvious from a reading of the foregoing statutes that the legislature intended to provide the workman a method to secure payment of his compensation when he is in doubt as to its security and the evidence before the commissioner shows a reasonable doubt exists.
The defendant in this action is not a self-insurer and it is unnecessary to determine whether sections 44-529 and 44-530 are applicable only to that type of employer. Be that as it may, we think it crystal clear the legislature did not intend that section 44-530 be applied to stay proceedings where there is a refusal to pay compensation after a written statutory demand has been made by the workman under section 44-512a. Various remedies are provided a workman in the act to enforce a compensation award and they are all to secure its payment, not to stay it.
The legislative intent and purpose of section 44-512a has been detailed in a whole series of decisions. (Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860; Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373; Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168; Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267; Redenbaugh v. State Department of Social Welfare, 187 Kan. 320, 356 P. 2d 794; Fleming v. National Cash Register Co., supra; Bentley v. State Department of Social Welfare, supra; Harris v. Moore Associates of Topeka, supra.) This court has consistently held that the statute was remedial in character and deprived the employer of no vested rights; that it was intended to supplement existing remedies provided in the act and applies to a different state of facts from those embraced in the provisions of the original act of 1927; that under the new remedy, the employer has the choice of protecting his vested rights by merely complying with the terms and requirements of the award by which he is bound until it is set aside, modified, paid, or redeemed, or permit the workman to invoke the new remedy for the collection of all future installments; that where the employer defaults in payment and a demand is made under the statute, an action may be maintained for the entire amount of compensation awarded in like manner as for the collection of a debt, irrespective of whether the employer has or has not appealed from the award to the district court and notwithstanding there is no judgment of a judicial tribunal affirming or modifying the award. (Bentley v. State Department of Social Welfare, supra; Fleming v. National Cash Register Co., supra; Harris v. Moore Associates of Topeka, supra.)
The employer may appeal at will from the award of the commissioner (Bentley v. State Department of Social Welfare, supra) by following the special provisions of the act for the taking of appeals which is prescribed in detail in G. S. 1959 Supp., 44-556. But no provision is found in that section, or elsewhere in the act, authorizing the filing of a supersedeas bond to stay payment of compensation pending the appeal to the district court or the prosecution of an action commenced under section 44-512a where payment of compensation is refused. If an appeal is taken, the payment of compensation would not prejudice the employer’s right to obtain a review of the commissioner’s award.
We have thoroughly reviewed the record and find no error. The judgment of the district court is affirmed.
Price, J., dissents.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a verdict of a jury and the judgment and sentence entered thereon by the trial court in a criminal prosecution and from the order overruling defendant’s motion for new trial.
The information charged in count one that on October 31, 1959, defendant unlawfully, feloniously, on purpose and of malice aforethought shot Lyle Koberstein with a revolver, with intent to kill him, contrary to G. S. 1949, 21-431; count two, that on October 31, 1959, defendant unlawfully, feloniously, wilfully, without lawful authority seized, kidnapped, confined and took away against his will Lyle Koberstein, and inflicted bodily harm upon him, contrary to G. S. 1959 Supp. 21-449; count three, that on October 31, 1959, defendant unlawfully, feloniously and wilfully took a 1959 Buick automobile from Lyle Koberstein in his presence and in whose custody, control and possession the vehicle was at the time, and the taking was by violence to Koberstein’s person, contrary to G. S. 1949, 21-527. The state at the close of its evidence dismissed the last count.
On January 21, 1960, two prominent and capable attorneys, Lee Hornbaker and Richard Waters of the Geary County Bar Association, were appointed to represent defendant. This proceeding of appointment of counsel along with the next succeeding step, that of setting the amount of bond which involved reference to prior offenses, were both recorded on tape and later broadcast over Junction City radio station KJCK. Defendant strenuously objected to such tape recording and at every possible stage of the trial renewed the objection on the ground that it violated No. 35 of the Canons of Judicial Ethics. These objections were all overruled by the trial court. While this court is not holding these rulings to be reversible error, such proceedings are not approved or sanctioned by this court, and they are not to be allowed in a courtroom or are they to be participated in and indulged in by a court.
Defendant contends that due to extreme coverage of “crime” in and by the news media of Junction City and a linking of this case therewith many prospective jurors had formed an opinion (these were all excused) and in one instance one of such prospective jurors made some statements which were at most irregular, but the trial court immediately admonished the jury to disregard the remarks and the irregularity was thereby remedied.
The only evidence which was wholly uncontradicted and undisputed was offered by the state in regard to the occurrences on Saturday afternoon, October 31, 1959, the day of the alleged commission of the crime. It was shown that defendant, in attempting to pay for a pair of cuff links in a jewelry store in Junction City, presented a check for $157.00 to the jeweler and that the jeweler’s wife called Kansas City to clear the check and found the check was “no good.” The Junction City police department was called and officer Lyle Koberstein came to the store alone in a police car. He took defendant, and they got into the police car, and after driving a short distance defendant “whipped out his gun” and pointed it at Koberstein. The gun was a loaded Highway Patrolman .357 Mag num which was in a firing position. Defendant said he was wanted for murder and one more would make no difference to him and for Koberstein not to try any tricks or funny stuff, to drive straight ahead, not to go into dead end streets and drive the speed limit. At the outskirts of town defendant made him stop and told him to “step away from the police car,” whereupon defendant told him to drop his gun belt, but instead Koberstein pulled his gun and defendant shot him in the right arm.
Complaint is made of the trial court’s instruction with respect to this evidence and to what extent it would invoke the kidnapping statute (G. S. 1959 Supp. 21-449). The instruction was as follows:
“Instruction No. 8.
"Section 21-449 is the basis for the complaint as set out in Count Two of the Information and reads as follows:
“ ‘Kidnaping in the first degree; penalties. . . If any person or persons shall willfully, without lawful authority, seize, confine, inveigle, decoy, kidnap or take or carry away by any means whatever, any person or persons or cause such child or person or persons to be secretly confined against his will, for the purpose and with the intention of causing the father or mother or any other relative of the person so kidnaped, or any other person, to pay or offer to pay any sum as ransom or reward for the return or release of any person or persons, or if bodily harm is in any way inflicted upon the person or persons so kidnaped, said person or persons so guilty of the above-mentioned acts or act, shall, on conviction be deemed guilty of kidnaping in the first degree and be punished by death or by confinement and hard labor in the penitentiary for fife, if the kidnaped person has been harmed, or by imprisonment in the penitentiary for not less than twenty (20) years if the kidnaped person is unharmed. If there is a jury trial the jury shall determine which punishment shall be inflicted.
In addition to the foregoing, G. S. 1959 Supp. 21-449 further provides:
“If there is a plea of guilty the court shall determine which punishment shall be inflicted, and in doing so shall hear evidence. . . .” (Our emphasis.)
Mention should perhaps be made, too, that, as in all criminal cases, a verdict form of “not guilty” was submitted to the jury in this case.
The trial court also submitted to the jury a typewritten form of verdict which had merely to be dated and signed by the jury foreman. It reads:
“ ‘We, the jury impaneled and sworn in the above entitled case, do upon our oaths, find the defendant, Eddie D. Cox, guilty of kidnaping in the first degree and further find that the kidnapped person was unharmed and direct that said defendant be confined in the penitentiary for not less than twenty years as provided by law.’ ” (Our emphasis.)
This verdict form was returned by the jury. Under 21-449 and the uncontradicted and undisputed evidence, which showed that Koberstein was shot in the arm with a bullet from defendant’s revolver while standing just outside the car and only a short distance from defendant, that form of verdict was unwarranted and improper because it was totally contrary to such evidence. Although no qualification is placed on the word "unharmed” in 21-449, it carries with it the generally accepted meaning of uninjured, or unhurt, and in Robinson v. United States, 324 U. S. 282, 89 L. ed. 944, 65 S. Ct. 666, the Supreme Court of the United States stated:
“We accept the word ‘unharmed’ ... as meaning uninjured.” (p. 285.) (Our emphasis.)
Under such circumstances defendant’s shooting of Koberstein with a revolver and striking him in the arm cannot be considered as not causing any injury, or as justification for saying that Koberstein was unharmed. For similar reasoning, see State v. Barnett, 156 Kan. 746, 753, 137 P. 2d 133, where this court stated that under no circumstances could the shooting of a man with a 38-caliber revolver be simple assault or assault and battery.
In view of the uncontradicted evidence we are compelled to conclude it was reversible error for the trial court to submit to the jury the typewritten form of verdict including the words:
“ ‘. . . and further find that the kidnapped person was unharmed and direct that said defendant be confined in the penitentiary for not less than twenty years as provided by law.’ ” (Our emphasis.)
In other words, if after the jury found the defendant guilty of kidnapping in the first degree, then the first part of the verdict form stating that much would have been proper. The verdict form could then have read “and direct that said defendant be punished . . .,” leaving sufficient blank space to permit the jury to perform the statutory duty imposed upon it by the legislature. For the trial court to include the punishment element in the verdict form as it was submitted to the jury, to be signed and returned as its verdict, constituted a defect as fatal as it would have been for the ransom element to have been so submitted. Here we not only have no evidence of ransom but all the uncontra dieted evidence is that ransom did not enter the picture at all. By the same token, the element of unharmed did not enter the picture.
G. S. 1949, 21-449, was thoroughly discussed and construed in State v. Brown, 181 Kan. 375, 312 P. 2d 832, and the reader is referred thereto for construction of our kidnapping law. However, a 1955 amendment (appearing in G. S. 1959 Supp. 21-449) relating to punishment under the statute in pertinent part reads:
“If there is a jury trial the jury shall determine which punishment shall be inflicted.” (Our emphasis.)
The foregoing provision is the basis of the second portion of the question presently before us. It is claimed by the state that defendant did not raise the question of punishment in the trial court but the record shows the county attorney made the following objection:
“For the record, I object to the instruction, or the verdict form, under kidnaping, unless the defendant goes along with the same. . . .”
Thus it was called to the trial court’s attention at least once about the verdict form and due to the state’s earlier objection to the above-quoted instruction 8, in reality there were two complaints as to it. The following statement was also made by the state on the objection to instruction 8:
“If the defense desires the same, I will go along with it. I don’t like it, but I will go along with it.”
If the trial court took this remark of the state to mean that such “going along,” waiver, or agreement between the state and'the defense was a justification for the trial court, in any manner, to invade the province of the jury which, under 21-449, had the total power and duty to determine the punishment in this case if, and after, it found defendant guilty of first degree kidnapping beyond a reasonable doubt, such justification is unfounded and untrue in the law. (State v. Christensen, 166 Kan. 152, 157, 199 P. 2d 475.)
By reason of the foregoing we are compelled to conclude that defendant is entitled to have and he is hereby granted a new trial. Under these circumstances it would be surplusage to discuss and determine the other points urged on appeal.
Reversed and remanded with directions.
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The opinion of the court was delivered by
Jackson, J.:
In its motion for rehearing Northern disclaims the position of contending that our gas statute G. S. 1959 Supp. 55-703 does not require ratable production of gas from a common source. It says the question is whether the statute also requires ratable purchases of gas. It then warns the court not to invade the jurisdiction of the Federal Power Commission by dealing with purchasers, citing Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 74 S. Ct. 794, 98 L. Ed. 1035; Natural Gas Co. v. Panoma Corp., 349 U. S. 44, 99 L. Ed. 866, 75 S. Ct. 576; Deep South Oil Co. of Texas v. Federal Power Com'n., 247 F. 2d 882; Saturn Oil & Gas Company v. Federal Power Com’n., 250 F. 2d 61, cert. denied 355 U. S. 956, 2 L. Ed. 2d 532, 78 S. Ct. 542; Cities Service Gas Co. v. State Corporation Commission, 180 Kan. 454, 304 P. 2d 528, reversed 355 U. S. 391, 2 L. Ed. 2d 355, 78 S. Ct. 381; and Cities Service Gas Co. v. State Corporation Commission, 184 Kan. 540, 337 P. 2d 640.
We had read those cases before the opinion in this case was announced, and we believe those cases all dealt with the question of the power to regulate the price of gas. As we tried to point out in the opinion as filed, this case in no way involves the price of gas. Northern studiously avoids that fact. Moreover, the ratable taking order does not regulate the total amount of gas which Northern may take. We fail to see how the order affects interstate commerce in any way.
Northern magnanimously states that the state may control the ratable production of natural gas, but fails to inform us how this can be done unless the producer can find a “taker” for his gas.
It is not important in this case that the purchaser has a contract to purchase the gas at a price, which we will assume is subject to the regulation and jurisdiction of the Federal Power Commission, but the only important matter is that the “taker” take gas so that it may be produced. This case involves nothing to our knowledge which has anything to do with the price paid by the purchaser for gas, nor how much gas he buys. The only matter here involved is whether the taker must take ratably from all wells to which he is connected and thus preserve the rights of the land owners. We again refer to the statement of Professor Summers of the University of Illinois School of Law set out in the original opinion to show that ratable production cannot be accomplished unless the taker will take gas ratably.
Northern has in this case cast some reflection upon the increase of allowables in 1958 by the Kansas Commission. The record contains no facts concerning this action of the Commission. But we must assume that the Commission believed that the market was sufficient to warrant the increase. Moreover, if we are justified in taking judicial notice of facts, we must also assume that the Kansas allowables were not greater than the Oklahoma allowables. And we notice that it was generally thought to be a fact that drainage of gas was occurring from the Kansas Hugoton field to that part of the field in Oklahoma.
Thus, in 1958, the Commission may have been, in a roundabout way, endeavoring to set up ratable taking as between Kansas wells and Oklahoma wells by increasing the allowables of the Kansas wells.
Of course, none of this is involved in the record of the case before us. However, we may direct attention to the news story on page 54, in Newsweek for July 10, 1961, entitled Natural Gas: Two Straws. It is there noted that the Hugoton field covers some 4.1 million acres in Kansas, Oklahoma and Texas; that most of the estimated 300 trillion cubic feet of gas in the field lies under Kansas soil, but that Oklahoma supplies the major share of the 2 million cubic feet pumped daily northward through the pipe lines.
The motion for rehearing is denied.
Reference might again be made to that part of G. S. 1959 Supp. 55-703 which is quoted in the original opinion, and to the discussion in the late case of Renner v. Monsanto Chemical Co., 187 Kan. 158, p. 170, 354 P. 2d 326, relating to the proration and ratable taking as to oil.
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The opinion of the court was delivered by
Wertz, J.:
This was a workmen s compensation case. We shall hereinafter refer to appellee Vincente E. Gutierrez as claimant and appellants Harper Construction Company and its insurance carrier, Employers Casualty Company, as respondent.
The appeal stems from an order of the district court affirming the award of the workmen’s compensation director which granted claimant a 40 per cent permanent partial disability.
Thé determinative question in this case is whether or not there was any evidence to support the findings of the trial court. Respondent concedes the elementary rule of law that this court is not concerned with disputed questions of fact and that if there is any evidence to support the findings and award of the district court in a workmens compensation appeal, then this court will affirm the lower court’s findings and judgment. (Phillips v. Shelly Oil Co., 189 Kan. 491, 370 P. 2d 65.)
An answer to respondent’s contention requires a brief review of the evidence. All the facts essential to the case were stipulated with the exception of the extent of claimant’s injury and the amount of compensation due him.
The record discloses that on August 31, 1961, claimant, while working for respondent, doing general labor and carpentry work, fell from a scaffold to the ground, a distance of sixteen or seventeen feet, landing on his back. He was hospitalized and X-rays were taken. He was under medical treatment for some time.
Dr. Roy B. Coffey, an orthopedic physician, testified he first saw the claimant on January 24, 1962. In his examination of the claimant, and taking into account his history of injury, Dr. Coffey found the claimant had a compression fracture of the second lumbar vertebra, marked wear-and-tear changes throughout his lumbar spine, and spondylolisthesis. He was of the opinion the claimant had a 60 per cent disability. After the first examination Dr. Coffey was of the opinion, because of claimant’s stiffness, there would be definite therapeutic value in claimant’s returning to light work, that such work could be considered in the nature of conservative treatment whereby claimant might regain some motion of his back and increase his muscle strength, which would give him some improvement and might reduce his disability to 45 per cent.
Dr. Coffey further testified that claimant was admitted to the hospital on August 1, 1962, for conservative treatment for his back pain and the compression fracture of his back. Dr. Coffey treated claimant with pelvic traction, moist heat, and exercise of his back. Claimant was dismissed from the hospital on August 15, 1962, at which time Dr. Coffey thought the claimant had improved some with the hospitalization but still had a 45 per cent permanent partial disability for heavy carpentry work, a 35 per cent loss of function and not less than a 35 per cent disability on the open labor market.
Dr. John B. Jarrott, an orthopedic physician, testified on behalf of the respondent that he first examined the claimant on December 18, 1961, and felt that claimant should return to light work. In response to a question regarding what type of light work, Dr. Jarrott testified: “I can see no reason why he [claimant] couldn’t do sweeping if lie didn’t try and do too large an area at once. And obviously if he didn’t have to climb over the construction work to do the watchman work he could do that.”
Claimant testified he did light sweeping around the house, and that he had attempted to do light work but that it hurt his back to such an extent that he had to quit.
Respondent’s contention that the trial court’s finding of 40 percent permanent partial disability was not supported by the record is without merit.
No useful purpose would be gained in setting forth other evidence. Suffice it to say the record disclosed ample evidence to support the trial court’s findings and judgment.
Respondent next contends that the claimant unreasonably refused proper medical treatment and for this reason his rights under the workmen’s compensation act must be terminated. Respondent relies on Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102, where this court held that for some purposes light work may be considered medical treatment. Respondent reasons that since light work may be considered medical treatment, claimant’s refusal to accept respondent’s offer of light work requires the automatic termination of his right to compensation.
We cannot agree with respondent’s contention. The question involved in the instant case did not arise in the case of Rupp v. Jacobs, supra, since in that case the claimant voluntarily performed the recommended work. We have never said that a claimant must in every instance accept work recommended as medical treatment. This court has repeatedly held that the reasonableness of the refusal of an injured employee, seeldng recovery of compensation under the act, to submit to medical treatment is a question of fact to be determined by the trial court from all the evidence. (Alexander v. Chrysler Motor Parts Corp., 167-Kan. 711, 717, 207 P. 2d 1179.) In Rupp v. Jacobs, supra, p. 715, quoting with approval the rule laid down in Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431, it was stated:
“ ‘The defendant argues that within two weeks after the injury the plaintiff was employed by the defendant at the same wages at which he had been employed previous to receiving the injury, and that he voluntarily quit the defendant’s employ. If this employment relieved the defendant of liability, then any employer can escape liability for compensation by retaining the injured employee and paying him wages, although he may not be able to do as good work after the injury as he did before. An injured employee may not wish to continue to work for the one in whose employ he was injured, and because of his injury he cannot obtain as good wages in another place. The injured employee has a right to compensation for his injury. It does not matter that his employer continues to accept his services and pay him regular wages, unless that employment continues for the entire period for which compensation might be allowed. The act fixed the liability when the employee was injured. That liability can be discharged only in the manner directed by the statute. The conclusion here reached is supported by Cory Brothers & Co., Limited, v. Hughes, (1911) 2. K. B. 738.’ (p. 54.)”
Before a refusal can be unreasonable under the terms of the workmen’s compensation director’s rule 51-9-5 the “probabilities of a permanent cure must be great.” There is absolutely no evidence in the record which indicates the claimant would have been permanently cured as a result of performing the recommended work in the instant case. In reviewing the record, we find the testimony of Dr. Jarrott, testifying on behalf of the respondent to be:
“Q. Doctor, as I understand it, this man is of such a situation that it would be of great therapeutic value to him to go back to light work?
“A. That is my personal feeling.
“Q. And the probabilities of a very substantial improvement in his condition would be very great, would they not?
“A. Well, the response, I don’t know, but as far as I am personally concerned the only way he is going to get any response is going back to work— light work we are talking about, graduated and increased, because if you overload him you destroy the whole thing.”
In view of the fact the claimant testified he was unable to perform the recommended work, and the fact the trial court found claimant’s refusal was not unreasonable, there is nothing more for this court to discuss. We will not disturb a trial court’s finding as to the reasonableness of a claimant’s refusal to submit to medical treatment where there is any evidence to support its findings and the evidence most favorable to the respondent is only that the performance of such light work as above mentioned might have some therapeutic value to claimant.
The whole theory underlying the workmen’s compensation act is that by reason of the accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury. (Taber v. Tole Landscape Co., 188 Kan. 312, 362 P. 2d 17; Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012; Davis v. Braun, 170 Kan. 177, 223 P. 2d 958; Rupp v. Jacobs, supra.)
The loss o£ earning power of the workman is the theoretical basis for the allowance of compensation. Loss of earning power may result from his inability to obtain work as well as from inability to perform procurable work due to the impairment of his physical fitness, and wages paid do not establish ability to earn. (Howerton v. Goodyear Tire & Rubber Co., 191 Kan. 449, 381 P. 2d 365.) As was said in Daugherty v. National Gypsum Co., supra, at page 203, “The rule is based upon the fact that partial general body disability is a definite loss to the injured workman, and is a deterrent to his obtaining and retaining work in the open labor market (citing cases).” The words “obtaining and retaining work in the open labor market” means the ability to obtain and retain work of the same kind and character that the workman was able to perform prior to his injury. (Davis v. Braun, supra, p. 182.) The fact that a workman is able to obtain work on the open labor market of a different kind and nature from that which he was able to perform prior to his injury is not grounds, under our workmen’s compensation statute and our decisions, for denying his compensation for the injuries sustained and the resultant disability.
In view of what has been said, the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Nuss, J.:
Albert Richmond was convicted of first-degree premeditated murder for shooting Tyrone Owens and sentenced to prison without the possibility of parole for 50 years (hard 50). Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(l), conviction of an off-grid crime.
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court err in admitting into evidence a statement made by Richmond more than 2 years before the shooting? No.
2. Did the trial court deny Richmond his right to present his defense when ruling that the State could present evidence of his 1995 convictions if his testimony provided an innocent explanation for his presence at the shooting scene? No.
3. Did the trial court err in admitting into evidence specific instances of Richmond’s drug dealing as evidence of his motive, knowledge of the local drug culture, and awareness that drug dealers may carry money on their persons? No.
4. Did the prosecutor commit reversible misconduct? No.
5. Did cumulative error deny Richmond his fundamental right to a fair trial? No.
6. Were Richmond’s Sixth and Fourteenth Amendment rights violated when the trial court imposed a hard 50 sentence without submitting the aggravating factors to a jury for proof beyond a reasonable doubt? No.
Accordingly, we affirm.
FACTS
On October 21, 2006, defendant Albert Richmond, Rayland Brown, Ramone Hester, and Malcolm Jackson traveled to a convenience store in Pittsburg so Hester could buy marijuana from Tyrone Owens. Jackson drove the car, with Richmond in the front passenger seat and Hester and Brown in the back.
Upon arrival, Hester called Owens from a pay phone. When Owens arrived, Hester got into Owens’ car and it pulled away. According to Jackson, Richmond told him to follow. Owens stopped a block later. After Hester purchased $20 worth of marijuana, he got out and started walking back toward the Jackson car. Jackson testified that Richmond then handed him a .40 caliber handgun and told him to “go get” Owens. Once Jackson neared Owens’ passenger side window, however, Owens drove away. Jackson testified that he got back in his car and tossed the handgun at Richmond, who told him to follow Owens.
After pursuing for a couple of blocks, Jackson cut Owens off by swerving in front of his car. Jackson and Richmond then got out and approached Owens’ car. Jackson testified that he tried to reach in and turn the ignition off so he could take Owens’ money. As Jackson reached, Richmond shot through the front windshield and struck Owens in the chest. While Owens put the car in reverse to get away, Jackson grabbed the steering wheel. Owens’ car then got stuck on a fire hydrant. According to Jackson, Richmond fired several more shots, and Owens was hit twice more. One was a head shot which instantly killed him.
While Jackson identified Richmond as the shooter, both Hester and Brown testified that they ducked when they heard shots and saw nothing more happening outside of the car. Richmond did not testily.
After the shooting, Hester moved into the driver’s seat and began to drive once Jackson and Richmond got back in the car. Hester testified that after the shooting, Jackson was carrying a different handgun from what he had been carrying earlier. Jackson also got some of Owens’ blood on his arm.
Owens was a well-known drug dealer. Officers found $25 in his left hand, $15 in his pocket, and a small baggy of drugs on his person. They also found a glove containing Richmond’s DNA at the scene. Richmond was arrested in Miami, Florida, approximately 10 days later.
In exchange for their testimony in Richmond’s jury trial, the three other men received plea deals. Jackson pled guilty to one count of conspiracy to commit aggravated robbery, one count of attempted aggravated robbery, and one count of aiding a felon. He testified that he expected to serve 8 1/2 years in prison. Hester pled guilty to attempted aggravated robbery and testified that he expected to receive 4 years in prison. All charges against Brown were dropped. The jury convicted Richmond of first-degree premeditated murder, and the court later sentenced him to the hard 50.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The trial court did not err in admitting a statement made hy Richmond more than 2 years before the shooting.
Richmond first argues the trial court erred in admitting evidence of his statement to drug task force agent Beth Brooks. Specifically, Brooks had interviewed Richmond in September 2004 as part of a cocaine investigation. Brooks testified that Richmond told her at that time that he did not sell crack cocaine. The prosecutor then asked, “What did he tell you his specialty was?” Brooks answered, “He said that he robbed and killed people.” Richmond now argues that the testimony was inadmissible because of K.S.A. 60-445, 60-447, and 60-455.
The State generally responds that the evidence is not barred by K.S.A. 60-455 and that Richmond is prohibited from arguing the other statutory prohibitions.
The State had filed a motion in limine to admit Brooks’ testimony about Richmond’s statement as relevant to his state of mind, plan, and intent. Richmond responded that the State was instead trying to inform the jury of his prior crimes: 1995 guilty pleas to second-degree murder and voluntary manslaughter arising out of a Missouri drug robbery. Specifically, he noted that Brooks remembered his statement — “[he] said that he killed and robbed people, he did not sell crack” — as being said in the present tense, but that she admitted that her written report showed his statement was made in the past tense, i.e., “Richmond stated that he had committed robbery and murder.” The report is not in the record on appeal.
After the trial court determined that Brooks’ evidence was susceptible to both interpretations — past or present tense — it found that Richmond’s argument went more to the weight of her testimony than its admissibility. He invited defense counsel to explore her inconsistencies at trial:
“It seems to me that your argument, [defense counsel], goes more towards the weight rather than the admissibility. You have a full right to cross-examine Agent Brooks with regard to the factors you’ve just told me about. This was three years ago. Well, you put it in the past tense in your report. You just now a week before trial, roughly, brought it up. Those are valid points for cross-examination but if, in fact, it is said in the present tense, it is not referencing the 1995 murder when the defendant, pursuant to the testimony today, says I don’t do crack cocaine, I kill and I rob in so many words.”
The court then found that the statement was relevant because it essentially referred, among other things, to Richmond’s sense of identity:
“That speaks to his method of acting, his approach to these things, his state of mind, his plan, and that is not referencing — drat is a course of conduct, typical course of conduct, that in the present tense is not referencing the incident in 1995.
“This is just what he does, this is him, as [the State] pointed out. He doesn’t do crack cocaine. He kills, he robs . . . .And I think in that instance it is arguably relevant.” (Emphasis added.)
Shortly before Brooks’ trial testimony, Richmond again objected. He argued that the testimony was too remote to be relevant to prove his state of mind on the day of the shooting and was being offered as propensity evidence in violation of K.S.A. 60-455.
The trial court rejected Richmond’s argument that the evidence was being offered to show propensity:
“[P]ropensity evidence applies to priors the defendant was involved in. The State cannot introduce priors to show a propensity to commit crime. This is not offered for that purpose. This is not a specific prior the State is attempting to introduce to show propensity.”
The court again observed that the statement instead referred, among other things, to Richmond’s sense of identity:
“These are words spoken by the defendant which arguably shed lit [sic] on his state of mind, his method of being, this is what I am, this is what I’m about, this is what I do. That’s the context the Court accepts these comments in. I don’t accept them in the past tense because Beth Brooks testified [at the pretrial hearing] these were said in tibe present tense.”
The court reminded the State that “under no circumstances” would Brooks be allowed to mention the 1995 convictions. She later testified:
“[PROSECUTOR]: [W]hat was the reason for the interview [on September 17, 2004]?
“[BROOKS]: We were interviewing Mr. Richmond in reference to sale of cocaine.
“[PROSECUTOR]: What did he teE you about selling cocaine?
“[BROOKS]: That he did not seE crack.
“[PROSECUTOR]: What did he tell you his specialty was?
“[BROOKS]: He said that he robbed and killed people.
“[PROSECUTOR]: When he said this, was he serious or kidding?
“[BROOKS]: He was very serious.
“[PROSECUTOR]: No further questions.” (Emphasis added.)
After Brooks’ testimony, Richmond asked that it be stricken because it was stated in the past tense and essentially referred to his 1995 convictions. He also asked for a mistrial. The judge disagreed: “He just said this is his specialty, robs and kills people, I didn’t take it in the past tense.” The judge found that the State had “gone out of its way to be particularly careful so we didn’t reference this past tense and present tense issue,” i.e., place before the jury any reference to his 1995 convictions. After both motions were denied, Richmond cross-examined Brooks on the differences between her written report and trial testimony.
Standard of Review
Our standard of review for admissibility of evidence is well known:
‘When a party chaEenges the admission or exclusion of evidence on appeal, the first inquiiy is relevance. Once relevance is established, evidentiary 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. When the adequacy of the legal basis of a district judge’s decision on admission or exclusion of evidence is questioned, an appeflate court reviews the decision de novo.” State v. Walters, 284 Kan. 1, Syl. ¶ 2, 159 P.3d 174 (2007).
Richmond argues that the evidence should have been excluded under three different evidentiary statutes. Each basis will be discussed in turn.
K.S.A. 60-455
K.S.A. 60-455 prohibits evidence of prior crimes from being admitted to prove a defendant’s propensity to commit the charged crime, but it can be “ ‘admissible when relevant to prove some other material fact.’ ” State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007). Richmond again argues that Brooks’ “robbed and killed” testimony was inadmissible evidence of his prior crimes, i.e., to prove propensity. The State responds that the testimony simply does not fit within the statutory prohibitions. That statute states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 40-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.)
We agree with the State. Richmond’s statement to Brooks simply does not concern a “crime or civil wrong [committed] on a specified occasion” as the statute requires. Indeed, the trial court reminded the State that Brooks was not to mention Richmond’s 1995 convictions and later complimented the State for being particularly careful in its efforts to comply. It admitted Brooks’ testimony as generally indicating Richmond’s state of mind and sense of identity, e.g., who I am and what I do.
K.S.A. 60-447
Richmond next argues that Brooks’ testimony is evidence of a bad character trait and that its admission violates K.S.A. 60-447 because he did not first offer any evidence of his good character. , The statute states in relevant part:
“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that . . . (b) in a criminal action evidence of a trait of an accused’s character as tending to prove guilt or innocence of the offense charged, . . . (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.”
Richmond acknowledges that he makes this particular argument for the first time on appeal and recognizes that “[a]s a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.” (Emphasis added.) State v. Bryant, 285 Kan. 970, Syl. 6,179 P.3d 1122 (2008); see K.S.A. 60-404. He nevertheless contends that our rule should be waived because he qualifies in two of the categories recognized in State v. Stevens, 278 Kan. 441, 454, 101 P.3d 1190 (2004), for when appellate courts can consider new issues on appeal:
“(1) Cases where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case;
“(2) Questions raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights.” ’ ”
The State essentially responds that a party “ ‘cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.’ ” State v. Engelhardt, 280 Kan. 113, 127, 119 P.3d 1148 (2005); see State v. Patchett, 203 Kan. 642, 645, 455 P.2d 580 (1969) (“the specification of an objection to evidence on one ground waives or estops the objector from making an objection on any other ground”). It further asserts that neither of Richmond’s proffered Stevens exceptions apply. We agree with the State for many reasons, several of which will suffice.
First, as recently as March of this year in State v. King, 288 Kan. 333, 204 P.3d 585 (2009), we emphasized “the importance of this legislative mandate” contained in K.S.A. 60-404 which “dictates that evidentiaiy errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” (Emphasis added.) 288 Kan. at 349. There, because defendant failed to object at trial to the prosecutor’s cross-examination of him, we refused to consider his argument that the examination violated his rights under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976) (prosecutor’s use of defendant’s postarrest silence to impeach credibility violates Fifth and Four teenth Amendments to the United States Constitution). We acknowledged, however, that we would continue to review, without trial objection, nonevidentiary-based claims of prosecutorial misconduct, e.g., comments to a jury during voir dire. 288 Kan. at 349.
King affirmed this court’s prior treatment of failures to object to evidence under K.S.A. 60-404, even where constitutional rights were at stake. See, e.g., State v. Mays, 277 Kan. 359, 384-85, 85 P.3d 1208 (2004) (defendant’s failure to timely object to alleged hearsay statements precludes defendant from raising issue on appeal, even where alleging violation of Confrontation Clause of Sixth Amendment to United States Constitution). While we acknowledge King and Mays involved no objection, and here we are instead concerned with an objection on one ground at trial and another ground on appeal, the same rationale applies. Both types of failure undercut the purpose of contemporaneous objections:
“ ‘The purpose of the rule requiring a timely and specific objection is to give “ ‘the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial.’ ” [Citation omitted.]’ ” (Emphasis added.) King, 288 Kan. at 342.
In short, the trial court must be provided the specific objection so it may consider as fully as possible whether the evidence should be admitted and therefore reduce the chances of reversible error.
Second, even were we to overlook the failure to object on this particular ground, we reject Richmond’s argument that here “ ‘the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case.’ ” (Emphasis added.) Stevens, 278 Kan. at 454. This issue— the admissibility of the “robs and kills” testimony — is not finally determinative. At a minimum, the magnitude of any evidentiary error would still have to be determined by reviewing all other evidence under either the state standard, the federal standard, or both. See K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial).
Third, we agree with the State that if we were to overlook the lack of this particular objection and consider the issue because it is necessary to serve the ends of justice or to prevent the denial of Richmond’s right to a fair trial, these and other caselaw exceptions would soon swallow the general statutory rule. We refrain primarily because we acknowledged in King that “the legislature’s intent in enacting KS.A. 60-404 is clear: a party must lodge a timely and specific objection to the admission or exclusion of evidence in order to preserve the evidentiary question for review.” (Emphasis added.) 288 Kan. at 348. In reaching this conclusion, we contrasted that statute with other legislative pronouncements, e.g., K.S.A. 22-3414(3), where the legislature “has created exceptions to the rule requiring objections to preserve an issue for appeal in some nonevidentiary contexts.” 288 Kan. at 348.
We finally observe that here defense counsel clearly had several opportunities to argue the applicability of K.S.A. 60-447 — at the pretrial hearing, during the afternoon shortly before Brooks testified at trial, and during her later testimony itself. For all of these reasons, we will not consider this argument on appeal.
KS.A. 60-445
Richmond also argues for the first time on appeal that Brooks’ testimony should have been excluded under K.S.A. 60-445 because its probative value was substantially outweighed by its resulting prejudice. That statute provides:
“Except as in this article otherwise provided, the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
We will not consider this argument for the same reasons outlined above concerning K.S.A. 60-447.
Issue 2: The trial court did not prevent Richmond from fully presenting his defense.
Richmond next argues he was denied his fundamental right to present his defense because a trial court evidentiary ruling effectively prevented him from testifying. Specifically, the court had denied the State’s motion under K.S.A. 60-455 to introduce evi dence in its case-in-chief of Richmond’s 1995 Missouri convictions for second-degree murder and voluntary manslaughter. But it held that if Richmond admitted he was present at Owens’ shooting, but was unaware of what was going to happen, the State could introduce his convictions on rebuttal.
Richmond contends this ruling was erroneous because his providing an innocent explanation of his presence at the scene with a general denial of wrongdoing does not place intent at issue. Moreover, he argues that he did not testify because he did not want these convictions in evidence.
The State responds that Richmond’s decision not to testify waives any challenge to the trial court’s ruling. Its cited authorities include Luce v. United States, 469 U.S. 38, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984), and State v. Smyers, 207 Ariz. 314, 86 P.3d 370 (2004). We generally agree with the State.
After denying the State’s motion brought under K.S.A. 60-455 to admit the conviction evidence in its case-in-chief, the judge stated:
“However, having said that ... if it should become a situation where the defendant does admit some sort of presence and indicates he was not aware of what was going down, so to speak, he has an absence of knowledge, some sort of mistake, some sort of lack of intent; in other words, he has some sort of innocent explanation for what occurred . . . then I would allow the State to introduce the Kansas City homicide in rebuttal.”
Later during trial, he reiterated:
“The defendant won the 60-455 motion but I think it is inherently fundamentally unfair for the defendant to win that motion and then testify he was present at the scene but had no awareness that this was going to occur.
“Because of that, I would allow the State to present that on rebuttal should the defendant allege ‘I was there but I had no awareness that this was going to occur.’ However, if the defendant simply testifies and alleges 1 was not diere, I don’t know what you are talking about,’ then that does not open ... up the presentation of the prior [convictions] through rebuttal offered by the State.”
Standard of Review
We have held that a defendant is entitled to present his or her defense, and a defendant’s fundamental right to a fair trial is violated if evidence that is an integral part of that theory is excluded. State v. Cooperwood, 282 Kan. 572, Syl. 1, 147 P.3d 125 (2006). However, that right is not unlimited. “[T]he right to present a defense is subject to statutory rules and case law interpretations of the rules of evidence and procedure.” State v. Walters, 284 Kan. 1, Syl. 1, 159 P.3d 174 (2007).
We begin our analysis by reviewing Luce. There, the defendant was charged in federal district court with conspiracy and possession of cocaine with intent to distribute. At trial, he sought to prevent the government from impeaching him with a prior conviction for possession of a controlled substance. The district court found that the prior conviction was proper impeachment evidence under Federal Rule of Evidence 609(a). It noted, however, that the nature and scope of Luce’s later testimony could affect its initial evidentiary rulings. As the Luce Court explained:
“[F]or example, the [district] court was prepared to hold that the prior conviction would be excluded if petitioner limited his testimony to explaining his attempt to flee from the arresting officers. However, if petitioner took the stand and denied any prior involvement with drugs, he could then be impeached by the 1974 conviction.” 469 U.S. at 40.
Luce did not testify, however, and was convicted on all counts.
The Luce Court acknowledged the difficulty in reviewing challenges to in limine rulings when the defendant does not testify. Among other things, the record is incomplete regarding the defendant’s testimony, the scope of cross-examination, and the effect the impeachment might have on the verdict. In short, “[a] reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.” 469 U.S. at 38. The Court noted as an example that Rule 609(a) required a weighing of the probative value of the prior conviction against the prejudicial effect to the defendant. This function would be greatly hampered, if not made impossible, by a defendant’s failure to testify.
The Luce Court next observed that any possible harm caused by an in limine ruling initially permitting impeachment by a prior conviction “is wholly speculative.” 469 U.S. at 38. It pointed out that because the district court might change its ruling as the case proceeded, whether the evidence would have been actually admitted was conjectural. It suggested the prior conviction might not be admitted because the defendant himself could testify narrowly or the prosecutor could independendy decide not to introduce it. The Court also suggested that a reviewing court could not assume that the in hmine ruling was the motivation for the defendant’s failure to testify.
Finally, the Court observed that “[e]ven if these difficulties could be surmounted,” e.g., if actual harm had been established, “the reviewing court would still face” the problem of determining whether any error was harmless. 469 U.S. at 42. It noted: “Were in hmine rulings under Rule 609(a) reviewable on appeal, almost any error would result in the windfall of automatic reversal; the appellate court could not logically term ‘harmless’ an error that presumptively kept the defendant from testifying.” 469 U.S. at 42. Accordingly, the Court held that “requiring that a defendant to testify in order to preserve Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole.” (Emphasis added.) 469 U.S. at 42. The preferred method for defendant to raise his claim was for him “ ‘to take the stand and appeal a subsequent conviction,’ ” which would present the claim “ ‘to a reviewing court in a concrete factual context.’ ” 469 U.S. at 43.
Based on these reasons, the Luce Court concluded that “to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” 469 U.S. at 43.
In the instant case, it is unclear what exact basis the trial court relied upon to allow future admission of the conviction evidence. It denied use of the evidence under K.S.A. 60-455 for the State’s case-in-chief. However, it ruled that if Richmond testified that he was present but “had no awareness that this [robbery and killing] was going to occur,” then the State would be allowed “to present that [conviction] on rebuttal” because to do otherwise would be “inherently fundamentally unfair.” Accordingly, the trial court’s basis could simply have been a delayed (rebuttal) use of 60-455 to prove the State’s case by establishing tire disputed material facts of Richmond’s intent or knowledge. In the alternative, the basis could have been purely impeachment, albeit via 60-455, to show that contrary to Richmond’s possible testimony that he had no awareness that the crimes were going to occur, he indeed would have known. Or it is possible that the trial court’s basis could have been a combination of both.
Despite the lack of specificity, the instant case is sufficiently similar for Luce to control. Both cases certainly share the same difficulties. As the Luce Court held, the reviewing court is handicapped in ruling on subtle evidentiary questions outside a factual context; our record is incomplete because it lacks Richmond’s testimony and the scope of his cross-examination. We cannot know to what Richmond would have testified, i.e., whether he would admit that he was present, that he participated in the crime, or that he was aware of any plan to rob or kill Owens. Richmond even admitted the possibility of various testimonial scenarios in one pretrial motion: “There is a distinction if this accused were to say ‘there was never any plan to rob the [sic] or shoot the victim’ versus T had no knowledge that they were going to plan to rob or shoot the victim.’ ”
Furthermore, any possible harm caused by the trial court ruling is wholly speculative. The court may have amended its initial ruling as the case proceeded, e.g., after hearing Richmond’s testimony and weighing the probative value of the conviction evidence against its prejudicial effect as required by K.S.A. 60-445. Or, the prosecutor could have decided not to introduce the prior convictions for strategic reasons. We certainly cannot assume that the pretrial ruling was the reason Richmond elected not to testify. Finally, this court would have had difficulty assessing whether the purported error was harmless or reversible because the record is incomplete and that determination must be made in light of the record as a whole.
Issue 3: The trial court did not err in allowing admission of specific instances of Richmond’s drug dealing.
Richmond next argues the trial court erred in admitting evidence pursuant to K.S.A. 60-455 of his previous involvement in the Pitts-burg drug scene, particularly his drug dealing. The State argues that this evidence showed his motive, knowledge of the local drug culture, and awareness that drug dealers are known to carry cash on their persons.
The trial court allowed three witnesses to testify that Richmond was a drug dealer in Pittsburg. One month before Owens’ shooting, Kansas Bureau of Investigation (KBI) Special Agent Chad Commons searched Richmond and found $363 in cash and 67 grams of crack cocaine. Four months before the shooting, KBI informant Paula Monsour twice bought crack cocaine from Richmond for a total of $500. Approximately 2 years before the shooting, Richmond told Fort Scott police detective David Hughes that he had intended to net $5,000 from the sale of cocaine that had recently been seized from his house.
Standard of Review
As noted previously, while K.S.A. 60-455 prohibits evidence of prior crimes from being admitted to prove a criminal defendant’s propensity to commit the charged crime, it can be “ ‘admissible when relevant to prove some other material fact.’ ” Garcia, 285 Kan. at 12. Determining whether evidence was properly admitted pursuant to K.S.A. 60-455 requires several steps. State v. Gunby, 282 Kan. 39, 144 P.2d 647 (2006).
The court must determine that the fact to be proven is material, e.g., concerning intent, motive, knowledge, or identity. In other words, the court must determine whether the fact “ ‘ “has a legitimate and effective bearing on the decision of the case.” ’ ” Garcia, 285 Kan. at 14. Our standard of review for materiality is de novo. State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008).
The court must also determine whether the material fact is disputed. Reid, 286 Kan. at 505; Garcia, 285 Kan. at 12 (“ ‘[T]he element or elements being considered . . . must be substantially in issue in the case.’ ”)
The court must also determine whether the evidence presented is relevant to prove the disputed material fact, i.e., whether it has “any tendency in reason to prove” that fact. K.S.A. 60-401(b); Reid, 286 Kan. at 505. This court reviews relevance — in particular, the probative element — of 60-455 evidence for abuse of discretion. Reid, 286 Kan. at 507. The burden of proof is on the party alleging that the discretion is abused. Reid, 286 Kan. at 512 (citing Garcia, 285 Kan. at 18-19).
The court must next determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 505. Our standard for reviewing this determination also is abuse of discretion. Reid, 286 Kan. at 512 (citing Garcia, 285 Kan. at 18).
Finally, if the presented evidence meets all of these requirements — -that the fact is material; that the material fact is disputed; that the evidence is relevant to prove the disputed material fact; and that the evidence’s probative value outweighs its potential undue prejudice — then the trial court must give a limiting instruction informing the jury of the specific purpose for the evidence’s admission. Garcia, 285 Kan. at 12. As we stated in Gunby, “[t]hese safeguards are designed to eliminate the danger that the evidence will be considered to prove the defendant’s mere propensity to commit the charged crime.” 282 Kan. at 48.
Relevance and Materiality
The trial court granted the State’s motion to allow the testimony for several purposes, including knowledge and motive
“to shed light upon the defendant’s alleged knowledge of the value of drugs, of the defendant’s alleged awareness of the amount of money that drug dealers are known to carry, that the defendant has perhaps used this incident this alleged incident, to send messages to snitches. The State argues this goes to the defendant’s motive, the defendant’s knowledge of the Pittsburg drug scene, and related activity, provides knowledge and motive. . . .
“I think that evidence of this nature which sheds some awareness, some insight, illuminate the factors, the acts, that led up to this alleged incident, I think it’s simply valuable to the jury. I think its probative value does outweigh any prejudicial nature that the evidence may present.”
When denying Richmond’s later motion to reconsider this ruling, the trial court reiterated those reasons:
“And so this was allowed by the Court to show the defendant’s awareness, knowledge of how the drug scene works, his involvement in it, to partially shed light on his motives for robbing Mr. Owens. That is Mr. Owens was involved in the drug scene, so was the defendant, and then, ergo, the defendant would be aware that Mr. Owens has been a drug dealer in the local drug scene, would have allegedly substantial sums of money.”
Motive and Knowledge
Richmond argues that motive — specifically listed as a material fact under K.S.A. 60-455 — was not in dispute because money is almost always the motive for robbery. He also argues that the episodes demonstrating his involvement in the Pittsburg drug scene were not relevant to prove motive or any other material fact, e.g., knowledge that Owens carried large amounts of cash. The State responds that motive was clearly material because Richmond was on trial for first-degree murder and the prosecution’s theory was that he intended to rob and kill Owens. It further argues the disputed evidence was relevant to several material facts as noted by the district court.
We independently observe that Richmond does not argue that the other material fact identified by the trial court — knowledge— was not material or not in dispute. This potential argument is therefore waived, which establishes on appeal that knowledge was a disputed material fact. See Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 6, 176 P.3d 144 (2008) (an issue not briefed is deemed waived or abandoned). As a result, if we are persuaded that the presented testimony was relevant, i.e., probative, to prove the disputed material fact of Richmond’s knowledge that Owens carried large amounts of money, we need not address any materiality or relevancy issues involving “motive.” Cf. State v. Garcia, 285 Kan. at 15 (because court determined that the evidence was admissible at least for the disputed, material fact of “identity,” addressing the alternative basis of “intent” was moot).
While Richmond argues that his awareness of the local drug scene does not prove he knew that Owens carried large amounts of money, we observe that relevance only requires a logical connection between the asserted facts and the inferences they are intended to establish. See State v. Reid, 286 Kan. 494, 186 P.3d 713 (2008); see also K.S.A. 60-401(b) (evidence having any tendency in reason to prove any material fact). As stated above, de termining the probative value of testimony is left to the trial court’s discretion. Reid, 286 Kan. 494.
We recognize a logical connection between the testimony about Richmond’s deep involvement in the Pittsburg drug culture and the inference he would therefore know that Owens carried large amounts of money on his person. More particularly, Richmond, as a long-time drug dealer found with $363 and 67 grams of crack cocaine on his person 1 month before Owens’ shooting, would probably know that another drug dealer in the same town would similarly carry large amounts of money during that same time frame. The trial court did not abuse its discretion in making its probative determination.
Probative versus Prejudice
Richmond next claims that even if this drug culture testimony were probative, it was erroneously admitted because it was unduly prejudicial. This part of the evidentiary analysis is also reviewed for abuse of trial court discretion. Garcia, 285 Kan. at 18. As we stated there, only “ ‘[e]vidence that actually or probably brings about the wrong result under the circumstances of the case is “unduly prejudicial." ’ ” 285 Kan. at 18.
Richmond contends the State could have established its point through less prejudicial means. He points to Jackson’s trial testimony that Hester told Richmond that Owens carried $4,000 to $5,000 on his person, and argues this testimony alone was sufficient to prove Richmond’s knowledge. Richmond further claims this testimony was highly prejudicial because it informed the jury that he was a drug dealer. The State essentially responds that evidence of Richmond’s past drug involvement was unlikely to have surprised the jury given the number of witnesses who were also involved in the same drug culture and who testified accordingly.
We agree with the State. The trial record is laden with drug culture evidence. The murder victim was a well-known drug dealer. Richmond knew that Owens sold drugs to Richmond’s fellow passenger Hester mere minutes before Owens was shot to death by Richmond in Hester’s presence. Driver Jackson, who assisted in the crime, had been taking PCP since he was 15. We also agree that any harm arising from this testimony was tempered by the jury instruction which correctly informed its members that the evidence could only be considered to explain Richmond’s motive and his knowledge of the drug culture. See Garcia, 285 Kan. at 19 (citing State v. Lane, 262 Kan. 373, 391, 940 P.2d 422 [1997]). The trial court did not abuse its discretion in ruling that the probative value of episodes of Richmond’s drug dealing outweighed its prejudicial nature pursuant to K.S.A. 60-445.
Issue 4. The prosecutor did not commit reversible misconduct.
Richmond next alleges the prosecutor engaged in misconduct numerous times. In the brief filed by the appellate defender’s office, Richmond alleges the prosecutor conducted the direct examination of State’s witness Malcolm Jackson in a suggestive and leading way and told the jury that Richmond specialized in killing and robbery. In Richmond’s pro se supplemental brief he alleges the prosecutor misstated the evidence and commented on the credibility of two witnesses.
Standard of Review
Our standard of review for allegations of prosecutorial misconduct is well known:
“Allegations of prosecutorial misconduct require a two-step analysis. First the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal.” State v. White, 284 Kan. 333, Syl. ¶ 1, 161 P.3d 208 (2007).
The same basic analytical framework applies to a defendant’s claim that the prosecutor asked improper questions, except in such scenarios the defendant is required to have made a contemporaneous objection. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009). If the questions are impermissible, and contemporaneous objections made, the court must then determine whether the questions were so prejudicial as to require a new trial. State v. Hernandez, 284 Kan. 74, 159 P.3d 950 (2007); State v. Swinney, 280 Kan. 768, 127 P.3d 261 (2006). We have provided specific guidance on how to make this determination:
“In the second step of the two-step prosecutorial misconduct analysis, the appellate court considers three factors to determine whether a new trial should be granted: (1) whether the misconduct is gross and flagrant; (2) whether the misconduct shows ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. None of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that the harmlessness tests of both K.S.A. 60-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial), have been met.” State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 (2008).
Each claim of misconduct will be reviewed in turn.
A. Telling the jury that Richmond specialized in killing and robbery.
Richmond argues the prosecutor stepped outside the wide latitude given him with his references in closing argument to Richmond’s “specialties.” As discussed in Issue 1, the prosecutor asked Brooks, ‘What did he tell you his specialty was?” She responded, “He said that he robbed and killed people.” The prosecutor mentioned this testimony in closing:
“The only thing that they were missing, the only thing that they were missing was a guy who would specialize in two areas. A guy that would specialize in two areas. The defendant. And the two things that he specializes in, it is who he is. It is who he is. Arrogant, the man. Two things that he specializes in is he kills and he robs.” (Emphasis added.)
The State contends that “specialty” was used during Brooks’ direct examination to avoid any inadvertent reference to the 1995 convictions. As mentioned, the trial court had instructed the State that “under no circumstances” would Brooks be allowed to mention the 1995 convictions. We concluded in Issue 1 that the prosecutor did not commit error in introducing this testimony. Accordingly, he was permitted to reference it in closing. See State v. Baker, 281 Kan. 997, Syl. ¶ 11, 135 P.3d 1098 (2006) (“As a fun damental rule in closing arguments, prosecutors must confine their comments to matters in evidence”).
B. Misstating the evidence.
In his pro se brief, Richmond alleges that the prosecutor misstated the evidence. Specifically, he contends that the evidence does not support the prosecutor’s claim in closing argument that Richmond intended for the shooting to send Owens a message. The prosecutor argued:
“The Judge has allowed the State to bring in proof of other crimes and it goes to motive, knowledge and awareness.
“Now, the motive, let’s think about — I just talked about what this man is like. He’s arrogant, he’s the man in charge. And on the 16th or 19th of September he’s out there, gets caught in a doggone drug raid and what did the police do? They found crack cocaine in his crotch and they pulled his pants down. Helicopter is flying overhead, all his drug buddies were around, he’s humiliated. And he’s the type of man that says I’m not going to allow this to happen. Others are snitching and it is time to send a message. Knowledge goes to the issue of an experienced crack cocaine dealer’s awareness of the drug scene and the impact of someone snitching.”
In response to Richmond’s contention, the State argues the evidence discloses that approximately 1 month before Owens’ murder, law enforcement officers raided a house where he was distributing crack cocaine. Richmond was arrested one block from the house directly after the raid with $363 and crack cocaine on his person. The State contends that the prosecutor may reasonably infer from this episode that Richmond shot Owens to send a message: that Richmond dominated the Pittsburg drug dealer scene and that he did not tolerate snitches. In support it cites Baker, 281 Kan. 997, Syl. ¶ 11. (a prosecutor is allowed considerable latitude in discussing the evidence and drawing reasonable inferences based on the evidence).
We agree with the State. Given the timing of these two events involving these two drug dealers, the prosecutor’s suggestion that Richmond intended for the shooting to send a message — either because Owens was an unwanted competitor or a snitch — is a reasonable inference to be made from this evidence. It is within the wide latitude given to prosecutors.
C. Commenting on Jacksons credibility.
Richmond also argues the prosecutor improperly commented on Jackson’s credibility when he told the jury to ask itself, “[Cjould this guy make that story up?” Richmond disputes the prosecutor’s suggestion that Jackson was unable to give false testimony because of his minimal education and years of drug use. During closing, the prosecutor said:
“The DVD from 25 October 2006, if you want to look it over again, get you a cup of coffee, get you some sodas and watch it again, but you saw a man who was in his late twenties, has a sixth-grade education, been on PCP since fourteen or fifteen. Could this guy make that story up? You’ve got to ask yourself could this guy make that story up?” (Emphasis added.)
This court has consistently held that a prosecutor is prohibited from commenting on a witness’ credibility. See, e.g., State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005). The State points out, however, that this court has also held that “ ‘[w]hen a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on the evidence, that certain testimony is not believable.’ ” State v. Douglas, 274 Kan. 96, 107, 49 P.3d 446 (2002) (quoting State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 [2000]). Still, the Douglas court recognized that “the ultimate conclusion as to any witness’ veracity rests solely widi the jury.” 274 Kan. at 107.
Although these distinctions can quite often be fine indeed, we conclude that the prosecutor was asking the jury to determine whether Jackson was capable of fabricating his story. This question was not a direct bolstering of Jackson’s credibility as prohibited by Elnicki but within the wide discretion given prosecutors.
D. Saying a defense witness could “go back to jail.”
Richmond also argues the prosecutor improperly remarked to defense witness, Roberto Howard, “You can go back to jail.” The prosecutor’s statement was made in the context of releasing Howard as a witness as follows:
“[DEFENSE COUNSEL]: May he be released, Your Honor?
“[THE COURT]: Any objection if he’s released?
“[PROSECUTOR]: You can go back to jail.
“[THE COURT]: You are free to leave, thank you.”
The State responds that Howard’s status as an inmate was already well established. We observe that Howard himself testified that he was currently “in the Crawford County jail.”
While we question the necessity of the prosecutor’s remark, it is within the wide latitude given prosecutors.
E. Direct examination of Malcolm Jackson.
Finally, Richmond alleges that the prosecutor’s repeated suggestive questions to Malcolm Jackson on direct examination denied him his fundamental right to a fair trial. The State disputes Richmond’s characterization of the questions, pointing out that he objected only four times during a series of about 220 questions spread over 29 pages of trial transcript. It further argues that none is gross or flagrant or based on the ill will of the prosecutor.
Richmond actually objected six times. The objected-to questions for Jackson, and the court’s accompanying rulings, include:
(1) “When Owens got there [at the convenience store] and left, what did A1 Richmond tell you to do?”
The trial court observed the prosecutor was assuming facts not in evidence and asked him to rephrase, which he did, without subsequent objection: “What did Albert Richmond say?”
(2) “[PROSECUTOR]: What did Owens say [after the first shot]?
“[JACKSON]: He was hit.
“[PROSECUTOR]: Where did he move his hands toward?
“[JACKSON]: His chest.
“[PROSECUTOR]: Once he grabbed his chest — ”
The trial court asked the prosecutor to rephrase, which he did, without subsequent objection: “What did you see the [sic] Mr. Owens do with his hands?”
(3) “And what did you grab a hold of [when Owens’ car went into reverse after he was shot]?”
The trial court observed the prosecutor was assuming facts not in evidence and asked him to rephrase, which he did, without subsequent objection: “You grabbed the steering wheel?”
(4) “Okay. Was the music up or who turned it up [on the way to Joplin after the shooting]?”
The trial court observed the prosecutor was asking suggestive questions and asked him to “Please continue to rephrase your questions.” The prosecutor did so, without subsequent objection: “What type of music was being played?”
(5) “And what did the defendant tell you about the shooting?”
The trial court sustained the objection, agreeing that the prosecutor is “assuming he [Richmond] did tell him [Jackson] something about the shooting by the tenor of the question.”
During the resultant break in Jackson’s testimony, defense counsel asked that the testimony be struck in its entirety because of the improper questioning:
‘We also want to move to strike this witness’s testimony in its entirely. We’ve repeatedly asked that counsel ask non-leading, non-suggestive questions, questions that don’t assume facts in evidence before they are even proved and the judge has repeatedly sustained those objections and he hasn’t cleaned up his act, he still continues to ask those type of questions.”
The judge denied the motion, saying,
‘Well, I think he’s doing much better. He’s not asking the leading and suggestive nor suggesting things that are not yet in evidence. I’ve told [the prosecutor] to do better and I think he is. I don’t think there is any basis for striking the witness’s testimony but I do want to ask that you [prosecutor] not ask leading or suggestive or ask questions that there is no evidence admitted evidence as to the reason you are asking the question.” (Emphasis added.)
With only slight revision, the prosecutor eventually asked the same question concerning what Richmond told Jackson about the shooting, to which the defense counsel again objected. The judge acknowledged the intervening lengthy discussion among court and counsel on another evidentiary issue and said, “I don’t have a problem with that. Please move on.”
Later, defense counsel objected to his sixth, and last, question in Jackson’s examination:
(6) ‘What did the defendant say about that [police breaking up the crack house crap game]?”
The trial court sustained the objection, agreeing that the prosecutor is “assuming facts not yet evidence.” The prosecutor rephrased, without subsequent objection: “Who did you talle to about that?”
We acknowledge that these six questions were generally leading and suggestive or assuming facts not in evidence.
Harmless Error
We have concluded that the prosecutor erred in repeatedly asking objectionable questions. Prosecutorial error, however, does not necessarily amount to reversible error for prosecutorial misconduct. Reversal is not required unless the prosecutor s actions deprived Richmond of a fair trial. See State v. Drayton, 285 Kan. 689, 708, 175 P.3d 861 (2008). Consequently, we now examine the magnitude of the error.
The first factor to consider in the harmlessness inquiry is whether the misconduct is gross and flagrant, e.g., did it prejudice the jury against Richmond. See Drayton, 285 Kan. at 708 (citing State v. Elnicki, 279 Kan. at 65). We acknowledge that asking six objectionable questions of the main prosecution witness — in fact, the only witness identifying Richmond as the shooter — during his direct examination in a first-degree murder trial could suggest gross and flagrant misconduct.
We further acknowledge that the prosecutor s persistent use of such questions, despite rephrasing requests and rephrasing instructions from the trial court could, as Richmond argues, constitute evidence of prosecutorial ill will. Cf. State v. Douglas, 274 Kan. 96, 108, 49 P.3d 446 (2002) (ill will can be found when prosecutor ignores prior, sustained objection). In State v. Gleason, 277 Kan. 624, 88 P.3d 218 (2004), the prosecutor was accused of reversible misconduct by violating a limine order barring evidence of defendant’s prior crime. We denied defendant’s request for a new trial. But we held that the prosecutor had violated the order with his questions on direct examination and observed he had repeated the objectionable type of questions immediately after the original objection had been sustained, the two answers stricken from the record, and the jury admonished by the court not to consider the objectionable elements of the testimony. 277 Kan. at 639-42.
However, we need not answer these particular questions definitively because of the third step in the prosecutorial misconduct inquiry. Simply put, after reviewing the evidence, we conclude that the harmlessness standards are satisfied from both K.S.A. 60-261 (“inconsistent with substantial justice”) and Chapman [v. Califor nia, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967)] (error harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial). More particularly, the objectionable questions were rephrased and no objections were raised to their modified versions or the resultant answers. Moreover, Richmond was the only person ever identified as the shooter. This critical part of Jackson’s testimony was not delivered in response to any questions to which Richmond had objected.
In short, reversal is not required because the prosecutor’s objectionable questions and Jackson’s resultant answers did not prejudice the juiy against Richmond to the extent it denied him a fair trial.
Issue 5. Cumulative error did not deny Richmond his fundamental right to a fair trial.
Richmond next argues that cumulative error requires reversal of his conviction and remand for a new trial. He argues that the State’s entire case was simply a prolonged attack on his character. The State responds no error was committed; but if so, any accumulation did not deny Richmond a fair trial.
In the absence of any error, none can accumulate. See State v. Sharp, 289 Kan. 72, 210 P.3d 590 (2009). The presence of one error is obviously insufficient to accumulate. See State v. Davis, 283 Kan. 569, 583, 158 P.3d 317 (2007). To the extent that more than one error may have occurred, we observe that cumulative trial error requires reversal when the totality of the circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Reid, 286 Kan. 494, Syl. ¶ 20, 186 P.3d 713 (2008).
The only errors were identified in Issue 4. As discussed there, neither the prosecutor’s six objectionable questions (which were rephrased without objection) nor any resulting answers prejudiced the jury against Richmond to the extent it denied him a fair trial. Accordingly, there are no other circumstances to be considered in the totality which could substantially prejudice him. See Reid, 286 Kan. 494, Syl. ¶ 20. Moreover, Richmond’s defense was greatly damaged by his being the only person ever identified as the shooter and by his statement to law enforcement that he does not sell crack cocaine, but instead robs and kills.
Issue 6. Richmond’s Sixth and Fourteenth Amendment rights were not violated when the trial court imposed a hard 50 sentence without submitting the aggravating factors to a jury for proof beyond a reasonable doubt.
For his last claim of error, Richmond challenges the constitutionality of Kansas’ hard 50 sentencing scheme under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999). He argues that the statute is unconstitutional because it does not allow a criminal defendant the right to have a jury determine beyond a reasonable doubt all the facts which might increase the maximum penalty for first-degree murder.
This court has de novo review of constitutional questions. State v. Oliver, 280 Kan. 681, 707, 124 P.3d 493 (2005).
This court has previously rejected the same challenge in numerous cases. See, e.g., State v. Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006); Oliver, 280 Kan. at 708; State v. Wilkerson, 278 Kan. 147, 160, 91 P.3d 1181 (2004); State v. Hebert, 277 Kan. 61, 107-08, 82 P.3d 470 (2004); and State v. Douglas, 274 Kan. 96, 111-12, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003). Richmond has not provided any additional facts or argument that merit reconsideration of this issue. Accordingly, his argument fails.
Affirmed.
David J. King, District Judge, assigned.
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The opinion of the court was delivered by
Davis, C.J.:
Lisa Boldridge’s first-degree murder conviction and hard-50 sentence were affirmed by this court on direct appeal. State v. Boldridge, 274 Kan. 795, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). Her case comes before us again on our grant of Boldridge’s petition for review of the Kansas Court of Appeals’ decision regarding her K.S.A. 60-1507 motion. A divided panel of the Court of Appeals affirmed the district court’s denial of her motion regarding ineffective assistance of trial counsel, finding that Boldridge was adequately represented by counsel during the trial of her case. Boldridge v. State, No. 97,652, unpublished opinion filed June 13, 2008. Judge Greene dissented, explaining that he interpreted the record to demonstrate “multiple and egregious errors of trial counsel [that] truly undermined [his] confidence in the outcome of Lisa Boldridge’s trial.” Boldridge, slip op. at D-l (Greene, J., dissenting). We granted Boldridge’s petition for review, which only raised issues of ineffective assistance of counsel at trial. We now reverse the decision of tire Court of Appeals affirming the district court on the issue involving the admissibility of hearsay evidence, reverse the decision of the district court on that same issue, affirm both courts on the other claims regarding ineffective assistance of counsel at trial, and remand the case with directions to the district court for further proceedings consistent with our opinion.
We note that the Court of Appeals also held that Boldridge was inadequately represented by counsel at sentencing. Based on this conclusion, the Court of Appeals vacated Boldridge’s sentence and remanded her case to the district court for resentencing. Slip op. at 19-20. The question of inadequacy of counsel at sentencing is not before us, and the decision of the Court of Appeals is final as to Boldridge’s arguments relating to her attorney’s performance at sentencing. Boldridge’s sentence is therefore vacated. If the district court determines on remand that Boldridge is not entitled to a new trial, she must be resentenced in accordance with the Court of Appeals opinion.
In her petition for review, Boldridge claims that her constitutional right to counsel at trial was violated in a number of ways.
First, Boldridge contends she was given inaccurate legal advice by her trial counsel, Charles Tuley, that violated her right to effective assistance of trial counsel. In particular, Boldridge asserts Tuley did not understand that his client could be convicted as an aider and abettor if she was charged in the complaint as a principal. Boldridge alleges that, based on this misunderstanding, Tuley advised her to waive her right to a jury trial, as the court would better comprehend this legal argument. Boldridge also claims this advice by counsel caused her to forego a change of venue granted by the trial court since she was planning on having a bench trial; instead, her trial took place in Atchison County where the killing had occurred.
In addition to her claims regarding counsel’s inaccurate legal advice, Boldridge claims counsel’s performance at trial was constitutionally defective because he failed to rebut evidence of her prior convictions with information regarding the long history of domestic abuse inflicted on her by her former husband (the victim of the underlying murder). She also claims her counsel’s cross-examination of the prosecution’s star witness was constitutionally deficient and denied her a fair trial.
Boldridge also contends her trial counsel could not provide constitutionally effective performance because he labored under actual conflicts of interest that divided his loyalties. Finally, Boldridge claims cumulative error denied her right to a fair trial.
Trial Counsel’s Alleged Conflicts of Interest
Before any consideration of the questions involving advice given to Boldridge by counsel or counsel’s alleged deficient and prejudicial performance in representing her at trial, we take up as a threshold issue the question of counsel’s alleged conflicts of interest.
The Sixth Amendment to the United States Constitution guarantees in “all criminal prosecutions” that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” This Sixth Amendment right to counsel is made applicable to state proceedings by the Fourteenth Amendment to the Constitution. See Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). This court has explained that the right to counsel guaranteed by these provisions is the right to effective assistance of counsel. Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 [1984]). Similarly, a defendant in a criminal trial has a constitutional right to “representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 101 S. Ct. 1079 (1981).
Allegations of ineffective assistance of counsel, whether based on claims of deficient performance or on a conflict of interest, involve mixed questions of fact and law. This court therefore reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. See State v. Gleason, 277 Kan. 624, 644-45, 88 P.3d 218 (2004).
To demonstrate that a conflict of interest resulted in ineffective assistance of counsel, a defendant has the burden of proving a reversible conflict — that is, (1) a conflict of interest (2) that affected the adequacy of the attorney’s representation. See Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 122 S. Ct. 1237, reh. denied 535 U.S. 1074 (2002); Gleason, 277 Kan. at 650. A defendant who can demonstrate that a conflict of interest affected the adequacy of his or her counsel’s representation need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel’s deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties. See Mickens, 535 U.S. at 174.
Appointed, Counsel Acting as Pro Tempore Judge
Boldridge argues that Tuley’s representation fell below the objective standard of reasonableness guaranteed by the Sixth and Fourteenth Amendments because, prior to his appointment as her counsel, he had acted as a pro tempore part-time judge in Atchison County in May 2000 on matters directly related to her first-degree murder prosecution. The record discloses that while serving as pro tempore judge, Tuley signed various inquisitional subpoenas to obtain telephone records in the criminal investigation that eventually resulted in a charge of first-degree murder against Boldridge. The records acquired as a result of those subpoenas were later used as evidence against Boldridge at her murder trial to corroborate the testimony of other witnesses regarding various telephone calls Boldridge made around the time of the murder.
The record discloses that at the time of his appointment, Tuley had spoken with Boldridge about his service as a pro tempore judge and his involvement with subpoenas for “telephone records.” Counsel explained that he never reviewed any documents in conjunction with the Boldridge’s murder case. When Boldridge was asked by the district court at the appointment hearing whether she had discussed the nature of her counsel’s involvement as a pro tempore judge with him, Boldridge indicated that Tuley had explained his pro tempore service “in depth” and that Boldridge saw no conflict in Tuley representing her during her trial for murder.
Boldridge related during her K.S.A. 60-1507 hearing that Tuley (who died prior to the K.S.A. 60-1507 hearing) told her that his previous service as a pro tempore judge “wasn’t really a big deal” and that he happened to be sitting on the bench the day the subpoenas needed to be signed since the full-time judges in the area were out of town. While Boldridge explained that counsel advised her of the conflict initially, she was never given an opportunity to discuss the ramifications of the conflict with another attorney. She testified at the hearing on her motion that she waived the conflict because she “was under the impression it really wasn’t that big of a deal.”
The district court concluded Boldridge had presented no evidence at the K.S.A. 60-1507 hearing that Tuley was operating under a conflict of interest that called for an automatic disqualification and that Boldridge waived any objections to the alleged conflict on the record. The Court of Appeals majority agreed, noting that Boldridge “cite[d] no authority prohibiting the waiver of a conflict of interest,” that Boldridge “knew of Tuley’s pro tern judicial service in signing the subpoenas for phone records,” and that Boldridge “specifically waived that conflict so Tuley could represent her in the criminal case.” Boldridge, slip op. at 10.
Boldridge now argues that our decision in State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980), requires that we reverse her conviction of first-degree murder due to her counsel’s prior actions a pro tempore judge. Rice involved allegations by a defendant that his defense counsel had operated under an unconstitutional conflict of interest because one of the defense counsel’s partners in his law firm also served as a part-time municipal judge. We explained in Rice that “[ejarly opinions of the advisory section of the ethics committee of the Kansas Bar Association have held that a lawyer holding a position as a part-time municipal judge, city attorney or county attorney would be precluded from representing criminal defendants in all courts. [Citation omitted.]” 227 Kan. at 420-21. Quoting another ethics committee report, Rice noted:
“ ‘Lawyers holding part-time positions as Judges or Prosecuting Attorney, should, of course, never appear as counsel for defendants in criminal matters in the Courts in which they have responsibility. It is the opinion of the Committee, however, that they may be far enough removed that they can appear in other Courts, in which they have no substantial responsibility, as counsel for criminal defendants without giving an appearance of impropriety.’ ” 227 Kan. at 421.
The Rice court recognized that there was currently “no specific provision in the Code [of Professional Responsibility] prohibiting representation of defendants in criminal cases by the partners or associates of a judge or prosecutor.” 227 Kan. at 420. But the court also noted that “this has long been a problem of courts and judges who have the responsibility to appoint counsel for indigent defendants.” 227 Kan. at 420. Rice continued:
“It is often stated that such representation may give an appearance of impropriety and therefore should be carefully avoided under Canon 9, DR 9-101 (225 Kan. cix). On the other hand, it is the duty of every lawyer to assist the legal profession in fulfilling its duty to make legal counsel available. Thus, in any particular case there is a necessity to balance the conflicting duties and make a determination on an individual case by case basis.” 227 Kan. at 420.
Applying these standards to the facts before it, Rice concluded that “there was no conflict of interest and ... no appearance of impropriety” in the proceedings that would have disqualified the defendant’s counsel. 227 Kan. at 422.
We note that despite its finding that a conflict of interest did not arise in that case, Rice emphasized that even if the defendant demonstrated that his defense attorney was acting under a conflict of interest, there must be some “showing of prejudice,” as a “ ‘mere allegation of a conflict of interest of counsel is not sufficient to show a denial of an accused’s constitutional right to the effective assistance of counsel.’ ” 227 Kan. at 422 (quoting State v. Gross, 221 Kan. 98, Syl. ¶ 2, 558 P.2d 665 [1976]). Because no conflict existed in that case, Rice did not discuss the subsequent prejudice assessment in greater detail.
Boldridge claims that Rice supports her argument that lawyers acting as part-time judges should “never” represent criminal defendants in courts where they serve. She argues that her counsel’s actions in this case — previously serving as a judge and authorizing the issuance of subpoenas in the very case against her — were especially improper and require reversal of her first-degree murder conviction regardless of the effect on the outcome of the case.
While there was no specific rule governing representation by part-time judges at the time of our decision in Rice, our Code of Judicial Conduct (2008 Kan. Ct. R. Annot. 645) has been modified to proscribe such conduct. At the time of Boldridge’s murder trial, the Code of Judicial Conduct stated: “A pro tempore part-time judge . . . shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto except as otherwise permitted by Rule 1.12(a)” of the Kansas Rules of Professional Conduct (KRPC) (2008 Kan. Ct. R. An-not. 487). Code of Judicial Conduct, Rule 601A, Application of Code D(3) (2008 Kan. Ct. R. Annot. 675). KRPC 1.12(a) states:
“[A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or any other adjudicative officer or law clerk to such a person as an arbitrator, mediator or other third-party neutral, unless all parties to the proceedings give informed consent confirmed in writing.” (2008 Kan. Ct. R. Annot. 487).
The revised Kansas Code of Judicial Conduct, which became effective March 1, 2009, is even more explicit in its prohibition of such conduct, stating that “[a]n occasional part-time judge shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other proceeding related thereto.” Rule 601B, Application of Code V(B) (2009 Kan. Ct. R. Annot. 670).
The record establishes a conflict of interest in this case. Tuley’s appointment as counsel for Boldridge in her trial for first-degree murder (and his acceptance of that appointment) after having authorized the issuance of subpoenas for telephone records in the investigation of that same murder case was clearly improper under the KRPC regulating attorneys and the Code of Judicial Conduct. Due to the nature of that conflict, the district court should not have appointed Tuley as Boldridge’s counsel. Likewise, Tuley should have refused to accept an appointment that required an ethical violation. See KRPC 1.12(a).
We recognize that the Code of Judicial Conduct and the Kansas Rules of Professional Conduct for attorneys in this state provide for a waiver of such a conflict in circumstances where all parties give informed consent to the conflicted representation and where this consent is memorialized in writing. We must emphasize, however, that an oral statement by a defendant accepting counsel’s appointment, without more, does not satisfy the waiver requirements. Although statements on the record by the court and the parties may in some instances substitute for the writing required by the KRPC, the record we examine today falls short of establishing any such waiver.
The hearing on Boldridge’s waiver of the conflict was vague at best and did not explain the nature of the conflict at issue — that Tuley signed subpoenas authorizing government officers to obtain telephone records that would later be used as evidence of Bold-ridge’s motive and opportunity at trial. Had this information been disclosed and the conflict more fully éxplored by the court and counsel, it is doubtful that Tuley would have been appointed to represent Boldridge. Boldridge testified at her K.S.A. 60-1507 hearing — the only proceeding where she was able to fully explain her understanding of the conflict in question- — that she was “under the impression it really wasn’t that big of a deal.”
We conclude that the district court’s rulings that Tuley’s actions as a pro tempore judge in signing the subpoenas were “ministerial” and that Boldridge knowingly waived any conflict arising from those signatures were not supported by substantial evidence. The record does not support a conclusion that either party affirmatively waived or confirmed their consent to this conflicted representation in writing. Evidence presented at the K.S.A. 60-1507 hearing calls into question whether Boldridge truly appreciated the nature of Tuley’s prior actions as pro tempore judge. For these reasons, we conclude that Boldridge has demonstrated that trial counsel acted under a conflict of interest when he accepted his appointment as her defense counsel. See State v. Dixon, 438 So. 2d 185, 185-86 (Fla. Dist. App. 1983) (finding that part-time prosecutor who signed defendant’s indictment in grand jury proceedings could not subsequently serve as defendant’s counsel at trial).
Nevertheless, the conflict found does not by itself entitle Bold-ridge to a reversal of her conviction. Structural error only occurs in very limited circumstances where errors “defy analysis by ‘harmless-error’ standards” because they “affect[] the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991); see Untted States v. Gonzalez-Lopez, 548 U.S. 140, 165 L. Ed. 2d 409, 126 S. Ct. 2557 (2006) (denial of right to counsel of choice); Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993) (denial of the right to a jury trial by giving a defective reasonable-doubt instruction); Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210 (1984) (denial of the right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984) (denial of the right of self-representation); Holloway v. Arkansas, 435 U.S. 475, 488, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978) (denial of right to counsel when counsel was required by the court to simultaneously represent multiple defendants over counsel’s objection); Gideon, 372 U.S. 335 (complete denial of right to counsel).
Our review of our Supreme Court Rules and case law demonstrates that Tuley’s conflict in previously serving as a pro tempore judge is not a structural error requiring automatic reversal. First, the Kansas Code of Judicial Conduct and Kansas Rules of Professional Conduct for attorneys recognize that a conflict similar to the one we now consider can be waived by informed consent in writing. Because the type of conflict we consider in this case is waivable by the parties, it does not create a structural defect. Furthermore, our decision in Rice explains that even where a defendant demonstrates that an attorney was acting under a conflict of interest in violation of ethical rules, there must be some “showing of prejudice” before that conflict will cause the court to reverse a conviction. 227 Kan. at 422. In other words, the conflict created by Tuley’s representation in this case does not require automatic reversal; rather, it is subject to the modified prejudice analysis set forth by the United States Supreme Court in Mickens. See 535 U.S. at 168.
Thus, in order to prevail upon this issue, Boldridge must demonstrate that the conflict affected the adequacy of the attorney’s representation. See Mickens, 535 U.S. at 168. Specifically, Bold-ridge argues that Tuley’s previous service as a pro tempore judge affected his representation by foreclosing his ability to object to the admission of the phone records obtained by his signature.
The subpoenas signed by Tuley as pro tempore judge were inquisitional subpoenas for telephone records. In State v. Schultz, 252 Kan. 819, 850 P.2d 818 (1993), this court held that a defendant does not have standing to challenge an inquisitional subpoena for phone records because an individual does not have a reasonable expectation of privacy in his or her phone records. 252 Kan. at 834-35. This conclusion was based on United States Supreme Court precedent, which held that an individual has no legitimate expectation of privacy in information he or she voluntarily turns over to third parties. 252 Kan. at 822-24. Thus, telephone customers have no reasonable expectation of privacy in the telephone numbers they dial because they know that the phone company tracks those numbers and keeps records of calls made (as shown by a telephone customer s monthly statement). 252 Kan. at 834-35.
In Smith v. Maryland, 442 U.S. 735, 742-43, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), the United States Supreme Court explained:
“[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. . . . Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”
Under both this court’s precedent in Schultz and the United States Supreme Court’s decision in Smith, Boldridge could not challenge the inquisitional subpoenas for telephone records that Tuley authorized as a pro tempore judge because she had no expectation of privacy in those records. This outcome is true regardless of the identity of her trial counsel or of that attorney’s previous involvement with the subpoenas in question.
Because Boldridge could not effectively challenge the inquisitional subpoenas or restrict access to her phone records, the fact that Tuley previously signed these subpoenas before his appointment had no effect on his ability to represent her during her trial. Boldridge’s argument to this effect therefore fails. Boldridge has not shown that counsel’s previous service as a pro tempore judge affected the adequacy of his representation at trial. Thus, counsel’s service as a pro tempore judge is not a basis for reversal of Bold-ridge’s conviction.
Previous Representation of the Victim by Counsel’s Associate
Boldridge also claims that Tuley was unable to provide conflict-free representation because one of the attorneys working in his law firm, Robert Campbell, previously represented Kurt Boldridge (the murder victim) in a case that resulted in the termination of Boldridge’s parental rights as to one of her sons. The district court determined that there was no conflict presented by Campbell’s previous representation of Kurt because the previous case did not involve the same or a substantially related matter to the murder trial.
Boldridge does not argue that Tuley’s firm’s previous representation of Kurt in any way affected Tuiey’s representation of Bold-ridge during her murder trial. She merely asserts that Kurt’s and her relationship was at the heart of the murder trial and that relationship also led to her various felony convictions that led to the previous termination action.
At best, the evidence presented at Boldridge’s K.S.A. 60-1507 hearing demonstrated that there was a potential conflict of interest that arose out of Campbell’s previous representation of Kurt. Because Boldridge did not in any way demonstrate that this potential conflict affected the adequacy of Tuley’s representation, her claim for ineffective assistance of counsel based on an alleged conflict of interest does not provide a basis for relief.
Counsel’s Legal Advice Regarding Aiding and Abetting
Boldridge’s primary argument in her K.S.A. 60-1507 motion is that her defense counsel Tuley provided ineffective assistance of counsel at trial because he gave her inaccurate legal advice that caused Boldridge to waive her right to a jury trial and also caused her to forego a requested change of venue. Boldridge asserts that Tuley made her believe she could not be convicted of murder if she did not pull the trigger and that a judge would understand this legal argument better than a jury would. In other words, Boldridge asserts that Tuley incorrectly advised her that because she had been charged as a principal, she could not be convicted on an aiding-and-abetting theory. Boldridge further claims that because Tuley relied on an incorrect understanding of aiding and abetting and assumed the judge would dismiss the case due to the alleged defects in the complaint, he did not malee adequate attempts to rebut the State’s case against her.
Tuley passed away between the filing of Boldridge’s K.S.A. 60-1507 motion and the date of the K.S.A. 60-1507 hearing. Because Tuley’s death obviously rendered him unavailable at the evidentiary hearing on her motion, Boldridge attempted to testify as to advice Tuley gave Boldridge during the course of the criminal proceedings. The State objected to the evidence, asserting that Tuley’s statements constituted inadmissible hearsay. Boldridge argued that Tuley’s statements were not hearsay because they were not being offered to prove the truth of the matter asserted in that advice, but rather to demonstrate that the advice was given and the effect of that advice on her decisions to waive her change-of-venue request and her right to a jury trial. The district court sustained the State’s objection and excluded the evidence, concluding that “[i]t is hearsay in [the court’s] mind” and that the court was “unaware of any exception that would let [Tuley’s statements] come in.”
As a result of this decision, Boldridge was permitted to testify regarding her personal understanding of the law (allegedly resulting from Tuley’s legal advice) that caused her to waive her jury trial and forego the change of venue, but she could not explain the content of the advice itself. The evidence introduced at Boldridge’s K.S.A. 60-1507 hearing regarding the content of Tuley’s advice was limited to transcripts documenting Tuley’s repeated requests— both leading up to and during the trial — for a bill of particulars, as well as a few isolated statements Tuley made throughout the proceedings regarding the State’s failure to prove all of the elements of the crime charged in the complaint.
The district court found that Boldridge failed to establish that Tuley had provided inaccurate legal advice. The court also found that even if Tuley did not understand the law regarding aiding and abetting, Boldridge could not demonstrate prejudice in light of the significant evidence presented against her at trial.
Boldridge appealed, asserting that the district court’s exclusion of all evidence of the legal advice given by Tuley to Boldridge was improper and significantly hindered her ability to argue her case at the evidentiary hearing. Boldridge renewed her claim that the statements were not hearsay because they were not offered to prove the truth of the matter stated. Boldridge claimed that she wished to testify regarding the statements to demonstrate (1) that the advice was given and (2) the effect of that advice on Boldridge’s decision to waive her right to a juiy trial and to forego a change of venue.
The Court of Appeals majority agreed with the district court’s conclusion that the content of Tuley s statements was relevant to her claim that Tuley provided ineffective assistance of counsel by giving legal advice, rejecting Boldridge’s claim that the statements were not offered for the truth of the matter asserted. Boldridge v. State, No. 97,652, unpublished opinion filed June 13, 2008, slip op. at 6. Judge Greene disagreed with this analysis, explaining:
“When [Boldridge] sought to testify as to die statements of her counsel that caused her to malee strategic decisions, such statements were not offered to show the proof of die matter asserted. She was in no position before trial or at the 60-1507 hearing to show that the statements were wrong; she sought only to demonstrate what was said that caused her to make strategic decisions, including her waiver of a juiy trial. This is a classic case of statements that are not offered to show the truth of the matters asserted. See State v. Getz, 250 Kan. 560, Syl. ¶ 2, 830 P.2d 5 (1992). Although the district court allowed her to testify to her ‘understanding,’ my reading of the transcript convinces me that her inability to say what her attorney actually told her significandy prejudiced her rights at the 60-1507 hearing.” Slip op. at D-6 (Greene, J., dissenting).
In her petition for review, Boldridge renews her argument that Tuley’s advice was not being offered to prove the content of the advice, but rather to show its effect on Boldridge’s decisions during the course of the criminal prosecution against her. Boldridge asserts that the statements should be allowed because “Mr. Tuley’s death before the [K.S.A. 60-1507] hearing cannot forever bar [Boldridge] from introducing testimony of what Mr. Tuley told her about her case.”
Governing Standards
To support a claim of ineffective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant must demonstrate (1) that counsel’s perform anee was deficient, and (2) that counsel’s deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004). The “benchmark for judging any claim of ineffectiveness [as to counsel’s performance] must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. [Citations omitted.]” Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Claims of ineffective assistance of counsel involve mixed questions of fact and law. 283 Kan. at 91. Once a district court has entered findings of fact and conclusions of law on such a claim, “an appellate court determines ‘ “whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have substantial support in the evidence.” ’ [Citation omitted.]” Gleason, 277 Kan. at 644-45.
In the case presently before us, Boldridge argues that the district court’s findings of fact regarding the advice given by Tuley during the course of Boldridge’s murder trial were inaccurate, as the district court excluded as hearsay any evidence of Tuley’s statements. Thus, Boldridge’s claim is at its base an argument as to the soundness of the district court’s evidentiary ruling.
Like many evidentiary determinations considered on appeal, an appellate court reviews a trial court’s admission or exclusion of hearsay statements for an abuse of discretion. State v. Miller, 284 Kan. 682, 708, 163 P.3d 267 (2007). This court has clarified, however, that a district court always abuses its discretion when its decision “ ‘goes outside the legal framework or fails to properly consider statutory limitations.’ ” 284 Kan. at 689 (quoting In re J.D. C., 284 Kan. 155, Syl. ¶ 3, 159 P.3d 974 [2007]). For this reason, we review de novo whether a district court applied the correct legal standards when ruling on the admission or exclusion of evidence. See State v. White, 279 Kan. 326, 332-33, 109 P.3d 1199 (2005).
Discussion and Analysis
With these standards as a framework, we turn to the district court’s determination that the legal advice Tuley gave to Boldridge was inadmissible hearsay.
K.S.A. 60-460 defines hearsay as “[e]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” This type of evidence is inadmissible unless it falls under a recognized hearsay exception. “The theory behind the hearsay rule is that when a statement is offered as evidence of the truth asserted in it, the credibility of the asserter is the basis for the inference, and therefore the asserter must be subject to cross-examination. 6 Wigmore on Evidence § 1766 (Chadboum rev. 1976).” State v. Harris, 259 Kan. 689, 698, 915 P.2d 758 (1996).
Boldridge claims the district court and Court of Appeals majority erred by concluding Tuley’s statements were being offered to prove the truth of the matter asserted because the statements’ relevance turned on their content. Boldridge asserts Tuley’s legal advice was not being offered to show that the advice given was “true” — that is, to show the statements were correct statements of law. In fact, the essence of Boldridge’s claim for ineffective assistance of counsel is that Tuley gave faulty and inaccurate legal advice. Rather, Boldridge claims she wished to testify as to Tuley’s statements to show that the advice was given to her and to explain why she made the choices she did before trial (waiving her right to a jury trial and foregoing her venue change).
In our past cases, this court has identified at least three types of out-of-court statements that do not constitute hearsay under K.S.A. 60-460 because they are not offered to prove the truth of the matter asserted in the statements: “(1) those statements material to the case as part of the issue; (2) those statements which are verbal parts of an act; and (3) those statements used circumstantially as giving rise to an indirect inference but not as an assertion to prove the matter asserted.” Harris, 259 Kan. at 699 (citing State v. Oliphant, 210 Kan. 451, 454, 502 P.2d 626 [1972]). This court has also “allowed the use of statements which would otherwise be hearsay to show that the defendant’s story had changed over time, to show the defendant’s state of mind, or to show that a Miranda warning was given. [Citations omitted.]” 259 Kan. at 699.
In order to prove Tuley provided constitutionally defective counsel by giving incorrect legal advice, Boldridge was required to show (1) that Tuley gave her inaccurate legal advice and (2) that Bold-ridge relied on that advice to her prejudice, depriving her of a fair trial. See Bledsoe, 283 Kan. at 90.
From the proffer contained in the record on appeal, Boldridge would have testified (had she been so permitted) Tuley told her that she could not be convicted as an aider/abettor since she was not charged as an aider/abettor and that a judge would understand the “legality” of this argument better than a jury would. Boldridge also testified that if she had not foregone the venue change and the case had been transferred to Wyandotte County, Tuley was still “leading [her] to believe that there wasn’t another option but to waive [her] right[] to a jury trial.” Thus, when Boldridge learned that an Atchison County judge would hear her case even after a change of venue, she waived the change since such an action would make no difference to the outcome of her trial.
By offering evidence of Tuley’s legal advice, Boldridge was not trying to prove that the matter asserted in the advice was true. Tuley’s alleged statements were incorrect under Kansas law. See State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976) (“By statute and case law this jurisdiction has long held that any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he [or she] were a principal.”). In fact, Boldridge’s ineffective-assistance-of-counsel argument relies on Tuley’s advice being inaccurate.
Instead of offering evidence of Tuley’s advice to prove its accuracy, Boldridge was merely trying to demonstrate that Tuley gam the advice and that the advice caused Boldridge to waive her constitutional and statutory rights. Put in terms of our previous case law, Boldridge was attempting “not to prove the truth of the matter asserted, but merely to show that the statements were said,” as well as “the defendant’s state of mind” after she heard the statements. See Harris, 259 Kan. at 699. Because the statements were being offered not to prove the truth of the matter asserted in the advice but to show that the advice was given, they were not hearsay within the meaning of K.S.A. 60-460. Thus, the statements were admis sible, and the district court erred in excluding them as hearsay during the evidentiary hearing on Boldridge’s K.S.A. 60-1507 motion.
We pause briefly to emphasize that in concluding Tuley’s statements were admissible nonhearsay, this -court does not make any findings regarding the credibility of Boldridge in reciting that proffered evidence. If Tuley would have been available as a witness during the evidentiary hearing on Boldridge’s K.S.A. 60-1507 motion, he could have testified that he did or did not give the advice in question. In other words, he could have testified about the credibility of Boldridge’s statement that he gave the advice in question. In much the same way, on remand the factfinder will have to assess the credibility of Boldridge’s testimony regarding Tuley’s legal advice and weigh the evidence accordingly.
The district court erred in excluding the evidence of Tuley’s statements to Boldridge. Furthermore, there can be little question that, as Boldridge’s K.S.A. 60-1507 counsel indicated at the K.S.A. 60-1507 hearing, the district court’s blanket exclusion of Tuley’s statements as hearsay “drastically impact[ed] [counsel’s] ability to present [Boldridge’s] case.” Although Boldridge was allowed to testify as to her understanding of the legal matters in question and her decisions regarding her waiver of the jury trial and change-of-venue requests, her responses were hesitant because she was unable to explain what led her to that understanding. Without evidence of Tuley’s actual advice to give cohesiveness to her argument, Boldridge was left to rely on vague statements made by Tuley during a pretrial conference and opening argument, asking the court to infer from those statements Tuley’s understanding of legal principles. The district court’s exclusion of all evidence of Tuley’s advice to Boldridge had a significant effect on her ability to argue her K.S.A. 60-1507 motion.
Because the district court erroneously excluded evidence of Tuley’s statements of legal advice as inadmissible hearsay at Bold-ridge’s K.S.A. 60-1507 hearing, significantly hindering her ability to present her claim of ineffective assistance of counsel, the case must be reversed in part and remanded with directions to the district court for a new evidentiary hearing on that issue.
We now turn to the remaining issues presented in Boldridge’s petition for review to determine the scope of the hearing on remand.
Other Claims Alleging Constitutionally Deficient Performance
Boldridge argues that Tuley’s performance at trial violated her right to counsel under the Sixth and Fourteenth Amendments in two additional respects: First, Boldridge asserts that Tuley’s failure to rebut evidence of her prior convictions with evidence as to the long history of domestic abuse suffered by Boldridge and inflicted by her ex-husband Kurt (the murder victim) was constitutionally deficient. Second, Boldridge asserts that Tuley did not adequately cross-examine the State’s star witness, despite the fact that the witness had given several inconsistent statements to the authorities. After reviewing these claims, wé find that neither rises to the level of constitutional deficiency necessary to succeed on a claim for ineffective assistance of counsel.
Failing to Adequately Rebut Damaging Evidence
Boldridge claims that Tuley provided ineffective assistance of trial counsel when he failed to rebut evidence relating to Bold-ridge’s prior acts of violence against Kurt. The evidence submitted at trial included Boldridge’s previous arson conviction (setting fire to Kurt’s home) that was overturned on appeal; various statements made by Boldridge that she wanted revenge against Kurt; and Kurt’s statements to a friend, Allen Tement, that he was afraid of what Boldridge might do.
Boldridge asserts that because Tuley did not present evidence of the long abusive relationship between Kurt and herself, the court was not given the opportunity to appreciate that Kurt- — not Lisa— was the aggressor in their relationship. In particular, Boldridge argues that Tuley should have presented evidence regarding her history of seeking refuge in domestic violence shelters to demonstrate that she was not the source of the aggression in the relationship but rather was the victim of prolonged mental and physical abuse.
When considering this claim after the K.S.A. 60-1507 hearing, the district court noted that during Tuley’s cross-examination of Tement (Kurt’s friend), Tuley “obtained testimony that the decedent [Kurt] visited [Boldridge] in prison, in part to maintain a relationship and communication regarding [Boldridge’s] and decedent’s son; and, that Tement was led to believe that their relationship was good.” The court further noted that this testimony “may have actually benefited [Boldridge].”
In addition to this evidence, the record demonstrates Tuley asked questions during his cross-examination of Carrie Vincent, who had testified for the State that Boldridge had stated while serving her prison sentence in the arson case that she wanted revenge against Kurt, that mitigated the effect of the evidence in question. In response to Tuley’s questions, Vincent indicated women inmates often make threats against men they are “ticked off’ at — and commonly indicate that they want to seek revenge— but “a lot of it is [just] talk.”
Boldridge now argues that Tuley’s strategy of downplaying the discord in hér relationship with Kurt only served to bolster the incorrect impression that she was the source of the aggression between them.
The State, however, claims that Tuley’s decision to downplay the aggressive history of Boldridge’s relationship with Kurt was part of a coherent legal effort to minimize evidence of motive. The State properly points out that evidence of an abusive relationship is a double-edged sword that could cut either way with a factfinder and might actually strengthen evidence relating to motive and intent.
Even if other trial attorneys or members of this court might have acted differendy in Tuley’s position, Tuley’s decision not to introduce evidence of domestic abuse does not fall below an objective standard of reasonableness in this case. See Bledsoe, 283 Kan. at 90 (“Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). Tuley’s decision to exclude that evidence from the defense did not render his representation constitutionally deficient.
Failing to Adequately Cross-Examine Goodpasture
Boldridge claims Tuley failed to adequately cross-examine John Goodpasture, the State’s eyewitness who testified that he was present at the time of Kurt’s shooting and explained in detail the events of that evening. Notably, Goodpasture testified that Boldridge met him, Kirk Wilson (the person who actually shot Kurt), and Gary Skeen at Kurt’s house; that she let them into the house; that she procured the shotgun and the ammunition used to murder Kurt; that she was present when Wilson shot Kurt; that she stayed at Kurt’s house after the men left; and that she met the men at the river later that night and helped dispose of the shotgun.
Boldridge correctly points out in her K.S.A. 60-1507 motion that Goodpasture’s version of that night’s events changed between the statement he originally provided to police (where he made no mention of Lisa) and the statement given through his testimony at trial. In fact, Goodpasture’s trial testimony was the fifth version of the story he provided.
It is clear from the transcript of the trial that Tuley sought to discredit Goodpasture’s testimony (1) by indicating he had made several inconsistent statements and (2) by emphasizing his drug and alcohol abuse and the effect of that abuse on his ability to recall certain events. Although Tuley’s cross-examination of Good-pasture raised the fact the witness had provided several different versions of his story to the police, it focused primarily on Good-pasture’s abuse of alcohol and drugs and his resultant difficulty remembering details of the evening.
In her K.S.A. 60-1507 motion, Boldridge argued that this cross-examination was constitutionally deficient because Tuley did not question Goodpasture about the specific inconsistencies in his various versions of the event. This court has previously recognized, however, that “[t]he decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. [Citation omitted.]” Bledsoe, 283 Kan. at 92.
We conclude that Tuley s cross-examination technique was not objectively unreasonable. Four of the five statements given by Goodpasture, although inconsistent, indicated Boldridge played a substantial role in the planning and executing of Kurt’s murder. The fact that Tuley did not ask more specific questions relating to Goodpasture’s inconsistent statements does not render his representation constitutionally deficient, as the specific details could potentially have emphasized the constant theme that Boldridge aided or abetted in the crime.
We further note that Boldridge herself gave at least three inconsistent statements to the authorities regarding her involvement in Kurt’s death. It is conceivable that Tuley was attempting to mitigate the effect of Boldridge’s inconsistent statements on her own credibility. Regardless of whether other trial attorneys or members of this court would have made different decisions if serving as Bold-ridge’s counsel, Tuley’s cross-examination of Goodpasture was not objectively unreasonable.
Cumulative Error
Finally, Boldridge argues that even if the issues raised in her brief and petition for review do not individually rise to the level of reversible error, the accumulation of those alleged errors denied her right to a fair trial. The test to determine whether cumulative errors require reversal of a defendant’s conviction is “whether the totality of circumstances substantially prejudiced the defendant and denied him [or her] a fair trial.” State v. Ackward, 281 Kan. 2, 29, 128 P.3d 382 (2006).
We have determined that the district court at the K.S.A. 60-1507 hearing erroneously excluded testimony regarding Tuley’s legal advice to Boldridge during the course of her trial for murder. Based on this conclusion, we find that the case should be remanded for a new evidentiary hearing on Boldridge’s claim in her K.S.A. 60-1507 motion that Tuley provided ineffective assistance of counsel by giving faulty legal advice, providing Boldridge the opportunity to present evidence of Tuley’s statements.
As our previous discussion illustrates, however, the other claims raised in Boldridge’s petition for review do not warrant reversal or remand, either individually or collectively, and we affirm the district court and the Court of Appeals on those claims. Boldridge’s assertion of cumulative error is without merit.
As previously stated, the Court of Appeals decision vacating Boldridge’s sentence and remanding for a new sentencing hearing is not subject to our review. That disposition stands as originally ordered.
The judgments of the district court and the Court of Appeals subject to our review on the issues of ineffective assistance of counsel at trial are affirmed in part and reversed in part. The case is remanded with directions to die district court for an evidentiary hearing on Boldridge’s claim that her trial attorney gave incorrect legal advice that rendered his representation constitutionally inadequate.
Affirmed in part, reversed in part, and remanded with directions to the district court.
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In a letter signed on October 26, 2009, addressed to the Clerk of the Appellate Courts, respondent James M. Holmberg of Kansas City, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2009 Kan. Ct. R. Annot. 353).
At the time the respondent surrendered his license, a panel hearing was pending on three separate complaints in accordance with Supreme Court Rule 211 (2009 Kan. Ct. R. Annot. 321). The formal complaints concern allegations of misconduct that Holmberg violated Rules 1.3 (2009 Kan. Ct. R. Annot. 426) (lack of diligence), 1.4(a) (2009 Kan. Ct. R. Annot. 443) (lack of reasonable communication), 5.5 (2009 Kan. Ct. R. Annot. 580) (unlawful practice of law while law license suspended) and 8.4(d) (2009 Kan. Ct. R. Annot. 602) (engaging in conduct that is prejudicial to the administration of justice) of the Kansas Rules of Professional Conduct and Supreme Court Rule 211(b).
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that James M. Holmberg be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of James M. Holmberg from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
Dated this 5th day of November, 2009.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Russell E. Tluscik, of Claycomo, Missouri, an attorney admitted to the practice of law in Missouri in 1984 and in Kansas in 1982.
On September 12, 2008, the Missouri Supreme Court entered the following disbarment order:
“The Chief Disciplinary Counsel having filed an information advising this Court of its findings, after investigation, that there is probable cause to believe Respondent, Russell E. Tluscik, is guilty of professional misconduct and having filed with said Information, pursuant to Rule 5.13, a notice of default, notifying the Court that Respondent, Russell E. Tluscik, failed to file an answer or other response within the time required . . . and, therefore, pursuant to Rule 5.13, Respondent is in default; and
“It appearing Respondent is guilty of professional misconduct and should be disciplined;
“Now, therefore, it is ordered by the Court that the said Russell E. Tluscik, 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 tíre roll of attorneys in this State.”
After learning that the respondent had been disbarred by the Missouri Supreme Court, the Disciplinary Administrator docketed a complaint against the respondent. The Disciplinary Administrator wrote to the respondent at the last address provided to the Clerk of the Appellate Courts requesting respondent provide a written response to the docketed complaint; respondent failed to respond to the letter. On November 19, 2008, an investigator for tire Disciplinary Administrator wrote to the respondent, and on December 8, 2008, and July 21, 2009, he called the respondent, leaving telephone messages, requesting a written response to the docketed complaint. Again respondent failed to respond.
A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on July 23,2009. The respondent did not appear. Upon conclusion of the hearing, in its conclusions of law, the panel noted:
“2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup. Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
‘(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by tire Disciplinary Administrator, either by personal service or by certified mail to the address shown on the attorney’s most recent registration, or at his or her last known office address.
‘(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.’
In this case, the Disciplinary Administrator complied with Kan. Sup. Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent’s most recent registration. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.”
Applying Kansas Supreme Court Rule 202 (2009 Kan. Ct. R. Annot. 268) concerning reciprocal discipline, and based on the documents filed in the Missouri disciplinaiy proceeding, the hearing panel concluded that the respondent violated KRPC 8.1(b) (2009 Kan. Ct. R. Annot. 594) (duty to respond to a lawful demand for information from a disciplinary authority), KRPC 8.3(a) (2009 Kan. Ct. R. Annot. 601) (duty to report professional misconduct), Supreme Court Rule 207(b) (2009 Kan. Ct. R. Annot. 303) (duty to cooperate in disciplinaiy investigations/duty to report violations), and Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (duty to respond to complaint).
In its conclusions of law the hearing panel further found:
“6. Last year, in In re Tarantino, [286 Kan. 254,] 182 P.3d 1241 (2008) and In re Harris, [286 Kan. 260, 182 P.3d 1249] (2008), and this year, in In re Patterson, 289 Kan. 131, 209 P.3d 692 (2009), the Kansas Supreme Court addressed what treatment disbarment by default from Missouri will receive in Kansas. In those cases, the Court concluded that the Respondents’ failures to cooperate in the disciplinary proceedings in Missouri and in Kansas established clear and convincing evidence that discipline should be imposed. Specifically, in Tarantino, the Court stated:
‘[I]t has been established by clear and convincing evidence that respondent was disbarred in Missouri for misconduct in failing to file a timely response to the Missouri information and that, by Missouri Supreme Court Rule 5.13, the effect thereof is consent to disbarment by the Missouri Supreme Court. Accordingly, that order of disbarment is valid and satisfies the grounds for reciprocal discipline set forth in Supreme Court Rule 202, which provides that a final adjudication in another jurisdiction that a lawyer has been guilty of misconduct shall conclusively establish the misconduct for purposes of a disciplinary proceeding in Kansas.’ [286 Kan. at 258.]
“7. In Tarantino, Harris, Patterson, and in this case, the Respondents each failed to cooperate or participate in the Missouri disciplinary proceedings and, likewise, failed to cooperate or participate in the Kansas disciplinary proceedings.”
The panel recommended that the respondent be indefinitely suspended from the practice of law in the state of Kansas.
Discussion
In disciplinary proceedings, this court “considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.]” In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003). Any attorney misconduct must be established by clear and convincing evidence. 276 Kan. at 636. Clear and convincing evidence is “evidence that causes the factfinder to believe that ‘the truth of the facts asserted is highly probable/ ” In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 (2008) (quoting In re B.D.-Y., 286 Kan. 686, 697, 187 P.3d 594 [2008]).
The respondent filed no response to the formal complaint, did not appear before the panel’s hearing thereon, and did not appear before this court during our scheduled hearing on the complaint. The record reflects that all requirements of notification were satisfied. The respondent filed no exceptions to the hearing panel’s conclusions; therefore, these violations are deemed admitted under Supreme Court Rule 212(c) (2009 Kan. Ct. R. Annot. 337). 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); Supreme Court Rule 211(b).
We note that the hearing panel correctly found that the information and default judgment in Missouri did not constitute clear and convincing evidence of a violation of Kansas Supreme Court Rules. Although tire 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 Russell E. Tluscik 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) (2009 Kan. Ct. R. Annot. 272).
It Is Further Ordered that the respondent may not apply for reinstatement in this state unless that application is accompanied by proof that the respondent has been reinstated to the practice of law in Missouri.
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and in the event respondent would seek reinstatement, he shall comply with Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376).
It Is Further Ordered that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Miller, J.:
This is an appeal from an order of the district court of Shawnee County, reversing an order of the Board of Tax Appeals of the State of Kansas. The Board found that certain personal property belonging to St. Joseph Hospital of Kansas City, Missouri, (St. Joseph) and warehoused in Kansas was exempt from ad valorem taxation; the district court reversed. St. Joseph appeals. The appellee is the Board of County Commissioners of Johnson County, Kansas.
The only issue on appeal is whether personal property stored in Kansas is exempt from Kansas ad valorem taxation when it is used exclusively for hospital purposes by a Missouri not-for-profit corporation which is authorized to do business as a not-for-profit corporation in Kansas.
The scope of review in an appeal from a decision of an administrative agency is quite limited. In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶¶ 1, 2, 436 P.2d 828 (1968), we stated the rule as follows:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.”
Decisions of the Board of Tax Appeals are subject to the same limited judicial review as are the decisions of other administrative tribunals. Board of Johnson County Comm'rs v. J. A. Peterson Co., 239 Kan. 112, 114, 716 P.2d 188 (1986); T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645, 693 P.2d 1187 (1985).
Whether certain property is exempt from ad valorem taxation is a question of law if the facts are agreed upon. T-Bone Feeders, Inc. v. Martin, 236 Kan. at 645. In this case, there are no factual disputes. St. Joseph Hospital is a Missouri not-for-profit corporation, authorized to do business in Kansas. St. Joseph’s main facility is a hospital located one block east of the Kansas line in Kansas City, Missouri. St. Joseph stores medical supplies, medical equipment, and office furniture at a material management center in Overland Park, Kansas. No wholesale or retail sales are made from the center. The items are merely stored there and are supplied to the hospital on request, and the hospital remains the owner of the supplies, equipment, and furniture at all times. The property is used exclusively for hospital purposes.
St. Joseph applied to the Johnson County Appraiser for an ad valorem tax exemption for the property stored at the material management center and used for hospital purposes at St. Joseph Hospital in Kansas City, Missouri. The county appraiser recommended that the exemption be denied and that a hearing be held before the Board of Tax Appeals. At that hearing, the Johnson County Commissioners opposed the exemption, contending that the statutory exemption applies only to property used by hospitals located in Kansas. The Board of Tax Appeals granted the exemption, and denied a motion for rehearing. The Board of County Commissioners then took an appeal to the district court of Shawnee County. The district court reversed, finding that the statutory exemption applies only to hospitals operating in Kan sas. The court found that the Board of Tax Appeals incorrectly stated and applied the law, and held that the Board’s order was not substantially supported by the evidence because St. Joseph did not clearly show that it was entitled to an exemption. St. Joseph brings this appeal.
The action of the Board of Tax Appeals was clearly within its statutory authority. K.S.A. 1986 Supp. 79-213. Thus, under the limits of review available under the rule stated above, the only remaining questions are whether the Board of Tax Appeals acted fraudulently, arbitrarily, or capriciously, and whether the Board’s order is substantially supported by the evidence.
The rules and legal principles governing Kansas cases in which exemption from ad valorem taxation is claimed were stated by Justice (now Chief Justice) Prager in the T-Bone Feeders case as follows:
“(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. [Citation omitted.]
“(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. [Citations omitted.]
“(3) The burden of establishing exemption from taxation is on the one claiming it. [Citation omitted.]
“(4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those purposes. [Citations omitted.]
“(5) The phrase ‘used exclusively’ in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use. [Citation omitted.]” 236 Kan. at 645-46.
The statutory exemption for hospital property is contained within K.S.A. 1986 Supp. 79-201b:
“The following described property, to the extent herein specified, shall be and is hereby exempt from all property or ad valorem taxes levied under the laws of the state of Kansas:
“First. All real property, and tangible personal property, actually and regularly used exclusively for hospital purposes by a hospital as the same is defined by K.S.A. 65-425, and amendments thereto, . . . which hospital . . . is operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign, not-for-profit corporation.”
K.S.A. 65-425, insofar as pertinent here, states as follows:'
“As used in this act: (a) ‘General hospital’ means an establishment with an organized medical staff of physicians; with permanent facilities that include inpatient beds; and with medical services, including physician services, and continuous registered professional nursing services for not less than twenty-four (24) hours of every day, to provide diagnosis and treatment for four or more nonrelated patients who have a variety of medical conditions.
“ ‘Special hospital’ means an establishment with an organized medical staff of physicians; with permanent facilities that include inpatient beds; and with medical services, including physician services, and continuous registered professional nursing services for not less than twenty-four (24) hours of every day, to provide diagnosis and treatment for four or more nonrelated patients who have specified medical conditions.
“(i) ‘Hospital’ means ‘general hospital’ or ‘special hospital.’ ”
K.S.A. 65-425 is the first section of an act providing for the licensing, inspection, and regulation ofhospitals within the State of Kansas.
St. Joseph is a “hospital” as defined in 65-425. There is no dispute that the property stored in St. Joseph’s material management center is used exclusively for hospital purposes. Finally, there is no dispute that St. Joseph Hospital of Kansas City, Missouri, is a not-for-profit corporation organized under the laws of Missouri and authorized to do business in Kansas as a foreign, not-for-profit corporation.
St. Joseph meets the precise literal requirements of K.S.A. 1986 Supp. 79-201b. The Board of Tax Appeals’ order was substantially supported by the undisputed evidence, and it cannot be said that the Board acted arbitrarily, capriciously, or fraudulently, unless it incorrectly applied the law.
The district court found, in essence, that there was implied in 79-201b an additional requirement: that the hospital must be operating in Kansas in order to qualify for exempt status. The court relied upon State v. Holcomb, 85 Kan. 178, 116 Pac. 251 (1911), and Trustees of Marsh Foundation v. Railway Co., 116 Kan. 175, 225 Pac. 1029 (1924). Holcomb was concerned with the possible exemption of a waterworks plant located wholly in Wyandotte County, Kansas, but owned by the City of Kansas City, Missouri. The applicable constitutional provision and statutes mentioned the exemption of state, county, city, and munic ipal property, but made no mention of property owned by any governmental unit outside of the State of Kansas. We said:
“The legislature, in enacting laws relating to taxation and to exemption from taxation, must be deemed to have understood the extent of its power and to have had in mind our own state and the counties, cities, and school districts within the State for which it was empowered to legislate. [Citations omitted.] It is true that the constitutional provision relating to taxation [Const. art. 11, § 1] does provide that all property used exclusively for ‘municipal’ purposes shall be exempt, but the fact that the provision does not expressly say that the constitution is made for Kansas is not a good basis for an inference that the framers were attempting to regulate and protect the municipalities of other states.” 85 Kan. at 181-82.
While the language of the Holcomb opinion would indicate that the property of a Kansas City, Missouri, hospital would be subject to Kansas taxation, we note that the statutes under which Holcomb was decided do not mention property owned by the municipalities of other states, while the act now before us specifically includes the property of hospitals operated by not-for-profit corporations organized under the laws of another state and duly admitted to engage in business in this state. We also note that the legislature subsequently determined that the Kansas City, Missouri, waterworks located within Kansas should be exempt from Kansas ad valorem taxes. K.S.A. 79-201a Fourteenth; K.S.A. 79-205. By those enactments, the legislature specifically authorized the exemption of property located in Kansas but owned by a Missouri municipal corporation.
Trustees of Marsh Foundation involved the exemption from Kansas inheritance taxes of a bequest to a charitable home and school in Ohio. In finding the bequest taxable, we reviewed the relevant statutory and constitutional provisions and concluded that the exemption from taxation of the property of educational or charitable institutions provided for in the Constitution and statutes refers to educational and charitable institutions of Kansas, and not to those of another state. We said:
“The exemption from taxation of the property of educational or charitable institutions provided for in the constitution and statutes refers to educational and charitable institutions of Kansas and not to those of another state.” 116 Kan. 175, Syl. ¶ 1.
Marsh was decided upon judicial interpretation of § 1 of art. 11 of the Constitution of Kansas, and upon R.S. 1923, 79-1501. Both the Constitution and the statute contain only general language exempting the property of charitable institutions. In con trast, the exemption provided in the present case is based upon the more specific language which clearly exempts property used by hospitals operated by foreign not-for-profit corporations which are authorized to do business as not-for-profit corporations in Kansas. Also, as is the case with the judicial pronouncement in Holcomb, the Marsh doctrine has been discarded by the legislature, and bequests, legacies, devises, or gifts to any charitable organization organized under the law of the United States, any state, the District of Columbia, or any possession of the United States are now exempt from inheritance taxes in Kansas. See K.S.A. 79-1537c, which adopts the description of charitable organizations found in 26 U.S.C. § 170(c) (1982).
There are three factors which weigh in favor of the district court’s decision. First, as this court noted in Marsh, the rationale behind tax exemptions for charitable organizations is that these entities confer some benefit on Kansas residents. Second, as the Holcomb court noted, the legislature’s failure to specifically limit an exemption’s applicability to Kansas organizations does not necessarily mean that the legislature intended to protect out-of-state hospitals. And finally, the legislature’s authority to exempt property from taxation is limited. In Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 42, 542 P.2d 278 (1975), we noted:
“The legislature has the authority to provide that property other than that named in the constitution may be exempt from taxation, but this exemption must have a public purpose and be designed to promote the public welfare.”
While these factors support the district court’s opinion, they do not require its affirmance. First, St. Joseph Hospital does confer a benefit on Kansas residents. The district court found that about 25% of the patients at the hospital are Kansas residents. The hospital is a large metropolitan one, situated only one block from the eastern border of this state, adjacent to the highly populated area in northeast Johnson County. Second, K.S.A. 1986 Supp. 79-201b refers only to K.S.A. 65-425, which defines hospitals in general, but does not include any license or geographic requirements. The legislature could have easily referred to K.S.A. 65-425 et seq., which would have included the Kansas licensing statute, had the legislature intended to limit the tax exemption to Kansas hospitals. We note that the legislature has specifically referred to licensed hospitals in other sections of the Kansas statutes. See K.S.A. 65-442 and K.S.A. 65-450. Third, 79-201b explicitly applies to property of hospitals operated by foreign not-for-profit corporations authorized to do business as such in Kansas. Again, the legislature could have easily limited the exemption to hospitals operating in Kansas. Finally, we note that under K.S.A. 79-1537c, cited above, all bequests, legacies, devises, or gifts made now to out-of-state charitable organizations would be exempt from Kansas inheritance taxes. This is true whether the organization confers a direct benefit upon Kansas citizens or not. There is no question here but that St. Joseph Hospital provides services to and thus confers a direct benefit upon residents of this state.
Giving the statute strict construction, we conclude that there is no requirement that the hospital be operated in Kansas. The order of the Board of Tax Appeals was within the scope of its authority; it is supported by substantial evidence; and the Board’s action is not fraudulent, arbitrary, or capricious. It did not misconstrue or misapply the statute.
Accordingly, the order of the district court is reversed and the order of the Board of Tax Appeals of the State of Kansas, granting the application of St. Joseph Hospital for exemption from ad valorem taxes for the property located at its material management center, 9245 Flint, in Overland Park, Kansas, is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
Except for specifications of error hereafter noted, we are presented with another factual appeal prompted by the de fendant’s dissatisfaction with the verdict of the jury and the judgment for the plaintiff in the sum of $651.28.
The plaintiff sought to recover damages to his automobile resulting from a collision with a cow. The second amended petition alleged the defendant negligently and unlawfully failed to properly fence the area of his farm where his cattle were confined in that the wire was loose and thereby they were able to go through the fence and run at large in violation of G. S. 1949, 47-122 and 47-123; that at numerous times prior to the collision the defendant permitted his cattle to run at large, and on one occasion he had been notified by a state highway patrolman that his cattle were running at large and constituted a hazard upon the highway, and that the defendant failed to exercise due care to restrain his animals in his enclosure.
In his answer the defendant denied he was negligent, and alleged the collision was caused by the plaintiff’s negligence which contributed to and was the proximate cause of the collision, setting out four specific acts of negligence of the plaintiff.
The plaintiff’s reply joined the issues, and the case was tried by a jury. At the close of plaintiff’s evidence, the defendant demurred, which was overruled. Thereafter the defendant introduced his evidence and at the close of all the evidence he made no motion for a directed verdict. In instructing the jury, the court gave 31 instructions concerning all phases of the law of negligence appropriate to the issues raised by the pleadings and to the facts and circumstances established by the evidence of both parties, including the negligence charged to the defendant in the second amended petition and to the plaintiff in the defendant’s answer. The case was submitted to the jury which returned a verdict in favor of the plaintiff, and answered the following special questions:
“1. Was any damage that plaintiff sustained due to any act or omission on the part of defendant, Bud Carson? Answer: Yes.
“2. If you answer Question No. 1 in the affirmative, then state what act Bud Carson did, or what act he failed to do, in restraint of his cow, or maintenance of his fence, that proximately caused the plaintiff’s damage. Answer: Failed to maintain adequate fence when he had knowledge of cows in heat.
“3. Do you find that on the day and night of the collision that defendant’s cow had been confined in an area enclosed by a legal fence, as defined by the Court’s instructions? Answer: Yes.
“4. Was the fence by which the cow was confined on the day and night of the collision in good repair? Answer: Fair.
“5. State the approximate speed of plaintiff’s automobile: (a) At the time he applied his brakes. Answer: 65 to 70 miles per hr. (b) At the time of the collision. Answer: 60 miles per hr.
“6. Do you find that plaintiff was driving at a speed greater than was reasonable and prudent under the conditions existing upon the highway at the time and place of the collision? Answer: No.
“7. Do you find that plaintiff, in the operation of his automobile, failed to exercise ordinary care for his safety which contributed to damages sustained by him? Answer: No.”
Thereafter the defendant filed a motion to set aside the answers to special questions 1, 2, 6 and 7 upon the ground that they were inconsistent with each other; contradictory to the issues of the case; not supported by the evidence, and left the special questions undetermined and unanswered, and moved for a new trial. The motions were considered and overruled, and the court approved the general verdict and answers to the special questions. Hence this appeal.
A résumé of the evidence follows: Retween 10:30 and 11:00 p. m. on September 9, 1956, the plaintiff and his wife were returning to their home in Coffeyville from visiting her parents near Parsons. While driving down the west slope of a hill on U. S. Highway No. 160 between 65 and 70 miles an hour the plaintiff dimmed his lights for an on-coming automobile. Almost immediately he saw the highway was blocked by four or five black and white cows about 60 feet ahead of him. He applied his brakes and swerved to the right and missed the cows in front of him, but collided with the defendant’s cow which came up out of the ditch on the north side of the highway. The collision caused the plaintiff’s car to go into the ditch; the cow was killed and was found near the defendant’s fence north of the highway. The on-coming car stopped, but the driver did not see the cows until he was about twelve feet from them, and they were still on the highway.
The defendant owned 270 acres of land on the north side of the highway where he operated a dairy with about 70 head of Holstein cows, and he leased an additional 130 acres of land. About a quarter of a mile north of the highway he had a dry lot around his silos. The lot was fenced with four wires on cedar posts about eight feet apart. A lane extended from the lot southeasterly about a quarter of a mile to a pond near the highway, which provided the water supply for his cattle. The lane was fenced partly with three wires and partly with four wires, and was in “fairly good shape.” The pond was fenced with three and four wires and was approximately 40 feet north of the north edge of the highway.
At two different times prior to the accident a highway patrolman had driven cows off the highway, and on one occasion had notified Mrs. Carson. The defendant was told of the patrolman’s visit and he claimed the cows belonged to a neighbor, but he never told the patrolman the cows were not his.
The defendant testified that the morning after the accident he found one of his heifers in a pasture west of his farm; that he examined the fence in an effort to find out where the heifers got out; that the fence was all there, there were no wires down or pulled loose from the posts, no gates were open, and he did not find where the cows got out. He further testified that the only way the heifers could get out was to go over the fence or through it; that the fence by the pond was partly three wires and partly four wires; that a three-wire fence was not sufficient to hold heifers in heat if they undertook to jump it; that he did not breed his cows until December, and he surmised the heifers were in heat; that there were cattle across the road, and “that is why I figured that these heifers jumped the fence to get out across the road.”
The defendant’s brother-in-law, who lived across the highway south of the defendant’s farm, testified that the fence along the lane was average and in fairly good shape, and that the three-wire fence around the pond was “just average.” In reply to a question whether the fence was loose enough that a heifer could go through it, he stated it was in average condition and that some cows would go through it and others would not.
The defendant first argues that under the law as stated in Wilson v. Rule, 169 Kan. 296, 219 P. 2d 690, and Abbott v. Howard, 169 Kan. 305, 219 P. 2d 696, the mere fact his cow was loose on the highway and the plaintiff collided with it was not sufficient to convict him of negligence; that in order to make a prima facie case the plaintiff was required to prove the cow was loose upon the highway because he failed to exercise due care to keep it confined under all the facts and circumstances; that there was no evidence of any negligence on his part which would justify a jury finding that he failed to exercise reasonable precaution to secure his cows, and that where, as here, ordinary faim animals escape from their enclosure without fault or negligence of the owner they are not regarded as running at large, and contends it was error to give instructions 19 and 21, which we quote:
“19. Another section of the Statutes of this State, applicable in this case, reads as follows: ‘47-122. That it shall be unlawful for any neat cattle, horses, mules, asses, swine or sheep, to run at large. 47-123. That any person whose animals shall run at large, in violation of the provisions of section 47-122 of this act, shall be liable to the person injured for all damages resulting therefrom, and the person so damaged shall have a lien on said animals for the amount of such damages.’
“21. As used in the Statute, ‘running at large’ is the strolling, without restraint or confinement, as wandering, roving and rambling at will without restraint. Suffering or permitting an animal to go at large implies knowledge, consent, or willingness on the part of the owner, or such negligent conduct as is equivalent thereto; but does not comprehend a case where animals escape from their owner, after due precaution to secure them has been taken, and without fault or negligence on his part, and he makes immediate and suitable efforts to recover them.”
The contention is not well taken. A simple fact of the case was that the defendant’s cow was unattended upon the highway. Under the rule announced in Wilson v. Rule, supra, and Abbott v. Howard, supra, the defendant was required to use reasonable precaution to confine his cows, but absolute security was not required. In framing its instructions, the court correctly applied that rule, and advised the jury in instruction 23 that if, on the night in question, the defendant confined his cow in an enclosure of such kind and character as would ordinarily be expected to be adequate to confine ordinary farm animals, and she escaped therefrom without his fault, she would not be considered running at large and he would not be liable. The term “running at large” means something more than being merely unattended (Wilson v. Rule, supra), and the court correctly advised the jury the meaning of that term in law in instruction 21, carefully pointing out, however, that the term did not include situations where' animals escape from their owner after due precaution to secure them has been taken and without fault or negligence on his part. On tie other hand, where the owner of ordinary farm animals fails to use reasonable precaution to confine his animals and they escape, they are not only unattended but they are running at large in violation of G. S. 1949, 47-122. Under the pleadings, the pivotal question was whether the defendant was guilty of negligence in permitting his ow to be upon the highway, and evidence was introduced by both parties upon that issue. The court had a duty to instruct the jury of the defendant’s statutory liability in the event it found from the evidence that he failed to exercise reasonable precaution to confine his cow and it escaped upon the highway and caused damage to the plaintiff. The court fully and fairly presented the case to the jury and we perceive no error in the giving of instructions 19 and 21.
The defendant next argues the district court erred in failing to sustain his motion to set aside answers to special questions 1, 2, 6 and 7, and directs his principal argument to answers to 1 and 2 finding the defendant guilty of negligence in that he “failed to maintain adequate fence when he had knowledge of the cows in heat.” Argument in support of the contention is twofold. First, that the court’s instruction 20 defined a legal fence (G. S. 1949, 29-105) and since the answers to special questions 3 and 4 found the defendant’s cows had been confined in an area enclosed by a legal fence in fair repair, no possible negligence could be attributed to him as a matter of law or fact, and the judgment should be reversed. Second, that there was no evidence to support the answers to the afore-mentioned questions.
We think the defendant misconstrues the effect of the answers to special question 3. The fact that the defendant had a three-wire legal fence does not, of itself, relieve him of negligence in failing to confine his cows. Special finding 4 was that his fence was only fair. The essential question was whether the defendant used reasonable precaution in confining his cows (Wilson v. Rule, supra), which was answered in the negative. Assuming, arguendo, that his fence met the minimum legal requirements but was of such kind and character as not to be practical to confine his livestock, or if more than a legal fence was required as a reasonable precaution to confine his animals, such a finding would not be inconsistent with the general verdict and would not entitle the defendant to a new trial.
On the second point, the defendant strenuously argues there was no evidence that he was guilty of negligence and contends the plaintiff was guilty of contributory negligence as a matter of law. We are not persuaded. Each party charged the other with negligence which caused the collision. It is unnecessary to reiterate the evidence. The court correctly stated the law pertaining to the duty of persons driving automobiles upon a highway, and of owners in restraining ordinary farm animals within their enclosure, and properly instructed the jury that if it found the collision to be the result of plaintiff’s negligence he could not recover, and that if it found the defendant was guilty of negligence in failing to take reasonable precaution to confine his cows he was liable to the plaintiff for damages he sustained. Whether the defendant was negligent, or whether the plaintiff was driving at a speed greater than was reasonable and prudent under the circumstances, or whether he failed to exercise ordinary care for his own safety, were all questions of fact upon which the minds of reasonable men might differ and this court cannot say the evidence, together with all logical and reasonable inferences to be drawn therefrom, was insufficient to warrant the jury in finding the defendant guilty of negligence, or to say as a matter of law that the plaintiff was guilty of contributory negligence barring his recovery.
The defendant next contends judgment should be entered for him upon the jury’s answers to all the special questions, and cites and relies upon Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295. The point is not well taken. It is unnecessary to analyze that decision or discuss its inapplicability to the instant case except to say that there a judgment for the plaintiff was reversed for the reason that the special findings clearly established the plaintiff’s negligence which continued up to the time of the accident. In the instant case, the special findings established the defendant’s negligence and freed the plaintiff of contributory negligence, and they were supported by substantial evidence. Likewise, they were not inconsistent with nor contrary to each other, and all supported the general verdict for the plaintiff.
The defendant further argues the district court erred in overruling his demurrer to the plaintiff’s evidence and in refusing to give requested instructions 1 and 4. Each point has been carefully considered and neither requires an extended discussion. When the defendant failed to move for a directed verdict at the close of all the evidence he waived his right to contend the plaintiff’s evidence was not sufficient to warrant its submission to the jury (Morris v. Musick, No. 41,978, 188 Kan. 197, 362 P. 2d 68, this day decided, and cases cited therein).
Requested instruction 1 dealt with the defendant’s liability for injury or damage caused by his animals while running at large. That subject was fully covered by the court’s instruction 23. Requested instruction 4 dealt with an “unavoidable accident,” and under the evidence presented the court properly denied the request. In the recent case of Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055, many of our decisions on this point were reviewed and the reader is referred to that opinion for a full discussion of the subject.
All points raised by the defendant have been carefully considered and no reversible error was committed. The judgment of the district court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s judgment wherein appellant’s motion for new trial was overruled, where he was sentenced under G. S. 1949, 21-1102 on one count of a misdemeanor prosecution to imprisonment in the Sedgwick county jail for thirty days and assessed a fine of $200.00, and was further sentenced on a second count to a like imprisonment and fine under the same statute, the sentences to run consecutively and not concurrently, and to pay the costs of the action.
The verified information and warrant issued, upon which appellant was arrested and tried before a jury, after stating the date of December 21, 1959, in substance, alleged in count one that appellant unlawfully and willfully for money did sell, lend, offer, show and exhibit and had in his possession with the intent so to do, as well as to distribute, or to cause to be distributed, 30,000 indecent and obscene pictures, prints, drawings, etc., printed by photographic processes onto strips of photographic film so that when light passed through the film, with intermittent interruptions by a shutter, the pictures cast images on a light-reflecting surface, and human beings were portrayed performing acts of sexual intercourse in an obscene and indecent fashion. The same charge was alleged in a second count but the number of pictures involved was 40,000. The wording of the information followed substantially that of the statute (G. S. 1949, 21-1102) and such wording has many times been held by this court to be sufficient. (State v. Lytle, 177 Kan. 408, 410, 411, 280 P. 2d 924; State v. McGaugh, 180 Kan. 850, 308 P. 2d 85; Gray v. Hand, 186 Kan. 668, 352 P. 2d 3.) This rule was applied especially to misdemeanors in State v. Thomas, 177 Kan. 230, 231, 277 P. 2d 577. Therefore, the defendant’s first contention of error — that the trial court erred in overruling his motion to quash the information because it did not sufficiently inform him of the charges so he could properly prepare his defense — is not good.
In regard to his second specification of error, defendant states that if his motion to quash was good, his motion to require the state to elect which count it was relying on for prosecution of the defendant was likewise good. This may be correct, but be that as it may, we think the two counts are so close in time and relation to each other that an election of one count could not have been required without absolutely defeating the other and excluding any prosecution thereon. (State v. Neff, 169 Kan. 116, 218 P. 2d 248.) The trial court correctly overruled the motion to elect.
Defendant argues the trial court erred by not allowing defendant to make an opening statement immediately after the state’s opening statement but since this point was neither designated in the motion for new trial nor included in the specifications of error, we shall not discuss it. (State v. Morrow, 186 Kan. 342, 349 P. 2d 945.)
The complaint about having been delayed in making his opening statement may just have been preliminary to defendant’s third specification of error regarding the fact that the trial court disallowed defense evidence which was offered to establish entrapment. After the state had offered its evidence in support of the prosecution, defendant was allowed to make an opening statement. This was proper procedure in a criminal trial. (G. S. 1949, 62-1438, First, Second.)
Did the trial court err in refusing to admit testimony of defense witnesses — Tucker, Winters, and Stewart — which defendant proffered claiming it to be evidence of entrapment at least sufficient to justify an instruction thereon?
Tucker, an agent for defendant in posting bonds and bail in criminal cases in Sedgwick county, including the court of common pleas, about December 21, 1959, had a conversation with the marshal of the court of common pleas, who stated that if defendant had the film the marshal’s boys were to go get him, but if Tucker had the film, then they were to “forget it.”
Later, in the courthouse hallway, the marshal asked Tucker why he did not leave the defendant and “tie up with” Don Morris because he, the marshal, was going to get a warrant for defendant for concealing mortgaged property. While this conversation was taking place, defendant came into the courthouse hallway. Tucker told the marshal to tell the defendant his troubles and, as Tucker walked away, he heard the marshal tell the defendant that he was going to get him and nail him to the cross.
The second proffered witness, Winters, testified that after defendant’s arrest, he had a conversation with Hodge, an employee of Midwest Plastic Corporation, who was a witness for the state; that Hodge had made the statement to him that he only liked to get people on misdemeanor charges “where there could not be after effects on it.” Hodge also stated that is soon as he had eliminated defendant, Morris would be eliminated and Hodge would then be appointed bondsman for the court of common pleas and the marshal’s office.
Stewart’s testimony showed a connection between -Ray Bartholomew, another state’s witness, and the marshal’s office, and that Mrs. Bartholomew had made threatening phone call's to Mrs. Stewart to the effect that the witness would be “framed up” if he did not watch his step.
Defendant argues that he was deprived of the defense of entrapment by reason of the exclusion of the testimony of the three above witnesses because their testimony made clear that the marshal of the court of common pleas and Hodge, the state’s principal witness, were both trying to put the defendant out of the bonding business.
While this claim of error was not particularly pointed out in the motion for néw trial (State v. Morrow, supra), we have set out the substance of the proffer of testimony because of a later question related thereto. The proffered testimony would have to be connected with the charge herein filed before the rejection of it was improper and it would be stretching the evidence offered by the three witnesses to say that disposing of mortgaged property was remotely similar to the charges in counts one and two of the information whereby an entrapment could have been established as a defense. See State v. Crowder, 41 Kan. 101, 21 Pac. 208. The same is also applicable to the instructions. The trial court did not err in denying a requested instruction thereon and in failing to give one of its own. (State v. Moore, 77 Kan. 736, 95 Pac. 409; State v. Driscoll, 119 Kan. 473, 476, 239 Pac. 1105.)
We have checked authorities cited by defendant in support of his theory on entrapment, but they are either distinguishable from our present case or do not support defendant’s theory, and discussion of them is, therefore, unnecessary: In connection therewith, see State v. Herschberger, 160 Kan. 514, 163 P. 2d 407; State, ex rel., v. Leopold, 172 Kan. 371, 240 P. 2d 138; State v. Visco, 183 Kan. 562, 331 P. 2d 318.
The remaining contentions of error do not merit particular attention because the record shows that defendant either fails to establish abuse of judicial discretion in the rulings made by the trial court in regard to admissibility of evidence, or fails to make a proper and timely showing that his substantial rights were prejudiced thereby. • ' ■
Since defendant had the burden of showing affirmatively that his substantial rights had been prejudicially affected by the rulings of the trial court, his failure so to do means that the judgment of the trial court will not be disturbed.
Judgment affirmed.'
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The opinion of the court was delivered by
Jackson, J.:
The appellant brought an action in the court below against the named appellees on a statutory materialmen’s bond issued by the Travelers Indemnity Company to cover the building or construction work by the Jenson company on a school building at Halstead. The pertinent statutes are found in G. S. 1949, 60-1413 and 60-1414. This action was not brought until more than six months had elapsed from the completion of the building. The trial court held the action could not be maintained, and the plaintiff has appealed.
A default judgment was entered against the Jenson Construction Company for the amount claimed, and there is no cross appeal from such judgment. This judgment is not involved in the present appeal in any way.
The trial as to the liability of Travelers was to the court without a jury and the trial court made findings of fact and conclusions of law. Since plaintiff agrees that the findings of fact cannot be challenged and appeals only from the court’s conclusions of law, we shall set out the findings and conclusions below in an abbreviated form in which they are shown in the abstract:
“Findings of Fact
“No. 3. On March 14, 1956, the Board of Education, School District No. 52, Halstead, Kansas, entered into a contract with defendant Albert Jenson Construction Company, Inc., for the construction of an elementary school building. This contract required the Construction Company to furnish the Board a materialman’s bond. (Plaintiff’s exhibit 2, 3, 4). This bond was furnished by defendant Travelers Indemnity Company (Plaintiff’s exhibit 5).
“No. 4. The bond furnished by the defendant, Travelers Indemnity Company, was not filed with and approved by the Clerk of the District Court of Harvey County, Kansas.
“No. 5. On March 24, 1956, plaintiff furnished some materials which were used in the construction of the school building (Paragraphs 3 and 5 of plaintiff’ s third amended petition, both of which are admitted).
“No. 9. All of the work required by the original contract was finished on or before May 7,1957 (Deposition 10, 37).
“10. On July 8, 1957, the Board paid the last money due the Construction Company for the construction of the building (Defendant’s exhibits A and B).
“15. This action was filed on January 13, 1958.
“16. Heretofore, on the 9th day of February, 1959, the plaintiff was given judgment by the District Court of Sedgwick County, Kansas, against the Jenson Construction Company, Inc., in the amount of $1,600.00 with interest thereon at the rate of 6% per annum from February 9, 1959.”
“Conclusions of Law
“1. The materialman’s bond (Plaintiff’s Exhibit 5) furnished by defendant Travelers Indemnity Company is a statutory materialman’s bond governed by the provisions of G. S. 60-1413 and G. S. 60-1414.
“2. The obligation of this statutory bond was complete and binding when it was executed and delivered regardless of whether it was filed with or approved by the Clerk.
“3. This building was completed within the meaning of G. S. 60-1414 on or about April 29, 1957, and in any event, the building was so completed on or before May 7,' 1957.
“7. This building was completed, as a matter of law, on May 7, 1957, when the architect approved defendant Jenson Construction Company’s final estimate.
“8. This action was filed more than six months after the public building was completed.
“9. Defendant Travelers Indemnity Company should have judgment against plaintiff for its costs herein.”
First, the defendants challenge plaintiff’s right to be heard in this appeal. Apparently, as we understand the argument, defendants, not without cause, argue that plaintiff has appealed only from the order overruling the motion for a new trial; that such motion was not necessary to effect the appeal from the conclusions of law of the court, and that therefore plaintiff has no right to be heard on the judgment and the law therein involved. We have studied the plaintiff’s notice of appeal and, while it is no work of art, we are of the opinion that it can be construed to contain an appeal from the judgment as well as the order on the motion for new trial. This disposes of this objection.
We now turn to the plaintiff’s argument on this appeal. It is argued that because the bond here involved was not filed with and approved by the clerk of the district court, as provided in G. S. 1949, 60-1414, the six months limitation set out in the section of the statute does not apply, and plaintiff may sue on the bond as a “common law bond” and bring the action within five years. Plaintiff relies upon the case of Road Supply & Metal Co. v. Casualty & Surety Co., 121 Kan. 299, 246 Pac. 503, to support the above argument. True, this court there held that where a performance bond containing provisions therein for the benefit of materialmen and laborers had been taken but not filed with the clerk of the court, a materialman might sue thereon as third party beneficiary. We have no doubt that plaintiff might have sued upon the bond in the case at bar had the action been brought within time, but there is nothing in the opinion in the above case referring to the time for bringing the action. We have examined the briefs in the state library and find nothing about that question therein. We can only assume that the case was brought within ample time.
Our attention has been directed to Evans v. Watson, 8 Kan. App. 144, 55 Pac. 17, and to Griffith v. Stacker, 91 Kan. 47, 136 Pac. 937. In both of those cases, it was held that materialmen or workmen could sue on the bonds therein although the bonds had not been filed with the clerk of the court. In the Griffith case it may be noticed that the court said the bond had been given in contemplation of the materialmen’s statute involved and was for the benefit of plaintiffs and was complete when delivered to the city. There is nothing in either case dealing with the question of when the plaintiff must bring his action. In the Griffith case, it does appear that the bond was not given until some of the work on certain streets had been completed but before it had been accepted by the city. It also appears on page 53 of Griffith v. Stucker, supra, that plaintiff was originally sued on a statutory bond which was barred by limitations. A fortiori, there was no question of limitations in the bond now sued upon. The above cases do not help plaintiff since they do not treat of the question in this case.
While we have no case absolutely in point, the above mentioned cases do point to a solution of the case at bar. The bond sued upon is in every way a statutory bond designed to satisfy the provisions of sections 60-1413 and 60-1414. The bond carries the title “statutory bond” and also the admonishment: “To be filed with the clerk of the district court.” In the opinion in Griffith v. Stucker, supra, a much less adequately worded bond was said to be a statutory bond, and was further said to be complete when it was executed and delivered.
Plaintiff would put the burden of filing upon the bonding company which no longer had possession of the bond. The statute requires the public official to “take a bond.” The bonding company did advise the holder of the bond that it should be filed. Actually, under the statute, if no bond be filed, it will be the public officials who suffer inconvenience and embarrassment Clearly, a diligent materialman may file his mechanic’s lien against the public improvement which he has helped to build, if no bond is filed with the clerk of the court (Comm'rs of Jewell Co. v. Manufacturing Co., 52 Kan. 253, 34 Pac. 741; and G. S. 1949, 60-1414), and further on learning of the bond, he may sue on the bond, if he bring his action within time.
If the bond is given in contemplation of the statute — as this bond no doubt was — and is in force from the time of its execution and delivery, the six months limitation provided in the statute for actions on the bond must apply.
This was the decision of the Supreme Court of Texas in a somewhat similar case found in Indemnity Ins. Co. v. South Texas Lumber Co., (Tex.) 29 S. W. 2d 1009. It is true the Texas statute did not provide for a filing of the bond. But it was argued by the plaintiff in the case that the wording of the bond did not comply with the pertinent statute and that it was in effect a common law bond and subject only to the general statutes of limitation. The supreme court said in effect that the bond was given in contemplation of the statute, and while the plaintiff was clearly a beneficiary and able to sue on the bond, the special limitation of the public improvement statute applied regardless of how the plaintiff chose to characterize the nature of the bond. The cases of Iron Works v. Surety Co., 102 Kan. 699, 171 Pac. 612; and Cavanaugh v. Globe Indemnity Co., 141 Kan. 774, 44 P. 2d 216, while not directly in point, further fortify the above conclusions.
All other matters contained in the briefs have been fully considered but require no comment herein.
In our opinion, the learned trial judge was right in his conclusions of law, and the judgment must be affirmed. It is so ordered.
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Rosen, J.:
This case is before us on remand from the United States Supreme Court for further proceedings not inconsistent with its opinion in Kansas v. Ventris, 556 U.S. 586, 173 L. Ed. 2d 801, 129 S. Ct. 1841 (2009).
The factual and procedural details of the case are fully set out in our opinion in State v. Ventris, 285 Kan. 595, 176 P.3d 920 (2008), and will not be restated here. We reversed Ventris’ convictions of aggravated robbery and aggravated burglaiy and remanded for a new trial, holding that the trial court committed reversible error when it admitted for impeachment purposes incriminating statements obtained from Ventris by a jailhouse informant surrep titiously planted by the State in Ventris’ jail cell in violation of Ventris’ Sixth Amendment right to counsel. The United States Supreme Court reversed and remanded in Kansas v. Ventris. Hence, this case is again before us. In accordance with the decision of the United States Supreme Court, we vacate our judgment reversing Ventris’ convictions.
In his appeal, Ventris raised two other issues: (1) the admission of evidence of prior misconduct in violation of K.S.A. 60-455; and (2) the imposition of an enhanced sentence on the basis of prior convictions not proved to a jury beyond a reasonable doubt. See State v. Ventris, 285 Kan. at 596. We did not fully address those issues because we had reversed Ventris’ convictions and remanded the case for a new trial. We must now address these two unresolved matters.
Admission of other crimes evidence
The district court had allowed Ventris’ girlfriend and accomplice, Rhonda Theel, to testify that Ventris had forcibly strip-searched her approximately 1 month before the events at issue in the case. Ventris objected, arguing that the evidence was inadmissible under K.S.A. 60-455. The district court disagreed, allowing the evidence independent of K.S.A. 60-455 under the concept of res gestae. 285 Kan. at 610.
In our original opinion, we addressed this issue on a limited basis, in order to provide guidance in the event the issue arose again on retrial. 285 Kan. at 608. We noted that after Ventris’ trial, our decision in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006), ended the practice of admitting evidence of other crimes or civil wrongs independently of K.S.A. 60-455. Ventris, 285 Kan. at 610. Thus, res gestae is no longer a valid independent legal basis for admitting evidence. Ventris, 285 Kan. at 610. However, because Ventris was entitled to a new trial on other grounds, it was unnecessary to determine whether the erroneous admission of other crimes evidence required reversal. 285 Kan. at 610.
In reviewing a claim concerning the erroneous admission of other crimes evidence, the appellate court must first determine whether the evidence would have been admissible if the district court had correcdy applied the K.S.A. 60-455 three-part test of admissibility set out in Gunby. State v. Vasquez, 287 Kan. 40, 52, 194 P.3d 563 (2008). Under this test, the court must examine whether the evidence is relevant to prove a material fact; whether that material fact is disputed; and whether the probative value of the evidence outweighs the potential for undue prejudice. See State v. Reid, 286 Kan. 494, 503, 186 P.3d 713 (2008).
The first question, then, is whether the evidence in question was relevant to prove a material fact. “[T]he concept of relevance under Kansas law includes both whether evidence is probative and whether it is material.” Vasquez, 287 Kan. at 50. To be material, the fact proved must be significant under the substantive law of the case. Vasquez, 287 Kan. at 50. K.S.A. 60-455 lists several examples of facts that are per se material, e.g., motive, intent, opportunity, knowledge. Reid, 286 Kan. at 507.
The State has argued that the strip-search incident was relevant because it was an example of the strange, unpredictable and “scary” things Ventris did during the course of their relationship that caused Theel to be afraid of him. This fear was what caused her to purchase a new gun for herself after Ventris took her .38 caliber revolver. The .38 caliber revolver was the gun used to kill Hicks.
Although Ventris’ possession of Theel’s .38 caliber revolver may arguably be a material fact, that is not the fact the strip-search evidence purports to prove. Instead, that evidence was purportedly probative of the fact that Theel was afraid of Ventris. Theel being in fear of Ventris does not tend to provp any element of the crimes charged. The State had to prove that yentris entered Hicks’ house without permission for the purpose of committing another felony, that Ventris took property from Hicks using force while armed with a dangerous weapon, and that Ventris killed Hicks in the course of robbing him. It also does not tend tp prove, nor does the State argue it proves, any of the per se material facts listed in K.S.A. 60-455, such as motive, intent, or knowledge.
Even if Theel’s fear of Ventris was a material fact, the evidence that Ventris strip-searched Theel fails the sepond step of the analysis, i.e., whether the fact was in issue at trial. The relationship between Theel and Ventris was npt disputed. More importantly, Theel did not testify that she was following Ventris’ orders when she went to Hicks’ house, so the State did not need to demonstrate that Ventris dominated or scared Theel. Thus, the evidence does not establish any material fact in dispute and, therefore, it would not have been admissible under K.S.A. 60-455. Accordingly, we hold the district court erred by admitting the evidence.
The erroneous admission of K.S.A. 60-455 evidence does not automatically require reversal, “[T]he admission of K.S.A. 60-455 evidence without the explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, or prophylactic limiting instruction is not inevitably so prejudicial as to require automatic reversal. On the contrary it may be harmless.” Gunby, 282 Kan. at 57. Therefore, we must determine whether the admission of the strip-search evidence was harmless error under K.S.A. 60-261, which provides that error in the admission of evidence is not “ground for granting a new trial or for setting aside a verdict . . . unless refusal to take such action appears to the court inconsistent with substantial justice.” K.S.A. 60-261; State v. Boggs, 287 Kan. 298, 318, 197 P.3d 441 (2008).
The Court of Appeals determined the admission of the strip-search evidence was harmless error, noting that “[t]here was abundant testimony to prove the charges against Ventris over and above the testimony about the disrobing incident.” Ventris, slip op. at 7. We agree. First, the jury’s acquittal of Ventris of the felony murder of Hicks indicates that it did not fully believe Theel’s testimony. Second, Ventris’ own testimony placed him inside Hicks’ house wrestling with Hicks. That evidence was far more damaging than Theel’s allegations about the strip-search. And last, as the panel found, the circumstantial evidence refuted Ventris’ “along-for-the-ride” defense:
“This included the fact that Ventris had not slept for 2 days and had been doing drugs with Theel, who had heard that Hicks carried a lot of cash. Ventris never once questioned Theel about the strange arrangements she was making in preparation for going over to Hicks’ residence i.e. the indirect route and asking someone else to drive there. Unquestionably, he went along voluntarily. By his own words, he later aided in Theel’s escape. In addition, both Theel and Ventris stated the reason they went to Hicks’ residence was to talk to him about child abuse allegations against him. It seems strange, if not veiy unusual, that two people with innocent motives would go to the house of a stranger for such purposes. There is also the fact Holt saw Ventris pull a ski mask over his face before entering Hicks’ residence.” Ventris, slip op. at 7.
For these reasons we conclude that the erroneous admission of the other crimes evidence was harmless error.
Sentencing issue
The last issue to be resolved is Ventris’ argument that the use of his prior convictions in calculating his criminal history score without charging them in the complaint and proving them to a jury beyond a reasonable doubt violated his right to trial by jury under the Sixth and Fourteenth Amendment to the United States Constitution. Ventris acknowledges that this issue has already been decided adversely to him in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002), but asserts it to preserve it for federal review. As we noted recently in State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009), Ivory remains good law. We affirm Ventris’ sentences.
In conclusion, in accordance with the judgment of the Supreme Court of the United States, we vacate that part of our opinion in State v. Ventris in which we reversed Ventris’ convictions and remanded the case for a new trial. The decision of the Court of Appeals affirming Ventris’ convictions and sentences is affirmed.
Davis, C.J., and Johnson, J., not participating.
McAnany, J., and Larson, S.J., assigned.
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The opinion of the court was delivered by
Johnson, J.:
The State appeals the district court’s dismissal of its petition filed against Randy Spom, pursuant to K.S.A. 59-29a01 et seq., the Sexually Violent Predator Act (SVPA). The State claims that the district court misinterpreted the SVPA and erred in finding that the issue of whether Spom was a sexually violent predator was res judicata. On the facts of this case, we affirm the dismissal.
In 1999, Spom was sentenced to prison for his convictions of aggravated criminal sodomy, aggravated indecent liberties with a child, and indecent solicitation of a child in Case No. 96 CR 739. In August 2005, Spom reached his prison release date but was detained further because the Kansas Attorney General (AG) commenced proceedings to have Spom committed as a sexually violent predator under the SVPA. That case was designated Case No. 05 PR 0795. However, in May 2006, a juiy found in favor of Spom, i. e., that Spom was not a sexually violent predator under the SVPA. Accordingly, the SVPA proceeding was terminated, and Spom was released from prison for postrelease supervision.
The following year, in April 2007, Spom violated certain conditions of his postrelease supervision, ostensibly viewing pornography and sexually explicit websites on his computer. After Spom was returned to prison, the AG once again began the procedure for committing Spom as a sexually violent predator, filing a SVPA petition, with the multidisciplinary team report attached, in July 2007. The assigned district court case number was 07 PR 0716. On July 18, 2007, Judge Clark V. Owens II apparently made the requisite probable cause finding to send Spom to the Lamed State Security Hospital for evaluation. Interestingly, the body of the journal entry in the record on appeal misidentifies the respondent as another individual. However, Spom’s attorney signed the journal entry and raises no issue about that discrepancy.
The matter was originally set for trial on September 10, 2007, before Judge Gregory L. Waller. Prior to that trial date, Spom filed a motion to dismiss, claiming the matter had previously been litigated in his favor in Case No. 05 PR 0795 and a retrial was barred by res judicata. In the alternative, Spom requested an order in limine precluding the State from introducing the same evidence or relitigating the same issues that were decided in the prior jury trial. The trial date was continued, as was a scheduled hearing on Spom’s motion. Ultimately, the motion hearing was conducted by Judge Terry L. Pullman on September 28, 2007.
Judge Pullman reviewed the definition of a sexually violent predator, contained in K.S.A. 59-29a02(a), noting that it must be a “person who’s been convicted of or charged with a sexually violent offense.” The court further noted that the first SVPA action in 2005 had relied upon the convictions in 96 CR 739 to meet the definition of sexually violent predator but that action had resulted in a jury verdict that Spom was not a sexually violent predator. The court then reviewed the petitions which had been filed in the 2005 and the 2007 cases, finding them “almost identical with veiy few differences.” One of the differences was an allegation in the 2007 petition that Spom’s mental abnormality was pedophilia, in contrast to the 2005 petition’s allegation of paraphilia, which the State had identified as a typographical error in the 2007 petition. However, the court found that the 2007 petition did not allege that Spom had been convicted of or charged with a sexually violent crime after the favorable adjudication of the 2005 case. Therefore, the court opined:
“The request in both cases, the petition in both cases were to determine whether or not Mr. Spom met the criteria of a sexually violent predator and ultimately seeking to have him committed accordingly if in fact he did meet the criteria of a sexually violent predator. I’m going to find that the 05 PR 795 case was an adjudication on the merits of that issue and that issue, notwithstanding the allegations of internet surfing and accéssing pornographic material, while it might be a violation of probation, is not a conviction nor a charge of a new crime under the statute I’ve cited. I’m going to find res judicata applies.”
Judge Pullman dismissed the case and ordered Spom released from custody. Subsequently, the judge signed a written order of dismissal that was filed October 10, 2007, which contained the following finding:
“4. There is an identity in 05PR0795 and 07PR0716 in that they are the (1) the same parties, (2) the same cause of action, (3) the same things are sued for, (4) the same quality of person against whom the claim is made; and therefore the principles of ‘Res Judicata’ apply in this case.”
The State filed a timely notice of appeal. The case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c). The State raises two issues on appeal. First, it contends that under the SVPA the sole predicate to fifing a petition seeking sexually violent predator status is the respondent’s pending release from confinement. Second, the State argues that res judicata’s identical cause of action element was not met, because a person’s mental status can change and the subsequent petition sought determination of Spom’s then current mental status in 2007.
PREREQUISITE FOR CAUSE OF ACTION
The State argues that it is K.S.A. 59-29a03(a) which “sets forth the circumstances that trigger the operation of the [SVPA].” The parties agree that we have an unlimited review over this issue. “The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the trial court’s interpretation.” LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
K.S.A. 59-29a03(a)(l) provides, in relevant part:
“(a) When it appears that a person may meet the criteria of a sexually violent predator as defined in K.S.A. 59-29a02 and amendments thereto, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in subsection (d), 90 days prior to:
(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense, except that in the case of persons who are returned to prison for no more than 90 days as a result of revocation of post-release supervision, written notice shall be given as soon as practicable following the person s readmission to prison.”
The State notes that the provision explicitly recognizes that the AG can seek determination of sexually violent predator status for eligible inmates whose postrelease supervision has been revoked for even less than 90 days. It contends that the district court’s finding that the revocation must have been due to a new charge or conviction for a subsequent sexually violent offense is refuted by the absence of any language to that effect in K.S.A. 59-29a03(a)(l).
Rather, the State interprets the statute to mean that, for a person in Spom’s circumstances, “[a]ny revocation that led to re-incarceration and, consequent re-release from confinement, clearly sets into motion the Attorney General’s ability to file the [subsequent SVPA] petition.” According to the State, it is the impending release from prison which creates a cause of action under the SWA. For support, the State points to In re Care & Treatment of Johnson, 32 Kan. App. 2d 525, 532, 85 P.3d 1252, rev. denied 278 Kan. 845 (2004), which stated that “[t]he authority to initiate a sexually violent predator commitment proceeding is based on the imminent release of any person ‘serving a sentence or term of confinement.’ ”
However, Johnson was addressing the timing of the initiation of a sexually violent predator action, rather than the accrual of separate causes of action. The opinion reviewed the Kansas Sentencing Guidelines Act and opined that postrelease supervision “is a component of the underlying prison sentence.” 32 Kan. App. 2d at 532. Accordingly, Johnson found that when a person is returned to prison for a postrelease supervision violation, he or she is in custody “serving a sentence or term of confinement” as required by the definition of “[ajgency with jurisdiction” under K.S.A. 2000 Supp. 59-29a02(f). 32 Kan. App. 2d at 532. Thus, the opinion suggests that a SVPA action may be commenced at any time that a respondent is serving any part of the “complete sentence” which “includes the prison sentence, the maximum good time credit allowance and a period of postrelease supervision.” 32 Kan. App. 2d at 532. It does not hold that while a respondent is serving that one complete sentence, he or she is subject to multiple prosecutions for separate and distinct causes of action, simply because there were separate terms of confinement. Even K.S.A. 59-29a03(a)(l), upon which the State relies, utilizes the term, “total confinement,” suggesting but one procedure per complete sentence.
In its brief, the State appears to recognize that its position creates the successive litigation risk which the principle of res judicata is designed to prevent. It states: “One may question whether this leaves the door open to the limitless filing of petitions each time a sexually violent offender has his parole revoked for even minor or non-sexual violations.” Interestingly, the State then suggests that such a flaw is overcome by the requirement that the petition “must still contain sufficient information to withstand a motion to dismiss based upon res judicata or claim preclusion.” That statement contradicts the State’s own argument under this issue. If the State is correct in arguing that, under K.S.A. 59-29a03(a)(l), impending release from prison triggers the right to file a new SVPA petition, then the 2007 petition represented a new cause of action. Consequently, a motion to dismiss based on res judicata grounds would be ineffectual to close the door on limitless filings of SVPA petitions. See Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002) (elements of res judicata require identity in cause of action).
Nevertheless, the State’s argument attempts to expand upon the significance of the notice provision in K.S.A. 59-29a03(a)(l), while ignoring the first sentence: “When it appears that a person may meet the criteria of a sexually violent predator as defined in K.S.A. 59-29a02 and amendments thereto.” The principal prerequisite for a SVPA cause of action is that the respondent must fall within the criteria set forth in the definitions in K.S.A. 59-29a02. The notice provisions of K.S.A. 59-29a03(a)(l) simply govern when the commitment procedure may be commenced. Moreover, the legislature cautioned against ascribing too much importance to K.S.A. 59-29a03 by reciting that its provisions “are not jurisdictional” and that noncompliance “in no way prevents the attorney general from proceeding against a person otherwise subject to the provision of K.S.A. 59-29a01 etseq.” K.S.A. 59-29a03(f). If compliance with the provisions of K.S.A. 59-29a03 is not necessary for a SVPA action, then those provisions cannot “trigger” the right to file a SVPA petition.
RES JUDICATA
The State also argues that the district court erred in applying the doctrine of res judicata. The applicability of res judicata or collateral estoppel is a question of law, subject to unlimited review. See In re Johnson, 32 Kan. App. 2d at 530.
The State relies on the three factors necessary to apply the doctrine of res judicata cited in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 397-98, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998). We note, however, that Stanfield was applying federal law. 263 Kan. at 396 (“Thus, while Kansas law does not appear to differ significantly from the federal law regarding the preclusion doctrines, the controlling authority in this case is federal law.”). Kansas law states four requirements; res judicata prevents relitigation where the following requirements are met: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of persons for or against whom claim is made. Waterview Resolution Corp., 274 Kan. at 1023; see Kumberg v. Kumberg, 232 Kan. 692, 703, 659 P.2d 823 (1983). Nevertheless, the State’s contention is that the two cases did not share the same cause of action, which would be fatal to a res judicata claim under either standard.
The State first notes that the critical question to be answered in a SPVA action is whether the respondent has a mental abnormality or personality disorder which would make the respondent likely to engage in repeat acts of sexual violence. It then contends that the determination presents a “fluid issue subject to change over time,” because a person s condition can improve or deteriorate. Accordingly, the State concludes that the recidivism risk determination is to be based on the respondent’s current condition at the time of the SPVA proceedings. Therefore, the cause of action against Spom in 2007 to determine his then current condition was different than the cause of action to assess his condition in 2005.
In support of its creative argument, the State points to Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), where the United States Supreme Court held that the Kansas SVPA was constitutional. Hendricks found that the SVPA was not punitive, in part because one of the stated purposes of the commitment was to hold the person until his or her mental abnormality no longer causes him or her to be a threat to others. 521 U.S. at 363. The State argues that Hendricks recognized that a respondent’s mental status and risk assessment is subject to improvement. Otherwise, a committed person could never be released. Apparently, the State intimates that the converse must be true, i.e., tire respondent’s mental status and risk assessment can deteriorate and thus give rise to a new and different cause of action.
However, the State does not assert that the passage of time, standing alone, will create a new cause of action. Its brief phrased the constraint as follows:
“Res Judicata would arguably bar tbe re-filing of a petition when no change has occurred to a respondent’s mental status or risk assessment since the previous petition. The basis for the revocation of a respondent’s post-release — be it a positive urinalysis, failure to report or, perhaps, failure to control sexually deviant cycles — may or may not be material. The sole issue is whether the individual’s mental status and, consequent risk, have changed since the last petition for any reason. If they have not, no new issue is presented and res judicata is properly invoked to bar the proceeding. However, if, as was the case in the instant matter, these considerations have changed, res judicata presents no legal barrier to continued pursuit of the petition.” (Emphasis added.)
As we have suggested, the language of the SVPA could be interpreted to authorize one commitment proceeding during the pendency of the “complete sentence” for a sexually violent offense. For example, K.S.A. 59-29a03(a)(l) speaks to “[t]he anticipated release from total confinement of a person who has been convicted of a sexually violent offense.” On the other hand, there is support to be found for the State’s position in a California case, albeit the State did not cite to it.
In Turner v. Superior Court, 105 Cal. App. 4th 1046, 130 Cal. Rptr. 2d 300 (2003), the court addressed whether the State could file successive sexually violent predator petitions based on the same sexually violent offense. Turner reasoned:
“The likelihood of a person committing criminal acts because of a mental disorder is not a fixed condition because an individual’s mental health and potential dangerousness can, and frequently does, change. [Citations omitted.] Recognizing this, courts generally hold that an adjudication of status or mental health issues is not conclusive as to the same status on a later date. [Citations omitted.]” 105 Cal. App. 4th at 1058-59.
However, Turner held that the jury’s prior determination that the respondent was not a sexually violent predator was relevant and admissible in the later proceeding. Moreover, the California court instructed that in order to establish probable cause in a subsequent proceeding under the Act, the district attorney must present evidence of a change in circumstances, in other words, show evidence that the circumstances have materially changed so that the offender now possesses the requisite dangerousness. A mental health professional may still fully evaluate the background/historical information when rendering his or her opinion. However, the professional cannot rely solely on the historical information and must explain what has occurred in the interim to justify the conclusion that the individual is currently a sexually violent predator. 105 Cal. App. 4th at 1059-60. In Turner, the court found that the prosecution had not met its burden of showing that the facts were sufficiently different to permit relitigation. 105 Cal. App. 4th at 1061-63.
Similarly, here, the State failed to carry its burden of estabhshing that Spom’s mental status and risk assessment materially changed in the interim between the 2005 and 2007 SVPA proceedings. In the first instance, according to the unchallenged finding of the district court, the State filed nearly identical petitions in both cases. Although we do not have the first petition in the record on appeal, we note that the 2007 petition makes no allegation that Sporn’s mental status or recidivism risk had materially changed since his 2005 favorable jury verdict. K.S.A. 59-29a04(a) provides that the petition, in addition to alleging that the respondent is a sexually violent predator, is to state “sufficient facts to support such allegation.” Therefore, on its face, the 2007 petition was insufficient to survive dismissal.
Further, we are unpersuaded by the State’s argument that the basis for revoking postrelease supervision — viewing pornography and sexually explicit websites on the computer — define a material change in Spom’s mental status. To the contrary, those facts appear to be offered simply to shore up or corroborate the previous diagnosis and risk assessment, with the hope that a second jury would reach a different result on the same underlying evidence. That is precisely what the principle of res judicata is designed to prevent.
Therefore, even if we accept the State’s contention that a second petition for commitment under the SVPA is permitted where there has been a material change in the respondent’s mental status and recidivism risk, the State failed to carry its burden of making an initial showing of such a material change. The district court was correct in dismissing the petition.
Affirmed.
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The opinion of the court was delivered by
Allegrucci, J.:
Appellee AIFAM Enterprises, Inc., (AIFAM) intervened in the divorce action between the petitioner Warren Edward Smith and respondent Jennifer Ann Smith. The district court held that AIFAM had a lien on the property of Warren. Respondent Jennifer Ann Smith appealed. The Court of Appeals reversed in an unpublished opinion filed November 26, 1986. We granted review on a petition filed by appellee.
The facts are not disputed. Jennifer and Warren Smith were married on August 1, 1981. On April 12, 1984, Warren filed a petition for divorce. On the same day, appellee AIFAM, which had employed Warren as its corporate pilot since 1981, confronted him with allegations of conversion of corporate funds, to which he admitted. Late in the same day, appellee terminated Warren’s employment. On April 13, 1984, Warren sought to gain control of appellee’s aircraft. Unsuccessful in this endeavor, he stole another aircraft, a Lear Jet belonging to a Kentucky coal company, and took off, never to be heard from again. He has been charged by federal law enforcement officials with theft of the aircraft and possession of cocaine. The federal authorities have been unsuccessful in serving arrest warrants on Warren since April 1984.
After the filing of the divorce action on April 12, Jennifer answered and cross-petitioned on April 19. On April 23, 1984, appellee filed suit against Warren for fraud, embezzlement, and conversion. On June 20, 1984, it received a judgment in the amount of $310,571.73.
There is no dispute as to the property the Smiths owned, and it may be summarized as follows:
A. Property Owned Solely by Warren
1. Real estate located at 9909 W. 12th, Wichita, Kansas (acquired prior to 1981);
2. a Datsun 280Z automobile (date of acquisition not stated);
3. a Grumman TR2 aircraft (acquired during the marriage);
4. a helicopter (acquired during the marriage); and
5. certain funds held in checking accounts, money market accounts, and individual retirement accounts (dates of acquisition not stated).
B. Property owned jointly by Warren and Jennifer
1. A condominium located at 1443-1 Smith Court, Wichita, Kansas;
2. a time-share condominium located in the Cayman Islands;
3. a 1979 Toyota pickup truck;
4. personal property valued between $20,000 and $30,000 reported by Jennifer to have been stolen on or about April 14, 1984.
On January 6, 1986, the district court entered its findings that appellee had a priority lien and stated that appellee’s claim “takes precedence over any claim of the undivorced spouse.” Jennifer appealed to the Court of Appeals, which reversed.
The sole issue on appeal is whether the Court of Appeals erred in holding that a creditor who obtains a judgment against one spouse during the pendency of a divorce action is precluded from collecting its judgment by executing against or claiming a lien on property owned individually or jointly by the debtor spouse.
The Court of Appeals held that the present case was not one of “priority” but simply one of the extent of Jennifer’s ownership of the property. We agree. The Court of Appeals found persuasive the language of this court in Cady v. Cady, 224 Kan. 339, 581 P.2d 358 (1978), which stated:
“Prior to the filing of a petition for divorce a spouse may dispose of his or her personal property without regard to the other spouse. [Citations omitted.] At that time a spouse possesses only an inchoate interest in real estate held by the other spouse. [Citation omitted.] The filing for divorce, however, has a substantial effect upon the property rights of the spouses. At that moment each spouse becomes the owner of a vested, but undetermined, interest in all the property individually or jointly held. The court is obligated to divide the property in a just and equitable manner, regardless of the title or origin of the property. [Citations omitted.]
“We hold that the filing of a petition for divorce or separate maintenance creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other, the extent of which is determined by the trial court pursuant to K.S.A. 1972 Supp. 60-1610(b). Except for those rights which vest by virtue of the filing of the divorce action, we in no way change the interest of one spouse in the property held by the other, or in the ability of the other spouse to convey, sell or give away such property.” 224 Kan. at 344.
Appellee argues that the Court of Appeals’ reliance on Cady is inappropriate since Cady did not “involve the rights of a judgment creditor during the pendency of [the] divorce.” The same, however, is true of the only case appellee cites in support of its position, Jayhawk Equipment Co. v. Mentzer, 193 Kan. 505, 394 P.2d 37 (1964).
In Cady, we held that the filing of a divorce petition creates a species of common or co-ownership in one spouse in the jointly acquired property held by the other. The Court of Appeals relied upon Cady in its finding that appellee could not attempt to create an interest in marital property which it did not have prior to the filing of the petition. Appellee attempts to distinguish Cady by arguing that Cady involved a tax dispute and did not involve the rights of third party creditors. On the other hand, appellant relies on K.S.A. 23-201 as granting to her as of the time the divorce petition was filed, a vested interest in all property owned by her husband. K.S.A. 23-201 provides:
“(a) The property, real and personal, which any person in this state may own at the time of the person’s marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to a person by descent, devise or bequest, and the rents, issues, profits or proceeds thereof, or by gift from any person except the person’s spouse, shall remain the person’s sole and separate property, notwithstanding the marriage, and not be subject to the disposal of the person’s spouse or liable for the spouse’s debts.
“(b) All property owned by married persons, whether described in subsection (a) or acquired by either spouse after marriage, and whether held individually or by the spouses in some form of co-ownership, such as joint tenancy or tenancy in common, shall become marital property at the time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment. Each spouse has a common ownership in marital property which vests at the time of commencement of such action, the extent of the vested interest to be determined and finalized by the court, pursuant to K.S.A. 1980 Supp. 60-1610 and amendments thereto.”
The Court of Appeals correctly noted that appellant’s reliance on K.S.A. 23-201 to compel a judgment in her favor was as misplaced as appellee’s reliance on Jayhawk Equipment. In Wachholz v. Wachholz, 4 Kan. App. 2d 161, 163-64, 603 P.2d 647 (1979), the Court of Appeals held that the purpose for the legislature’s amendment of K.S.A. 23-201 to add subsection (b) was solely to clarify that a transfer of marital property on divorce is a transfer between co-owners and does not alter prior Kansas law. However, this court’s decision in Cady was expressly decided without relying on 23-201(b), instead relying on prior Kansas law and the principles underlying K.S.A. 1986 Supp. 60-1610(b). The argument that 23-201(b) changed Kansas law was rejected by this court.
Jayhawk Equipment does deal with the rights of judgment creditors but not, to use appellee’s language, “the rights of a judgment creditor during the pendency of [the] divorce.” (Emphasis added.) In Jayhawk Equipment, the third party creditor obtained a judgment against the debtor husband and was unsuccessful in executing judgment against him. The creditor then attempted to execute a lien on property the wife had received under a divorce decree that occurred prior to the creditor’s judgment. This court held that the judgment creditor could not levy on property received by the wife under the prior decree. The court stated, “A wife in a divorce action, if not an actual creditor of the husband, is at least such a quasi creditor that she can rely on her husband’s obligation to support her and the minor children as consideration for a property settlement approved in a divorce decree.” 193 Kan. at 509. The court then stated the “general rule that a divorce decree approving an agreement transferring a husband’s real estate to his wife vests her with an equitable interest superior to the claim of an existing creditor of the husband who subsequently obtains a judgment.” 193 Kan. at 510. The court noted that, in Graham v. Pepple, 129 Kan. 735, 284 Pac. 394 (1930), this court had a similar situation before it. The Graham court held:
“Where an action for divorce and alimony is properly and timely instituted and prosecuted by a wife against her husband, and in her petition she specifically claims the right to have a definitely described tract of land within the jurisdiction belonging to the husband set apart to her as permanent alimony, a third party cannot acquire an interest in that property by the subsequent institution of an action against the husband for the recovery of money and by attaching that particular tract of land to the satisfaction of any judgment he may obtain against the husband; and although judgment in the attaching creditor’s case is rendered some time before the rendition of the judgment in the wife’s action awarding her the property as permanent alimony, she is entitled to injunctive relief to protect her rights in the property against its sale to satisfy the judgment of the attaching creditor.” Syl.
“Be that as it may, our own cases are conclusively to the effect that in an action for divorce and alimony, properly and timely instituted and prosecuted, where the plaintiff in her petition sets out specifically the property which she seeks to have subjected to her rights, third parties are thereby constructively notified, and the doctrine of Us pendens will protect her claim thereto against a third party’s claim founded on some legal process invoked subsequently. (Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614; Kremer v. Schutz, 82 Kan. 175, 107 Pac. 780.) Such is the prevailing rule. (Ann. Cas. 1913D, 950.)” 129 Kan. at 737-38.
This court further noted in Jayhawk Equipment that the divorce action was not pending when the creditor received judgment against the husband. Appellee attempts to use this limitation on the holding in Jayhawk Equipment to infer that, if the judgment were received prior to the divorce decree and division of property, the rule in Jayhawk Equipment compels finding for the judgment creditor. The inference is unwarranted. Our holding in Jayhawk Equipment simply notes that the court was not presented with the issue of a creditor with a judgment rendered prior to the decree; it does not in any way suggest what the ruling would be if such a case were to arise.
In summary, we held in Jayhawk Equipment that a creditor who obtains judgment after both the filing of the divorce petition and the final decree will not be able to reach the property decreed to the nondebtor spouse. If the creditor obtains judgment and levies prior to the filing of the divorce petition, the judgment creditor would, of course, prevail. In Graham, we held that, where the property is definitely described in the petition, one who purchases or acquires an interest in the property after the petition for divorce has been filed does so subject to the judgment subsequently rendered by the court, and injunctive relief was granted to protect the spouse’s rights in the property against a sale to satisfy the judgment of the attaching creditor.
Appellee argues that to uphold the ruling of the Court of Appeals will create insufferable burdens and expose helpless creditors to fraud. This court was presented with a similar argument in Jayhawk Equipment. There we held that a third party-receiving judgment against a debtor spouse after a divorce decree could not levy on property received by the nondebtor spouse, and “disposed of the suggestion that the rule would [be an] easy way to cheat creditors.” 193 Kan. at 511 (citing Graham v. Pepple, 129 Kan. at 738). In Graham, the Supreme Court had responded to such an argument by a creditor by noting, first, that the proper forum for making such an argument was the legislature and not the courts and, second, that, if the argument were accepted, it would enable a husband and a third party to defraud the wife. 129 Kan. at 738.
We note that there is no evidence in the present case to indicate that the property appellee seeks to acquire is the product of the assets that Warren Smith converted, or that Jennifer Ann Smith knew of the conversion. The record does not reveal when most of the listed assets were acquired or, in the case of the Wichita residence, reveals it was acquired prior to Warren’s employment by appellee. Appellee stresses that Warren’s “annual salary never exceeded $47,000,” and apparently seeks to create the inference that all the property sought must be the product of Warren’s misdeeds. Yet it does so without providing any evidence relating to Warren’s income from outside sources during his employment by appellee, any evidence of Warren’s assets prior to the employment, or the value of most of the assets sought.
Appellee attempts to analogize itself to a secured creditor. We do not agree with the analogy. A party who has a secured claim on property or a judgment rendered in its favor prior to the filing of the divorce petition will not be affected by this decision. The property of the marital estate will necessarily carry with it such related debt. Appellee’s claim against Warren is a completely personal action and one which, as far as the record would indicate, is unrelated to the property which it now seeks to claim. Appellee is not a typical creditor of one or both spouses in a divorce action; it is not a creditor with a security interest in specific property. It is instead a third party who has obtained a default judgment against one spouse in a tort action after the petition was filed and prior to the rendering of the divorce decree.
The Court of Appeals decision does not have broad implications for creditors with claims against specific property within the marital estate. If the third party can prove that the nondebtor spouse participated in a fraud against it, it would have an independent claim against that spouse. If the third party could prove that the property decreed to the nondebtor spouse was the product of the fraud against it, it would have a claim to that property. The third party would thus be able to reach any or all property decreed to the debtor spouse. If the property decreed to the nondebtor spouse was “unreasonable in amount or in excess of her reasonable requirements under the circumstances,” the third party would be able to reach that excess. Jayhawk Equipment Co. v. Mentzer, 193 Kan. at 510.
The trial court is obliged to divide the property of the parties in a divorce action on a just and reasonable basis. K.S.A. 1986 Supp. 60-1610(b)(l). Allowing third parties, after the petition has been filed, to obtain a personal judgment against one of the spouses and then seek to claim property to which no claim had existed prior to the petition would be to interfere with the ability of the trial court to divide the property on a fair and equitable basis.
There is no indication in the record that appellee was negli gent in failing to discover Warren’s conversion of assets from 1981 to 1984, nor is there any evidence in the record that Jennifer Ann Smith was aware of her husband’s activities. We are presented with two parties, both apparently innocent of Warren’s activities, and must decide who should bear the loss. We decide that appellee, having failed to establish prior to the filing of the divorce petition any interest in the property currently at issue, should bear the loss.
We hold that the filing of a petition for divorce creates a species of common or co-ownership and a vested interest in one spouse in all the property individually or jointly owned by the other, the extent of which is to be determined pursuant to K.S.A. 1986 Supp. 60-1610(b). Until that determination is made by the trial court, the property is not subject to a lien or execution based upon a judgment obtained against one spouse during the pendency of the divorce action.
The judgment against Warren was obtained while the divorce action was pending and, since appellee has no claim against Jennifer, it cannot execute on the judgment until the trial court determines what property will be set aside to Warren.
The decision of the Court of Appeals is affirmed, the judgment of the trial court is reversed and the case is remanded for proceedings in conformity with this opinion.
Lockett, J., not participating.
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The opinion of the court was delivered by
Biles, J.:
This is an appeal from a district court’s decision on cross-motions for summary judgment involving two proposed city ordinances advanced by citizens of the City of Fairway, Kansas (City), through the initiative and referendum authority granted in K.S.A. 12-3013. The district court ruled the ordinances were not permitted by the statute. It is undisputed the required petitions accompanying these proposed ordinances are in proper form and cariy sufficient genuine signatures from qualified local electors. The controversy arises from the ordinances’ subject matter because state law excludes certain topics from the initiative and referendum process. See K.S.A. 12-3013(e).
The first proposed ordinance seeks to restrict the City’s ability to relocate its city hall facilities to certain locations within the City’s boundaries. The second proposes to not allow the use of rezoning, eminent domain, and condemnation, as well as restricting commercial, business, apartment, condominium, or mixed use development to certain locations within the City. The City refused to adopt the ordinances or advance them for public vote on the basis of K.S.A. 12-3013(e)(l), which states: “The provisions of this section shall not apply to: (1) Administrative ordinances.” This litigation followed. The district court agreed with the City and determined both proposed ordinances were administrative. Our task is to decide whether either ordinance is administrative in nature.
We affirm. In reaching this decision, we review and revise the guidelines to be applied when courts are asked to determine whether an ordinance proposed under the initiative and referendum statute is administrative.
Factual and Procedural Background
The material facts are not in dispute. Beginning in 2001, the governing body for the City began discussing the need for a new city hall building. Those discussions spanned the next few years. During that time, the City organized task forces to assess municipal needs, commissioned studies to review city services and associated issues, and conducted related public forums. The City also hired an architectural firm to complete a site analysis, validate a space and needs study, prepare a conceptual design with cost information, and develop schematic designs. To finance the project, the City sought advice regarding municipal bonds.
During this conceptualization process, consideration was given to locating the new city hall facility on the southeast comer of Shawnee Mission Parkway and Mission Road. This led to some citizen opposition. At another point, the City entered into discussions with the State Historical Society and the Shawnee Indian Museum about locating the new facility on the Shawnee Indian Museum grounds. This, too, generated opposition.
James McAlister, Klaus Ulrich, and James Kemell (Appellants) are residents of the City. They prepared two proposed city ordinances and organized supporting petition drives in an effort to invoke the statutory initiative and referendum process set out in K.S.A. 12-3013. One petition was entitled “Restrictions on the Future Relocation of the City of Fairway City Hall” (the City Hall Petition.) The other was entitled “Restrictions on the Future Commercial Development of Residential Property in the City of Fairway, Kansas” (the Commercial Development Petition, also referred to by the trial court as the Eminent Domain Petition). To appreciate the controversy here, it is necessary to set out the language in the proposed ordinances.
The City Hall Petition, in pertinent part, states:
“Be it ordained by the governing body of the City of Fairway, Kansas: That the City of Fairway, Kansas, shall not relocate the City of Fairway City Hall to the following locations, and such locations shall not be considered by the City of Fairway, Kansas as proposed and/or potential relocation sites for such purpose:
“The 12 acre site commonly known as The Shawnee Indian Mission Historic Site, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
“Within a one-quarter (1/4) mile radius of the southeast comer of the intersection of Mission Road and Shawnee Mission Parkway, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
“Property in residential use, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005.”
The Commercial Development Petition, in pertinent part, states:
“That the City of Fairway, Kansas shall not allow rezoning, nor eminent domain use, nor condemnation of Fairway’s residential, neighborhood business or state historic properties, and specifically the following locations shall not be considered by the City of Fairway, Kansas as proposed and/or potential commercial, business, apartment, condominium or mixed use sites:
“The 12 acre site commonly known as The Shawnee Indian Mission Historic Site, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
“Property on Mission Road, Shawnee Mission Parkway, or within a one-quarter (%) mile radius of the intersection of Mission Road and Shawnee Mission Parkway, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005; and
“Property zoned residential anywhere in Fairway, as designated on the Johnson County AIMS map of the City of Fairway, Kansas, as of January 14, 2005.”
Because it will impact our analysis, we need to note at this juncture that the record reflects 90.1 percent of the land in the City is zoned for residential use, while 5.6 percent is zoned commercial and 4.3 percent is zoned for public purposes. Therefore, the scope of the land area within the City protected by these proposals is considerable, as are the limitations imposed on the City.
As required by statute, both petitions were submitted for approval as to form to the county counselor. In December 2005, the county counselor gave that approval but reserved judgment as to whether either petition contained valid subject matter. On April 4, 2006, the Johnson County Election Office verified there were sufficient qualified voter signatures to satisfy the statutory requirements. We note the City is organized as a city of the second class, which means each petition had to carry signatures equal in number to 40 percent of the electors who voted at the last preceding regular city election. See K.S.A. 12-3013(a).
But the Fairway city attorney advised the mayor and city council the petitions were administrative in nature and, therefore, not subject to initiative and referendum under K.S.A. 12-3013(e)(l). Based on this advice, the City took no further action on either petition. The City’s refusal prompted this litigation.
Appellants filed two lawsuits — one for each initiative petition. In one lawsuit, appellants sought a declaratory judgment that the City Hall Petition was legislative in nature and, therefore, authorized by statute as an appropriate subject for the initiative and referendum process. They also sought an injunction, mandamus, and monetary damages for the City’s alleged violation of 42 U.S.C. § 1983 (2006). In the other lawsuit, Appellants requested a declaratory judgment that the Commercial Development Petition was legislative in nature and other equitable relief in the nature of injunction and mandamus. In both cases, the defendants were the City and City Clerk Kathi Robards.
The district court consolidated the two cases. Thereafter, the parties filed cross-motions for summary judgment advancing differing conclusions about whether the petitions’ subject matters were administrative or legislative. The City also sought to have the Commercial Development Petition declared void as being unconstitutionally vague and ambiguous.
On November 19, 2007, the district court granted the City’s motions for summary judgment as to both proposed ordinances, finding each was administrative and not subject to initiative and referendum based on K.S.A. 12-3013(e)(l). In so deciding, the district court determined both petitions had the same purpose, which, it said, was to restrict the City’s decision-making authority regarding the city hall building relocation.
To reach its conclusions regarding the proposed ordinances’ administrative character, the district court applied this court’s prior case law as stated in Rauh v. City of Hutchinson, 223 Kan. 514, 575 P.2d 517 (1978), and City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 667 (1994) (citing City of Lawrence v. McArdle, 214 Kan. 862, 522 P.2d 420 [1974]). But as the district court viewed it, Rauh offered a separate test from the guidelines set out in Kansas Taxpayers Network and McArdle, so it applied both independently — reaching the same conclusion under either analysis.
In first applying Rauh, the district court determined both proposed ordinances were invalid because their subject matter, which the court characterized as public building acquisition and construction, was an issue of statewide concern. The district court held the legislature delegated decision-making power regarding public building acquisition and construction to city governments through K.S.A. 12-1737 and provided the manner by which a city may finance public buildings and the procedures for a city to utilize such financing. The district court further noted that although various statutes set out general standards by which cities can identify and acquire sites, construct facilities, and finance them, these statutes still leave specific decision-making power regarding location, construction, and financing to local city governing bodies. “Thus,” the district court concluded, “ordinances implementing state policy regarding public buildings are administrative in nature.”
Next, in applying the guidelines (factors) set out in Kansas Taxpayers Network and McArdle, the district court stated:
“These factors further indicate that the City Hall and Eminent Domain Petitions are administrative in character. The Petitions do not create new law, but administratively execute the existing state laws in K.S.A. 12-1736, giving cities the power to construct and acquire public buildings. The Petitions neither declare a public purpose nor provide ways and means to accomplish that purpose, but seek to deal with only specific possible locations of Fairway City Hall.
“Additionally, in evaluating sites for the location of the new city hall, the City utilized the specialized knowledge of architects, engineers, financial consultants, police officers, and city officials regarding the operational needs and demands of the City. The City further retained consultants to review the City’s operations, associated space, safety and regulatory issues. Finally, while some of these factors may arguably contribute to either a legislative or administrative finding, the Court finds that the City Hall and Eminent Domain Petitions are not clearly and fully legislative. Thus, the subject of the proposed ordinances is administrative in character and is expressly excepted from the initiative and referendum process set out in K.S.A. 12-3013.”
Based on its ruling, the district court dismissed as moot the City’s motion to declare the Commercial Development Petition unconstitutionally vague and ambiguous. Appellants filed timely notices of appeal, and those appeals were subsequently consolidated. We transferred the controversy to this court under K.S.A. 20-3018(c).
One additional complication occurred while this appeal was pending. The City agreed to lease space for its administrative offices in city hall. This lease has a 7-year term, commencing September 1, 2008, with a renewal option for an additional 5-year extension. The City also agreed to renovate its existing city hall building to serve as the City’s public safety center, and it leased additional space until the public safety center renovations were complete. In August 2008, all City personnel moved to the temporary space.
The new city hall and public safety center are not located within any areas restricted by the City Hall Petition. But the lease permits the City to transfer, sublet, or assign the lease to third parties after obtaining the landlord’s written consent. At oral arguments, counsel for the City also confirmed the lease was subject to the cash-basis law under K.S.A. 10-1101 et seq. and could be cancelled annually under those provisions.
Based on these undisputed facts, we are asked to determine the following issues: (1) Whether this appeal is now moot due to the City’s recent actions regarding the city hall building location; (2) whether the district court erred in determining the City Hall Petition was administrative; and (3) whether the district court erred in determining the Commercial Development Petition was administrative. But in deciding the latter two issues, we take the opportunity provided by this litigation to review and revise the guidelines previously articulated in Rauh, Kansas Taxpayers Network, McArdle, and City of Wichita v. Fitzgerald, 22 Kan. App. 2d 428, 916 P.2d 1301 (1996), by further addressing the legislative versus administrative dichotomy.
Standard of Review
The standard for reviewing a district court’s decision granting summary judgment is well known:
“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.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
To the extent there is no factual dispute, appellate review of an order granting summary judgment is unlimited. Polson v. Farmers Ins. Co., 288 Kan. 165, Syl. ¶ 1, 200 P.3d 1266 (2009).
The determination as to whether an ordinance proposed under the initiative and referendum statute is administrative is to be based on the factual situation in each case. Kansas Taxpayers Network, 255 Kan. at 539; Rauh, 223 Kan. 514, Syl. ¶ 3. Here, we are asked to review the district court’s ruling on summary judgment that these initiative and referendum petitions are administrative in character. The parties agree the facts are not in dispute. Therefore, our appellate review is unlimited. Polson, 288 Kan. 165, Syl. ¶ 1.
In Fitzgerald, which also dealt with whether a proposed initiative and referendum ordinance was administrative, our Court of Appeals indicated the scope of review was unlimited because.such determinations require a court to interpret K.S.A. 12-3013.22 Kan. App. 2d at 430 (“This issue requires the court to interpret the statute governing initiative and referendum.”). Although we agree the scope of review is unlimited, we do not believe the reason is because these cases require us to interpret a statute. As noted above, this court consistently has held that a determination as to whether a proposed ordinance is legislative or administrative is based on the factual situations in each case. Thus, we are not interpreting the statutory language excluding administrative ordinances under K.S.A. 12-3013(e)(l), as suggested by the Court of Appeals, when we analyze an initiative petition against the guidelines. Instead, we are applying our case law to the facts, which in this case are undisputed. Our appellate review is unlimited because the facts in this case are not in dispute. See Polson, 200 Kan. 165, Syl. ¶ 1.
Is this appeal mootP
The City urges us to dismiss this appeal as moot because it entered into a lease agreement locating its city hall facilities outside the areas proposed to be restricted by the City Hall and Commercial Development Petitions. The City argues any judgment rendered now would have no practical effect. We disagree.
An appeal will not be dismissed for mootness, unless it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties’ rights. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 454, 172 P.3d 1154 (2007).
The issues in this appeal are not moot. The city hall lease agreement may temporarily satisfy the City Hall Petition’s requirements, but the City Hall Petition seeks to prohibit the City’s ability to relocate city hall in the protected areas. The lease terms do not offer this permanence. Instead, they allow the City to terminate the agreement under certain conditions or transfer or assign the lease to a third party. Such action could permit the City to move its city hall facility into the City Hall Petition’s restricted areas at any time.
In addition, and as conceded by counsel during oral argument, the lease terms are subject to the state’s cash-basis law, meaning the city council may take action to end the lease agreement’s term before its stated expiration date. Finally, the Commercial Development Petition involves restrictions and prohibitions on rezoning, eminent domain, and condemnation that are unaffected by the leasing arrangement. We find the City has not clearly and convincingly shown the issues in this dispute are moot.
What guidelines are appropriate to determine if a proposed ordinance is legislative or administrative in character?
The Kansas Initiative and Referendum statute, K.S.A. 12-3013, allows city electors to submit a proposed ordinance to a city’s governing body by petition if it is signed by a minimum percentage of qualified electors. The percentage varies depending on the city’s class size. For example, Fairway is a city of the second class, so a petition there must cany signatures at least equal in number to 40 percent of the electors who voted at the last preceding regular city election. K.S.A. 12-3013(a). Once a petition is submitted with the required minimum signatures and assuming the subject matter is authorized, the city must either pass the ordinance without alteration within 20 days or call a special election allowing the city’s electors to vote on it. K.S.A. 12-3013(a).
But a city is not required to act on a petition if its subject matter applies to: (1) An administrative ordinance; (2) an ordinance related to a public improvement to be paid wholly or in part by the levy of a special assessment; or (3) an ordinance subject to referendum or election under another statute. K.S.A. 12-3013(e). Here, the City refused the City Hall and Commercial Development Petitions after concluding both were administrative, which would satisfy the first exclusion if that determination is correct.
Whether a proposed ordinance is legislative or administrative is often a difficult question to answer. Lewis v. City of South Hutchinson, 162 Kan. 104, 124, 174 P.2d 51 (1946). Across the country, courts frequently struggle to classify ordinances as either legislative or administrative. A principal reason for the inconsistency is that some courts give a more liberal application to their particular initiative and referendum process than others. As this court previously commented:
“An examination of the cases and legal authorities will disclose that the determination of whether a municipality has acted in its legislative or administrative capacity is indeed difficult and by no means consistent. Each case must be determined on its particular facts and even then there is no unanimity of opinion. Action based on one set of facts will be considered legislative in one jurisdiction while the same or similar action may be considered administrative in a different jurisdiction.” Rauh, 223 Kan. at 522.
In Kansas, the initiative and referendum process under K.S.A. 12-3013 has long been judged on a more demanding basis than in some other locales. See McArdle, 214 Kan. at 870 (“[W]e have never adopted a 'liberal’ view of the matters which should be subject to initiative and referendum, but quite the contrary.”); State, ex rel. v. City of Kingman, 123 Kan. 207, 209, 254 P. 397 (1927) (“The tendency seems to be to confine the operation of similar referendum statutes with a considerable degree of strictness to measures which are quite clearly and fully legislative and not principally executive or administrative.”).
One challenge arising from our stricter doctrine occurs when applying the guidelines for judging whether a particular initiative and referendum petition is legislative or administrative in nature. As we have said previously, no single act of a governing body is ever likely to be solely legislative or solely administrative. Kansas Taxpayers Network, 255 Kan. at 540. Accordingly, courts must determine when a proposed ordinance’s administrative characteristics predominate enough to exclude it from the initiative and referendum process.
This court repeatedly has stated the initiative and referendum statute is only appropriate for measures that are “ ‘quite clearly and fully legislative and not principally executive or administrative.’ ” 255 Kan. at 540; McArdle, 214 Kan. at 867. Making this determination calls for a weighing of the characteristics recited in our case law to decide when an initiative is “legislative” or “administrative.” But if the doctrine is applied too strictly by our courts, it can render the statutoiy initiative and referendum process meaningless and deny our citizens an electoral option reserved to them by the legislature. Courts should be on guard against this danger. A statute should not be interpreted in such a manner as to malee it meaningless. See In re Adoption of G.L.V., 286 Kan. 1034, 1041, 190 P.3d 245 (2008) (courts presume the legislature did not intend to enact meaningless legislation).
This difficulty is exemplified by the way in which the district court condensed our strictness doctrine and declared it would strike the proposed ordinances if they were not “clearly and fully legislative.” In so stating, the district court dropped the quahfying phrase from our cases that adds “and not principally executive or administrative” to the analysis. We believe this additional qualifying phrase is critical.
In other words, the phrase “quite clearly and fully legislative” should not be read so strictly as to mean “solely legislative.” Instead, courts must determine the essential character of a proposed ordinance from the facts found in each case and then confine the operation of the initiative and referendum statute with a considerable degree of strictness to those measures that are “quite clearly and fully legislative and not principally executive or administra five.” City of Kingman, 123 Kan. at 209; see City of Lawrence v. McArdle, 214 Kan. 862, 867, 522 P.2d 420 (1974). To be sure, our case law in this area fails to give courts a more precise demarcation in the legislative versus administrative tug-of-war. But this does not mean the initiative and referendum statute may be limited to only those circumstances in which cities are acting purely in a legislative capacity, as argued by the League of Kansas Municipalities in its amicus curiae brief and suggested by the district court’s ruling.
With this admonition, we move to the guidelines. In McArdle this court reviewed the prior case law and then identified specific rationales to determine under the facts of each case whether the essential character of a proposed ordinance is legislative or administrative. Those McArdle guidelines are:
1. An ordinance that makes new law is legislative; while an ordinance that executes an existing law is administrative. Permanency and generality are key features of a legislative ordinance. 214 Kan. 862, Syl. ¶ 2.
2. Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative. 214 Kan. 862, Syl. ¶ 3.
3. Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be characterized as administrative, even though they may also be said to involve the establishment of policy. 214 Kan. 862, Syl. ¶ 4.
In City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 874 P.2d 667 (1994), the court enumerated as a fourth guideline the strict application philosophy. This provided that the initiative and referendum statute should be restricted to measures “ 'quite clearly and fully legislative and not principally executive or administrative.’ ” 255 Kan. at 540 (quoting McArdle, 214 Kan. 862, Syl. ¶ 1). This fourth guideline was also referenced in Fitzgerald, 22 Kan. App. 2d at 431.
But we believe this principle is more useful as a recitation of the strict construction doctrine discussed above and less helpful as a guideline for determining under the facts in each case whether a proposed ordinance is legislative or administrative. In its brief, the City recognized this same concern and commented that this was “less a fourth measuring stick than a statement of State judicial policy.” We agree. It should not continue to be enumerated as a fourth guideline for analyzing the facts in these types of cases.
In Rauh v. City of Hutchinson, 223 Kan. 514, 519-20, 575 P.2d 517 (1978), this court added to the legislative versus administrative analysis, stating:
“ ‘[I]f the subject is one of statewide concern in which the legislature has delegated decision-making power, not to the local electors, but to the local council or board as the state’s designated agent for local implementation of state policy, the action receives an “administrative” characterization, [and] hence is outside the scope of the initiative and referendum.’ [Citation omitted.]”
See 5 McQuillin, Municipal Corporations § 16.54, pp. 404-05 (3d ed. rev. 2004).
The City argues this language from Rauh constitutes a separate test from the McArdle guidelines, and it urges even further that the first step in this court’s analysis should be to determine whether the proposed ordinances are administrative under Rauh. The City contends that if we find the proposed ordinances are matters of “statewide concern” as articulated in Rauh, then we are not required to consider the McArdle guidelines. We disagree.
The City’s argument ignores this court’s actual holding in Rauh, which explains that the decision was based on the “broad general policy and the comprehensive nature of the industrial revenue bond act and applying the criteria set forth in City of Lawrence v. McArdle.” (Emphasis added.) Rauh, 223 Kan. at 522. We believe the City is wrong in offering that Rauh is a separate test for deciding whether a proposed ordinance is administrative under the initiative and referendum statute. Instead, we see Rauh as providing another guideline to be used in conjunction with the three other McArdle guidelines. Therefore, in analyzing the facts regarding the two proposed ordinances disputed here, we will employ the three McArdle guidelines and add the language from Rauh as a fourth guideline, replacing the fourth guideline previously identified in Kansas Taxpayers Network and Fitzgerald.
Finally, we believe it is important to point out that we will not view any one guideline as necessarily controlling over the others. We will give consideration to each guideline before reaching a final decision. But in doing so, we acknowledge it is possible the weight given to any one guideline may be enough under a particular factual situation to decide that a proposed ordinance intrudes too far into a city’s administrative arena. That is a matter best determined in each case. See generally State v. Ortega-Cadelan, 287 Kan. 157, 161, 194 P.3d 1195 (2008) (holding “one consideration may weigh so heavily that it directs the final conclusion” when applying the three-prong test for determining whether a sentence violates the constitutional prohibition against cruel or unusual punishment); State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) (holding the third factor in the three-factor test for prosecutorial misconduct may override the first two factors if certain conditions are satisfied). In the end, if the weight of all the guidelines taken together indicates a proposed ordinance is clearly and fully legislative and not principally executive or administrative, it is appropriate subject matter under the initiative and referendum statute.
Next, we consider each proposed ordinance separately using the legal standards and four guidelines articulated above.
The City Hall Petition
(1) The City Hall Petition would create a new law or policy. Under the first guideline, this proposed ordinance is legislative in character.
Appellants argue the City Hall Petition is legislative because it would make new law, would be permanent, and is general in nature. The City argues it is administrative because it seeks to have the City’s electors execute the City’s existing authority to acquire public buildings under K.S.A. 12-1736. The City further maintains the proposed ordinance limits the authority granted to it under that statute, but it does not create new law. The district court agreed with the City. We disagree and find the proposed ordinance is legislative in character under this guideline.
Whether a proposed ordinance is legislative because it creates a new policy or administrative because it executes a current policy was discussed in McArdle. In that case, the electors submitted a proposed ordinance seeking the “equalization of firemen s salaries with those of policemen” within the same pay classification. 214 Kan. at 863. The McArdle court said a comprehensive plan or policy regarding the personnel administration of city government, which also considered the city’s financial resources, tax potential, and a unified budget, would be legislative. In contrast, the court said an ordinance to equalize only firemen’s pay, which dealt with a segregated portion of the city’s personnel, was administrative in nature. See 214 Kan. at 866, 871-72.
The facts in this case show the City did not have a policy in place regarding the location for its new city hall facilities. In 2002, 2005, and 2006, the City organized task forces to assess possible locations, held public forums to obtain the electors’ input, adopted a recommendation to consider the site located at the southeast comer of Shawnee Mission Parkway and Mission Road, and then abandoned that plan due to public opposition to that location. The proposed ordinance advocated by Appellants outlines what would serve as a new policy prohibiting the City from relocating its city hall facilities in designated areas. This is much broader, and far more comprehensive, than the salary provisions considered in McArdle.
In addition, the City adopted Resolutions Nos. 2006-C and 2006-D, formally stating it would not consider the southeast comer of Shawnee Mission Parkway and Mission Road or the Shawnee Mission State Historical Site as locations for the new city hall. The character of these two city-adopted resolutions is similar in nature to those proposed by Appellants. This gives credence to the Appellant’s argument that the City Hall Petition is legislative.
Finally, the City Hall Petition would be permanent and is general. There is no other reasonable interpretation other than it is intended to be permanent. In fact, it would undermine the petition’s purpose if it were not permanent. An ordinance showing an intent to form a standing rule of government, until it is repealed, is one of permanent operation. Rauh, 223 Kan. at 520.
Under this first guideline, we believe the more appropriate characterization is to find the City Hall Petition would create a new law or policy. It was submitted at a time when the City was actively seeking input on locations for its city hall facilities. Ultimately, the City adopted resolutions regarding the same subject matter. In addition, even though the City had a comprehensive plan for city development in effect at the time, and it could be argued the city hall location was a segment of that plan, the City was not relying on the plan in this instance. Under the circumstances, the City Hall Petition should be considered legislative under this guideline.
(2) The City Hall Petition declares a public purpose and provides the means to accomplish that purpose. Under the second guideline, this petition is legislative in character.
Appellants argue the City Hall Petition is legislative because it declares a public purpose in protecting residential and historic properties from encroachment by a new city hall by prohibiting development in the protected areas. The City contends the petition fails to expressly declare a public purpose, and it further argues the narrow scope of the ordinance does not embody the broad public purpose required to categorize it as a legislative ordinance. The district court agreed with the City, holding the City Hall Petition failed to expressly declare a public purpose and to provide any means to accomplish such a purpose because it pertained only to the specified locations for city hall.
But a plain reading of the proposed ordinance shows its purpose is to prohibit the City from relocating the city hall to residential and historical areas. While the proposed ordinance may not expressly declare this purpose, it is so obvious that it would be repetitive to do so. In addition, it accomplishes its purpose by restricting the City’s authority. Therefore, the City Hall Petition is legislative in character under this guideline.
(3) The City Hall Petition intrudes into areas of government requiring specialized training and expertise. Under the third guideline, this petition is administrative in character.
Appellants argue the proposed ordinance does not intrude into areas requiring specialized training and experience because it only places limitations on where city hall facilities may be located but does not actually select the site. This, they claim, allows the City to use its expertise when examining eligible locations outside the prohibited areas to select the final site, which preserves the ordinance’s legislative character.
The City argues the opposite. It claims the decision to locate city hall requires particularized knowledge as to the City’s operations, associated space requirements, public safety, regulatory issues, as well as an intimate appreciation of the City’s fiscal affairs. The City also says its electors are not equipped to determine the city hall’s location because they lack this particularized understanding. We agree that the City Hall Petition is administrative under this guideline because of the sweeping geographic scope of the proposal’s prohibitions.
It is true, as Appellants argue, that a decision to eliminate certain locations within a city as sites for the new city hall is far different from selecting the actual site where the facility would be built. But in this case, the proposed ordinance effectively eliminates more than 90 percent of the area within the City’s boundaries as acceptable sites. Of the remaining 10 percent, the record reflects the City would have few practical options from which to choose. Such an extensive restriction has the practical effect of directing the City’s choice and belies the Appellants’ argument that their proposed ordinance is simply eliminating a few possible sites from the City’s consideration.
The undisputed facts underscore what is required to select a location. The City sought extensive advice about various technical aspects applicable to its decisions regarding municipal facilities. As noted by the district court:
“[I]n evaluating sites for the location of its new city hall, the Ciiy utilized the specialized knowledge of architects, engineers, financial consultants, police officers, and city officials regarding the operational needs and demands of the City. The City further retained consultants to review the City’s operations, associated space, safety and regulatory issues.”
We believe decisions about where municipal facilities should be located necessarily require specialized knowledge and expertise. This is especially true where, as here, decisions are further com plicated from an operational standpoint by the possibility of housing public safety components within the facilities. The decision where to locate the new city hall facilities is analogous to Kansas Taxpayers Network, in which the initiative referendum that sought to block the establishment of a storm water utility system was deemed administrative. In that instance, this court observed:
“[T]he operation, management, and financing of a city-wide storm water management system reasonably fits within the context of decisions that require specialized knowledge and experience with respect to city management. The physical structure of the system, maintenance, and fee assessment and collection all fit within the purview of the City’s expertise.” 255 Kan. at 541.
Based on the facts in this case, we find the wide scale extent of the requested restriction in this proposed ordinance converts it from one that simply eliminates a few locations from the City’s consideration to one that effectively makes the location decision for the City. To impose such a restrictive choice upon the City makes the character of this proposed ordinance administrative under our third guideline.
(4) The City Hall Petition does not address matters of statewide concern. Under the fourth guideline, this petition is legislative in character.
Appellants argue the City Hall Petition is legislative in nature because it addresses simply a local issue, not a statewide concern. Not surprisingly, the City contends it is administrative because of K.S.A. 12-1736 et seq., which the City claims is a comprehensive regulatory system in which the legislature delegated the power to acquire public buildings to city governments. Therefore, tíre City’s argument continues, a proposed ordinance that attempts to implement or restrict this statutory scheme is ádministrative in nature. The district court adopted the City’s position. We disagree with the district court and the City.
The public building statutes relied on by the City are merely enabling statutes. They do not contain any policy statements, and they do not involve complex intergovernmental projects or comprehensive statutory enactments. We have found initiative ordinances. affecting such statutory authority and undertakings to be administrative in nature. See Rauh, 223 Kan. at 522 (initiative ordinance seeking to block city’s issuance of industrial revenue bonds is administrative); State, ex rel. v. Salome, 167 Kan. 766, 781, 208 P.2d 198 (1949) (initiative ordinance seeking to repeal prior city authorization to cooperate with an area-wide federal flood control project is administrative); State, ex rel. v. Morton, 128 Kan. 125, 126, 276 P. 62 (1929) (initiative ordinance seeking to stop city from fixing a particular route to connect with larger state and federal highway project is administrative). But here we find the location of city hall facilities in the City is not a matter of statewide concern.
K.S.A. 12-1736 states:
“Any city in this state may erect or construct, acquire by gift, purchase, condemnation or lease a public building or buildings and procure any necessary site therefore by gift, purchase or condemnation and may alter, repair, reconstruct, remodel, replace or make additions to, furnish and equip a public building or buildings. The authority herein may also be exercised jointly or in cooperation with any other governmental unit so empowered, upon such terms and conditions as shall be agreed upon by the governing body of the city and the governing body of such cooperating governmental unit.”
Further, K.S.A. 12-1737 provides eight methods to finance the acquisition of public buildings. Taken together, these statutes enable a city to acquire, build, and finance public buildings; but they do not do so as part of a broader statutory scheme serving the State of Kansas’ overall interests.
Byway of example, a comparison of K.S.A. 12-1736 to the statutory scheme for issuance of industrial revenue bonds discussed in Rauh, 223 Kan. 514, illustrates the power to acquire public buildings is not a comprehensive statutory scheme and does not establish a statewide interest in where the City locates its public buildings. The Rauh court held the industrial (now economic development) revenue bonds statutes set forth in K.S.A. 12-1740 to K.S.A. 12-1749 were comprehensive legislation declaring a statewide purpose and delegating the execution of the policies and authority set in the law to the cities in their administrative capacity and based its interpretation on the statutes’ language, particularly K.S.A. 12-1740. See 223 Kan. at 517-18, 520-22. That statute provides in pertinent part:
“It is the purpose of this act to promote, stimulate and develop the general welfare and economic prosperity of the state of Kansas through the promotion and advancement of physical and mental health, industrial, commercial, agricultural, natural resources and of recreational development in the state; to encourage and assist in the location of new business and industry in this state and the expansion, relocation or retention of existing business, industry and health development . . . thus promoting the general welfare of the citizens of this state . . . K.S.A. 12-1740.
The court in Rauh held the Industrial Revenue Bond Act was comprehensive and complete because it specified the powers, restrictions, and procedures cities must utilize. 223 Kan. at 520. In contrast, K.S.A. 12-1736 does not establish a statewide policy interest regarding public building decisions, and it is not a comprehensive statutory scheme like the Industrial Revenue Bond Act. K.S.A. 12-1736 is merely an enabling statute with little or no impact beyond the local level. Therefore, the City Hall Petition should be characterized as legislative under this guideline.
Disposition: the City Hall Petition is administrative because of the weight given to the third guideline under these facts.
In weighing the four guidelines to the City Hall Petition, we find it is principally executive or administrative in nature. We do so even though we find it legislative in character under three of our four guidelines. This is because its prohibition against locating the city hall facilities is so extensive that it makes unavailable more than 90 percent of the City’s geographic territory. This has the practical effect of dictating where the City locates its city hall facilities. Such a restriction necessarily limits and intrudes to a substantial extent into areas of city administration requiring specialized knowledge about city affairs, regulatory requirements, long-range planning, and financing. These are all subject matters typically left to city administrators. We find this intrusion into the efficient administration of the City’s operations is so overreaching that it outweighs the three guidelines that arguably appear to have more legislative character to them. The district court was correct in describing the City Hall Petition as administrative.
The Commercial Development Petition
Before considering the Commercial Development Petition under the guidelines, it is necessary first to discuss the proposed or dinance’s purpose because it is debated by the parties. Appellants argue its purpose is limited to precluding the City from allowing commercial development of the City’s residential and historic properties by prohibiting eminent domain and rezoning for future commercial development. But on its face, the proposed ordinance is more expansive.
The proposed ordinance’s title is “Restrictions on the Future Commercial Development of Residential Property in the City of Fairway, Kansas.’’ The first sentence states:
“Be it ordained . . . : That the City of Fairway, Kansas shall not allow rezoning, nor eminent domain use, nor condemnation of Fairway’s residential, neighborhood business or state historic properties, and specifically the following locations shall not be considered by the City of Fairway, Kansas as proposed and/or potential commercial, business, apartment, condominium or mixed use sites.”
The first half of this language attempts to place a total restriction on rezoning, eminent domain use, or condemnation of properties currently zoned as residential, neighborhood, or historic. The League of Kansas Municipalities, in its amicus curiae brief, correctly argues this language not only restricts the City’s ability to use its statutory authority to rezone or condemn property, but taken literally it imposes on the City an obligation to “not allow” any other entity, such as a public utility, to exercise its own independent statutory authority to initiate eminent domain proceedings. Thus, the plain language of the proposed ordinance attempts to inject the City into areas in which our legislature has given it no role, such as public utility condemnations.
We believe we must analyze the Commercial Development Petition by referring to its plain language, rather than a “commonsense reading” as urged by its proponents. It is not unreasonable, nor does it represent a “hyper-technical” interpretation, as Appellants claim, to simply accept this proposed ordinance by the plain and simple language it employs, rather than allowing Appellants to recast it for purposes of this litigation. Although we acknowledge Appellants’ attempt to argue a less expansive interpretation, the plain language of the proposed ordinance imposes much broader obligations on the City than Appellants concede. Faced with this plain language, we are compelled to test its provisions against that language. With this understanding, we apply the four guidelines to the Commercial Development Petition.
(1) The Commercial Development Petition would execute the City’s existing plans and ordinances. Under the first guideline, this petition is administrative in character.
Appellants maintain the Commercial Development Petition is legislative because it imposes the first restriction on the City’s ability to condemn or rezone property in the protected areas. The City argues the proposed ordinance is administrative because it attempts to restrict the City’s existing authority to rezone property or exercise its eminent domain authority.
The Commercial Development Petition is not new law. It pertains to a segment of the City’s existing development plans and ordinances and would prevent the City’s execution of its existing law. Under this first guideline, it should be characterized as administrative.
The City authorized its planning commission to make a comprehensive plan for the City’s development and redevelopment. Code of the City of Fairway, Kansas, Ordinance 15-2-201 (Fairway City Code 1976). The commission is required to reconsider this plan annually. Ordinance 15-2-205 (Fairway City Code 1976). The plan’s purpose is to “constitute the basis or guide to insure a coordinated and harmonious development or redevelopment of the City which will best promote the health, safety, morals, order, convenience, prosperity and general welfare of the City as well as wise and efficient expenditure of public funds.” Ordinance 15-2-201. The planning commission adopted a comprehensive plan, which details the City’s needs and goals for city planning including infrastructure, storm water management, public safety, taxes, residential property, commercial property, and recreational areas. If adopted, the Commercial Development Petition would impact a portion of that existing policy.
In this regard, the Commercial Development Petition is analogous to the proposed ordinance in City of Lawrence v. McArdle, 214 Kan. 862, 522 P.2d 420 (1974), where the electors submitted a petition to equalize police and firemen’s pay. As discussed above, we held in McArdle that the proposed ordinance was administrative because it dealt with a small segment of the City’s personnel issues. 214 Kan. at 866, 871-72. We stated that “[n]o group of employees can be considered in isolation, without regard to the city’s overall financial picture.” 214 Kan. at 871. Likewise, zoning issues cannot be considered in isolation but must be considered within an overall plan.
Finally, we agree the Commercial Development Petition would be permanent, which is another factor under this guideline. But a proposed ordinance is not legislative just because it is permanent in nature. Instead, the more appropriate characterization under this guideline is to deem the proposed ordinance administrative because it seeks to impact a select portion of the City’s overall comprehensive planning.
(2) The Commercial Development Petition declares a public purpose but pertains to a small segment of an overall policy question. Under the second guideline, this petition cannot be characterized as either principally legislative or administrative.
Much like the City Hall Petition, Appellants argue the Commercial Development Petition declares a public purpose to protect residential properties, neighborhood businesses, and historic properties from commercial development. In addition, they note it clearly provides an enforcement mechanism because it eliminates the City’s ability to rezone or use its eminent domain authority. On the other hand, the City contends these powers operate within the City’s comprehensive planning and development ordinances.
As to this second guideline, both parties are correct. A plain reading of the Commercial Development Petition shows it is both sweeping in its scope, yet impacts a smaller segment of the City’s overall planning. Consistent with the principle recognized earlier that an ordinance is rarely solely legislative or administrative, the two considerations in this guideline are not always mutually exclusive. We believe this guideline ultimately does not aid our analysis as to whether the Commercial Development Petition is principally legislative or administrative.
(3) The Commercial Development Petition intrudes into areas of government requiring specialized training and expertise. Under the third guideline, this petition is administrative in character.
Appellants argue specialized training and expertise is not required to identify a policy restricting commercial development in residential and historic areas. The City argues the ability to properly rezone or condemn property requires specialized training and experience in municipal government operations, as well as knowledge about the City’s fiscal affairs, its comprehensive plan, capital improvement plan, and annual budget.
As discussed above, the Commercial Development Petition places a permanent restriction on the City’s ability to rezone property in historic or residential areas for commercial development. This comprises more than 90 percent of the City’s geographic area. It also restricts the City’s ability to acquire private property through eminent domain in those areas. The practical effect of this would be to permanently lock the City into its current zoning plan throughout nearly the entire City. The relative merits of imposing such a sweeping restriction onto the City requires special knowledge and training to fully comprehend its impact. The Commercial Development Petition should be considered administrative under this guideline.
(4) The Commercial Development Petition addresses matters of stateunde concern. Under the fourth guideline, this petition is administrative in character.
Appellants urge that the Commercial Development Petition is a matter of only local concern because the restrictions have no impact on state policy. They also argue the statutes giving cities eminent domain powers are merely enabling statutes and do not establish legislative policy nor prescribe comprehensive legislation. The City argues the petition restricts the City’s delegated authority in a comprehensive regulatory scheme. The City contends there is a complex interplay of numerous statutes that grant, restrict, and regulate its authority to condemn, zone, or rezone property. As to this guideline, we will look first to restrictions imposed on the City and then to the City’s obligation to “not allow” eminent domain or condemnation by any other entity.
Eminent domain is an inherent power vested exclusively in the State, and that power is limited only by constitutional restrictions. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 226, 523 P.2d 755 (1974). The State has authority to delegate eminent domain authority through legislative action. 215 Kan. at 226.
In K.S.A. 2008 Supp. 26-201, eminent domain authority is broadly granted to cities “[wjhenever it shall be deemed necessary by the governing body of any city.” This language shows the legislature’s intent to delegate this power to the City’s governing body and not to its electors. In addition, the statute limits the manner in which a city may exercise this eminent domain power by requiring that cities conform to the Eminent Domain Procedure Act, K.S.A. 26-501 et. seq.
The Eminent Domain Procedure Act is a comprehensive statutory scheme outlining the procedures and circumstances in which a city may use its eminent domain authority. See K.S.A. 26-503; K.S.A. 2008 Supp. 26-504; and K.S.A. 2008 Supp. 26-507. These statutes are analogous to the Industrial Revenue Bond Act discussed in Rauh. In that case, this court noted the legislature had enacted broad general provisions and policies and then delegated to the city the administrative function of “filling in the details” under the reasonable and definite standards contained in the act itself. Rauh, 223 Kan. at 521. Similarly, the legislature has delegated the administrative functions of “filling in the details” to cities under the Eminent Domain Procedure Act. We find this Act to be more than simply an enabling statute such as the law authorizing cities to acquire buildings, as discussed above.
As to the Commercial Development Petition’s restrictions on the City’s zoning authority, those are similar to the ones discussed in City of Wichita v. Fitzgerald, 22 Kan. App. 2d 428, 916 P.2d 1301 (1996), which the Court of Appeals determined gave the proposed ordinance in that case its administrative character. 22 Kan. App. 2d at 429, 433. The Fitzgerald court held:
“[W]here a comprehensive zoning ordinance has been passed and the power to change certain zoning or grant exemptions has been committed to the mayor or city council, the zoning of particular property is an administrative matter. [Citation omitted.] Conversely, the passing of the general comprehensive zoning plan is typically legislative. [Citations omitted.]” 22 Kan. App. 2d at 434.
We agree. As mentioned by the City, the proposed ordinance would functionally repeal several provisions in the City’s existing procedures under the City’s comprehensive zoning plan. The proposed ordinance also would encumber or abolish rights of individual citizens in the existing City code by preventing those individuals from requesting rezoning of their private, residential property. We find the proposed ordinance’s restrictions on the City’s zoning authority would intrude into a matter of statewide concern given the comprehensive nature of the zoning statutes and the legislature’s delegation of that authority to the cities. Under Rauh, this weighs in favor of determining the proposed ordinance to be administrative in nature.
But beyond this, when we review the proposed ordinance’s literal obligations requiring that the City not allow rezoning, eminent domain use, or condemnation in the restricted locations by anyone, it underscores how this measure intrudes into a matter of statewide concern. In the eminent domain area, the legislature has seen fit to grant many different entities authority to condemn property for specific purposes. See K.S.A. 55-1205 (authorizing natural gas public utilities to exercise power of eminent domain); K.S.A. 66-911 (authorizing railway companies to exercise power of eminent domain); K.S.A. 68-1903 (authorizing highway authorities to acquire private or public property through condemnation); K.S.A. 2008 Supp. 72-8212a (authorizing unified school districts to exercise eminent domain power); and K.S.A. 2008 Supp. 74-99d08 (authorizing the Kansas Electric Transmission Authority to exercise eminent domain powers on behalf of corporations constructing, upgrading, or repairing electric transmission facilities).
To the extent the proposed ordinance may be read to require the City to take action to not allow those other entities to invoke the statutory authority granted them by the legislature, the ordinance may only be seen as an attempt to interfere with legislative delegations of authority. These are matters of statewide concern. This, too, makes the proposed ordinance administrative in character.
Disposition: the Commercial Development Petition is administrative under three of the four guidelines.
In applying the four guidelines to the Commercial Development Petition, we find it is principally executive or administrative in nature. We do so because: (1) Its broad restrictions pervasively intrude into various matters of statewide concern by attempting to impact rezoning and eminent domain authority by the City and other entities that have been delegated that authority by the legislature; and (2) the sweeping scope of the restrictions covering more than 90 percent of the City’s geographic area has the effect of permanently locking the City into its current zoning plan, which is a decision requiring specialized knowledge and training to fully comprehend its impact.
To recap, we find the subject matters of both the City Hall Petition and the Commercial Development Petition to be excluded under K.S.A. 12-3013(e)(l). The City’s refusal to adopt the ordinances or advance them for public vote was appropriate.
We affirm the district court for the reasons stated.
Luckert, J., not participating.
Malone, J., assigned.
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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 quieting title to real property in plaintiff and the four children who answered and filed cross-petitions, from orders overruling demurrers of plaintiff, and the order overruling plaintiff’s motion for new trial.
On April 30, 1950, Alice Stambaugh, who was sole owner in her own right of the land in question, died intestate leaving an undivided one half interest to her surviving husband, Frank Edward Stambaugh (hereafter referred to as F. E.) and an undivided one eighth interest to each of their children: Cecil, Wanda, Elsie, and Frank.
After Alice’s death F. E. married Myrtle and on April 14, 1951, the four children, together with their respective spouses, conveyed their interests to F. E. and he then owned the entire fee simple title. On this last point the children testified they received no consideration from F. E. for the deeds. They, had executed them to make it possible for him to obtain a loan.
On February 25, 1953, F. E. and Myrtle by warranty deed conveyed the land to L. T. Wendleton, and February 27, 1953, Wendleton contracted to sell the land to Wanda, one of the answering defendants in the court below, and her husband for $4,400 payable in monthly installments. The contract was not assignable. About this same time F. E. and Myrtle were divorced.
On September 22, 1955, F. E. married Martha who was his wife at the time of his death on August 28, 1958. They were in possession of the land. Martha had paid taxes and made extensive improvements on the land. After F. E. was buried, the four children told Martha they could not stand to see her live in the property and they were going to sell it. She told them of an unrecorded warranty deed executed by Mr. Wendleton to F. E. and her in joint tenancy when F. E. had paid back the $4,000 loan. Martha thereby claimed to be the sole and separate owner of the property.
Wendleton testified that F. E. had approached him for a loan and he had loaned him $4,000. F. E. then deeded the property to Wendleton and when F. E. repaid the loan he deeded it back. Wendleton held F. E. and Myrtle’s deed only as security for the loan and in deeding the property back, his only intention was to release his lien thereon.
The trial court overruled demurrers in plaintiff’s replies and the demurrer to defendants’ evidence. It was held that the children conveyed to F. E. with no consideration therefor in order that he could use the property for security in obtaining a loan. F. E. owned the property on February 25, 1953, when he and Myrtle conveyed it to Wendleton by warranty deed as security for a $4,000 loan. This was only a mortgage and Wendleton acquired only a lien on the property. The trial court further held that when on May 10, 1957, F. E. paid the loan, Wendleton, in order to release the security, gave a warranty deed to F. E. and Martha, in joint tenancy, which was not recorded until after F. E.’s death. The deed conveyed only a lien as security for the loan.
The trial court finally held that on August 27, 1958, F. E. died intestate leaving Martha, his widow, an undivided one half interest in the real estate in question; and an undivided one eighth interest to each of his four children: Cecil, Wanda, Elsie, and Frank. The title was so quieted in the five named persons.
Plaintiff appeals assigning six specifications of error which were consolidated and argued as three questions:
1. Did the trial court err in holding the deed to Wendleton was in fact a mortgage, and that Wendleton acquired no interest in the real property, so that the joint tenancy deed from Wendleton to appellant and her husband conveyed no interest in the property?
2. Did the trial court err in overruling appellant’s demurrer to the evidence?
3. Did the trial court err in overruling appellant’s demurrer set forth in her reply to the appellees’ cross-petition?
Plaintiff claims the deed from F. E. and Myrtle to Wendleton gave him fee simple title to the real property and that Wendleton’s unrecorded warranty deed to F. E. and plaintiff in joint tenancy now places fee simple title to the real property in plaintiff.
On the other hand, defendants, the four children of F. E. and Alice, who originally had been sole owner of the real property, testified they and their respective spouses transferred their one eighth interests to F. E. so he could mortgage the real property. They had done this to keep F. E. from losing that for which he had worked so long. No consideration ever passed from F. E. to any of the grantors. In keeping with the purpose of the transfers from the defendants to F. E., a loan of $4,000 was made and F. E. and Myrtle executed the deed to Wendleton, which deed, according to all of the defendants who testified, conveyed no title but was only 'security for the loan. This theory was further supported by the contract between Wendleton and defendant Wanda A. (Stambaugh) Van Lerberg and husband. However, defendants admitted that the Van Lerbergs made no payments thereunder. They finally contend that all Wendleton obtained was a lien as security for the loan he made to F. E. When the loan was paid he released his lien by the warranty deed in joint tenancy. According to Wendleton’s own testimony, he obtained the lien as security for his loan to F. E. and Myrtle when they executed their deed to him. Thus, F. E. and plaintiff remained trustees of the one half interest of defendants which defendants still owned.
Plaintiff cites Central National Bank v. Henderson, 142 Kan. 754, 51 P. 2d 982, where in the syllabus it was stated:
“In an action involving the question of whether a deed was a conveyance of property, or under the facts should be construed as a mortgage to secure a debt, the record is examined, and it is held the court’s finding that there was no debt and that the deed was a conveyance of title is sustained.”
The above rule not only does not sustain plaintiffs theory but as defendants claim with respect to the cited case, it lends support to defendants’ theory. The opinion discusses the proposition in some detail as follows:
“Normally, written instruments, intelligently executed by parties, are construed according to their terms. However, since the consideration for a deed may always be shown, if the evidence develops that there was a debt and that the deed was given to secure it, the deed will be construed to be a mortgage. (Dusenbery v. Bidwell, 86 Kan. 666, 671, 121 Pac. 1098.) While this showing may be by parol evidence, such evidence must be of a character to be clear and convincing. (Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127.) It is fundamental that an instrument in the form of a deed cannot be construed to be a mortgage to secure a debt unless the debt is found to exist. (Holuba v. Floersch, ante, p. 601, 50 P. 2d 1004.) So the question really gets back to the evidence in support of the contention that there was a debt, and whether the parties so understood and agreed, and whether by the execution of the instrument in the form of a deed they intended it should be used only as security for the debt. The special clause written in this deed perhaps had no effect other than its bearing on the intention of the parties. Since the court found there was no debt existing from defendants to plaintiff, and there is evidence to sustain this finding, it correctly concluded the deed was a conveyance of title and not a mortgage to secure a debt.” (pp. 757, 758.)
See, also, Kansas State Bank v. Wheeler Kelly Hagny Trust Co., 145 Kan. 325, 327, 65 P. 2d 299; Marshall v. Bailey, 183 Kan. 310, 314, 327 P. 2d 1034.
Another case discussed by both parties is Jones v. Jones, 161 Kan. 284, 167 P. 2d 634, where it was stated:
“An agreement that an instrument in form an absolute deed was executed and delivered only as security for the payment of a debt owing by the grantor to the grantee is not within the statute of frauds and such agreement may be proved by parol testimony.
“The character of the instrument as a mortgage having been established, upon payment of the debt, the debtor was entitled as a matter of law to have the mortgaged real estate reconveyed to him.
“The fact that an instrument in form an absolute deed was in reality only a lhortgage, must be proved by a clear preponderance of the evidence, but that rule is for the guidance of the trial court, and on appeal the appellate court assumes the trial court knew and applied that rule.” (Syl. ¶¶ 1, 2, & 3.)
The trial court in the Jones case found the deed in question was a mortgage and this court affirmed on evidence much weaker than is the evidence on the same finding in our present case.
Similar to this court’s decision in Central National Bank v. Henderson, supra, p. 758, we are compelled to state that since the trial court found a debt existed from F. E. and Myrtle to Wendleton, and there is evidence to sustain this finding, the conclusion that the deed was merely executed as a mortgage to secure the debt of $4,000 and was not a conveyance of title was correct.
The trial court properly quieted title in the following five named persons: Martha L. Stambaugh, the widow; and Cecil E. Stambaugh, Wanda Stambaugh Van Lerberg, Elsie Stambaugh Ross, and Frank E. Stambaugh, children of decedent. We have not overlooked other points raised and authorities cited, but think detailed discussion of them will add nothing material to this opinion.
Judgment affirmed.
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Tbe opinion of the court was delivered by
Fatzer, J.:
This appeal involves the question which of two probate courts, namely, the probate court of Sedgwick County or the probate court of Wabaunsee County, has jurisdiction to determine venue for the probate of the last will and testament of Elizabeth Eileen Morgans, deceased. A companion case, In re Estate of Morgans (No. 42,107), 187 Kan. 84, 360 P. 2d 1077, appealed from Wabaunsee County, is this day decided.
On January 6, 1958, Elizabeth Eileen Morgans executed her last will and testament in Wichita and deposited it the following day in the probate court of Sedgwick County pursuant to G. S. 1959 Supp., 59-620. On June 9, 1959, the testatrix died at Junction City, a resident of the state of Kansas. She had previously been adjudged incompetent by the probate court of Geary County and was confined in the county jail awaiting authorization for her admission to a state hospital. On the date of her death she owned real estate in Geary, Wabaunsee and Pottawatomie Counties and owned personal property in Sedgwick County.
On June 17, 1959, George E. Grist, an alleged creditor of the decedent’s estate, hereafter referred to as creditor, filed a petition in the probate court of Sedgwick County for the appointment of a special administrator to collect and conserve the property of the decedent until letters testamentary or of administration were granted. The petition alleged the testatrix resided at 723 S. Main Street, Wichita, Kansas, at the time of her death; that she was survived by Harvey L. Morgans, a minor son, then serving in the United States Navy, and that he was the decedent’s devisee and sole heir at law and named as executor in her last will and testament.
On the same day, June 17, 1959, the probate court of Sedgwick County appointed Charles Cotton as guardian ad litem to represent the interest of the minor heir, who filed an answer on behalf of the minor heir, denying generally the allegations of the petition. In its order appointing John H. Widdowson, of Wichita, as special administrator, the court found that no notice of hearing on the petition was necessary to be given.
The special administrator qualified, assumed his duties, and on June 30,' 1959, filed a supplemental petition in the probate court of Sedgwick County for probate of the decedent’s last will and testament executed by her on January 6, 1958. Notice was directed to be given pursuant to G. S. 1949, 59-2209 and the court fixed July 22, 1959, as the date for hearing the supplemental petition to probate the decedent’s will.
On July 16, 1959, Victor Hergenreter, as guardian for the minor heir at law, filed an answer in the probate court of Sedgwick County to the supplemental petition filed by John H. Widdowson as special administrator, hereafter referred to as special administrator, on June 30, 1959. The answer alleged that Hergenreter was the duly appointed and acting guardian of the person and estate of the minor heir who was the principal beneficiary under the decedent’s will and as such had an interest in the estate; that the special administrator was not a person interested in the estate of the decedent as that term is used in G. S. 1949, 59-2221; that at the time of her death the decedent was not a resident of Sedgwick County but was a lifelong resident of Wabaunsee County; that on June 24, 1959, Hergenreter, as guardian of the person and estate of the minor heir, filed a petition in the probate court of Wabaunsee County for the admission to probate of the decedent’s last will and testament of January 6, 1958; that on that date, June 24, 1959, the court made an order setting the petition for hearing on July 24, 1959, at Alma, Wabaunsee County, Kansas, and due notice of the hearing was given; that on June 25, 1959, the probate court of Sedgwick County forwarded the decedent’s last will and testament to the probate court of Wabaunsee County, and retained a copy thereof; that the appointment of the special administrator was not made for good cause shown in accordance with G. S. 1949, 59-710, and that the probate court of Sedgwick County was without jurisdiction of the decedent’s estate.
The hearing on the special administrator’s supplemental petition was continued from July 22, until September 17,1959, on which date the probate court of Sedgwick County heard statements of counsel and, without hearing evidence of the decedent’s residence, stipulated into the record that it had not theretofore and prior to the forwarding of the decedent’s last will and testament to Wabaunsee County on June 25, 1959, made any findings or adjudication of the residence of the decedent. At the conclusion of the hearing, the court made the following findings and order:
“The court finds that on the 24th day of June, 1959, a petition was filed in Wabaunsee County to probate the estate of Elizabeth Eileen Morgans and that the Judge of that Probate Court at that time, on the 24th day of June, made an order setting the time for hearing. The court further finds that under 59-2204 of the 1949, General Statutes of Kansas, that the commencement of proceedings in Probate is deemed commenced by the filing of a petition and causing the same to be set for hearing. The court further finds that under 59-2203, under general statutes that the proceedings were instituted in more than one county and they shall be stayed except in the county where first commenced until final determination of venue. The court further finds that proceedings were commenced in this estate first in Wabaunsee County, Kansas, and the proceedings in Sedgwick County are hereby ordered stayed.”
The special administrator and the creditor, the appellants here, appealed from the foregoing findings and order to the district court of Sedgwick County. As guardian, Hergenreter filed a motion, for judgment on the pleadings which was heard over the objection of the appellants on the ground that it was premature and prior to the hearing of any evidence of the residence of the decedent at the time of her death. On December 10, 1959, the district court sustained the motion and remanded the case to the probate court of Sedgwick County “to abide the further order of that court.” Hence, this appeal.
The appellants contend that when the decedent executed her will in Wichita and selected the probate court of Sedgwick County as the court of deposit, that court had exclusive jurisdiction pursuant to G. S. 1959 Supp., 59-620 to determine the question of venue for the probate of her will. They assert that until it heard evidence of the residence of the decedent at the time of her death and determined that the proper venue was in another county, it was without power to release the will to any other court, and that if proceedings were commenced in such other court, they were a nullity. The pertinent portions of G. S. 1959 Supp., 59-620 read:
“A will enclosed in a sealed wrapper, upon which is endorsed the name and address of the testator, the day when and the person by whom it is delivered, may be deposited in the probate court of the county where tire testator resides. . . . The court shall give a certificate of its deposit and shall retain such will. During the testator’s lifetime, such will shall be delivered only to him upon his written order witnessed by at least two subscribing witnesses. After the testator’s death, and upon being notified of such death, the court shall open the will publicly and retain tire same. Notice shall be given to the executor named in the will if he can be located and to such other persons as the court may designate. If the proper venue is in another court the will shall be transmitted to such court, but before such transmission a true copy thereof shall be made by and retained in the court in which the will was deposited. . . .”
The appellee contends that G. S. 1949, 59-2203 is decisive of the controversy, and relies upon that portion which reads:
“Proceedings for the probate of a will or for administration shall be had in the county of the residence of the decedent at the time of his death. . . . If proceedings are instituted in more than one county, they shall be stayed except in the county where first commenced until final determination of venue. If the proper venue is determined to be in another county, the court, after making and retaining a true copy of the entire file, shall transmit the original to the proper county. . . .”
He argues that when he filed a petition to probate the decedent’s will in Wabaunsee county on June 24, 1959, and the court on that same date set the petition for hearing on July 24, 1959, a probate proceeding was duly commenced in Wabaunsee County as provided in G. S. 1949, 59-2204; that since the supplemental petition to probate the decedent’s will in Sedgwick County was not filed until June 30, 1959, the proceeding was first commenced in Wabaunsee County within the meaning of G. S. 1949, 59-2203 and that court acquired jurisdiction to determine the question of venue, hence, the probate court of Sedgwick County properly stayed further proceedings.
It is to the credit of our Bar and probate judges that controversies concerning venue have arisen so seldom or have been so satisfactorily settled below that this court has not heretofore been called upon to pass upon the issue here presented — which of two probate courts has jurisdiction to determine the question of venue where the testator s will was deposited in one of the courts pursuant to G. S. 1959 Supp., 59-620, and the claim is made that the decedent died a resident of another county where proceedings were first commenced to probate the will.
Throughout the history of probate procedure in this state the statutory law has provided that proceedings for the probate of a will or for administration shall be had in the county of the residence of the decedent at the time of his death. (Laws 1862, Ch. 91, § 2; G. S. 1868, Ch. 37, § 1; R. S. 1923, 22-301; G. S. 1935, 22-301.) • In spite of anything that can be done by statutory or decision law, controversies are bound to arise, however infrequently, concerning the place of residence of deceased persons leaving estates which must be probated. It was to fix an orderly rule of venue and judicial comity for decision of that issue that G. S. 1949, 59-2203 was incorporated in the probate code of 1939. Prior to the adoption of the code, the law did not to any appreciable degree make a distinction between venue and jurisdiction (3 Bartlett’s Kansas Probate Law and Practice [Rev. Ed.], § 1160), and it was difficult to get the question of venue in any one court where there could be a final determination. The result was uncertainty, confusion, and at times, substantial loss (see Ewing v. Mallison, 65 Kan. 484, 70 P. 369, and cases cited therein; Dresser v. Bank, 101 Kan. 401, 168 P. 672; Edington v. Stine, 135 Kan. 173, 10 P. 2d 27). To remedy the situation, the code empowered probate courts to determine their own venue at the beginning, or as a result, of proceedings, before complications arose and loss resulted, so their judgments and decrees would have the same conclusive character, when the question of residence or venue was raised, that is according to judgments and decrees of district courts. In cases of doubtful residence the legislature deemed it as important that the question be settled conclusively as that it be settled correctly (In re Estate of Johnson, 180 Kan. 740, 308 P. 2d 100; 3 Bartlett’s Kansas Probate Law and Practice [Rev. Ed.], § 1161). In commenting on this distinction in In re Estate of Summerfield, 158 Kan. 380, 147 P. 2d 759, Mr. Chief Justice Harvey said:'
. . Jurisdiction is the power of the court to hear and determine a matter, while venue, in the sense here used, relates to the particular county of the state in which the proceeding must be heard, and when the proceeding is adversary, as under the new probate code, and all parties are before the court, the court will have jurisdiction to hear where the venue is even though it does not have venue to administer the estate. . . .” (l. c. 882, 383.) (Emphasis supplied.)
At first blush it would appear the two sections of the code here involved — G. S. 1959 Supp., 59-620 and G. S. 1949, 59-2203 — are in conflict, but a careful study of them, and other sections of the code, convinces us that is not the case. Manifestly, each section vests jurisdiction in probate courts to determine venue. The former statute relates specially to wills deposited “in the probate court of the county where the testator resides,” and the latter statute fixes the venue “for the probate of a will or for administration” to be in the county of the residence of the decedent at the time of his death. Each statute requires the probate court, if the proper venue is found to be in another county, to make and retain a true copy of the will (59-620), and of the entire file (59-2203), and to transmit the original to the proper county.
. When a will is deposited pursuant to G. S. 1959 Supp., 59-620, it is a portion of the records of the court of deposit and may be delivered only to the testator during his lifetime or upon his written order witnessed by at least two subscribing witnesses. Certain books are required to be kept by the probate court (G. S. 1949, 59-212) including “An index pertaining to wills deposited pursuant to section 56 [59-620] under the name of the testator.” Upon being notified of the testator’s death, the court shall open the will publicly and retain the same in its exclusive custody and give notice to the executor named in the will if he can be located and to such other persons as the court may designate, and permit the will to be read and examined only by such interested parties or their attorneys until an application is made for its admission to'probate, or until some proper action is taken by the court as will make the will a public record. If it is determined from all the evidence that the testator died a resident of the county of the court of deposit, the will shall be admitted to probate in that county. If it is determined that the testator died a resident of another county, that is, “if the proper venue is in another court,” the original will shall be transmitted to the probate court of such county to be presented for probate therein, but before transmitting the same, the court of deposit shall make and retain a true copy. We think it clear that the language of the statute, and particularly that part which reads, “if the proper venue is in another court,” compels the conclusion that the court of deposit has exclusive jurisdiction to determine the question of venue, and that the original will must be retained within the control of that court until the question of venue is resolved. No proceedings may be commenced elsewhere until proper disposition is made of the question of venue in the probate court of deposit, or on appeal, if any.
The conclusion just announced is not inconsistent with the intent and purpose of G. S. 1949, 59-2203. While a testator may deposit his will in a probate court, he is not required to do so; he may keep it wherever he chooses as he has the custody and control of it as long as he lives, and he usually keeps it where he keeps his other valuable papers. Where a testator does not deposit his will in the probate court, after his death any person having possession or custody of it, or knowledge and access to it, is required to deliver it to the court having jurisdiction, and for his willful neglect or refusal to do so, penalties and damages may be imposed. (G. S. 1949, 59-618, 59-621.) When the will is delivered to the court having jurisdiction, the first and essential prerequisite to any valid act for the probate of the will is to file a petition for its admission to probate and to set it for hearing and cause notice to be given pursuant to G. S. 1949, 59-2209. A probate proceeding is commenced in a probate court by filing a petition and causing it to be set for hearing. (G. S. 1949, 59-2204; In re Estate of Reed, 157 Kan. 602, 612, 142 P. 2d 824.) If it is claimed by anyone having an interest in the estate that the testator was a resident of a county other than the one in which he died and proceedings to probate his will are commenced in more than one county, provision is made in G. S. 1949, 59-2203 to avoid such conflict of jurisdiction and the confusion, uncertainty and loss which might result (see Ewing v. Mallison, supra; Dresser v. Bank, supra; Edington v. Stine, supra), and all proceedings are required to be stayed except in the county where first commenced until final determination of venue. If the proper venue is determined to be in another county, the court, after making and retaining a true copy of the entire file, shall transmit the original to the proper county.
It is evident from the foregoing that the framers of the probate code clearly intended that where a testator deposits his will in the probate court of the county of his residence, the court of deposit shall have exclusive jurisdiction to determine the question of venue, and that where a testator does not deposit his will but keeps it where he chooses, the court in which proceedings are first commenced to admit his will to probate has exclusive jurisdiction to determine the question.
We are, therefore, of the opinion, upon this branch of the case, that the probate court of Sedgwick County erred in staying proceedings in that court on September 17, 1959, and in finding that the probate court of Wabaunsee County had jurisdiction pursuant to G. S. 1949, 59-2203 to determine the question of venue for the probate of the decedent’s will. At that time the petition of the special administrator was pending to admit the decedent’s will to probate in Sedgwick County and, as previously indicated, that court had exclusive jurisdiction to determine the residence of the decedent at the time of her death. Likewise, on appeal, the district court of Sedgwick County erred in refusing to permit an inquiry into the actual residence of the decedent at the time of her death and in sustaining the appellee’s motion to dismiss the appeal.
The appellee contends the special administrator’s appointment was void and of no effect, and argues that he was not a person interested in the estate within the meaning of G. S. 1949, 59-2221, hence his supplemental petition to probate the decedent’s will in Sedgwick County was the act of a mere interloper and was insufficient to confer jurisdiction over the decedent’s estate. The contention is premised upon two points. First, that no proceedings were pending for the appointment of an executor or administrator in Sedgwick County, and second, the petition for appointment of a special administrator was not set for hearing.
With respect to the first point, the appellee refers to G. S. 1949, 59-710, and to that portion which reads:
“For good cause shown a special administrator may be appointed pending the appointment of an executor or administrator. . . .” (Emphasis supplied. )
and argues that any attempt to appoint a special administrator before a petition for appointment of an executor or administrator is on file and pending, is a nullity. We think it would violate the very spirit of the code to sustain the contention.
It is implicit from a consideration of the entire code, and particularly section 59-710, that “for good cause shown” a special administrator may be appointed to “perform duties respecting specific property, or to perform particular acts” before proceedings are commenced to probate a decedent’s will or to grant letters of administration. Clearly, tbe phrase “pending the appointment of an executor or administrator” was intended to mean the period from the time of death and during or until the appointment of an executor or administrator.
It is often essential for the proper control and conservation of estates pending the probate of a will or the granting of letters of general administration to appoint a special administrator, and a probate court should be liberal in granting special administration if there appears any reasonable need therefor. (S Bartlett’s, op. cit., supra, § 1169.) The instant case is a good example of the application of the statute “for good cause shown” to appoint a special administrator. When the testatrix died her principal beneficiary and sole hen at law was a minor son in the United States Navy and upon the high seas. Moreover, upon her death the guardian of her estate was discharged, and it was necessary that a suitable and proper person be appointed to collect and conserve the property of her estate. We conclude that the probate court of Sedgwick County had jurisdiction to appoint a special administrator upon the verified petition of the creditor under the facts and circumstances disclosed. This is not to say, however, that for good cause shown a special administrator may not be appointed during the pendency of the administration of an estate (2 Bartlett’s Kansas Probate Law and Practice [Rev. Ed.]), § 644; 3 Bartlett’s, op. cit., supra, § 1169).
Likewise, the second point is not well taken. The verified petition for the appointment of a special administrator contained allegations stating the necessary statutory requirements and the reasons for the appointment. The journal entry appointing the special administrator recited that the petition was in fact heard by the court; that evidence was introduced, and an order was entered showing that it was heard and no notice was required by the court to be given. Notice of the hearing of a petition should be given unless the court makes an order to the contrary dispensing with the giving of notice. (G. S. 1949, 59-2208; Barrett v. McMannis, 153 Kan. 420, 423, 110 P. 2d 774; 3 Bartlett’s op. cit., supra, § 1169.) One of the purposes for fixing the date for hearing a petition is to enable notice to be given, but it would seem that a separate order fixing such a date is unnecessary when the court finds that notice is not required to be given. From an examination of the record, the conclusion is inescapable that the petition was set for hearing, and that the court heard it and made a proper order appointing a special administrator. Being duly appointed and having qualified, the special administrator was a “person interested in the estate” within the meaning of G. S. 1949, 59-2221 and was a proper person to file the supplemental petition to probate the decedent’s will in Sedgwick County.
The judgment appealed from is reversed and the case remanded for further proceedings not inconsistent with this opinion. The district court of Sedgwick County is instructed to set aside all orders entered below and to certify the cause to the probate court of Sedgwick County to stand on the supplemental petition of the special administrator. All proceedings elsewhere are ordered stayed until the probate court of Sedgwick County determines the proper venue for the administration of the decedent’s estate.
It is so ordered.
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The decision of the court was delivered by
Nuss, J.:
This case requires us to determine the effect, if any, on the defendant’s guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), when he “stipulate[d] to the factual basis provided by the State.” A panel of the Court of Appeals held that Christopher Case stipulated to the facts, which eliminated the requirement that they be proven to a jury beyond a reasonable doubt before they could be used to increase his sentence beyond the prescribed statutory maximum. See Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). Because of these stipulated facts, the panel held that the district court was then allowed to find that the crime was sexually motivated. This determination ultimately allowed the district court to increase the length of the postrelease supervision component of Case’s sentence from the prescribed 12 months to 60 months. We granted Case’s petition for review under K.S.A. 60-2101(b). The State filed no cross-petition.
Case essentially argues that he merely stipulated that the State’s facts presented to the court at the plea hearing provided a factual basis for his Alford plea. He did not stipulate or agree that they were true, because this type of admission of guilt is contrary to the fundamental nature of an Alford plea. Case contends that because he did not admit that his crime was sexually motivated, the district court’s finding to this effect was improper and resulted in an increased sentence in violation of Apprendi.
We agree with Case.
FACTS AND PROCEDURAL BACKGROUND
The essential facts are not in dispute. Case was initially charged with one count of aggravated indecent liberties with a child and one count of lewd and lascivious behavior, both allegedly committed against K.A.H. Pursuant to a written plea agreement, these charges were dismissed, and Case entered an Alford plea to an amended charge of aggravated endangering of a child in violation of K.S.A. 21-3608a, a severity level 9 person felony. Within his written plea agreement, he “stipulate[d] to the factual basis provided by the State” for the amended charge. The document also reflected an agreement of both parties to recommend an upward durational departure of 10 months from the grid box’s aggravated prison sentence of 17 months, and an express waiver of Apprendi rights as to the factual basis for such a departure.
At the plea hearing 4 days later, in presenting its factual basis for the endangerment charge, the State asserted that on two dates in 2006, Case placed K.A.H., who was under the age of 14, in a situation where her life, body, and health could have been injured or endangered, by lewdly fondling and touching her person with the intent to satisfy his sexual desires and by exposing himself to her. Neither Case nor his attorney had any objections or exceptions to the State’s factual basis.
At the conclusion of the hearing, Case agreed that he was receiving the benefit of the bargain — a shorter sentence — by entering an Alford plea and expressed his wish to proceed. Accordingly, the court accepted Case’s plea and found him guilty of the charge.
The sentencing hearing was held approximately 2 months later. Per the plea agreement, the court sentenced Case to a prison term of 27 months. Although K.S.A. 22-3717(d)(l)(C) calls for post-release supervision of 12 months for this level of offense, the court imposed an upward departure to 60 months as authorized by K.S.A. 22-3717(d)(l)(D)(i) for crimes that the court finds are sexually motivated. The court found that Case’s crime was sexually motivated, through the stipulated factual basis which included a prosecutorial statement that the “touching was done with the intent to satisfy the sexual desires of the offender.” To support a “sexually motivated” determination, K.S.A. 22-3717(d)(2) requires that “one of the purposes for which the defendant committed the crime was for the purpose of the defendant’s sexual gratification.”
In hearing Case’s appeal, the Court of Appeals panel repeatedly emphasized his stipulation to the facts. It held, for example, that he “stipulated to the factual basis for his plea,” that he “stipulated to the factual basis presented by the State,” and that he “stipulated to the charge’s factual basis provided by the State.” State v. Case, 2008 WL 2425674, at *3 (Kan. App. 2008) (unpublished opinion). The panel also observed that based upon its examination of the plea hearing transcript, it believed “Case understood his rights to object to the State’s factual statement and persisted in his desire to stipulate to the factual basis for his crime, even in the face of an implicit warning that so stipulating might have adverse consequences for his term of postrelease supervision.” Case, 2003 WL 2425674, at *3. It noted:
“Where a criminal defendant stipulates to a material fact supporting an aspect of his or her sentencing, this is sufficient to waive rights under Apprendi. See Blakely v. Washington, 542 U.S. 296, 310, 159 L. Ed. 2d 403, 124 S. Ct. 296 (2004) (when a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts, or consents to judicial factfinding).” Case, 2008 WL 2425674, at 53.
Accordingly, while the panel acknowledged that the elements of aggravated child endangerment do not automatically establish that the crime was sexually motivated, it held that “because Case stipulated to the facts which the trial court relied upon to impose the extended postrelease supervision term, there was no extrajudicial factfinding and Apprendi was not violated.” (Emphasis added.) Case, 2008 WL 2425674, at *3.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue: Admitting facts, including the acts of the crime, is directly contrary to the nature of Case’s Alford plea.
The key to analyzing the single issue presented by Case’s petition for review requires understanding those pleas which are based upon the Supreme Court’s holding in North Carolina v. Alford, 400 U.S. 25. An Alford plea is a “plea of guilty to the charge without admitting to the commission of the offense.” State v. Johnson, 255 Kan. 156, 157, 872 P.2d 247 (1994). This can be accomplished in two ways: “without admitting the acts of the crime or even protesting innocence, if the defendant intelligently concludes defendant’s interest so requires.” State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999); see United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995) (The two possible Alford-type guilty pleas are when the defendant affirmatively protests his or her innocence or refuses to admit to acts constituting a crime.) (cited in State v. Edgar, 281 Kan. 30, 43, 127 P.3d 986 [2006]).
Alford pleas are sometimes confused with pleas of nolo contendere or “no contest.” See Tunning, 69 F.3d at 110. One commentator has described the latter plea as follows:
“A plea of nolo contendere or ‘no contest,’ is ‘a plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.’ During such pleas a defendant is agreeing to refrain from contesting, rather than affirmatively voicing his guilt to, the charge or charges.” (Emphasis added.) Roberts, The Mythical Divide Between Collateral and Direct Consequences of Criminal Convictions, 93 Minn. L. Rev. 670, 729-30 (2008).
See also K.S.A. 22-3209(2) (“A plea of nolo contendere is a formal declaration that the defendant does not contest the charge.”).
At the heart of both the Alford and nolo contendere pleas, however, is a common factor: a defendant does not admit the facts upon which his or her guilt for the crime would be based. “The basic premise behind both . . . pleas is that ‘[a]n individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.’ ” 93 Minn. L. Rev. at 730 (quoting Alford, 400 U.S. at 37).
A review of the record evidence in the instant case reveals that all players — Case, his counsel, the prosecutor, and the judge— repeatedly acknowledged that Case was pleading guilty pursuant to Alford.
We initially observe that Case, his counsel, and the prosecutor all signed “Defendant’s Acknowledgment of Rights and Entry of Plea.” As paragraph 2 clearly provides in relevant part, Case was pleading guilty under Alford.
“2. Plea negotiations have been conducted, with my consent, through my attorney, and I understand the plea agreement with the County Atttfmey to be as follows:
“In Case No. 06 Cr 130, Defendant will plead guilty pursuant to North Carolina v. Alford, 400 U.S. 25, [27 L. Ed. 2d 162,] 91 S. Ct 160 (1970) to Count I, Aggravated Endangerment of a Child, in violation of K.S.A. 21-3608a, a severity level 9 person felony, as charged in the Amended Complaint/Infor mation filed herein. Defendant stipulates to the factual basis provided by the State and acknowledges that the State’s evidence is more than sufficient for a jury to find Defendant guilty of the charge beyond a reasonable doubt if this matter proceeded to trial.”
Just as the document began with a statement of Case’s agreement with the State to plead guilty pursuant to Alford, it concludes with his notice to the court of his desire to actually enter that plea:
“WHEREFORE, and for the reasons stated above, I hereby advise this Court that I wish to change my plea from not guilty and enter a plea of guilty pursuant to North Carolina v. Alford to Count I of the Amended Complaint/ Information filed herein.” (Emphasis added.)
The plea agreement admittedly contains, in one place, the phrase upon which the panel heavily relied — “Defendant stipulates to the factual basis provided by the State.” As interpreted by the panel, this phrase serves as Case’s virtual admission that he committed the acts of the crime. See K.S.A. 22-3209(1) (“[a] plea of guilty is admission of the truth of the charge and every material fact alleged therein”). Such an interpretation, of course, is directly contrary to the essence of an Alford plea: “plead[ing] guilty without admitting the acts of the crime.” (Emphasis added.) Taylor, 266 Kan. at 979; see Johnson, 255 Kan. at 157 (Alford plea “is a plea of guilty to the charge without admitting to the commission of the offense”). Consequently, the plea agreement appears to contain conflicting language, which in turn leads to different interpretations as to the fundamental nature of Case’s plea.
We have held that where a plea agreement is reasonably susceptible to different interpretations, it is ambiguous. State v. Willis, 244 Kan. 62, Syl. 2, 765 P.2d 1114 (1988). And where a plea agreement is ambiguous, such an agreement must be strictly construed in favor of the defendant. Willis, 244 Kan. 62, Syl. ¶ 1; see also State v. Patton, 287 Kan. 200, 228, 195 P.3d 753 (2008) (“As the district court suggested in this case, it is not too onerous a burden to require the State to be explicit about the terms it requires in plea agreements.”). Accordingly, Case’s plea agreement requires that the plea it contains be treated as one pursuant to Alford.
As a result, the phrase “Defendant stipulates to the factual basis provided by the State” effectively means that Case acknowledges what that evidence is but does not admit its truth. When the phrase is read in conjunction with the rest of Paragraph 2, that paragraph effectively means that Case acknowledges that such evidence is sufficient to convict him. Similarly, in Parson v. Carroll, 272 Va. 560, 566, 636 S.E.2d 452 (2006), defense counsel told the court that based on his client’s Alford pleas — where he did not admit the crime — that nevertheless, “[w]e would stipulate that the evidence as presented and if believable would have been sufficient.” (Emphasis added.)
Despite our construction and treatment of the plea agreement, and the panel’s own acknowledgment that Case “entered an Alford plea to the charges against him” {Case, 2008 WL 2425674, at *3), the panel seems to suggest that statements and occurrences at the plea hearing essentially transformed the Alford plea into a pure guilty plea. It held:
“[1] Here, Case stipulated to the factual basis presented by the State, and that factual basis included the allegation that Case’s lewd fondling and touching were done ‘with the intent to satisfy his sexual desires.’ [2] He also acknowledged to the court his understanding that based on sexual motivation for the crime, the court could, indeed, impose an extended postrelease supervision term up to 60 months, and that ‘if [he] need[ed] to present evidence in that regard, [he] may do so.’ Although somewhat inartful, this acknowledgment came in the context of extensive discussion with the court about the possible upward departure and his right to have a jury determine any aspect of the State’s factual statement. From our examination of the entire plea hearing, we believe Case understood his rights to object to the factual statement and persisted in his desire to stipulate to the factual basis for his crime, even in the face of an implicit warning that so stipulating might have adverse consequences for his term of postrelease supervision.” Case, 2008 WL 2425674, at *3.
Based upon our own review of the plea hearing transcript, we disagree. The transcript discloses that the judge joined the prosecutor, Case, and defense counsel in repeatedly recognizing that Case’s guiliy plea was “pursuant to North Carolina v. Alford.” When Case was asked how he pled, he made it clear: “Your Honor, I plead guilty, pursuant to, uh, North Carolina v. Alford.” The judge then ascertained Case’s desire to plead guilty pursuant to Alford as contained in both Case’s written plea agreement and in his plea given at the hearing moments before: “Now, Mr. Case, my understanding, from reviewing this [Defendant’s Acknowledgment of Rights and Entry of Plea], is you’re going to enter a plea of guilty, which you’ve already done, pursuant to North Carolina v. Alford, to Count 1.”
This ascertainment was made yet again shortly before the court asked for the factual basis for the plea:
"[Court]: Now, you’re entering this plea of guilty, pursuant to 'North Carolina v. Alford.
“[Defendant]: Yes, Your Honor.”
After this reconfirmation, the court then asked the State for the factual basis for the plea. In the prosecutor’s reply, he once again confirmed Case was pleading guilty pursuant to Alford:
“Your Honor, if this matter proceeded to trial, the evidence would show that, um, between May 17th in 2006, and June 21st — May 17th, 2006, and June 21st, 2006, Mr. — uh, Christopher Michael Case was in the, uh, presence of a young lady, who I’m going to refer to as K.A.H., who was under the age of 14 years of age, in fact, uh, she was 9 years old; and that in the course, uh — knowing that he had been convicted, of, uh, sexual offenses out of Saline County, and knowing that he was a registered sex offender, he placed her in a situation where her, uh — the child’s life, body, and particularly, her health, could be injured or endangered; that during this period of time there was, in fact, lewd fondling and touching of tire child, who was under the age of 14 years of age, and that touching was done with the intent to satisfy the sexual desires of the offender, Christopher Michael Case; that, also, during that time frame there was a, uh, incident where the defendant actually exposed himself to this young child. Um, that is what the facts would present. Those, uh, contacts all occurred within Dickinson County, Kansas. Um, and, um, based upon that, and the plea pursuant to North Carolina v. Alford, that is still the factual basis. But we feel that is sufficient for the amended complaint, to wit; the aggravated endangerment, inasmuch as we had a child’s, uh— um, life, body, or health — and, particularly, the health, uh — to be injured or endangered, pursuant to the direct actions of the defendant towards that child.” (Emphasis added.)
The prosecution’s recitation does not represent that Case “stipulated to” or agreed with the truth of the State’s factual basis. Nor does it represent that Case otherwise admitted the acts of the crime or the commission of the offense. See Taylor, 266 Kan. at 979; Johnson, 255 Kan. at 157. Rather, it merely provides that “if this matter proceeded to trial, the evidence would show” he committed the crime. In short, the prosecutor has simply recited a factual basis for Case’s “plea pursuant to North Carolina v. Alford,” which the court must be satisfied is sufficient in order to accept the plea. Cf. K.S.A. 22-3210(a)(4) (“plea of guilty or nolo contendere may be accepted when . . . the court is satisfied that there is a factual basis for the plea”). See Alford, 400 U.S. at 38 n.ll (a criminal defendant does not have an absolute right under the United States Constitution to have his or her guilty plea accepted by the court). Case himself cannot recite the factual basis for the court because to do so would be an admission to committing the crime.
After this factual recitation by the State, the court then asked for comments from Case and his counsel:
“[Court]: Exceptions or objections, Mr. Malcolm [Defense Counsel]?
“[Defense Counsel]: None, Your Honor.
“[Court]: Mr. Case, do you have any exceptions or objections to the State of Kansas’ factual basis?
“[Defendant]: No, Your Honor.”
The panel’s belief that “Case understood his rights to object to the factual statement and persisted in his desire to stipulate to the factual basis for the crime” apparently was based, at least in part, on the above exchange. Case, 2008 WL 2425674, at *3. However, having no “exceptions or objections” to the factual basis recited by the State, which itself contained no admissions or stipulations by Case, is entirely consistent with an Alford plea. See Taylor, 266 Kan. at 979 (an accused may plead guilty without admitting the acts of the crime or even while protesting innocence). Indeed, later Case’s counsel was careful to confirm yet again the exact nature of Case’s plea. When asked by the court if he knew any reason why Case’s plea should not be accepted, counsel replied: “No, I know of no reason why you shouldn’t accept his plea of guilty, pursuant to North Carolina v. Alford.” Based upon the holding in Alford and our characterization of the plea agreement, there is absolutely no requirement that Case or his counsel object to the factual statement provided by the State. They need only refrain from admitting to the commission of the offense. See Johnson, 255 Kan. at 157.
As mentioned, the panel believed that Case “persisted in his desire to stipulate to the factual basis for his crime, even in the face of an implicit warning that so stipulating might have adverse consequences for his term of postrelease supervision.” Case, 2008 WL 2425674, at *3. This belief was also apparently based, at least in part, on the following courtroom exchange immediately before the State’s recitation of the factual basis for the plea:
“[Court]: . . . I’m going to put you on notice right now — that inasmuch as the inclination of this offense is that it is sexually motivated — that this court could depart from that — that 12 to 24 months, and you could be placed up to 60 months on supervised — or on post-release supervision, which would be commonly known to you as parole. Do you understand that?
“[Defendant]: Yes, Your Honor.
“[Court]: You understand, right now it’s 12 to 24 months, but I’m putting you on notice right now that I am contemplating, so, if you need to present evidence in that regard you may do so because we will have a hearing in that regard. I’m putting you on notice right now, that your postrelease supervision period, that I am contemplating on departing and moving upward, to 60 months. Do you understand that?
“[Defendant]: Yes, Your Honor.”
The panel again appears to characterize Case’s responses as stipulations to the truthfulness of the State’s factual basis. They are not. While Case perhaps should have objected at that time to the court’s proposed action as violative of Apprendi, the panel did not find this failure barred consideration of the issue on appeal. And just as a defendant who enters an Alford plea has no obligation to object to the State’s factual basis, he or she also has no obligation to accept the court’s invitation to put on evidence. Instead, the defendant is fully justified in simply refusing to admit committing the offense. Johnson, 255 Kan. at 157. In an Alford plea, failure or even refusal to object to the presented facts or to put on evidence does not equate to an admission of facts and does not empower the trial court to make findings based upon those purported admissions to increase the sentence beyond the prescribed statutory maximum.
In short, throughout the 35-page transcript of the plea hearing, Case’s guilty plea was always identified by everyone on the record as being given pursuant to Alford, was accepted by the court as an Alford plea, and was always treated as such by the State, Case, and his counsel.
The Court of Appeals’ decision in State v. McCray, 32 Kan. App. 2d 673, 87 P.3d 369 rev. denied 278 Kan. 850 (2004), contains some parallels. There, defendant appealed the district court’s denial of his motion to withdraw his Alford plea. He had signed a seven-page “Petition to Enter an Alford Plea and Advice of Rights in Regard Thereto” and a five-page “Agreed Statement of Expected Testimony as Factual Basis for Defendant’s Alford Plea.” 32 Kan. App. 2d at 675. The McCray panel tellingly described the subsequent events, and these documents, as follows:
“At the plea hearing, the district court . . . accepted McCrays petition to enter the Alford plea, as well as the written stipulated facts supporting the factual basis for the plea. McCray s counsel specifically agreed that the written stipulated facts summarized the evidence the State believed it could produce at trial.” (Emphasis added.) 32 Kan. App. 2d at 675.
Despite the panel’s characterization of the documents as “written stipulated facts supporting the factual basis for the plea,” it did not characterize these documents as containing stipulations estabhshing the defendant admitted the acts of the crime. In fact, the McCray panel suggested the opposite. In rejecting the defendant’s argument that the district court was required to discuss the facts in the written statement with him or to make inquiry of him on the record about the statement, the panel stated in relevant part:
“Here, McCray submitted a detailed ‘Agreed Statement’ for the purpose of supporting his plea .... It seems particularly counterproductive to require discussion with the defendant regarding the factual basis to support an Alford plea; the very nature of such a plea makes it unlikely that the defendant would agree with or accept the factual basis since it would presumably undermine his purported innocence.” (Emphasis added.) 32 Kan. App. 2d at 678.
In short, despite defendant’s “written stipulated facts supporting the factual basis for the plea,” he likely would not “agree with” or “accept” that factual basis because to do so would be inconsistent with his Alford plea. His purported innocence can be express, through the protestation of innocence, or implied, by simply not admitting the acts of the crime. See Taylor, 266 Kan. at 979. McCray illustrates that a defendant’s Alford plea can peacefully coexist with his or her stipulation to the factual basis of the plea— because such a stipulation is not an admission of the truth of those facts.
Potential confusion can be considerably lessened, if not eliminated, by language in the plea documents stating that the defendant merely stipulates that the facts presented by the State are sufficient to prove guilt beyond a reasonable doubt to a jury and therefore provide a sufficient factual basis for the Alford plea. The language would also state, however, that the defendant does not stipulate or agree that those presented facts are true.
Although Case entered an Alford guilty plea, and not a nolo contendere plea as did the defendant in State v. Allen, 283 Kan. 372, 153 P.3d 488 (2007), that case is of additional guidance. There, the court accepted defendant’s no contest plea to one count of aggravated indecent liberties with a child, a sexually violent crime. It then found that his 1987 juvenile adjudication of aggravated incest, also pursuant to a no contest plea, was “sexually motivated,” making it also a “sexually violent crime” under K.S.A. 2004 Supp. 22-3717(d)(2)(L). 283 Kan. at 375-76. This determination in turn allowed the court to find that Allen was a “persistent sex offender” and to double his sentence pursuant to K.S.A. 2004 Supp. 21-4704(j)(l).
We held the sentencing court’s finding that the 1987 juvenile adjudication was sexually motivated constituted judicial factfinding for increasing the penalty of the crime beyond the prescribed statutory maximum and violated Apprendi. We concluded that ‘Apprendi and Gould render unconstitutional a sentence enhancement ordered by a sentencing judge who found additional facts not admitted to in a guilty plea.” (Emphasis added.) 283 Kan. at 377. In the instant case, the sentencing judge likewise found an additional fact not admitted to by the defendant. Contrast Allen with State v. Anthony, 273 Kan. 726, 45 P.3d 852 (2002), where
“the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended postrelease supervision period under K.S.A. 2001 Supp. 22-3717(d)(l)(D)(i). In doing so, the court was not required to make an additional finding of fact beyond that made by the jury. Because the fact relied upon to extend the period of post- release supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period imposed does not violate Apprendi or Gould.” 273 Kan. at 729.
The judgment of the Court of Appeals is reversed, the sentence is vacated, and the case is remanded for imposition of sentence.
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The opinion of the court was delivered by
Wertz, J.:
Plaintiffs Graves, Bishop and Thompson, doing business as Graves Drug Store No. 11, Arkansas City, appellees herein, held drug store permit No. 2725, renewal No. 483. Under date of March 26, 1958, the State Board of Pharmacy, defendant (appellant), hereinafter referred to as the board, issued its order revoking plaintiffs’ permit and renewal (G. S. 1957 Supp., 65-1627), effective April 6, 1958.
On April 1, before the revocation became effective, plaintiffs filed their petition in the district court of Butler county against the board, under the provisions of G. S. 1957 Supp., 65-1628, seeking the vacation, modification or reversal of the order of revocation and a stay of execution of said order pending hearing of the cause on its merits. The petition set forth various errors on the part of the board in making its order, which are not pertinent herein. On April 5, the trial court, under the provisions of section 65-1628, issued the following stay order:
“4/5/58. Stay of execution of order revoking drug store permit No. 2725 and renewal No. 483 granted until case is heard on its merits. Set for trial May 12, 1958 at 9:00 a. m.”
Issues were joined prior to the date set for hearing, but the case was continued from time to time at the request of the parties. Permit No. 2725 and renewal No. 483, the board’s revocation of which was stayed by the trial court, expired by their terms June 30, 1958 (G. S. 1957 Supp., 65-1645). The board issued to plaintiffs a new drug store permit, or renewal, which expired by its terms June 30, 1959, and at that time another permit, or renewal, was issued until June 30, 1960.
On October 8,1959, plaintiffs moved for judgment on the ground that the questions in issue in the action were moot. On November 16, 1959, the trial court, in sustaining plaintiffs’ motion for judgment, found that plaintiffs’ action was filed April 1, 1958; that a hearing was held April 5, when trial was set for May 12; that by agreement of the parties the case was continued without date, and that the March term of court had ended June 9, 1958, which had given the parties sufficient time for a hearing before the permit expired by its own terms on June 30. The court further found that a new permit, or renewal, had been issued until June 30, 1959, when another renewal became effective. It further found that under section 65-1628 the board could have refused to issue the renewal which became effective June 30,1958, or could have refused to issue the renewal which became effective June 30, 1959; that permit No. 2725 and renewal No. 483 expired by their own terms on June 30, 1958, and that the question in the case was moot. Judgment was entered for plaintiffs, from which order defendant appeals.
Plaintiffs assert that the original permit and renewal revoked by the board expired by their own terms, and contend that the subsequent action of the board in issuing new permits rendered all questions in issue moot.
Defendant contends that the stay order entered by the lower corut had the force and effect of an injunction and the board therefore had no alternative but to issue the renewals of the permit and renewal previously revoked.
G. S. 1957 Supp., 65-1645 provides in part that all permits shall expire June 30 following the date of issuance, and shall be renewed annually. There is no statute which requires the board to issue a permit or grant a renewal for an annual period. The person seeking the same must take affirmative action as provided by statute (G. S. 1957 Supp., Ch. 65, Art. 16), and there is no provision therein for the automatic extension or renewal of a permit. Each renewal permit is given a number distinct and separate from that of the preceding one. It is obvious the trial court did not stay or prevent the board from taking whatever action concerning the issuance of a new permit, or renewal, it deemed advisable.
We find no merit in defendant’s contention. The trial corut merely ordered the stay of execution of the order revoking permit No. 2725 and renewal No. 483 until the case could be heard. Under the provisions of section 65-1628, the board could have refused to issue a new permit, or renewal. No order was issued with reference to defendant’s issuing a new permit, or renewal, under the statute. The stay order was not an injunction and it did not have the force and effect of such. Section 65-1627, which provides for revocation of permits, states that the board may, for the reasons listed therein, revoke any permit, and that any permit which has been revoked under any of the provisions of the act may be reinstated by the board.
It is to be observed that the permit and the renewal, the revocation of which gave rise to this action, had, by their terms, expired June 30, 1958, and were no longer effective. The plaintiffs were, at and prior to the time the trial court entered its judgment, operating their drug store under a new permit, or renewal, granted by defendant board. When it clearly appears that by reason of changed circumstances between the filing of an action and the trial thereof any judgment the trial court might render would be unavailing as to the particular issue presented, the case is moot and judicial action ceases. (Dick v. Drainage District No. 2, 175 Kan. 869, 267 P. 2d 494; State, ex rel., v. Eastin, 179 Kan. 555, 297 P. 2d 170, and cases cited therein.) When the only relief sought and the need for that relief has ceased to be a justiciable issue, ordinarily this court, on appeal, will not consider or decide the mooted issue, whether one of law or fact. (Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113; Epperson v. Department of Inspections & Registration, 147 Kan. 762, 78 P. 2d 850; State, ex rel., v. Eastin, supra.)
Inasmuch as the question in issue was moot, the trial court had no authority to enter any judgment other than a dismissal of the action. The judgment of the trial court is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Fatzeb, J.:
This was an action to recover damages for personal injuries. The appeal is from an order of the district court sustaining defendants’ demurrer to plaintiff’s petition. The parties will be referred to as they appeared in the court below.
Plaintiff, an infant seven years of age, commenced this action by and through his mother as next friend on November 27, 1959. The petition described in detail the circumstances under which plaintiff was injured. The physical facts alleged are that plaintiff lives with his parents in an apartment building owned by defendants. They moved into the apartment in March 1959. Prior to moving into the apartment, plaintiff’s parents advised defendants that the 2x4 wooden railing or banister on the small back porch was inadequate and dangerous for their small children, including plaintiff. Defendants assured them they would make repairs on the porch as soon as their regular workmen were available. Upon that assurance, plaintiff and his parents moved into the apartment and became tenants of defendants. As time went by no repairs were made and plaintiff’s parents made repeated requests to defendants to fulfill their promise to repair, but defendants failed to do so. On October 4, 1959, at about 8:30 p. m. while plaintiff was on the small back porch to hang up some diapers, he lost his footing, rolled through or under the banister and fell approximately fifteen feet to the ground, causing serious injuries fully described in the petition.
We first point out that this case does not involve a portion of leased premises retained by the landlord such as a common staff-way, halls, porches or lands, since the petition clearly alleged that the only access to the small back porch was from the plaintiff’s parents’ apartment and that no stairs lead to or from the porch.
It is apparent from the district court’s memorandum decision sustaining the demurrer that it relied upon Murrell v. Crawford, 102 Kan. 118, 169 P. 561. In reaching its decision the district court noted that plaintiff cited the case of Waterbury v. Riss & Company, 169 Kan. 271, 219 P. 2d 673. It further noted that at page 291 this court cited and quoted with approval the Restatement of the Law of Torts, Section 357, which rule seemed to be in conflict with the Murrell decision, but concluded the Waterbury case did not change the law of this state with respect to living quarters as announced in the Murrell case, since the premises involved in the Waterbury case was business property.
In Murrell v. Crawford, supra, plaintiff rented a house from defendant upon defendant’s promise that the porch would be repaired immediately and put in a safe and tenantable condition. The landlord failed to repair the porch and the tenant was injured when she fell through a rotted portion of it. In denying recovery for personal injury this court recognized that a cause of action against the landlord was created by his breach of the covenant to make repairs, and held that (1) the measure of damages was the difference between the rental value of the premises as they were and what it would have been if they had been put and kept in repair; (2) a breach of tire landlord’s covenant to repair the dwelling house did not extend to include a liability for personal injury sustained by the tenant in the use of the unrepaired property since loss of life or limb was not a natural and probable consequence which ordinarily and reasonably could be anticipated from a breach of the covenant to make repairs, and (3) where a tenant knew the porch was defective and in need of repair but continued to use it for several months, and was injured thereby, she was guilty of contributory negligence as a matter of law as will bar a recovery for such injuries, notwithstanding the landlord promised to repair the porch but failed to do so.
In Waterbury v. Riss & Company, supra, the lessor orally promised the lessee that he would repair the floor of the leased warehouse, but failed to do so. Later, when a deliveryman entered upon the leased premises, the floor gave way and he was killed. In affirming the liability of the landlord, this court said:
“. . . The American Law Institute, in its Restatement of Torts, § 357, lays down what appears to be the applicable rule as follows:
“ ‘A lessor of land is subject to liability for bodily harm caused to his lessee and others upon the land with the consent of the lessee or his sub-lessee by a condition of disrepair existing before or arising after the lessee has taken possession, if
“‘(a) the lessor, as such, has agreed by a covenant in the lease or otherwise, to keep the land in repair, and
“‘(b) the disrepair creates an unreasonable risk to persons upon the land which the performance of the lessor’s agreement would have prevented.’ (Our emphasis.)” (l. c. 291.)
We quote the comment and illustration of the American Law Institute’s Restatement of the Law of Torts, § 357, which are particularly pertinent to the point in question:
“Comment:
“a. Nature of lessor’s duty. The lessor’s duty to repair insofar as its breach subjects him to liability for bodily harm caused to the lessee and those upon the land in his right, is not contractual but is a tort duty based on the fact-that the contract gives the lessor ability to make the repairs and control over them. The lessor is not liable for bodily harm caused even to his lessee by his failure to make the premises absolutely safe. He is liable only if his failure to do so is due to a lack of reasonable care exercised to that end. Like many other tort duties to keep land in safe condition, the lessor’s duty to repair is not delegable, and he is liable as fully where tire failure to make the premises reasonably safe is due to the negligence of an independent contractor to whom the lessor has entrusted the performance of his contract as he is where it is due to his own personal negligence. Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need of repairs, a contract to keep the interior in safe condition subjects the lessor to liability if, but only if, reasonable care is not exercised after the lessee has given him notice of the need of repairs.
“Illustration:
“A leases an apartment in a tenement house to B and agrees to keep the tenement in good internal repair upon notice by the tenant of the necessity of so doing. B notifies A that the ceiling of one of the rooms becomes in need of repairs. The condition is not such as to threaten an immediate fall of the ceiling. While B, C, his wife, and D, a friend, are eating supper in the room, the ceiling falls and causes harm to them. A is liable to B, C and D, if, but only if, the ceiling fell after A has time, subsequent to receiving B’s notice, to make the repairs, had he exercised reasonable diligence and care.” (pp. 967, 968.)
The following is a portion of an annotation from 163 A. L. R. 300, entitled "Lessor — Promise to repair — Injury”:
“At the time the earlier annotations on the present subject were written there was clearly a majority and a minority view as to the liability of a landlord for personal injuries where there was a total failure to perform an agreement to repair the leased premises. The majority rule was that the landlord was not liable. However, there is now a pronounced trend toward the view that the landlord is liable for personal injuries under such circumstances, and the American Law Institute’s Restatement of the Law of Torts accepts this view. (See § 357.)
“It now seems improper to say that it is the majority rule that the landlord is not liable for .personal injuries, for it is doubtful whether a majority of the courts adhere unqualifiedly to this view.”
While the opinion of Waterbury v. Riss & Company, supra, does not cite Murrell v. Crawford, supra, an examination of the briefs and abstracts on file in the State Library discloses that it was cited and relied upon by an appellant in support of its contention that it was not liable for personal injuries sustained as a result of failure to make the agreed repairs. The fact that this court affirmed the judgment in Waterbury in favor of the decedent’s plaintiff and against the landlord and relied upon the Restatement of the Law of Torts, Section 357, as its authority for doing so, compels the conclusion that what was said and held in the Waterbury case is the prevailing law of this state, and Murrell v. Crawford was impliedly overruled.
It occasionally happens ihat the unsoundness of a rule of law is demonstrated by its application to succeeding cases, or by lapse of time and changed conditions of society, and that it should therefore be overruled by the court or altered by the legislature. Rut the decision in Waterbury is not a maverick in the judicial wilderness. Previous to that decision, the Restatement of the Law of Torts, Section 357, and comment thereon was cited with approval in Brunsilius v. Farmers & Merchants State Bank, 143 Kan. 148, 150, 53 P. 2d 476. Failure to recognize the foregoing conclusion that Waterbury announced the prevailing rule of law would require us to say that two rules exist in the law of this state with respect to a landlord’s liability for failure to make agreed repairs: One would apply to living quarters of human beings where, as announced in Murrell v. Crawford, supra, the measure of damages would not extend to liability for personal injuries sustained by the tenant and others rightfully on the premises with his consent, and the other, as announced in Waterbury v. Riss & Company, supra, would pertain to business property for which the lessor would be liable for damage for personal injuries naturally and proximately resulting from his failure to perform the covenant to repair, if the disrepair created an unreasonable risk to persons upon the land which would have been prevented had the agreement been performed. No logical explanation may be made for such a distinction.
We are of the opinion that the recognition and acceptance by this court of the American Law Institute’s Restatement of the Law of Torts, Section 357, and its comment and illustration, cited with approval in Brunsilius v. Farmers & Merchants State Bank, supra, and as applied in Waterbury v. Riss & Company, supra, requires ,us to hold that Section 357 is not only applicable to business property, but extends to and includes living quarters leased by a landlord to a tenant. Section 357 makes no distinction; defendants cite no authority for such a distinction, and our research discloses none. Consequently, what was said and held in Murrell v. Crawford, supra, insofar as it conflicts with what was said and held in Waterbury v. Riss & Company, supra, and with the views expressed in this opinion, is overruled.
Accepting the well-pleaded allegations of the petition as true, which we are required to do, and giving them the reasonable inferences and intendments to which they are entitled, the defendants induced plaintiff’s parents to rent the apartment by promising and agreeing to repair the porch banister. They had from March to October to make repairs, but failed to do so. The defendants had notice of the condition of disrepair and had time to make repairs. The inadequate banister created an unreasonable risk to the plaintiff, his parents, and others lawfully upon die premises, since it was reasonable to foresee that a small child might slip and roll under the banister and fall a distance of approximately fifteen feet to the ground which would in all probability result in bodily injury, and had the defendants kept their promise to repair the porch the plaintiff would have been prevented from rolling under the banister and falling to the ground.
The district court recognized that the plaintiff was an infant seven years of age, and it correctly concluded he was not guilty of contributory negligence, nor could negligence on the part of the plaintiff’s parents relieve the defendants of liability for personal injuries sustained by plaintiff (Garcia v. Slater-Breitag Yeamans Motor Co., 128 Kan. 365, 278 P. 23; Farran v. Peterson, Administrator, 185 Kan. 154, 342 P. 2d 180).
We are of the opinion that the petition alleged a cause of action against the defendants. The district court erred in sustaining the defendants’ demurrer. The judgment is reversed.
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The opinion of the court was delivered by
Fatzer, J.:
This appeal arises out of the following; The plaintiff is a community high school district (G. S. 1959 Supp., 72-2526, et seq.), and includes all of the territory in Labette County not included in the territory of a school district maintaining an accredited high school, and maintains and operates its high school at its school site in the city of Altamont. The only cities in Labette County maintaining accredited high schools, other than the plaintiff, are Oswego, Chetopa, Edna, Mound Valley and Parsons. The defendant Board of Education is school district No. 33 of Labette County, and includes all of the territory within the boundaries of the city of Parsons. At all times here material the boundaries of the plaintiff school district were adjacent to and adjoined the boundaries of the city of Parsons.
Pursuant to G. S. 1959 Supp., 13-1602a, the city of Parsons enacted three different ordinances annexing property and adjacent territory to the city which had a total tangible assessed valuation of $146,065. As a result of such ordinances, over which neither the plaintiff nor the defendant school district had any right or control, the tangible assessed valuation of the plaintiff was reduced and the tangible assessed valuation of the defendant was increased in the amount of $146,065.
On June 1, 1957, and prior to the enactment of the annexation ordinances, the plaintiff school district issued its general obligation bonds in the sum of $1,400,000 to erect and equip additional school buildings and to secure additional property at its school site in Altamont. When issued, the bonds became the lawful obligation of the plaintiff and of all the territory within its boundaries. To pay the principal and interest due thereon in twenty annual approximately equal payments, an annual tax levy was required to be extended on all the tangible taxable property in the district. Although the plaintiff school district retained its school buildings, equipment and site following the annexations, G. S. 1959 Supp., 72-5316c provides that it shall assume payment of the unpaid bonded indebtedness incurred prior thereto to construct and equip school buildings located within its new territory.
The plaintiff- contended the defendant school district was indebted to it and was required to make payment in an amount to be computed in accordance with the provisions of G. S. 1959 Supp., 72-5316e. The parties were unable to agree that the defendant was liable to the plaintiff in an amount equal to the proportionate amount annual tax levies would have raised to retire the bonded indebtedness had they been extended upon the annexed territory, and acting pursuant to G. S. 1959 Supp., 72-5316a-72-5316h, and particularly 72-5316e, the plaintiff filed its petition in the district court of Labette county alleging, among other things, the foregoing facts, to which the defendant school district filed its demurrer. The district court sustained the defendant’s demurrer, and the plaintiff perfected this appeal.
We find it unnecessary to analyze the provisions of the statutes here involved except to say the legislature provided a method to adjust property rights and claims between the board of education of cities of the first and second class and the board of any adjacent school district where a city’s boundaries were extended by annexing a part of the territory of an adjacent school district. Provision is made in G. S. 1959 Supp., 72-5316e that in the event of the failure or inability of the two school boards to make an agreement adjusting their property rights and claims, either school board, or the county superintendent, under circumstances prescribed by the statute, may file a petition in the district court of the county in which the city is located, stating the facts pertaining to the annexation and praying for an adjustment of the property rights and claims between the two school boards. Written notice of the filing of the petition is required to be given and proof of sea-vice is required to be filed in the office of the clerk of the district court within the time prescribed. The statute then directs the court to appoint and instruct three competent commissioners to resolve the conflicting claims of the respective school boards in accordance with the standards provided, who shall make a written report to the court and serve copies thereof upon the county superintendent and upon each of the interested boards. The court is directed to examine the report and approve it after notice to the parties, or it is empowered to correct or amend the report and approve it as amended, or it may reject the report and appoint new commissioners to make a new report. If the report is approved by the court, or if corrected and approved, it shall be final, and upon approving the same, the court shall enter a judgment for the amount found to be due from one board to the other board. As held in Common School Dis't No. 86 v. Olathe City School Dis’t No. 16, 186 Kan. 512, 351 P. 2d 193, such a judgment of the district court is final and no right of appeal to the supreme court is provided.
We do not pass upon the question raised by the appellee that the appellant has no standing in this court from the order sustaining its demurrer to the petition, but viewing this case as one in mandamus to require the district court to comply with the provisions of the statute (G. S. 1959 Supp., 72-5316e) and appoint three competent commissioners to proceed in accordance with the standards therein provided and adjust the property rights and claims of the plaintiff and the defendant and make a written report to the court for its consideration and final determination, all as provided by the statute, the order sustaining the demurrer to the plaintiff’s petition is set aside and this case is remanded for further proceedings in accordance with G. S. 1959 Supp., 72-5316e, and the views expressed herein.
It is so ordered.
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover for property damage sustained by the plaintiffs (appellants), H. Milton Rudy and Rus sell A. Irion, as a result of a fire alleged to have been negligently caused by the defendants (appellees), Louis Whaley and L. G. Craft, d/b/a Craft Oil Company.
Plaintiffs’ cause of action accrued August 31, 1956. They filed their original petition against defendants Whaley and Craft, to which defendants directed certain motions. However, before defendants filed an answer, plaintiffs, on May 31, 1958, filed an amended petition (G. S. 1949, 60-756) within the two-year limitation provided by statute (G. S. 1949, 60-306, Third), making the Tri-Stats Insurance Company, defendants’ insurance carrier, a party defendant. Subsequently, Tri-State moved to quash the service of summons upon it, which motion was, on January 2, 1959, sustained by the trial court. Defendants Whaley and Craft moved to strike from the amended petition all reference to Tri-State, both in the caption and body thereof, for the reason that it was not a party to the action. This motion was also sustained January 2, 1959, thus dismissing Tri-State as a party defendant in the action. Defendants Whaley and Craft then demurred to the amended petition on the ground that it failed to state a cause of action against them. This demurrer was sustained September 1, 1959, and plaintiffs were granted thirty days to file a second amended petition.
Plaintiffs took no appeal from the trial court’s order sustaining the motion to quash service of summons on Tri-State or from the order striking from the amended petition all reference to Tri-State. They acquiesced in the rulings by filing, approximately nine months later (September 24, 1959), their second amended petition against Whaley and Craft only. The remaining defendants, Whaley and Craft, demurred to the second amended petition on the grounds that the applicable statute of limitations had run and that the petition failed to state a cause of action. On April 8, 1960, this demurrer was sustained, the action was dismissed and judgment was entered against the plaintiffs for costs.
Plaintiffs served and filed a timely notice of appeal from the last-mentioned judgment, and specified they were appealing from (1) the order of April 8, 1960 sustaining the demurrer to the second amended petition; (2) the order of September 1,1959 sustaining the the demurrer to the amended petition, and (3) from the orders of January 2, 1959 quashing the service of summons on Tri-State and dismissing the action against it. All of the mentioned orders appealed from are assigned and argued as error in this court.
We will first treat the appeal from the orders quashing service of summons on Tri-State and dismissing it as a party defendant. These were final orders and reviewable in this court (G. S. 1949, 60-3302 and 60-3303); however, plaintiffs did not appeal within sixty days from the rulings thereon (G. S. 1949, 60-3309). They subsequently acquiesced in the rulings by filing their second amended petition against Whaley and Craft only. Therefore, the ruling sustaining defendants Whaley’s and Craft’s demurrer to the second amended petition did not extend the time for appeal from the separate orders concerning Tri-State only, since the action was, in effect, dismissed against Tri-State January 2, 1959. Therefore, plaintiffs are not entitled in this appeal to a review of these two orders.
We will now pass to the next question: Are plaintiffs entitled to a review of the order of September 1, 1959 sustaining defendants’ demurrer to the amended petition? G. S. 1959 Supp., 60-3314a provides that when an appeal has been timely perfected, the fact that some ruling of which the appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling. An aggrieved party who perfects a timely appeal from an order sustaining a demurrer to a second amended petition, such as in the instant case, may have a review of all prior rulings of which he complains, even though those rulings were made more than two months before the perfection of such appeal, provided that he gives notice he is appealing from such ruling or rulings. (Foster v. Humburg, 180 Kan. 64, 70, 299 P. 2d 46; Harris v. Christy, 166 Kan. 395, 397, 201 P. 2d 1067.)
In Wilson v. Kansas Turnpike Authority, 181 Kan. 1025, 317 P. 2d 843, we stated:
“Under the provisions of G. S. 1955 Supp., 60-3314a, where a defendant appeals from an adverse ruling on his demurrer to the petition he may have a review of all prior adverse rulings of which he complains if such rulings are included in his notice of appeal. (Following Bortzfield v. Sutton, 180 Kan. 46, 299 P. [2d] 584; Smith v. Wright, 180 Kan. 584, 305 P. 2d 810.)”
See also Coe v. DeMars, 184 Kan. 780, 339 P. 2d 72; Atkinson v. Dalton, 186 Kan. 145, 348 P. 2d 644.
The cases relied on by defendants (Lane v. Franco-Central Oil Co., 184 Kan. 789, 339 P. 2d 1, and McGee v. City of Kansas City, 184 Kan. 797, 339 P. 2d 2) are not applicable, as they hold that when an appeal is taken from a final order and no appeal or cross- appeal is taken from prior adverse rulings, such rulings are not reviewable by this court. In the instant case, plaintiffs not only appealed from the final judgment but also included in their notice of appeal the prior adverse ruling sustaining defendants’ demurrer to the amended petition, and assigned the same as error in this court. They are entitled to have the same reviewed.
The question which then presents itself is whether the second amended petition, filed within the period of limitation, stated a cause of action under the doctrine of res ipsa loquitur.
The petition in pertinent part alleged that plaintiffs were operating the West Side Truck Stop in Syracuse; that defendant Craft was the owner and operator of a liquid fuel transport service and defendant Whaley was his agent and employee; that on August 31, 1956, Whaley was transferring gasoline from defendants’ transport truck to the underground gasoline storage tanks of plaintiffs, and that he was in sole and exclusive charge and management of such transfer of the gasoline; that defendant Whaley called Mr. Pope over to defendants’ tractor and requested him to hold certain loose battery connections (the battery was attached to the rear of the tractor cab), while Whaley attempted to start the tractor motor, which attempt was unsuccessful; that from 12:15 to 1:00 p. m. defendant Whaley was the only person on the north side of the truck stop and in the immediate vicinity of the mentioned tanks, and that the underground gasoline lines servicing the structure were in proper functioning order prior to the fire.
The petition further alleged:
“That on said day, there was no possibility of concentrated static electricity in the air from electrical storm; that the weather was clear; that there was a slight wind out of the north-northwest at approximately fifteen knots. That at approximately one o’clock p. m. on the date as afore-alleged, the defendant Whaley did negligently and carelessly either by act of commission or omission known only to the defendant Whaley and while solely and exclusively under the management and operation of Whaley, the aforesaid transport owned by Craft Oil Company, caught fire. That the aforesaid fire from the tanks and transport caught the service station operated by the plaintiffs under aforesaid lease, afire, burning the same to the ground. [Emphasis supplied.]
“That it is impossible to determine from examination of the residue the exact point of origin of the afore-alleged fire, except that it was in the immediate vicinity of the transport and tanks, all of which were at the time as aforeset out; under the exclusive control and management of the defendant Whaley.
“That the fire, as afore-alleged, started by the negligent, careless acts of the defendant Whaley without any contribution from the plaintiffs or anyone else or viz major.
“That the fire and plaintiffs’ damage were the direct and proximate result of the negligent acts of commission or omission on the part of the defendant Whaley. That plaintiffs do not know and cannot specifically allege said acts of omission or commission but that they are exclusively within the defendant Whaley’s knowledge. The plaintiff herein seeks to invoke the rule of res ipsa loquitur.”
It was also alleged that as a result of the fire the plaintiffs lost various merchandise. They asked judgment- for the value thereof.
The defendants contend that the amended petition failed to allege the thing or instrumentality, namely, the truck, caused the damage; that it was a matter of conjecture whether the fire was caused by the instrumentality or whether the fire resulted from' some other cause. They rely on the case of Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901.
The Emigh case was discussed and distinguished in the case of Kitchen v. Smith, 184 Kan. 188, 334 P. 2d 413, which discussion need not be repeated here, except to state that the petition in that case contained no allegation that the truck started the fire or that it emitted sparks which resulted in the fire. The alleged facts raised at most only a presumption that the truck caused the damage. The substance of the court’s holding was that until the initial, or fundamental fact — the cause of the injury — was known, an inference of defendant’s negligence did not arise therefrom which the defendant was required to rebut, and the doctrine of res ipsa loquitur was not applicable. In other words, as long as the thing which occasioned the injury is unknown, it cannot be said to speak for itself and thereby raise an inference of negligence. The omission in the Emigh case is supplied in the amended petition in the instant case, wherein it is alleged that defendants’ transport truck caught fire and the fire from the transport truck caught the service station operated by plaintiffs afire, burning the same to the ground.
We have been inclined to write a chapter on the doctrine of res ipsa loquitur each time such a case has reached this court, and, as a result, the doctrine has been generously treated in our jurisdiction. Some of our recent cases on the subject applicable here are Kitchen v. Smith, supra; Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501, and Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387, and cases cited and reviewed therein.
The substance of the holdings in the mentioned cases is that when a thing which causes injury without fault of the injured person is shown to be under the management and control of the defendant or his servants, and the injury is such as in the ordinary course of things does not occur if the one having such management or control uses proper care, it asserts reasonable evidence in the absence of an explanation that the injury arose from the defendant’s want of care. It has been stated repeatedly that the force and the justice of the doctrine stem from the consideration that the defendant in control of the instrumentality has it within his power to produce evidence of the cause of injury, while the plaintiff is without such knowledge and must therefore rely on proof of the circumstances.
Measuring the allegations of the amended petition in the instant case against the stated requirements for invocation of the doctrine, it is clear that the petition is sufficient to establish a prima facie case based on res ipsa loquitur without alleging generally the means by which the transport truck caught on fire. In this respect is was sufficient to allege that the defendants’ truck unit caught on fire and that the fire from the same caught the service station of the plaintiffs afire, burning it to the ground. Other allegations in the petition fully set out the attendant circumstances, foreclosing any other possible cause of the fire. This case is clearly controlled by Kitchen v. Smith, supra. The trial court erred in sustaining defendants’ demurrer to plaintiffs’ amended petition.
Finally, it is contended that the second amended petition failed to state a cause of action. It is not necessary to set forth its allegations. Suffice it to say, the second amended petition only enlarged and amplified the averments of the amended petition by setting out more definitely that which was previously imperfectly pleaded.
It is a well-established rule in this state that when an original petition alleges a cause of action but does so imperfectly and with insufficient detail, and the additional allegations of the amended petition only enlarge and amplify the averments of the original petition by setting out more definitely that which was previously imperfectly pleaded, and do not set up a new cause of action, the fact that the statute of limitations has run at the time the amended petition is filed is not a bar to recovery, because, in such case, the amended petition relates back to the date of the filing of the former one. (Foster v. Humburg, supra, p. 69.) The court erred in sustaining defendant’s demurrer to plaintiff’s second amended petition.
In conclusion, it may be stated that (1) the amended petition filed within the period of the statute of limitations stated a cause of action and the trial court erred in sustaining a demurrer thereto, and (2) the second amended petition, being merely an enlargement and amplification of the averments of the amended petition, stated a cause of action and the lower court erred in sustaining defendants’ demurrer thereto. The judgment of the trial court is reversed and the case is remanded with directions to set aside its judgment and reinstate plaintiffs’ second amended petition, directing the defendants to file their answer, and to proceed with the trial of the action in accordance with the views herein expressed.
It is so ordered.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a declaratory judgment action from the trial court’s judgment that George G. Bauer took only a life estate and did not take an estate tail which could be broken by conveyance and that any conveyance he made thereof would only convey his life estate.
The signatures of Anton Bauer and Helena Bauer, his wife, affixed to a deed dated March 1, 1917, naming their son, George G., as grantee, were acknowledged on May 17, 1917, and on May 29,1917, tihe deed was filed for record. The deed in the indenture clause provided,
“This Indenture, made this 1st day of March, A. D. 1917, between Anton Bauer and Helena Bauer, his wife, of Miami County, in the State of Kansas, of the first part, and George G. Bauer and his bodily heirs, of Miami County, Kansas, of the second part.”
In the granting clause the deed provided:
“This property is deeded to George G. Bauer and his bodily heirs with the express condition that he is to have it during his life time and from then on it is to go to his bodily heirs, and further this property cannot be mortgaged, sold or pledged in any way by the said George G. Bauer or his bodily heirs, meaning by bodily heirs the generation of children following George G. Bauer, his children.” (Our emphasis.)
George G. Bauer and Marie, his wife, had entered into a contract to sell the real property in question to third parties. If the above provisions in the deed created a fee tail, a transfer of title to a third party would convey a fee simple title to the grantee, but if a life estate was created, then only a life estate could be conveyed to a grantee of George G. and Marie.
George G. and Marie had five children and three of them, the sons, plaintiffs-appellees, instituted this declaratory judgment action against their father, mother, and two sisters.
The above facts were stipulated by the parties and, in addition, it was finally stipulated that an actual controversy exists and an adjudication is necessary at this time in order to avoid extensive litigation or disastrous results. George G. is apparently the only defendant who appealed.
Did the deed convey a fee tail estate or a life estate?
Since the facts are documentary and stipulated, this court on appeal has as good an opportunity to determine what is shown by those facts as does the trial court. (City of Wichita v. Boles, 156 Kan. 619, 621, 135 P. 2d 542.)
George G. relies on Wright v. Jenks, 124 Kan. 604, 261 Pac. 840. Careful examination discloses that although the usual common law phrase, or the most appropriate language to be used in creating an estate tail is, “A devises to B and the heirs of his body,” (Bartlett Kansas Probate Law and Practice, rev. ed., §475) this court in the Wright case upheld an instrument as establishing a fee tail estate when a variation of the accepted language was used. The first paragraph of the syllabus reads:
“Where a testator devised a life estate in land to her husband, and devised the remainder in favor of her son and daughter ‘and to their children of their bodies after them,’ such remainder constituted an estate tail in each of testator’s children; and a quitclaim conveyance by the son (while the property was in the exclusive possession of the life tenant) vested in the grantee and his successors in title the interest devised to the son by his mother’s will.”
The deed in our present case is obviously distinguishable from the will in the Wright case but to make this perfectly clear, we point out that in the present deed the words of limitation “bodily heirs,” which tend to establish a fee tail estate, are followed by words of purchase, “meaning by bodily heirs the generation of children following George G. Bauer, his children.” Such words establish a life estate in the first taker with a fee simple title in the remainderman at the termination of the life estate. (Bennett v. Humphreys, 159 Kan. 416, 155 P. 2d 431.) In the Wright case the word of purchase “children,” was used but it was followed and modified by the words of limitation, “of their bodies” and the court could, therefore, arrive at no other conclusion than it did — that a fee tail estate was created.
Reading again the revealing discussion of estates tail in Kansas prior to 1913 to be found in Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131, reminds us anew that the various forms of the phrase— “bodily heirs,” “heirs of the body,” or “issue” — are to be used with care because deviation therefrom or use of other terms can defeat the intent of the settlor of an estate in tail and create instead a life estate with a fee in the remainderman. In connection with the above see, also, Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280; Schwarz v. Rabe, 129 Kan. 430, 283 Pac. 642; Brann v. Hall, 141 Kan. 749, 43 P. 2d 229; Meyer v. Meyer, 149 Kan. 23, 86 P. 2d 493; 2 Hatcher’s Kansas Digest, rev. ed., Deeds, § 46, p. 353, and Estates, § 10, p. 508, to § 13, p. 509; 5 Hatcher’s Kansas Digest, rev. ed., Wills, § 137, p. 502; 4A West’s Kansas Digest § 1, et seq., pp. 620, 621.
In Wood River Oil & Refining Co. v. Madden, 169 Kan. 633, 220 P. 2d 154, a husband made a devise to his wife for life with a remainder to the children of his body, with the right to hold the same or dispose thereof in any manner they wished and it was held a life estate with a vested remainder was thereby created and not a fee tail.
Similarly a deed conveying real estate in Smith v. Federal Land Bank of Wichita, 173 Kan. 90, 243 P. 2d 1027, contained these words:
“. . . to have and to hold and/or sign away — his heirs is to be .bodily heirs and to be his children or their children or brothers or sisters of their children.” (p. 90.)
This court there held that the conveyance did not create a fee tail estate in the first takers.
The Ewing, Wood River Oil and Refining Co., and Smith cases, mentioned above, are all cited in one of our more recent decisions (Steele v. Pedroja, 178 Kan. 441, 289 P. 2d 738) where this court again held that the provisions of the will there interpreted did not create an estate tail to the land devised. The treatment of the subject was extensive in that decision and we think it unnecessary to cover it again.
The rules reflected in the foregoing decisions of this court compel us to conclude that the grantors, Anton Bauer and Helena Bauer, would have more nearly established or created a fee tail estate in George G. Bauer, or his bodily heirs, which could have been continued so long as there were bodily heirs if in preparing their deed they had stopped with the words, “bodily heirs” but when they went on to explain what they meant by “bodily heirs” by expressly adding “meaning by bodily heirs the generation of children following George G. Bauer, his children,” they then created a life estate in George G. with a remainder in fee simple over to his children. Thus the trial court was correct in its ruling that George G. took a life estate and any conveyance' made by him would convey no more than his life estate.
Judgment affirmed.
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Per Curiam:
This is an action to recover damages for personal injuries sustained by the plaintiff-appellant, Addie Miles, as the result of an automobile-truck collision which occurred on February 1, 1972, near the intersection of 21st and Piatt Street in Wichita. The evidence showed that the plaintiff heading north stopped her vehicle at a stop sign on Piatt Street, then proceeded to make a left turn in front of the truck of defendants-appellees being driven by Gary L. Olson in a westerly direction on 21st Street. /The street was rain soaked and Olson was unable to stop the truck before it struck plaintiff’s vehicle in the rear. The case was hotly contested and was submitted to the jury on the usual issues of negligence, contributory negligence and proximate cause. The jury returned a general verdict in favor of the defendants. The plaintiff Miles has appealed alleging trial errors.
At the outset it should be stated that there was abundant evidence to support the jury verdict in favor of the defendants. The case was essentially a fact case. On this appeal the plaintiff complains that the trial court erred in refusing to admit into evidence certain testimony of Officer Lathrom, a police traffic investigator. The excluded evidence concerned Officer Lathrom’s answer to a hypothetical question as to how far the Olson truck would have traveled assuming that Olson had not applied his brakes prior to the impact. At that time the evidence was undisputed that Olson had applied his brakes and his truck had left 34 feet of skid marks on the pavement. The trial court sustained an objection to the hypothetical question because the question assumed that Olson had not applied his brakes which assumption was contrary to the evidence in the case. Under the circumstances we do not find that the trial court committed error in refusing to admit the proffered testimony. The rule of this jurisdiction is that hypothetical questions put to an expert witness should be based upon only such facts as the evidence tends to prove, and if as to any material hypothesis, such question is without the support of the evidence, it should be excluded. (Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039.) Since the undisputed evidence in this case clearly established that the defendant Olson did in fact apply his brakes, we find no error in the trial court’s exclusion of the proffered testimony. We have examined tire other points of claimed trial error which have been raised by plaintiff on this appeal and find them without merit. On the entire record we find that the case was well tried and submitted to the jury on competent evidence under proper instructions of the court. There is nothing in the record to show that plaintiff was not provided a fair trial. The jury by its verdict properly considered and determined the issues of fact submitted to it. The judgment is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This is an action to recover unpaid rentals under a 15 year commercial building lease due at the rate of $857.47 per month plus unpaid taxes.
Said lease was entered into by the parties in 1965. The lease provided for a fixed annual rental of $3,200.00 payable in equal monthly installments plus an additional annual rental equal to 12% of the amount expended by the lessors, Edward T. Neville and Rita Ann Neville, in constructing the improvements on the premises as contemplated by the parties when the lease was entered into. The additional annual rental was made payable in equal monthly installments along with the payments due under the fixed annual rental provision of the lease. The lessees, W. H. Hennigh, Bernice Hennigh, F. E. Roberts, Paula Roberts, L. C. Gawthrop' and Carol Gawthrop, further agreed to pay all ad valorem taxes and special assessments levied against the premises during the term of the lease. The lease provided that in event the money expended by the lessors for the improvements was not known when the lease payments first became due a reasonable estimate of such expenditure should be used to arrive at a tentative amount of the rent to be paid. As soon as the total cost of improvements could be determined, future rentals were to be based on an accurate computation and the tentative rentals paid would be adjusted. When the lease was entered into the estimated amount of the construction costs for the contemplated improvement was $35,000.00. The improvements were completed on the premises in 1966. The rentals have since been paid on the basis of a total construction cost of $59,080.00.
This is the fourth action between these same parties to recover rentals due under this lease. The first action was filed in February, 1970, to recover unpaid rentals for the period of November, 1969, to February, 1970. The second action was filed in October, 1970, to recover rentals for the period of May, 1970, to October, 1970. The third action was filed in March, 1971, to recover rents for the period of November, 1970, to April, 1971. In each of these three prior actions the lessors obtained judgment for unpaid rentals due under the lease at the rate of $857.47 per month. (12% X $59,080.00 = $7,089.60 ÷ 12 = $590.80 plus base rental of $266.67 = $857.47 per month.)
The present action was filed in July, 1972, to recover unpaid rentals due under the lease for the period from October, 1971, to July, 1972, at the rate of $857.47 per month. In the present action, the lessees filed an answer alleging that the plaintiffs (lessors), with intent to deceive, misrepresented die amount of money expended on improvements located on the premises, that the actual construction costs were $39,480.00 and that the monthly rentals due under the lease should have been figured at $660.63 per month. They prayed for a determination of the correct amount of total construction costs and for a further determination that the lease was void by reason of the fraud practiced by the lessors. Defendant-lessees filed an additional cross-petition against the plaintiffs based upon the fraud alleged in their answer and prayed for a return of all previous excess monthly payments for the 83 months in which the $857.47 had been collected by the lessors either through prior judgments or by payments demanded and received.
After taking judicial notice of the files of the court in the three prior actions between these same parties in which the rentals under this lease were adjudged to be $857.47 per month, the trial court determined under the doctrines of res judicata and collateral estoppel and on the basis of laches that the defendants were not entitled to pursue their defense and cross-petition. Although the defendants on appeal have specified six points of error these depend upon whether the defense of fraud in misrepresenting the total construction costs was foreclosed to the defendants by reason of the doctrines of res judicata or collateral estoppel and laches. We believe an examination of these questions will dispose of all points raised.
When the first action was filed to recover rents under the lease plaintiffs alleged that by virtue of the original written lease the defendants “agreed to pay as rentals thereunder the sum of $857.47 per month.” The defendants answered admitting they signed the lease but denying the correctness of the amounts claimed due. At the same time a cross-petition was filed by the defendants against H. Keith Shamburg and H. L. Shamburg, the assignees of the lease. The journal entry of judgment in the first action recited:
“The court is further advised that by agreement of counsel the petition heretofore filed and the motion applicable thereto should be amended to include additional moneys for the months of March 1, 1970, in the amount of $857.47.
“Thereupon, the court finds that the judgment should be entered as set forth in the amendment to the petition and the petition for the months beginning November 1, 1969, each in the amount of $857.47, together with interest thereon at the rate of 6% per annum to this date, said months being from November 1, 1969 to and including March 1, 1970.”
A judgment was entered in accordance with these findings. Nothing is shown as to what happened to the cross-petition against the Shamburgs. It should be mentioned that die defendants’ answer did not specifically allege fraud against the plaintiffs.
When the second action to recover rents was filed the defendants again filed an answer admitting they signed the lease but denying the correctness of the monthly rentals due and alleging:
“That thereafter, the lease was assigned to the defendants Shamburg; that the cost of the building was never presented or approved by the answering defendants, and they now find that the plaintiffs claim to have expended $59,000.00, when the contract contemplated an expenditure of $35,000; that the answering defendants deny that the plaintiffs expended the sum of approximately $59,000.00, and require that the plainiffs be placed upon strict proof of the cost of such building.
“The answering defendants further deny that they would have approved an increase in the size and cost of the building from $35,000.00 to nearly $60,000.00, and they would not have carried on the terms of the contract with the variance they now find in the alleged cost of the building.”
In the prayer of the answer the defendants asked to be released from “any and all liability under the terms of the contract” and “that the contract be canceled and held for naught.” The plaintiffs replied alleging that the defendants had been “aware of the expenditures made by the plaintiffs in the construction of said building for a long period of time and have acquiesced therein” with full knowledge of the expenditures. Estoppel was asserted by plaintiffs against the defendants.
The defendants again filed a cross-petition against the Shamburgs based upon a written obligation placed in the assignment whereby the Shamburgs agreed to save and hold the defendants harmless from any further liability under the lease. The journal entry of judgment recites that the defendants by their attorney “consented to a judgment being entered in favor of the plaintiffs and against said defendants for the amounts prayed for in said petition.” Judgment was entered in favor of plaintiffs and against the defendants for the amounts prayed for in the petition. In addition the defendants obtained a judgment on their cross-complaint against the Shamburgs for the amount of the plaintiffs’ judgment. The amount of both judgments was arrived at by figuring the monthly rentals at $857.47. The Shamburgs did not appear in the action although they were legally served with summons.
When the third action to recover rents due under the lease was filed the defendants answered admitting the signing of the lease, alleging assignment of the lease to the Shamburgs, denying the amount of rents due and requesting a judgment over and against the Shamburgs for any amounts found due to the plaintiffs.
The journal entry of judgment indicates that the defendants and the Shamburgs were present when the judgments were entered and were represented by different attorneys. The attorneys announced on behalf of their respective clients that judgment might be entered in favor of the plaintiffs and against the defendants for the amounts prayed for in the petition. Again judgment was entered in favor of plaintiffs and against the defendants for the amounts prayed for in the petition and said amount “being the rental for the period November, 1970, to April, 1971, inclusive, each in the amount of $857.47 [per month] and with interest due.” The defendants obtained a judgment on their cross-claim against the Shamburgs in the amount of the plaintiffs’ judgment.
It should be noted a judgment entered by consent of the parties or their attorneys is as conclusive on matters in issue as one rendered after contest and trial. (U. P. Railway Co. v. McCarty, 8 Kan. 125; Baldwin v. Baldwin, 150 Kan. 807, 96 P. 2d 614; Meyer v. Meyer, 209 Kan. 31, 39, 495 P. 2d 942; 2 A. L. R. 2d, § 12, p. 546.)
Now let us consider the present case, the fourth such action filed. The defendants argue on appeal that the issue of fraud is an affirmative defense, that fraud was never previously raised or considered by the court and that the doctrines of res judicata and collateral estoppel do not preclude their raising the issue in the present action. In support thereof they quote the first paragraph of the syllabus in Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825. The same reads:
“The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.” (Syl. ¶ 1.)
It should be noted the exception mentioned applies to those questions actually decided in a former action. In Stroup the first action was an equitable suit in foreclosure. The second action was an action in ejectment. In the first action the allegations regarding the claim were stricken from the pleading and the party was not permitted to litigate the question presented. The case does not support defendants’ position in the present case. Here the defendants were not limited as to the issues actually raised and the present claim' of fraud concerns an issue raised and decided in the prior actions, the correct amount of construction costs.
Deféndants further contend that a judgment is not conclusive as to matters only incidentally brought into a trial and not substantially in issue. They rely on Herl v. State Bank of Parsons, 195 Kan. 35, 403 P. 2d 110. In Herl a replevin action had previously been brought by the mortgagee to obtain possession of personal property so the property might be sold under the terms of a chattel mortgage. A second action was later filed by the mortgagor to recover damages from the mortgagee for the wrongful conversion of the property and for an accounting of the proceeds of the sale. The contention was made that the matter of accounting could have been raised and litigated in the former replevin action. It was not raised or litigated in the replevin action and this court held the doctrine of res judicata did not prevent the mortgagor from bringing the later action to obtain a full and complete accounting of the proceeds from the mortgage foreclosure sale. However, it was held that issues presented and decided, such as the right to possession and the rights and duties of the mortgagee to sell the property under the mortgage, were res judicata. In the opinion it was stressed that the justiciable issues in an ordinary replevin action are quite limited. The decision in Herl is not persuasive.
The defendants next argue there can be no estoppel against them because they were ignorant of the fraud until after the fourth action was filed. Plowever, if fraud is properly alleged as a defense in the present case it consists of a representation by plaintiffs that the amount of the expenditures for the construction of the building was $59,080.00. It is difficult for us to accept this contention by the defendants. Under their lease agreement the amount of the rents could only be determined by first determining, by agreement or litigation, the amount of the total expenditures for construction. The building was completed in 1966. The rentals were apparently paid voluntarily during the period from 1966 to November, 1969. In 1970 the amount of construction costs was placed in issue in the first action, and the monthly rent of $857.47 was determined as correct by the court after an agreement was reached between counsel. Under the lease the correct amount of the monthly rent could only be arrived at by first determining the total cost of construction.
In addition when the defendants filed their answer in the second action they specifically denied that the plaintiffs had made expenditures of $59,080.00 in constructing the building and prayed that they, the defendants, be released from payment of rent and that the lease be cancelled. When this issue was placed before the court in the second action defendants did not see fit to denominate the alleged actions of plaintiffs as fraudulent but, fraudulent or not, the defendants had then raised an issue which placed upon their shoulders a duty to inquire into the actual amount of construction costs. Once that issue was adjudicated by the court it could not be relitigated. Defendants’ lack of diligence in pursuing this issue in 1970 cannot be justified now, especially since the evidence they seek to introduce comes from Vaughn Sham-burg who is the architect who designed the improvements and who was equally accessible in 1970 when the issue was first presented to the court.
The defendants next contend that the doctrines of res judicata and collateral estoppel cannot be used to bar defendants’ claim of fraud without a trial of factual issues and that these questions, res judicata and collateral estoppel, cannot be determined on motion for summary judgment. We have held otherwise. In Goetz v. Board of Trustees, 203 Kan. 340, 454 P. 2d 481, it is said:
“The summary judgment procedure (K. S.A. 60-256) can be utilized to invoke the doctrine of collateral estoppel. This has been settled by applying the doctrine of res judicata in cases under Rule No. 56, Federal Rules of Civil Procedure (28 U. S. C. A.), which is identical to 60-256, supra, in Lester v. National Broadcasting Company, 217 F. 2d 399 (9th Cir. 1954), cert. denied 348 U. S. 954, 99 L. Ed. 746, 75 S. Ct. 444; and Gorski v. Commercial Insurance Co. of Newark, N. J., 206 F. Supp. 11 (E. D. Wis. 1962).” (pp. 352, 353.)
The holding in Goetz is followed in Bud Jennings Carpets & Draperies, Inc. v. Greenhouse, 210 Kan. 92, Syl. ¶ 2, 499 P. 2d 1096.
The dootrine of collateral estoppel is discussed and distinguished from the doctrine of res judicata in Penachio v. Walker, 207 Kan. 54, 483 P. 2d 1119, where it is said:
“. . . The doctrine of collateral estoppel is a bar in an action upon a different claim as to certain matters in issue which were determined in a former judgment. The distinction between res judicata and collateral estoppel is based on the distinction between a cause of action and issues in a cause of action. [Citations omitted.]” (p. 57.)
In Bud Jennings Carpets & Draperies, Inc., it is said:
“The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity therein and (3) the issue litigated must have been determined and necessary to support the judgment. (Penachio v. Walker, supra.) The doctrine was discussed in Hutchinson Nat’l Bank & Trust Co. v. English, 209 Kan. 127, 129, 495 P. 2d 1011. The doctrine was recognized in Green v. Kensinger, 193 Kan. 33, 39, 392 P. 2d 122, and was applied in Burnison v. Fry, 199 Kan. 277, 283, 428 P. 2d 809. . . .” (210 Kan. p. 96.)
These three requirements mentioned above are all present in the present case.
The issues and the decision of the court in Dixon v. Caster, 65 Kan. 739, 70 Pac. 871, makes it closely analogous to our present case. In Dixon the plaintiff filed the second of two separate suits to recover rents stipulated for in a written lease. In the first suit a judgment for rents was entered and the lease was held to be valid as against allegations of the defendant of improper substitution of property covered by the lease. In the second suit for rents falling due under the same written lease the defendant attempted to have the lease cancelled as invalid under the statute of frauds. The doctrine of res judicata (collateral estoppel) was applied and the court states:
“. . . In that [first] action plaintiff in error asserted that he was relieved of all liability whatever to his lessor; now he claims that he is liable only in another way. He seeks merely to deduce an additional consequence from the same state of facts. His effort to do so is belated. He should have drawn all his conclusions in the first litigation, and, having failed to do so, the whole matter is res judicata. . . .” (65 Kan. p. 745.)
The rule precluding the relitigation of questions which were in issue and adjudicated in a former action is commonly applied to all matters essentially connected with the subject matter of the litigation. It extends to questions necessarily involved in an issue and necessarily adjudicated, or necessarily implied in the final judgment, although no specific finding appears in the journal entry of judgment and although such matters may not have been specifically averred in the pleadings. (Wharton v. Zenger, 163 Kan. 745, 186 P. 2d 287.) If a judgment could not have been rendered without deciding a particular matter, that matter will be settled as to all future actions between the parties involving the same subject matter. When a judgment necessarily presupposes certain findings on issues presented these issues are as conclusive as the judgment itself. (Rucker v. Rafter, 122 Kan. 91, 251 Pac. 420.) A judgment adjudicates all matters which are essential to support it and every proposition leading up to the final conclusion of the court upon which such judgment is necessarily based is as effectually adjudicated as the ultimate question which is finally determined in the journal entry of judgment. (46 Am. Jur. 2d, Judgments, § 422, p. 593.)
In the three prior actions to recover continuing rentals due under this same written lease between these same parties the amount of the rentals was based in part upon 12% of the total expenditures necessary to construct the building. In order to support a judgment for rentals at the rate of $857.47 per month it was necessary for the court to first determine and adjudicate the total cost of construction and then apply the 12% figure. This issue was specifically raised by the defendants in the second action and although the plaintiffs were not specifically charged with fraud the basic allegations of the defendants from which fraud is now deduced refer to the same representations from which the construction costs and the amount of monthly rentals were determined.
Another matter should be noted. The defendants recovered judgments over against the Shamburgs in both the second and third actions in amounts equal to the plaintiffs’ judgments. Having recovered said judgments based on a monthly rental found due at the rate of $857.47 they are hardly in a position to claim a return of rentals from the plaintiffs while retaining the benefits of their judgments against the Shamburgs based on the larger amount.
Accordingly we hold the defendants are collaterally estopped from relitigating the amount of construction costs on which the amount of monthly rentals depended. Their allegations of fraud and misrepresentation against the plaintiffs come entirely too late. Their consent to the prior judgments in the three actions show a lack of diligence in pursuing the central issue raised by them. They had a duty to inquire into such issue and present all defenses then available. Having consented to the judgments in the three prior actions they are now estopped to question the particular matter upon which the prior judgments necessarily rest, i. e., the amount of construction costs.
The judgment is affirmed.
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The opinion o£ the court was delivered by
Prager, J.:
This is an action brought on behalf of two aged parents against their son and the members of his immediate family for an accounting and other equitable relief. The action was the result of the misappropriation of the parents’ property by the son through the misuse of their powers of attorney. The plaintiffs-appellees are Ruby Kline and Ruth Shelor, conservators of the estate of their parents, W. D. Orebaugh and Minnie B. Orebaugh. The defendants-appellants are Roy Orebaugh, his wife, Elsie Orebaugh and his son and daughter-in-law, Kent Valere Orebaugh and Joyce Orebaugh. Ruby Kline and Ruth Shelor are the daughters of W. D. and Minnie B. Orebaugh and the sisters of Roy Orebaugh. The facts in this case are not in dispute and are as follows: W. D. Orebaugh and his wife, Minnie B. Orebaugh, were in poor health and unable to look after their own affairs. In February of 1968 W. D. Orebaugh, then age 82, executed a power of attorney to his son, Roy. On March 28, 1969, Minnie B. Orebaugh, age 79, executed her power of attorney to Roy. In March of 1969 W. D. and Minnie B. Orebaugh owned real and personal property of a value estimated to be between 175,000 and 200,000 dollars. During the following three years Roy Orebaugh sold his parents’ real estate and expended their funds in the total amount of $194,271.40; of these expenditures $28,164.59 was for the benefit of W. D. and Minnie B. Orebaugh. It is clear from the record that Roy Orebaugh misappropriated for his personal use or for the use of his wife, Elsie, or his son and daughter-in-law, the sum of $166,670.62.
In February of 1971 it came to the attention of Ruby Kline and Ruth Shelor that there was something wrong about the way Roy was handling their parents’ property. After a family conference where the misappropriation became apparent, Ruby Kline and Ruth Shelor petitioned the probate court of Ford county for their appointment as conservators of the estate of W. D. and Minnie B. Orebaugh. On February 25, 1971, Ruby Kline and Ruth Shelor were appointed conservators. The only liquid assets of W. D. and Minnie B. Orebaugh which the conservators were able to locate came to a total amount of $4,220.14. The conservators immediately filed this action against Roy, Elsie, Kent Valere and Joyce Orebaugh. On application of the conservators the district court appointed a receiver on May 14, 1971. Each of the defendants filed a notice of appeal from the order appointing the receiver but failed to perfect the appeal. The conservators found it extremely difficult to get information out of Roy Orebaugh. A pretrial conference was held on February 8, 1972. The case then proceeded to trial before the court. The trial court made extensive findings of fact all of which are supported by the evidence contained in the record. In a general way it may be said that Roy Orebaugh misappropriated great sums of his parents’ money to pay debts and living expenses for himself and Elsie and for his son and his wife, Kent Valere and Joyce Orebaugh. The conservators were never able to obtain a full accounting for these moneys. The evidence established that Roy Orebaugh had purchased in his own name three parcels of real estate and in addition purchased two tracts of land the title to which was placed in the name of Kent Valere Orebaugh and Joyce Orebaugh. The evidence further disclosed that prior to the execution of the powers of attorney, Roy and Elsie Orebaugh were the owners of an 800-acre ranch which was heavily mortgaged. Using his parents’ funds Roy made mortgage payments in the total amount of $18,585.84 to apply against the indebtedness on this tract.
In its conclusions of law the trial court found that these misappropriations of funds were made with fraudulent intent on the part of Roy Orebaugh. Furthermore the trial court found that Kent Valere and Joyce Orebaugh with full knowledge of the facts and of the ownership of the funds participated with Roy in the fraudulent misuse of funds and that they received for their personal use and enjoyment the sum of $52,800. The trial court found that Elsie Orebaugh did not knowingly participate in the misappropriation of funds by Roy and hence there were not sufficient grounds in the evidence upon which to base a personal judgment against her. As a part of its judgment in the case the court held that the conservators had an option either to take a personal judgment for each act of misappropriation or in the alternative to elect to have the court impress a constructive trust on any tract of land purchased with misappropriated funds. In accordance with this order the conservators elected to have a constructive trust impressed against all of the real properties which had been purchased in the name of Roy Orebaugh or in the name of Kent Valere and Joyce Orebaugh. The court imposed a constructive trust on the 800-acre ranch. In each instance the defendants were given credit for the payments made on the purchase price of these various tracts of land. In addition to the constructive trusts the trial court entered judgment against Roy Orebaugh alone in the amount of $65,587.79 and against Roy, Kent Valere and Joyce Orebaugh, jointly and severally, in the amount of $19,300. No personal judgment was entered against Elsie Orebaugh.
Roy and Elsie Orebaugh and Kent Valere and Joyce Orebaugh have appealed to this court contending that the trial corut committed error in a number of respects. Each of the defendants-appellants filed a statement of points relied upon which collectively total 39 separate points. The joint brief filed on behalf of the appellants does not separate the specific points argued. With some difficulty we have analyzed their brief and concluded that it contains four points which we will consider on this appeal. Any points which have not been briefed or argued will be deemed abandoned. (Intercontinental Leasing, Inc., v. Lehr, 209 Kan. 132, 495 P. 2d 900.)
At the outset it would be helpful to review some of the basic rights and obligations which came into existence when W. D. and Minnie B. Orebaugh executed their powers of attorney to their son, Roy. The relation of principal and agent is a fiduciary one, and if a wrong arises because of the conduct of the agent the same remedy exists against the wrongdoer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust. (Wolcott & Lincoln, Inc., v. Butler, 155 Kan. 105, 122 P. 2d 720.) In this case Roy Orebaugh having obtained a power of attorney from each of his parents was their agent. There existed a confidential relation between them. The execution of the powers of attorney was induced by that relation and Roy Orebaugh violated the confidence reposed in him by his parents. It is, of course, a universal rule of law, based upon ethics, morals and sound public policy, that one occupying a fiduciary relationship is not permitted to traffic in the trust estate to his personal profit or advantage. (Murray v. Brown, 177 Kan. 139, 276 P. 2d 344.) Where a trustee violates any duty which he owes to the beneficiary he is guilty of a breach of trust and he is hable to the beneficiary to redress that breach of trust.
In an equitable proceeding brought against a trustee for violation of his fiduciary obligations a court of equity may mold its judgment or decree to furnish relief suitable to the circumstances of the case before it. (54 Am. Jur., Trusts, § 628.) A court of equity is not obliged to render the specific relief prayed for but may make such a decree as justice demands, under all the facts and circumstances as disclosed by the evidence. (George v. W-G Fertilizer, Inc., 205 Kan. 360, 469 P. 2d 459.)
One of the remedies afforded in equity for a breach of trust is known as the “trust pursuit rule.” This rule is stated in Restatement, Second, Trusts § 202 as follows:
Ҥ 202. Following Trust Property into Its Product
“(1) Where the trustee by the wrongful disposition of trust property acquires other property, the beneficiary is entitled at his option either to enforce a constructive trust of the property so acquired or to enforce an equitable lien upon it to secure his claim against the trustee for damages for breach of trust, as long as the product of the trust property is held by the trustee and can be traced.
“(2) Except as stated in Subsection (1), the claim of the beneficiary against the trustee for breach of trust is that of a general creditor.”
On a number of occasions the trust pursuit rule has been recognized in Kansas. (Clingman v. Hill, 104 Kan. 145, 178 Pac. 243; Merket v. Smith, 33 Kan. 66, 5 Pac. 294; and Woodrum v. Bank, 60 Kan. 44, 55 Pac. 333.)
The trust pursuit rule is also applied where the property purchased from misappropriated trust funds ends up in the hands of a third person. In that situation the remedy afforded the beneficiary of the trust depends upon whether or not the third person was a bona fide purchaser for value and without notice of the breach of trust. The rule is stated in the Restatement, Second, Trusts § 284, p. 47, as follows:
“(1) If the trustee in breach of trust transfers trust property to, or creates a legal interest in the subject matter of the trust in, a person who takes for value and without notice of the breach of trust, and who is not knowingly taking part in an illegal transaction, the latter holds the interest so transferred or created free of the trust, and is under no liability to the beneficiary.”
If the trustee in breach of trust transfers trust property to a person who takes with notice of the breach of trust, the transferee does not hold the property free of the trust, although he paid value for the transfer. (Restatement, Second, Trusts § 288.) Likewise if the trustee in breach of trust transfers trust property and no value is given for the transfer, the transferee does not hold the property free of the trust, although he had no notice of the trust. (Restatement, Second, Trusts §289.) These rules pertaining to third parties were recognized in Clingman v. Hill, 113 Kan. 632, 215 Pac. 1013, where we held that property purchased by a trustee with trust funds wrongfully converted to his own use may be followed into the hands of one who acquired it without notice of the wrong, but who gave nothing for it beyond the discharge of a preexisting debt. Under those circumstances the third party was not a purchaser for value. In Bank v. Byrnes, 61 Kan. 459, 59 Pac. 1056, we pointed out that as a general principle, all persons who knowingly participate or aid in committing a breach of trust are responsible for the wrong and may be compelled to make good the loss. The rule has more recently been applied in Alliance Mutual Casualty Co. v. Scheufler, 203 Kan. 171, 453 P. 2d 15, where we held that one who assists in the creation of a debt, through the defalcations of another acting in a fiduciary capacity, may be held personally liable.
In some cases the trustee has wrongfully used trust funds in discharging an encumbrance upon the property of a third person. In that situation a court of equity will afford relief to the beneficiary by putting him in the position occupied by the obligee before the obligation was discharged. If the obligation was a secured obligation such as a mortgage, the beneficiary is entitled to be subrogated to the security interest held by the obligee. (Restatement, Second, Trusts §202 [g]; Levant State Bank v. Shults, 142 Kan. 318, 47 P. 2d 80.) It is important to note that in this situation the beneficiary is not entitled to charge the third person as constructive trustee of the property and to compel him to convey the property to the trust, but he is entitled to a lien on the property for the amount so expended and to be subrogated to the claim of the mortgagee. In disposing of this very complex and difficult case the trial court recognized these rules. It imposed constructive trusts against certain real property and entered personal judgments to compensate the beneficiaries for trust funds misappropriated which could not be traced into specific property.
On this appeal the defendants complain that the trial court erred in permitting plaintiffs to elect to have the court impose a constructive trust on certain lands purchased with trust funds and in addition thereto to obtain a personal judgment against Roy Orebaugh as to the funds which were misappropriated but which could not be traced into any specific property. The defendants argue that the plaintiffs have had two satisfactions of one claim and thus a double recovery. The thrust of defendants’ argument is that all of the misappropriations of trust funds by Roy Orebaugh must be considered as a single breach of trust and therefore the plaintiffs must elect either to secure a personal judgment against Roy Orebaugh for the full amount of the property misappropriated or take all the land on the theory of a constructive trust. We do not agree with the defendants. We find that each individual misappropriation of funds by Roy Orebaugh constituted a separate wrongful act and breach of trust. This being true the plaintiffs had the right to exercise their option with respect to each individual transaction and elect whether to proceed by way of a personal judgment against Roy Orebaugh or to follow the trust funds into the property which had been purchased. The trial court quite properly permitted the plaintiffs to elect as to their remedy with respect to each separate transaction after the circumstances were fully disclosed.
Kent Valere and Joyce Orebaugh contend that there is nothing in the record that indicates that either of them cooperated with Roy Orebaugh in misappropriating trust funds and therefore plaintiffs are not entitled to any relief against them. Kent Valere and Joyce Orebaugh vigorously object to the imposition of a constructive trust against the lands which were purchased with trust funds and placed in their names. The court referred to these lands as the Seaman land and the Roberts land. The evidence was absolutely undisputed that all payments on the purchase price of these lands were made with trust funds. Hence under the principles of law discussed above the trial court properly impressed a constructive trust against these properties since Kent Valere or Joyce Orebaugh were not purchasers for value. Furthermore the trial corut found that they accepted tide to these lands with full knowledge of the fact that trust funds had been used to pay the purchase price. Kent Valere and Joyce Orebaugh further complain that a personal judgment was rendered against them for trust funds expended for their benefit over and above the funds which were actually invested in real estate. It is undisputed in the record that Kent Valere and Joyce Orebaugh received from the trust estate, funds in the amount of $52,800. They signed notes in favor of their grandparents in that total amount. They were given full credit for the funds used to purchase the Seaman and the Roberts land in the amount of $33,500. This left a balance owing of $19,300 for which a personal judgment was entered. We find that the district court properly entered a personal judgment against them in that amount. The finding of the trial court that Kent Valere and Joyce Orebaugh had full knowledge of the source of these funds is supported by the record. Since Kent Valere and Joyce Orebaugh knowingly participated or aided Roy Orebaugh in his breach of trust they are responsible to the extent of their participation for the wrong and may be compelled to make good the loss.
Elsie Orebaugh complains that a constructive trust was imposed against the 800-acre ranch which she and Roy had owned prior to the execution of the powers of attorney. It is: undisputed that Roy expended trust funds in the amount of $18,585.84 to make mortgage payments due the Prudential Life Insurance Company on its first mortgage and due Fred Doll on his second mortgage. Under these circumstances the conservators of the trust are entitled to a lien on this property for the amount so expended with interest and are entitled to be subrogated to the secured claims of the mortgagees in that amount. This was the relief which was specifically requested by the plaintiffs. This 800-acre ranch was sold in a mortgage foreclosure proceeding and a constructive trust was imposed against the equity of redemption. Technically the trial court was authorized under the evidence to impress on the 800-acre ranch an equitable lien in the amount of $18,585.84, rather than to impress a constructive trust covering the entire interest of Roy and Elsie Orebaugh in the equity of redemption of this property. We find nothing in the record, however, to show that Elsie Orebaugh had any equity in the property over and above the mortgage indebtedness and the equitable hen of the conservators of the trust. Under these circumstances we cannot say that Elsie Orebaugh suffered any prejudice by reason of the courts framing its judgment in the manner in which it did.
Another point raised is that the probate proceedings in which Ruby Kline and Ruth Shelor were appointed conservators of their parents’ estate were void because of failure to comply with certain statutory procedural requirements. We note from the record that the defendants filed their petition in the district court to vacate the conservatorship. This, of course, constituted a collateral attack upon the validity of the conservatorship. It is clear from the record that notice of the conservatorship hearing was given to W. D. and Minnie B. Orebaugh and also to Roy Orebaugh in the probate court. The probate court had jurisdiction of the parties and the subject matter. Any procedural defects would not render the conservatorship proceedings void. K. S. A. 59-2201 declares that no defects in form in a pleading in a probate proceeding shall impair substantial rights; and no defect in the statement of jurisdictional facts actually existing shall invalidate any proceedings. Likewise K. S. A. 59-2211 provides that no defect in any notice nor in the service thereof, not affecting the substantial rights of the parties, shall invalidate any proceedings after such notice and the proof of service thereof shall have been approved by the court. Under the circumstances in this case we have no hesitancy in holding that the proceedings in which the plaintiffs were appointed conservators were not void or subject to a collateral attack. (Howbert v. Heyle, 47 Kan. 58, 27 Pac. 116.) In Woodring v. Hall, 200 Kan. 597, 438 P. 2d 135, we stated that collateral attacks upon judicial proceedings are never favored, and where such attacks are made, unless it is clearly and conclusively made to appear that tire court had no jurisdiction, or that it transcended its jurisdiction, the proceedings will not be held to be void, but will be held to be valid. Here Roy Orebaugh was a party to the conservatorship proceeding and received notice prior to the appointment of the plaintiffs as conservators. Since he did not take a direct appeal from the order appointing his sisters as conservators we do not see any basis for his complaint at this late date in a collateral proceeding.
Finally the appellants take the position that it was error for the trial court to appoint a receiver to take charge of the properties in which they claimed an interest. The defendants cite no cases in their brief nor do they state specifically why this was error. A receiver was appointed in the district court under the authority of K. S. A. 1971 Supp. 60-1301, which authorizes appointment of a receiver in situations where the court finds that such an appointment is necessary in order to keep, preserve and manage property pending the determination of any proceeding in which such property may be affected by the final judgment. There is nothing in the record to disclose that the trial court abused its discretion in appointing a receiver in this case. It was obvious from the beginning of the lawsuit that prompt action was necessary to protect the rights of W. D. and Minnie R. Orebaugh. We cannot fault the trial court for acting expeditiously.
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This action was filed to recover a balance of $42,500 claimed to be due on a contract for the sale of corporate stock. The plaintiffs, Mr. and Mrs. Geiger, recovered judgment in the lower court and the defendants, Mr. and Mrs. Hansen, have appealed.
Mr. Geiger commenced the operation of a grain elevator in Everest,. Kansas, in about 1933. For a good many years Mr. Hansen was employed as assistant manager and bookkeeper for the business. He was apparently a valued and trusted employee, as well as a friend, and relations between the Geigers and the Hansens were cordial. In 1962 Mr. Geiger determined to incorporate the business under the style of F.. H. Geiger Grain, Inc. Seven hundred fifty shares of capital stock were issued, seven hundred forty-five shares being issued to Mr. and Mrs. Geiger and five shares to Mr. Hansen.
Sometime prior to January 2, 1964, the Geigers and the Hansens entered into discussions for the sale and purchase of the elevator. The negotiations culminated in a written agreement dated January 2, 1964, for the sale of seven hundred forty-four shares of Geiger stock to Mr. and Mrs. Hansen, with Geiger retaining one share. The business was valued at $110,000, making the stock worth approximately $145.85 per share. The total purchase price of $110,000 was payable $25,000 in cash and the remainder in ten annual payments of $8500 each on the second day of January of each year beginning January, 1965. The agreement called for the reissue of the Geigers’ stock, less one share, in the names of Mr. and Mrs. Hansen, and that the certificates be placed in escrow with the Union State Bank of Everest. It was agreed that two hundred shares should be released as security for the initial $25,000 down payment and that additional shares would be released to secure the subsequent annual payments on a prescribed basis. Reference will be made to other pertinent provisions as this opinion progresses.
Following execution of the agreement, so the record reflects, Mr. Hansen was elected president of the corporation. Mr. Geiger became vice-president, Mrs. Hansen took over the chores of secretary-treasurer, and the Hansens assumed active management of the elevator business. In 1966 the corporate name was changed to Hansen Grain Inc. The shares of stock were reissued in the new name and placed in the file cabinet at the elevator office.
Difficulties began to beset the company late in 1968 and eventually led to a receivership in the District Court of Brown County, Kansas, from which the company has never emerged so far as the record reflects. The Hansens made the principal payment due January 2, 1969,, but they defaulted in the interest payable at that time and the contract has been in default ever since. The petition in the present lawsuit was filed July 23,1970.
The Hansens have not denied that they have defaulted in payments due under the contract, but they have filed a counterclaim in the amount of $33,750 which they premise on the following clause found in the contract:
“It is further agreed between the parties hereto that if default is made of any of the payments as set out herein, or for a period of 60 days after due date, then this contract shall be null and void and all of the stock issued in the names of the said parties of the second part shall be cancelled by F. H. Geiger Grain, Inc. and re-issued by F. H. Geiger Grain, Inc. in the name of the parties of the first part and said parties of the first part shall pay to said parties of the second part 50% of the amount paid on the principal of this contract, less amount borrowed (plus interest) by said parties of the second part from Union State Bank of Everest, Kansas, or any other loan agency or participating bank where said common stock of F. H. Geiger Grain, Inc. has been placed as security for monies borrowed.”
In response to the counterclaim the Geigers filed a reply asserting the following defenses:
“5. Further answering defendants’ Counter-Claim, plaintiffs allege that the provision in the contract relating to a 50% refund to defendants in the event of default, the terms of which are fully set out in numbered paragraph 4 of defendants’ Counter-Claim, was not intended by either party of the contract, to run for the life of the contract, and that said contract should be reformed on the grounds of mutual mistake.
“6. Further answering defendants’ Counter-Claim, plaintiffs allege that defendants are not entitled to the relief they seek in said Counter-Claim for the reason that defendants have grossly diminished the value of the corporation, by misappropriation of funds, and personal loans from said corporation, and that the contract did not contemplate that plaintiffs should have to repurchase the corporation for any sum, while said corporation was owed large sums of money by defendants, or was in a bankrupt condition by reason of said loans to defendants, and mismanagement by defendants.”
A number of the findings made by the trial court appear pertinent to the issue on which we believe this case must turn:
“6. All the payments made on this contract to the plaintiffs were made by the Hansen Grain Inc. except perhaps the last payment. These payments under the terms of the contract were the responsibility of the defendants individually.
“10. On October 15, 1969, the defendants made an assignment to Olin Mathieson Chemical Corporation of all their rights in the agreement. . . . At this time the Hansen Grain Incorporated was indebted to Olin Mathieson Chemical Corporation Inc., in the amount of approximately $130,000.00 as shown by their claim filed in the Receivership case. . . .
“16. The forfeiture clause which is the basis for the defendants counter claim was inserted in this agreement at the request of the plaintiff, F. H. Geiger.
“17. The testimony of F. H. Geiger and Harry E. Miller, one of the attorneys who prepared the agreement was that this clause was inserted for the protection of the defendant, Jean M. Hansen, in the event that if something happened to Mr. Hansen, Mrs. Hansen would not be able to operate the elevator.
“18. This assumed that the elevator would be a going corporation, and not an insolvent corporation.
“22. On May 31, 1969, loans by the corporation to shareholders totalled $62,571.45.
“23. The defendants have not repaid the corporation this indebtedness. These loans have not been repaid by the defendants.
“25. The defendants testified that they did not bargin (sic) or ask for the default clause as is contained in the agreement between the parties . . .”
In material part the trial court concluded:
“3. The default clause was inserted in the agreement ony for certain purposes as set out in the findings of fact and the testimony of the parties was admitted to show this intention.”
Since the Geigers have asked that the contract be reformed on the ground of mutual mistake, the crux of this lawsuit, as we see it, is two-fold: (1) Was the testimony of Mr. Geiger admissible, and (2) was the evidence sufficient to sustain the findings?
The Hansens take the position that the 50 per cent clause is clear and unambiguous; that oral testimony is not admissible to vary or explain its provisions; and, hence, it was error on the part of the trial court to admit Geigers testimony.
We are aware of the general rule that parol evidence is inadmissible to explain or vary the terms of a plan, unambiguous contract, and this court has long adhered to the same. (See 2 Hatcher’s Kansas Digest [Rev. Ed.] Evidence, § 186, p. 564.) However, we believe the rule does not preclude resort to parol testimony under the circumstances of this case. Here it is contended that the 50 per cent clause was gratuitously placed in the contract to protect Mrs. Hansen in case something happened to her husband and she did not care to continue the business. Hence it is claimed the clause was not to be operative unless such a contingency occurred within two years.
The general subject is treated in 3 Jones on Evidence, (6th Ed.) Gard, § 16.4 in these words:
“Where suit is brought to compel a defendant specifically to perform a written contract, parol evidence may be given by him to show that the alleged agreement is not the true agreement — in other words, that by reason of mistake there was no consent to the apparent agreement.
“Under proper pleadings the defendant may have the mistake corrected in the same proceeding by showing the actual agreement; this is especially true in those states where the modern system of pleading has been adopted. So in other actions, legal or equitable in their nature, brought on written instruments, either party is at liberty under proper pleadings to prove a mistake, and to have reformation of the contract. In some cases it has been held that such a defense can be proved although equitable relief is not asked by the defendant in Iris pleading.”
Continuing the discussion of the subject matter in § 16.40, Judge Gard goes on to say:
“The rule is generally recognized, too, that parol evidence is admissible to show that a written paper which in form is a complete contract was not to become binding until the performance of some condition precedent which rests in parol.
“Parol evidence may be given to prove the existence of any separate oral agreement constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property.” (pp. 172, 173.)
In Brown v. Bradley, 259 S. W. 676, 678 (Tex. Civ. App.), the court said:
“It is a general rule that, where parties assumed to contract, and there is a mistake with reference to any material part of the subject matter, there is no contract because of the want of mutual assent necessary to create one. (Citing cases.)”
There is authority, also, to the effect that while unilateral error is not of itself sufficient to avoid a contract it may be a good defense where hardship amounting to injustice would otherwise be inflicted on a party by holding him to the agreement and where it would be harsh and unreasonable to enforce the agreement against him. (17 Am. Jur. 2d Contracts, § 146, p. 493; Buck v. Equitable Life Assur. Society, 96 Wash. 683, 165 Pac. 878.)
Mr. Geigers testimony is clear and positive that his gratuitous proposal was conditioned in this respect: that Mrs. Hansen would not care to continue operation of the elevator in the event something happened to her husband, and that the proposal would apply for a term of two years. Such were the conditions on which the clause was to be effective, according to Mr. Geiger. In our opinion his testimony was admissible on that point, not to vary the terms of the clause, but to show on what contingency it was to apply.
It is true that Mr. Hansen’s testimony was considerably different. He said he understood that if he defaulted in payments, 50 per cent of what he paid would be returned to him. But it is dear also from his testimony that he did not bargain for or request the provision but that the same came gratuitously from his friend, Mr. Geiger.
The trial court, at first hand, heard the evidence regarding the circumstances under which the clause was inserted in the agreement. It was the trial court’s function to reconcile whatever conflict there may have been in the testimony and to determine what were the conditions on which the clause was to be operative. If there be evidence to support the court’s conclusion it must be sustained on appeal. (1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, §§ 507, 508.)
In his testimony given at the trial, Mr. Hansen conceded that all payments made to the Geigers came from corporate funds with the single exception of the last $8500, and that he owed the company $60,000. The trial court was aware of the receivership proceedings pending in its own court, of the Olin Mathieson indebtedness of $130,000, secured by pledge of the Hansen stock, of other outstanding indebtedness and of the generally gutted condition of the corporation.
Taking the evidence as a whole, we cannot say that the findings and conclusions entered by the trial court with respect to the clause in controversy are not supported by the record.
In view of what has already been said we believe it is unnecessary to mention or discuss other matters included in the defendants’ statement of points.
The judgment of the court below is affirmed.
Scheoedek, J., not participating.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is a workmen’s compensation case in which the employer challenges a compensation award made to an employee under the provisions of the occupational disease statute, K. S. A. 44-5a01 et seq.
The claimant, Betty J. Hill, was employed by respondent as an assembly line worker. Her job entailed the placing of molding on back windows of automobiles. Her work required repeated hammering with a rubber mallet. On January 7, 1971, she informed her foreman that her right arm was hurting and she was sent to the plant medical facility for treatment.
The claimant received treatment daily during the first three months of 1971 at respondent’s medical facility. From March to July 1971, she was off work for other causes. A short time after she returned to work on the assembly line, she began having difficulty again with her arm. In February 1972, Dr. Kantor, the plant medical director, referred her to a private physician for treatment. The physician, Dr. Unger, started claimant on a therapy program. Her arm did not respond, and on April 16, 1972, Dr. Unger had claimant admitted to a hospital where she underwent surgery to remove a ligament from her right elbow. The claimant lost nine weeks work as a result of this medical treatment.
When claimant recuperated she returned to work and resumed her task on the assembly line. Later she advised respondent she was physically unable to continue in the job due to the condition of her arm. Respondent then placed her on cleanup duty. Thereafter, her arm continued to hurt and Dr. Unger restricted claimant to light duty. Respondent then found her a job wiping off cars. On June 26, 1972, claimant consulted Dr. Ronald K. Piper, an orthopedic surgeon, who prescribed therapy and cortisone treatments.
In his. deposition, Dr. Piper tetstified the claimant was suffering from chronic synovitis which is commonly referred to as “tennis elbow.” He estimated the claimant had a seven to eight percent permanent partial loss of use of her right arm as a result of the synovitis condition and the operation. Dr. Peter C. Boylan, an orthopedic surgeon, examined claimant on July 27, 1972, and testified on behalf of the respondent. It was Dr. Boylan s opinion the claimant was suffering a five to seven percent permanent partial loss of use of her right arm as a result of the synovitis condition. Both physicians attributed the synovitis condition to claimant’s employment on the assembly line.
The examiner found claimant was suffering from synovitis of her right arm due to repeated use of that arm, and that synovitis was an occupational disease compensable under K. S. A. 44-5a02 (11). He made further findings:
“. . . [T]hat the claimant, as a result of her occupational disease (synovitis) lost nine weeks from work at the time she was operated on by Dr. Unger and as a result thereof, claimant is entitled to nine weeks temporary total compensation, payable at the rate of $56.00 per week, for a total of $504.00.
“. . . [T]hat as a result of the claimant’s condition of her right arm, the claimant has been suffering, is suffering, and will continue to suffer in the future a 7½ per cent functional disability of the right arm, and as a result thereof, claimant is entitled to 15 weeks compensation, payable at the rate of $56.00 per week for a total sum of $840.00, which is also due and owing claimant, in addition to the temporary total compensation. In making this finding, the Examiner is cognizant of the case of Knight vs. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, but is of the opinion that the case does not govern the instant case because in the Knight case, there was no functional disability, and in the instant case all medical witnesses agree that claimant does have functional disability. In this connection, the record is also clear that the claimant did make a higher wage following her difficulties with her right arm than she was making on January 7, 1971. . . .”
This award was reviewed and sustained by the Director o£ Workmens (Compensation. (K. S. A. 44-551.) General Motors took an appeal to the district court (K. S. A. 44-556) and that court affirmed the award. The findings o£ the district court set out in the journal entry include:
“4) That as a result thereof, the claimant has been suffering, is suffering, and will continue to suffer in the future a 7½ percent functional disability of the right arm, and as a result thereof, claimant is entitled to 15 weeks of compensation, payable at the rate of $56.00 per week for a total sum of $840.00.”
# # * * *
“7) The Court finds that the claimant was paid and is being paid a higher wage following the difficulties with her right arm than she was prior to the time the disability arose on January 7,1971.
“8) The sole issue is whether the claimant was entitled to an award of compensation for the seven and one-half percent (7½%) functional disability. Respondent contended that under the ruling of Knight v. Hudiburg-Smith Chevrolet, Olds, Inc., 200 Kan. 205, that the claimant was not entitled to any such award. The Supreme Court in its opinion refused to apply the rule governing accidental injuries as expressed in Puckett v. Minter Drilling Co., 196 Kan. 196, and instead held that in occupational disease cases, the award was related to the capacity of the workman to earn the same or higher wages than he did at the time of disablement. The Examiner and the Director distinguished this case, however, on the basis that in that case the claimant did not suffer from any functional disability.
"9) In the Knight case, the Court said, 'His (claimant) capacity to earn wages from any trade or employment is relatable to the amount of compensation due, to the extent that the award may be diminished accordingly.’ The use of the term may by the Corut meant that the Court preferred to limit itself to approving the trial Court’s method of computation to the facts in that case and not that the Court intended to extend the rule of that case to all occupational disease cases irrespective of whether permanent, functional disability has resulted or not.”
The threshold question presented is whether the claimant is entitled to compensation under provisions of the occupational disease statutes, K. S. A. 44-5a01 et seq. In the instant case, the examiner, director and district court found the claimant was earning a higher wage in her employment after the difficulty with her arm than she was earning when the difficulty first developed. General Motors contends that pursuant to K. S. A. 44-5a04 when an employee returns to work, and his or her earnings are equal or higher after con tracting an occupational disease than before, the award should be cancelled as a matter of law. The point is not well taken.
The statute in question (44-5a04), in providing for cancellation of an award, states:
“. . . [I]f the director shall find the workman has returned to work for the same employer in whose employ he was disabled . . . and is capable of earning the same or higher wages than he did at the time of the disablement, or is capable of gaming an income from any trade or employment which is equal to or greater than the wages he was earning at the time of disablement . . . the director may cancel the award and end the compensation.” (Emphasis supplied.)
This court has considered an award of compensation under provisions of the occupational disease statute in Knight v. Hudiburg-Smith Chevrolet, Olds, Inc., 200 Kan. 205, 435 P. 2d 3; Ochoa v. Swift & Co., 200 Kan. 478, 436 P. 2d 412; and Linville v. Steel Fixture Manufacturing Co., 205 Kan. 447, 469 P. 2d 312. Both parties to this appeal emphasize the particular disability presented in each of our prior cases. The basis of respondent’s argument is the statements in Knight, supra, wherein it was said:
“. . . The record further indicates appellant has no functional disability of any kind other than the allergy.” (l. c. 206.)
# # * # #
“. . . We deal here, however, with an occupational disease and one in which there is no functional disability apart from the allergy attributable to the particular employment. . . .” (l. c. 208.)
Respondent contends that claimant is suffering from no functional disability other than synovitis, and she has no functional disability apart from the synovitis attributable to the particular employment. The claimant contends our prior decisions are distinguishable in that they dealt with workmen who were incapacitated only as to certain types of employment. Here, the claimant contends she is incapacitated in performing any manual labor requiring the use of her right arm.
While claimant’s proposition is amply supported by medical evidence, the distinction does not control the case at bar. The statute in question (44-5a04) requires the director to make certain findings before he may cancel an award of compensation. The last sentence of that statute provides, “. . . the director may cancel the award and end the compensation.” (Emphasis ours.) This sentence does not command the director to automatically terminate the award, rather it vests in him discretionary power to cancel or end the award. Our decisions support that conclusion.
In Knight, supra, this court stated:
“It would be unwise here to attempt to postulate general rules applicable to all categories of occupational disease cases and we undertake no such endeavor. However, as applied to the facts in the case at bar, and keeping in mind our workmen s compensation statutes are to be construed as a single comprehensive act, we think the foregoing statutory recitation evinces certain legislative intent: Partial disability from occupational disease is compensable; such compensation is payable as provided in the workmen s compensation act except as otherwise provided in the occupational disease aspect of the act; the term ‘disability’ when attributable to occupational disease is separately defined and it means the state of a workman being actually incapacitated, partially or totally, because of an occupational disease, from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease; and finally, the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, by whomever employed, from any trade or employment, is relatable to the amount of compensation due, to the extent that the award therefor may be cancelled and the compensation ended.
“If the capacity of the workman to earn the same or higher wages than he did at the time of the disablement, from any trade or employment, is relatable to the amount of compensation due, so that the award may be cancelled, then it logically follows that his capacity to earn wages from any trade or employment is relatable to the amount of compensation due, to the extent the award may be diminished accordingly. . . .” (l. c. 209.)
To hold the director must cancel or end an award when the conditions of K. S. A. 44-5a04 have been established by an employer negates completely tire director’s statutorily granted discretion. Discretionary rulings made by the director will not be overturned on appeal in the absence of a clear abuse of discretion. (Stanley v. United Iron Works Co., 160 Kan. 243, 160 P. 2d 708; Johnson v. General Motors Corporation, 199 Kan. 720, 433 P. 2d 585; Leiker v. Manor House, Inc., 203 Kan. 906, 457 P. 2d 107.) There was no dispute in the medical evidence which clearly showed the claimant will continue to suffer in the future a seven and one-half percent permanent partial functional disability. We have examined carefully the record and find no abuse of discretion has been established by respondent.
We turn now to the difference in claimant’s wages as it relates to the award of compensation. When the claimant’s difficulty first arose on January 7, 1971, she was earning a base rate of pay of $4.25 per hour, a cost-of-living allowance of .05 cents per hour, and a shift premium of 5 percent of her base hourly rate of pay and cost-of-living allowance. After surgery, she returned to work on respondent’s assembly line at higher pay rate. Thereafter, she was reassigned to other duties at this higher pay rate.
The award of compensation is governed by K. S. A. 44-5a06 which provides, in part:
"The date when an employee or workman becomes incapacitated by an occupational disease from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease, shall be taken as the date of injury equivalent to the date of accident under the workmen s compensation act. . . .”
. . the amount of the compensation shall be based upon the average wages of the employee or workman when last so exposed under such employer.
The claimant suffers from synovitis due to tihe repetitive use of her right arm. She was last so exposed to the hazards of such disease when she returned to work on the assembly line at the higher rate of pay. Accordingly, the examiner, director and district court did not err in computing claimant’s award based on the higher wage rate.
The judgment is affirmed.
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Per Curiam:
Alfred Salters was convicted of unlawful possession of marijuana, and he has appealed. The complaint filed January 9, 1973, charged the appellant with unlawful possession of marijuana in violation of K. S. A. 65-2502 and K. S. A. 65-2519 (&). However, the statutes cited in the complaint were repealed July 1, 1972. (L. 1972, Ch. 234, §41.) The appellant’s motion to dismiss was overruled and he now contends the action should have been dismissed.
Although the wrong statutes were cited in the complaint, the appellant was fully apprised of the charge against him. At the time the complaint was filed, the possession of marijuana was prohibited by K.S.A. 65-4125 (since repealed [L. 1973, Ch. 259, §5]) now K. S. A. 1973 Supp. 65-4127b.)
K.S.A. 65-2502 and K.S.A. 1971 Supp. 65-2519 (b) provided that unlawful possession of marijuana was a class A misdemeanor. K. S. A. 65-4125 (a), the statute in effect when the complaint was filed, provided that unlawful possession of marijuana was a class A misdemeanor or upon a second or subsequent conviction, a felony. The present statute, K.S.A. 1973 Supp. 65-4127 (b) (3), provides that the unlawful possession of marijuana is a class A misdemeanor except upon a second or subsequent conviction it becomes a class D felony.
K. S. A. 1973 Supp. 22-3201 (2) provides, in part:
“. . . The complaint, information or indictment shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the complaint, Information or indictment or for reversal of the conviction if the error or omission did not prejudice the defendant.”
The complaint sufficiently informed the appellant he was charged with unlawful possession of marijuana. The mistake of citing a repealed statute was brought to the attention of the court and the county attorney before trial, and the error could have been corrected, but it is apparent that no prejudice resulted to the defendant from failure to do so. Reference to a repealed statute amounts to the same thing as “omission” of reference to any statute, in view of the circumstances of this case. The crime charged was the same under the new statute as under the old; hence, appellant was not misled.
Complaint is made also of a reference by the county attorney in his opening statement to the effect that the case was on appeal from a county court conviction. On objection, the district court instructed the county attorney to “stay on the issues,” and appellant’s motion for a mistrial was denied. There was no request by the appellant for an instruction informing the jury to disregard the statement, and none was given. There is no showing the appellant was prejudiced by the statement. We find no reversible error.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This action arose from a gas explosion and fire which destroyed the residence of Mr. and Mrs. Robert Smith on September 17, 1970. Mrs. Smith was severely burned and died twelve days later as a result of the injuries she received. The administratrix c. t. a. of the estate, who filed the present action on September 15, 1972, will be referred to as the plaintiff. The action was brought against Lyle Kensinger d/b/a Kensinger-Haight Construction Company, who contracted and built the house in May, 1959, and against Johnnie White, Sr. d/b/ a White Plumbing Company, who subcontracted the plumbing and installed the gas pipes in said house. Claim was also filed against the city for the alleged failure to odorize the natural gas which it furnished to the residence; this claim is still pending in the court below.
Summary judgment was entered by the trial court in favor of both Kensinger and White based on the statutes of limitation.
The plaintiff appeals.
A few preliminary facts are necessary to understand the questions posed on appeal. Kensinger and White completed their last work on this residence in May, 1959. Kensinger sold the house to Charles Hall on May 31, 1960. On December 5, 1969, Charles Hall sold the house to Mr. and Mrs. Smith. On September 17, 1970, an explosion and fire occurred which caused the death of Mrs. Smith. The present action was filed on September 15, 1972, within 2 years from the date of the explosion and fire.
K. S. A. 60-510 provides:
“Civil actions, other than for the recovery of real property, can only be commenced within the period prescribed in the following sections of this article, after the came of action shall have accrued.” (Emphasis supplied.)
K. S. A. 1973 Supp. 60-513, which was in effect at the time the present cause of action accrued, provides:
“The following actions shall be brought within two (2) years: (1) An action for trespass upon real property.
“(2) An action for taking, detaining or injuring personal property, including actions for the specific recovery thereof.
“(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
“(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
“(5) An action for wrongful death.
“(6) An action to recover for an ionizing radiation injury as provided in sections 2, 3 and 4 [60-513a, 60-513b and 60-513c] of this act.
“The came of action in this section shall not be deemed to have accrued until the act giving rise to the came of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.” (Emphasis supplied.)
In entering summary judgment in favor of Kensinger and White the trial court based its decision on the 10 year provision contained in the last clause of the final paragraph of 60-513, supra, and said:
“The paragraph explicitly provides in its inception that it applies to the entire section and its significance for our purpose lies in referring the ten year bar not to the cause of action, but to the act giving rise to the cause of action. To this Court the meaning is not debatable. No cause of action can arise if more than ten years have elapsed since the alleged wrongful act.”
It is admitted that any negligent act or acts of Kensinger and White, which in anyway contributed to the explosion, would have had to occur in 1959. This would be more than 10 years before the explosion and fire. The plaintiff-appellant contends the 10 year provision was intended to apply only to those cases where substantial injury occurs but the fact of injury is not reasonably ascertainable until some time after the initial injury. Plaintiff further argues that the 10 year provision should not be construed to apply to those cases where the initial injury and the fact of injury are simultaneous and immediately ascertainable. Plaintiff points out that if the trial court’s decision is correct the plaintiff is foreclosed from bringing the action before the action accrued. In other words plaintiff says the court interprets the statute not as a limitation on the period in which the cause of action may be commenced but as an absolute bar which destroys the right of action before it accrues.
The appellees, on the other hand, argue in support of the trial court’s decision that the negligent act causing the explosion was the defective installation of 'the gas pipes, that the 10 year period of limitation provided in the last paragraph of the statute was made to run from the time of the act giving rise to the cause of action and that the final paragraph by its plain wording relates to any and all causes of aotion mentioned in the section. Appellees further assert that if appellant’s construction of the statute is accepted by this court it will negate the 10 year provision and make it useless.
Proper construction is not without difficulty and we must be mindful of the rules of statutory construction. In construing the statutes of this state words and phrases must be construed according to the context and the approved usage of the language, but technical words and phases which have acquired a peculiar and appropriate meaning in the law shall be construed according to their meaning acquired in the law. (K. S. A. 77-201, Second.) A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose the court should follow the intent as expressed by the words used. (City of Overland Park v. Nikias, 209 Kan. 643, Syl. ¶ 2, 498 P. 2d 56.) In examining an act of the legislature courts are required to consider and construe all parts thereof in pari materia (State v. Dailey, 209 Kan. 707, Syl. ¶ 3, 498 P. 2d 614) and may consider the historical background of the legislative act (Curless v. Board of County Commissioners, 197 Kan. 580, Syl. ¶ 2, 419 P. 2d 876). It is the duty of the courts to reconcile various provisions of an aot in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions contained therein. (State v. Sumner, 169 Kan. 516, 219 P. 2d 438; Gnadt v. Durr, 208 Kan. 783, 786, 494 P. 2d 1219.)
We note that the general prefatory section, K. S. A. 60-510, relating to the limitations prescribed for commencing civil actions other than for recovery of real property, provides that the period of limitation “can only be commenced . . . after the cause of action shall have accrued.”
The time when a cause of action accrues and can be commenced has acquired an appropriate meaning in the law of Kansas. The terminology “when a cause of action has arisen” and “when a cause of action has accrued” are synonymous. Both phrases designate that first point in time when one party has the right to sue another for damages suffered. See Bruner v. Martin, 76 Kan. 862, 866, 93 Pac. 165, and Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605.
Prior to 1951 in situations where tortious acts caused immediate damage this court had indicated that the statute of limitations commenced to rim at the time of the occurrence of the negligent act. (See Becker v. Porter, 119 Kan. 626, 240 Pac. 584, and Becker v. Floersch, 153 Kan. 374, 110 P.2d 752.)
In 1951, however, this court was faced with a clear-cut situation in which the wrongful act occurred more than 2 years prior to the filing of the suit but the resultant damage occurred later. In Kitchener v. Williams, 171 Kan. 540, 236 P. 2d 64, suit was brought within 2 years following the onset of damage. The damage was sustained when gas exploded, and the gas was released into the house by a defeotive valve on a hot water heater negligently installed by defendant more than 2 years prior to the filing of suit. It was then held that tort actions accrue, not when the alleged tortious act is committed, but on the date substantial injuries result therefrom. Since Kitchener was decided this rule has been consistently followed.
For instance, in Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986, it is said:
“It is clear that if claimant has elected to proceed in tort, a cause of action did not survive against the decedent’s estate. In Kitchener v. Williams, supra, we dealt extensively with the question of when a cause of action in tort accrues. It was there held that not every failure to exercise due care gives rise to a cause of action; for negligence to be actionable, a damage to the plaintiff must have resulted from the wrongful conduct of the defendant, and that a cause of action in tort does not accrue until actual damage has resulted from the alleged negligence. . . .” (p. 504.)
Similar language may be found in Price, Administrator v. Holmes, 198 Kan. 100, 104, 422 P. 2d 976. See also George v. Breising, 206 Kan. 221, Syl. ¶ 1, 477 P. 2d 983; Welch v. City of Kansas City, 204 Kan. 765, Syl. ¶ 5, 465 P. 2d 951, and Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, Syl. ¶ 7, 470 P. 2d 797.
The rule was codified by K. S. A. 60-510 and oarried into that portion of die final one sentence paragraph of 60-513, supra, where it is stated:
“The cause of action in this section shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, . . .”
The balance of this one sentence paragraph reads:
“. . . [O]r, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
This court recently considered this final paragraph of the statute in Hecht v. First National Bank & Trust Co., 208 Kan. 84, 490 P. 2d 649, a malpractice case. After noting the abrupt change wrought by this statute in 1964, the court says:
“Under the new provision the period of limitation does not commence until the act giving rise to the cause of action first causes substantial injury, or in the alternative, if the fact of injury is not reasonably ascertainable until sometime after the initial act, then not until the fact of injury becomes reasonably ascertainable to the injured party.” (Emphasis supplied, p. 90.)
This court recognized in Hecht the two alternatives. The first alternative which codified the Kitchener rule and the second alternative which ameliorated the harsh result of the rule when applied to some of the malpractice cases where substantial injury occurs sometime after the negligent act but may not be ascertainable as such for several years.
In Jennings v. Jennings, 211 Kan. 515, 507 P. 2d 241, this court was first called on to construe the effect of the 10 year limitation clause in K. S. A. 60-513 as it relates to actions for relief on the ground of fraud. K. S. A. 60-513 (3) (now 1973 Supp.) provides that such actions “shall not be deemed to have accrued until the fraud is discovered.” In Jennings this court holds the 10 year limitation clause is not applicable to actions based on fraud and says:
“. . . The provision for the ten-year limitation period does not mention fraud or the discovery of fraud, but refers to those cases where the fact of injury may become ascertainable sometime following the act causing the injury. In an action based upon fraud, its discovery is simultaneous with the discovery of the injury resulting therefrom. In order to harmonize the statute and give effect to each of its provisions we must conclude the legislature did not intend that an action based on fraud was subject to the ten-year limitation. . . .” (p.527.)
The holding in Jennings disproves appellees’ contention that the 10 year limitation relates to any and all causes of action mentioned in the section for we there held it did not apply to actions for relief on the ground of fraud.
By way of further support to our construction we note that the “substantial injury clause” is separated from the “clause relating to injuries not immediately ascertainable” by a conjunction (or) and that the conjunction is both preceded and followed by a comma. This particular punctuation and sentence structure lends credence to appellant’s argument that the 10 year limitation clause which begins with “but in no event” was intended to relate only to that clause which follows the conjunction “or”.
Such a construction of the statute follows the rule recognized in Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P. 2d 732, where it is said:
". . . In construing statutes, qualifying words, phrases and clauses are ordinarily confined to the last antecedent, or to the words and phrases immediately preceding. The last antecedent, within the meaning of this rule, has been regarded as the last word [or clause] which can be made an antecedent without impairing the meaning of the sentence.” (p. 504.)
While the foregoing rule of statutory construction is not inflexible it clearly has bearing upon the construction to be placed upon the one sentence paragraph now under consideration.
One additional consideration is pertinent. The limitation placed on the various lands of actions mentioned in K. S. A. 1973 Supp. GO-513 (1) through (6) is a primary limitation period imposed by the statute (2 years). Under K. S. A. 60-510 this primary 2 year period is not to commence until each cause of action shall accrue, i. e., when substantial injury results. The 10 year provision is secondary and speaks to this primary period when it states “but in no event shall the period he extended more than ten (10) years beyond the time of the act giving rise to the cause of action.” The “period” referred to would appear to be the “period of limitation” mentioned immediately preceding and this refers to the primary 2 year period provided for in the statute. This would indicate to us that the legislature did not intend to place a restriction on the primary 2 year period which commences when the action accrues. It is merely a limitation on the extension of the 2 year period when substantial injury is not immediately ascertainable. If the legislature intended otherwise it could have clearly expressed itself by saying that in no event shall an action he commenced more than 10 years beyond the time of the act giving rise to the cause of action. This they did not do. Accordingly we hold that the last clause in this statute, which states “but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action”, does not affect or limit the primary 2 year period for bringing an action where the fact of substantial injury is immediately apparent as in the case of an explosion and resulting fire. The provision in K. S. A. 1973 Supp. 60-513 imposing the 10 year limitation is intended to apply only to those cases in which the fact of injury is not reasonably ascertainable until some time after substantial injury occurs. This construction would appear to be consistent and sensible without doing violence to the other provisions of the statute.
In conclusion appellant advances several secondary theories by which she seeks to pursue her claim and elude the bar of the statutes of limitation. She asserts her claim arises from the breach of a contractual duty arising by reason of warranty. Defendants’ last work was completed on this house in 1959. The house was sold to a third party, Charles Hall, in 1960. The Smiths purchased the house 9 years later from the Halls. We fail to see any basis for a contractual action against the defendants. Assuming such an action is alleged, however, any such action in contract accrues at the time of the breach or failure to do the thing agreed to, irrespective of any knowledge on the part of the plaintiff of the actual injury it has occasioned. In the present case any such breach would have occurred in 1959 and the action would be barred. The statutes of limitation winch govern actions based upon contracts (K. S. A. 60-511 and 60-512 as amended) are fatal to any such theory in this case. See Crabb v. Swindler, Administratrix, supra; Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 457 P. 2d 1, and Price, Administrator v. Holmes, supra.
Appellant argues several additional theories such as continuing and reoccurring negligence and warranty as well as strict liability. These secondary theories of appellant cannot be supported in law under the pleaded and admitted facts of the present case. In view of the nature of the claim plaintiff has pleaded and the law applicable thereto, we see nothing to be gained by setting forth in detail our reasoning which would deny such secondary theories of recovery and uphold the district court’s decision thereon. Plaintiff’s action should be limited to her claim based on negligent tort.
In summary we hold the period for bringing an action based on negligent tort as limited by K. S. A. 1973 Supp. 60-513 does not begin until the tortious act first causes substantial injury, that appellant’s claim based on alleged tort negligence accrued when the explosion and injury occurred on September 17, 1970, that the action on said tort claim was commenced within the primary 2 year period limited by K. S. A. 1973 Supp. 60-513, that the 10 year limitation which limits the extension of said period does not apply when substantial injury is immediately ascertainable, that appellant’s claim based on alleged tort negligence is not barred and that the district court erred in entering summary judgment in favor of defendants, Kensinger and White, on said tort claim. Accordingly the summary judgment is affirmed in part and reversed in part and the case is remanded for further proceedings in accordance with the opinions expressed herein.
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The opinion of the court was delivered by
Fontron, J.:
The plaintiffs bring this action to recover damages for the death of 'their fourteen-year old son, Monty D. Williams, who was killed in a collision between his Yamaha motorcycle and a San Ore Construction Company truck driven by Glenn Esaw. The jury brought in a verdict in favor of the defendants and the plaintiffs have appealed, alleging various trial errors.
The accident occurred in Sedgwick county about 8:30 a. m., July 30, 1970, near the intersection or junction of 85th Street North, which runs east and west, and Interstate 35, a north-south highway. There is a grade separation where the two roads intersect, with 1-35 overpassing 85th Street. A short distance east of the overpass an exit ramp leads from the south side of 85th to the interstate highway. On the date of the accident the exit ramp to 1-35 was closed to public traffic and was so marked.
Monty Williams was proceeding west on 85th Street. He was on his way to a farm owned by his father near Valley Center, where he was to turn on the irrigation pump. At the same time the two-unit San Ore truck, composed of a tractor and a large water tank or trailer, was also headed west, the driver intending to make a left tarn onto the exit ramp and then proceed to 1-35 where his job was to spray the base of that highway. It was during the course of the left-hand turn that Monty’s motorcycle skidded under the rear part of the water tank and both Monty and the cycle were dragged across the pavement into' the exit ramp. Monty appears to have been killed instantly. It was not a pretty death. Further facts will be noted as needed.
Six points of error, in all, are advanced by plaintiffs in their brief, but only two were argued when the appeal was heard. We shall first consider these two points in the order presented.
A number of complaints are grouped together in point number one, the principle thrust of which are that the court erred in admitting Monty’s restricted driver’s license, and in instructing on the Oklahoma statutes under which the same was issued. The Oklahoma license limited the operation of motor vehicles by persons under sixteen to vehicles of five horsepower, and there was evidence to the effect the horsepower of the cycle manned by Monty was greater than that, being in the neighborhood of fourteen or fifteen.
A strong argument is made by the plaintiffs in the area of causation. They stoutly contend that the Oklahoma license, with its horsepower restriction, bore no causal relationship to the accident — in other words that Monty’s violation of the restriction, if any, was not a proximate cause of the collision and his resulting death.
It is a well recognized tenet of the law that before liability can be predicated on the violation of a statute there must be a causal relation between the violation and the injury complained of. This viewpoint is well expressed in Zumbrun v. City of Osawatomie, 135 Kan. 26, 10 P. 2d 3, in this language:
“. . . It is familiar law that where there is no causal connection between the breach of a statute or city ordinance and the wrong or injury complained of, its violation does not bar a recovery. (Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 Pac. 397; Griffith v. Atchison, T. & S. F. Rly. Co., 132 Kan. 282, 286, 395 Pac. 687; 45 C. J. 902-905.)” (p. 34.)
This time-honored rule has been carried over into the area of motor vehicular accidents, where the violation of a traffic law, either state or municipal, is held to give rise to liability for injury to another only where the violation bears a causal or proximate relationship to the injury. (Jones v. McCullough, 148 Kan. 561, 83 P. 2d 669; Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; Applegate v. Home Oil Co., 182 Kan. 655, 324 P. 2d 203; Oil Transport Co. v. Pash, 191 Kan. 229, 380 P. 2d 341; Ripley v. Harper, 181 Kan. 32, 34, 309 P. 2d 412; Rohrer v. Olson, 172 Kan. 674, 677, 242 P. 2d 825; Crawford v. Miller, 163 Kan. 718, 721, 186 P. 2d 116; McCoy v. Fleming, 153 Kan. 780, 783, 113 P. 2d 1074.)
In Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 185 P. 2d 158, this court, in discussing motor vehicle collisions, spoke in this fashion:
“. . . [M]ere violations of an ordinance or statute regulating traffic, such as excessive speed, defective equipment, driving down the center of the highway, or other matters of a similar nature, are not sufficient to make the driver of an automobile guilty of actionable negligence in an action involving a collision unless it appears from the evidence that such violations contributed to the accident and were the proximate cause of the injuries therein received. . . .” (p. 618.)
The same rule was declared in the more recent case of Lewis v. Service Provision Co., Inc., 209 Kan. 378, 382, 496 P. 2d 1373, where the plaintiffs, suing for the death of their son, attempted to make an issue of the fact that defendant’s truck, which struck decedent’s car pulling in front of it on 1-35 near Guthrie, Oklahoma, was overweight under Oklahoma law. In the course of our opinion rejecting the plaintiffs’ argument, we said:
“The violation of a traffic law does not establish actionable negligence as a matter of law unless it is made to appear that the violation was the proximate cause of the injury. . . .”
On the issue of contributory negligence, the question in the present case was not whether Monty violated Oklahoma licensing statutes, but whether he was guilty of negligence which was a proximate cause of the accident and his resulting death. The general law with respect to the violation of statutes regulating the licensing of drivers seems reasonably stated in 7 Am. Jur. 2d, Automobiles and Highway Traffic, § 368, p. 915:
“. . . The absence of a valid driver’s license, so far as it concerns the question of contributory negligence in an action to recover for injuries sustained in a motor vehicle accident, does not defeat recovery unless such licensing violation proximately contributed to the injuries in question.”
This court expressed the same philosophy in an era when motoring was more novel than it is today. In Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635, the plaintiff was a sixteen-year old bicyclist who was injured in a night-time collision with an automobile. It developed that the plaintiff had no license to ride his bicycle and that he carried no light, both being contrary to city ordinance. In upholding the trial corut’s judgment in favor of the plaintiff, this court said that the absence of a license on the part of the plaintiff was not a factor causing the collision or contributing to the injury.
In McCausland v. File, 141 Kan. 120, 40 P. 2d 323, the plaintiff was a nine-year old child who was struck by defendant’s car when returning home after a nine o’clock show. She was not accompanied by parent or guardian, as required by city ordinance. This court said in that case:
“There was no proximate cause of the plaintiff’s accident in being unaccompanied by her father when defendant was negligently driving his automobile and causing the injury. None was alleged by defendant and it only gave the opportunity for the accident. . . .” (p. 121.)
The rationale of the foregoing cases was aptly phrased in State v. Yowell, 184 Kan. 352, 336 P. 2d 841, where the defendant was faced with a charge of fourth-degree manslaughter as a result of a rear-end collision which occurred during the time his drivers license was suspended. In the course of delineating various legal rules pertinent to the situation, the court pointed out:
“Another rule is that some causal connection and/or legal relation between the commission of the unlawful act and the death must appear and that there must be more than a mere coincidence of time and place between the wrongful act and the death. For cases from courts adhering to this rule see Thompson v. State of Florida, 108 Fla. 370, 372, 146 So. 201; Maxon v. State, 177 Wis. 379, 385, 187 N. W. 753; Votre v. State, 192 Ind. 684, 685, 686, 138 N. E. 257; The People v. Mulcahy, 318 Ill. 332, 149 N. E. 266.” (p. 361.)
We find no evidence in this record which warrants any conclusion that the rated horsepower of Monty’s motorcycle was a proximate cause of the accident. It had little, if any, more to do with the cause of the collision than did Mr. Esaw’s possessing only a driver’s license instead of being licensed as a chauffeur.
The defendants argue, however, that in any event the evidence relating to the Oklahoma license and the corut’s instructions on the Oklahoma law could not have prejudiced the plaintiffs’ case. We are unable to agree. Defense counsel bore down heavily on the horsepower limitation, both in cross-examination of the plaintiffs and in final summation to the jury. The impact of the license question on the minds of the jurors may be judged from the following question submitted during their deliberations: “What bearing does the license of deceased have on the case?” To- this inquiry the trial judge, after considerable colloquy with counsel, provided this reply: “That is a fact question. That is for you to decide. The Court can’t help you in any way with questions of fact.” Obviously the jury was perplexed as to the relevancy of the Oklahoma restriction. Under the existing circumstances we cannot shrug off the error as being insubstantial.
The second point orally argued h-as to do with instruction sixteen, in which the trial court set out the provisions of original K. S. A. 8-540 (a) and (b) in their entirety. In 1968 this statute was amended and subsection (c), reading as follows, was added:
“(c) The foregoing limitations shall not apply upon a one-way roadway.”
However, the contents of (a) and (b) were not materially changed, so far as the present aotion is concerned. The instruction, as given by the court, reads as follows:
“Section 8-540 of the Kansas Statutes Annotated provides as follows:
“(a) No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.
“(b) No vehicle shall, in overtaking and passing another vehicle or at any other time, be driven to the left side of the roadway under the following conditions: (1) When approaching the crest of a grade or upon a curve in the highway the drivers view along the highway is obstructed; (2) when approaching within 100 feet of any bridge, viaduct, or tunnel or when approaching within 100 feet of or traversing any intersection or railroad-grade crossing; (3) where official signs are in place directing that traffic keep to the right, or a distinctive center line is marked, which distinctive line also directs traffic as declared in the sign manual adopted by the state highway commission.”
In voicing their objections to instruction sixteen the plaintiffs contended before the trial court, as tihey do here on appeal, that 85th. Street North was a one-way highway at the point where the collision occurred and that the provisions of 8-540 (a) and (b) were not applicable because of subparagraph (c). Pursuing this line of argument the appellants requested that the following sentence be added to the instruction:
“The westbound traffic lane of 85th Street North at the site of the accident constituted a one-way roadway and there is no limitation on overtaking in the center lane.”
In the event the additional sentence was not made a part of the instruction, the plaintiffs requested, in hen thereof, that the jury be instructed as to the content of subsection (c). Neither request was granted.
So far as one-way roads or highways are concerned, the following statutes are relevant:
K. S.A. 1973 Supp. 8-541. “(a) The state highway commission and local authorities with respect to highways under their respective jurisdictions may designate any highway, roadway, part of a roadway or specific lanes upon which vehicular traffic shall proceed in one direction at all or such times as shall be indicated by official traffic-control devices.
“(b) Upon a roadway so designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic control devices.
“(c) A vehicle passing around a rotary traffic island shall be driven only to the right of such island.”
K. S. A. 1973 Supp. 8-539a. “Whenever any highway has been divided into two (2) or more roadways by leaving an intervening space or by a physical barrier or clearly indicated dividing section so constructed as to impede vehicular traffic, every vehicle shall be driven only upon the right-hand roadway unless directed or permitted to use another roadway by official traffic-control devices or police officers. No vehicle shall be driven over, across, or within any such dividing space, barrier, or section, except through an opening in such physical barrier or dividing section or space, or at a crossover or intersection as established, unless specifically permitted by public authority.”
Judging from diagrams and pictures admitted as exhibits, it appears that 85th Street North is a two lane road for most of its length, with one lane for traffic going west, and one for eastbound travel. However, the street broadens into four lanes some distance on either side of the 1-35 overpass, and an island or medial strip extends east from the crossover point where the accident happened, a distance of some 200 feet more or less. A “Keep Right” sign is located at the east end of the island. At the time of the accident, no lines had been painted on the roadway separating the two westbound lanes from each other or from the left-turn bay.
It has been the contention of the plaintiffs throughout this litigation that the place of collision was not an intersection within the contemplation of K. S. A. (now K. S. A. 1973 Supp.) 8-540 (a) or (h). The trial court, however, took the position that whether the situs of the accident was an intersection, as that term has been defined by statute, was a question for the jury to determine. We believe the court was wrong in this conclusion.
The question is not altogether free from doubt, and it obviously concerned the jury, as a second note to the court bears witness: “Was this turn where the accident happened considered an intersection?” The response was to quote the definition given in K. S. A. 1973 Supp. 8-501:
“Intersection. (a) The area embraced within the prolongation or connection of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways of two highways which join one another at, or approximately at, right angles, or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.”
Whether this response proved helpful to the jury must be left to conjecture.
Strictly speaking, the left-hand turnoff from 85th to 1-35 does not fit the statutory definition of an intersection. Neither can it be said that 85th Street, throughout its full course, meets the statutory requirements of a one-way thoroughfare; for most of its length it appears to be an ordinary two-way, two-lane road. We entertain the opinion, however, that as the street widens to four full traffic lanes, with a left turn bay at the east approach to the overpass, it becomes a legal equivalent of two one-way roadways, so far as the posture of this case is concerned. For a considerable distance there are two full traffic lanes for westbound traffic and two for eastbound traffic, separated by a medial strip or island, and traffic is directed to keep to the right to deter heedless motorists from swimming upstream, so to speak.
We believe it could not have been the legislative intent to preclude motorists from passing in the inside traffic lanes in such an area as this, and that the court should have determined as a matter of law that the area was not an intersection within the purview of K. S. A. (now K. S. A. 1973 Supp.) 8-540. This, of course, would not preclude the trial court from fashioning appropriate instructions as to the function of the left-turn bay in the overall traffic scheme of this state, and as to the purpose for which it may be used by members of the traveling public.
The four additional complaints urged in plaintiffs’ brief must be mentioned. First, it is said the court erred in failing to instruct on last clear chance. This argument is based on various calculations made by a so-called reconstruction expert. The elements making up the doctrine of last clear chance have frequently been stated by this court and need not be repeated at this time. Those who may be interested, will find them delineated in the recent case of Rohr v. Henderson, 207 Kan. 123, 483 P. 2d 1089. Without belaboring the evidence, much of which relates to split second time sequences, we are of the opinion the overall pattern of this case does not fit within the framework of the last clear chance rule.
Plaintiffs further claim that error was committed in instructing the jury as to K. S. A. 8-543 (a):
“(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”
The defense of following too closely was not within the scope of the pretrial order made by the court, and this fact formed the basis of the plaintiffs’ objection. However, the trial court permitted the pretrial order to be amended by adding tire appropriate allegations. Since this case must be returned for a new trial we deem it unnecessary to determine whether the court abused its discretion in permitting the amendment.
An additional ground of complaint is directed toward the testimony of a defense witness touching the rated horsepower of the Yamaha motorcycle involved in the accident. It is contended that no foundation was laid. We cannot agree. The witness was shown to have been in the business of selling and servicing motorcycles for a period of six years, and was familiar with the Yamaha machine and the manuals and literature relating to the manufacturer’s horsepower ratings. We cannot say from this x'ecord that the court erred in permitting the witness to testify. The weight to be given his testimony was, of course, a question for the jury.
Finally, tire plaintiffs contend the court erred in failing to give a requested instruction based on PIK 4.03 relating to the degree of care required of a minor. The instruction asked for reads as follows:
“It has been established by the evidence in this case that Monty D. Williams was a minor fourteen (14) years of age at the time of his injury. With respect to the question of contributory negligence, you are instructed that a child is not bound to exercise file same degree of care for his safety that is required of an adult.
“While there is no inflexible rule or standard in terms of years which can be laid down as a guide for determining the question of negligence on the part of a child, the law requires of a child that degree of care and caution which is ordinarily exercised by children of the same age, intelligence, capacity, and experience, under the circumstances then existing, holding or having restricted driver s licenses.”
In lieu of giving the requested instruction the trial court charged the jury as follows:
“You are instructed that as standards of ordinary care certain duties are imposed by law. They apply to persons who use the streets and highways. It is for you to decide from the evidence whether or not any of the following duties or laws have been violated.
“The violation of a duty or law is negligence upon which a recovery or denial of recovery can be based when such negligence is a proximate cause of the injury.
“This obligation rests on both adults and minors who operate vehicles on the streets and highways.”
The PIK instruction is patterned after the language found in Harvey v. Cole, 159 Kan. 239, 153 P. 2d 916, a case which plaintiffs cite in support of their position. The force of Harvey as a precedent in cases of the present nature was severely eroded by our holding in Allen v. Ellis, 191 Kan. 311, 380 P. 2d 408, an action arising out of the death of a small child. The car which hit the child in tihe Allen case was driven by a sixteen-year old boy who had an unrestricted driver’s license. The trial court instructed the jury that even though the defendant had a valid and unrestricted license, such license did not of itself require the same standard of care and caution as that required of an adult license holder. On appeal, that instruction was held to be prejudicial and erroneous as a matter of law. In the opinion written by Justice Wertz, this court stated:
“. . . There is nothing in the Uniform Operators’ and Chauffeur’s License Act (G. S. 1961 Supp., Ch. 8, Art. 2) that makes any exception to the standard of care and caution required as between minors and adults. The act was passed for the protection of the general public and users of the streets and highways and not for the protection of immature, inexperienced and negligent drivers.” (p. 317.)
The Allen case was cited in Kirkendoll v. Neustrom, 379 F. 2d 694, where the plaintiff, a minor, had rear-ended the defendant’s truck and sought to recover personal damages resulting from the collision. Judgment was entered for the defendant in that case.
Our decision in Allen is cast in the mold accepted by a majority of the courts in this country. In 97 A. L. R. 2d 872, Anno: Motor Vehicle — Minor—Negligence, the modem, and what seems to us the better and more reasonable view, is expressed in these words:
“The ‘well settled’ principle that a minor, although liable for his negligence, need not have conducted himself with adult prudence and circumspection but need have acted only as a reasonable person of his age and experience would have under similar circumstances is in serious question today insofar as its applicability to minor operators of motor vehicles or other motor-powered devices is concerned. Conscious of the increasing availability of automobiles, motorcycles, powerboats, airplanes, and similar devices to youthful operators, many courts have expressed concern with the fact that these instrumentalities are at least equally as lethal in the hands of an inexperienced teenager as they are when operated by an adult. These opinions emphasize the vast difference in destructive potential between modem motor-powered transportation devices and the usually innocent contrivances available to children in the bygone days when the rule of leniency was formulated. They point out that it is a matter of little consequence to the maimed pedestrian, for example, that his mechanized nemesis had not yet attained voting age. Taking what may be called the ‘modem view,’ these courts accordingly hold that when the minor engages in such activities as the operation of an automobile or similar power-driven device, he forfeits his rights to have the reasonableness of his conduct measured by a standard commensurate with his age and is thenceforth held to the same standard as all other persons.” (pp. 874, 875.)
Cases from a good many jurisdictions are noted in the annotation supporting the majority rule. Among them is the Allen case. The author of the annotation acknowledges, however, a split of authority on the question, and he lists Harvey v. Cole, supra, as among the cases supporting the opposite view.
The Harvey case was set in an era thirty years removed from today’s traffic norms. The intervening years have witnessed a fantastic growth in the outpouring of gas-gulping vehicles of tremendous speed and power. High speed roads and trafficways have proliferated. Traffic congestion has grown apace stifling many communities and fouling the good air. Traffic deaths have become a national reproach and traffic mayhem a commonplace. Motorized travel has expanded to a peak wholly undreamed of by those of us who, in 1944, could still recall the Model T Ford.
In the interest of public safety, we believe it imperative that minors be held to the same standards of care in the operation of motor vehicles as are adults. This view is reflected in many of the cases cited in the A. L. R. annotation to which reference has previously been made. In Dellwo v. Pearson, 259 Minn. 452, 107 N. W. 2d 859, 97 A. L. R. 2d 866, the Supreme Court of that state said:
“To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to accidents than adults. While minors are entitled to be judged by standards commensurate with age, experience, and wisdom when engaged in activities appropriate to their age, experience and wisdom, it would be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other standards of care and conduct than those expected of all others. . . .” (p. 458.)
In Dawson v. Hoffmann, 43 Ill. App. 2d 17, 192 N. E. 2d 695, the Illinois court, after paraphrasing much of what was said by the Minnesota court, concluded with this language:
“. . . The law will not countenance the adoption of a double standard of care to be exercised by the drivers of motor vehicles.
“Accordingly, it is our opinion that in the operation of an automobile a minor must exercise the same degree of care as an adult . . (p. 20.)
See, also, Restatement, Torts, Second, § 283 A., Comment c.
We recognize a tendency on the part of some combs to apply a lesser standard of care in cases dealing with contributory negligence on the part of a minor than where primary negligence is involved. The Minnesota court, for example, suggests such a distinction. (Dellwo v. Pearson, supra, p. 457.) However, a majority of the modem cases dealing with the contributory negligence of a minor driver have applied the adult standard of care. (See Harper and James, The Law of Torts, Supplement to Vol. 2, Comment to § 16.8 im. 11-12, p. 40; Restatement, Torts, Second, § 464, Comments e and /.) We see no good reason for drawing any distinction.
We disapprove of what was said in Harvey v. Cole, supra, as to the care required of children, insofar as the operation of motor vehicles by minors is concerned. Accordingly, we hold the trial court did not err in refusing to give the plaintiffs’ requested instruction based on PIK 4.03.
The judgment of the court below is reversed with directions to grant the plaintiffs a new trial.
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from an order dismissing an action for relief under the provisions of K. S. A. 1971 Supp. 48-261 providing compensation to surviving spouses of members of the Kansas National Guard whose death occurs in the line of duty. The facts are not in dispute.
The plaintiff is the widow of Brigadier General Philip W. Smyth who was assistant adjutant general for the state of Kansas. The deceased general, under orders from the adjutant general of Kansas to perform active duty in connection with the governor’s inauguration on January 11, 1971, was enroute to attend such ceremonies when he suffered a cerebral thrombosis. The general died some six hours later.
On January 25, 1971, the adjutant general initiated a “line of duty” investigation to determine qualifications for death benefits. The investigation was concluded February 10, 1971, and reads in part as follows:
“Final determination, in accordance with Chapter 48, Section 261, Military & Civil Defense Laws of Kansas is that death was In Line of Duty. Surviving spouse entitled compensation for hospital and medical care benefits for deceased husband. Reimburse for actual funeral expenses not to exceed the sum of $500.00 is determined to be [proper] compensation at the rate of $120.00 jier month, plus 12K% of basic pay of Brigadier General with rate of pay established for over 41 years of creditable service be paid to surviving spouse from 13 January 1971 until surviving spouse dies or remarries, to be authorized in accordance with existing State law.”
The plaintiff did not receive payment and an action was filed in the Shawnee district court requesting a declaratory judgment or in the alternative an order of mandamus to compel payment of the compensation. Tire adjutant general was the sole party defendant. Thereafter, the adjutant general filed a motion to dismiss the action wherein he acknowledged plaintiff was entitled to receive death benefits pursuant to the statute, but alleged he had fully performed all of his required duties in determining her entitlement, and that the State Finance Council had failed to transfer funds to enable payments to be made to the plaintiff.
The district court sustained the motion to dismiss, stating the following reasons:
“1. K. S. A. 48-271 provides that all benefits under the act are gratuities and no vested right shall accrue to any person to benefits not already received.
“2. The Adj'utant General is an arm of the sovereign State of Kansas and no consent has been given for the State to be sued in this capacity.
“3. The Adj'utant General has performed its duty in making a determination of the death of decedent and determining that plaintiff is entitled to- benefits.
“4. Another aim of the State has failed to appropriate or furnish funds to pay the benefits.
“5. Plaintiff’s remedy lies elsewhere.”
The plaintiff has appealed. As the appellant, she contends the district court erred in following K. S. A. 1973 Supp. 48-271, which was enacted over a year after her husband’s death (L. 1972, Ch. 206, § 11), rather than the statutory provisions in effect at the time her rights vested on February 10, 1971. (K. S. A. 1971 Supp. 48-261.)
In this court the adjutant general continues his argument that he has fully performed his duties under K. S. A. 1971 Supp. 48-261 and the appellant’s remedy lies elsewhere.
Considering first the statute which is applicable to this controversy, this court agrees with the appellant that the district court erred in applying the provisions of K. S. A. 1973 Supp. 48-271 which became effective on March 23, 1972 — more than one year after appellant’s rights had accrued.
Where vested rights will be disturbed, a statute will not be given retrospective application unless the wording of the statute makes such construction imperative. (Johnson v. Warren, 192 Kan. 310, 387 P. 2d 213; Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860; Bulger v. West, 155 Kan. 426, 125 P. 2d 404; Mirise v. Rathbun, 152 Kan. 441, 104 P. 2d 420.)
The statutes applicable here are those which were in effect when the appellant’s rights accrued. K. S. A. 1971 Supp. 48-261 (a) (L. 1968, Ch. 69, § 1) then in effect provided in part:
“Every member of the Kansas national guard . . . disabled or injured . . . in line of duty . . . when participating in any . . . activity under order of the commanding officer of his unit, or while traveling to or from his place of duty in such instance, shall be entitled to and shall receive, or be reimbursed (asfollows). . .
Subparagraph (c) provided in part:
“If a member of the Kansas national guard . . . dies ... [in line of duty] as provided in subsection (a) oí this section, his estate shall be entitled to any reimbursement for which the deceased would have been entitled and to his accrued pay and allowances and compensation or reimbursement for actual funeral expenses not to exceed the sum of five hundred dollars ($500). His surviving spouse is entitled to receive a compensation of one hundred twenty dollars ($120) per month plus twelve and one-half percent (1211%) of the basic pay established for the member of Kansas national guard . . . until the surviving spouse dies or remarries. . . .
“. . . The compensation or reimbursement, as well as the cost of carrying out the other provisions of this section, shall be paid out of any funds in the state treasury available to or appropriated for the use of the military forces of this state in the same manner provided for other expenditures of state funds. . . .” (Emphasis supplied.)
It is further provided in subparagraph (d):
“The adjutant general shall administer the provisions oí this act and shall prescribe such rules and regulations not inconsistent with law as may be necessary to cany out the provisions of this act and the decision as to whether . . . death is in line of duty . . . after proper investigation and hearing pursuant to such regulations as he may prescribe. . . .”
The statute clearly states the adjutant general is to administer the provisions of the Act and make payments out of any funds in the state treasury available to or appropriated for the use of military forces of this state. The statute’s language expressly speaks to the adjutant general and no one but that official has any authority under the Act.
We turn now to the 1971 fiscal year appropriations for the military forces of this state. It is from those funds payment should have been made. Those appropriations are set out in the Laws of 1970, Chapter 42, which reads, in part:
“Part I. — STATE GENERAL REVENUE FUND APPROPRIATIONS
* # * * #
“Sec. 5. To the
“ADJUTANT GENERAL
“Salaries and wages ....................................... $249,233
Provided, That no moneys may be expended for armory drill pay or troop pay.
“Other operating expenditures, rent of armories, pay of troops...... 668,483
Provided, That any unencumbered balance in excess of $100 as of June 30, 1970, is hereby reappropriated for fiscal year 1971: Provided, however, That expenditures from such balance shall not exceed $56,805 except upon approval of the state finance council: And provided further, That not more than $300 may be expended for official hospitality.
“Salaries and wages — civil defense ........................... 44,848”
* # # # #
“Sec. 8. To the
“ADJUTANT GENERAL
“Civil defense — federal fund matching........................ No limit
“Civil defense — federal fund matching — administration.......... No limit
“Civil defense — RADEF instrument maintenance............... No limit
“Community shelter planning fund.......................... No limit
“Kansas armory board — state contingent fund.................. No limit
“Conversion of materials and equipment — military division...... $2,067
“Conversion of materials and equipment — civil defense division. . . . 3,580
“Payment of death, disability and medical benefit claims.......... No limit
“Provided, That the state finance council is hereby authorized to transfer from the state emergency fund to this fund the amounts necessary to pay benefit claims as provided for in K. S. A. 1969 Supp. 48-261.” (Emphasis supplied.)
In Johnson v. Warren, supra, the medical expenses of an injured workman exceeded the maximum benefits provided by the statute in force at the time of the injury. The Legislature subsequently amended the relevant statute and increased the medical benefits allowable. The appellant contended he was entitled to medical treatment to the extent of the subsequently increased medical benefits. Finding the contention without merit, we said:
“From the foregoing it is clear that claimant’s cause of action for compensation accrued on the date of his injury. On that date the statute in full force and effect set a limitation of $2,500 for medical expenses. The respective rights and obligations of the parties became fixed on that date. The 1961 amendment, which raised the limitation of liability for medical expenses to the sum of $4,000, contains nothing to indicate an intention that it should be applied retrospectively. The amendment was not procedural and remedial in nature— but affected substantive rights of parties under the compensation act with respect to injuries susained subsequent to its effecive date.” (l. c. 314.)
Under K. S. A. 1973 Supp. 77-201, First, the repeal of a statute does not affect any right which accrued, any duty imposed, or any proceeding commenced, under or by virtue of the statute repealed. (State v. Cramer, 196 Kan. 646, 413 P. 2d 994; School District v. Board of County Commissioners, 201 Kan. 434, 441 P. 2d 875.)
In the instant case the benefits due the appellant were fixed on February 10, 1971, when the adjutant general found her husband’s death occurred in the line of duty. (K. S. A. 1971 Supp. 48-261.) Thereafter, payments due the appellant were to be made out of any funds in the state treasury available to or appropriated for the use of military forces of this state. This is provided by the law creating the obligation. The fact that K. S. A. 1971 Supp. 48-261 was subsequently repealed (L. 1972, Ch. 206, § 1) did not affect the appellant’s right to compensation which accrued February 10, 1971, as previously indicated. (K. S. A. 1973 Supp. 77-201, First.) We note in passing the adjutant general may seek reimbursement from the state finance council for benefit claims paid the appellant as the surviving spouse. While the transfer of funds by the state finance council is optional, the right of the appellant to receive the benefits provided by the statute is not.
We are not advised as to what funds are in the various accounts created for the use of the military forces of this state, and, no doubt, the books for the fiscal year 1971 have been closed and any balance existing in the funds have reverted to the general revenue funds of the state. However, the books were open when the appellant’s rights -under the statute vested and her claim should have been paid. As we have said before, “[t]here is no magic in bookkeeping. Books which may have been closed in derogation of a lawful outstanding claim which had been provided for by the legislature must be reopened and the claim paid and proper entries made to recite the pertinent facts.” (Hicks v. Davis, 97 Kan. 312, 317, 154 Pac. 1030.) But this court does not intend to limit payment of the appellant’s claims from funds appropriated for the military forces of this state for the 1971 fiscal year. Any funds subsequently appropriated for such purpose may be used by the adjutant general in payment of her claims. In turn, the adjutant general, not the appellant, may seek reimbursement for such payments from the state emergency fund.
There is nothing to justify the district court’s conclusion that, "[t]he Adjutant General is an arm of the sovereign State of Kansas and no consent has been given for the State to be sued in this capacity.” The applicable statute granted appellant as the surviving spouse certain benefits to be computed as indicated in the statute. The state having granted such benefits cannot raise now the doctrine of sovereign immunity. The doctrine has no application to the case at bar.
The law pertaining to the claim in question leaves no duty imposed upon the adjutant general, after his finding heretofore quoted, except the ministerial one of executing the express will of the Legislature. A public officer or employee cannot frustrate the express will of the Legislature by refusing to perform a well defined ministerial act. A similar matter was considered in Davis v. Bank Commissioner, 105 Kan. 560, 185 Pac. 41, and we said:
“. . . The commissioner’s duty in the matter, so far as it turns upon the construction of the statute, is purely ministerial, and subject to control of mandamus. (Construction Co. v. Sedgwick County, 100 Kan. 394, 396, 164 Pac. 281; Cates v. Knapp, 104 Kan. 184, 178 Pac. 447). . . .” (l. c. 562.)
The court is of the opinion that mandamus is available, if necessary, to secure payment of the benefits due the appellant pursuant to the statute and findings of the adjutant general. It is irrational to to have the Legislature grant disability or death benefits to members of the Kansas National Guard or their surviving spouses, and then permit an officer or agency of the state to frustrate the statutory plan. The law is not so deficient. (Vickers v. Wichita State University, 213 Kan. 614, 518 P. 2d 512.)
The judgment of the district court is reversed with directions that upon failure of the adjutant general to comply with the views expressed in this opinion within 30 days from the date of the mandate of this court, an order of mandamus shall issue commanding such official to compute and pay the amount due the appellant under the provisions of K. S. A. 1971 Supp. 48-261 and the findings of the adjutant general, and to continue such payments until her claim is satisfied in full.
It is so ordered.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to recover the balance due on the sale of cattle under an oral sales contract. The action was defended on the theory that nothing was due the plaintiff because it failed to deliver a breeding herd of cattle in compliance with the oral sales contract, and the defendants counterclaimed for damages resulting from the plaintiff’s breach of express and implied warranties made in the course of the transactions for the purchase of the cattle.
The case was tried to a jury which returned a verdict in favor of the plaintiff for the balance due on the oral sales contract. The trial court withdrew from the jury the issue as to whether express warranties were made and breached by the plaintiff. Appeal has been duly perfected by the defendants.
The primary issue on appeal is whether the trial court erred in withdrawing from the consideration of the jmy the defendants’ claim that the plaintiff made express warranties concerning the cattle sold to them, which were false.
The plaintiff in this action is Young & Cooper, Inc. (appellee). Don Young was acting on its behalf throughout the transaction in question. Robert B. Vestring and James W. Vestring d/b/a Vestring Brothers, a partnership, are defendants-appellants. Robert B. Vestring conducted negotiations on their behalf.
In March of 1969, while attending a cattlemens convention Robert Vestring first learned Young & Cooper, Inc., had recently acquired a herd of cows. He was encouraged by Don Young to take a look at them when they arrived in Kansas. According to Don Young’s testimony the appellee corporation purchased the herd, consisting of 450 Black Angus cows, five Hereford bulls and two Angus bulls, on January 21, 1969, from Leslie Nix who resided in Arkansas. Young had previously been acquainted with Nix and said he had purchased the prior year’s calf crop from him. While Nix sold the herd to the appellee in late January, arrangements were made to leave them in Arkansas until early April when the appellee would have the cattle transported to Kansas. In order to comply with certain regulations controlling the transportation of livestock across the Kansas state line, Don Young contacted Dr. John G. Gish, a veterinarian practicing in El Dorado. Young requested Dr. Gish’s assistance in obtaining the proper permits for the entrance of the cattle into Kansas with the least possible inconvenience as to handling the cattle and conducting tests. Dr. Gish contacted the state regulatory officials and ascertained that a stable, or one brand herd, i. e., an established herd that has been held -under one ownership for a con siderable period of time without constant additions, could be allowed entrance into the state, provided they came from a modified-certified brucellosis free area. Dr. Gish relayed this information to Nix’s veterinarian in Arkansas.
Arrangements for moving the cattle were soon completed, and in the first week of April 1969, the cattle were trucked from Arkansas to Kansas by the appellee in its own trucks. The Arkansas health certificates accompanying the cattle indicated they were from a modified-certified brucellosis free area and bore the signature of a veterinarian, Dr. R. W. Phillips. The appellee corporation leased a tract of land, referred to as the Dunne pasture, located near Rosalia, Kansas, and placed the herd on it. The Dunne pasture is actually composed of three pastures, one located north of U. S. 54, one about the same size located on the south side of U. S. 54, and a much smaller pasture located just east of the south pasture.
Both Mr. Young and Mr. Cooper admit they told Robert Vestring that the cows were all brought directly to the Dunne pasture with no additions or deletions. However, the Vestring Brothers purchased 445 cows and fifteen bulls. Dr. Phillips ini Arkansas signed documents indicating that a total of 465 cows and thirteen bulls were loaded in Arkansas. Thus, indicating a loss of twenty cows and an addition of two bulls. Mr. Young in his testimony was unable to account for these differences. Leslie Nix testified that he sold 450 Black Angus cows with calves and seven bulls, five Herefords and two Angus, to Young & Cooper. Mr. Young testified he purchased some bulls at the stockyards in Wichita and after having them tested for T. B., Bangs and also for sterility put them with the herd.
On the Sunday after the cattle arrived, Don Young inspected them. Later that afternoon Robert Vestring also inspected them and contacted Don Young indicating he would discuss the prospects of purchasing them with his partner, James W. Vestring.
The following Monday or Tuesday Robert Vestring went to Don Young’s office to discuss buying the herd. The two men’s testimony regarding these negotiations varies somewhat. According to Don Young’s testimony the men began the negotiations by discussing the price. Vestring thought Young was asking too much money for the cows. Young testified that during the negotiations he told Vestring the age of the cows was from three to five years; Young & Cooper, Inc., had purchased them as a breeding herd; that Nix had purchased the cows from some place in Texas and this was their second crop of calves; he described the herd as a good reputable herd; Nix had had the cows pregnancy tested around the first of the year to see if they were all pregnant; they had not been blood tested for brucellosis; he did not specifically recall describing them as “clean” cows but conceded that he could have.
Robert Vestring’s testimony was that Young stated during the negotiations: That the cows were a choice quality Angus breeding herd; it was their second calf crop; they were all one brand of cattle (which was explained by Dr. Gish to mean a stable herd or an established herd that has been held under one ownership for a considerable period of time without constant additions); they originated from San Angelo, Texas, (which according to the appellants indicated good quality cattle); that Young guaranteed the pregnancy test on the cows and, with the exception of 50 cows which would have calves in the winter, the rest either had calves at the time of the negotiations or would have calves by the end of the summer; and the cows had come from a modified-certified brucellosis free area in Arkansas, which means the area had a relatively low incidence of brucellosis. Vestring further testified that Young told him the cattle had not been blood tested for brucellosis, and that he was aware the only certain method for determining whether cows are infected with brucellosis is by a blood test.
The parties stipulated that after the foregoing negotiations were completed, Robert Vestring, on behalf of die appellants, orally agreed to purchase 450 cows and fifteen bulls to be used for breeding purposes from appellee for $127,000, and to sublease the Dunne pastures for $15,000. The parties also stipulated the appellants have paid appellees the $15,000 required under the subleasing agreement and $110,000 under the sale agreement, leaving an unpaid balance of $17,110.
After the appellants took control of the cattle, H. A. “Cap” Vestring, a cousin, employed by appellants as a ranch manager was made responsible for looking after them. He checked them at least once a week and sometimes twice.
On or about August 20, 1969, while inspecting the cattle H. A. Vestring found a cow in the north Dunne pasture which appeared to have aborted a calf. After penning the cow, H. A. called Dr. Gish to examine the cow. The doctor obtained blood samples from the cow and sent them to the state laboratory in Topeka, Kansas. The blood test disclosed a positive reaction to brucellosis. As a result the herd in the north pasture was immediately quarantined.
In describing the disease of brucellosis the doctor stated it has the ultimate effect of damaging a cow’s reproductive organs and causing an abortion after reaching certain proportions. There is no known cure for brucellosis, and if a herd of breeding cows become infected they are no longer of any use for breeding.
Along with Frederick M. Gengler, a federal livestock inspector, Dr. Gish tested the £02 cows in the north Dunne pasture. The initial test disclosed 81 reactors, approximately 40% of the number tested.
Dr. Gish, and Dr. Neal Conley, a veterinarian with the United States Department of Agriculture Animal Health Service as the Kansas Brucellosis Epidemiologist, tested all cattle in the south Dunne pasture. Out of 238 cattle tested 95 reacted positively to brucellosis, which is also approximately 40%.
Dr. Gish characterized the incidence of brucellosis reactors as a “heavy incidence of this disease,” and stated that this incidence indicated to him that the cows had been infected for one to two years. The doctor further stated:
“The fact that the cows in each pasture when first tested had the same percentage of reactors leads me to the opinion that they had the same exposure to the disease prior to when they were separated.”
His opinion that the herd was infected before it arrived in Kansas was based upon his experience that 40% of a herd could not become infected by transmitting it among themselves for only a period of six months (the length of time the cattle had been in Kansas when fhe disease was discovered).
Dr. Conley, who participated in testing the cattle in tire south pasture, testified that as a result of his investigation of the case, based upon his educational background, he believed the source of the brucellosis was outside of Kansas. He stated that a high percentage infection is a long term infection rather than a short term exposure of a large percentage of the cattle, particularly in this case because the animals were separated into three areas. While taking blood samples the doctor noticed that 43 of the cows had Louisiana ear tags. His investigation of these cows’ history disclosed they were more or less transient heifers in Louisiana but found no record of any previous exposure to brucellosis infection.
Both Drs. Gish and Conley agreed with the following statements, “Under certain circumstances the organisms will live for weeks outside the body” and “Mechanical vectors such as dogs, other animals, and man can act as a means of spreading infection.” However, neither was inclined to agree that it was possible the brucellosis germ might have remained alive in cow manure and have been spread from pasture to pasture by the cowboys or pickup trucks.
Dr. Gish’s office participated in all blood tests performed on the cattle. There were nineteen brucellosis tests performed, which disclosed a total of 249 reactors out of 440 tested.
At the time he initially tested the cows in the north pasture, Dr. Gish conducted pregnancy tests on each cow and also tested to determine which ones were still nursing calves. His examinations revealed “40-some animals” out of the 202 tested “either didn’t have one [a calf] or she lost it or it was premature or it died for some reason or another during the summer of ’69.”
Subsequent to the initial performance of the brucellosis test on the south pasture, Robert Vestring went to see Don Young. Vestring wanted tire money back and offered in return to look after the cattle for the rest of the summer. Young replied that he did not want any infected cows but that he was willing to knock $5,000 off of the sale price.
H. A. “Cap” Vestring, the appellants’ ranch manager in charge of the cows, testified that 293 calves were weaned off of the herd in 1969, plus an additional 15 calves moved into pens soon after birth following the first of the year in 1970, rather than leaving the calves with the cows. He further stated that a cow’s gestation period is nine months so that if the cows were pregnant in April (when they arrived in Kansas) they should have given birth to calves before the end of the year.
James Vestring testified as to the damages they sustained as a result of the brucellosis infection. They had to sell all 249 of the infected cows as slaughter cows. In subtracting the amount received from the sale of the reactors, plus $25 per head indemnity they received from the federal government, from the $273 per head they paid appellee, their total loss was $21,190.71. There were additional costs such as conducting the blood tests; hiring additional men; renting another pasture; and also computing for 90 additional calves which the Vestrings believe they should have had, if the herd had been “normal”. Their total losses claimed for buying a breeding herd diseased with brucellosis were $43,292.26.
The Vestrings in their counterclaim alleged that the cows sold to them by the plaintiff were infected with brucellosis, and that such sale was in violation of both expressed and implied warranties by the plaintiff to them that the cows were fit for the purpose for which they were sold.
The plaintiff in reply denied that any warranties expressed or. implied were made to the defendants.
In the pre-trial order the trial court recited the defendant’s contention that the plaintiff “has breached express and implied warranties made by the plaintiff to title defendants during the transactions for the purchase of these breeding cattle.” In the pretrial order the claims of the plaintiff were set up as follows:
“(a) Defendants owe plaintiff on open account.
“(b) Plaintiff made no warranties, either expressed or implied, to the defendants.
“(c) Even if warranties were made, the defendants carried out an inspection of the cattle prior to the sale.
“(d) If warranties were made, plaintiff delivered the cattle in compliance with the warranties.
“(e) If, in fact, the cattle had brucellosis, it was contracted after the sale to defendants.”
The pre-trial order also set up the defendants’ claim as follows:
# # # # *
“(a) Plaintiff failed to deliver cattle which complied with the oral sales contract.
“(b) Plaintiff breached an express warranty made to defendants.
“(c) Plaintiff breached an implied warranty of merchantability made to defendants.
“(d) Plaintiff breached an implied warranty of fitness for a particular purpose made to the defendants.”
The trial court in its instruction to the jury regarding warranties limited the issue to an implied warranty of fitness for the cows purchased by the defendants. After instructing on the measure of damages for breach of an implied warranty the trial court instructed:
a a a a a
“No. 6
“When a seller at the time of contracting for a sale has reason to know of any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is an implied warranty that the goods shall be fit for such purpose.
“A seller who breaches this warranty is liable to the buyer of such goods who sustains injury as a result.
“You are further instructed that a buyer has a duty to use ordinary care for his own protection. He must exercise such care with reference to those defects about which he knows or understands or which he should know or understand. If a buyer does not use ordinary care for his own protection, he must be deemed to have waived his right to rely upon said defect in a claim for breach of warranty.”
Instructions pertaining to express warranties requested by the defendants were refused by the trial court. They read:
“Instruction No. 8
“In the sale of goods, express warranties by a seller are created as follows:
“(a) Any affirmation of fact or promise which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods will conform to the affirmation or promise.
“(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods will conform to the description.
“An affirmation merely of value or a statement purporting to be the seller’s opinion or commendation does not create a warranty.
“It is not necessary that formal words of warranty be used to create the warranty or that the seller have specific intention to make a warranty.
“A seller who breaches an expresss warranty is liable to the buyer of the article who sustains injury as a result. PIK 13.15 (modified)
“Instruction No. 9
“An implied warranty can be excluded or modified when the buyer, before entering into the contract, has examined the goods as fully as he desires or has refused to examine the goods. There is no implied warranty with regard to defects which an examination ought, in the circumstances, to have revealed to him.
“However, such an examination by the buyer or a refusal to examine the goods by the buyer will not exclude or modify an express warranty. K. S. A. 84-2-316 (3) (b), K. S. A. 84-2-313 Case Comment.”
In denying the defendants’ request for the express warranty instructions the trial court said:
“. . . Well, insofar as the theory of express warranty is concerned, this is a case where the parties are ninety-nine and nine-tenths percent in agreement as to exactly what happened insofar as this sale is concerned. They both had been in the cattle business for years, they’re familiar with the trade, and all are familiar with the disease of Bang’s, brucellosis. At the time of the sale and prior thereto, inquiry was not that they — or the statement by the seller was not that they did not have brucellosis, but they did come from a clean herd and that they had not been blood tested. The evidence certainly bears out that everyone familiar with the cattle industry knows that there is no way for anyone to say that a cow does or does not have brucellosis without a blood test, and with that knowledge and with that skill on the part of everyone involved in this litigation, there is no basis upon which ground of express warranty lies. . . .”
In this posture the case was submitted to the jury which returned a verdict for the plaintiff in the amount of $17,110 plus interest, and against the defendants on their counterclaim.
It is the position of the appellee that this is a fact case and the general verdict is supported by competent evidence and should be affirmed. It is argued the case was presented to the jury on the issue of whether the cattle in question had brucellosis at the time of the sale; that such issue was fully tried to the jury and the jury, by its general verdict, found the cattle in question did not have brucellosis at the time of sale; and that the appellants simply lost a fact question and are now attempting to restructure their theories on appeal. It is argued a finding for the appellee includes a finding that the cows were fit as a breeding herd and/or that the appellants have failed to sustain their burden of proof that they were not fit for breeding purposes. Such findings, it is said, are in the nature of negative findings. The appellee relies on the rule that findings of a negative character will not be set aside on appellate review, since adequate opportunity for weighing evidence and determining credibility of witnesses is lacking. (American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561.)
The appellee attacks tire points asserted by the appellants on the ground that for the first time on appeal they set forth new theories in support of their claim of breach of express warranties. We fail to see merit in the foregoing argument.
Whether express warranties were made by the appellee in this case was first raised as an issue by the pleadings in the case. It was later stated to be an issue in the pre-trial order. Furthermore, the trial corut permitted all of the appellants’ evidence concerning express warranties to go before the jury. It was only when the instructions were given to the jury that the trial court withdrew the issue of express warranties from the jury.
The Uniform Commercial Code defines what creates an express warranty by the seller. K. S. A. 84-2-313 (1) (a) states:
“Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis for the bargain creates an express warranty that the goods shall conform to the affirmation or promise.”
The foregoing section of the Uniform Commercial Code does not change the prior law established in Kansas.
In Adrian v. Elmer, 178 Kan. 242, 284 P. 2d 599, the plaintiff was attempting to recover the purchase price of a registered Hereford bull and damages resulting from an alleged breach of an express warranty. The plaintiff purchased the bull for the purpose of covering registered cows and getting calves from them. The plaintiff claimed that the defendant, through his agent, represented and warranted to the plaintiff that the bull was a sound, healthy bull, perfect in all parts, and that he was a one-hundred percent breeder —a sure calf getter. The defendant admitted the sale, but contended that neither he nor his agent expressly warranted the bull to be a good breeder and that his statements were mere expressions of opinion. In upholding the trial court’s determination that an express warranty had been breached, it was held that when the seller makes an affirmation with respect to the article to be sold pending the agreement of the sale, upon which it is intended that the buyer shall rely in making the purchase, an express warranty is created. The court held that no technical or particular words need be used to constitute an express warranty, and that representations as to the quality or fitness of an animal for breeding purposes ordinarily constitute an express warranty of such. The court further held if the facts or affirmations relied upon to prove an express warranty rest wholly in parol, it was the province of the jury to determine whether they amounted to an express warranty.
K.S.A. 84-2-313 (2) states:
“It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”
This subsection is also in accord with the case law in Kansas established prior to the code. (Adrian v. Elmer, supra; and Topeka Mill & Elevator Co. v. Triplett, 168 Kan. 428, 213 P. 2d 964.)
The question of express warranties with respect to a breeding herd of cattle was presented in Naaf v. Griffitts, 201 Kan. 64, 439 P. 2d 83. There the plaintiff sought to recover damages he alleged resulted from breach of an express warranty in the sale to him of 59 heifers by the defendant. The defendant, an experienced cattleman, had run an ad in the newspaper offering for sale choice Here fords to. calve in September and October. In response to the ad, the plaintiff contacted the defendant and inspected the heifers. In the ensuing discussion the defendant was made aware of the fact that plaintiff was interested in heifers that would calve in September or October, 1965. The plaintiff, relying upon the ad and the defendant’s oral statements, bought the 59 heifers on August 17th. The evidence at the trial was that the heifers, in fact, had not been pregnancy tested. Only ten of them calved during September and October, and two were born in December. Eventually 38 calved by the defendant’s bulls. The trial court, rendering a judgment in favor of the plaintiff, found:
“ ‘The seller’s statements of fact that the heifers had been pregnancy tested coupled with his advertisement and his statements that they would calf in September or October (1965) was a statement of fact that they were pregnant. These statements also amounted to a warranty that the heifers were seven or eight months pregnant. . . (pp. 65, 66.)
In affirming the trial court’s decision it was said that under the circumstances, these representations were more than mere expressions of opinion upon which the seller intended the buyer to rely. Therefore, in accordance with the rule stated in Adrian v. Elmer, supra, the trial court, as the fact finder, was justified from the evidence in concluding that the defendant expressly warranted the heifers were seven or eight months pregnant.
In Topeka Mill & Elevator Co. v. Triplett, supra, the court distinguished between statements of fact and opinions. The court held that representations of fact capable of determination are warranties, but mere expressions of opinion, belief, judgment or estimate by a dealer in sales talk are not. Where opinions are coupled with representations of fact which relate to such matters and are susceptible of exact knowledge, they constitute more than a mere opinion and are properly regarded as representations of fact, and, to the extent they are representations of fact, they constitute warranties.
The first paragraph of Instruction No. 6 given to the jury is in accordance with the definition of an implied warranty under K. S. A. 84-2-315.
Under exclusion or modification of warranties K. S. A. 84-2-316 (3) (b) provides:
“(b) [W]hen the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him; ...”
As to implied warranties the foregoing indicates that an examination by the buyer carries the implication of assumption by the buyer of the risk of defects which his examination ought to reveal. (K. S. A. 84-2-316, Kansas Comment.)
Examination as used in paragraph (b) of subsection (3) above is not synonymous with inspection before acceptance or at any other time after the contract has been made. It does indicate that an implied warranty may be excluded or modified by the circumstances where the buyer examines the goods before entering into the contract. If the buyer unreasonably fails to examine the goods before he uses them, resulting injuries may be found to result from his own action rather than proximately from a breach of warranty. But to bring the transaction within the scope of “refused to examine” in paragraph (b) of subsection (3) it is not sufficient that the goods are available for inspection. There must in addition be a demand by the seller that the buyer examine the goods fully. The seller by the demand thereby puts the buyer on notice that he is assuming the risk of defects which the examination ought to reveal. (K.S.A. 84-2-316, Official U. C. C. Comment, ¶8.) .
Further Official U. C. C. Comment following 84-2-316, supra, ¶ 8, indicates the foregoing section rejects application of the doctrine of “caveat emptor” in all cases where the buyer examines the goods regardless of statements made by the seller. Thus, if the offer of examination is accompanied by words as to their specific attributes for the purpose for which the buyer is seeking the goods, and the buyer indicates clearly that he is relying on those words rather than on his examination, they give rise to an “express” warranty.
The particular buyers skill and normal method of examining goods in the circumstances determine what defects are excluded by the examination. A failure to notice defects which are obvious cannot excuse the buyer. However, an examination under circumstances which do not permit chemical or other testing of the goods would not exclude defects which could be ascertained only by such testing. Nor can latent defects be excluded by simple examination. (84-2-316, supra, Official U. C. C. Comment, ¶ 8.)
K. S. A. 84-2-313 (1) (b) provides:
“Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.”
An express warranty by definition in 84-2-313 (1) (a), supra, makes it contractual and particular reliance upon the express warranty need not be shown. The Kansas comment to the foregoing section of the code says the definition is simplified by elimination of the element of reliance. (See, Topeka Mill & Elevator Co. v. Triplett, supra.)
Official U. C. C. Comment under the foregoing section of the act indicates that in actual practice affirmations of fact made by the seller about the goods during a bargain are regarded as part of the description of those goods; hence no particular reliance on such statements need be shown in order to weave them into the fabric of the agreement.
Express warranties are not subject to exclusion or modification in the same manner as implied warranties. (84-2-313, supra, Kansas Comment.) Further authority for this proposition is found in K. S. A. 84-2-316 on exclusion or modification of warranties, which speaks only in terms of implied warranties as being subject to exclusion or modification.
The cumulation and conflict of warranties express or implied is covered in K. S. A. 84-2-317. It provides:
“Warranties whether express or implied shall be construed as consistent with each other and as cumulative, but if such construction is unreasonable the intention of the parties shall determine which warranty is dominant. In ascertaining that intention the following rules apply:
“(a) Exact or technical specifications displace an inconsistent sample or model or general language of description.
“(b) A sample from an existing bulk displaces inconsistent general language of description.
“(c) Express warranties displace inconsistent implied warranties other than an implied warranty of fitness for a particular purpose.”
Several Kansas cases prior to the code take a position contrary to the code, where they state that an express warranty excludes an implied warranty relating to the same subject. (Topeka Mill & Elevator Co. v. Triplett, supra; Illinois Zinc Co. v. Semple, 123 Kan. 368, 255 Pac. 78; Lumber Co. v. Kelley, 117 Kan. 285, 231 Pac. 71; and Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982.)
In Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P. 2d 1210, decided after the Uniform Commercial Code was enacted and became the law of this state, it was concluded that “contributory negligence and assumption of risk in their normal meaning are not defenses to an action based on the breach of an express warranty.” (p. 726.)
Application of the foregoing rules to our analysis of the record presented on appeal leads to the conclusion that the trial court erred in its refusal to give the instructions pertaining to express warranties requested by the appellants, and that such refusal prejudicially affected the substantial rights of the appellants in the trial of the case.
There is evidence in the record from which the jury could have found that the herd of cattle here in question was expressly warranted to be either free or reasonably free of brucellosis. Here the facts or affirmations relied upon by the appellants to prove an express warranty rest wholly in parol, and whether they amount to an express warranty or warranties is a question for the jury to determine.
Evidence upon which the jury could have based a finding that the cattle were expressly warranted either to be free or reasonably free of disease is the following.
Mr. Young admitted that he could have described the cows as “clean” cows. In the cattle business this would mean that the cows were free of disease.
Mr. Young admitted that he represented to the appellants prior to the sale that these cows were purchased by them as a breeding herd; that he described the herd as a “good reputable herd”; and that he knew its history.
Robert Vestring testified that he was told by Mr. Young the cows were a choice quality breeding herd which originated from San Angelo, Texas; that Mr. Young knew the history of the herd because he purchased them from a rancher and sent them to Mr. Nix in Arkansas to be bred; that Mr. Young purchased the first calf crop; that Mr. Young later purchased the cows back from Mr. Nix; and that they were all one brand of cattle. This was explained by Dr. Gish to mean a stable herd or an established herd that has been held under one ownership for a considerable period of time without constant additions.
The fact that these cattle were permitted to enter Kansas as a stable herd from a modified-certified brucellosis free area further confirms representations made to the appellants that the cows were a stable, or one brand herd.
Robert Vestring also testified that Mr. Young guaranteed the pregnancy test on these cows. This meant that each cow had been pregnancy tested and was found to be carrying a calf. Mr. Young told Robert Vestring that all the cows that did not have calves by their side when sold to the Vestrings would have a calf in the summer, except approximately 50 cows that would not have a calf until fall or winter.
There was evidence from which the jury could find that this herd of cows was not as expressly warranted. There was abundant evidence that the herd in question was not a stable, or one brand herd. Forty-three head of animals in this herd tested by the veterinarians were found to have originated in Louisiana, and they were traced to be transient heifers in Louisiana. There was also evidence of fresh brands on these cows in the pasture at the time they were tested, indicating that cows had been recently added to the herd prior to purchase -by the Vestrings.
There was also testimony by Mr. Nix that he had calving problems with these cows the previous winter and called a veterinarian in January 1968. He said of the eight cows he had blood tested the test “showed one reactor as brucellosis.” Mr. Nix said, “I found out that she was a reactor because she had been vaccinated.”
Testimony concerning the discrepancy in the number of the cows loaded in Arkansas and taken directly to the Dunne pasture in Kansas was proper for the jury to consider in connection with express warranties made. The Arkansas veterinarian counted 460 cows loaded in Arkansas — yet only 445 cows were in the Dunne pasture and sold to the Vestring Brothers. Young and Cooper purchased and paid for only seven bulls on their contract with Mr. Nix, yet Mr. Nix shipped thirteen bulls to Kansas and Young and Cooper sold to the Vestrings fifteen bulls.
On cross-examination Mr. Yomig admitted he told Robert Vestring that he purchased the first calf crop from Mr. Nix in December 1968, but he estimated its size at 100 calves. The jury is entitled, to consider that a cow herd of 450 cows should produce more than 100 calves in one season in determining whether these cows were from a stable herd.
Our opinion need not be extended by other evidence in the record concerning affirmations of fact and the reliability of their existence.
There was abundant evidence of the disease of brucellosis in this herd. There was testimony the disease had been in the herd for. two years.
There was no evidence that the cows had been pregnancy tested by the appellees. The only evidence on pregnancy testing was that of Mr. Nix, who said he did pregnancy testing in November 1968.
The trial court concerning the disease of brucellosis limited the issue to one of implied warranty in this case. It simply ruled as a matter of law that where the seller of a breeding herd of cows tells the buyer that the cows have not been blood tested for brucellosis, and the buyer knows the only way to determine for sure whether cows have brucellosis is to blood test the cows, tbe buyer who fails to blood test such cows before purchase takes them subject to all risk of the disease of brucellosis. In other words, the txial court held the buyer assumes the risk under these circumstances and express warranties cannot override the buyers’ acceptance of the herd of cows without such blood testing. In a nut shell the trial court said: “The statement by the seller was not that they did not have brucellosis, but that they did come from a dean herd and that they had not been blood tested.” This is contrary to the law regarding express warranties under the Uniform Commercial Code.
Cattlemen know that cows from a stable and reputable herd, which are all of one brand without constant additions to the herd, whose past history is known and has been closely followed by reputable cattlemen, and which are from a modified-certified area (See, K. A. R. 9-2-25) are reasonably certain to be clean animals. Cows that meet the foregoing requirements are allowed by the United States Department of Agriculture and the Kansas Department of Agriculture to be shipped into Kansas in interstate commerce without a brucellosis test being required because they are reasonably certain to be clean animals. They can be purchased without the necessity of brucellosis tests being conducted.
Oral representations that a herd of cows possesses these qualities are representations of fact which constitute express warranties. Reing express warranties they are a part of the contract of sale. There is no modification or exclusion of express warranties.
Contributory negligence and assumption of risk cannot be asserted against the buyers, and the buyers are not obligated to show particular reliance upon the express warranties, since they are contractual. All the buyers are required to establish is that the express warranties were made and that they were false, thereby establishing a breach of the contract.
In the present case Robert Vestring visually examined the cows prior to sale and relying on Mr. Young’s affirmation of facts concerning the herd did not have a blood test conducted. It is established by the record that the only positive way to determine whether cows have the disease of brucellosis is by a blood test. Determination of the condition of pregnancy in a herd of cows can only be made after a pregnancy test. Under these circumstances Robert Vestrings visual examination of the herd of cows prior to purchase would not reveal to him whether all cows in the herd were pregnant, or whether the herd was infected with brucellosis. Therefore, even under an implied warranty of fitness for a particular purpose the visual inspection of Robert Vestring would not modify or exclude the implied warranty. The record discloses no demand by Mr. Young that Robert Vestrmg have the cows blood tested or that he have the cows pregnancy tested.
The judgment of the lower court is reversed with directions to grant the appellants a new trial.
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The opinion of the court was delivered by
Fromme, J.:
The defendant Lewis B. Woods, Jr. was charged with, convicted of and sentenced for selling a narcotic drug, Cannabis sativa L., commonly known as marijuana, to Richard Cheatum on November 6, 1971, in violation of K. S. A. 1971 Supp. 65-2502 and 65-2519 (b). This appeal followed.
The sufficiency of the evidence is not questioned and the facts are not in dispute. Messrs. Cheatum and Teeselink, agents of the Kansas Bureau of Investigation (KBI), were working out of the narcotics division of the bureau. They arranged a meeting with a suspect, Mr. “Sly” Harding, at the suspects residence for the purpose of purchasing drugs. Cheatum and Teeselink arrived at the Harding residence and were invited by “Sly” Harding to be seated at a table. The defendant Woods, who was apparently in tire house, entered the room and was introduced by his friend, “Sly”. Woods and “Sly” had a short discussion out of the hearing of the two agents. Then the defendant Woods removed two plastic bags of green vegetation from his coat pocket and placed them on the table. The green vegetation was used to roll cigarettes which were smoked by those present. Cheatum then asked “Sly” how much he wanted for one “lid”, one plastic bag of marijuana. The defendant Woods volunteered that “Sly” Harding should set the price. Agent Cheatum offered $10.00 for the lid. This offer was rejected and “Sly” Harding suggested $12.00. This price was acceptable. Cheatum gave Harding $12.00 in cash and took one of the bags of marijuana from the table.
At the trial of the defendant agent Teeselink corroborated agent Cheatum’s story and further testified he saw the defendant roll a marijuana cigarette which he handed to Teeselink just before the two agents left the Harding residence. The bag of green vegetation and the cigarette were taken to the KBI laboratory for testing. A forensic chemist who made both a visual and a chemical examination of these two exhibits testified at the trial. He made separate examinations of the contents of the bag and of the cigarette. His visual examination under a low power microscope disclosed the cystolith hairs, warty appearance, vein structure and heavy covering of hair on the leaves which he indicated were characteristic of the leaves of the marijuana plant. He testified that each separate exhibit was subjected to the Duguenois-Lavine test for tetrahydrocannabinal, which is the active chemical ingredient in marijuana. This ingredient was present in each test and its presence confirmed his opinion that the contents of the bag and of the cigarette were marijuana, Cannabis saliva L.
We turn to the points raised in this appeal. The defendant-appellant argues that this action should have been dismissed because the arrest warrant was improperly issued without probable cause. Cases are cited in which the validity of search warrants is drawn into question and the search warrants are held to have been invalidly issued because of lack of supporting information on which to find probable cause for the issuance of the search warrants.
No search warrant is involved here. When the complaint was filed by the assistant district attorney it was positively sworn to by him. K. S. A. 1971 Supp. 22-2301 (now 1973 Supp.) provides that a prosecution shall be commenced by filing a complaint with a magistrate. K. S. A. 1971 Supp. 22-2302 (now 1973 Supp.) provides:
“If the magistrate finds from the complaint, or from an affidavit or affidavits filed with the complaint or from other evidence, that there is probable cause to believe both that a crime has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue. . . .” (Emphasis supplied.)
A properly verified complaint is generally considered sufficient authority from which a finding of probable cause may be made and on which a warrant may be issued. (State v. Carey, 56 Kan. 84, 87, 42 Pac. 371.) The statute 22-2302, supra, provides for the issuance of a warrant if the magistrate finds either from the verified complaint or from an affidavit filed with the complaint that there is probable cause. In State v. Addington, 205 Kan. 640, 472 P. 2d 225, it is said:
“. . . The allegations of the complaint positively sworn to provided the magistrate sufficient basis for making the requisite finding of probable cause to issue the warrant. . . .” (p. 644.)
In State v. Larkin, 209 Kan. 660, 498 P. 2d 37, it was pointed out. that even though an arrest warrant may be issued upon a defective complaint, that standing alone, will not invalidate a subsequent conviction. In Larkin it is said:
“Appellant first complains he was taken into custody by virtue of an arrest warrant issued upon a defective complaint and therefore the trial court erred in denying his motion for discharge. Assuming arguendo, that his arrest may have been illegal, he fails to point out resulting prejudice. We have frequently held that an illegal arrest and detention do not, standing alone, invalidate a subsequent convistion [Citation omitted.].” (p. 661.)
The allegations of a complaint positively sworn to provide a magistrate with a sufficient basis for making the requisite finding of probable cause to issue a warrant for arrest. In the present case the arrest warrant was properly issued by the magistrate on a finding of probable cause supported by the allegations of a complaint positively sworn to by the assistant district attorney. Under such circumstances the sufficiency of the statements contained in a separate affidavit filed with the complaint become immaterial.
The defendant next contends that the trial court erred in failing to give the following requested instruction:
“K. S. A. 65-2501 (13). ‘Cannabis’ includes all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, and other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”
This requested instruction includes the entire statutory definition of the prohibited drug in all of its various forms. The trial court instructed the jury that to establish the charge the state must prove that the defendant sold marijuana, Cannabis sativa L. The narcotic drugs controlled under this act are listed in K. S. A. 65-2501 (18) (L. 1957, ch. 338, § 1) as follows:
“ ‘Narcotic drugs’ means coca leaves, opium, cannabis, isonipecaine, amidone, isoamidone, ketobemidone and every other substance neither chemically nor physically distinguishable from them; . . . .” (Emphasis supplied.)
An instruction of the trial court on a charge of unlawfully selling a narcotic drug which describes the drug as marijuana, Cannabis sativa L., is sufficient to properly inform the jury of the nature of the drug when the only evidence introduced at the trial concerns the sale of marijuana in the leafy vegetation form. The full statutory definition requested by the defendant would not have been helpful to the jury under the facts of the present case for the evidence of sale related to a bag of green vegetation. There was no evidence introduced at the trial concerning derivatives of the plant such as the resin, oil or cake as were included in the requested instruction. The requested instruction was quite properly refused under the facts of this case.
The defendant’s final point is one of first impression in this court. He contends that the possession of marijuana is a lesser included offense in the offense of unlawfully selling marijuana. His entire argument is based upon this contention. He argues the trial court erred in failing to instruct the jury and include verdict forms on the lesser included offense of possession. He points out that it is the duty of the trial court to instruct the jury on all lesser crimes of which the accused might be found guilty under the information and upon the evidence adduced. K. S. A. 1971 Supp. 21-3107 (3) (now 1973 Supp.) provides:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
The accused was charged with a sale, not with possession. Defendant cites no cases which hold that possession is a lesser included offense in the offense of selling marijuana. His entire argument is prefaced on the bald assumption that possession is a lesser included offense. The state, on the other hand, does not question this faulty premise and merely argues that the statute (21-3107 [3], supra) does not require an Instruction on a lesser included offense unless it be required upon the evidence adduced at the trial. The state further attempts to convince this court that the defendant could not be accused and convicted of possession upon the evidence adduced at the trial. We are not convinced. The briefs are not helpful on the primary question presented.
The Uniform Narcotic Drag Act was first passed in Kansas in 1957 (L. 1957, ch. 338). The acts prohibited thereunder were set forth in section 2 of the act as follows:
“It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this act.” (K. S. A. 65-2502.)
The unlawful possession and the unlawful sale of the controlled drugs were made separate and distinct crimes. The possession or the sale of marijuana was made a felony carrying punishment by imprisonment and hard labor in the penitentiary for a period of not more than seven years. After this law was passed in 1957 much criticism arose over the severity of the punishment imposed by the statute for the simple possession of maijuana held for personal use. Its possession and use was compared to the use of intoxicating liquor and the prime target of law enforcement agencies was then shifted to the “pusher,” the one who sold the narcotic. In 1970 the legislature amended the penalty provision for simple possession of marijuana and made it a class A misdemeanor. (L. 1970, Ch. 258, § 1.) At this same time a separate statutory crime and penalty was declared by the legislature for possessing marijuana with the intent to sell the same (K. S. A. 1971 Supp. 65-2519a). Possession with intent to sell was made a class D felony and carried the same penalty as an unlawful sale. This dichotomy, i. e., the crime of possession without intent to sell, a misdemeanor, and the crime of possession with intent to sell, a felony, has continued in the amendments which have followed. See L. 1971, Ch. 211, §§ 2, 3, and L. 1972, Ch, 234, § 25. So at the time the present charge was filed selling marijuana was a class D felony, possession of marijuana with intent to sell was a class D felony and simple possession without intent to sell was made a class A misdemeanor.
Under a charge of simple possession of marijuana it is not necessary to prove ownership of the prohibited drug in the sense of title, but the prosecution is required to show some measure of control over some amount of the drug. Such control may be immediate and exclusive, jointly held with another or it may be constructive possession where the drug is kept by the accused in a place to which he has some measure of access and right of possession and control. See Anno: Narcotic — Possession—What Constitutes, 91 A. L. R. 2d 810.
On the other hand a sale under the Uniform Narcotic Drug Act is construed in a broad sense, giving it a meaning much wider than it is normally given in the context of commercial law and without regard to questions of the passing of title, the existence of consideration or who possessed the drug sold. See Anno: Uniform Narcotic Drug Act — “Sale,” 93 A. L. R. 2d 1008.
Under the definitions contained in the Kansas act, subsection (10), “ ‘Sale’ includes barter, exchange, or gift, or offer therefor, and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee.” (L. 1957, Ch. 338, § 1.)
Now let us consider what is generally considered as necessary to the existence of a lesser included offense. If a lesser offense is to be considered a lesser included offense under the law, all elements necessary to prove the lesser offense must be present and be required to establish the elements of the greater offense charged. If each is a separate and distinct offense, requiring proof of an element not necessary in the other, then neither can be a lesser degree of the other offense. In State v. Cory, 211 Kan. 528, 506 P. 2d 1115, we consider two crimes, burglary and possession of burglary tools, and state:
“One may attempt to commit a burglary without possessing burglary tools. Entrance may be attempted without tools. Further, one may possess burglary tools with the requisite felonious intent but without committing the overt act necessary under K. S. A. 1972 Supp. 21-3301 to attempt a burglary. Thus, each is an offense requiring proof of an element not necessary in the other, and neither is a lesser degree of the other offense charged. (See People v. Szymezak, 116 Ill. App. 2d 384, 253 N. E. 2d 894, and 2 Wharton’s Criminal Law and Procedure, §443, p. 65.). . . .” (p. 531.)
Under our former prohibitory liquor law this court was called on to determine the question of whether the unlawful possession of intoxicating liquor was a lesser included offense in the prosecution for the unlawful sale thereof. It was held to the contrary and convictions on two separate counts, possession and sale, were upheld in State v. Backstrom, 117 Kan. 111, 230 Pac. 306, where the unlawful possession charged was not a part of the transaction constituting the sale. (See also State v. Supancic, 117 Kan. 110, 230 Pac. 306.) In State v. Ford, 117 Kan. 735, 232 Pac. 1023, it is said:
“. . . Assuming that in order for the defendant to be guilty of the sale of the jug of whiskey it was necessary for him to have had such control of it at the moment of delivery as to render him guilty as well of having it in his possession, it does not follow that tire offense of possession of which he was found guilty was an ingredient of the offense of making the sale. As a practical matter, the defendant in order to carry out the deal may have been obliged to transport the liquor some distance and therefore to have had it in his possession for a considerable period, but possession for that period was not legally essential to a sale. The offense of having it in his possession was complete before the time for delivery had arrived.” (pp. 735, 736.)
Although the reasoning in the liquor cases may be clouded the result reached in those cases lends support to a determination that the possession and the sale of narcotics are entirely separate and distinct offenses.
Under the statutory definition of a sale physical possession of the prohibited drug would not appear to be a required element of the offense. A sale may be consummated by barter, exchange or gift and the transaction constituting a sale may be by a principal, proprietor, agent, servant or employee. On the other hand in the case of simple possession without intent to sell there must be proof of some quantum of physical control. Such an element of proof is not required in cases of sale. In addition, in the case of a sale, any possession of the narcotic, which may appear from the evidence, is with a separate and distinct intent, an intent to sell, which under the statute raises the crime of possession to equal status with a sale and makes such a possession a class D felony.
Other states have considered this same question and have arrived at a similar conclusion. In Gee v. State, 225 Ga. 669, 171 S. E. 2d 291, it was said:
“There are different elements present in the two crimes of selling and possessing the prohibited drugs. Proof of the illegal sale of the drugs would not prove the illegal possession of the drugs, since persons might legally possess the drugs who could not legally sell them. Proof of the illegal possession of the drugs would not prove the illegal sale of the drugs. Neither offense is a necessary element in, and constitutes an essential part of, the other offense. . . .” (p. 674.)
(See also People v. Blake, 179 Cal. App. 2d 246, 3 Cal. Rptr. 749; People v. Valerio, 13 Cal. App. 3d 912, 92 Cal. Rptr. 82; State v. Booker, 86 N. J. Super. 175, 206 A. 2d 365; State v. Vallejos, 89 Ariz. 76, 358 P. 2d 178; Thompkins v. State, 126 Ga. App. 683, 191 S. E. 2d 555; 28 C. J. S. Supp., Drugs & Narcotics, § 171, p. 247.)
Before concluding this opinion we wish to call attention to State v. Culbertson, 214 Kan. 884, 522 P. 2d 391. The thrust of that opinion indicates that simple possession of marijuana is a lesser included offense in any charge of possession of marijuana with intent to sell. The distinction between our holding in Culbertson and the present case should not be overlooked.
Accordingly we hold that the possession of marijuana as proscribed in K. S. A. 1971 Supp. 65-2502 and 65-2519 (b) is not a lesser included offense in a prosecution for the unlawful sale of marijuana as proscribed in K. S. A. 1971 Supp. 65-2502 and 65-2519a. There are different elements present in the two crimes. The trial court did not err in failing to give an instruction and submit verdict forms on the crime of simple possession of marijuana since tihe crime of possession is not charged in the information and is not a lesser included offense of the crime charged in the information.
The judgment is affirmed.
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The opinion of the court was delivered by
Harman, C.:
This is an action by the city of Douglass and ten resident property owners to enjoin Tri-Co Fertilizer, Inc., from maintaining and using gasoline and diesel fuel storage facilities and constructing and maintaining an anhydrous ammonia storage tank within the city. Trial to the court resulted in judgment for defendant Tri-Co and plaintiffs have appealed.
Tri-Co, a Kansas corporation with its office at Douglass, is a farm supply company engaged in bulk sales of fertilizer, gasoline, diesel fuel, equipment and chemicals. It had previously leased a tract of land outside the city limits of Douglass upon which it stored anhydrous ammonia. This lease had expired and it became necessary to acquire new storage facilities. Through purchase and lease Tri-Co acquired about one city block of land within the corporate limits of Douglass for this purpose. This property was along one side of the Santa Fe railway, part of it being on railroad right of way leased from Santa Fe. It was hounded on two sides by residential areas.
In April or May, 1971, Lloyd Howard, chief executive officer of Tri-Co, went to the city clerks office to check city ordinances respecting installation of bulk storage of gasoline and diesel fuel. He read the pertinent ordinances and expressed his desire to meet with the city council with respect to the construction of such storage facilities. The city clerk advised him that if a Mr. Polk could be satisfied everybody else in the area would be also. Polk operated a filling station in Douglass, he was the mayor s son-in-law and, at some undesignated time, had been police judge in Douglass. Howard then sought Polk’s approval. Polk first expressed opposition but stated he would approve if the storage tanks were buried.
On May 3, 1971, at a regular session of the Douglass city council Howard presented a plan which showed four fuel tanks above ground. Upon the council’s objection to this plan Howard presented an alternate plan which showed all but one diesel tank underground. By formal vote the council approved this latter plan and also granted Tri-Co permission to move a small building onto the premises for use as an office building. Tri-Co then cleared its newly-acquired tract of old sheds, trees, trash and a house and it dug holes and set the four storage tanks for gasoline and diesel fuel. No further action respecting these tanks was taken by the council until this lawsuit was instituted in August, 1971. Meanwhile Tri-Co notified the state fire marshal’s office of its installation of these tanks and that they were being left open for inspection. Tri-Co was advised by that office that there was no problem and, despite several calls thereafter, that office made no inspection of the tanks. At some point plans diagramming the tanks were submitted to the fire marshal’s office.
Tri-Co had previously stored anhydrous ammonia in nurse tanks on its leased ground outside the city. These are 1,000 gallon tanks mounted on four-wheeled trailers by means of which the product is transported to the farms for application. Anhydrous ammonia is a gaseous combination of hydrogen and nitrogen used primarily as an agricultural fertilizer. On June 17, 1971, on behalf of Tri-Co Mr. Howard received oral permission from the city council to bring an anhydrous ammonia tank into the city until the next council meeting. At the next regular council meeting on Tuesday, July 6, 1971, Howard sought approval for permanent placement of a 12,000 gallon anhydrous ammonia tank on the tract in question. He had meanwhile received a letter from the state sealer at Topeka, who is also anhydrous ammonia administrator for the state board of agriculture, stating the proposed location was satisfactory but that Tri-Co would have to secure city approval. Howard exhibited a diagram showing the proposed location of the tank. The five member council discussed the safety features of the project and voted three to two to approve the proposed project.
The next day, Wednesday, July 7, 1971, the mayor told Howard it was possible one of the council members who was an employee of Tri-Co may have been voting in a conflict of interest situation and that another council meeting had been called for Friday, July 9, to revote on the matter of the anhydrous ammonia tank. On Thursday, July 8, Tri-Co poured cement footings for the tank and on Friday, July 9, installed the tank on the footings. That same day, at a special meeting of the council called at the request of four of its members, the council by unanimous vote of the four members present disapproved Tri-Co’s application to install the tank. Another special meeting was held July 13, 1971, at which the council enacted ordinance 401 which prohibited the storage and handling of anhydrous ammonia within the corporate limits of Douglass.
In their petition for injunction appellants alleged that both the storage of anhydrous ammonia and the maintenance of the gasoline and diesel fuel tanks constituted a common nuisance; that the city council had denied permission to construct the ammonia facility and it had been built in violation of city ordinance; and the fuel tanks were maintained in violation of rule 22-7-6 promulgated by the state fire marshal.
The trial court embodied its decision in a memorandum opinion. It commented that the proceeding was an “emotionally-charged matter, reminiscent of a school board election or an interohurch struggle for power”. It found that the council had on May 3, 1971, approved Tri-Co’s application to install the fuel tanks and the operation of tire gasoline bulk station was not in violation of any city ordinance. It recited other facts concerning the ammonia tank as to which there is no dispute and it summed up the evidence respecting the alleged existence of a common nuisance. It concluded there was insufficient evidence that the fuel tanks constituted a nuisance. Respecting the 12,000 gallon ammonia tank it had this to say:
“The Court cannot forget that for at least two years prior to the enactment of the ordinance, the defendant stored and handled anhydrous ammonia on the property in question. True, not in the quantities he now proposes to store, but the fact remains the compound has been present. That orally and by formal Resolution the defendant was led to believe he could proceed with the further implementation of its plants. These actions by the City Commissioners strongly suggest that the purpose of the later enactments was not an exercise of police power in the public interest, but was imposed for the benefit of other property owners and a destruction of the defendant’s rights. (See Dobbins v. Los Angeles 195 U. S. 233; 25 SCT 18.) From the facts presented, the Court finds the ordinance arbitrary and unreasonable, and the plaintiffs are enjoined from the enforcement of Ordinance 401, and the same is declared void.”
Judgment denying the requested injunction as to both types of storage facilities was entered accordingly.
We consider first appellants’ contention that appellee’s facilities constituted a nuisance. It has been widely recognized that fuel storage tanks do not constitute a nuisance per se, although, of course, under certain circumstances such tanks may become a nuisance by reason of the manner in which they are constructed or operated (see anno. 50 ALR 3d 209). Evidence pro and con was presented on the issue. Certain of appellants’ witnesses complained of noise and dust caused by trucks using the streets and alleys gasoline fumes and the fact children might play near the storage of flammable material. One person expressed fear of gasoline explosion and another fear of suffocation from escape of anhydrous ammonia. Other residents of the immediate vicincity testified they found nothing objectionable in the operation of the facility and in fact believed appellee had improved the property from its prior condition. Upon this controverted evidence the trial court’s conclusion there was insufficient evidence upon which to find that the construction and operation of the bulk gasoline station constituted a nuisance cannot be disturbed.
Appellants assert that in ruling on the fuel tanks the trial court overlooked certain provisos of K. S. A. 31-207 (since repealed and replaced by K. S. A. 31-133) which stated that the storage of petroleum products in violation of the rules and regulations of the state fire marshal constitutes a nuisance. The state fire marshal is authorized to and has promulgated rules and regulations governing such storage. Appellants assert that appellee’s construction and maintenance of the fuel tanks was in violation of certain rules prescribed by the state fire marshal for the regulation of bulk oil stations. The rule relied on is K. A. R. 22-7-6 which provides in part:
“Approval of plans. (1) Except as otherwise provided in (a) of this section, before the construction of any new bulk plant or service station or additional facilities for the storage, handling or use of flammable liquids is undertaken in any bulk plant or service station, drawings or blueprints thereof made to scale shall be submitted to the state fire marshal with an application, all in duplicate, for his approval. . . .
“(a) If proposed construction or installation is to be located within a local jurisdiction which requires that a local permit be first obtained, the drawings or blueprints shall be submitted to the appropriate local official or body with the application for permit and then except in case of dispute need not be submitted to the state fire marshal.”
The violation asserted by appellants is that the drawings or blueprints were never submitted to or approved by the state fire marshal. The contention has no merit. The plans for the fuel tanks were submitted to the city council. The city had two ordinances on the subject of petroleum products. Local approval respecting underground tanks was required. The plans complied with all requirements of these ordinances and accordingly the city granted permission for the construction and maintenance of the fuel tanks. There was no dispute and the state fire marshal had no function to perform — he advised there was “no problem”. The storage tanks were constructed and dispute over this aspect did not arise until some time later. The situation is somewhat analogous to that in Dobbins v. Los Angeles, 195 U. S. 223, 49 L. ed. 169, 25 S. Ct. 18. There a city enacted an ordinance limiting construction of gas works to a certain district. Plaintiff contracted for construction of a gas works within that district. The appropriate city officials approved the construction application and construction proceeded. Thereafter the city council enacted a second ordinance limiting the district so that plaintiff’s construction was not within it. It was held that the city’s action was an arbitrary interference with property rights protected by the fourteenth amendment to the federal constitution. In the case at bar the trial court correctly refused to enjoin the maintenance of appellee’s fuel tanks.
Appellants assert the city has statutory authority to prohibit the storage or handling of anhydrous ammonia within its corporate limits. Its ordinance 401 did just that and provided for fine or imprisonment for violation. Appellants further contend enactment of the ordinance was reasonable and constituted a valid exercise of the city’s police power. Appellee counters with the assertion the city’s action was simply an endeavor by the mayor and his son-in-law to prevent appellee from expanding its business in Douglass and that there was evidence the mayor was not satisfied with the city’s first action in voting to allow construction of the large anhydrous ammonia tank and that he put pressure on the council to change its vote. The difficulty with appellee’s argument is the trial court made no such findings and had it done so that evidence would not have supported them. The court did conclude the city’s aotion was arbitrary and unreasonable and it commented that the city’s actions suggested the later ordinance was not an exercise of the police power in the public interest but was for the benefit of 'the property owners and a destruction of appellee’s rights. These findings hardly amount to those asserted by appellee.
The legislature has seen fit to speak on the subject of anhydrous ammonia (K. S. A. 1973 Supp. 2-1212, et seq.) Section 2-1212 authorizes and directs the state board of agriculture to make regulations for the safe handling, storage and transportation of anhydrous ammonia. Section 2-1215 provides:
“A municipality or other political subdivision, shall not enact or enforce any ordinance inconsistent with the regulations promulgated and adopted pursuant to this act. Nothing in this act shall in any way impair the power of any municipality or other political subdivision, (1) to prohibit the use of land for anhydrous ammonia storage or handling, or (2) to impose more stringent limitations within its jurisdiction, by zoning regulations, or by building or other regulatory codes.”
Thus the legislature has specifically authorized municipalities to prohibit land within the city from being used for storage of anhydrous ammonia. In 5 McQuillen, Municipal Corporations, 3d ed., 1969 Rev. Vol., § 18.02, this rule is stated:
“An ordinance will be sustained, regardless of the opinion of the court respecting its reasonableness, where its terms and provisions are expressly and. specifically authorized by charter or statutory authority, where it is not inconsistent with the Constitution, treaties or laws of the United States, or of the state and where the power to enact it has been substantially followed and exercised in a reasonable manner. Indeed, an ordinance enacted pursuant to express and specific legislative authorization will be declared void as unreasonable, arbitrary, and oppressive only in extreme cases, if at all. The attack, if any, must be made against the constitutionality of the enabling statute. The reason for the rule is found in the principle that questions of wisdom and expediency in authorizing a municipality to enact certain legislation are for the legislature and not the courts.” (pp. 335-337.)
Specific constitutional challenges to ordinance 401 are not mounted here although it must be recognized assertions that an ordinance is unreasonable and arbitrary may reach constitutional dimensions.
A municipal corporation in the exedse of its police power may make regulations with respect to property within its borders provided the regulations are reasonable and bear a substantial relation to the preservation of the public health; safety or welfare. In Grigsby v. Mitchum, 191 Kan. 293, 380 P. 2d 363, it was stated:
“Whether an exercise of the police power does bear a real and substantial relation to the public health, safety, morals or general welfare of the public, and whether it is unreasonable or arbitrary are questions which are committed in the first instance to the judgment and discretion of the legislative body, and, unless the decisions of such legislative body on those questions appear to be clearly erroneous, the courts will not invalidate them.” (p. 302.)
In Delight Wholesale Co. v. City of Overland Park, 203 Kan. 99, 103, 453 P. 2d 82, this court declared that the right to sell is not absolute but may be regulated or withheld, if necessary, in the interest of public safety and welfare.
The preamble to ordinance 401 is as follows:
“Whereas, Anhydrous ammonia is hereby deemed to be a product which, when released into the atmosphere in inhabited areas, is injurious to the health, safety and welfare of human life and may prove lethal; and
“Whereas, Because of the inherent nature of such matter it is necessary to restrict and limit the storage and handling of said product away from populated areas in order to provide for the health, safety and welfare of the public generally; and
“Whereas, There are no areas within the corporate limits of the City of Douglass sufficiently remote wherein such product might be safely stored or handled. . . .”
In Guerra v. Jaeger, 204 Kan. 309, 461 P. 2d 737, a tort action, this court stated it was proper for the trial court to conclude that anhydrous ammonia under high pressure was an extremely dangerous compound. In the case at bar there was testimony that the state board of agriculture considers the substance to be inherently dangerous; instances were related of evacuation of the population in the towns of Beattie and Scandia, also of fatal injuries in Haskell and Scott counties, because of mishaps in the handling of anhydrous ammonia. There was substantial evidence the council acted reasonably in enacting ordinance 401 — nothing beyond sheer speculation indicated to the contrary. There was no evidence of concerted action between the council on the one hand and Mr. Polk or the mayor on the other in the enactment of the ordinance. Nor can the ruling in Dobbins v. Los Angeles, supra, come to the aid of appellee with respect to tire ammonia tank. The next day after the council had, by a three to two vote, granted permission to install the tank, appellee was notified that because of an ethical situation involving its employee who was a member of the council another vote was going to be taken. At this point appellee had done nothing toward actual installation of the tank. Prompt rescission by the council of the approval of appellee’s application was forthcoming and it is in no position to claim infringement of constitutional rights as in Dobbins. The trial court’s conclusion that enactment of ordinance 401 was arbitrary and unreasonable is not sufficiently supported by the evidence and its judgment declining enforcement of that ordinance must be, and is hereby, reversed and the cause is remanded with directions to grant the relief requested as to the anhydrous ammonia storage facility.
Judgment affirmed in part and reversed in part.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by the state from a judgment in a K. S. A. 60-1507 proceeding setting aside a conviction of second degree kidnaping and felonious assault because of double jeopardy and a coerced plea of guilty.
This proceeding marks the fifth time the petitioner, Eddie David Cox, has been before the district court and this court in connection with the charge of kidnaping and felonious assault.
The appellee, hereinafter referred to as petitioner, filed the petition now under consideration on October 3, 1969. A hearing was held which was attended by the petitioner and his attorney. Following the hearing the trial court made findings of fact and conclusions of law and entered an order setting aside the conviction. The petitioner was released from custody.
The state has appealed contending generally the Rial court erred in concluding that the petitioner was put twice in jeopardy and that his plea of guilty was the result of coercion.
Before considering detailed findings of the Rial court and the specific objections made to this court, it will perhaps be helpful if we review the history and facts of the case.
The petitioner was originally charged in three counts — assault with intent to kill, first degree kidnaping and with harm to the victim and robbery in the first degree. A plea of not guilty was entered to each of the counts and trial was commenced on March 14, 1960. Highly summarized, evidence was presented at the Rial as follows:
Lyle Koberstein, a complaining witness, testified that on the day he was kidnaped he was a patrolman for the Junction City Police Department. On that date he was directed by a call from the police staüon to go to Gerald’s Jewelry Store where he found Eddie David Cox attempting to cash a check. He and Cox left the jewelry store together for the police station in Koberstein s car. While in transit Cox drew a gun from underneath his coat and pointed it at Koberstein. After driving the car at Cox’s direction to a place outside of town, Koberstein was pushed out of the car by Cox. At Cox’s direction Koberstein reached to unsnap his gun and tried to unhook his gun to draw it. As that was happening Cox fired a shot which hit Koberstein in the right arm. Another shot was fired which struck the lapel of Koberstein’s jacket. Koberstein then escaped by running down a grade into some small trees and shrubbery.
The only testimony offered by Cox in that criminal trial consisted of a statement by an officer of the Junction City Police Department concerning the location of Koberstein’s car when it was located at 1:30 o’clock p. m. on October 31,1959.
At the close of the state’s evidence the count charging first degree robbery was dismissed.
The juiy returned a verdict finding the petitioner guilty of assault with intent to kill and guilty of kidnaping in the first degree but stated that the kidnaping occurred without harm to the victim.
On appeal to this court (State v. Cox, 188 Kan. 500, 363 P. 2d 528) petitioner was granted a new trial because an improper form of verdict was submitted to the jury.
On September 8, 1961, petitioner was again arraigned on counts one and two — assault with intent to kill and first degree kidnaping with harm to the victim. The only objection made at the arraignment was “that the defendant was not properly in court.” At the arraignment the petitioner stood mute and the court entered a plea of not guilty.
On September 12, 1961, the petitioner again appeared in court in person and by his attorneys and requested permission to change his plea to guilty. The colloquy which occurred between the trial court, the petitioner and his attorneys will be presented later herein. It will suffice to say at this point that the petitioner was permitted to withdraw the plea of not guilty and entered a plea of guilty of assault with intent to kill and second degree kidnaping. He was sentenced from one to ten years on the assault charge and twenty-five years for kidnaping in the second degree. The sentences were to run concurrently.
Later the petitioner filed a motion to correct his sentence and the sentencing court changed the sentence of twenty-five years to not more than 30 years on the second degree kidnaping conviction. At the hearing on the motion to correct, the state attempted to introduce evidence of prior felony convictions for the purpose of invoking the provisions of the habitual criminal act. The evidence was excluded by the trial court and the ruling was affirmed by this court in State v. Cox, 194 Kan. 120, 397 P. 2d 406.
On September 7, 1965, the petitioner initiated his first proceeding under the provisions of K. S. A. 60-1507 raising the issue of double jeopardy. After a full evidentiary hearing the trial court sustained petitioner’s contention that he had been twice put in jeopardy and ordered his release from confinement. This court stayed the release order pending the disposition of the case on appeal.
On appeal to this court it was held that the petitioner had not been twice placed in jeopardy and the trial court’s order releasing the petitioner was reversed. (See Cox v. State, 197 Kan. 395, 416 P. 2d 741.) The basis of this court’s decision was that the granting of a new trial places the parties in the same position as if a new trial had not been had and after the granting of a new trial a defendant could be tried on the same information as in the original trial although he had been convicted of a lesser offense. It was further held that the prohibition of double jeopardy under the Fifth Amendment to the Constitution of the United States was not applicable to state action by force of the Fourteenth Amendment. The decision followed a long line of decisions pronounced by this court and Palko v. Connecticut, 302 U. S. 319, 82 L. Ed. 288, 58 S. Ct. 149, and related cases.
Following the above decision petitioner sought and failed to obtain relief by way of habeas corpus in the federal courts. (See Cox v. Crouse, 376 F. 2d 824.)
On September 21, 1966, the petitioner filed another motion under the provisions of K. S. A. 60-1507 to vacate his sentence on the ground his plea of guilty was coerced. After a full hearing relief was denied and on appeal to this court the judgment was affirmed. It was held that an abuse of remedy existed in the further use by appellant of the provisions of K. S. A. 60-1507. (See Cox v. State, 200 Kan. 198, 434 P. 2d 843.)
We now reach the subject of the present appeal. We first note that in the present proceeding and in the proceedings heretofore discussed, the petitioner has at all times been represented by able trial lawyers.
The trial court made full and comprehensive findings of fact. We quote insofar as material here:
“6. There was no in-court interrogation of the defendant concerning his plea by the district court.
“7. The evidence adduced at this present hearing was that the petitioner had conferred with and been advised by two counsel concerning his rights and the consequence of his plea. There was no discussion concerning double jeopardy.
“11. On June 23d, 1969, the Supreme Court of the United States handed down its decision of Benton v. Maryland, 89 Supreme Court 2056, starting on page 2062: ‘We today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental idea in our Constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. In so far as it is inconsistent with this holding, Palko v. Connecticut is overruled.’
“12. The court finds that KSA 21-449 contains two separate and distinct offenses under the same title classification, ‘Kidnaping in the first degree’:
“A. Kidnaping as defined generally in the statute with the additional element of ransom or bodily harm, with the penalty being either death or life imprisonment.
“B. Kidnaping as defined generally, excluding any other element, with the penalty being not less than twenty years.
“15. The court finds that the offense set forth in 12 B above is a lesser crime as to the elements announced and the penalty set forth in 12 A.
“16. The court finds that 12 B is an included offense under 12 A and would have to be instructed on if the facts warranted, in a jury trial.
“17. The elements constituting 12 B are different from any of the other elements or penalties provided for by the other kidnaping statutes, i. e., KSA 21-450, 21-451, and 21-452.
“19. This court finds that the protection afforded by the Fifth Amendment as to double jeopardy is a substantive right, and that Benton v. Maryland, supra, must be given retroactive application. . . .
“20. The court finds that neither court nor counsel talked with petitioner concerning double jeopardy or any rights that might accrue to him under the Fifth Amendment.
“21. The court finds that no intelligent and voluntary waiver can be had of something of which there is no knowledge.
“22. The court finds that the petitioner was placed in jeopardy twice, contrary to the Fifth Amendment to the Constitution of the United States.
“23. The court finds that by virtue of the jury’s verdict (see finding 2), the petitioner was acquitted by implication of the offense providing for the penalty of death or life imprisonment, the erroneous instruction notwithstanding.
“28. The court further finds that plea of petitioner to both counts was coerced, in that at the time said plea was tendered, petitioner was standing once again before the court under a statute providing for a life imprisonment or death penalty.
“29. Based upon the court’s findings numbered 24 through 28, supra, the court finds that the petitioner was coerced by an improper information, and therefore, that his plea to both counts was involuntary.”
We will first consider the state’s contention that—
“The trial court erred in concluding that K. S. A. 21-449 contains two separate and distinct offenses and that kidnapping as defined in that statute with a penalty of not less than twenty (20) years is a lesser included offense of kidnapping as described in K. S. A. 21-449 with a penalty of death or life imprisonment.”
K. S. A. 21-449 defines kidnaping in the first degree and provides for different penalties in case the victim is harmed or unharmed. That part of the statute material here provides:
“If any person or persons shall willfully, without lawful authority, seize, confine, inveigle, decoy, kidnap or take or carry away by any means whatever, any person or persons or cause such child or person or persons to be secretly confined against his will, for the purpose and with the intention of causing the father or mother or any other relative of the person so kidnaped, or any other person, to pay or offer to pay any sum as ransom or reward for the return or release of any person or persons, or if bodily harm is in any way inflicted upon the person or persons so kidnaped, said person or persons so guilty of the above-mentioned acts or act, shall, on conviction, be deemed guilty of kidnaping in the first degree and be punished by death or by confinement and hard labor in the penitentiary for life, if the kidnaped person has been harmed, or by imprisonment in the penitentiary for not less than twenty (20) years if the kidnaped person is unharmed. If there is a jury trial the jury shall determine which punishment shall be inflicted. If there is a plea of guilty the court shall determine which punishment shall be inflicted, and in doing so shall hear evidence: . . .”
It appears to us that the statute provides for two distinct offenses and a separate penalty for each.
Kidnaping in the first degree is defined generally in the statute with the additional element of bodily harm to the victim. This offense carries a penalty of death or life imprisonment.
Kidnaping in the first degree is defined generally in the statute without the element of bodily harm to the victim. This offense carries a penalty of not less than twenty years imprisonment.
We must agree with the conclusion of the trial court on this issue.
We now come to the second question — was the petitioner twice placed in jeopardy for the offense of kidnaping with harm to the victim?
The petitioner was first tried for first degree kidnaping and the jury convicted him of kidnaping without harm to the victim which it must be conceded was an acquittal of the greater offense of kidnaping with harm to the victim. After the reversal by this court for a new trial, the petitioner was again arraigned on the same information which included kidnaping with harm to the victim.
In the court below, as he does here, the petitioner rested his case upon the decision in Green v. United States, 355 U. S. 184, 2 L. ed. 2d 199, 78 S. Ct. 221, 61 A. L. R. 2d 1119, where the Supreme Court of the United States ruled that in a federal prosecution the double jeopardy clause of the Fifth Amendment to the Constitution of the United States prohibits a second prosecution of a greater offense after the conviction of a lesser offense and the reversal of that conviction, and Benton v. Maryland, 395 U. S. 784, 23 L. ed 2d 707, 89 S. Ct. 2056, where it was held the double jeopardy provision of the Fifth Amendment is applicable to the states through the Fourteenth Amendment. The petitioner then suggests that the ruling in the Benton case should be applied retroactively.
The trial court adopted the petitioner’s contention and the state claims error.
Perhaps before we become involved in a discussion of the retroactive effect of the Benton case, we should first determine if the petitioner was ever twice placed in jeopardy for the offense of first degree kidnaping with harm to the victim.
We should first determine at what stage of a proceeding jeopardy attaches as the word “jeopardy” is used under the state and federal laws.
The mere pendency of an indictment, information or complaint does not constitute jeopardy. (See 22 C. J. S., Criminal Law, § 241, p. 640 and United States v. Haupt, 152 F. 2d 771, 795.
Under the same section of C. J. S., supra, at page 639, we find the following statement:
“In those jurisdictions which follow the generally recognized rule, jeopardy attaches at the time the trial commences, and if the trial is to a jury, the trial commences when the jury are impaneled and sworn, and thus it is said that jeopardy attaches when the jury are impaneled and sworn. If the trial is to the court without a jury, it is well settled that, for the purpose of determining when jeopardy attaches, the trial begins at the time of the commencement of the taking of testimony, that is, when the first witness is duly sworn, and, accordingly, in such a case, jeopardy begins after accused has been indicted, arraigned, and has pleaded, and the court has begun to hear the evidence, or the trial has begun by the reading of the indictment to the court. . . .”
A plea of guilty to an indictment or information is jeopardy if entered of record. However, if the accused withdraws a plea of guilty with the consent of the court, he waives his defense of former jeopardy. A mere plea of not guilty to an indictment or information does not amount to putting an accused in jeopardy (22 C. J. S., Criminal Law, § 248, p. 654).
In Hunter v. Wade, 169 F. 2d 973, 8 A. L. R. 2d 277, affirmed Wade v. Hunter, 336 U. S. 684, 93 L. ed. 974, 69 S. Ct. 834, reh. den. 337 U. S 921, 93 L ed. 1730, 69 S. Ct. 1152, we find the following statement at page 975:
“It is the general rule that an accused is in jeopardy within the meaning of the guaranty against double jeopardy contained in the Fifth Amendment to the Constitution of the United States when he is put on trial in a court of competent jurisdiction upon an indictment or information sufficient in form and substance to sustain a conviction, and a jury has been empaneled and sworn; and where the case is tried to the court without the intervention of a jury, jeopardy attaches when the court begins the hearing of evidence. . .
What has been said appears to be in harmony with our own decisions insofar as they have covered the field. In State v. Stiff, 117 Kan. 243, 234 Pac. 700, we held:
“A person who is brought to trial on an information which, although defective, sufficiently charges an offense to sustain a judgment on a verdict of guilty, is placed in jeopardy when the jury is sworn to try the cause; . . .” (Syl. ¶1.)
With the general law rather well understood as to when jeopardy attaches we should examine the record, which consists of colloquy between the trial judge, the defendant and counsel, to determine just what did take place in connection with the charge of first degree kidnaping. We quote:
“The Court: You have heard the reading of the Information as amended, Mr. Waters, what do you have to say? How do you wish to plead?
“Mr. Waters: If it please the Court, first of all in regard to Count 2, the defendant would plead not guilty to Count 2 as read but is willing to enter a plea of guilty to the lesser included offense of kidnapping in the second degree, which is contrary to G. S. 21-550 [450].
“The Court: What do you have to say?
“Mr. Deam: If it please the Court, the State is willing to accept the plea to tire lesser included offense of kidnapping in the second degree, contrary to 21-450, in full jeopardy to its rights to proceed further in the matter. I have conferred with the Attorney General regarding this matter and that is acceptable with him.
“The Court: Do you understand this, Mr. Cox?
“The Defendant: Yes, sir, I do.
“The Court: Do you also enter a plea to this?
“The Defendant: I enter a plea of guilty to second degree kidnapping. “The Court: Do you wish to be sentenced under this before the second count?
“Mr. Deam: Now, that is the second count.
“The Court: Yes, that is the second count.
“Mr. Deam: Now have the matter of the first count.
“The Court: The first count is die shooting, on purpose and malice aforethought, shoot one Lyle Koberstein with a revolver with intent to kill him. Now, how do you wish to plead to that?
“The Defendant: Guilty.
“Mr. Waters: Defendant pleads guilty, Your Honor.
“The Court: . . . Upon your plea of guilty, the Court finds and ad-
judges you guilty, and it now becomes the duty of the Court to make inquiry of you, Mr. Cox, and your attorneys as to whether or not you or either of you have any legal reason why the sentence of the Court should not now be pronounced upon you?
“The Defendant: None.
“Mr. Waters: We have none, Your Honor.
“Mr. Hornbaker: None Your Honor.”
It definitely appears that before the petitioner entered his plea of guilty the information was for all intent and purpose amended to eliminate kidnaping in the first degree and therefore he was never placed in jeopardy the second time for the greater offense. True, the amendment was oral but it was made a matter of record and was binding on the state. In 42 C. J. S., Indictments and Informations, § 237, p. 1248, we find the following statement:
“No amendment of the information is necessary in order that the prosecuting attorney may abandon a greater charge and proceed against accused on a lesser one included therein; a simple motion, made verbally in open court, or an announcement of such intention, suffices if made before the trial begins.”
The above rule was followed in Silas v. State, 232 Ark. 248, 337 S. W. 2d 644, cert. den. 365 U. S. 821, 5 L. ed. 2d 698, 81 S. Ct. 705.
It necessarily follows that the information having been amended, before the accused pleaded guilty, to include only kidnaping in the second degree, the petitioner was not the second time placed in jeopardy for the greater offense of kidnaping in the first degree either with or without harm to the victim. (K. S. A. 21-449.)
We have remaining the question of whether petitioner’s plea of second degree kidnaping was coerced because before his agreement to so plead he was. faced with a charge which on conviction carried a penalty of death or life imprisonment.
This same contention was raised in petitioner’s second proceeding under K. S. A. 60-1507. The trial court, in answer to the claim that there had been no in-court interrogation of the defendant, quoted from Miller v. Crouse, 346 F. 2d 301, 306:
“. . . It is, of course, a fundamental basic right that an accused be advised of the nature of the charges against him and the consequences of a plea of guilty. Smith v. O’Grady, 312 U. S. 329, 61 S. Ct. 572, 85 L. Ed. 859. This is implioit in a knowing entry of a plea of guilty. It is not, however, mandatory that the judge ritualistically and personally advise the accused of these matters. It is sufficient that the accused be in fact aware of such regardless of the source from where the information comes. The court, of course, has a duty to satisfy itself that the accused is aware of the nature of the charges and the consequences of a plea of guilty, but no specific formula need be followed. We can think of no better way, aside from the trial court performing the function itself, of sufficiently putting an accused on real notice of these matters than through his own lawyer. . . .”
The trial court in the petitioner’s second proceeding found:
“This Court believes that the record reflects that the petitioner was well aware of the facts and was well aware of the consequences and advised as to same by his capable counsel. See State v. Angle, 197 Kan. 492 [419 P. 2d 935], and Thompson v. State, 197 Kan. 630 [419 P. 2d 891].”
It may be stated in passing that this court disposed of the last above mentioned K. S. A. 60-1507 proceeding on the basis of abuse of remedy in the further use of K. S. A. 60-1507. (Cox v. State, 200 Kan. 198, 434 P. 2d 843.)
In the face of the continued abuse of such process, it is with considerable hesitancy that we again review on the merits the same contention.
We fail to find any coercion influencing the petitioner in making his plea of guilty other than the advice of his able counsel operating for petitioner’s best interest. True, he was not advised that he could not be tried again for the offense of first degree kidnaping with harm to the victim. He was not so informed because it was contrary to the pronouncement of the law by this court and the Supreme Court of the United States at the time. However, the petitioner was not alone concerned by the death penalty, he was even more concerned by the prospect of life imprisonment because the chances were greater. We quote in part a letter to petitioner from his attorneys:
“We are writing this letter to you and are sending a copy to your mother. We ask that you seriously consider these matters.
“The Supreme Court decision is such that if you are now convicted of kidnapping you will be sentenced to either life imprisonment or death. Beyond that, even if you are acquitted on the kidnapping, a possibility that is very very remote, and if you are convicted on the felonious assault, then we know the state will invoice the habitual criminal act and you will be sentenced to the penitentiary for life. I believe I am correct in stating that you have at least two prior convictions.
“Eddie, it appears to us that the only possibility that can result from the trial is that you will get either life imprisonment or death. We can and will do our best for you but all we can do is raise trouble and questions and these will not materially influence or affect the jury.
“Now, we have reason to believe and advise you that we can work it out whereby you can enter a plea of guilty to second degree kidnapping and be sentenced to the penitentiary for a term of not less than 20 or more than 30 as provided by law. Also, we have reason to believe that the conviction or upon a plea of guilty to felonious assault you would be sentenced to 3-10 years, the sentences to run concurrently. And, the state would not invoke the habitual criminal act.” (Emphasis supplied.)
One of petitioner s attorneys testified that “he discussed the case considerably with Mr. Cox.”
The petitioner stated on request for admission of fact:
“I feel my attorneys did their very best with their working knowledge of criminal law. If a Kansas attorney practiced criminal law exclusively he would starve to death. They do not keep abreast of criminal opinions and law. I was not properly advised of the consequences of my plea as they did not know the consequences and as they had been misled themselves by the Attorney General’s office.
“My attorneys feared for my life. They saw a chance for me to escape life or death, and they overcame my will and talked me into pleading to something I didn’t want to do. The attorneys wrote my mother. She put pressure on me to plead guilty to both charges. Psychological pressure was brought to bear from my attorneys, Mr. Hombaker and Mr. Waters, and from relatives and my will was overcome. My attorneys kept reading from 188 Kan. 500 and telling me about life or death. At no time was I advised as to the consequences of my plea, what constituted a second degree kidnapping, and what the legal sentence was.”
Even if the petitioner had been advised that he could not be again tried for first degree kidnaping with harm to the victim, he was still facing life imprisonment from two other sources of the law.
He was subject to life imprisonment if convicted of kidnaping in the second degree without harm to the victim. On such conviction the penalty was not less than twenty years imprisonment. At the time petitioner was sentenced K. S. A. 21-109 was in effect, and provided:
“Whenever any offender is declared by law punishable, upon conviction, by confinement and hard labor for a term not less than any specified number of years, and no limit to the duration of such imprisonment or confinement is declared, the offender may be sentenced to imprisonment during his natural life, or for any number of years not less than such as are prescribed; . . (See, also, State v. Johnson, 185 Kan. 1, 3, 340 P. 2d 373.)
The petitioner had at least two prior convictions. The conviction of felonious assault, about which there was no question, would have carried life imprisonment under the habitual criminal act. (K. S. A. 21-107a.)
Petitioner had ample reason to plead guilty to second degree kidnaping and thus avoid life imprisonment which he was facing under any conviction.
We are forced to conclude that the petitioner did not meet the burden of proof and establish coercion in his plea of guilty by a preponderance of the evidence. (Mann v. State, 200 Kan. 422, 436 P. 2d 358.)
The judgment is reversed with instructions to the trial court to reinstate the conviction of the petitioner entered on the 12th day of September, 1961.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in an action to recover damages for injuries sustained from a fall in a supermarket.
Plaintiff and her companion, Mrs. Robert Maytum, left plaintiff’s home at about 9:00 p. m. on July 21, 1967, to go to defendant’s store. They entered at a door on the east side of the store and proceeded down the produce aisle. Plaintiff was pushing a grocery cart and looking for tomatoes. Mrs. Maytum was on plainitff’s left.. While proceeding along the produce aisle, plaintiff slipped and fell. The accident occurred between 9:10 and 9:15 p. m.
In addition to Mrs. Maytum, the accident was witnessed by Howard Doerfiinger, a customer. Mr. Doerflinger’s wife was with her husband but did not see the fall. Plaintiff testified that she slipped upon a lettuce leaf and possibly some pulpy substance which she thought was a grape. The Doerflingers testified that plaintiff slipped upon a lettuce leaf. Mrs. Maytum stated the fall was caused by plaintiff slipping upon a lettuce leaf and possibly a grape. There was a skid mark 12" — 18" long at the site of the fall.
Neither plaintiff, Mrs. Maytum nor the Doerflingers observed the foreign matter or the condition of the produce aisle prior to plaintiff’s fall. The observations of the foreign matter were made after the accident. The lettuce leaf was variously described as: “kind of like a dish, it wasn’t flat;” “real watery-looking;” “smashed where the skidmark was;” “laid out flat;” “not crisp;” “it had a skidmark through it;” “wilted;” “transparent, a light-kind of a light colored green;” ‘limp and mashed.”
There was testimony that, after plaintiff’s fall, the produce aisle was dirty and that there was other foreign matter present upon the floor.
The witnesses did not know how the foreign matter came to be present upon the floor, nor how long it had been there prior to the accident.
Defendant’s produce supervisor testified that on the day of the accident defendant had a regular maintenance program for the produce aisle which included instructing employees to maintain a lookout for foreign matter, picking up anything found on the floor and sweeping the aisle whenever it was dirty. He testified that the aisle was swept on the average of at least every 30 minutes during the day. He further testified that on the evening in question Mr. Bagley was responsible for the maintenance of the produce aisle until 9:00 p. m.
Bagley testified that on the day of the accident he arrived at defendant’s store at 4:00 p. m. He swept and mopped the produce aisle around 8:45 p. m. He passed over it at 9:00 p. m. as he was leaving and the aisle was clear and free of foreign material at that time. Bagley further testified that the remaining employees were instructed to watch the aisle after he left the store.
The appellant’s night mans “observance was that appellee had slipped on a cherry pit or a cherry.”
Trial was to a jury which returned a verdict in favor of plaintiff in the amount of $12,000.
The defendant has appealed.
The appellant presents its first contention as follows:
“1. There was no substantial competent evidence that:
“(a) The presence of the lettuce leaf or other matter was traceable to defendant.
“(b) Defendant had constructive notice of the presence of the lettuce leaf or other matter.
“(c) Defendant failed to exercise due care in the maintenance of its produce aisle or that such alleged failure was a proximate cause of the accident.”
The appellee presents her theory of the case in the following language:
“That the condition of the floor area in the place where plaintiff fell and the condition of the lettuce leaf upon which the plaintiff fell, and the absence of supervision and policing of the floor area was such to warrant the finding that the defendant had constructive notice of the presence of the lettuce leaf in question and thereby was liable to plaintiff for injuries covered by her fall on the said leaf.
“Constructive notice is notice imputed by law and is applicable in those instances where the plaintiff is unable to show that the defendant had actual notice of the unsafe condition. In the absence of proof of actual notice, the plaintiff may recover if there is evidence to show that the condition existed for such a period that in the exercise of reasonable care the defendant would have discovered the unsafe condition. . . .”
Appellee also presents a second theory. We quote:
“The plaintiff also relied upon the theory that the defendant was negligent in not maintaining proper cleaning and surveillance of the floor area, and thereby, by said act of omission, allowed a dangerous condition to arise which reasonably could have been foreseen by the defendant and which caused the plaintiff’s injury and consequently, constructive notice of the lettuce leaf was not required.”
We therefore have before us well defined issues.
This court has announced well established rules of law relating to the liability of a proprietor to a business invitee who slips on vegetable litter or debris and is injured from a fall on an interior floor of the proprietor’s premises. In the recent case of Smith v. Mr. D’s, Inc., 197 Kan. 83, 415 P. 2d 251, our previous decisions were compiled and the rules announced. We quote from page 85 of the opinion:
“. . . The defendant, as a proprietor, was under a duty to use ordinary care to keep in a reasonably safe condition those portions of its premises which could be expected to be used by invitees. The duty imposed on a proprietor is predicated on his superior knowledge over that of business invitees of any dangerous condition and his failure to give warning of the risk. However, a proprietor is not an insurer against all accidents which may befall invitees on the premises. (Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P. 2d 767; Little v. Butner, 186 Kan. 75, 348 P. 2d 1022.) The Little case has become a lodestar in this state on the subject of the liability of a proprietor to a business invitee who slips and falls on an interior floor of the proprietor’s premises. (Magness v. Sidmans Restaurants, Inc., supra; Marietta v. Springer, 193 Kan. 266, 392 P. 2d 858; Reel v. Kress & Co., 192 Kan. 525, 389 P. 2d 831; Muraski v. Inter-State Federal Savings & Loan Ass’n, 189 Kan. 338, 369 P. 2d 226.)
“In those cases involving injuries to customers which result from a dangerous condition not created by the proprietor but traceable to persons other than those for whom the proprietor is responsible, proof that the proprietor was negligent with respect to the floor condition requires a showing that he had actual notice thereof or that the condition existed for such a length of time that in the exercise of ordinary care he should have known of it. (Magness v. Sidmans Restaurants, Inc., supra; Relation v. F. W. Woolworth Co., 145 Kan. 884, 67 P. 2d 538.) Cases in this class are distinguished from those wherein the dangerous condition is one which is traceable to the proprietor’s own act, that is, a condition negligently created or maintained by him or under his authority, or one in which he is shown to have taken action. In such instance, proof of notice is unnecessary. (Marietta v. Springer, supra; Reel v. Kress & Co., supra; Little v. Butner, supra; Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P. 2d 820; Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571; Bury v. Woolworth Co., 129 Kan. 514, 283 Pac. 917.)”
We would add that when produce is displayed in a self-service market and handled by customers, the storekeeper must take reasonable protective measures for the benefit of customers who might slip on debris dropped on the floor by a customer or employee and fall.
In Magness v. Sidmans Restaurants, Inc., 195 Kan. 30, 402 P. 2d 767, at page 32, we stated:
“It is the duty of a proprietor in the control of his business to use due care to keep those portions of the premises where guests or customers may be expected to come and go, in a reasonable safe condition, and he is liable to those who without their own fault are injured by his failure to do so. The true ground for liability is his superior knowledge over that of business invitees of any dangerous condition and his failure to giving warning of the risk. However, he is not an insurer against all accidents which may befall them upon the premises. (Little v. Butner, 186 Kan. 75, 80, 348 P. 2d 1022, and cases cited.)”
Although the proprietor of a store is not an insurer of the safety of his customers, he is obliged to exercise ordinary care to keep the store in a reasonably safe condition so as not to cause injury to business invitees.
When greens are sold from open bins on a self-service basis, there is the likelihood that some will fall or be dropped to the floor and if the operator chooses to sell in this way, he must do what is reasonably necessary to protect the customer from the risk of injury that mode of operation is likely to generate.
The appellant stresses length of time the debris has been on the floor as proof of constructive notice on the part of the proprietor. Length of time is an elastic measure. A small store where customers are few would require little vigilance while a store with heavy traffic in the produce aisles might require almost constant attention.
Vigilance of a storekeeper in keeping his floor clean must be commensurate with the risk involved.
With the above rules in mind let us examine the evidence in more detail.
The appellant, Mrs. Maytum and Mr. and Mrs. Howard Doerflinger testified that the floor was dirty and littered with trampled cigarette butts and other debris. Mrs. Doerflinger testified that the floor was so dirty that it was difficult to tell the color. In Mr. Doerflinger s words, the floor “couldn’t have been swept 15 minutes till 9:00 and mopped and look like it did.” Further, the witnesses testified that the lettuce leaf upon which the plaintiff fell appeared “wilted,” “limp and mashed,” “as though it had been there for some length of time.” Defendant’s own employees acknowledged the danger of debris being deposited on the floor “continually” and that it required “constant” cleaning, yet the evidence clearly showed that Mr. Bagley was the only one in charge of the produce aisle that evening and that he left at 9:00 p. m., one hour before closing time. There was evidence that the floor was last viewed by an employee of the appellant’s at 8:45 p. m. The appellee fell between 9:10 and 9:15 p. m.
This court has recognized the rule that the condition of a lettuce leaf immediately after it was slipped upon was of probative value in determining the length of time it was on the floor of the store if the evidence tends to show the condition of the lettuce as it existed before being stepped on. (Smith v. Mr. D’s, Inc., supra, l. c. 89.)
We must conclude that there was sufficient evidence to go to the jury on the question of constructive notice and also on the question of whether the proprietor exercised due care in the maintenance of the produce aisle.
Although in the statement of facts we have referred to the testimony of appellant’s employees which tend somewhat to refute the testimony referred to above, it was the function of the jury to weigh the evidence and to pass on the credibility of the witnesses.
The appellant claims error in the admission of the opinion testimony of an expert on the question of produce aisle maintenance.
Jack L. Martin, produce supervisor for the Safeway Stores, Kansas City Division, who had been connected with the produce departments of Mammel’s Stores and Safeway Stores for many years, testified:
“Q. . . . In your opinion, based upon your experience in this field, and your knowledge, do you have an opinion as to what a reasonable man operating a store the size and volume about which you’ve testified would do to maintain the floor in a produce area?
“A. I think they should have a regular sweeping schedule where the store is swept, entire store, at regular intervals during the day and in the produce department, especially during the high traffic periods, it should be swept at more frequent intervals, and they should also have somebody that’s responsible for keeping the produce area in a good clean state.
“A. Well, really, I think your — your heavy traffic days like Fridays and Saturdays, your larger stores would run a thousand dollar produce business in one day. And especially on these days, they should have someone checking at least 15 to 20 minute intervals. Now, if the business is less, you got less traffic throughout the produce department, and possibly it wouldn’t be quite as necessary to make that close a check.”
The subject was such that the opinion of one with many years experience in the field might well be helpful to the jury. We think the testimony fell within the provisions of K. S. A. 60-456 (b) which reads:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
In Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567, we stated at page 790 of the opinion:
“The qualifications of an expert witness and the admissibility of his testimony are matters within the sound discretion of the trial judge. (Taylor v. Maxwell, 197 Kan. 509, 419 P. 2d 822.) There is no requirement that questions be hypothetical in form when an expert witness is presented the facts in some other acceptable manner. (K. S. A. 60-458; Gard, Kansas Code of Civil Procedure, § 458.) He may render an opinion based on facts or data within his personal knowledge or observation, or made known to him at the hearing. (K. S. A. 60-456 [£>]; Van Welden v. Ramsay’s, Inc., 199 Kan. 417, 430 P. 2d 298.) . . .”
A careful examination of the record discloses no reversible error.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Price, C. J.:
This is an action for damages for alleged breach of a written contract.
Plaintiffs (hereafter referred to in the singular) have appealed from an adverse judgment.
Plaintiff, the Batchelor’s Building Maintenance Service, Inc. (plaintiff Gerald W. Batchelor being the primary owner and operator), is a firm engaged in rendering professional janitorial services for office buildings in Wichita.
Defendant, the Douglas Avenue Corporation, Inc. (defendant Harry R. Pollack being the president and primary owner thereof), was the owner of the Union National Building in Wichita.
On January 28, 1966, the parties entered into a written contract whereby plaintiff was to perform janitorial services at the Union National Building for a stated fee — the amount of which is not here in dispute. And neither are we concerned with the quality of the work performed under the contract.
Only four paragraphs of the contract are material to this case, and they read:
“It is further mutually agreed that the effective date of this contract will be from 6 p. m., January 30, 1966, through 6 a. m. midnight December 31, 1966.
“It is further agreed that party of the second part warrant, promises, and guarantees to the party of the first part that should building be sold that party of the first part will be assured of the present existing contract for no less than one year with the new owners at the rate stipulated in this contract.
“It is further mutually agreed that this contract shall be automatically continued and renewed for each succeeding year if written notice of cancellation is not conveyed to party of the first part, by service of same upon Gerald W. Batchelor in person, and to party of the second part in person, thirty (30) days in advance of the 12 o’clock midnight on October 31, 1966.
“It is mutually agreed that this contract may be cancelled by thirty (30) day written notice, conveyed as provided herein by either party.”
The parties to the contract operated under it until January 3, 1968, on which date defendant Douglas transferred title to the building to the Metropolitan Life Insurance Company by warranty deed — such deed being in lieu of foreclosure. As of that date Metropolitan took over the property and placed Charles N. Black in charge as building manager.
On January 15,1968, Mr. Black wrote to plaintiff as follows:
“January 15, 1968
“Batchelor’s Building Maintenance Serv.
P. O. Box 1539
Wichita, Kansas 67201
Dear Mr. Batchelor:
Enclosed find our check No. 1 in the amount of $1303.91 as per your statement.
On further study into the matter on your contract, I have come to the conclusion that we will continue on with our own system all together. Accordingly, this letter will give you 30 days notice of our intention to discontinue your services as of February 15, 1968. In the meantime, I will appreciate your best efforts and any way I can cooperate with you please feel free to call on me.
Charles N. Black”
On August 21, 1968, plaintiff brought this action against defendants Douglas and Poliak — they being parties of the second part in the written contract of January 28, 1966. As material here, the petition alleged:
“Plaintiffs state that said Contract provided that defendants would guarantee and assure plaintiffs that if the Union National Building should be sold during the term of said Contract that defendants would guarantee that plaintiffs would have the present existing Contract for no less than one year with the new owners at the same rate as provided in said Contract. Plaintiffs allege that defendants, jointly and severally, breached said contractual provision without just cause or excuse.
“Plaintiffs allege that defendants’ breach has damaged plaintiffs, jointly or severally, in the amount of $28,356.00 and plaintiffs pray for judgment against defendants, jointly or severally, in said amount, plus court costs.”
On November 6, 1968, defendants filed a motion for summary judgment on the ground the petition did not state facts sufficient to constitute a cause of action against them. Attached to the motion were a copy of the contract in question, an affidavit of Mr. Black, and an affidavit of Ivan P. Salyer who was the authorized agent of Metropolitan and who had handled the transaction whereby title to the building had been transferred by Douglas to Metropolitan.
Black’s affidavit, as material here, stated:
“3. That as manager of said building I was aware of a maintenance contract between Batchelor’s Building Maintenance Service, Inc., and Douglas Avenue Corporation, Inc., which was in existence and did allow Batchelor’s Building Maintenance Service, Inc., to continue in the maintenance of the building up to January 15, 1968, at which time I did, in my capacity as manager and with full authority from the owner of the building, write a notice of cancellation of said contract in conformity with the 30 day cancellation provision in said contract, a copy of said letter being hereto attached.”
Salyer’s affidavit was a recital of the facts surrounding the issuance of the deed to the property from Douglas to Metropolitan.
On November 13, 1968, plaintiff filed an objection to the affidavit of Black on the ground it neither proved nor disproved any issue in the case. Plaintiff also filed a counter-affidavit of Gerald W. Batchelor, who, as stated, was the primary owner and operator of plaintiff company. His affidavit stated that prior to the execution of the written contract of January 28, 1966, he and defendant Poliak had several discussions as to its terms, and continued—
“The fixed fee for said services as reflected in the contract of January 28, 1966, was arrived at only because Mr. Poliak guaranteed that I would be retained for such services for a period of three years if my services were satisfactory. The projected costs on the cleaning and maintenance of the building indicated that I could not accept the contract fee as reflected in said contract unless my costs for initial cleaning, elevator service and required maintenance could be spread over a three-year period. The cost projection showed that I would lose money the first year, break even the second year and make my profit on the third year. It was only with the understanding that I would have that third year that I signed the contract.
“I further state that Mr. Poliak, during the preliminary discussions, informed me that he might sell the building prior to the expiration of the contemplated three-year period and, thus, is why I insisted upon the provision for a one-year contract with a new owner.”
On November 15, 1968, defendants’ motion for summary judgment came on for hearing — all parties being present by counsel. The journal entry of judgment reads:
“Thereupon, after listening to statements of counsel, reviewing the court file and considering the plaintiff’s brief, the court Finds:
(1) That the deed in lieu of foreclosure given by defendant to Metropolitan Life Insurance Company on January 3, 1968, was a ‘sale.’
(2) That the contract which is the subject of this action was cancelled by written notice to plaintiff by Charles N. Black, Building Manager for Metropolitan Life Insurance Company said notice given on January 15, 1968.
(3) That Harry B. Poliak is not a proper party in the action and was not an individual liable under the terms of the contract, which is the subject of this action.
(4) That the defendant’s motion should be sustained as to both defendants.”
Plaintiff has appealed. Its statement of points is that (1) the court erred in finding that the contract was cancelled by the written notice by Black on January 15, 1968; (2) the court erred in sustaining the motion for summary judgment as to defendant Douglas, and (3) the court erred in sustaining the motion for summary judgment as to Poliak, individually.
With respect to the third point concerning Poliak — the appeal has been abandoned — and so the only question presented is whether the contract was effectively cancelled by the written notice of January 15, 1968.
In passing, it should be noted that plaintiff does not contend there is any genuine issue as to any material fact remaining (K. S. A. 60-256), and neither is it contended that the deed in lieu of foreclosure was not a “sale” within the meaning of the contract.
We have difficulty in following plaintiff’s argument. In its brief it is stated:
“It seems to be unquestioned that Mr. Black could have ousted the appellants from performance of their duties in the Union National Building immediately upon the signing of the deed by defendant Douglas Avenue Corporation, Inc. What Mr. Black did was simply adopt the existing contract between the parties to this lawsuit until such time as he was ready to cancel same, which he then did by written notice dated January 15, 1968. (R-8) However, it is significant to note that the record does not show any written cancellation signed by Douglas Avenue Corporation, or by Harry Poliak, individually.”
We agree — but the concession supports the judgment rendered rather than plaintiffs position. Plaintiff also argues that the contract was to run for at least three years — but no where in that instrument is any such provision. The first paragraph quoted above, states the effective date to be from January 30, 1966 through “6 a. m. midnight” December 31, 1966. The next provision has to do with the rights of plantiff in the event of sale of the building. The third paragraph then provides the contract is to be automatically continued and renewed for each succeeding year if written notice of cancellation is not given to either party 30 days in advance of midnight, October 31, 1966. Then follows the provision relied on by defendants — and apparently the trial court — which clearly states that it is mutually agreed the contract may be cancelled by 30 days written notice, “conveyed as provided herein by either party”.
The provisions in question most certainly are not recommended as a model of clarity — in fact, they appear uncertain, inconsistent and ambiguous. But, as stated, plaintiff makes no contention there are unresolved facts, and, other than the counter-affidavit of Batchelor — offered no evidence in an attempt to clear up the matter.
In our opinion a reasonable and logical interpretation of the contract is that defendants’ grantee — Metropolitan—stepped into the shoes of defendants as of January 3, 1968 — the date of the sale of the property. At that time — and prior thereto — defendants could have cancelled the contract upon giving the required notice — thus cutting off plaintiff’s right to a three-year term — as it now contends for. When Metropolitan (and who is not a party to this action) took over it assumed the rights and liabilities under the contract. The last quoted paragraph of the contract clearly provided for cancellation by either party by the giving of 30 days written notice. The letter of Black dated January 15, 1968, gave such notice. No sound reason is advanced and no authority is cited why the trial court did not properly decide this case.
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
The question presented in this appeal is whether or not the Kansas turnpike authority is immune from liability for personal injuries resulting from the creation or maintenance of a nuisance.
The petition alleged plaintiff suffered personal injuries as a result of an accident on July 20, 1968, when the automobile in which he was a passenger came upon an area of the turnpike where defendant had caused to be deposited a layer of loose gravel, thus creating such a hazardous condition and trap for the unwary as to constitute a nuisance. The lower court sustained defendant’s motion to dismiss the petition on the basis it failed to state a claim upon which relief could be granted. Plaintiff has appealed.
The parties agree the lower court’s ruling was grounded solely on the immunity question, rather than on whether the facts alleged constituted a nuisance.
Since inception of the Kansas turnpike authority in 1953, we have consistently said the authority is an arm or agency of the state created by the legislature to perform an essential governmental function. (K. S. A. 68-2003; Miller v. Kansas Turnpike Authority, 193 Kan. 18, 392 P. 2d 89; Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, 331 P. 2d 323; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172; Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 305 P. 2d 849; State, ex rel. v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198.) As such, the authority enjoys the cloak of immunity from tort liability except to the extent expressly waived by statute.
At this juncture we should emphasize that the authorities generally agree a nuisance is also a tort, or at least involves conduct which is tortious because it falls into the usual catagories of tort liability. (66 C. J. S., Nuisances §§ 6, 8; Prossor on Torts [3rd Ed.], ch. 17; Harper on Torts, §§ 179, 180.) Therefore, discussion of the doctrine of governmental immunity as applied to torts is deemed appropriate.
At the time the authority was created, the Kansas turnpike act specifically waived immunity from suit for actions growing out of damage or destruction to private property in carrying out its powers granted by the act. (G. S. 1953 Supp. 68-2015; Anderson Cattle Co. v. Kansas Turnpike Authority, supra; Pennington v. Kansas Turnpike Authority, supra; Wilson v. Kansas Turnpike Authority, 181 Kan. 1025, 317 P. 2d 843.) Consequently, in Hosterman v. Kansas Turnpike Authority, supra, an adjacent landowner was denied the right to recover for injuries of a personal nature alleged to have resulted from defendant’s operation of a hot asphalt plant which processed paving material used in the construction of the turnpike. The thrust of our decision is expressed in the following language:
“. . . While, under G. S. 1955 Supp. 68-2004 (d), [the authority] is authorized to sue and to be sued in its own name, it does not follow, however, that the state has waived its immunity from tort liability, and its immunity is waived only to the extent of the special statutory right of action created by G. S. 1955 Supp. 68-2015, . . .” (Syl. ¶ 1.)
In 1957 the legislature saw fit to amend the statute and restrict the waiver of immunity granted by the 1955 legislature. (K. S. A. 1957 Supp. 68-2015.) Since that time the statute limits recovery for private property “damaged or destroyed in laying out and constructing said turnpike project.” (K. S. A. 68-2015.) In Miller v. Kansas Turnpike Authority, supra, the plaintiff, in one count of his petition, sought to recover for personal injuries and damage to his automobile, and in a second count predicated his right to recover on the theory of implied contract. We held that a demurrer should have been sustained to the entire petition because neither count came within the statutory cause of action. (G. S. 1957 Supp. 68-2015.)
While plaintiff acknowledges the impact of our prior cases, he urges the Kansas turnpike authority, as a state agency, is engaged in a proprietary function and comes within the ambit of our recent decision in Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21, wherein we abolished the judicially established doctrine of governmental immunity for torts when the state or any of its agencies are engaged in proprietary activities.
An extended discussion on what constitutes governmental or proprietary functions of an agency such as the Kansas turnpike authority would serve no useful purpose. Assuming, for the sake of argument, that plaintiffs contention is sound, we believe Carroll offers little solace to him as precedent. There, we specifically said that except for that particular case the effective date of the abolition of the rule of governmental immunity as applied to proprietary activities would be August 30, 1969. Thus, the new rule would not apply in this case since the injury complained of occurred more than a year earlier.
A more serious question is posed by plaintiff’s argument that his petition states a claim against the authority under the nuisance exception to the doctrine of immunity from tort liability granted a governmental instrumentality when performing a governmental function. Thus far in this jurisdiction the exception has been applied only to cities (Grover v. City of Manhattan, 198 Kan. 307, 424 P. 2d 256, and cases cited therein) and school boards (Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652; Neiman v. Common School District, 171 Kan. 237, 232 P. 2d 422), but the point has never been reached with respect to counties (see, Cherry v. Board of County Commissioners, 202 Kan. 121, 446 P. 2d 734; Caywood v. Board of County Commissioners, 200 Kan. 134, 434 P. 2d 780). Plaintiff suggests, however, no good reason exists why the exception should not now be extended and applied to state agencies, such as the Kansas turnpike authority.
We readily concede that in Carroll we swept with a broad broom and abolished discriminatory aspects of our existing law as between various governmental agencies by saying their responsibility should be equalized by the elimination of all immunity from negligence when the state or its agencies are engaged in a private or proprietary function. Premised on this same rationale, plaintiff argues the authority should be denied immunity under the nuisance exception just as in the case of a city or school board.
In practically every opinion on the subject of governmental immunity we have suggested to the legislature that the extent to which the doctrine is to be applied lies within its province. This court, through Carroll, issued an open invitation to the lawmakers to give consideration to the whole area of governmental immunity instead of satisfying themselves, as in the past, with a series of sporadic statutes operating in separate, isolated areas of activity. At the same time we unequivocally recognized the authority of the legislature to control the entire field of governmental immunity, including matters covered by judicial decision, and suggested that body was in a better position than this court to do so. The 1970 legislature promptly accepted the challenge and responded with the enactment of Senate Bill No. 465 (L. 1970, ch. 200). Pertinent portions of that law are as follows:
“Section 1. (a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas;
“Sec. 3. No money or funds shall be disbursed from the state treasury or any special fund of the state of Kansas in part or full satisfaction or payment of any claim or judgment based in whole or in part on an implied contract, negligence or any other tort unless:
“(a) Such claim accrued on or after August 30, 1969, and before the effective date of this act [March 26, 1970], or
“(b) such claim or judgment is based upon a specific statutory exception to the governmental immunity provided for in section 1 of this act, or
“(c) the payment of such claim or judgment has been specifically authorized by act of the legislature, or
“(d) such claim is based upon a judgment rendered prior to the effective date of this act.” (Emphasis added.)
By this enactment the legislature, in its wisdom, has expressed the public policy of this state in the field of governmental immunity pertaining to the state and its various agencies. The legislature in clear and unambiguous language has declared the Kansas turnpike authority immune from liability on implied contract or for negligence or any other tort, which would include nuisance, except as provided by statute. The law as it now stands remains in harmony with our earlier turnpike cases, namely, that the authority is immune from tort liability except to the extent such immunity is waived by statute. (K. S. A. 68-2015.)
Certainty and stability in the law are always desirable and in the long run best serve the bench, the bar and the citizens of the state. Now that the legislature has spoken in a comprehensive manner on the subject of immunity for the state and its agencies — something lacking at the time of Carroll — we believe sound judicial policy dictates that further inroads by this tribunal into the immunity doctrine as it relates to liability of the state is neither warranted nor justified. We therefore decline to engraft solely for plaintiff’s benefit the nuisance exception to the immunity previously accorded the Kansas turnpike authority under our law as it existed prior to Carroll.
We hold that the trial court properly sustained defendant’s motion to dismiss for the reason the authority was immune from liability for personal injuries resulting from the creation or maintenance of a nuisance as alleged in plaintiff’s petition.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
The question presented is whether, in the circumstances of this case, the district court erred in striking the defend ants’ pleadings and entering a default judgment in favor of the plaintiff as authorized by K. S. A. 60-237 (h) (2) (III), after the defendants failed to comply with a pretrial order entered pursuant to K. S. A. 60-234, for production and inspection of certain documents.
The issue comes to us in the context of the litigation below. On December 18, 1967, the plaintiff, a resident of the State of Texas, filed this action to recover judgment in the amount of $25,000 with interest, on a promissory note executed by the defendants at Corpus Christi, Texas, on September 29, 1965, with the exception of Elaine Russell Siler, and for the foreclosure of mortgages on two separate tracts of real estate in Wyandotte County executed by the defendants on the same day, securing payment of the promissory note. Copies of the promissory note, an extension agreement, and the mortgages were attached to the petition. Personal service of summons was had upon the principal defendants, Consolidated Investors, Inc., a corporation; James H. Russell and Harriett C. Russell. Elaine Russell Siler acquired title to the real estate on December 27, 1965, some three months after the promissory note and mortgages were executed, and service of summons by publication was duly had upon Mrs. Siler.
On February 6, 1968, original counsel for the defendants filed a general denial. The palintiff served written interrogatories upon original counsel on May 1, 1968, to be answered by James H. Russell and Harriet C. Russell. Following service of the interrogatories, and on May 21, 1968, original counsel obtained an order of the court permitting him to withdraw as counsel for the defendants. On June 4, 1968, present counsel filed their appearance as attorneys for the defendants. Counsel for the plaintiff directed a letter to counsel for the defendants calling their attention to the unanswered interrogatories. On August 2, 1968, the interrogatories, being unanswered, the plaintiff filed a motion for an order requiring the defendants to answer the interrogatories. Thereafter, and on August 29, 1968, the interrogatories were answered and filed with the court.
Contained in the defendants’ answers to interrogatories were verified statements indicating there were other transactions between the plaintiff and the defendants in the State of Texas, and that the promissory note sued on in this action was executed in compromise and settlement of other obligations, notes, mortgages and lawsuits; that the defendants did not have possession or control of the various documents referred to in such answers, but that they were in the possession of a third party — one Sterling Steves, the defendants’ former attorney, a member of the Bar of the State of Texas who practices law and resides in Fort Worth. A note was added to the interrogatories stating the defendants James H. Russell and Harnett C. Russell were willing to attach copies of the various documents referred to but they did not have control of such documents, and were, therefore, unable to attach the same to the written answers as exhibits.
On September 26, 1968, the plaintiff moved under K. S. A. 60-234 for an order requiring the defendants to make available for inspection and copying all the various documents relating to the transactions between the plaintiff and the defendants which led to the execution of the note and mortgages sued upon in this action. In support of his motion, the plaintiff alleged that by reason of the defendants’ answers to interrogatories they indicated the documents sought were not in their possession, “but in the possession of one Sterling Steves, formerly the attorney for said defendants” (emphasis added), in a lawsuit filed in Corpus Christi, Nueces County, Texas, wherein Williams, the plaintiff in this action, sued James H. Russell and Harriett C. Russell in May or June of 1965, to foreclose a vendor’s lien and deed of trust on property in Nueces County, Texas, and that all documents relating thereto were “purportedly in the possession of Sterling Steves, former counsel for the defendants.” It was further alleged the plaintiff may be confronted with defenses other than a general denial, namely, that the defendants “have been released as guarantors under said note by virtue of operation of law, and they executed the instruments under duress,” and it becomes “highly material to plaintiff’s cause of action that other instruments be produced by defendants” which are relevant “to show the chain of events and transactions between the plaintiff and defendants in order to move forward expeditiously to the trial of this action.” The documents requested to be produced and copied were enumerated in the motion.
On October 25, 1968, and over objection of the plaintiff, the district court sustained the defendants’ motion for permission to file an amended answer and counterclaim. The amended answer and counterclaim admitted execution of tire documents attached to the plaintiff’s petition, and affirmatively alleged economic duress and business compulsion, intentional fraudulent representations, failure of consideration, illegality, and release of defendants by operation of law. The prayer was that the defendants recover $25,000 actual damages and $75,000 punitive damages.
On the same date, October 25, 1968, the district court sustained the plaintiff’s motion for production, inspection, and copying of the documents. The order did not specify the time, place, or terms and conditions as are “just” for making the inspection and copying as directed by 60-234.
Thereafter, and on November 12, 1968, the plaintiff filed a motion to strike the defendants’ answer, the amended answer and counterclaim, and for default judgment. The motion alleged the defendants failed to produce the documents referred to in the plaintiff’s motion, and that their failure to produce the documents sought was an attempt to subvert the procedure of discovery, and denied the plaintiff’s substantial rights under the Code of Civil Procedure.
The defendants did not dispute the general relevancy of the documents sought but denied they controlled them. In opposition to the plaintiff’s motion for default judgment, and on December 4, 1968, defendants’ counsel filed an affidavit stating the defendants were unable to produce such documents although diligent effort had been made to do so, because the documents were in the possession, custody and control of a third person. Attached to the affidavit as an exhibit was a copy of defendants’ counsel’s letter to Mr. Sterling W. Steves, Attorney at Law, Fort Worth, Texas, requesting the documents involved in the Williams suit against the defendants in Nueces County, Texas, including the promissory note, mortgage or deed of trust, and any contracts involving those documents be forwarded to the defendants’ counsel in Kansas City. Also, attached was a letter from Sterling W. Steves acknowledging receipt of counsel’s letter requesting the relevant documents, in which Mr. Steves stated, "we have a hen on all items in our possession for payment of attorneys’ fees in regard to the subject matter,” and that his law firm would be glad “to release any and all papers in our file upon disposition of the lawsuit we have against Mr. Russell.” Further, that “[i]t seems anomalous to us that he should expect us to cooperate with him when he still owes us a fee.”
At the hearing on the plaintiff’s motion to strike the defendants’ pleadings and for default judgment, counsel for the defendants stated there was a true controversy over the issue whether the attorneys’ fees in Texas had been paid; that there was a lawsuit pending in Texas in connection therewith, and that the documents within the control of the Texas attorney were not within the possession, custody or control of the defendants as required by 60-234. The district court sustained the plaintiff’s motion to strike the defendants’ pleadings and for default judgment, and rendered judgment in favor of the plaintiff pursuant to the prayer of his petition.
Thereafter, the real property was duly sold by the sheriff of Wyandotte County, but by reason of conclusions hereafter announced, it is unnecessary to detail the circumstances of the sale, the confirmation thereof, and the points raised in connection therewith.
Section 60-234, in conjunction with K. S. A. 60-226 (&), provides that upon a motion “. . . showing good cause . . .” a court may order a party to produce for inspection nonprivileged documents relevant to the subject matter of pending litigation “. • . which are in his possession, custody, or control . . .” This court has not previously construed or applied the words “possession, custody, or control” as used in the statute, and since K. S. A. 60-234 is identical to Rule 34, and K. S. A. 60-237 is identical to Rule 37 of the Federal Rules of Civil Procedure, an examination of pertinent Federal decisions would seem appropriate, and will be relied upon as persuasive authority.
At the outset, we note there is no contention the plaintiff’s motion for production did not show “good cause,” or that the documents were not in existence. Rather, the contention is that the production order should not have been issued by the district court, or having been issued, should have been dismissed upon the evidence presented which showed the defendants did not have possession, custody, or control of the relevant documents. They argue that the decision as to what sanctions are to be applied in each case rests within the discretion of the district court, and that the entire record of the case is a relevant consideration to the court’s judgment, but for all pleadings of a party to be stricken and a default judgment entered against him, the record must disclose a flagrant and willful disregard to the procedural rules and the order of the court. A similar contention was made in Societe Internationale v. Rogers, 357 U. S. 197, 2 L. Ed. 2d 1255, 78 S. Ct. 1087, and it was decided that a party “refuses to obey” pursuant to Federal Law 37 (b) (2), by failing to comply with an order to produce. However, it was further decided that if the refusal was due to inability to produce and not due to willfulness, bad faith, or any fault of the petitioner in that action, the district court would have no right under Federal Rule 37 (Sec. 60-237) to dismiss the action, or as in the instant case, to strike the defendants pleadings and enter default judgment.
The penalties permitted by 60-237 (b) (2) are not to be imposed for the failure to comply with a production order in the absence of an ability to produce, where a party’s failure to produce is shown to be due to inability fostered neither by his own conduct nor by the attendant circumstances of the case. (Read v. Ulmer, 308 F. 2d 915.) While 60-237 (b) (2) applies to all failures to comply, either willful or not, the presence or lack of good faith in the parties is relevant to the orders which should be given and the severity of the sanctions imposed. (B. F. Goodrich Tire Company v. Lyster, 328 F. 2d 411, 415.) The sanction of judgment by default for failure to comply with a production order is the most severe sanction which the court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited. However, where a party has acted in willful and deliberate disregard of reasonable and necessary orders of the court and the efficient administration of justice, the application of a stringent sanction is fully justified and should not be disturbed. (Trans World Airlines, Inc. v. Hughes, 332 F. 2d 602.) See, also, Ronnau v. Caravan International Corporation, 205 Kan. 154, 468 P. 2d 118.
K. S. A. 60-234 is limited to documents in possession of a party to the action, and a court cannot order production of documents not in the possession, custody, or control of a party, and it is incumbent upon the moving party to show the documents are in the control of the adverse or nonmoving party. (United States v. Dempster Brothers, Inc., D. C. Tenn. [1962], 31 F. R. D. 207; Knight-Morley Corporation v. Electroline Mfg. Co., D. C. Ohio [1950], 10 F. R. D. 400; Hefter v. National Airlines, D. C. N. Y. [1952], 14 F. R. D. 78; Standard Inc. Co. of N. Y. v. Pittsburgh Elec. Insulation, D. C. Pa. [1961], 29 F. R. D. 185.) See, also, cases cited in 3 Federal Rules Digest, 2d Ed., § 34.34, pp. 179, 180.
Section 60-237 is to be construed with reasonable realism and a document turned over to counsel for a defendant should be regarded as in the defendant’s possession or under his control. (Bifferato v. States Marine Corp. of Delaware, D. C. N. Y. [1951], 11 F. R. D. 44; In re Ruppert, C. A. 6th [1962], 309 F. 2d 97.) The actual physical possession of the documents is not the criterion for a production order, but instead, the true test under the production rule is “control.” (2A Barron and Holtzoff, Federal Practice and Procedure, § 795, pp. 409, 410.) Since “control” rather than “custody” or “possession” is the basic test, if the party to whom the order is issued has the legal right to enforce a demand for the documents, the order is validly issued. In other words, documents to be within a party’s control must be so held that the party has a legal right to obtain the documents, and regardless of whether the documents are beyond the jurisdiction of the court. But when the party lacks the legal right to obtain the documents and to comply with an order to produce, courts have found no control. (Fisher v. United States Fidelity & Guaranty Company, 246 F. 2d 344; Reeves v. Pennsylvania R. Co. [1948], 80 F. Supp. 107; Valenstein v. Vayonne Bolt Corporation, 6 F. R. D. 363.)
The evidence presented in the court below showed the defendants did not have a legal right to enforce a demand for, or control of the documents. The plaintiff alleged the documents were in the possession of a former attorney for the defendants. The evidence disclosed the attorney was holding the same subject to an alleged attorney’s lien, which was the subject of a pending lawsuit against one of the defendants to enforce the same and recover the unpaid attorneys’ fees. The plaintiff contends, and the defendants concede, that documents which are in the possession of a party’s attorney are normally construed to be within the party’s control and therefore capable of being produced. (Bifferato v. States Marine Corp. of Delaware, supra.) We agree, however, the situation here presented differs for the reason the attorney-client relationship no longer existed between the defendants and Mr. Steves — in fact, the relationship at the time the default judgment was entered, was that of adverse parties in a lawsuit in Texas, thereby destroying any theoretical basis for attorney-client control.
The only apparent means the defendants had to gain possession or custody of the documents in order to produce them would have been to admit liability in the Texas action, thereby releasing the attorney’s lien upon the documents.
The record amply demonstrates a good faith attempt by the defendants sufficient to excuse them from the sanction of a default judgment. They stated several times in answers to interrogatories and in the note added at the end of the answers, they did not have possession of the documents, but were willing to produce the same if they were available and under their control. Moreover, the uncontroverted affidavit filed by counsel for the defendants prior to the hearing on the plaintiff’s motion for relief under 60-237 (b) (2) (III) was to the effect that the possession, custody, or control of the documents was not in the defendants, but instead was in a third party and held adversely to the desires of the defendants. See, Patrick v. Esso Standard Oil Company, 156 F. Supp. 336. Clearly, the district court of Wyandotte County had no authority to impose a sanction which would have the effect of adjudicating the validity of the attorney’s lien in Texas.
Under the circumstances, we conclude the defendants lacked the legal right to obtain the documents to comply with the production order. Their failure to comply did not approach a willful, deliberate or inexcusable refusal to produce, and they should not be punished as though their action was of such character.
The motion to produce should have been dismissed, and the plaintiff left to other methods of discovery under applicable statutes to secure the information and documents requested. See K. S. A. 60-226 and 60-245 (b); 2 Vernon’s Kansas Statutes Annotated [Fowks, Harvey, Thomas], § 60-234, p. 556, and Gard, Kansas Code of Civil Procedure Annotated, § 60-234, p. 174.
In view of conclusions announced, we hold the district court abused its discretion in striking the defendants’ pleadings and entering the default judgment. The case is remanded with directions to set aside the judgment entered in favor of the plaintiff, the sale of the property and its confirmation, and to proceed in accordance with the views expressed in this opinion.
It is so ordered.
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The opinion of the court was delivered by
Fatzeb, J.:
This is an appeal from a conviction of murder in the first degree. (K. S. A. 21-401.) The jury’s verdict fixed the appellant’s punishment at confinement and hard labor in the Kansas State Penitentiary for life.
On October 30, 1967, Beasley entered the premises of the Hudson and Odom Tire Company located in the Fairfax Industrial District in Kansas City, and in an attempt to perpetrate a robbery of that establishment, he shot to death George Felker, an employee.
Beasley was observed while on the premises and was subsequently identified by an employee who witnessed the shooting. As he ran from the premises and entered an automobile to escape, he was observed by two employees of a business adjacent to the tire company. Within an hour after the attempted robbery, the car driven by one of the co-defendants was stopped and its two occupants (not including Beasley) were taken into custody.
Beasley was next seen in the early morning of November 4, 1967, in a club at Des Moines, Iowa.' A police officer, after being informed that a man in a gray jacket had a pistol in his pocket, entered the club, observed that Beasley was intoxicated, and confronted him. The gun was taken from him and he was arrested on a charge of intoxication, and carrying a concealed weapon.
Beasley was advised of his rights, and was notified he was wanted by Kansas authorities. Later that day at 5:00 o’clock p. m., Beasley waived extradition in writing before a magistrate of a court of record in Des Moines, and agreed to return to Kansas City, Kansas, on the warrant issued for his arrest. At his request, the Des Moines police took him to the bus depot to pick up his luggage. A depot attendant removed the luggage from a locker, handed it to Beasley and he identified it as his. Beasley was then returned to Kansas by Wyandotte County police officials.
Beasley was represented by retained counsel at his preliminary hearing. On December 19, 1967, an information was filed charging him with killing Felker while in the perpetration of a robbery. On March £5, 1968, trial began, and on March 30, 1968, the jury returned a verdict of guilty. On appeal it is contended several errors occurred during the trial.
Beasley first argues the gun taken from him in Des Moines, Iowa, and which was identified as the murder weapon, was unlawfully seized and it was error to admit it into evidence at the trial.
The officer who arrested Beasley testified he was walking along the street when the owner of a club came across the street and told him there was a man in the club who had a gun in his coat pocket. The officer entered the club and was told by the bartender that Beasley was the man with the gun. Beasley was intoxicated and made two or three trips up and down the bar pushing and shoving people. The officer stopped Beasley near the rear of the bar, showed him his badge, and told him he wanted to see him outside. Beasley stuck his hand in his right coat pocket and the officer put his gun on him. At the same time, the officer grabbed the right coat pocket and took the gun out of the pocket. Beasley claims the officer had no warrant for his arrest and no probable cause existed to arrest him or search his person. The point is not well taken. The factual situation presents a legal arrest made in response to information from two private citizens that crime was being committed, that is, that Beasley was intoxicated and was carrying a concealed weapon in violation of the laws of the State of Iowa. It is clear the officer had probable cause to suspect Beasley of committing those crimes.
In State v. Little, 201 Kan. 94, 439 P. 2d 387, it was said:
“While it is true that an arrest otherwise unlawful is not made lawful by what the subsequent research discloses, a search without a warrant is, within limits, constitutionally permissible if incident to a lawful arrest. An arrest without a warrant to support an incidental search must be made with probable cause. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested, (citiation.)” (1. c. 96.)
Under the attendant circumstances, the arrest was lawful and the property seized incident to that arrest was restricted to the gun, and was reasonable under the Fourth Amendment to the Constitution of the United States and Section 15 of the Bill of Rights of the Constitution of Kansas. (State v. Bell, 205 Kan. 380, 469 P. 2d 448, and State v. Thomas, 205 Kan. 442, 469 P. 2d 279.)
Beasley next contends the district court erred in refusing to grant a continuance four days prior to the trial in order to permit his examination by a fourth psychiatrist.
On February 8, 1968, three medical doctors, two of whom were psychiatrists, were appointed as a commission to determine whether Beasley was able to comprehend the nature of the charges against him and to assist counsel in preparing his defense. (K. S. A. 62-1531.) The commission filed its report on February 13, 1968, finding Beasley able to comprehend his position and make his defense. Seven days later, he sought the continuance to permit his examination by the fourth psychiatrist. In response, the court stated:
“. . . I will cooperate with you in every way possible towards getting psychiatric testimony. Surely Dr. Satten must have some assistants up there at Menninger, and we can even arrange transportation to have Mr. Beasley taken up there, we will try to, although we would prefer that they come down here. The Court has already authorized the payment for same, but as far as putting off the trial, I just don’t think we ought to. This alleged crime took place some five months ago. The trial setting was given well in advance and I don’t think you have a case for putting off the trial, so I have to turn you down.”
The matter of a continuance in a criminal case is largely in the discretion of the district court. Unless the ruling prejudices the defendant’s substantial rights in tihe trial of his case it will not be disturbed. (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.)
During the trial, Beasley was examined by a Dr. McKnelly who gave him some drugs and obtained information from him, but Beasley did not want the doctor to testify. Counsel concurred in Beasley’s decision. The record shows that two capable trial lawyers were appointed to represent Beasley, and the case was specially set for trial on March 25, 1968. Appointed counsel vigorously represented Beasley at the trial and showed exceptional talent in protecting his rights at each and every step of the proceeding. No showing was made by Beasley that he was prejudiced by reason of denial of further examination, and under the circumstances shown in the record the district court did not abuse its discretion in overruling his motion which would have further delayed the trial.
It is next contended the district court erred in receiving evidence relating to the purchase of the murder weapon for the reason that the record of the sale was not entirely, but only partially, made by the witness who identified the record.
The gun was purchased October 19, 1967, from the Gardner Loan Company, a pawnshop in Minneapolis, Minnesota, owned and operated by a father and son. An ordinance of the city of Minneapolis requires that a vendor of a weapon which can be concealed shall make a record of the sale by describing the weapon, showing the make, model and caliber, a description of the purchaser and his name and residence, the time of day and the date of the purchase, the amount paid, and whether the purchaser was Negro or Caucasian, which report shall be signed by the individual who carried the weapon out of the store. The record is entitled “Report of Concealed Weapons Sold or Given Away,” and is submitted to the Minneapolis police department. Those records are kept in the regular course of business to record the details of each sale. The son testified he brought the record of the sale of the gun with him from his place of business and that he and his father worked together when the weapon was sold. He identified the record of sale and pointed out which entries he made and those made by his father. He made the entries stating the name and address of their place of business and the permit number issued to their company by the Minneapolis police department. His father recorded the description of the purchaser who signed the record with the name S. E. Beasley, recorded the date and time of sale, and the caliber, make, and serial number of the gun.
K. S. A. 60-460 (m) states the exception to the hearsay rule with respect to business records. The subsection pertains to business entries and the like, and provides that such records are admissible in evidence if the judge finds they were made in the regular course of a business at or about the time of the act, condition or event recorded, and that sources of information from which made the method and circumstances of their preparation were such as to indicate their trustworthiness. This subsection has been considered by this court in McElhaney v. Rouse, 197 Kan. 136, 143, 144, 415 P. 2d 241, State v. Foster, 198 Kan. 52, 422 P. 2d 964; State v. Taylor, 198 Kan. 290, 424 P. 2d 612, and In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527.
Before the district court admitted the record of the sale of the gun in the instant case, it was required to find the record was made in the regular course of the pawnbrokers business and at or near the time of the event recorded, and that the sources of information and the method and circumstances of its preparation were such as to indicate its trustworthiness. The notes of the Advisory Committee which drafted the Code of Civil Procedure state the policy of the subsection is to leave it up to the judge to determine whether the sources of information, method and time of preparation reflect trustworthiness. The evidence clearly supports the district court’s affirmative determination. There was evidence which infers the entries were made at the time Beasley purchased the gun. In addition to the record being a business entry, it was a record required by law. We are of the opinion the foundation facts were established by the relevant testimony of the son and that to make the record admissible in evidence it was unnecessary the father be called to authenticate the entries he made since they were fully identified by the son who was qualified by knowledge of the facts. (Gard, Kansas Code of Civil Procedure, Annotated, § 60-460 (m), p. 483.)
It is claimed the district court erred in admitting into evidence Beasley’s suitcase and its contents for the reason the suitcase was seized by an illegal search of his locker at the bus depot. The facts do not support the claim. As indicated, after Beasley was arrested in Des Moines, he requested he be taken to the bus depot to get his luggage. He was handed his suitcase by an attendant, and identified it as being his. He then carried it with him to Kansas City where it was placed in a locker in police custody. There is nothing to indicate Beasley’s locker in the bus depot was searched, hence, there is no basis for his complaint that his suitcase was taken by an illegal search — it was obtained at his request. No prejudicial error resulted to Beasley.
It is urged the district court erred in denying a change of venue for the reason that “the minds of the persons in the district in which the case was tried were prejudiced against the appellant and he could not and did not receive a fair trial.” The only source of prejudice relied upon was an account of the crime in a local newspaper. Beasley offered no other evidence in support of his claim that prejudice existed in the community to such an extent as to preclude a fair trial, nor did he show how the news article prejudiced the minds of the jurors. In denying the motion for a change of venue, the district court stated, “I have never seen a capital case with less publicity about it than this one,” and counsel agreed there had been “less publicity in this case.”
Before a change of venue to another county can be granted, it must affirmatively appear there exists such prejudice in the county in which the cause is pending as to be reasonably certain the defendant cannot receive a fair trial. The ruling of the district court on the question will not be disturbed, if supported by competent evidence, and there is no showing of prejudice to the substantial rights of the defendant. (Davis v. State, 204 Kan. 816, 820, 466 P. 2d 311; State v. Anderson, 202 Kan. 52, 446 P. 2d 844, and cases cited.) Beasley failed to sustain the burden of proof cast upon him to show prejudice in the community. The district court did not err in overruling his motion for a change of venue.
Beasley further argues the district court erred in refusing to grant a view of the scene of the crime by the jury. He requested the jury be allowed to view the premises to “get a clear picture in their minds” of the events that took place and the location of the buildings and points of observation of various witnesses. Objection was made to a view for the reason the area had changed since the time of the crime. Prior to this objection, the state sought to introduce photographs of the scene taken some four and a half months after the crime, but they were objected to by Beasley for the reason the area had changed. Since a view would not have enabled the jury to better understand the evidence and would almost certainly have been misleading, the district court did not err in denying Beasley’s request. (K. S. A. 62-1818.)
It is further claimed the district court erred in admitting color photographs of the decedent taken at the time of the autopsy be cause their only value was to inflame the minds of the jurors. Beasley’s main objection was that the pictures were in color. The photographs were introduced for the purpose of identifying the deceased and to portray the facts described by the coroner concerning the autopsy performed and to show the cause of death. We think the photographs were relevant and material, and no prejudicial error occurred. See State v. Turner, 193 Kan. 189, 392 P. 2d 863, and cases cited, where the point is fully discussed.
Beasley contends the district court erred in applying the provisions of K. S. A. 21-107a to double his life sentence. As indicated, the jury found Beasley guilty of murder in the first degree and determined he should be punished by life imprisonment. He argues the sentence is void for the reason that it is the duty of the jury, and of the jury alone, under the provisions of K. S. A. 21-403, to determine the penalty to be inflicted, and that the district court may not double the sentence under K. S. A. 21-107a. He argues the Legislature did not intend the Habitual Criminal Act should be applied in capital cases; further, that if the sentence is not held void, he is entitled at the very least to have the sentences imposed run concurrently.
It is difficult to understand the action of the district court in imposing the two life sentences on Beasley who obviously may serve only one life sentence in the penitentiary. However, the record indicates the district court was of the opinion it had no discretion in the matter, and was compelled to impose sentence under the Habitual Criminal Act.
Beasley has cited no cases from this jurisdiction, and we know of none, which prohibts the imposition of a sentence as was imposed in the instant case. K. S. A. 21-107a applies when a person is “convicted a second time of a felony.” It is conceded Beasley had a prior felony conviction. In State v. Ricks, 173 Kan. 660, 250 P. 2d 773 it was held:
“G. S. 1949, 21-107a is a law of general application and creates no exceptions with respect to any particular second or third felony previously committed.” (Syl. f 2.)
And in the opinion it was stated:
“The avowed purpose and salutary provisions of the habitual criminal law as a disciplinary measure for those whom previous conviction and punishment have failed to reform were stated early in State v. Woodman, supra, and need not be repeated here.” (1. c. 661.)
In Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, it was said:
. . Our habitual criminal act merely provides a more severe penalty for the commission of a felony by an habitual criminal than by one who is a first time offender . . .” (1. c. 700.)
Contrary to Reasley’s contention, the sentences are not to run concurrently. In fact, the sentence is to be doubled. In Elliott v. Evans, 162 Kan. 447,177 P. 2d 211, it was held:
“Following Childs v. Amrine, 155 Kan. 383, 125 P. 2d 349, it is held: ‘Under the provisions of the 1927 habitual criminal act (G. S. 1935, 21-107a) it was intended, in the event a second felony was committed, to double the punishment which would have been imposed if defendant had been a first offender. The sentence to be doubled is that sentence which ordinarily would have been imposed for the first commission of the second offense and not the sentence prescribed for the commission of the first felony for which the person was previously convicted.’ ” (Syl. f 1.)
We think Reasley’s contention cannot be sustained. It is well settled in this state that it is the nature of the offense, not the manner or duration of punishment, which determines the applicability of the Habitual Criminal Act. (State v. Shepley, 203 Kan. 635, 456 P. 2d 8.)
As indicated, the jury fixed Reasley’s punishment at life imprisonment. In sentencing him to confinement in the penitentiary, the district court simply doubled that sentence by imposing the Habitual Criminal Act.
Other points have been raised. We have carefully examined them and they are without merit. Finding no error in the record, the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
This is an action for personal injuries. A freight elevator broke and fell more than two floors to the bottom of the elevator shaft. The plaintiff and another employee of the lessee of the premises were using the elevator. The heels of plaintiff were fractured. Plaintiff sued the lessor (owner) of the premises.
This appeal is from a judgment for the defendant. Judgment was entered by the court notwithstanding a verdict for plaintiff.
Certain preliminary facts should be noted.
The offending elevator was located in a warehouse building owned by the defendant, Engineering Investment Company, Inc. The elevator and the building were leased to The Barnett Warehouse Company, Inc., under a written lease. The provision of that lease which is pertinent to the present controversy reads:
“5. Tenant agrees to keep the interior portion of the premises in good repair, ordinary wear and tear and damage caused by the elements or any casualty excepted, and to replace all glass broken during said term with glass of like kind and quality. Landlord, however, agrees to keep in repair the roof and external portions of said building and to make necessary repairs, not caused by neglect, carelessness or misuse by Tenant, to the permanent plumbing, lighting fixtures, dock facilities and elevator now in said building. All repairs or replacements made necessary by neglect, carelessness or misuse of the said building, fixtures and improvements therein, and docking facilities, shall be made by Tenant.”
Under this provision the lessee (tenant) agreed to repair the interior portions of the building. The lessor (owner) agreed to repair the roof and external portions of the building. The lessor was to make necessary repairs to the elevator unless caused by neglect, carelessness or misuse. The lessee was to make repairs to the elevator caused by neglect, carelessness or misuse.
No provision of the lease stipulated that the lessor (owner) should inspect the premises to ascertain the need for repairs. No provision of the lease reserved to the lessor (owner) any right of possession or control of the premises or portions thereof. The building and elevator were leased exclusively to the lessee. The elevator was not used by multiple tenants.
Just prior to the accident the plaintiff and another employee of the warehouse company (lessee) had loaded the elevator with bread trays. The elevator was operating and had reached the second floor. A bearing housing cover came loose and fell into the elevator shaft. The gears which controlled the operating cables disengaged because of the loosened housing cover. The elevator fell to the bottom of the shaft. The bearing cover secured the operating gears. These gears were on top of an I-beam which extended across the top of the elevator shaft, the headhouse. The cover was originally attached to the beam by four bolts. One of these bolts was found at the bottom of the elevator shaft after the accident. It was sheared off. The other three bolts were completely gone and have not been found. The elevator had been in operation since 1926 or 1927. The building was constructed at that time.
A foreman of the lessee (tenant) testified he made regular in spections of the elevator and headhouse about every two weeks. He greased the operating parts and tightened loose bolts. He used a ladder at the top of the headhouse to make his inspections but he did not check the bolts which secured the bearing cover. Some repairs have been made to the elevator cables and electrical wiring in past years.
The procedure which has been followed in discovering the need and in making repairs to the elevator is as follows: The foreman of lessee made bi-weekly inspections. If he noticed a loose bolt he tightened it. He greased the elevator. If repairs were needed the manager of the lessor was called. The manager would then come to the warehouse and inspect the parts needing repair or replacement. This was done in the company of an employee of the lessee. The manager would then call in a repair company after verifying the need. No repairs requested have ever been refused.
The manager of lessor made no inspections of the elevator without a request by the lessee. He was aware that this elevator had been in operation since 1926 or 1927. No request for repairs to the-elevator had been made for at least one year prior to the accident..
The basis for the judgment is set forth in the court’s findings as: follows:
“. . . [T]he landlord defendant had no notice of any defect in the elevator, either actual or constructive, and as a matter of law is not liable for the plaintiff’s injuries by virtue of the contract to make necessary repairs to said elevator.”
The plaintiff-appellant contends that the defendant (lessor) was under a duty to inspect and discover all dangerous defects. Plaintiff further states that this duty was imposed by the covenant to repair in the lease.
To support his contentions plaintiff cites Waterbury v. Riss & Company, 169 Kan. 271, 219 P. 2d 673, Williams v. Davis, 188 Kan. 385, 362 P. 2d 641, and similar cases from other states.
In Waterbury a truck driver was killed when the flooring in a warehouse buckled and gave way. Sometime prior to the accident the sagging floor was called to the attention of the lessor who was fully aware of the dangerous condition which existed. The lessor orally agreed at that time to repair this known dangerous condition of the floor but failed to do so.
In Williams a seven year old boy fell through a defective railing on the upper deck of a back porch. Before moving into the apart ment the boy’s parents had advised the lessor that the railing was inadequate and dangerous. The lessor agreed if the tenants would move into the premises he would make the necessary repairs but he failed to do so.
In those cases there were agreements by the lessors (owners) to repair specific defects or hazards. The dangerous conditions were known by the lessors. The possible consequences of failure to repair were evident and should have been appreciated by lessors. Their failure to make the repairs within a reasonable time created liability in tort.
Those cases are not controlling under the facts of the present case.
When a duty on a lessor arises from a general covenant to repair contained in a lease and no right of access or control of that portion of the premises is reserved, the lease defines the extent of the duty imposed. Unless such lease stipulates that lessor shall inspect the premises to ascertain the need for repairs, the covenant to make necessary repair's to the interior of the premises in the exclusive control of lessee subjects the lessor to no liability until the lessee has given him notice of the need for repairs and the lessor thereafter fails to exercise reasonable care and diligence in making the repairs.
The above rule has been recognized by this court. At page 388 of the opinion in Williams v. Davis, supra, this court quoted from the American Law Institute’s Restatement of the Law of Torts, § 357 as follows:
“. . . Since the duty arises out of the existence of the contract to repair, the contract defines the extent of the duty. Unless the contract stipulates that the lessor shall inspect the premises to ascertain the need of repairs, a contract to keep the interior in safe condition subjects the lessor to liability if, but only if, reasonable care is not exercised after the lessee has given him notice of the need of repairs.”
Other Kansas cases in this general area of the law are Brunsilius v. Farmers & Merchants State Bank, 143 Kan. 148, 150, 53 P. 2d 476; Hinthorn v. Benfer, 90 Kan. 731, 136 Pac. 247; Upham v. Head, 74 Kan. 17, 85 Pac. 1017; Mann v. Fuller, 63 Kan. 664, 66 Pac. 627 and Moore v. Parker, 63 Kan. 52, 64 Pac. 975.
The requirement in the rule that the lessee must have given the lessor notice of the need for repairs disposes of the argument that constructive knowledge should be imputed to the lessor because of the age of the elevator. Constructive notice is insufficient. The rule stated is discussed fully in an annotation in 78 A. L. R. 2d 1238. It has the approval of a growing number of jurisdictions.
Plaintiff cites some cases in which the lessors have reserved specific rights of access to the premises for the purpose of repair. Other cases are cited which relate to injuries occurring in a portion of a building reserved by the lessor for the use of the public or of multiple tenants. (See Trimble v. Spears, 182 Kan. 406, 320 P. 2d 1029.) Those cases are not controlling here.
In the present case the lease, which contained the covenant to make necessary repairs, did not reserve to the lessor specific rights of access for the purpose of inspection and repair. The elevator was not one reserved by the lessor for the use of the public or of multiple tenants. The lease did not stipulate the lessor was to inspect the premises to ascertain the need for repairs. The lessor had no notice of any defective condition. The lessor had not previously repaired the elevator in a faulty manner. Under the rule stated in this case constructive knowledge of a need for repairs will not be imputed to the lessor. Therefore no liability could be imposed upon the lessor (defendant) arising from this covenant to make necessary repairs.
What has been said disposes of all points raised except one. Plaintiff has indicated the evidence was sufficient to sustain the jury verdict under the doctrine of res ipsa loquitur.
The doctrine of res ipsa loquitur is a rule of evidence and means “the thing speaks for itself”. It does no more than obligate the defendant to go forward with evidence. (Rupe v. Smith, 181 Kan. 606, 313 P. 2d 293; Waddle v. Brodbeck, 176 Kan. 583, 272 P. 2d 1066.) Three elements are required for the doctrine to apply to a particular case: (1) The instrumentality or thing causing the injury must have been within the exclusive control of the defendant; (2) The occurrence must be of such kind or nature as ordinarily does not occur in the absence of someone’s negligence and (3) The occurrence must not have been due to the contributory negligence of the plaintiff. (Blue Stem Feed Yards v. Craft, 191 Kan. 605, 611, 383 P. 2d 540.)
The first of the three elements listed above is not present here. The elevator which caused plaintiff’s injuries was not within the exclusive control of the defendant (lessor). The doctrine does not apply in the present case.
The judgment for defendant is affirmed.
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The opinion of the court was delivered by
Harman, C.:
Appellant Dale Houston Kinnell was convicted and sentenced for the offenses of kidnaping in the first degree and forcible rape. Upon direct appeal those convictions were affirmed (State v. Kinnell, 197 Kan. 456, 419 P. 2d 870).
This appeal is from an order summarily overruling appellant’s third motion to vacate those sentences under K. S. A. 60-1507.
Appellant’s only ground for relief in this proceeding is the allegation he was initially arrested in Linn county, Kansas, by a state highway patrolman without a warrant and held for a period of five days, first in the Linn county jail and then in the Bourbon county jail, prior to the time an arrest warrant was issued and served upon him. Appellant has not previously raised the contention.
The motion might well be disposed of as an unwarranted successive motion in violation of subsection (c) of K. S. A. 60-1507 as implemented by Rule No. 121 (d) of this court (201 Kan. xxxm). However, treated upon its merits, the issue raised entitles appellant to no relief because he makes no showing of prejudice in any way to his substantial rights by reason of the alleged illegal arrest and detention.
An illegal arrest and detention do not, standing alone, invalidate a subsequent conviction (Baier v. State, 197 Kan. 602, 419 P. 2d 865; State v. Dobney, 199 Kan. 449, 429 P. 2d 928; Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; Moreland v. United States, 347 F. 2d 376 [10 CA, 1965]; Davis v. United States, 416 F. 2d 960 [10 CA, 1969]; United States ex rel. Ali v. Deegan, 298 F. Supp. 398 [SD, NY, 1969]).
The trial court ruled correctly and its judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Schroeder, J.:
The basic question presented by this appeal is whether an order reviving past due installment payments for the support and education of the minor children of a marriage under a divorce decree is valid. The order in question purported to revive not only unpaid installments which were dormant but also installments which had not yet become dormant.
The facts are not in dispute. In 1950 Z. Mae Riney (plaintiffappellee) obtained a divorce from her husband, Earl Riney (defendant-appellant) in the district court of Scott County, Kansas. The defendant was ordered to pay the plaintiff $80 per month child support which he paid to and including October, 1951. Since that date no payments whatever have been made.
On the 16th day of December, 1960, the plaintiff filed a motion seeking an order “reviving the judgments entered herein during the seven year period immediately preceding the filing of the motion.” Prior to that date no execution was ever issued on the unpaid child support installments. At the time the motion to revive was filed the defendant resided outside the state of Kansas and notice by publication was given informing him that the motion would be heard on the 9th day of February, 1961, or as soon thereafter as the same could be heard by the court. The defendant did not appear and the motion was subsequently heard by reason of a continuance on the 9th day of April, 1962, at which time an order was issued on the motion to revive, decreeing “that the judgments of the Plaintiff in the sum of $80.00 per month for the 7 year period immediately preceding this date be and they are hereby revived in favor of the Plaintiff and against the Defendant in the sum of $8,114.40 with interest on $6,720.00 from March 15, 1962.”
No attack is made upon the correctness of the foregoing computation.
On the 24th day of July, 1968, the plaintiff filed another motion to revive. In this motion the plaintiff sought revivor of the judgment dated April 9, 1962, and all $80 monthly installments payable thereafter to the time of filing the motion. The plaintiff alleged in her motion that the amount she was claiming was $17,766, of which $12,720 are past due installments, and the balance is interest. This motion was filed pursuant to K. S. A. 60-2404.
Subsequently, on October 1, 1968, this motion was amended by adding to it, in compliance with the new code (K. S. A. 60-2404), a'request that the court order immediate issuance of an execution. Notice of the filing of the amended motion was served personally on the defendant by the sheriff of the county in which he resided in the state of California.
The defendant answered and moved to set aside the 1962 order of revivor for the reasons:
“1. The motion for said revivor was served upon this defendant by publication notice; this defendant was at the time and still is a non-resident of the state of Kansas; this defendant had no knowledge of said publication notice, the same was never called to his attention and he has been unaware of the order of revivor until the same was discovered by his attorney on the 21st day of May, 1968, when he inspected the court file at the request of said defendant.
“2. The court had no jurisdiction to enter an order of revivor for the reason that the monthly judgments resulting from failure to pay the monthly installments due plaintiff for the seven (7) month (sic) period immediately preceding the entry of the order of revivor were not dormant but were in full force and effect.”
The trial court after hearing the matter held the order of revivor made on April 9, 1962, was valid and overruled the defendant’s motion. The plaintiff’s motion to revive the judgment, including that portion of the indebtedness which was determined on April 9, 1962, was granted, but the order of revivor did not include installments less than five years old. The order was made effective February 27, 1969, as of the date the trial court filed its memorandum opinion with the cleric.
The defendant has duly perfected an appeal.
No complaint is made by the appellee concerning the judge’s failure to include the installments due less than five years immediately preceding February 27, 1969, the date of the order. The appellee states these matters have been cured by filing a praecipe for execution.
The appellant contends it was error for the court to overrule his motion to set aside the revivor order of April 9, 1962, wherein the court attempted to revive all judgments during the seven-year period immediately preceding the date of the judgment. It is argued all monthly judgments resulting from the nonpayment of installments of child support which were less than five years old were in full force and subject to execution, and were not dormant judgments subject to revivor. (Citing G. S. 1949, 60-3405, effective at the date such order was entered.)
G. S. 1949, 60-3221 reads:
“If a judgment become dormant it may be revived in the same manner as is prescribed for reviving actions before judgment at any time within two years after it becomes dormant.”
It must be conceded a dormant judgment is one defined by statute. (G. S. 1949, 60-3405, here applicable, and now K. S. A. 60-2403; and see Butler v. Rumbeck, 143 Kan. 708, 56 P. 2d 80.)
In this jurisdiction installment payments decreed in a divorce action for the support and education of the minor children of a marriage become final judgments as of the dates due, may be enforced and collected as are other judgments, and are barred by the statute of limitations the same as other judgments, unless they become dormant and are revived in accordance with statutory authority. (Andrews v. Andrews, 171 Kan. 616, 237 P. 2d 418; Peters v. Weber, 175 Kan. 838, 267 P. 2d 481; and Brieger v. Brieger, 197 Kan. 756, 421 P. 2d 1; and cases cited in these authorities.)
The general ground for the revival of a judgment is that it has become dormant, as defined by statute, without being satisfied. Upon this premise the appellant contends the court had no jurisdiction to revive the monthly judgments covering the first five years of the seven-year period immediately preceding the order of revivor dated April 9, 1962, since all of such judgments were active and alive and subject to execution. He argues they were not dormant judgments.
While it may be conceded the monthly judgments covering the five-year period immediately preceding the order of April 9, 1962, were not dormant judgments, it does not follow that the trial court had no jurisdiction to enter the order it did.
Here the attack made upon the order of April 9, 1962, by the appellant is a collateral attack. The situation presented by the facts herein is analogous to the facts in Friesen v. Friesen, 196 Kan. 319, 410 P. 2d 429. There the court entered a judgment dated September 20, 1957, reviving all child support payments due under a divorce decree from September 1, 1950, to August 1, 1952, which had become dormant; but it went further and included in the total judgment which it entered in favor of the plaintiff all unpaid child support payments under the order of the court in the divorce action which were due and owing for the immediate preceding five years. No appeal was taken, no exceptions were issued or anything further done with respect to this judgment until a subsequent motion on October 2, 1963, was filed to revive the judgment of September 20, 1957. There, as here, the appellant contended in attacking such judgment that it was void to the extent that the court could not in this manner reduce a number of monthly judgments, not yet dormant, to a lump sum judgment. In the opinion the court said:
“A proceeding to enforce a judgment is collateral to the judgment, and when such proceeding is sought to be restrained on the ground of invalidity of the judgment, such effort is a collateral attack upon the judgment. Hence it is readily seen that appellant collaterally attacks so much of the judgment of September 20, 1957, against him as is in excess of the two years’ support money installments. Of course, a void judgment or order is a nullity and may be collaterally attacked at any time (In re Estate of Cornelison, 178 Kan. 607, 290 P. 2d 1016). Conversely, when a judgment has been entered in a case and has become final, it cannot be collaterally attacked in a subsequent proceeding unless it appears the judgment is void (McFadden v. McFadden, 187 Kan. 398, 357 P. 2d 751).
“We turn then to a consideration of the court’s action of September 20, 1957. The court had jurisdiction of both of the parties. Appellant was properly notified of that hearing and he appeared therein. We are not advised of the extent of his participation and the record is silent as to any objection made. The proceeding concerned support of the minor children of the parties. The court, having dissolved the marriage, had a duty to provide for the support of the children of that marriage (Laws 1953, Chap. 278, §1); this was a matter of continuing jurisdiction of the court (Grunder v. Grunder, 186 Kan. 766, 352 P. 2d 1067.) Appellant remained under a continuing parental obligation to provide support for his minor children, and at the particular time of the hearing we know of no reason why an independent action for support could not have been maintained against him had appellee chosen to do so (see Effland v. Effland, 171 Kan. 657, 237 P. 2d 380). We have no hesitation in saying the court had plenary power with respect to the support of the children of the parties who were before it, that is to say, it had jurisdiction of the subject matter of the action before it.
“The judgment in question actually did two things. First, it revived certain installments for a period of two years which had become dormant. Second, it computed the amount due at the particular time, giving credit for the time elapsing since the marriage of the eldest daughter. . . . The entire amount of the judgment complained of was a valid and subsisting judgment on September 20, 1957, and fully enforceable as such. The total amount due which appellant had failed to pay was computed. This was a determination of the rights of the parties and constituted a judgment (G. S. 1949, 60-3101) which has never been directly attacked. . . . The trial court acted in nowise in any manner forbidden by law, the order of September 20, 1957, resulted in no prejudice to appellant, who since the original decree has paid nothing for child support except under court compulsion, and under the facts and circumstances of this case we cannot say that the order was void.
“We are not called upon nor do we express any opinion as to the propriety of the order if under direct attack. . . .” (pp. 321, 322.)
In all material respects we think Friesen v. Friesen, supra, is identical with the situation here presented and controls our decision on this point. True, in Friesen the motion did not seek a revivor of unpaid child support payments for the five-year period immediately preceding the order which had not become dormant, but the judgment nevertheless decreed the total of such unpaid child support payments due and entered this sum in its total judgment. Here the judgment of April 9, 1962, did not have the force and effect of reviving the unpaid child support payments for the five-year period immediately preceding the order, because they were not dormant, but it did have the effect of including the total sum due for this period in its judgment, which did revive the unpaid child support judgments that had become dormant.
The fact the appellant here was a nonresident when the April 9, 1962, order was issued, the fact that he was served by publication notice, and the fact that he had actual notice only for the first time of the 1962 revivor motion and order on May 21, 1968, when his attorney inspected the files, is not a meritorious ground to set aside the 1962 revivor order, primarily because the support judgment was a judgment in personam and one concerning which the appellant was personally served, appeared and had actual knowledge. He was under a continuing obligation to support his children and apparently has failed to do so up to the present time. (Hartz v. Fitts, 89 Kan. 751, 132 Pac. 1187; and see 46 Am. Jur. 2d, Judgments, § 338, p. 526.)
As in Friesen this is a collateral attack upon the judgment of April 9, 1962, and the judgment was not void. The court had jurisdiction of both of the parties; the appellant was served by a publication notice; the proceeding concerned support of the minor children of the parties; and the court had previously dissolved the marriage and had a duty to provide for the support of the children of that marriage. This was a matter of continuing jurisdiction of the court. The appellant remained under a continuing parental obligation to provide support for his minor children.
As in Friesen the judgment in question actually did two things— it revived certain installments for a period of two years which had become dormant, and it computed the total amount due at the particular time the order was entered.
In cases of this nature it has been the consistent attitude of this court over a long period of years that where there is no special reason for strict formality of procedure the existence of irregularities therein does not render void the judicial process by which parties endeavor to- maintain their rights. (Korber v. Willis, 127 Kan. 587, 274 Pac. 239.)
It is apparent the trial court is under no obligation to* ascertain the total amount of past due installments under a divorce decree and render another judgment if such installments have not become dormant. (Haynes v. Haynes, 168 Kan. 219, 212 P. 2d 312; and Ortiz v. Ortiz, 180 Kan. 334, 304 P. 2d 490.) But this does not mean the trial judge cannot do so if he wishes, and having done so, unless there appears to- be a special reason to declare the court’s action void, it will not be declared void. (See Korber v. Willis, supra.)
The appellant also' maintains the entire order of revivor dated April 9, 1962, was void because no notice was given to him as provided by the statute. In this connection the appellant argues:
“, . . The notice which was published referred to entirely different judgments, from those mentioned in the order of revivor of April 9, 1962, namely monthly judgments of $80.00' each covering the 7 year period immediately preceding the filing of the motion for revivor. In other words no notice was ever given to appellant that appellee sought to revive all judgments for child support for the period of seven years immediately preceding the order of revivor.”
The case upon which the appellant relies for the proposition that revivor proceedings are statutory and must be strictly complied with, Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823, does not support the foregoing argument of the appellant. In Steinbach the court was concerned with the time within which a dormant judgment could be revived. In the opinion the court, speaking of G. S. 1901, § 4883, said:
“This language is peremptory. It imposes an absolute prohibition upon the granting of an order after the lapse of a year from the time when it first could have been made. The right, by the terms of its creation, can endure but a year. The time element is an essential constituent of the right. When the year has expired there is no longer any right, and the status of the case is then the same as if there were no revivor statute. Analogies from the statute of limitations are not pertinent. That statute imposes limitations upon remedies; the revivor statute conditions the right. (Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620; Reaves v. Long, 63 id. 700, 66 Pac. 1030.) A party seeking its benefit must bring himself strictly within its terms.” (p. 489.)
In this connection see, also, Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620.
On the facts in this case the order of revivor did not go beyond seven years immediately preceding the date of the order. The court had no authority to revive dormant child support judgments prior to that date and it did not do so. The slight variance in the notice pursuant to the motion and the order entered could not be said to have prejudiced the appellant’s rights.
The appellant next contends it was beyond the power of the court to revive the judgment of June 2, 1950, the original judgment in the divorce case.
It is argued such judgment was not a final judgment because it remained subject to modification and change by the court, and be cause the statute of limitations had barred all monthly judgments up to a period of seven years prior to1 the date of the revivor order of February 26,1969.
K. S. A. 60-2403 provides:
“If execution shall not be sued out within five (5) years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that has been or may hereafter be rendered, in any court of record in this state, or within five (5) years from the date of any order reviving such judgment, or if five (5) years have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. When a judgment shall become dormant as herein provided, and shall so remain for a period of two (2) years, it shall be the duty of the clerk of the court to release said judgment of record, and the clerk shall make an entry on the appearance and judgment dockets wherein the judgment appears of record, reciting, ‘this judgment including all court costs and fees therewith is barred under provisions of section 60-2403 and is hereby released of record.’ ” (Emphasis added.)
K. S. A. 60-2404, provides in part:
“A dormant judgment may be revived and have the same force and effect as if it had not become dormant if, within two (2) years of the date on which such judgment became dormant, the holder thereof files a motion for revivor and a request for the immediate issuance of an execution thereon if such motion is granted. . . .”
The authorities heretofore cited for the proposition that installments decreed in a divorce action for the support of a minor child become final judgments as of the dates due, establish that we are not here concerned with a revivor of the judgment entered by the original divorce decree of June 2, 1950. The installments decreed for the support of the minor children became final judgments as of the dates they became due. After they became due they were no longer subject to modification. (Brieger v. Brieger, supra.)
Under 60-2403, supra, the judgment of April 9, 1962, here in question, became dormant after the expiration of five years from its entry, no execution ever having been issued thereon, but seven years had not expired when the plaintiff filed his subsequent motion to revive.
The trial court after hearing the matter, wherein the appellant was personally represented, revived the dormant judgment of April 9, 1962, and all child support installments, which had become due and ripened into final judgments subsequent thereto, but specifically excluded all installments due less than five years old. The statute of limitations did not bar these revived judgments.
The problem encountered by the appellee under G. S. 1949, 60-3221 will not be encountered under K. S. A. 60-2404 because the new statute provides that the revivor can reach back to seven years preceding the filing of a motion for revivor and a request for the immediate issuance of an execution thereon if such motion is granted. Furthermore, the new statute provides that upon the entry of an order of revivor the execution shall issue forthwith.
Under K. S. A. 60-2403 and 60-2404 a party may, by the issuance of executions every five years, keep a judgment alive indefinitely. The judgment remains in force without execution for five years, and the plaintiff may revive it at any time within two years if it has become dormant thereafter, so that practically a plaintiff may neglect his judgment for seven years, lacking a day, and then revive and put it in force for five years more. (See Butler v. Rumbeck, supra.)
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Price, C. J.:
This appeal arises out of a garnishment proceeding and involves the determination of priorities between judgment creditors of defendant Shepek as to a sum of money in the hands of the clerk of a public sale of defendant’s property.
Defendant, Alvin Shepek, hereafter referred to as defendant, was indebted to the North Central Kansas Production Credit Association, hereafter referred to as Production. The indebtedness was secured by two security agreements [K. S. A. 1969 Supp. 84-9-105 (h)] dated July 20, 1967, and March 20, 1968, executed and perfected under the uniform commercial code, and which covered farm machinery, livestock, crops and other personal property. The security agreements provided that upon default Production could (1) enter upon the property of defendant to take possession of the property and sell the same at public or private sale on the premises or elsewhere; (2) foreclose the security interests by any available procedure and apply the proceeds to the payment of the debt; and (3) that if there remained any of the debt still owing, defendant would be liable for the deficiency.
Defendant became in default, and Production filed suit — setting up the security agreements, promissory notes, and the facts of default. Defendant failed to answer, and Production, after written notice, obtained a default judgment on August 19, 1968, in the amount of $43,334.02, including $5,000.00 punitive damages for the conversion of collateral. This judgment did not formally foreclose the security interests against defendant, but amounted to a general judgment lien on all of his property. A general execution was issued on September 16,1968.
Not wanting to force defendant out of the farming business unless absolutely necessary, Production cooperated with the levying officers and defendant in trying to arrange other financing to pay off the judgment. Because of this, actual levy of execution on defendant’s property was delayed. Refinancing efforts were in vain, however, and Production had no alternative than to apply the proceeds from a sale of the property to the judgment.
It was mutually agreed by all parties that the best price could be obtained at a public auction at which defendant himself would sell his property rather than at a sheriff’s sale under the levy of execution. It also was agreed the best place to hold the sale was on defendant’s farm. Accordingly, the sale was arranged for November 8, 1968. Production hired the auctioneers and also the Munden State Bank — hereafter referred to as the bank — to clerk the sale.
At 11:00 o’clock on the morning of the sale, Production and defendant entered into a written agreement providing for the sale and for the assignment of the sale proceeds to Production to be applied on its judgment against defendant. The agreement also contained directions to the bank, as clerk — and which also signed the agreement — for the collection and distribution of the proceeds — for the protection of the parties concerned.
The sale proceeded from 11:30 A. M. until approximately 5:00 o’clock in the afternoon.
In order to pick up the story of events we now go back several months. Between May 20 and June 16, 1968, Rural Gas, Inc.— plaintiff in this act, and hereafter referred to as Rural — sold machinery and other property to defendant Shepek in the amount of $822.16. No security interest was perfected in connection with those sales. Defendant defaulted in payment.
On the morning of November 8, 1968 — the day of the sale heretofore referred to — Rural brought suit against defendant to recover the amount in question — $822.16. An order of garnishment was issued to the bank as to any funds in its hands owed to defendant. The order of garnishment was received by the sheriff at 10:30 that morning and served on the bank at 2:00 o’clock that afternoon— while the sale was in progress — and subsequent to the execution by defendant of the written assignment of the sale proceeds to Production.
As stated — the sale proceeded to completion — and the total proceeds of it were $20,357.28. Also, as stated, Production’s judgment of August 19,1968, against defendant — was $43,334.02.
On November 15, 1968, the bank, as garnishee in Rural’s action against defendant Shepek — filed its answer stating that as of November 8, 1968, and continuing to the present — it had no funds in its hands or under its control owing to defendant, and that it was in no way liable as garnishee.
On November 22, 1968, Rural filed its reply to the bank’s answer, alleging that on November 8, 1968, and since, the bank had in its possession funds owed to defendant.
The general execution of September 16, 1968, was returned by the sheriff on November 20, 1968 — “No goods found — Unsatisfied.”
On December 30, 1968, Rural, Production, defendant, and the bank, entered into a written stipulation by the terms of which the bank was to deposit with the clerk of the district court the sum of $1,000.00 of the sale proceeds; the balance was to' be paid over to Production in accordance with the written assignment agreement of November 8, 1968; Rural waived its rights to all of the sale proceeds except the sum of $1,000.00 so deposited with the court; the bank, as garnishee, was released from all further liability and the garnishment was dissolved, and Production was allowed to intervene in Rural’s action against defendant so as to protect its rights in the $1,000.00 on deposit. Defendant elected to take no part in the proceedings.
On December 30, 1968, in the instant action, judgment was rendered for Rural against defendant in the amount of $848.86. The court also approved the stipulation among the parties and took under advisement the dispute between Rural and Production as to the disposition of the $1,000.00 on deposit.
On January 28, 1969, the court entered judgment that Production was entitled to the $1,000.00 in question.
Various motions to set aside the court’s findings and for a new trial — being overruled — Rural has appealed — and, in essence, contends that Production, by taking judgment on August 19, 1968, waived its lien on the property covered by the security agreements; that the written agreement to sell the property entered into by defendant and Production on November 8, 1968, was a “security agreement” and, as it was not filed according to law, therefore Rural’s garnishment order takes precedence over Production’s lien.
We believe there are at least two valid reasons why the judgment should be upheld.
If, as to the specific point in issue — it is considered that provisions of the uniform commercial code control — K. S. A. 84-9-501 provides that when a debtor is in default under a security agreement a secured party may reduce his claim to judgment, foreclose, or otherwise enforce the security interest by any available judicial procedure; that the parties may by agreement determine the standards by which the fulfillment of the rights and duties is to be measured if such standards are not manifestly unreasonable, and that when a secured party has reduced his claim to judgment the lien of any levy which may be made upon his collateral by virtue of any execution based upon the judgment shall relate back to the date of the perfection of the security interest in such collateral.
Here, Production’s security agreements were executed and perfected in July 1967 and March 1968, long prior to defendant’s indebtedness to Rural. Production obtained its judgment on August 19, 1968. A general execution on the judgment was issued on September 16, 1968. Rural’s order of garnishment was not served on the bank until after the written assignment agreement of November 8, 1968 was executed by defendant and Production.
Application of the provisions of the statute to the facts of this case is obvious, and the result reached by the trial court was correct.
Entirely aside from any provision of the uniform commercial code, it is clear that the assignment agreement of November 8, 1968, simply was an assignment by defendant to Production — his judgment creditor — of the proceeds of the sale. The parties had a perfect right to enter into such an arrangment. The bank was merely acting as clerk of the sale. At least up to the amount of Production’s judgment — defendant had no interest in the proceeds. The bank’s duty was to disburse those proceeds under the terms of the agreement. It had in its hands and under its control no funds owed to defendant. Funds in its hands — as clerk — were owed to Production — not defendant. It follows that the bank had no liability as garnishee, and the Rial court was correct in ruling that Production was entitled to the $1,000.00 paid into court under the stipulation of December 30, 1968.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
In this lawsuit, the plaintiff, M. P. Yeager, who owns an interest in an overriding oil and gas royalty, seeks an accounting from the defendant, National Cooperative Refinery Association, for a share of the oil produced from the Northeast Quarter of Section 5, Township 28 North, Range 1 East, Kay County, Oklahoma. These parties will be referred to hereafter either as plaintiff, or Mrs. Yeager, on the one hand and defendant, or N. C. R. A., on the other. N. C. R. A. has filed a third party petition against W. R. Yeager, the husband of M. P. Yeager, who, as third party defendant, will be referred to throughout the opinion as Yeager or Mr. Yeager.
The case was tried to the court which, after making findings of fact and conclusions of law, entered judgment in favor of Mrs. Yeager against N. C. R. A. ordering an accounting. Judgment was also entered in favor of Mr. Yeager and against N. C. R. A. on the latter’s third party petition. The appeal was thereupon undertaken by N. C. R. A.
The facts of the case are somewhat involved. In 1953, Mr. Yeager, an independent Wichita lease broker, discovered an unleased quarter section of land in Kay County, Oklahoma, which he thought was blessed with good oil prospects, since it lay adjacent to production. In checking into the ownership, Yeager found that parties by the name of Dilworth, sometimes referred to herein as the “Dilworth Group”, claimed an interest in the mineral rights through a common ancestor who had farmsteaded the quarter section, while other parties, known in this opinion as the Trenarys or the “Trenary Group”, also claimed title to the minerals, tracing their ownership through tax sale conveyances made to purchasers at tax foreclosure sales.
Mr. Yeager interested N. C. R. A. in obtaining an oil and gas lease on the property and a verbal understanding was reached that when Yeager had secured a valid lease, N. G. R. A. would take an assignment of the lease from Yeager, paying $500 therefor. The assignment was to be subject to the reservation by Yeager of an overriding royalty of lie of % of all oil and gas produced thereunder. N. C. R. A. also agreed to pay all abstracting expenses.
In an endeavor to obtain good title to the lease, Mr. Yeager contacted both the Dilworth and the Trenary groups and was continuing to negotiate with members of both groups when the defendant advised him that the Dilworths were not necessary parties to the lease and to cease his efforts to lease from them.
In October, 1954, a representative of N. C. R. A., accompanied by the company’s attorney, who had rendered a title opinion that title to the minerals was in the Trenary group, journeyed to Newkirk, Oklahoma, where they met with the Trenarys’ lawyers and accepted a lease executed by members of the Trenary group, alone. This action was taken unknown to Yeager. The lease which was secured, dated October 13, 1954, was taken in Mr. Yeager’s name and was brought back to Wichita where Mr. Yeager, on October 14, 1954, assigned the same to N. C. R. A., reserving Vie of % of all oil and gas produced thereunder. On the same date Mr. Yeager assigned a % interest in the overriding royalty interest to his wife, who is the plaintiff herein. The other M interest in the overriding royalty was assigned to Roy John Evans who is not a party to this lawsuit. Yeager took the lease and accompanying assignments to Newkirk, Oklahoma, where they were recorded on October 19, 1954. We shall hereafter refer to this lease as the Yeager lease.
Subsequently, N. C. R. A. assigned a one-half interest in the lease, subject to the overriding royalty, to Leo H. Fortier and Wayne W. Wright, who were designated as operators of the lease. Six producing oil wells have been drilled on the quarter section involved.
On June 2, 1955, the Dilworths, who were left standing in the cold when the Yeager lease was accepted, and were apparently aggrieved by such neglect, commenced proceedings in the state of Oklahoma challenging the validity of said lease and seeking for themselves a share of the action. In the Oklahoma proceedings, Fortier and Wright, N. C. R. A., Mr. and Mrs. Yeager and Mr. Evans were all joined as parties defendant.
The tortuous route of those legal proceedings over a ten-year span of time need not be traced in too minute detail. It is sufficient for the present to state that the District Court of Kay County, Oklahoma, in which the case was tried, held the Yeager lease to be valid, but on January 12, 1960, the Supreme Court of Oklahoma reversed that decision. In the opinion, reported as Dilworth v. Fortier, 354 P. 2d 1091 (Okla.), the supreme court determined that the Trenarys derived no title whatever to the minerals through the chain of title based on the tax deeds and that the trial court had erred in upholding the Yeager lease so far as it was based on title derived through such deeds.
We need not probe into the basis for this decision other than to say it was predicated on the proposition that the tax sale proceedings, and the tax deeds issued thereunder, conveyed no title to the minerals, for the reason that, under a 1913 lease, the mineral interests in the land had become severed from the fee for tax purposes, and that gross severance taxes were being paid on gas produced therefrom at the time the land was sold for unpaid ad valorem taxes. Neither are we called upon to appraise the rationale of the decision. We need only observe that we are bound thereby so far as the validity of the Yeager lease is concerned.
The Oklahoma decision of January 12, 1960, did not entirely terminate the litigation, however, for the case was remanded for a new trial “not inconsistent with the views expressed herein.” On remand, additional hearings were conducted by the Kay County District Court on April 17, 1961, and on June 27, 1961. In those hearings questions of title to the minerals were determined by the trial court, along with other matters. A second appeal was thereupon perfected to the Oklahoma Supreme Court which, on May 12, 1964, handed down a second opinion, Dilworth v. Fortier, 405 P. 2d 38 (Okla.).
Finally, on November 3, 1965, this protracted litigation was laid at rest by an order entered by the long suffering trial court dividing, by way of dollars and cents, the oil runs which had accumulated and had been impounded over the years. The division was made between the Dilworth and Trenary groups, a Rose group, a Frates group, (both of which entered the picture during the lawsuit), and the owners of the Yeager lease (N. C. R. A. and Fortier and Wright).
The present action for an accounting was commenced against N. C. R. A. July 20, 1966. As we have already noted, judgment was entered in favor both of Mrs. Yeager and her husband. In its decision, the trial court reserved questions relating to the accounting itself pending determination of the legal issues which are involved in this appeal.
On the present appeal, the defendant, N. C. R. A., advances these arguments: (1) That plaintiff’s claim is barred by the statute of limitations; (2) that plaintiff’s claim is barred under the doctrine of res judicata; (3) that the defendant was not estopped to deny the validity of the Trenary lease; (4) that defendant was entitled to rely on the warranty of title contained in Yeager’s assignment of the lease; and (5) that defendant’s motion for a continuance should have been granted.
We shall first take up the defendant’s contention that the plaintiff’s claim is barred by the statute of limitations. The argument in this regard is two-fold: First, that the two-year statute of limitations defined in K. S. A. 1969 Supp. 60-513, (formerly G. S. 1949, 60-306, Third) is applicable to the plaintiff’s cause of action and second, that plaintiff’s cause of action accrued when the Yeager lease was determined to be invalid by the Oklahoma Supreme Court on January 12, 1960.
The plaintiff takes a contrary and partially inconsistent view: (1) She first admits, in her brief, that the two-year statute is applicable, but ends up arguing that the doctrine of laches, only, applies, and (2) she maintains that her cause of action did not accrue until the Oklahoma trial court entered a final order of judgment on November 3, 1965, after the case had been remanded a second time. Thus the issues are framed with respect to the statute of limitations.
We infer from the briefs which are presented in this case that Mrs. Yeager predicates her right to recover on the doctrine of equitable estoppel. There is considerable disputation between the parties relating to the concept which underpins that doctrine, and the quality of the conduct needed to invoke it. In our view, much of the debate over whether fraud is required as a basis for equitable estoppel and, if so, whether the fraud need be actual or constructive, only, is of little moment, so far as the statute of limitations question is here concerned. If the cornerstone of Mrs. Yeager’s asserted cause of action be fraud, the two-year limitation set out in K. S. A. 1969 Supp. 60-513 (3) would apply. The end result would be the same should her action be one defined in 60-513 (4), which covers by its terms “an action for injury to the rights of another, not arising on contract and not herein enumerated.”
In her petition Mrs. Yeager does not designate the nature of her cause of action — she simply asks for an accounting of her share of the oil produced from the land covered by the Yeager lease. That lease, except as to 15 acres in the southwest corner concerning which more will be said later, had been declared void by the Oklahoma Supreme Court and was, accordingly, terminated. Except as to the 15 acres, the lease could no longer form a basis for the recovery of royalty payments due thereunder. (3 Summers, Oil & Gas, Permanent Edition, § 554, p. 654.) Her ground of recovery, if any, must stem from a different source.
If plaintiff’s cause of action does not arise out of fraud, it must surely be said to sound in tortious conduct, that is, the gravamen of her action must then lie in the defendants wrongful interference with Mr. Yeager’s legitimate efforts to obtain a valid lease from the requisite lessors. In 52 Am. Jur., Torts, § 26, p. 379, we find this rule stated:
“Where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of the duty is a tort. . . .”
As we have previously observed, the plaintiff suggests, after first conceding the two-year statute of limitations applies, that in a purely equitable action for an accounting, where there is no corresponding legal right or remedy, the statute of limitations does not apply at all; that the doctrine of laches, alone, will defeat the cause of action. We find no great fault with these assertions as abstract statements of law, but believe they have no application here.
In our view of the circumstances attending the instant case, Mrs. Yeager did have a corresponding legal remedy; she might have sued to recover damages for N. C. R. A’s alleged interference with her assignor’s efforts to obtain a valid lease. The rule set forth in 30 A C. J. S., Equity, § 131, p. 90, is pertinent:
“Where there is a corresponding legal right or remedy, [as we believe there is here] although equity may have exclusive jurisdiction over the enforcement of the right, courts of equity ordinarily will apply the statute of limitations by analogy . . .”
This rule has become established in the jurisprudence of this state. In Rex v. Warner, 183 Kan. 763, 332 P. 572, the subject was considered in some depth, and, on page 769, we said:
“No doctrine of equity jurisprudence is better settled than the rule that in the absence of the existence of a statute of limitations, the time in which a party will be barred from relief in a court of equity must necessarily depend to a certain extent upon the facts of each case as they may arise; but, when the statute has fixed the period of limitations under which the claim, if interposed in a court of law, would be barred, courts of equity by analogy follow the limitations provided by law. (Bell v. Bank of Whitewater, 146 Kan. 901, 906, 73 P. 2d 1059; 34 Am. lur. Limitation of Actions, § 59, p. 55; 53 C. J. S., Limitations of Actions, § 36, p. 987; 30 C. J. S., Equity, § 131, pp 560, 561; 1 Wood on limitations [4th Ed.], 272, 277; Kelly, Code, Statute of Limitations, §49, p. 54.) . . .”
Neither is the accounting sought by Mrs. Yeager one based upon a mutual running account, that is, one which would remain open until the convenience or agreement of the parties might determine otherwise. Here the items of asserted indebtedness are all on one side; the account does not have the character of an open running account so far as the statute of limitations is concerned. (Spencer v. Sowers, 118 Kan. 259, 234 Pac. 972.)
We are forced to conclude that the doctrine of laches has no relevance to the facts in this case, but that the two-year statute of limitations applies. Mrs. Yeager must have commenced this lawsuit within two years from the time her asserted cause of action accrued.
At what point in time did the plaintiff’s cause of action accrue? There is sharp disagreement between the parties on this point.
Mrs. Yeager contends her cause of action did not accrue until November 3, 1965, when the Kay County District Court split the money, dividing the thousands of dollars on hand among the Dilworths, the Roses, the Trenarys, and the Frates, with the remainder going to the lessees, largely in recoupment of their development and production costs. The present proceeding, being filed July 20, 1966, was commenced well within two years of that date. On the other hand, N. C. R. A. argues that the cause of action arose when the Oklahoma Supreme Court determined that the Yeager lease was invalid insofar as it covered areas where the Trenarys’ title to the minerals was derived only through tax deeds. The date of that decision is shown as January 12, 1960.
There is much to be said for the latter point of view. The basic issue litigated in the first appeal was whether the Yeager lease, executed by the Trenary group, was valid. This issue, in turn, depended on whether the Trenary group had title to the minerals at the time the lease was executed. The 1960 supreme court decision determined that question by holding that the tax deeds, through which the Trenarys claimed title to the minerals, conveyed no title at all to the minerals (except, as it turned out, to a one-half interest in the southwest 15 acres).
It was at this point in time that Mrs. Yeager should first have known that the Yeager lease was, for the most part, invalid. If her royalty interests had been injuriously affected by the defendant’s interference with Mr. Yeager’s endeavors to obtain a good and valid lease, as she here contends was the case, she should have been aware when the 1960 decision came down of her right to institute an action such as this against N. C. R. A. In a letter addressed to N. C. R. A. in 1957, Mrs. Yeagers current counsel warned that should the Oklahoma lawsuit he decided adverse to N. C. R. A.’s position and if Mrs. Yeager’s royalty interest was not preserved, she would be grievously injured by the company’s interference with Yeager’s efforts to obtain a lease from the Dilworths.
But even though it be argued that the plaintiff could not tell with certainty what part of the Yeager lease was valid, and what part was void, until a judicial determination was entered with respect to ownership of the minerals, that issue was resolved by the district court of Kay County not later than July 20, 1961, at which time a journal entry was signed and filed reflecting the following entry of judgment respecting title to the various mineral interests: Minerals under the East half of the quarter section covered by the lease were held to be owned by the Frates interest; those under the North 65 acres of the West half were determined to be titled in the Rose and Frates groups; and those in the Southwest 15 acres were decreed to be owned by the Rose and Trenary interests jointly — half and half.
Although an appeal was taken from the judgment of the trial court entered July 20, 1961, no challenge appears to have been directed against the court’s determination of the mineral ownerships, as the same are detailed above. While we do not have before us either the notice of appeal or the specification of errors, the opinion of the supreme court clearly discloses that titles to the several mineral interests were not placed in issue on the second appeal, nor were any changes in ownership effected by the appeal.
Judging from the language of the opinion, the issues in the second appeal were (1) the lessees’ right to recover development and production costs; (2) the lessors’ (Trenarys’) right to the landowner’s Is royalty and (3) the propriety of appointing a receiver. These were the areas covered by the appeal. In our opinion they were severable and distinct from that part of the judgment which adjudicated title to the minerals. Being separate parts of the judgment, an appeal might be taken from them without including that part of the judgment relating to ownership of the minerals and the validity of the lease itself. The question of appealability is discussed in 4 Am. Jur. 2d, Appeal and Error, § 49, where it is said on pp. 571, 572:
“Statutes in some jurisdictions authorize an appeal from a part only of a judgment, abrogating the common-law rule that a writ of error had the effect of bringing up before the reviewing court, for the examination of errors of law, the entire record, so that it would not lie to review a part only of a judgment. Even in the absence of such specific statutory authorization the same result has been expressly or impliedly reached, and an appeal may be taken from part only of the decision appealed from. For such an appeal from a part of a decision to lie, that part must be severable from the remainder of the decision.
While we find no authority from this jurisdiction bearing directly on the point, our judgment is that Mrs. Yeager’s claim against N. C. R. A. was ripe for filing at least as early as July 20, 1961. Such was the date on which the Kay County District Court rendered its decision, unchallenged by appeal, which determined title to the oil and gas interests. From and after that date we believe she might have maintained an action against N. C. R. A. not only for the alleged wrongful conduct of N. C. R. A. in interfering with Mr. Yeager’s efforts to obtain a valid lease, but also for the overriding royalties which were due her under the lease on the 15 acres. In Rex v. Warner, supra, this court stated:
“. . . Generally speaking, a cause or right of action accrues, so as to start the running of the statute of limitations, as soon as the right to institute and maintain a suit arises or when there is a demand capable of present enforcement. (54 C. J. S., Limitations of Actions, §109, pp. 11, 12.) Stated differently, an obligation must exist upon one party in favor of the other, the performance of which is refused. The true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result. (Howard v. Ritchie, 9 Kan. 102; McBride v. Mortgage Co., 44 Kan. 351, 24 Pac. 428; Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051; Bruner v. Matin, 76 Kan. 862, 865, 868, 93 Pac. 165; 3 Hatcher’s Kansas Digest [Rev. ed.], Limitation of Actions, §21.) . . .” (pp. 769, 700.)
We are aware of the authorities cited by Mrs. Yeager in support of her claim that the statute was tolled pending final settlement of the Oklahoma litigation. Examination of the authorities presented will disclose circumstances which distinguish them from the present action. The issue in the Oklahoma litigation was primarily concerned with the validity of the Yeager lease. Once that issue was determined adversely to the interest of both N. C. R. A. and Mrs. Yeager, no reason appears why she was compelled to await further decision of peripheral issues before taking leave of N. C. R. A. and pursuing whatever remedy she may have had against it for injury to her interests.
Nor have we been cited to any authority which might justify us in saying that the plaintiff would be unable to litigate her claim for the share of the overriding royalty payments due her from the southwest 15 acres, until after the receivership was terminated. So far as the record reveals, she had made no claim to any of the funds in the receiver s hands; she sought no share of the cake which was cut on November 3, 1965; and no division of funds as between N. C. R. A. and Mrs. Yeager was attempted or accomplished by the Oklahoma court at that time.
Moreover, there is actually no dispute now between N. C. R. A. and Mrs. Yeager as to her rights under her overriding royalty interest in the 15 acres; N. C. R. A. has seen fit to tender amount due on that account. The real issue in this case revolves around whether the plaintiff is also entitled to the royalty payments she would have received had the Yeager lease been valid in its entirety.
Finally we note the argument that in the Oklahoma litigation N. C. R. A. and Mr. and Mrs. Yeager were all represented by the same counsel. It is obvious however, that Mrs. Yeager had personal counsel as well during that period. This is seen from the communication addressed to N. C. R. A., on her behalf, in 1957. We think that the common representation of Mrs. Yeager and N. C. R. A. during the period when the validity of the lease was still in controversy would constitute no impediment to Mrs. Yeager later disassociating herself and seeking the services of her personal counsel, once her position had become antagonistic to that of N. C. R. A.
We are forced to conclude that plaintiff’s recovery is barred by the statute of limitations. Accordingly we find it unnecessary to consider other points of error raised by the defendant.
The judgment of the court below is reversed with directions to enter judgment in favor of the defendant.
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The opinion of the court was delivered by
Fromme, J.:
Ten years ago the parties to this appeal were divorced. At that time custody of their children was awarded to the mother. The father was ordered to pay $100 per month for the support of five children. This amounted to $20 per month per child.
On September 18, 1969, the mother (plaintiff-appellant) filed a motion asking the district court to increase the amount of support to be paid by the father (defendant-appellee). This appeal is by the mother from the trial court’s ruling on that motion which in pertinent part reads:
“That the defendant should pay to the Plaintiff as and for child support for the minor children $100.00 per month, and this amount shall not diminish upon the emancipation of any one child, but shall remain in force and effect until the last child attains majority or is emancipated. In addition, the defendant is ordered to pay the room, board and tuition, including books, supplies and fees, for any child who desires a college education, even though that child may have first reached the age of majority or was emancipated.”
At the time the above order was made the mother was caring for four of the defendant’s minor children. The eldest daughter, Ellen Louise, had married. We are informed the daughter, Marilyn Lucille, has married during the pendency of this appeal. This leaves three of the defendant’s minor children in the care and custody of their mother.
No question has been raised in this appeal concerning that portion of the order which purports to extend the defendant’s duty to pay for college expenses beyond a child’s age of majority. See Allison v. Allison, 188 Kan. 593, 602, 363 P. 2d 795 and Herzmark v. Herzmark, 199 Kan. 48, 56, 427 P. 2d 465, where it was held the responsible parent cannot be required to continue such payments beyond the age of a child’s majority.
The appellant attacks the trial court’s order on two grounds. First, the trial court abused its discretion in allowing the sum of only $100 per month for the support of four minor children and second, the trial court abused its discretion in not allowing an attorney fee for appellant’s counsel.
A district court has continuing jurisdiction to change or modify an order made in a divorce action concerning the custody and support of minor children when the facts and circumstances make modification proper. Such matters rest in the sound judicial discretion of the trial court. (Goetz v. Goetz, 184 Kan. 174, 334 P. 2d 835; Herzmark v. Herzmark, supra; K. S. A. 1969 Supp. 60-1610 [a].) On appellate review the order of a trial court determining the amount of child support should not be disturbed absent a showing of manifest abuse of discretion. (Brooker v. Brooker, 199 Kan. 783, 433 P. 2d 363.)
When the controlling evidence in a case is entirely in writing, as in the present case, the evidence provides the trial court with no peculiar opportunity to evaluate the credibility of witnesses. Under such circumstances this court is in as favorable a position as the trial court in deciding what the facts admitted in evidence establish. (Koch, Administratrix v. Prudential Ins. Co., 202 Kan. 229, 447 P. 2d 825.) In determining what facts were established in this case we do so to determine if there appears a manifest abuse of discretion by the trial court, not to substitute our judgment for that of the trial court. When an abuse of discretion is manifest under the facts established by the evidence and the law applicable thereto the trial court’s order should be set aside.
We will narrate the facts contained in the record before us.
The parties were married in 1949 and the father thereafter attended college and law school. In 1960, when the divorce was granted and child support ordered, the father was beginning to establish a law practice. His earnings were not substantial. The mother was then receiving a substatial income, approximately $800 to $900 per month, from funds or property which originated from her family. Most of the property owned by the parties at the time of the divorce was awarded to the mother. The source of that property is not clearly shown in the record. At the time the district court entered its original award for child support the parties had five children, ranging in ages from nine to three years. The cost of supporting children in this age group is not great in comparison to the cost in the later years of minority.
During the ten years which followed the father continued making these payments.
Certain changes have occurred during this period. At the time of the court’s ruling on the motion there were four minor children in the custody of their mother. The ages of these four children ranged from seventeen to thirteen years of age. The father has established a substantial law practice during this period of time. The year before the motion was heard his net income from the practice of law was $40,928 before taxes. After payment of taxes his available income in that year was $22,265. The record indicates that he has substantially exceeded this amount of income in at least one prior year.
After the divorce was granted the mother remarried and now has three children by her second husband. Her second husband has sufficient financial means to provide for the comforts of life of the entire family including the defendant’s children. However, the mother’s separate income has decreased to $3,600 per year. In her affidavit the mother listed the children’s monthly expenses for food, school expenses, school lunches, medical expenses, clothing, laundry, dry cleaning, transportation, personal allowances and inci dental expenses. Disregarding other costs, such as dental braces for the children’s teeth, eye glasses, taxes on their home and the cost of utilities in the home, the proportionate cost of support of these children amounts to approximately $137.50 per month per child.
Although the father takes issue with the amount of taxes and utilities for the $75,000 home provided by the mother’s second husband, he does not contend the $100 allowance will cover his ■ children’s expenses. The thrust of his argument is that the children are being adequately cared for by the mother and her second husband.
A stepfather has no legal duty under K. S. A. 60-1610 (a) to support a stepchild. (Zeller v. Zeller, 195 Kan. 452, 456, 407 P. 2d 478.) Under the statute the court may require either the father or the mother or both to furnish care, support and education for their children. However, when the father’s income and property are substantial, as in the present case, and the mother is devoting her full time to the care of her household, the primary duty of support remains with the father. (Effland v. Effland, 171 Kan. 657, 666, 237 P. 2d 380.) Although the mother and others may be supporting the children this does not diminish or suspend the obligation of the father to support his children. (Rogers v. Rogers, 93 Kan. 114, 143 Pac. 410; Rowell v. Rowell, 97 Kan. 16, 154 Pac. 243; State v. Waller, 90 Kan. 829, 136 Pac. 215.) It is generally recognized that gratuitous contributions from relatives, friends, charities, governmental agencies or a stepfather will not reduce or dimmish the father’s obligation to furnish child support. (See 1 ALR 3d 324, 346 and cases cited therein.)
In the original property settlement agreement, which was approved by the trial court and made a part of the decree of divorce in 1960, it was agreed by the parties that the father would pay $100 for the support of the five minor children. The property set over to the mother was not designated for the support of the children. There can be no contractual agreement with the mother which will legally reduce or terminate a father’s continuing obligation to support his children. (Grimes v. Grimes, 179 Kan. 340, 343, 295 P. 2d 646.)
In addition to the $100 per month the father has purchased riding horses for the children, has given them birthday and Christmas presents and has provided entertainment. The love and concern shown by such gifts is commendable. We do not wish to detract from such acts of love and concern by a father for his children. We merely say these expenses are not necessities and do not fall in the category of the normal support which can be required of a parent by the courts. Such gifts emanate out of a father’s love for his children and not from his duty to support them.
It is always difficult to determine when an abuse of discretion is manifest in an order of a district court. In State v. Foren, 78 Kan. 654, 97 Pac. 791 it was said:
“. . . Various definitions of judicial discretion have been given [citation], but it is difficult, if not imposible, precisely to define its limitations. Discretion is the freedom to act according to one’s judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration, and not arbitrarily. . . .” (p. 658)
In making the support order with which we are concerned the district judge disregarded the evidence which established the reasonable cost of supporting the defendant’s children. The cost amounted to more than $137.50 per child. An award of $25 per child was entered. This was only slightly more per child than the amount set ten years before. The children have reached the later years of their minority. The change in financial circumstances of the mother and of the father indicates the father’s burden of support should have been increased. Since all the evidence introduced at the hearing was in the form of affidavits this court is hr as favorable a position to determine the facts as the trial judge. The award appears grossly inadequate. Although no reasons are stated in the support order for continuing the amount at $100 per mounth, or $25 per month per child, it becomes manifest from the record before us that the trial judge did not properly apply the rules of law which govern the allowance for child support and which we have set forth in this opinion. Failure of the trial judge in this regard indicates a manifest abuse of discretion.
Two other matters deserve comment.
The appellant has requested that this court fix a reasonable amount for support.
We know of no case, and appellant has cited none, in which this court has fixed the amount of support for minor children. Such an order is subject to change by the district court. The enforcement of die order necessarily must rest with the district court. There is nothing in the record to indicate bias or prejudice on the part of the trial court. No request for disqualification was made. We believe the appellant’s motion for an increase in support payments can be fairly heard and determined in the district court.
The case of Longo v. Longo, 193 Kan. 386, 395 P. 2d 302, cited by appellant, is not in point. It concerns a lump sum alimony award to the wife which was increased on appeal. Recause of the continuing jurisdiction which the district court has over a support order we do not consider Longo adequate authority for us to set the amount of child support to be paid in the present case.
The second matter deserving comment relates to attorney fees.
The allowance or disallowance of an attorney fee to the mother in the district court for litigating a motion to increase child support is within the sound discretion of the trial court. (Herzmark v. Herzmark, supra.) The mother is not entitled to an allowance for attorneys’ fees as a matter of right. (French v. French, 171 Kan. 76, 82, 229 P. 2d 1014.)
In the present case the mother has independent income. The proceedings were initiated by her. In light of the record before us we cannot say an abuse of discretion is manifest by the refusal of the district court to allow an attorney fee to the mother.
The order of support entered on November 3, 1969, is set aside and the case is remanded to the district court for further proceedings to determine a reasonable amount to be paid by the defendant for the support of his children in accordance with the views expressed herein.
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The opinion of the court was delivered by
Abbott, J.:
After a multi-vehicle accident on the Kansas Turnpike caused the death of Thomas Marshall, Sr., his family filed a wrongful death and survival action. All of the defendants settled with the Marshalls prior to trial except Mayflower Transit, Inc. (Mayflower). The jury awarded $2,914,087.27 and attributed 30 percent of the fault to Mayflower and 5 percent to Marshall. The verdict was reduced pursuant to K.S.A. 1986 Supp. 60-1903 and Mayflower’s responsibility ultimately was set at $688,226.18. The amount of damages is not in dispute.
Mayflower contends the trial court erred in the manner it required proffers to be made and in excluding the testimony of Mayflower’s accident reconstruction expert, Kenneth Razak, and its two experts concerning paint, Mark Boese and Harry Wachob.
The accident involved a series of individual and multiple collisions among eight westbound vehicles (five semi-trailer trucks and three cars) on the Kansas Turnpike. The. accident occurred during a snowstorm, and the highway was slick and hazardous. The accident will be described in greater detail as the issues are discussed.
The primary issue at trial was the percentage of fault attributable to the various drivers. The main thrust of Mayflower’s defense was that most of the damage to Marshall’s car and Marshall’s injuries were caused when Marshall’s car collided with the Earl Pile Trucking Co. tractor-trailer being driven by Roy Hamill and when the Marshall car was hit by a Frito-Lay tractor-trailer driven by Marlin Crouse, at a time when the Marshall car was against the Pile trailer’s tandem wheels. Mayflower hoped to prove through Razak’s testimony that the collision between the Mayflower tractor-trailer and the Marshall car occurred at a low speed and caused minimal damage to the Marshall car.
The two paint experts’ testimony would have supported Razak’s contention that the Frito-Lay tractor struck the Marshall car, as the Holton Livestock truck driver, LeRoy Dick, testified. The Frito-Lay driver testified he struck the Pile trailer, and that testimony was supported by the plaintiffs’ paint expert, who testified that the paint on the bumper of the Frito-Lay tractor came from a trailer and not an automobile.
1. Proffer of Razak Testimony
Mayflower maintains it repeatedly asked to make a proffer of Razak’s testimony in question and answer form, but the court ruled that Razak’s deposition would serve as the proffer. Mayflower argues that the deposition could not serve adequately as an offer of proof because it was not taken for the purpose of preserving testimony. The deposition was taken about a year before the trial during the normal course of discovery, and, as such, Mayflower contends it did not include “the heart of [Razak’s] trial testimony.” Although Mayflower did file a written proffer of Razak’s testimony after the trial was over, Mayflower claims even the written proffer was “not a fair substitute for Mr. Razak’s actual answers on the highly technical mathematical, and complicated physical and analytical topics involved.”
Mayflower correctly cites State v. Hodges, 241 Kan. 183, Syl. ¶ 3, 734 P.2d 1161 (1987), for the proposition that if a trial court determines certain expert testimony is not admissible, “it is error [for the trial court] to refuse a proffer of that testimony into the record.” In Hodges, the trial court refused the State’s request to proffer its expert’s testimony. 241 Kan. at 185. Here, the trial court admitted Razak’s deposition as an offer of proof and also allowed Mayflower to submit written proffers regarding the excluded testimony of Razak. As the Marshalls point out, a more accurate statement of Mayflower’s complaint is that Mayflower was not allowed to choose the form for making its proffer. The Marshalls also argue it would be unreasonable to require a trial court to stop in the middle of a lengthy trial to allow the defendant to spend as much as a day and a half presenting a proffer in question and answer form.
We previously have considered the sufficiency of a proffer. In Carrick v. McFadden, 216 Kan. 683, Syl. ¶ 3, 533 P.2d 1249 (1975), this court stated that
“[i]n keeping with the requirements of K.S.A. 60-405, a proffer of evidence which has been excluded should make known the substance of the expected evidence. A formal offer of proof in question and answer form is not required provided an adequate record is made in some other manner which discloses the evidence sought to be introduced.” (Emphasis added.)
The standard for a satisfactory proffer is whether the proffer contains the substance of the excluded testimony.
The trial court was exposed repeatedly to the proposed testimony. The court read Razak’s deposition. Prior to trial, Mayflower’s response to the Marshalls’ motion to exclude Razak’s testimony outlined Razak’s testimony. Additionally, the trial court heard oral arguments on the matter. The trial court reserved judgment on the motion until after testimony from other witnesses was presented. The trial court briefly allowed the parties to present their positions once again before refusing to allow Razak to testify. The trial court, as does this court, understood the substance of and the basis for Razak’s proposed testimony.
The record amply supports a finding that the trial court and this court were informed of the substance of the excluded testimony. Although a verbatim accounting of the excluded testimony in question and answer form is not required, the record does not indicate that the trial court limited what Mayflower could include in the written proffer. If Mayflower’s proffer was incomplete, it is because Mayflower did not utilize its opportunities to inform the court of the substance of the proposed testimony.
2. Proffer of Paint Experts’ Testimony
Mayflower makes the same arguments concerning the two experts who would have testified concerning paint examinations they made. We reach the same conclusions for the same reasons set forth above. In addition, the trial court asked if further proffers by Mayflower could be handled by written statement. The trial court then granted Mayflower s request that further proffers be in the form of oral statements. When the opportunity arose at the conclusion of the trial to make an oral proffer, Mayflower stated it would submit a written statement. In its motion for a new trial, Mayflower again declared it had been denied the opportunity to make a proper proffer. The issue was discussed further at the hearing concerning Mayflower’s motion.
The trial court was aware of the proposed testimony of Boese and Wachob. Mayflower had an opportunity to submit any type of proffer it wished (other than stopping the trial for a question and answer proffer). Here, the trial court and this court are aware of the substance of the excluded testimony and the basis for the testimony. Having examined Mayflower’s proffers, it is hard to imagine the excluded evidence being presented in a more favorable form.
3. Exclusion of Boese and Wachob Testimony
Trial courts have wide latitude concerning the admission of impeachment testimony. An appellate court will not reverse a trial court’s ruling excluding testimony unless the triak court has abused its discretion, resulting in prejudice to the party whose testimony was excluded. See Ellis v. City of Kansas City, 225 Kan. 168, 176, 589 P.2d 552 (1979); Berry v. Berry, 215 Kan. 47, 53, 523 P.2d 342 (1974).
While Frito-Lay was a party to the action, it hired an accident reconstructionist, A. O. Pipkin, Jr., who in turn hired Edward Cox to analyze paint samples. Cox testified at trial that paint on the front bumper of the Frito-Lay tractor came from a trailer and not an automobile. Mayflower sought to admit the testimony of Mark Boese and Harry Wachob to rebut Cox’s testimony. Both Boese and Wachob are knowledgeable in paint sample analysis by spectrograms. They performed the same test as Cox did on the paint samples taken from the bumper of the Frito-Lay truck, but they did not arrive at the same conclusion as Cox.
The trial court was not persuaded by Mayflower’s claim of surprise or its claim that the spectrogram analysis had been concealed. The court found that if Mayflower was surprised by Cox’s testimony, it was because Mayflower had not exercised due dil igence. Mayflower participated in the Pipkin deposition on February 11, 1989, and was put on notice that Cox would be analyzing paint samples and generating a report. The court commented upon the fact that Mayflower chose not to depose Cox. It was Mayflower’s fault that it did not know the substance of Cox’s testimony until the trial. Mayflower also had notice that Cox could be testifying because the Marshalls had listed all of Frito-Lay’s witnesses, including Cox, as their witnesses.
Based on the record before us, we cannot say the trial court abused its discretion in refusing to allow the two witnesses to testify.
The Marshalls also argued that if the trial court abused its discretion in excluding the testimony of Boese and Wachob, Mayflower suffered no prejudice. Although Cox testified that the paint on the Frito-Lay truck’s bumper indicated that the Frito-Lay vehicle did not strike the Marshall car, the jury was not convinced. The jury allocated 35 percent fault to Frito-Lay. Erroneous exclusion of evidence'is not grounds for reversal unless it affects a party’s substantial rights. See K.S.A. 60-261. Thus, even if the trial court abused its discretion in excluding the testimony of Boese and Wachob, the error was harmless. Mayflower’s substantial rights were not prejudiced.
4. Exclusion of Razak Testimony
Mayflower sought to call as an expert witness Kenneth Razak, a consulting engineer, who for many years has testified as an accident reconstruction expert. The trial court refused to permit Razak to take the stand.
K.S.A. 60-456(b) and (d) govern the admission of expert testimony:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
“Expert opinion testimony is admissible if it will be of special help to the jury on technical subjects [with] which the jury is not familiar or if such testimony [will] assist the jury in arriving at a reasonable factual conclusion from the evidence.” Sterba v. Jay, 249 Kan. 270, 282, 816 P.2d 379 (1991); Falls v. Scott, 249 Kan. 54, 63, 815 P.2d 1104 (1991). “The basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case.” Falls, 249 Kan. at 63. (Emphasis added.) “[If] the normal experience and qualifications of jurors permit them to draw proper conclusions from [the] given facts and circumstances, expert conclusions or opinions are not necessary.” Sterba, 249 Kan. at 282-83; Falls, 249 Kan. at 63. Obviously, the trial court has considerable discretion in determining whether to permit expert testimony.
Prior to trial, the Marshalls filed a motion to exclude Razak’s testimony. The Marshalls contended that Razak’s opinions and conclusions were preliminary, and despite several requests for Razak’s final opinions, none had been forthcoming. Moreover, according to the Marshalls, Razak’s opinions did not address subjects that would aid the jury’s technical understanding. Additionally, the Marshalls argue that Razak’s opinions would not help the jury arrive at reasonable factual conclusions because his opinions contradicted eyewitness testimony, particularly the testimony of Raymond Hammonds, the driver of the Mayflower vehicle.
The trial court determined that Razak’s opinions were sufficiently final and did not exclude Razak’s testimony because it was preliminary in nature. The trial court took the Marshalls’ motion under advisement. At trial, the judge stated, in pertinent part:
“THE COURT: . . . [T]here’s the matter of this Razak expert witness, and I told counsel I would make a ruling on that later on after I heard more of the evidence. ... I have some problems with allowing him to testify. And that is based upon the supreme court’s ruling and language in [Massoni v.] State Highway Commission, [214 Kan. 844, 522 P.2d 973 (1974), overruled in part by Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978)]. . . . I think that when you read that case closely, that’s what they’re saying. This is the kind of case that doesn’t need any expert witnesses to confuse matters when the evidence is as we have it in this particular case as to what happened and where — who hit who. . . . [F]rom what I’ve heard up to this point, there hasn’t been anybody testifying in a manner that would support the testimony of Mr. Razak.
“MR. MELTZER [Counsel for Mayflower]: Your Honor, Mr. Razak’s testimony is supported by the physical facts at the accident scene. He doesn’t need and doesn’t rely on eye witness testimony. And the supreme court of this state has said that an accident reconstructionist is entitled to testify. They cannot weigh the testimony of witnesses. He’s not going to weigh somebody’s testimony in that regard. He is going to take the photographs from the scene of the accident, the measurements taken by the highway patrol, and put all that together . . . the damage patterns that are involved. Those are the exact things that [Massoni] and [Lollis] say the courts permit experts to testify utilizing those things to come to opinions and conclusions. What they don’t allow experts to do is to take this witness’s testimony and [that] witness’s testimony and throw it together and come up with a scenario in that regard. . . . [Razak] is going to be using the physical facts from the scene to construct the accident in that regard, and to show — and with the damage patterns to establish the impacts, where the impacts occurred on the vehicles, and the relative forces involved. . . .
“THE COURT: . . . [W]hat is he doing to the testimony of the driver of the Mayflower truck who said he nailed this car, and what is he doing with the testimony of the Frito-Lay truck driver who said he missed him? . . . Isn’t [Razak] weighing the testimony? ... I think the [Massoni] case is saying if we got enough people at the accident scene who— and there were tons of pictures taken . . . ground level photographs, aerial photographs. There were many witnesses who saw what happened. We don’t need an expert to come in here and testify to confuse the jury that they can take and listen to the testimony of the . . . lay people here. . . . [T]here’s nothing technical about a car wreck. . . . [I]t’s human perception, what they see. And the jury’s got to figure it out from that. . . . [T]here isn’t any testimony here that would support what Mr. Razak said. In fact, I need to make a closer review of . . . his basis [for] forming his opinion and foundation for it, because it appears to me that it’s a bit lacking there after I went back over the deposition.
“THE COURT: . . . [W]hat I think this [Massoni] case says is the supreme court said if there’s plenty of people there, it’s not a technical matter. We don’t need any experts coming in and befuddling their minds. Let them hear the people who were there and testified who said it, and they can decide what happened.”
The next morning the trial court ruled that Razak’s testimony was inadmissible. The trial, court found that, under the facts of this case, accident reconstruction testimony was not necessary. Additionally, the court noted the lack of foundation upon which Razak’s opinions were based and the testimony’s bearing on the ultimate issue.
“THE COURT: . . . [M]y interpretation of the [Massoni\ case . . . requires me to preclude anything under this fact situation, any testimony from traffic reconstruction experts. And I continue to hold that opinion. . . . Mr. Razak in this case would certainly, as far as the issue that’s left to be decided here, would be testifying to that ultimate issue. And I think the \Massoni\ case makes it clear that when you have a situation such as we have here that there’s no need to bring in those kinds of people. And to me that makes sense. And in addition, I would further say that based upon my reading of the deposition and the state of the foundation of Mr. Razak’s knowledge at the time his deposition was taken, he’s incompetent to testify anyhow, because he didn’t have enough facts and knowledge about the case to form such a — such an opinion, and he indicates as much in his testimony as far as I’m concerned. So, I would disallow his testimony on both of those bases.”
At the hearing on Mayflower’s motion for a new trial, the trial court again commented upon the sufficiency of the foundation.
“THE COURT: . . . But here they were — there were all kinds of people who were witnesses. — eye witnesses to this within — within several feet of all this happening. And I don’t think when — even the evidence of the Mayflower truck driver was that while initially [he] said 35, I think at the time he hit [the Marshall] car dead center, later dropped it down to 25 miles an hour at the time he hit this car, without a question in his mind that he hit the car 25 miles an hour, that a reconstruction expert could come in and say the relative impact was five miles an hour. I mean, this fellow was sure he hit it and so was the Frito-Lay guy. And I — I think that that’s a perfect example of why that rule is, and that this individual shouldn’t be allowed to come in and testify in that manner. ... I don’t think he had sufficient foundation upon which to form an opinion. And I think his opinion is the best evidence of that when looked at in the light of all the testimony of all the other witnesses.”
On appeal, Mayflower argues that the trial court erred in excluding Razak’s testimony.
“It is a well-established rule in Kansas that the admissibility of expert testimony is within the broad discretion of the trial court. A party claiming an abuse of trial court discretion bears the burden of showing abuse of discretion. [Citations omitted.] The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Sterba, 249 Kan. at 282-83; Falk, 249 Kan. at 63; see Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 259, 815 P.2d 550 (1991).
In Massoni v. State Highway Commission, 214 Kan. 844, 522 P.2d 973 (1974), and Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978), this court specifically addressed the scope of admissible expert opinion testimony in vehicle negligence cases.
In Massoni, the plaintiffs filed a suit for wrongful death, personal injury, and property loss against the driver of the other vehicle involved in the head-on collision and the state highway commission. The jury found for the defendants. On appeal, this court found reversible error.
A majority determined expert evidence was inadmissible because “the matters at issue were not sufficiently beyond the common knowledge of ordinary persons that the opinion of an expert would be helpful to the jury.” 214 Kan. at 851. This court held the issues were not complicated or technical. The lay jury had the requisite experience and qualifications to understand and to decide the case. “Diagrams, charts and aerial photographs depicting the scene and establishing pertinent measurements were presented to the jury.” 214 Kan. at 851. The court particularly noted that five eyewitnesses to the accident testified concerning the positions and the speed of the vehicles involved in the accident.
In Lollis, a motorcyclist filed a personal injury suit against the driver of a beer truck after an accident involving both parties. The trial court allowed the police officer to testify as an expert concerning contributing factors to the accident. On appeal, the Supreme Court concluded that the officer’s testimony was inadmissible.
This court held that “there was insufficient factual data to serve as a foundation for the officer’s conclusions.” 224 Kan. at 260. We noted that at the time the officer testified neither the motorcyclist nor the driver of the beer truck had testified. The officer based his testimony “only on what he actually observed at the scene and what he was told at the scene by the [driver of the beer truck].” 224 Kan. at 257. The officer only knew one side of the story; he testified he had not spoken with the motorcyclist (the motorcyclist was taken to the hospital immediately after the accident). According to the court, the officer either weighed and rejected or ignored the motorcyclist’s version of the accident.
In Ratterree v. Bartlett, 238 Kan. 11, 707 P.2d 1063 (1985), this court again addressed the scope of expert testimony in vehicle negligence cases and reaffirmed the two-part test established in Lollis-. “[Ojpinion evidence by investigating police officers concerning physical factors of an accident is admissible when a proper foundation for such conclusions is presented and the conclusions are the proper subject of expert testimony.” 238 Kan. at 15.
Under the facts of this case, a reasonable person could agree with the trial court that the testimony of an accident reconstruction expert was not necessary. Several eyewitnesses testified regarding the speed of the vehicles involved in the accident, the condition of the highway, and the weather conditions, including visibility. Most of the drivers involved in this multi-vehicle collision testified. Their testimony encompassed the speed and the approximate locations of the vehicles as well as the drivers’ perceptions at the time the accident was occurring. Three highway patrol officers, who investigated the accident, testified. The evidence at trial also included the official highway patrol accident diagram, portraying the final location of all vehicles involved in the collision. Additionally, pertinent measurements were listed. Numerous photographs of the vehicles and of the accident scene were admitted into evidence.
Mayflower argues that the trial court “cited Massoni for the proposition that traffic reconstruction experts as a class were forbidden.” Mayflower takes the statement out of context. What the trial court actually stated was that this fact situation precluded the testimony of this accident reconstructionist.
Mayflower maintains the trial court “interpreted Massoni to rule out the use of expert testimony where there were eyewitnesses to a vehicle accident.” Additionally, Mayflower argues, “[T]he trial court stated that, as a categorical matter, ‘there’s nothing technical about a car wreck. It’s what — it’s human perception, what they see. ’ ” The record reflects the trial court stated that it thought “what this [Massoni] case says is the supreme court said if there’s plenty of people there, it’s not a technical matter. We don’t need experts coming in and befuddling their minds. Let them hear the people who were there and testified who saw it, and [the jury] can decide what happened.” The trial court was not concerned merely with the quantity of witnesses; the court was concerned with the quality and the nature of the evidence as well as the foundation for the expert testimony.
Additionally, Mayflower states that the “supreme court of this state has said that an accident reconstructionist is entitled to testify.” Mayflower is taking the court’s statement out of context. In Lollis, the Supreme Court discussed Spraker v. Lanklin, 218 Kan. 609, 612, 545 P.2d 352 (1976), and noted that this court frequently has approved the admission of opinion testimony from accident reconstructionists. The court’s next sentence qualifies this statement: “We further observed that the opinions of experts may be helpful to a court or jury in motor vehicle cases particularly where there are no eyeioitnesses to a collision. However, such opinions must be based on reasonably accurate data available at the scene.” 224 Kan. at 258. (Emphasis added.)
Whose fault or negligence caused or contributed to a vehicular accident is not beyond the common knowledge of ordinary persons. Although the facts of the multi-vehicle accident here were complex, the facts were not too complicated or technical for the lay juror to understand. As in Massoni, the jurors here had access to numerous diagrams and photographs depicting the accident. As in Massoni, the jury here had the testimony of eyewitnesses who testified concerning the positions and the speed of the vehicles involved in the accident. Because of the abundance of evidence, the jury could arrive at a reasonable factual conclusion without the help of expert accident reconstructionists. We are unable to say the trial judge abused his discretion in so holding.
The trial court also held that Razak’s testimony lacked the proper foundation. Mayflower argues this was error.
Mayflower contends that the trial court misread K.S.A. 60-456(b)(1) as requiring an expert witness to read the depositions of other witnesses. Mayflower insists it complied with the foundation requirements required by statute for Razak’s testimony. Razak relied upon several sets of photographs, including photographs taken by the Kansas Highway Patrol, photographs counsel had given him, and photographs he requested be taken; the Kansas Highway Patrol accident report that included a dimension diagram; and several consultants’ reports, including a survey report.
In support of its argument that Razak met the statutory foundation requirements, Mayflower alleges that although Razak had not read any of the depositions connected with this case at the time of Razak’s deposition, “counsel had discussed information contained in the depositions with [Razak]. . . . [Furthermore, . . . Razak testified that the testimony of other witnesses had been made known to him by counsel.” When deposed, however, Razak said his conclusions or opinions were not based upon counsel’s recounting of the depositions.
We do not decide this issue based on what is necessary to lay a foundation for an accident reconstruction expert to testify. Nor do we mean to imply that an accident- reconstruction expert’s testimony must be consistent with testimony of eyewitnesses. We decide this issue solely on whether a trial court abuses its discretion based on the facts before it in determining whether a sufficient factual basis is present to support the expert’s opinion. When a trial judge perceives an expert’s testimony is inconsistent with physical facts and seemingly reliable testimony, a trial court does not abuse its discretion in holding a lack of foundation for a conclusion.
Here, Razak was trying to convey that Mayflower’s collision with the Marshall car was at a speed differential of three to four miles per hour. As we view the record, which is the same as the record the trial court had before it, several things were wrong with the foundation for Razak’s opinion.
Razak had prepared large photographs depicting the accident sequence, the angles of impact, how the damage was inflicted to the various vehicles, and the vehicles’ paths before and after the collision.
The Kansas Turnpike runs east and west where the accident occurred. The westbound lanes are north of the eastbound lanes, and the north ditch has a sharp decline. An accident reconstruction expert determines what happened from where the vehicles and their component parts end up after the accident. It is important that physical placement be correct; otherwise, it changes all angles and directions of force.
Here, Razak placed the Marshall car against the tandem wheels of the Pile trailer. It was important to his theory that the Marshall car be there and be struck from the rear by the Frito-Lay tractor, forcing the undercarriage containing the tandem wheels out from under the Pile trailer. The Pile tractor was in the median (south of the westbound lane of traffic), and the trailer blocked the passing lane both before and after the Frito-Lay tractor-trailer hit it. Razak placed the undercarriage' in the passing lane (south lane) after the accident. This seems significant in showing the direction of force applied to the undercarriage. The Mayflower driver testified that the undercarriage partially blocked the driving lane (north lane); he attempted to drive between the undercarriage and the Pile trailer. Thus, by eyewitness, testimony and that of Mayflower’s own driver, the Mayflower truck attempted to use part of the passing lane in order to miss the undercarriage that was on his right — not on his left as Razak placed the undercarriage. Razak’s recreation has the Mayflower truck driving partially on the north shoulder of the driving lane when it struck the Marshall vehicle.
When the driver of the Mayflower truck attempted to go between the trailer and its undercarriage, he saw the Marshall car blocking the hole with its rear end to the north and its front end to the south. Additionally, the car was more in the passing lane (south) than in the driving lane (north). The Mayflower driver did not observe the Marshall car move from the time he saw it until he hit it. Witnesses testified the Marshall car spun counterclockwise after the Frito-Lay truck “went through” the Pile trailer. After the car stopped spinning, it slid north. Thus, all the eyewitnesses’ testimony placed the Marshall car as sliding from south to north and the Mayflower tractor and trailer proceeding west.
The direction the Marshall car was going when it was struck is important. The reason it is important is that the Mayflower driver testified he was going 20-25 mph when he hit the Marshall car broadside. A day after the accident, however, he gave a statement saying he was going 35 mph at the moment of impact. Razak was prepared to testify there was a three to four mph difference in the speed of the Mayflower tractor-trailer and the Marshall car at the moment of impact. In order to get a differential lower than the speed the Mayflower tractor-trailer was traveling at impact (20-35 mph), the Marshall car would need to be going west, not north.
We also note Razak’s proposed testimony has the Marshall car mostly off the road (north ditch) when it was struck by the Mayflower truck, as opposed to testimony that the car was in the “hole” between the trailer and the undercarriage, which would have placed it in the center of the two lanes.
Under slightly different facts, many of the inconsistencies (some of which are not mentioned in this opinion) in this case could be said to go to the weight of the evidence. We hold only that under the facts of this case, the trial court did not abuse its discretion in excluding the testimony as not necessary or helpful and that under the facts in the record, there was insufficient foundation for the important parts of Razak’s opinion. The trial court did not abuse its discretion in holding the testimony inadmissible.
James M. Macnish, Jr., District Judge, assigned.
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The opinion of the court was delivered by
Allegrucci, J.:
This is an appeal by the Federal Deposit Insurance Corporation (FDIC) from an order of the Board of Tax Appeals (BOTA) affirming the decision of the Director of Taxation (Director) of the Kansas Department of Revenue (Department) denying FDIC’s claim for a refund of privilege taxes based upon a redetermination of the Farmers and Merchants State Bank’s (Bank) taxable income for the years 1975 through 1984 by carrying back its 1985 net operating loss (NOL). The Department denied the refund because FDIC’s appointment as receiver for the Bank terminated the Bank’s obligation to file a privilege tax return in 1986. This case was transferred from the Court of Appeals pursuant to K.S.A. 20-3017.
The issue raised in this appeal is whether the Kansas privilege tax statutes, K.S.A. 79-1106 et seq. (Ensley 1984), allow a loss that was incurred the year the Bank ceased operation to be carried back and taken into account in determining the taxable income of prior years.
The facts were stipulated to by the parties. The Bank was organized and chartered under the laws of Kansas in 1898. It operated as a commercial bank until November 21, 1985, when the banking commission appointed FDIC as the Bank’s receiver. From 1975 through 1984, the Bank reported taxable income, which was the basis for its payment of privilege taxes in an aggregate amount of $204,203. Each year, the privilege tax is based on the taxable income of the previous year in conformity with federal taxable income adjusted in accordance with the provisions of K.S.A. 79-1109 (Ensley 1984).
In 1985, the Bank had a NOL in the amount of $5,015,524, incurring $4,284,151 prior to FDIC’s appointment as receiver on November 21, 1985, and while the Bank continued to conduct full-scale commercial banking operations. All losses arose from Kansas activity. After the receiver was appointed, the Bank and its receiver could not receive deposits, K.S.A. 9-2010 and K.S.A. 17-6106(a), or do business, K.S.A. 9-702. FDIC conducted only liquidation activities, maintaining an office at the Bank’s former location in LaCrosse, Kansas, until August 15, 1986, when the office was moved to Wichita. FDIC did not receive any deposits or make new loans.
Under federal income tax law, FDIC was entitled to carry back the loss incurred by the Bank in 1985 to the years 1975 through 1984 by redetermining its taxable income for those years in obtaining a refund of income taxes paid. I.R.C. § 172(b)(1)(F) (1984). The Internal Revenue Service (IRS) paid those refunds to FDIC, which deposited them in the Bank’s receivership account. After the IRS’s redetermination of the Bank’s taxable income for 1975 through 1984, FDIC, as receiver for the Bank, made a timely claim for refund of the Kansas privilege taxes.
On other occasions, the Department has recognized the right of banks and other taxpayers to redetermine taxable income for privilege tax purposes based on carryback of NOL in conformity with federal income tax laws. In a similar case, the Department in 1981 refunded privilege taxes to FDIC as receiver for Mission State Bank, based on a carryback of losses sustained by operations in the year FDIC was appointed as receiver. But here, the Department denied FDIC’s privilege tax refund, holding:
“Taxpayer ceased its business operation on November 21, 1985,- and hence did not exercise the privilege of doing business in 1986 for which the subject tax is levied. State law effectively prevented the Taxpayer from conducting its business activities after November 21, 1985 (See K.S.A. 9-2010, 17-6106[a], and 9-702).”
The Department denied FDIC’s privilege tax refund because no privilege tax return was required for any year that began after the appointment of the receiver, and therefore the loss sustained by the Bank in 1985 could not be carried' back to redetermine its privilege tax liability for earlier years. The Director and BOTA upheld this decision.
FDIC argues that Kansas statutes entitle it to distribute the enormous financial loss the Bank experienced in 1985 by deducting its 1985 NOL through redetermination of income on the tax returns for the years 1975 through 1984. As support, FDIC notes that K.S.A. 79-1107 (Ensley 1984) required the Bank to “pay to the state for the privilege of doing business within the state a tax according to or measured by its net income for the next preceding calendar . . . year to be computed as provided in this act.” In K.S.A. 79-1109 (Ensley 1984), the term “net income” is defined as “the Kansas taxable income of corporations as defined in K.S.A. 79-32,138” with additions and subtractions as listed in that section. K.S.A. 79-32,138(a) (Ensley 1984) states: “Kansas taxable income of a corporation taxable under this act shall be the corporation’s federal taxable income for the taxable year with the modifications specified in this section.” This section then lists certain items that must be added or subtracted to the federal taxable income to determine the Kansas taxable income.
During the years at issue here, K.S.A. 79-32,143(a) (Ensley 1984) allowed a NOL deduction in the same manner as the Internal Revenue Code, and provided as follows:
“A net operating loss deduction shall be allowed in the same manner that it is allowed under the internal revenue code except as otherwise provided in this section. The amount of the net operating loss that may be carried forward and carried back for Kansas income tax purposes shall be that portion of the federal net operating loss allocated to Kansas under this act in the taxable year that the net operating loss is sustained.”
Therefore, FDIC argues that the Bank’s net income for privilege tax purposes is equal to its federal taxable income.
FDIC points out that in calculating taxable income, I.R.C. § 172 explicitly allows a taxpayer to carry back a loss incurred in one year to offset income earned in another year. For the years applicable in this case, I.R.C. § 172(b)(1)(F) allowed the Bank to carry back a NOL to each of the 10 years preceding the year of the loss. FDIC, as receiver, applied for and received a refund of federal taxes paid for the years 1975 through 1984 based on carrying back to these years the Bank’s 1985 NOL.
Because the Kansas statutes require use of federal income tax law, including determination of taxable income, subject to specific adjustments not relevant here, and because the Bank paid privilege taxes based upon its net income from the years 1975 through 1984, FDIC argues that this income should be redetermined to conform with federal law. Redetermination of net income by including the 1985 NOL indicates a refund, which FDIC argues should be allowed.
FDIC points out that the purpose behind allowing averaging of income over time is a basic principle of tax law needed to establish an equitable measure of real income of the taxpayer. The taxable year used by taxpayers to calculate income is an arbitrary time frame. Although necessary, the annual calculation does not adequately reflect fluctuating gains and losses a taxpayer might experience over a period of time. As the Oregon Supreme Court noted in Christian v. Dept. of Rev., 269 Or. 469, 471, 526 P.2d 538 (1974):
“The purpose of the carryforward and carryback aspect of the net operating loss deduction is to overcome the rigidity inherent in the concept of an annual tax. [Citation omitted.] Without such a deduction the taxpayer who suffered a loss in one year and a gain in another would pay more tax than his true overall income would warrant.”
The Department responds to these arguments by admitting that the language of 79-32,143(a) incorporates the federal statute regarding NOL into Kansas law, citing Cordes, The Kansas Conformity Income Tax Act: Part II, 17 Kan. L. Rev. 289, 310 (1969). Yet the Department argues that this does not mean Kansas uses the amount of the federal NOL but, instead, employs an entirely separate computation. Specifically, the Department points out that K.S.A. 79-32,117(b)(iii) (Ensley 1984) “adds back the federal NOL” and that 79-32,143 “requires a separate, state computation.” The Department concludes that the Kansas statute uses the federal procedure but not the actual federal loss amount. The Department also points to a recent decision by the Director concluding that source losses of two Kansas City Power and Light subsidiaries in Wyoming could not be allowed as a Kansas deduction. The Department cites this decision, which of course is not binding on this court, to establish that Kansas privilege and income taxes do not use the amount of the federal NOL but, instead, require an independent determination of the state deduction.
The problem with the Department’s argument is that the amount of the NOL was not before the Board and is not an issue in this appeal. FDIC does not dispute that Kansas statutes require a number of exclusions and adjustments not found in federal law. Kansas taxable income of a corporation is the corporation’s federal taxable income with specified modifications. K.S.A. 79-32,138(a) (Ensley 1984). The Department does not argue that any of these modifications apply here. A NOL deduction “shall be allowed in the same manner that it is allowed under the internal revenue code except as otherwise provided in this section.” K.S.A. 79-32,143(a) (Ensley 1984). Under 79-32,143(b), the amount of the loss to be carried back is defined as “the federal net operating loss after (1) all modifications required under this act applicable to the net loss in the year the loss was incurred; and (2) after apportionment as to source.” Subsection (b) addresses the amount of the loss and not the manner in which the loss is to be taken. Only subsection (a) speaks to the manner in which the NOL is to be taken. The only logical meaning to be given subsection (a) is that the NOL, as defined in subsection (b), is allowed in the year and manner as provided for in § 172 of the Internal Revenue Code. We conclude that the language of the statute requires that the NOL be allowed as it is under the Internal Revenue Code by carrying back the amount to prior years to reduce the Kansas taxable income.
The question remains, however, whether FDIC is barred from carrying the NOL for 1985 back to prior years because the Bank became insolvent in 1985.
FDIC filed a 1986 privilege tax return. Because the privilege tax is based upon the net income for the next preceding year, and the Bank had no net income due to its losses in 1985, the Bank paid no 1986 privilege taxes. According to the Department, because 1986 was not a privilege tax year the 1985 federal loss was not recognized and cannot be carried back to prior years. As support, the Department points out that 79-32,143(a) states that the amount of NOL to be carried back “shall be that portion of the federal net operating loss allocated to Kansas under this act in the taxable year that the net operating loss is sustained.” The Department argues that the 1985 federal losses were never allocated to Kansas nor sustained in a privilege tax year. Because K.S.A. 79-1110 (Ensley 1984) specified that privilege tax statutes adopt provisions of the Code only “insofar as the same can be made applicable,” the Department asserts that 79-32,143(a) cannot be made applicable to carry back a loss that does not exist for privilege tax purposes.
The Department cites several cases to support its argument. In Litton Indus. Products v. Limbach, 58 Ohio St. 3d 169, 569 N.E.2d 481 (1991), the Ohio Supreme Court dealt with a franchise tax, which was an excise tax upon corporations for the privilege of doing business in Ohio in corporate form. The corporation became subject to the tax on the 1st day of January of the calendar year that it was organized. In Litton, one corporation, Litton Medical Products,. Inc., merged into Litton Industrial Products, Inc., on November 2, 1974. Litton Medical had a fiscal year from July to July. In the 1974 corporate franchise tax return for fiscal year 1973, Litton Medical reported a NOL. Litton Medical filed a 1975 corporate franchise tax return covering the fiscal year ending July 28, 1975, and also reporting NOL. In 1976, Litton Industrial, the corporation into which Litton Medical was merged, filed a corporate franchise tax return seeking to carry over and deduct Litton Medical’s NOLs. The Ohio statute defined “tax year” as “the calendar year in and for which the tax provided ... is required to be paid.” Ohio Rev. Code Ann. § 5733.04(F) (Page 1973).
Under the language of the Ohio statutes, the court concluded that a corporation measures the tax on the net income received in the year preceding the annual accounting period that contains January 1 of the taxable year. Therefore, the 1975 taxable year would be calculated by measuring net income in the preceding accounting period ending July 28, 1974. If Litton Medical had existed on January 1, 1975, the accounting period for the 1975 tax year would be the fiscal and taxable year ending July 28, 1974. Because Litton Medical was not in business on January 1, 1975, the fiscal year ending July 28, 1974, was not a taxable year for purposes of the statute allowing the NOL to be carried over to succeeding taxable years. Although Litton Medical incurred a NOL, the court found that the franchise tax does not recognize the loss as a deduction, and therefore neither Litton Medical nor its successor may deduct the loss. 58 Ohio St. 3d at 171.
FDIC distinguishes Litton, arguing that the Kansas statute is entirely different from the Ohio statute. The Ohio statute defines both “taxable year” and “tax year” in terms of franchise tax liability. In contrast, 79-32,143(a) allows carryback of any “federal net operating loss allocated to Kansas ... in the taxable year that [it was] sustained,” and K.S.A. 79-32,114(a) (Ensley 1984) specifically provides that a taxable year was “the same as his or her taxable year for federal income tax purposes.” We agree. The Kansas statute does not require that the year of loss be followed by a year in which the Bank exercised the privilege. Because of the difference in the statutes, the Department’s reliance on Litton, which turned on “the precise wording of the [Ohio] statute,” 58 Ohio St. 3d at 170, is misplaced.
The Department cites other cases in support of its position. In Pacific Wholesalers v. Mangerich, 147 F. Supp. 867, 869 (D. Guam 1957), the court refused to allow a loss to be carried forward because it was not sustained in a taxable year. The loss was incurred in 1950, but no income tax was imposed in Guam until January 1, 1951. The court held the plaintiff could not deduct the corporate loss experienced in 1950 because that was not a taxable year within the meaning of the United States income tax laws, which took effect in Guam on January 1, 1951.
In Matter of Avien, Inc., 532 F.2d 273, 275-76 (2d Cir. 1976), the taxpayer could not use losses from 1963 because that involved a period of time occurring prior to the effective date of a city tax; therefore it was not a taxable year under the city tax laws. FDIC points out that the ruling in Avien rejected the city’s “ingenious but untenable” argument that no losses could be taken until after the 1963 loss was allowed to be carried forward. Instead, the court concluded that only the deduction of the 1963 loss was barred because it preceded the effective date of the statute. Other losses that were incurred since the statute’s effective date could be used to allow the NOL deduction in other years.
The Department also relies upon a set of Kansas cases that discuss a receiver’s liability to pay a franchise tax. If a receiver is carrying on the business of a corporation as a going concern, the receiver is, in effect, exercising its corporate franchise, and the State properly looks to the receiver to pay the tax imposed. State, ex rel., v. Sessions, 95 Kan. 272, Syl. ¶ 6, 147 Pac. 789 (1915), aff'd 245 U.S. 627, 62 L. Ed. 518, 38 S. Ct. 60 (1917). A receiver “doing business” is carrying on the operation of the corporation, or some portion of it, in the usual and regular course of running the corporation for profit. Wilson v. Bank, 77 Kan. 589, 595, 95 Pac. 404 (1908). In Wilson, after paying its depositors and surrendering its certificate of authority to do business, the bank was no longer subject to the provisions of the banking act. Therefore, it was not “doing business” within the meaning of the statute requiring the filing of financial statements with the Secretary of State as a condition precedent to maintaining an action or recovering a judgment. 77 Kan. at 594-95. See State v. Knights of the Ku Klux Klan, 117 Kan. 564, 575, 232 Pac. 254 (1925) (citing Wilson, 77 Kan. 589), and Lumber Co. v. State Charter Board, 107 Kan. 153, 162, 190 Pac. 601 (1920) (Doing business “is the exercise of some of the functions and the carrying on of the ordinary business for which the company is organized [citations omitted]. Single and isolated transactions do not ordinarily constitute the doing of business.”).
As further support, the Department relies upon the discussion regarding franchise tax by the United States Supreme Court in Educational Films Corp. v. Ward, 282 U.S. 379, 75 L. Ed. 400, 51 S. Ct. 170 (1931). The Court stated that, although a corporation has income in the preceding fiscal year, if it ceases to do business prior to the beginning of the next fiscal year it is not subject to a franchise tax.
“Since it can be levied only when the corporation both seeks or exercises the privilege of doing business in one year and has been in receipt of net income during its preceding fiscal year, the tax, whatever descriptive terms are properly applicable to it, obviously is not exclusively on income apart from the franchise.” 282 U.S. at 388.
Here, in the order denying the claim, BOTA stated:
“The Bank was closed on November 21, 1985, and surrendered its license and privilege to do business as a bank on that date. The process of liquidation or winding up is not identical to doing business. Neither the corporate privilege nor franchise are exercised by the receiver. State v. Sessions, 95 Kan. 272, 147 [Pac.] 789 (1915) and Wilson v. Bank, 77 Kan. 589, 95 [Pac.] 404 (1908). In Sessions, the bank was held liable for tax payment due to the fact that it exercised its franchise in the first year that a tax was imposed. We believe that the converse should also be true, i.e. that the first year after the bank surrendered its license is the first year in which it is free of privilege tax. Without the exercise of the privilege, there is no tax liability. From and after November 21, 1985, there was no reason to reopen the privilege tax issue. We conclude that the purpose of the privilege tax is to levy against those who exercise the privilege of doing banking business.”
BOTA concluded that, because neither FDIC nor the Bank was doing banking business when the losses were incurred, no privilege tax resulted for this year. Therefore, the prior year s income from operations would escape recognition as would the previous year s losses. BOTA concluded that no basis existed to redetermine income when no losses were recognized.
FDIC criticizes the Department’s reliance upon Wilson and Sessions to support BOTA’s conclusions here. As FDIC correctly points out, it is not attempting to exercise the Bank’s privilege in its capacity as a receiver but is simply asserting that it should be able to deduct the Bank’s 1985 losses in the Bank’s income for the purpose of measuring the Bank’s privilege tax liability for the years 1975 through 1984. The Bank paid the principal tax those years but has not been allowed to reflect the enormous loss suffered in 1985.
FDIC also criticizes the Department for citing First Nat’l Bank of Manhattan v. Kansas Dept. of Revenue, 13 Kan. App. 2d 706, 779 P.2d 457 (1989), to support BOTA’s ruling. FDIC argues that the decision in First Nat’l Bank, to the extent it is relevant at all, supports FDIC’s argument. The Department cited First Nat’l Bank to support the statement that corporate income tax and privilege tax are different in significant ways. FDIC does not dispute this, 13 Kan. App. 2d at 711, but argues that the principal holding of First Nat’l Bank is that a bank may not combine its income with that of an affiliated nonbanking corporation in its privilege tax return to calculate the privilege tax. In reaching this decision, the Court of Appeals concluded that Kansas law requires that privilege tax liability and corporate tax liability must be determined based on the individual corporation’s federal tax income. Thus, the court noted: “The differences between the privilege tax and the corporate tax lead us to the conclusion that a privilege tax filer and a corporate tax filer should file separate returns.” 13 Kan. App. 2d at 711.
Rejecting the Department’s criticism that FDIC had blurred the distinction between privilege tax and income tax, FDIC acknowledges that these are different taxes but argues that the net income used by the Kansas privilege tax statute is the same as the federal taxable income and that the NOL deductions available for one are available for the other. In support of its interpretation, FDIC points to other courts that have allowed deductions for NOL carryovers. In particular, FDIC relies upon a Colorado case, In re Matter of Golden St. Bk., 37 Colo. App. 29, 543 P.2d 1307 (1975). According to FDIC, the Colorado franchise tax statute was the model used by the Kansas Legislature in developing the Kansas statutes. Therefore, FDIC argues that the decision in Golden St. Bk. is of particular importance in interpreting the Kansas statutes.
In that case, Golden State Bank was denied a refund by the Colorado Department of Revenue when the bank attempted to carry back the NOL it sustained in 1970. For the tax years 1967, 1968, and 1969, Golden State Bank filed Colorado state income tax returns computing its taxes under Colo. Rev. Stat. § 138-1- 55 (1965 Perm. Supp.) (§ 55) (franchise tax). This section was repealed April 1, 1970, for all taxable years beginning after December 31, 1969. Banks whose taxes had been computed previously under § 55 became subject to the preexisting general corporate tax under Colo. Rev. Stat. § 138-1-35 (1969 Perm. Supp.) (§ 35). When Golden State Bank filed its tax return for the year 1970, it sought to carry back its 1970 losses to the years 1967, 1968, and 1969 by using the losses as deductions in recomputing the amount of taxes due for those years. 37 Colo. App. at 30.
The Colorado Department of Revenue denied the claim for refund, arguing that the taxes under § 55 had been characterized as a franchise tax, and therefore the bank could not have carried back a NOL under Colo. Rev. Stat. § 138-1-59 (1965 Perm. Supp.) (§ 59) because it provides for carryback “ ‘for Colorado income tax purposes.’ ” 37 Colo. App. at 30-31. The department of revenue admitted that, beginning in 1970, the year of the bank’s NOL, the bank was allowed to carry back losses under the provisions of § 59. But prior to 1970, the bank was subject to the franchise tax of § 55. According to the department, of revenue, this precluded Golden State Bank from deducting NOL under § 59. 37 Colo. App. at 31.
The court evaluated the Colorado statutes in detail and concluded that, prior to 1970, the year that § 55 was repealed, § 59 allowing deduction of NOL was available to banks formerly taxed under § 55. Section 59 had been applicable to both § 55 and § 35. When § 55 was repealed, nothing else was amended. By virtue of the repeal, both national and state banks became subject to § 35, which establishes taxes on all domestic and foreign corporations doing business in Colorado. 37 Colo. App. at 32-33.
The Colorado Court of Appeals found that the statutory intent was clear. The bank computed its net taxable income under Colo. Rev. Stat. § 138-1-38 (1963), which allows a NOL deduction under § 59. Section 59 permits the deduction, properly allocated, “ ‘in the same manner that it is allowed under the internal revenue code.’ ” 37 Colo. App. at 32. The Internal Revenue Code requires the NOL to be carried back if possible. The court concluded that § 59 was available to banks formerly taxed under § 55 and now taxed, along with other corporations, under § 35. 37 Colo. App. at 32.
The relevant language of the Kansas statutes is substantially identical to that of the Colorado statutes. Kansas banks are taxed based upon the Kansas taxable income of corporations. This includes allowing a deduction of NOL in determining Kansas taxable income “in the same manner that it is allowed under the internal revenue code.” In Golden St. Bk., the bank was no longer subject to a privilege tax because the statute had been repealed. FDIC argues that this is analogous to the situation here where the Bank was no longer subject to a privilege tax because the Bank was insolvent and a receiver had been appointed.
The Department counters that reliance upon Golden St. Bk. is misplaced because no question exists that the loss there was recognized in a Colorado income taxable year. In contrast, the 1985 losses experienced by the Bank here were not recognized or sustained for any Kansas tax purposes. The Department also points out that, in Colorado, if the legislative intent behind enactment of a statute is in doubt or ambiguous, the statute is to be construed in favor of the taxpayer. 37 Colo. App. at 33. In Kansas, the taxpayer carries the burden of proving that the deduction is clearly authorized. See Palmer v. Commission of Revenue and Taxation, 156 Kan. 690, 696, 135 P.2d 899 (1943). FDIC responds to this assertion by noting that the court in Golden St. Bk. did not just consider the effective date of the loss carryback provision but held that the provision incorporating federal law required that the deduction be allowed.
Finally, it should be noted that FDIC repeatedly argues that the position taken by the Department in this case directly contradicts the Department’s prior published statements and actions in a previous case that is almost identical to this one. In 1981, FDIC, as receiver for the Mission State Bank, filed a privilege tax return that was clearly marked “final return” and that showed a large loss. FDIC filed a claim carrying the loss back to prior years to offset income in those years and sought a refund of $255,517 plus interest. The Department granted the refund claim. Furthermore, in January 1986 the Department published a privilege tax information bulletin that provided: “If a merger, consolidation or other event creates short taxable years for a privilege flier, returns must be filed and taxes paid for each of the short taxable years.” FDIC argues that these interpretations by the Department must be taken into account by this court. As support, FDIC cites Wichita Board of Trade v. United States, 352 F. Supp. 365, 369 (D. Kan. 1972), aff'd in part, rev’d in part 412 U.S. 800, 37 L. Ed. 2d 350, 93 S. Ct. 2367 (1973), where the court recognized that activities and conditions may develop that dictate prior administrative constructions and interpretations of a statute should no longer be binding if they do not achieve the general legislation’s objectives. But a longstanding administrative interpretation of a statute should not be overruled except for weighty reasons. FDIC argues that the Department’s prior interpretations of the privilege tax statute should not be disregarded.
In its brief, FDIC notes that, in a reply brief filed less than a year ago in In re Tax Appeal of Peoples Savings & Loan Ass’n, No. 64,371, unpublished Supreme Court opinion filed October 26, 1990, the Department ridiculed the suggestion that income for an 11-month period of the preceding calendar year should be disregarded for privilege tax purposes. The Department responds that the Peoples case differs in that the privilege of doing business in that case was never interrupted, whereas here, the Bank’s privilege was interrupted and terminated. However, only weeks after taking this position, counsel for the Department acknowledged to BOTA in this case that, if the Bank had incurred income during the period ending November 21, 1985, “the shoe would be on the other foot, and we might be arguing their side.”
K.S.A. 79-32,143(a) (Ensley 1984) allows a deduction for NOL to be carried back to prior years “in the same manner as it is allowed under the internal revenue code.” The statute is unequivocal on this point and is not ambiguous. The parties agree that the Internal Revenue Code allowed a deduction of this NOL in 1985 to be carried back to the prior years of 1975 through 1984. FDIC received a refund from the IRS based upon a recalculation of the taxable income of the Bank over thosé years by including calculations that took into account the loss in 1985. The Kansas statutes require that this NOL be applied in the same manner as allowed under the Code. Nothing in the privilege tax statutes prohibits recalculation of the taxable income that is the basis for figuring the privilege tax on years that have been paid. The Bank paid privilege tax in the years 1975 through 1984. The statute recognizes the NOL in “the taxable year that the net operating loss is sustained.” “Taxable year” is.the same, as the taxable year for federal income tax purposes. K.S.A. 79-32,114 (Ensley 1984). Here, the loss occurred in 1985, which was a taxable year for the Bank. There is no additional requirement that the Bank have a net income in 1985 and/or still be operating as a bank on January 1, 1986, to avail itself of thé provisions of 79-32,143(a). The Department should have allowed FDIC to carry back the NOL to prior years as was permitted by the IRS and is allowed here under 79-32,143(a).
The order of BOTA affirming the Kansas Department of Revenue’s denial of FDIC’s claim for a refund of privilege taxes is reversed.
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The opinion of the court was delivered by
Allen, J.
: The questions involved in these cases are of a delicate character, involving, as they do, the validity of the proceedings of the legislative department of the state government. On consultation, a quite unusual diversity of opinion is found to exist among the members of the court, and, in order to make known the conclusions reached on the various branches.of the case, it will be necessary to depart somewhat from the usual custom in writing an opinion.
An objection is made on behalf of the defendants to any consideration of the merits of these cases, on the ground that the prior action, commenced in the district court of Shawnee county to enjoin the defendant Hudson from taking possession of the office, and the defendant Edwards from recognizing him as state printer, abates the present actions. The relief sought in that case was quite different from that asked in these cases. That action, having failed, was dismissed before the trial of these cases. The objection is untenable. The rights of the respective parties to the possession of the office of state printer could not be fully determined and settled in an action for injunction.
The office of state printer was established by an amendment to the state constitution, adopted in 1868, which appears as section 4 of article 15, and reads as follows :
“All public printing shall be done by a state printer who shall be elected by the legislature in joint session and shall hold his office for two years and until his successor shall be elected and qualified. The joint session of the legislature for the election of a state printer shall be on the third Tuesday of January, 1869, and every two years thereafter. All public printing shall be done at the capital, and the prices for the same shall be regulated by law.”
In 1861 an act was passed with reference to holding joint conventions of the two houses of the legislature, which now appears as chapter 57 of the General Statutes of 1889. By section 6 of that act it is provided, “That to elect any person in said joint convention a majority voting in the affirmative of all the members elected to the two houses shall be necessary.” In 1879 another act was passed, which now appears as paragraph 6074 of the General Statutes of 1889, which reads as follows :
“A state printer shall be elected by the legislature every second year, as provided in the constitution. For the purpose of such election, the legislature shall meet in joint session on the third Tuesday in January, and shall continue in such session from day to day until some person is elected state printer by the concurrence of a majority of the members elected to each house. Immediately after such election, the president of the senate and speaker of the house of representa tives shall furnish to the state printer elect a certificate of his election.”
The main questions for our consideration are :
(1) Whether the plaintiff, Snow, has shown that he ever had any valid title to the office ; (2) whether the defendant Hudson was duly elected to the office.
In arriving at a decision of these main questions, various others of much doubt and difficulty must be considered. It is contended on the part of the plaintiff that, to constitute a joint session of the legislature, there must be a concurrent resolution passed by both the senate and house of representatives fixing the hour and place of meeting, and specifying the business to be transacted; that there must be then a meeting at the time and place agreed upon of a quorum of the senate and a quorum of the house of representatives; and that no election can be held without the presence of a majority of the members of each body. It is further contended, that the act of 1879, which in terms requires the concurrence of a majority of the members elected to each house, is valid, and that, inasmuch as he himself never received the votes of a majority of the members elected to each house, he was never elected state printer, but that he first obtained a valid title to the office by virtue of an appointment by the governor on the 12th day of December, 1894, although he had exercised the duties of the office and received his compensation therefor from the 1st of July, 1891, until that date. On the part of the defendants it is contended, that there was an agreement on the part of both the senate and the house of representatives to meet in joint convention in representative hall on the 15th day of January, 1895, at 12 o’clock noon, and that all that is contained in the senate resolution beyond that fixing the time and place of meeting is mere surplusage, and counts for nothing: that there was a meeting held in accordance with the substance of the resolutions passed by both houses; that Hudson received the votes of a majority of the members of the joint convention, and of all of the members elected to both houses, and that he was therefore duly elected.
We are all agreed upon the proposition that a concurrent resolution fixing the time and place of meeting is not absolutely indispensable to the validity of the joint convention ; that if due notice is given, and a quorum of each house is present, it will be sufficient to constitute a valid convention for the election of a state printer. The constitution requires the legislature to meet in joint session on the third Tuesday in January of each odd-numbered year for the election of a state printer, and, while the usual and orderly method of fixing the time and place is that pointed out by the statute of 1861, we do not think full compliance with its provisions absolutely essential to an election otherwise valid.
Was either of the parties to this action ever lawfully elected state printer? This depends on the validity of the statute of 1879, which requires the concurrence of a majority of the members elected to each house. C. C. Baker received the votes of a majority of all the members elected to each house. But the plaintiff did not receive such a majority either in 1891 or in 1893, nor did the defendant receive such a majority in 1895. Prouty v. Stover, 11 Kan. 235, is cited and relied on largely by both parties. It was there held that “chapter 17 of the acts of 1861, providing for joint conventions of the two houses of the legislature, is applicable to the election of a' state printer, is not repealed by the constitutional amend ment of,1868, and is constitutional ” ; and that, under the sixth section of the act, an affirmative vote of a majority of all the members elected to both houses was necessary ; and that the plaintiff was not elected to the office, though on the first ballot he received a majority of all the votes of the joint convention, at which a quorum was present. The act of 1879 is valid, unless it conflicts with the constitutional provision with reference to the election of a state printer. In the case of Prouty v. Stover, it was held that the legislature might determine what majority should be required in order to elect; that in the absence of any constitutional inhibition, the legislative power in that respect was unrestricted. The act under consideration, however, presents a further question : Can the legislature not only prescribe what proportion of the votes of all of the members of the joint convention shall be required to elect, but also require a severance of the votes of the two bodies, and that the candidate shall receive the votes of a majority of the members of each house? The Chief Justice is of the opinion that the legislature has this power; that it may require a majority only of a quorum, or of all of the members elect in joint convention, or that it may require a majority of a quorum of the members elected to each house, or of all of the members elected to each house ; that there is neither an express nor implied constitutional restriction on the power of the legislature in this respect; and that' this view is sustained by the opinion of the court in the case of Prouty v. Stover. Mr. Justice Johnston and the writer, however, concur in holding the act of 1879 invalid and inconsistent with the provisions of the constitutional amendment of 1868. The term “joint session,” in our view, has a well-recognized meaning, and implies the meeting together and commingling of the two houses, which, when so met and commingled, act as one body. Each member of that body, when it has been once properly and lawfully convened, has equal rights, and his vote has equal weight with that of any other member ; and it is beyond the power of the legislature to say that, in a session which the constitution says shall be joint, the vote of a senator shall have greater weight than the vote of a member of the house. The framers of the constitutional provision, and the people .who voted for its adoption, are presumed, not only to have understood the meaning of the words they selected, but‘also the customs of joint conventions which meet in all the states for the election of United States senators, and in many of them for other purposes. Our understanding of the very purpose of making a session joint is to remove the check which each house holds on the other, and to permit the two houses combined to vote and act as a single body. If the act of 1879 is valid, 21 senators may defeat the election of a state printer, although 125 representatives and 19 senators vote for the same person. No duty would rest on the senators to yield, because their right to vote for the person of their choice would be equal to that of- the other members.
Was a valid joint convention held in 1895? The journal of the senate contains no record of the proceedings of a joint convention, but it is admitted that the journal of the house shows the principal facts with reference to what actually took place. On Tuesday, January 15, 1895, the day fixed by the constitution for the election of the state printer, a resolution providing for a joint convention to be held on that day at 12 o’clock m., in representative hall, for the purpose of electing 'a state printer, was passed by the house and sent to the senate. On its receipt in the senate, a substitute was passed fixing the same hour and place of meeting, but providing that the election should be for the ensuing regular term, and that no person should be declared elected unless he had received the affirmative vote of 21 senators and 63 representatives. This substitute was never acted on in the house, nor was there any further action in either body on the concurrent resolution. At 12 o’clock the president of the senate announced that, the hour having arrived for the election of a state printer, the senate would now take a recess till 2 o’clock p. m. He and a number of the senators then left the senate chamber, and proceeded to representative hall. The other senators remained. The president pro tem. of the senate took the chair, and the senators who remained in the senate chamber refused to recognize the right of the president of the senate to declare a recess, and refused to attend the joint session. The lieutenant-governor took the chair in representative hall, as president of the joint convention. The secretary of the senate being absent, Senator Scott was elected as secretary pro tem. On roll-call, 14 senators only answered to their names, but two others came in before the voting was concluded.
The Chief Justice is of the opinion that the separate proceedings of the two houses were sufficient as preliminaries to a joint session, but is in doubt whether a joint session can be constituted without the presence * of a quorum of each house, and on this point he expresses no opinion. ■
Mr. Justice Johnston holds these proceedings sufficient to constitute a valid joint session; that there was an agreement on the time, place and purpose of the joint session; that all that was contained in the senate resolution beyond this was mere surplusage, and should be disregarded. It appears that 122 members of the house were present and voted, and the announcement of the president of the senate notified the senators that he and the senators who accompanied him intended to then hold a joint session with the house. These proceedings, though somewhat irregular, are considered by him sufficient to constitute a valid joint convention.
The writer is of the opinion that, if a quorum of the senators had actually attended, the mere irregularities in the manner of getting together would not have invalidated the proceedings, but that the attendance of a quorum of each house is absolutely essential to the power to act as a joint convention. The constitution vests the power to elect in the legislature in joint session. The legislature consists of a senate and a house of representatives. While all of the members need not be in attendance in order to constitute a valid house and a valid senate, a quorum, which the constitution fixes at a majority, must be present. Although the house of representatives contains a large majority of the members of the joint convention, certain it seems to me that there can be no joint convention until the senate attends. The constitution nowhere, in express terms, or by any fair implication, confers on the house of representatives alone, even though every member should vote for the same person, power to elect a state printer. The senate must attend, and the word “ senate ” can never mean less than a quorum of the senate. There is no force in the suggestion that 21 senators, by refusing to enter a joint convention, can prevent the election of a state printer just as effectually as by refusing to vote for any particular person when the joint convention has been formed. The law makes it the clear duty of the senate and of the senators, under their oaths of office, to attend a joint convention, and it is to be presumed that they will do so ; but, when voting in that joint session, no duty rests on them to vote for any one other-than the person of their own selection. Officials do sometimes fail to perform the duties the law imposes on them, but, unless we can safely pre-* sume that they will perform their duties, the very idea of government must be abandoned. It is unnecessary to consider whether the attendance of the absent senators could have been compelled, under the circumstances of this case, because the facts present no such question.
It follows from these conclusions that, in the opinion of the majority of the court, Mr. Snow was duly elected .state printer in 1891; that, as no other person was elected as his successor in 1893, he held over under the provisions of the constitution, and was the state printer de jure at the time of his resignation on December 12, 1894 ; that his resignation and reappointment gave him no greater and no less title to the office than he had before, and that he was entitled to hold the office until a successor was duly elected and qualified. Chief Justice Martin holds that the plaintiff was never duly elected state printer, having never received a majority of the votes of all of the members elected to each house; that his resignation was a mere nullity because he had no title to give up, and there was no actual vacancy to be filled, for he was occupying the office every moment of the day and night of December 12, 1894, and thereafter until July 1, 1895, just as he had been ever since July 1, 1891. He held two full terms as a de facto officer, and on the expiration of the last, the defendant having a certificate of election in due form signed by the lieutenant- governor and the speaker of the house of representatives, as officers of the joint session actually held at the proper time, the secretary of state was justified in recognizing him as state printer, for he could not decide that such certificate was either void or voidable ; and the defendant, having obtained peaceable possession of the office, at least under color of proper authority, is entitled to hold it as against one having no better title, under the maxim potior est conditio defen dentis.
It is shown that C. C. Baker was duly elected state printer in 1889, and there is no definite showing that he abandoned the office, or how the plaintiff came into possession of it. Although it appears that Mr. Snow was actually in the possession of the office and recognized as state printer by the other state officials, yet, in his view, these facts alone are insufficient to show that Baker had voluntarily abandoned an office to which under the law he was entitled, and which he could have recovered unless estopped from so doing by his own act. Was Mr. Hudson elected, then, in 1895? The view of the Chief Justice is that’he was not elected, because he failed to receive the votes of a majority of all the members elected to the senate, as required by the act of 1879. The view of Mr. Justice Johnston is that he was elected; that the joint convention was duly held ; that he received a majority of all the votes cast in that joint convention, and that such vote was sufficient. The view of the writer is that lie was not elected because no joint convention was held, no quorum of the senate having attended. What, then, must be the judgment ? Though a majority of the court are of the opinion that Mr. Snow was elected, a different majority are of the opinion that Mr. Hudson was not elected. The Chief Justice holds that Mr. Snow cannot recover in either of these actions, because he has failed to establish his own title to the office. Mr. Justice Johnston" holds that he cannot recover because Mr. Hudson was duly and legally elected as his successor. The writer alone is of the opinion that the plaintiff ought to recover; that he has shown a valid title to the office ; and that the defendant has no title to it.
Judgment will be entered in favor of the defendants for costs in both cases.
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The opinion of the court was delivered by
Martin, C. J.
: I. The first point suggested is whether the parties that performed labor and furnished material in the construction of this building under subcontracts 'while the law of 1872 was in force could, after the repeal of that law, proceed either thereunder or under the act of 1889 to perfect mechanics’ liens upon the property. It is provided in chapter 104, General Statutes of 1889, ¶6687, which took effect October 31, 1868, that “the repeal of a.statute does not . . . affect any right which accrued . nor any proceeding commenced under or by virtue of the statute repealed” ; and again, “ the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” A right accrued to these subcontractors under the act of 1872 by performing work and furnishing materials in the erection of the building. (Weaver v. Sells, 10 Kan. 609 ; Brown v. School District, 48 id. 709, 711; Nixon v. Cydon Lodge, ante, p. 298.) Under the act of 1862, a subcontractor was required to file his lien statement within 60 days after the completion of the building; but under that of 1889 he must file it within 60 days after furnishing the last item of his account. And by the rulings of this court upon the act of 1872, where the work was abandoned either by the fault of the contractor, the owner, or both, the subcontractor might treat the building as completed, for the purpose of filing a mechanic’s lien. (Shaw v. Stewart, 43 Kan. 572, 577 ; Lumber Co. v. Savings Bank, 52 id. 410, 414.) The right to the liens accrued under the act of 1872, but the procedure for enforcing them, which included the filing of the lien statements, the giving notice thereof, and the commencement of action thereon, is governed by the act of 1889. (Nixon v. Cydon Lodge, supra.) By the act of 1872, the time limited for the commencement of the action to enforce the lien was one year after the completion of the building; but, under the act of 1889, the suit must be brought within one year after the filing of the lien statement, and therefore these statements were not filed too soon, nor the action prematurely commenced.
II. The Ambrose Manufacturing Company did not file its lien until nearly 10 months after the furnishing of the last item of its account, but it stood ready to furnish the remaining materials, amounting to $124 in value, as soon as they should be needed, and in accordance with its agreement with the contractor ; and, clearly, it had a right to file its lien statement within 60 days after the abandonment of the contract by Malone, as it could not be expected to furnish the remainder of the materials after that time under its subcontract. The Horton Hardware Company furnished items insignificant in amount from June 15 to June 20, 1889, before it had any knowledge of the abandonment by Malone; but as the hotel company failed to notify the hardware company of the abandonment and received the benefit of the goods furnished, we think it has no right to complain ; and the same remarks apply to the claim of John Collins for painting, a small part of which was done after the abandonment by Malone, but without notice thereof, by reason of the hotel company withholding the information.
III. We think the evidence justified the referee in finding that the hotel company failed to make its payments according to the terms of its contract with Malone, and that this was the principal cause of the abandonment; and as it was provided in the contract that Malone and his bondsmen should not be liable for any delays caused by the failure of the hotel company to make its payments, Hugh Caugliey, as surety, was properly relieved from any liability upon the bond, especially as it is found by the referee that the building could have been completed at the contract price by Malone, if payments had been promptly made and the work pushed with a large force; and we see no error in allowing judgment in favor of Hugh Caughey against the hotel company for the pro rata amount of the order for $1,701.86.
IV. The lien claimants, in their several cross-petitions in error, complain because they were not allowed the full amount of their claims, but were compelled to prorate, as mentioned in the statement. But subcontractors are bound to take notice of the original contract, and they cannot obtain liens in excess of the amount which the owner has agreed to pay the original contractor. (Nixon v. Cydon Lodge, supra; Laws 1872, ch. 141, §2; Laws 1889, ch. 168, §3.)
V. The claimants also complain of the ruling of the referee and the court relieving the real estate from the burden and ■ remitting them to their several actions on the bond given in pursuance of section 13 of said act of 1889 ; and their position must be sustained, in accordance with the reasoning contained in this opinion. The right to a lien upon the real estate, which accrued under the act of 1872 by performing labor and furnishing materials, was not divested by the giving of a bond as authorized by said section 13 of the subsequent act. ( Weaver v. Sells, supra.)
The court below will be directed to modify its judgment so as to allow the pro rata amount of the several claims as liens upon the real property. In all other respects the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: As John S. Williams was driving along a highway and over a public crossing of the railway, he was struck by an engine of an approaching freight-train of the plaintiff in error, and killed. At the point of collision the railway extended east and west and across' the public highway on which the deceased was traveling at right angles. At the time of the collision a hedge fence extended from some distance north of the railway along the west side of the highway and within from 15 to 26 feet of the railway track. West of this hedge was a large, dense orchard, covering several acres, which extended down to and upon the right of way of the railway. The hedge was thick with foliage, and 10 feet high, and this, with the orchard, rendered it difficult for a person driving on the highway to see a train approaching from the west until he had passed the point to which the hedge and orchard extended. At the time of the accident Williams was riding in a wagon and driving south on the highway, while the train with which he collided was coming from the west; and it appears that he was not seen by those in charge of the engine until they were within from 100 to 150 feet of the crossing. This action was brought by the administratrix of the estate of the deceased to recover damages alleged to have resulted from his death, and the iury awarded a verdict for the plaintiff below for $4,000.
The. principal questions presented for our consid eration arise upon the rulings of the court in charging the jury. In one of the instructions the jury was told that
‘ ‘ The traveler on the highway is not bound to stop when he approaches a railroad, but is bound to use his senses of sight and hearing, and must exercise that degree of diligence in ascertaining the approach of the engine that a man of ordinary prudence would have exercised under like circumstances.”
This ruling cannot be sustained. In effect, the jury were told that, dangerous as the crossing was, the deceased was not required to stop before attempting to cross. It appears that the view of the traveler was greatly obstructed at the crossing in question, and that it was an especially dangerous one to a person approaching from the north; and it further appears thar the deceased was familiar with the conditions surrounding this crossing. How, then, can the court say, as a matter of law, that the traveler was not required to stop? The degree of care to be used by a traveler approaching a crossing depends upon its location arid surroundings. If by reason of obstructions or other causes it is difficult to see or hear the approach of a train, greater care should be exercised than if no such difficulties existed. It was ruled in A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, that
“ Ordinarily, it is not the duty of a traveler on approaching a railroad track to stop ; but there are cases where, by reason of obstructions or noises in the vicinity, he would be required not only to look and listen, but to stop and listen, before crossing the track. Whether the surroundings of the crossing and the existing circumstances and conditions'are such as to require him to stop, is ordinarily a matter for the determination of the jury.”
The supreme court of Wisconsin announced the rule as follows :
“ If the view of a traveler on the highway approaching a railroad crossing is so obstructed that he cannot see an approaching train in time to stop his team before colliding with it, if he knows a train is due at such crossing at or about such time, and if he is unable to hear the approaching train when his team is in motion, whether by reason of the force and direction of the wind or of noises in the vicinity, whether made by his own wagon or by other causes, ordinary care requires him to stop his team while he may do so, and listen for the train.” (Seefeld v. Railway Co., 70 Wis. 216.)
In Patterson on Railway Accident Law, § 177, the rule, as to the degree of care which a traveler should use at a crossing is stated as follows :
‘‘ Where the view of the line from the highway is obstructed, or the crossing is in other respects specially dangerous, it is the duty of the traveler to exercise a higher degree of care, and if he cannot by looking and listening satisfy himself that it is prudent to cross the line, he must stop, or he must adopt such other precautions as ought to be taken under the particular circumstances of the case.”
See, also, Railway Co. v. Stommel, 25 N. E. Rep. 863 ; Railroad Co. v. Crisman, 34 Pac. Rep. 286.
In view of the conditions surrounding this crossing, it was error for the court to declare, as a matter of law, that the traveler was not required to stop. Under the circumstances of the case it was a proper matter for the consideration of the jury.
The court also trenched upon the province of the jury in declaring that it was the duty of the railway company to keep its right of way at the crossing in question free from obstructions and open to the vision of travelers on a public, traveled road. The duties of the company and the traveler at a public crossing are to some extent reciprocal. Both must take such precautions to avoid accidents as the circumstances of the case require. The railroad company should not allow any unnecessary obstructions upon its right of way near a public crossing which would obstruct the view of an approaching traveler nor of those in charge of the approaching engine and train. If it unnecessarily and negligently permits brush, trees or other obstructions to grow or. stand upon its right of way near a public crossing, it must be held responsible for injuries resulting to others from such negligence, providing such others are free from fault. In the conduct of the business of the company, however, it is necessary to place buildings and other structures and things upon the right of way, and therefore it cannot be arbitrarily said by the trial court that it is the duty of the company to keep its right of way at the crossing in question open and free from any obstruction which would obscure the vision of a traveler and prevent him from seeing an approaching train. Whether it is necessary or negligent to place an obstruction upon the right of way is another matter to be left with' the jury.
For these reasons the judgment cannot be allowed’ to stand. It is insisted by the company that it is entitled to judgment upon the findings and evidence, but a reading of the same satisfies us that we would not be warranted in directing a judgment in its favor.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: These cases were set down for argument at the last session on the juifisdictional questions presented by the records. The case of McPherson v. The State, ex rel., is a petition in error to reverse a judgment of the district court of Sheridan county, removing the defendant from the office of county clerk of that county for corruption and official misconduct. There is no money judgment to be reviewed,, except for costs, nor are there any parties to the proceedings hut the plaintiff and the state. The case of Dunn v. Dunn is a petition in error to reverse a judgment of the district court of Riley county, granting a divorce to the defendant in error, and awarding to her the custody of two minor children, and $50 for attorney’s fees. There are other orders with reference to the property of the parties, but nothing whatever to indicate the value thereof. Two questions not heretofore passed on by this court are to be determined: (1) Whether the judgment of the district court is not final. (2) If an appeal lies, whether the jurisdiction is in this court, or the courts of appeals.
■ Section 1 of chapter 245 of the Laws of 1889, (Gen. Stat. 1889, ¶4642,) provides:
“No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars ($100), except in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution, or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district court, or superior court trying the case involving less than one hundred dollars ($100) shall certify to the supreme court that the case is one belonging to the excepted classes.”
Under this section, if the action be one to recover money, or specific property, and does not fall within any of the exceptions, it is clear that the judgment of the district court is final. Did the legislature intend to take away, all right of appeal in cases involving rights not susceptible of a valuation in money, or did it intend that the restriction should be confined to cases involving an amount of money, or something having a value in money? The language employed does not express the purpose of the legislature in this particular with perfect clearness, and would seem to be susceptible of either construction. We find that by chapter 107 of the laws passed at the same session the law with reference to appeals in divorce cases was amended so as to require a notice of intention to appeal to be filed in the office of the clerk within 10 days, and allowing a petition in error to be filed within four months from the date of the decree. Chapters 107 and 245 were both approved by the governor on the 2d day of March, 1889. Although chapter 107 was first published jn the official newspaper, and therefore took effect first, it is clear that the legislature intended that both acts should take effect, and that appeals should be allowed in divorce cases. Although property rights are often determined in divorce cases, they are disposed of rather as incident to the divorce, where one is granted, than as the principal - subject of controversy. The provisions of chapter 107 permit an appeal as well where there is not as where there is a judgment for alimony. In the case before us there is also an order with reference to the custody of children. The rights affected by the judgment of divorce, and by the order with reference to the children, though wholly incapable of valuation in money, are yet of first importance to the individual. It was the evident purpose of the legislature in passing chapter 245 to cut off appeals in cases of trifling importance, where it was deemed better that such litigations should end with the district court than that they should consume the time of this court in the overcrowed condition of its docket. While there is no act passed at the same session of the legislature showing conclusively that it was not intended to cut off appeals in cases involving the right to hold an office, as the first case now under consideration does, the reasons for allowing the appeal apply with substantially the same force to both cases. A removal from office for corruption or misconduct not only deprives the defendant of the emoluments of his office, which may be much or little, but subjects him to a lasting disgrace and injury not susceptible of valuation in money, and we think the defendant has the right to have the proceedings of the trial court reviewed and to be relieved from the consequences of any errors of law it may have committed.
Having reached the conclusion that the cases may be reviewed, we have little difficulty in determining the second question. So much of section 9 of chapter 96 of the Laws of 1895, concerning appellate courts, as is. applicable to the question under consideration reads as follows:
“ Said courts of appeals . . . shall have exclusive appellate jurisdiction, as now allowed by law, . . in all proceedings in error, as now allowed by law, taken from orders and decisions of the 'district court, and other courts of record, or the judge thereof, except probate courts, in civil actions before final judgment, and from all final orders and judgments of such courts, within their respective divisions, where the amount or value does not exceed $2,000, exclusive of interest and costs. . . . All other cases of appeal and proceedings in error shall be taken as now provided by law. ’ ’
Hiving to the words used in this section the same construction given to section 1, chapter 245, of the Laws of 1889, it must be held that the courts of appeals take jurisdiction of cases under the provision quoted only when there is amount or value in controversy which does not exceed $2,000.
It follows from this construction that proceedings to reverse judgments for divorce and of removal from office must be brought in this court, and not in the courts of appeals, and that this court has jurisdiction of the two cases under consideration.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: On January 14, 1890, Fayette Vincent, -who was a section hand in the service of the Atchison, Topeka & Santa Fe Railroad Company, had his leg broken while repairing a railroad track. He claimed that the injury -was the result of the negligence of McCandless, the foreman of the crew, and he brought this action against the company, in which he recovered $3,000 as damages for the injury which he sustained. The only substantial question presented for review is 'whether there is sufficient testimony to support the recovery.
It appears that there were but three men in the crewq McCandless, the foreman, Oswald, and Vincent. The foreman had received directions to remove a defective rail in the track at Alden and replace it with a sound one. There was a pile of rails of varying lengths near the track, resting on ties, to which some of the rails liad been spiked. The ends of the rails were under and against the tool house. Two rails had been taken from the pile to the point where the new' rail was needed on a hand car, neither of which was found to be suitable, and then the men returned to the pile of rails and found one determined to be suitable, which was 14 feet long and weighed about 243 pounds. There is testimony that McCandless proposed to carry it on their shoulders. The rail was shoved out, and one end of it was placed on the left shoulder of Oswald, the other end was placed on Vincent’s right shoulder, and McCandless then passed to the center of the rail and supported it with his left shoulder. The pile of rails being upon the right of Vincent, he was unable to take a position upon the right side of the rail and thus place it upon his left shoulder. They carried the rail about 200 yards to the place where it was needed, and upon the way Vincent warned them that he was upon the opposite side of the rail, and when they reached the place where it was to be used, McCandless told Oswald to wait until he went back and relieved Vincent, as Vincent had the rail on his right shoulder. McCandless then went back to the end of the rail, stepped in front of Vincent, and placed his left shoulder under the rail for the purpose of relieving Vincent. Vincent was the taller of the two, and had to stoop to allow the rail to rest on the shoulder of McCandless, and as he did so, and before he had time to get out of the way, McCandless gave the word, “Throw,” and it was thrown,' and struck Vincent upon the leg, causing a serious injury. The backs of both McCandless and Oswald were toward Vincent, and hence they did not see him at the time the rail was thrown. It is evident that McCandless • supposed that Vincent had stepped back to a point of safety before the rail was thrown, and in his testimony he stated that he thought there had been sufficient time for him to get 10 feet away before the word to throw was given; but that he did not give him time to step back is shown by the testimony.
It is contended that Vincent was guilty of contributory negligence because the rail was carried upon their shoulders instead of upon the hand-car, which was the usu,al method of transporting rails. The testimony is, however, that the rail was carried in that way by the direction of the foreman, and in view of the fact that the rail was a short and a light one it can hardly be regarded as a specially hazardous or negli gent method to carry it upon their shoulders. The jury found that the carrying of the rail in that manner was not hazardous nor dangerous.
It is said that if Vincent had carried the rail upon his left shoulder instead of upon his right the accident would not have occurred, but the peculiar situation of the pile of rails from which the one carried was taken sufficiently accounts for placing it upon Vincent’s right shoulder. The injury resulted from the precipitate action of the foreman rather than from the manner in which Vincent happened to carry the rail. The foreman was in charge of the work and authorized to give directions as to the method of doing it. He assisted in placing the rail on Vincent’s shoulder, and he gave the word to throw before Vincent had reached a place of safety. The dispute in the testimony as to whether there was sufficient time for Vincent to step aside and out of danger after he was relieved from the weight of the rail has been settled by the jury, and, as before stated, there is sufficient testimony to sustain the finding. The service in which Vincent was engaged was performed on the company’s road, and, being necessary to its use and operation, places him within the provisions of the act which makes railroad companies liable to their employees for damages resulting from the negligence of a coemployee. (U. P. Rly. Co. v. Harris, 33 Kan. 416 ; A. T. & S. F. Rld. Co. v. Koehler, 37 id. 463.)
Objections are made to some of the special findings returned by the jury, but we find nothing in them that betrays partiality or prejudice, nor anything which would justify a reversal.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: I. In the parlance of railroad switch yards, when a car running or standing on one track is struck by a car or cars in motion on another before the two tracks have sufficiently diverged to admit of the cars clearing each other, they are said to "corner” ; and it was a collision of this nature, between cars running in the same direction upon different tracks, that caused the death of Elmer E. Butler. Such an occurrence can hardly take place without the fault of one person or more. It is claimed by the railroad company that the petition is insufficient to charge the foreman or switchman with negligence, and instructions were asked to that effect. The petition was not well drawn, yet we think that, by-a liberal interpretation, it may be said to charge negligence and carelessness in the management of the cars, as well as that of the engine, and as no motion was made with a view to its correction we must hold it to be sufficient.
II. Before Butler’s car got far enough on the house track to clear, it was struck by the train on the river track. Had his car run a little faster or the train on the river track a little slower, the collision would not have occurred; and the real question was whether the fault was that of Butler or of the men in the management of the train that was set upon the river track. The jury have found in substance that those in the management of the train were in fault, and that Butler was not, and we think the evidence sufficient to justify their verdict. It tended to show that the train was kicked down upon the river track with great force before Butler’s car had time to get out of the way. It is possible that Butler may have turned the brake-wheel without setting the brake, and this sooner than he should have done, but common prudence would dictate and the rules of the company required that cars should n.ot be ‘ ‘ cornered ’ ’ ; and, before a train is set upon a track, those in the management of it should use reasonable diligence to see that it will clear the car or cars on another track. Reliance is placed by the railroad company upon the fact that those in the management of the train after Butler’s car had been cut off thought it had sufficient momentum to take it beyond the clearing post, and we doubt not that they were correct. But they did not give it time. It was still running when it was struck, and, perhaps, in two or three more seconds it would have been out of the way, but the other cars were hurled down upon it on the other track; and we cannot say that this was not negligence. The evidence tends to show that Butler was upon the top of the car at or near the brake, and looking toward the east, where it was his duty to couple to others at or near the warehouse. In this position he probably did not see the clearing post, nor know the exact location of his car with reference to it; and, after the train was uncoupled from the way-car, it was not in the power of any of the crew to check it, and if Butler noticed it no signal from him would have been of any avail.
III. Many particular questions of fact were submitted to the jury on behalf of the defendant below, and complaint is made that some of the answers were indefinite, and the court refused to require the jury to reconsider them. We think, however, that the court should have refused to submit some of them in the first instance. We will quote only one question and answer, namely :
“ (38) Is it not a fact that Butler, when on top of the car, could, by remaining there, have seen whether the car he was riding had passed east of the clearing post or not before it stopped? A. Depends upon circumstances.”
This question is negative in form, and leading. Besides, it asstimes that t|ie car stopped before the collision ; and this is not only unsupported by the evidence, but contrary thereto. Several questions of a similar character were asked, apparently for the purpose of entrapping the jury. It is true that a party has a right to reques’t answers to particular questions of fact pertinent to the issues, and which can be answered fairly upon the evidence-, as held in Bent v. Philbrick, 16 Kan. 190, and other cases, and the court has no discretion to refuse to submit such questions to the jury; but this court has often animadverted upon the abuse of this valuable right. (City of Wyandotte v. White, 13 Kan. 191, 196 ; Mo. Pac. Rly. Co. v. Holley, 30 id. 465, 472; A. T. & S. F. Rld Co. v. Ayers, ante, p. 176, 42 Pac. Rep. 722, 723.) The cross-examination and badgering of a jury should not be tolerated, and the court should draw heavy black lines across all such questions.
IV. Some legitimate criticisms are made upon the instructions. The court stated to the jury that it was the duty of all employees associated in the service of the railroad company, “first, to exercise care and diligence for the safety and life of other employees ; and, second, to exercise care and diligence for the protection of the property and interest of the employer.” The second clause should not have been given, for, while it may be correct as an abstract proposition, it is not applicable to this case. But we do not think that the jury could have been misled by it, and this remark is applicable to other parts of the instructions complained of.
Upon the whole, there was no material error in the case, and the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.:
The right of the plaintiff to recover depends upon whether there has been a failure of the title to the land in question, and which the defendant attempted to convey by a deed containing full covenants. If the railway company and those claiming under it acquired no title to the land, and if it remained public land, subject to pre-emption or homestead entry, then Oox acquired a good title to the land, and the contention of the plaintiff must prevail. The claim that the plaintiff must fail because he did not resist the entry of Oox is without force, if the paramount title was in the United States. “ Where the title to the land in controversy is in the United States and liable to entry and settlement under the provisions of'the homestead law, that, of itself, is such a hostile assertion of the paramount title as would authorize the purchaser to voluntarily submit to it.” (K. P. Rly. Co. v. Dunmeyer, 19 Kan. 539.) The question, then, is: Did the railway company acquire the land under the grant, and were the steps subsequently taken sufficient to vest it with title thereto? Under the act of congress, there was granted to the state for the benefit of the railway company “every alternate section of land or parts thereof, designated by odd numbers^, to the extent of five alternate sections per mile on/feach side of the road, and not exceeding in all 10 sections per mile.” The act contained the provision that if any of the land specifically granted had been sold, reserved, or if the right of pre-emption or homestead settlement had attached to the same, an equal amount of other land might be selected from the public lands nearest to the excepted sections, and within 20 miles from the line of said road, for the purpose of making up such deficiency. (14 U. S. Stat. 289.) The land in question was not a part of the alternate odd-numbered sections specifically granted, but was within the 20-mile limit from which lands might be selected to 'supply those lost to the grant from sales or other disposition made before the date of the grant. If it had been within the place limits of the grant; the right of the company would have attached when the line of railway was definitely located opposite to it; but the grant of indemnity lands does not attach to any specific tracts until it is known what the deficiency is, and a selection is made to supply the deficiency, as the law requires. The court below seems to have proceeded upon the theory that the homestead entry of Walters, made in 1863, would, if it had been kept alive, have operated to exclude the land from the pror visions of the grant; but that, by reason of his.abandonment of the homestead, it passed under the grant to the railway company, and because of that fact the plaintiff’s title to the land had not failed. Not being within the place limits of the grant, it is immaterial that there was a homestead entry upon the land at the time of the grant or of the definite location. Being within the indemnity limits, it was only important to determine whether it was public land and subject to selection at the time the selection was-actually made. If it had been within the place limits, the uncanceled entry of Walters would, under the recent decisions of the supreme court of the United States, and notwithstanding the abandonment, have operated to exclude it from the grant. (Railroad Co. v. Whitney, 132 U. S. 357 ; Whitney v. Taylor, 158 id. 85. See, also, Newhall v. Sanger, 92 U. S. 761; K. P. Rly. Co. v. Dunmeyer, 113 id. 629 ; Bardon v. Railroad Co., 145 id. 535.) So far as the land in controversy is concerned, the legal effect of an abandonment was wholly immaterial,-as no title to the land could be acquired by the company until the selection was made, and prior to that time the-entry of Walters had been duly canceled.
Although the case was disposed of by the trial court upon an erroneous view, the question remains whether the railway company obtained title to the land by the subsequent selection that was made. It appears to have .been made with the permission of the land department, in lieu of land lost to the company by reason of the attachment of homestead or pre-emption rights. The fees were paid, and a certificate of selection was duly issued to the company. The land was within the indemnity limits of the grant, and, if it was subject to be selected by the company as indemnity land, it would seem, from the agreed facts, that tlie selection was properly made, and .that the- company was entitled to the land. • It appears, however, that the land was in an evén-numbered section, within the place limits of the grant to the Union Pacific Railway Company, and, further-, that it had been reserved to the United States for a specific purpose, and was therefore not subject to disposal under the general laws relating to the public domain. The granting act of July 26, 1866, under which the land in question was selected, contains a reservation clause excepting from the operation of the act all lajafds reserved by congress or other competent authority for the purpose of aiding in any object of' internal improvement or other purpose whatever, except for right of way of the railway. Undei the Union Pacific grants, the odd-numbered sections within 20 miles of the line of road were granted, and by another provision the even-numbered sections within the limits of the grant were made double-minimum lands, and rated at $2.50 per acre, and were only subject to entry under the laws relating-to the disposal of such lands. (12 U. S. Stat. 489; 13 id. 356; -14 id. 79; 15 id. 39.) When the even-numbered sections within the place limits of the Union Pacific grant were set apart for the specific -purpose named, they were, in fact, reserved by congress, and in a certain sense segregated from the body of the public lands of the United States. This was the view taken in the case of United States v. M. K. & T. Rly. Co., 141 U. S. 358. It was held that, as the result of the construction of the railroad aided would - be an increase of the market valué of the sections -remaining to the United States within the limits of -the grant, the sections so ■ reserved- were excluded from the operation -of the grant. “In order that the government' might get the benefit of such increase of value and thereby reimburse itself to some extent for- the land granted, . . . the act of 1863 made special provisions in reference to those reserved sections, and thereby, and for the accomplishment of particular purposes, expressly. declared, segregated them from the body of the public lands of the United States.” Until the lands were actually selected and set apart under the direction of the secretary of. the interior specifically for indemnity purposes, the title thereto did not vest in the company, but remained in the United States and subject to its disposal. Long before the selection was made, the lands in question had been reserved and specifically set apart for a purpose wholly inconsistent with the theory that they might be taken for indemnity. If the company was permitted to select from the double-minimum lands, it would thereby receive lands of twice the. value of those lost to the company, and in lieu of which the selection was made. The theory-upon which indemnity was provided was, that if the lands specifically granted had been disposed of, or the rights of settlers had attached to them, other equivalent lands might be selected in their place. It was certainly not the intention of congress to enhance the grant by allowing a selection of lands of twofold the value of those lost by previous disposition or reservation for other purposes. As the land in question had been reserved to the United States for a specific purpose, it was not subject to selection by the railway company, and the land department was without authority to transfer the land to. the company by the process of selection, certification, or by patent. No patent, however, whs issued to the company, but, upon proceedings 'which appear to be regular, a final certificate was issued to Cox, and subsequently a patent in due form was issued to Mm. It therefore appears that there was a complete failure of title, and that plaintiff is entitled to recover the damages sustained. We cannot ascertain from the agreed facts the amount of damages which should be awarded, and hence judgment cannot be ordered upon the findings.
The judgment will be reversed, and the cause remanded to the district court to try and determine the x amount of damages which the plaintiff has sustained.
All the Justices concurring. '
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The opinion of the court was delivered by
Martin, C. J.:
I. The principal question is whether the Rock Island train was so far under the control of the Union Pacific company that the negligence of the Rock Island crew must be imputed to the Union Pacific company, the defendant company being thereby exonerated from liability. Counsel for defendant seek to cast the blame upon the train-dispatcher and operators in failing to stop the following train, particularly at Bonner Springs, and upon the Union Pacific crew in taking in the tail-lights, and failing to keep a brakeman on the rear end of the train, supplied with lanterns and torpedoes, as required by the rules. It may be that under the evidence the train-dispatcher and operators should be treated as the joint employees of the- two companies, and the servants of the particular company whose business they were attending to for the time being. (H. & St. J. Rld. Co. v. Martin, 11 Bradw. 386, 390 ; W. St. L. & Pac. Rly. Co. v. Peyton, 106 Ill. 534, 540; N. & C. Rld. Co. v. Carroll, 6 Heisk. 347, 352, 354; Vary v. B. C. R. & M. Rld. Co., 42 Iowa, 246.), We need not, however', so decide in this case, for the evidence tends to show that the Rock Island train was coming into the junction at an unusual speed, considering the fog, the knowledge of the engineer and fireman that the Union Pacific train was behind time, but had not lost its rights, and the rule that “first-class trains, when behind time, must not' exceed card time unless the condition of track, weather, and all circumstances warrant their doing so with safety.” There is some conflict in the testimony as to the distance that the Union Pacific train might have been seen through the fog. It was daylight, and all agree that the train might have been seen at some short distance, yet it was not observed at all before the collision. It being known that the Union Pacific train was' behind time when leaving Lawrence, that it had stops to make at stations where the Rock Island train was not expected to stop, and that the fog would probably prevent it*from making up time, a reasonable exercise of judgment on the part of the Rock Island engineer should have indicated to him that the Union Pacific train could not be far ahead, and that he should run very cautiously. The Union Pacific company was not a party to this suit, and therefore was not called upon to justify or extenuate the conduct of its crew or that of the train-dispatcher and operators. It would seem from the evidence introduced that the greater curability rests upon them ; but this would not excuse the negligence of the crew of the Rock Island train, nor. relieve the defendant company from liability for an injury caused thereby. (C. K. & W. Rld. Co. v. Ransom, ante, p. 559.) The speed of the Rock Island train at the time of the accident was under the direct control of the engineer, and to declare that-he was then the servant and under the exclusive control of the Union Pacific company would be a fiction which we are not warranted in creating out of the circumstance that the train was running upon the Union Pacific track subject to detention at telegraph stations by the train-dispatcher and operators employed by the Union Pacific company. In Webb v. P. & K. Rld. Co., 57 Me. 117, 135, it was held that, when one railroad company is by permission using the track and easement of another, the former is held to observe such precautions for the safety of the public at a crossing as shall be fully equivalent to those required by reasonable care and prudence of the latter. Edward Jackson, while occupying the smoker on the Union Pacific train, cannot be regarded in the light of a trespasser as to the Rock Island company. The passenger and the train had a right to be there, and Jackson was entitled at least to a measure of protection equal to that of a person crossing the track upon the highway. It was the duty of the Rock Island engineer to be on the lookout for the train upon which Jackson was a passenger. No diligence on the part of the train-dispatcher or the operators could have averted or rendered less disastrous a collision consequent upon the failure of the engineer to keep a proper lookout for obstructions on the track, or upon the running at a reckless speed at a place where great caution was necessary to avoid disaster.
A general servant of one master may become the special servant of another for a particular purpose, so that the negligence of the servant in the particular business may not be imputable to the general master. This exemption of the general master from liability arises when the special master lias the full and independent control of the servant for the time being. The principle is analogous to that of the exemption of the owner of a building or other structure in process of erection for an injury resulting from the negligence of the seryant of an independent contractor to whom the work has been let, the servant in such case not being deemed the servant of the owner; and cases of this character are cited by counsel for plaintiff in error as being applicable here. In Byrne v. K. C. Ft. S. & M. Rld. Co., 61 Fed. Rep. 605, it was held that a railroad company is not responsible for negligence in the operation of an engine when, at the time of the casualty, the engineer and the crew by which it was operated were hired to and under the control of another company, and this on the principle that, though the servant may remain the general servant of the master, yet if the master has parted with the power of controlling him in the work in which Tie has engaged, the master will not be responsible for his negligence. Smith v. St. L. & S. F. Rly. Co., 85 Mo. 418, was decided upon the same principle by three of the five judges, the other two dissenting upon the ground that this doctrine was not applicable to the facts in the case. There the defendant had no track between Pacific Junction and St. Louis, but its trains were transported over the Missouri Pacific track between those places by locomotives, engineers and firemen furnished by the Missouri Pacific company, although the other trainmen were employed and paid by the defendant company. No business was transacted by the defendant company on its own account between Pacific Junction and St. Louis, but Missouri Pacific passengers were taken upon and permitted to alight from its trains at the intermediate and terminal stations. The plaintiff’s intestate purchased a ticket from the Missouri Pacific company at St. Louis for the town of Webster, one of the intermediate stations, and in alighting at that place he was injured and killed by reason of the failure of the train to stop long enough for that purpose. These facts were held by the majority of the court, with at least a fair show of reason, to establish that as to this Missouri Pacific passenger the servants of the defendant company were under the control of the Missouri Pacific company in the transaction of the passenger business of the latter, and that it alone ought to be held liable. We need not consider, however, whether the decision of the majority or the dissent of the minority was based upon the better reason, for, in any event, the facts are essentially dissimilar from those in the present case.
II. The objections to instructions 4 and 5, respectively, given to the jury, may be considered together. It is said that each is complete in itself, and that neither embraces all the elements necessary to a recovery. It is often difficult to frame a single instruction which shall embrace all the phases of a complicated case, but this is generally unnecessary. An instruction to find for one party or the other, embracing fewer conditions than those necessary to a recovery, would, of course, be erroneous ; but sometimes a part only of the conditions alleged or proved may be sufficient to justify a recovery. It is claimed in argument that instruction 4 singles out the circumstance that the collision occurred in a thickly settled community, while the Rock Island train was running at a high rate of speed, and makes this the basis of a verdict for the plaintiff; and counsel say that the place was not thickly settled. This, however, was a question of fact for the jury, and we cannot say that there was no evidence tending to support it. But, suppose this condition should be left out of consideration altogether : the instruction would still seem sufficient, for it embraces all the essential elements of negligence to justify a recovery. It is also said that instruction 5 was unfair to the plaintiff in error, because it was based upon the testimony and theory of the defendant in error, and did not refer in any manner to the faults of the train-dispatcher and operators and the crew of the Union Pacific .train. The negligence of one or all of these, however, would not absolve the Rock Island company from liability for the negligence of its own servants, and in giving instructions upon the theory of the plaintiff below it was not necessary for the court to explain the theory of the defense. This was properly done elsewhere in the instructions.
III. Some adverse criticism is bestowed upon that part of instruction 6 to the effect that "the jury are not bound to take the testimony of any witness as absolutely true.” It would have been better to omit this 'clause, or to qualify it by adding, "if there is reason to believe it false or mistaken,” or words of similar import. The objectionable clause is of the character criticised by Mr. Justice Johnston, in C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 382 ; but, for the reasons there stated, we do not deem the error to be so material or prejudicial as to justify the reversal of the judgment.
IV. The first clause of instruction 20 requested by the defendant was unobjectionable. The second clause, if it may be called such, is imperfect iu that it leads to no conclusion; but the proposition was fully covered by other instructions given by the court at the request of the defendant below, either as asked or in a modified form, and therefore no error was committed in refusing it.
V. Instruction 22 requested by the defendant below might have been properly given. The jury, in the consideration of the conduct and motives of men, may take into account the instinct of self-preservation and the known disposition to avoid injury. (Way v. Ill. Cent. Rld. Co., 40 Iowa, 341, 345.) . In some cases such an instruction may be necessary, especially where a fact is involved in doubt, and there is no direct testimony upon the subject. In such a case presumptions are often important. In this, however, direct proof was available, and it appeared that the Rock Island locomotive collided with the Union Pacific train before the engineer knew that it was there. The inference of negligence arising against him is therefore very strong, and the presumption of care and caution from the instinct of self-preservation would have little bearing upon the case, and the court •committed no material error in refusing the instruction. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586.)
The judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: This action was brought by Vernealia Pell against H. M. De Cordova to recover upon two promissory notes executed by De Cordova in favor of Pell on March 15, 1887, each for the sum of $1,000, bearing interest from date at the rate of 7 per cent, per annum. The notes were in the usual form, except that on the back of each was the following indorsement :
“ Schell City, Mo., March 15, 1887.
“ It is agreed by and between all the parties to this contract that the within note shall be liable for the payment of all lawful claims against the land this day conveyed, and for the payment of which this note is given, being for part payment for [description of the land]. Veknbalia Pell.
R. S. Pell.”
Default being made in the payment of the notes, this action was brought, and in his answer De Cordova set up four defenses, each of which the court, upon demurrer, held to be insufficient. De Cordova elected to stand upon his answer, and judgment was rendered against him for $2,888.22. The judgment was afterward assigned to G. S. Hoss, the present defendant in error.
The first defense alleged the sale by Pell to De Cordova of a tract of land in Vernon county, Missouri, and that the notes in suit were for a part of the purchase price of the land. It was averred that at the time of the execution of the notes, and as a part of the same transaction, the Pells signed the stipulation on the back of the notes, and further, that there then existed a lawful claim against the property sold, for the sum of $2,500, due in five years from April 1, 1887, with interest at the rate of 10 per 'cent, per annum from that date, secured by a trust deed to a certain trustee, and that the note and indebtedness were still unpaid, and the trust deed still in full force. 'According to the averments of the answer, the execution of the notes, with the indorsements thereon, was a single transaction, and together they constituted the contract of the parties. The statement that the note shall “be liable for the payment of all lawful claims against the land,” although awkward, manifestly means that the notes were taken subject to any lawful claims that might exist against the land, and that the payment so promised was chargeable with any valid lien or incumbrance which existed against the land when the contract was made. The averments respecting an existing incumbrance, although not as full as they might have been, are certainly sufficient to withstand a demurrer, and the court committed error in holding that the first defense was insufficient.
The rulings upon the second, third and fourth defenses were correctly made, and will require but little attention. In the second it was alleged that a certain building that was standing upon the land was insured for a certain unknown sum of money, that it was subsequently destroyed by fire, and that Pell received insurance to the amount of $700. It is not stated when the building was burned, nor who the beneficiary of the insurance contract was ; nor is there anything alleging that De Cordova was entitled to the insurance. The third defense was that Pell had taken possession of the land over a year prior to the commencement of the action, and had enjoyed the use of the same for an unknown time, and that the rental value was $500. No facts are stated showing that the relation of landlord and tenant existed between the plaintiff and the defendant, nor that the plaintiff was entitled to the possession or rental value of the land. In the fourth defense it is stated that the defendant had given a trust deed to secure the notes in question, and that a sale of the land had been made under the trust deed to the plaintiff for the sum of $400, when it was worth at least $4,000. It is alleged that the sale was made without the giving of any notice, as required by the laws of Missouri and the terms of the trust deed, and that it was done to enable plaintiff to get the title to the land for a nominal consideration, and to hold the original indebtedness against the defendant. If the sale was made, as defendant avers, without notice, and contrary to the laws of Missouri, it was absolutely void, and therefore the plaintiff suffered no loss or injury.
The rulings of the court upon the last three grounds of defense are sustained, but, for the error committed in holding the first defense to be insufficient, the judgment will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Martin, C. J.
: I. We deem it unnecessary to decide whether the proceedings of the probate court in August and September, 1891, for the restoration of Alvin S. Rodgers to his rights as a sane man were valid or not. It appears that, during his residence in West Virginia, he was always regarded as sane, and, two years before this action was brought, he commenced proceedings for a divorce, and he actually obtained a decree on July 17, 1889, which was set up in his behalf as a bar to the present action. Under the circumstances, the defenses of insanity and a prior divorce are irreconcilable with each other. It is true that a presumption of continued insanity arises from an adjudication thereof, but this is not conclusive, and the evidence of the sanity of Alvin S. Rodgers ever since 1886 is. sufficient to overthrow the presumption arising from the adjudication hi 1883. An adjudication of restoration by the probate court is not indispensable, but the presumption of continued insanity may be overcome by other evidence. (Water Supply Co.v. Root, ante, p. 187, 42 Pac. Rep. 715.) The desertion of his wife and children by Alvin S. Rodgers was probably a manifestation of his mental disorder, and therefore originally not a cause for d¿voTce; but certainly he should be held to an abandonment, at least, from the date that he commenced his divorce proceedings at Wheeling, and abaiydonment for one year is a sufficient cause for a divorce in this state.
II. As a divorce against a non-resident of this state may be obtained on service by publication, comity requires that we should give full faith and credit to decrees of the courts of sister states of a like nature when authorized by law. In such cases we must treat them as judicial records, and under the protection of section 1 of article 4 of the .constitution of the United States. The question of jurisdiction, however, is always open' to inquiry. Under the laws of West Virginia introduced in evidence, as well as our own, the status of married persons comes within the range of the judicial power, although the parties may reside in differ ent states. ^But it will not be claimed that the title to land or the custody of children in one state can be settled by the decree of the courts of another ; and, while the West Virginia court did make a general order purporting to bar the rights of the wife in the real and personal property of the husband, yet this part of the decree could have no extraterritorial force so as to settle the title of any property outside of that state. Mrs. Rodgers had acquired a homestead interest in the land upon which she resided with her children, and this could not be divested by the decree of any court of another state. 'We must therefore hold that the district court of Cloud county had jurisdiction over the question of alimony and the custody of the children, notwithstanding the West Virginia divorce, which must be held valid to the extent of dissolving the marriage relation^/We think that the English common-law doctrine that alimony is an incident only to a sci^t for divorce, and cannot be the subject of an independen't action, should be regarded as modified in this state, where we recognize the validity of service by publication and the right of a wife to sue for alimony alone. The defendant is often entirely ignorant of the proceeding for divorce-, as in this case, and may know nothing of the place of residence of the plaintiff. The wife may have no opportunity of setting' up a claim for alimony no: for the custody of children ; and, if she had kncv 'edge of the proceeding, the court of another state would lack the power to deal effectually with these questions; and, as stated by the supreme court of Ohio in Cox v. Cox, 19 Ohio St. 502, 512, the wife may be still regarded as holding that relatioh for the purpose of enforcing her claim to alimony and the custody of children. We think our position in this respect is supported by principle and upon authority. (Cox v. Cox, supra; Cook v. Cook, 56 Wis. 195, and cases cited.)
III. It was error for the court to give by its decree to the children the south half of the quarter-section. They were not parties to the action. Their mother brought suit for a divorce, for alimony, and for their custody, and the court had a right to award the whole quarter-section to her as alimony and for the support of the children; and it appears that the south half was intended to be given for their support, but it was error to attempt to vest the title in them. “ No one is an heir to the living.” The children could not in any event inherit any property from their living parents, and the court had no authority to vest the title in them.
For error of the court in granting to Mrs. Rodgers a divorce, and thus failing to recognize- the validity of the West Virginia decree in that respect, and the awarding of the south half of the quarter-section tothe children, the judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring.
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Per Curiam:
The defendant in error Mollie B. Alderson is a necessary party in this court. She has not been served with a summons and does not appear in this court. The case is therefore dismissed.
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The opinion of the court was delivered by
Johnston, J. :
This was an an action by M. M. Muncie against The Chicago, Kansas & Nebraska. Railway Company to recover damages alleged to have been sustained by him in October, 1887. He was employed in procuring and preparing stone to be used as ballast upon the track of the railway. In returning from their work the men rode upon hand-cars, and the car immediately in front of the ODe on which Muncie was riding was stopped so suddenly that a collision resulted, and he alleges that he was thrown against the lever of the hand-car on which he was riding with great force, so as to rupture and otherwise injure him. One of the contentions of the railway company was that Muncie was not working for that company, but that long prior to that time the railway had been leased to and was being operated by the St. Joseph & Iowa Railroad Company. While Muncie testified that he 'was working for the Chicago, Kansas & Nebraska Railway Company, he explained that all he knew concerning the matter was that he was working upon a railroad of that name, and he admitted that the pay-checks which he received for his labor had printed thereon the statement that the St. Joseph & Iowa Railroad Company was the lessee of the Chicago, Kansas & Nebraska railway. Other of the workmen gave evidence of a similar character. The foreman who employed them, and under whose supervision they worked, testified that they were in the service of the St. Joseph & Iowa Railroad Company. The lease itself was introduced in evidence, and it purports to have been executed May 15, 1887. The officers of both companies testified that the St. Joseph & Iowa Railroad Company took possession of the railroad under the lease on June 1, 1887, and continued to operate it until after the alleged injury, and that Muncie and all others of the employees engaged on that part of the railroad were in the service of the St. Joseph & Iowa Railroad Company during the entire month of October, 1887. There is no dispute as to the making of the lease, and practically none as to the operation of the railroad by the lessee from June 1, 1887, until after the occurrence of the injury. The trial court instructed the jury that the lease was a valid and binding contract between the companies, and that if the evidence showed that the railroad was operated by the St. Joseph & Iowa Railroad Company at the time of the injury, and that Muncie and the men with whom he was working were engaged in the service of that company, the verdict must be for the defendant company. Upon the evidence, the jury answered certain special questions as follows-:
“Ques. Did the defendant lease its railroad line, depots, side-tracks, spurs, and siding, in Doniphan county, Kansas, to the St. Joseph & Iowa Railroad Company in the month of May, 1887? Ans. No.
“ Q. Did the St. Joseph & Iowa Railroad Company take possession of the railroad lines of the defendant in Doniphan county in the month of June, 1887, and operate the same under the lease offered in evidence in this case? A. No.
“Q. Was the St. Joseph & Iowa Railroad Company operating the defendant’s road in Doniphan county in October, 1887? A. No.”
It is plain that these questions are not answered fairly, nor in accordance with the testimony. The questions incorrectly answered relate to a leading defense, and the facts involved in them were material to the controversy. For some reason the jury ignored undisputed evidence, and their findings indicate that the verdict was not the result of a fair consideration of the evidence, and that the defendant did not have an impartial trial.
An objection was sustained to a question propounded to Muncie as to whether he had not previously brought an action against the St. Joseph & Iowa Railroad Company in another county to recover for the same injuries. In view of the defense that was made, we think the question should have been allowed. If Muncie had made an oral statement that he was injured while in the employ of the St. Joseph & Iowa Railroad Company, it would have been competent testimony, and the deliberate act of the plaintiff in bringing an action against that company for the same injury is no less material and competent.
For the errors mentioned the judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring.
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The opinion of the court was delivered by
Johnston, J.
: This is a controversy in regard to the validity of two chattel mortgages executed by Bernheimer & Levi in favor of two of their creditors at the same time that they executed a general assignment. They were dealers in millinery and fancy dry-goods in Topeka, but appeared to have carried on a losing business, and when the mortgages were executed they were actually insolvent. They had previously borrowed money from Morris Goodman and David Carwalho, who, learning of the financial stress of the firm, requested them to execute mortgages upon their stock to secure the payment of the indebtedness. They declined to execute the mortgages unless a deed of general assignment was prepared at the same time and executed on the same day. Accordingly, the mortgages and deed of assignment were prepared together, and before any of them were executed a temporary assignee was selected and arrangements made with him to at once take possession of the stock. The mortgages were then executed, and within a few minutes afterward the deed of assignment was also executed. The mortgages were first placed on record and from 10 to 15 minutes later the deed of assignment was presented for record.
The trial court ruled that the execution of the mortgages and deed of assignment constituted a single transaction, and that the mortgagees were not entitled to a preference over the general creditors. The facts in the case justified the view taken by the trial court, and bring it within the rule of Hardware Co. v. Implement Co., 47 Kan. 423, and National Bank v. Sands, 47 id. 591. It is clear that all of the conveyances were in contemplation at the same time, the preparation of all commenced and proceeded together, and all were executed and completed substantially at the same time. In such case the preparation and execution of all must be treated as a simultaneous, continuous and single act, and no preference can be rightfully claimed under the mortgages.
Judgment affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Allen, J.
: The defendant in error, who. was plaintiff below, was employed as a brakeman on the railroad operated by the defendant, on a freight-train running between Argentine, Kan., and Marceline, Mo. At 2 o’clock in the morning of March 3, 1890, at Norborne, Mo., his right hand was crushed between the dead-woods of two freight-cars, which he was coupling. This action was prosecuted to recover damages for the injury then received. The petition is very long, and alleges many acts of negligence as grounds of recovery, but at the opening of the trial the plaintiff announced that he would rely solely on the allegations of negligence in fdrnishing the defendant a defective lantern with which to perform his work. All other charges of negligence were eliminated from the case. The jury rendered a general verdict in favor of the plaintiff for $6,300, and also returned answers to special questions submitted by both parties.
It appears that the plaintiff had been employed by the defendant 53 days. He had never been furnished with a copy of the rules. The lantern furnished him, after he commenced working on the train, of which Clark was conductor, was an old one. It smoked the globe so that it gave a poor light. Five or six days before he was hurt Lannigan complained to the conductor, and requested that a gobd lantern be furnished him. This the conductor promised to do, and directed him to continue to use the old one until a new one could be obtained. On the night of the accident the train started from Marceline. The lantern was cleaned before the train left Marceline, and the plaintiff cleaned it again by wiping the globe and scraping the burner at Carrollton, about half an hour before the accident. At Norborne it became necessary to couple two freight-cars equipped with double dead-woods, which rendered the task more dangerous than where the cars are built with single dead-woods. The night was dark, and his lantern had again become smoked to such an extent that he could not see clearly. He did not know that the moving car had double dead-woods, and in the dim light did not see it until after the coupling was made and his hand crushed.
It is contended that, under the findings of the jury, the plaintiff was not entitled to judgment. The first and second questions submitted by the defendant, and the answers of the jury to them, are as follows :
"1. Ques. If you find the lantern used by the plaintiff at the time he was injured was defective, then state in what particulars it was defective. Ans. We cannot determine.
“2. Q,. Was the burner in the lanrp of said lantern or any part of it defective? If so, state what the defect was. A. We cannot determine.”
On these findings counsel argue that the answers given by the jury are equivalent to saying that no defect existed. The plaintiff on the witness-stand had testified, “I couldn’t tell you what the defect was,” and there was no evidence. showing wherein the mechanical construction of the lantern was faulty, but it was abundantly shown that the globe of the lantern was soon dimmed with smoke so that it gave but a poor light. We do not think it'was absolutely essential to the plaintiff's right of recovery that he, or any witness called by him, should be able s£a£e definitely and correctly why the lantern failed to burn properly. It is ordinarily very easy to determine whether a lantern works satisfactorily or not, but it would require an expert to find and remedy the particular defect in one. A watch might be utterly useless as a timepiece, and fail to run at all, and a witness knowing the fact be yet unable to point out the particular part of the mechanism which was defective. It certainly would not be claimed that, because a witness was unable to name the mechanical defect in the watch, he could not testify that it was defective. It was sufficient to show that the lantern did not give a reasonably good light, and was unfit for a brakeman’s use. It would have been absurd to require the jury to state what defect caused the lantern to smoke.
The plaintiff’s injury was received in Missouri, where the comm on-law rule with reference to the liability of an employer to his employee for injuries occasioned by the negligence of a fellow servant obtains.
The jury answered the twenty-fifth and twenty-sixth questions, asked by the defendant, as follows :
“25. Ques. Was the engineer guilty of any negligence causing the plaintiff’s injury? Ans. Yes.
“26. Q. If you say the engineer was guilty of negligence, then state what his negligence was that caused the injury of plaintiff. A. In failing to obey the stop signal.”
It appears that the cars pushed by the engine were going at a rather rapid rate for making a coupling, and the plaintiff in error claims that this finding of the jury is to the effect that the plaintiff’s injury resulted from the negligence of the engineer, who was a fellow servant, and not from the defective lantern. In this, as with all similar accidents, many circumstances concurred in producing the injury. There were the double dead-woods on both cars, greatly increasing the difficulty in making a coupling and withdrawing the hand without injury. There was the stationary car on the one side, and the moving car on the other. It was absolutely indispensable that one car should be pushed up to the other in order that the coupling might be made at all. Every increase of speed in the moving car diminished the time allowed the brakeman to withdraw his hand. The coupling could be made when the car was moving at the slowest possible rate with something approximating absolute safety. "With the car moving at a very high rate of speed, inevitable accident would follow from the brakeman holding the link until the coupling was made. Between these two limits, and with a movement ordinarily deemed safe and proper, couplings are usually made. There is no finding by the jury nor is there any showing in the evidence that this coupling could not have been made with safety at the rate of speed at which the car was in fact moving, if the plaintiff had had sufficient light to see the double dead-woods and determine more accurately the speed of the moving car. Nor can we presume that, if he had been able to ascertain the exact measure of his danger, he would have incurred the risk. The jury have found that the defective lantern which failed to give 'him a proper light was the proximate cause of . the inJury- The fact that the engineer was guilty of negligence contributing to the injury does not take away his right of recovery under these circumstances.
A very ingenious argument is made in support of the claim that, if the lantern was defective, the plaintiff was guilty of contributory negligence in using it. It is said that the plaintiff has alleged in his petition that the lantern was defective, and that the defendant failed to furnish a good one after the lapse of a reasonable time, and it is contended that the defendant having so failed, the plaintiff assumed all risk after such failure. The logic of this reasoning would lead to the conclusion that there could never be any liability on the part of the employer for failure to replace defective tools or machinery with good ones. He must first have notice of the defect, then have a reasonable time in which to remedy it before any liability would attach. If, then, the employee assumes all risk from that time on, there is no period during which the employer is liable. This is a wrong conclusion. The employer is bound to act within a reasonable time after notice. The employee has still a reasonable time after the employer is in default before he is required either to quit the service or assume the risk. This case is quite different from that of Morbach v. Mining Co., 53 Kan. 731. The demand made on the conductor for a good lantern was only five or six days before the injury, and we cannot say, as ¿ matter of law, that it was unreasonable and negligent for the plaintiff still to continue in his employment using a defective lantern for that length of time. The evidence also clearly shows that lanterns are furnished by the company, and that the plaintiff could only procure one through the conductor, who for that purpose was the representative of the company. The proof that the plaintiff complained of the one he had and requested another is clear, and not directly contradicted by anyone.
Complaint is made of the thirteenth instruction, which is as follows :
‘c Two sets of questions are submitted to you to be answered. It is your duty to answer each question, and that your answer be written under the question and signed by your foreman in the same manner that your general verdict is signed. You have no right to ignore the questions submitted to you by the court, but it is your duty to consider them, and to answer them correctly, if you can do so from the evidence. It would not be proper for you to state ‘We do not know ’; but if, after considering the questions in their order, there are any of them which you cannot answer from the evidence, let your answer be, ‘We cannot determine from the evidence.’ But, whatever your answer may be, it should be reduced to writing and signed by your foreman, as before stated. While you are not required to do impossibilities, you have no right to ignore or neglect the questions that are propounded to you, but it is your duty to consider them candidly and carefully, and to answer them, if they can be answered.”
This instruction is very similar to the one given in the case of A. T. & S. F. Rld. Co. v. Cone, 37 Kan. 567, as well as that in L. T. & S. W. Rly. Co. v. Jacobs, 39 id. 204, and ought not to have been given. To determine whether this instruction has been materially prejudicial in its effect on the rights of the defendant we must look to the answers returned. We have already decided that the defendant was not entitled to definite answers to the first and second questions. The fourteenth question, to which a similar answer was returned, is in the same line. The only other question to which a similar answer was given is the thirty-sixth, which reads: “Were the cars moving back at a dangerous rate of ■ speed for the plaintiff to make the coupling at the time he was hurt?” We think counsel is correct in saying that this question must be treated as having been answered favorably to the defendant, and that an-swer would be “Yes.” But such an answer does not avail the plaintiff in error, for it falls short in many particulars of a finding of contributory negligence on the part of the plaintiff. With a good light he might have discovered the fatal double dead-woods on the approaching car, and might also have better judged of the speed at which it was approaching, or he might have made the coupling and withdrawn his hand in safety if fully apprised of his danger. The tenth instruction is not open to the objection urged against it, for it clearly informs the jury that the plaintiff cannot recover if his negligence contributed to the injury. Other instructions given and refused are complained of, but we find nothing requiring special mention.
We think the court properly refused to submit to the jury the twenty-first, twenty-second and twenty-third questions, because they required the jury to guess what might have happened in certain contingencies. The twenty-first reads : “If the plaintiff had withdrawn his hand after guiding the coupling Jink to its place instead of raising it up, would he have avoided the injury? ” It is quite probable that if he had withdrawn his hand before the cars came together, he would not have been injured. Some other minor matters are mentioned in the brief, but they are not of sufficient importance to be stated here.
The judgment is affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Mastín, C. J.
: I. The respective parties claim title under tax deeds. The alleged title of the plaintiffs below, who are defendants in error, was based upon the same tax deed as that in the case of Noble v. Douglass, just decided; and the plaintiffs in error, who were defendants below, relied upon a compromise tax deed, in all substantial respects the same as that set up by the plaintiffs in error in the former case, and the evidence was the same in each case, except that affecting the bar of the statute of limitations. The compromise tax deed was dated and recorded March 6, 1880. On March 11, 1884, the defendants in error commenced their action to quiet the title to the northeast i, section 9, township 10, range 37, alleging possession, and asking an accounting for the rents and profits from March, 1880, up to March 1, 1884. The defendants below answered that they were the owners of the land, and in possession. The plaintiffs, in their reply, denied such title and possession. Afterward, on October 13, 1885, by agreement of parties, it was ordered that amended pleadings be filed instanter, making the action in the nature of ejectment for the recovery of said land, • and that each party pay his and her own costs down .to date. Amended pleadings were afterward filed, in which the plaintiffs below prayed judgment for the recovery of the possession of the premises, and $3,000 for use and occupation. It will be observed that the action to quiet title was commenced within the five years allowed by section 141 of the tax law; but it is contended by the plaintiffs in error that the proceedings on October 13, 1885, were in law the dismissal of the suit to quiet title and the commencement of an action in ejectment, and that the latter action came too late, being more than five years after the recording of the tax deed. An action can be dismissed, however, only by order of the court, (Allen v. Dodson, 39 Kan. 220, 225; Boot and Shoe Co. v. Derse, 41 id. 150, 151), while amended pleadings relate to the time of the commencement of the original suit. (Ryan v. L. A. & N. W. Rly. Co., 21 Kan. 368, 405; Brown v. Mining and Smelting Co., 32 id. 529.) Here, it is true, that the form of the action was changed by consent, but the main purpose of the litigation was to test the validity of the respective tax titles of the parties. They agreed upon the change of the form of the action, perhaps, in order to settle the title beyond controversy, unvexed by the question of present actual possession. Such being the case, we think the action should be deemed as commenced March 11, 1884, which was in time. The question of redemption, which was controlling in the former case, therefore, does not arise here; but, as it was adjudged in that case that the tax title of the plaintiffs below was valid, and that of the defendants below voidable, and the judgment was reversed only by reason of the admis sion. of incompetent evidence as to the redemption, the judgment of the court below in this case as to the title must be held correct.
II. Judgment was rendered, however, in this case in favor of the plaintiffs below against all the defendants jointly for $150 damages for use and occupation from the time of the change of the form'of action until the death of Hannah E. Hillyer, April 29, 1887. Her heirs were made parties. Of course they were not liable for damages for use and occupation during the life of their ancestor, and it does not appear that the action was revived against M. P. Hillyer, as administrator, although it was revived against the heirs of said Hannah E. Hillyer, including her husband. We therefore think that the judgment for damages cannot be sustained.
The judgment will be modified by striking out the allowance for damages. In all other respects it will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Owsley, J.:
Defendants appeal from the trial court’s order permanently enjoining condemnation of plaintiffs’ property to implement Phase II, Part 3, of the Garden City, Kansas, Neighborhood Development Program. Defendants specifically appeal from that portion of the order which declares the city commission’s finding of slum and blight unreasonable, capricious and arbitrary.
In 1968, by Resolution 800, the city commission of Garden City, pursuant to requirements of K. S. A. 17-4746 and to exercise statutory urban renewal powers, found existent areas of slum and blight as those terms are defined by K. S. A. 17-4760 (h) and (i), and further found rehabilitation of those areas necessary to the public welfare. By other resolutions, the city commission created the defendant Urban Renewal Agency and appointed members of the defendant Urban Renewal Commission.
On May 5, 1969, by Resolution 841, the city commissioners designated the entire downtown area of Garden City as within the boundaries of the urban renewal area. It was published May 7 and May 27,1969, and has not been altered.
Plans for a one-year Neighborhood Development Program were drawn by the Urban Renewal Agency and approved by the Urban Renewal Commission and the Human Relations Commission acting as the required Citizens’ Advisory Committee. The plans were approved by the Garden City-Finney County Metropolitan Area Planning Commission as conforming with the general plan for long-range development of the city and county. The Neighborhood Development Program procedure was chosen by defendants to enable them to plan and fund projects on a year-to-year basis rather than obligate the city to plan and carry out a single urban renewal program over several years.
Public hearing on Phase I of the plan was announced and was held on March 28, 1969, with no protests submitted. The commission adopted Phase I and submitted it to the Department of Housing and Urban Development (HUD). The Phase I project was approved and funded effective June 30, 1971, and the Urban Renewal Agency expended $333,949.89 for acquisition and $33,278.08 for relocation of tenants in the construction of a downtown parking facility.
Phase II, comprised of three projects within the same boundaries, was submitted and approved according to law by the same boards, committees and commissions. A public hearing was held on March 22, 1972. At that hearing some of the plaintiffs protested Part 3 of Phase II because it would require condemnation and clearing of their property in preparation of a large site for a major downtown commercial facility. Notwithstanding the objections of these property owners, and in accordance with K. S. A. 17-4746, the city commissioners again found areas of slum and blight extant as those terms are defined in K. S. A. 17-4760 (h) and (i), and rehabilitation conservation or redevelopment of such areas was in the interest of the public health, safety, morals and welfare of the residents of Garden City. These findings were formalized in Resolution 910 passed on March 22,1972.
Plaintiffs, as representatives of a class comprised of owners and tenants of property in the urban renewal areas, filed their petition for injunction on June 20, 1972, alleging the area was not and is not a slum or blighted area; the city commission s action in so determining was unlawful, unreasonable, arbitrary and capricious; and praying actions arising out of such determination be permanently enjoined. They further alleged the defendant Urban Renewal Commission failed to comply with provisions of K. S. A. 17-4758 requiring public disclosure of commissioners’ direct or indirect interest in property within the urban renewal projects, and violation of plaintiffs’ rights under the Fifth and Fourteenth Amendments.
Defendants’ motions for summary judgment and for more definite statements were overruled. They then filed answers in the form of general denials and asserted the plaintiffs were guilty of laches.
Based upon stipulations of the parties, exhibits, physical inspection of the area involved, and the pleadings, the trial court stated the issues to be the following: ' '
“Are or were the official actions by the City Commissioners and the Commissioners of the Garden City Urban Renewal Agency, lawful and reasonable under the circumstances; or were such actions void because they were either unlawful or fraudulent, or so unreasonable, capricious or arbitrary as to constitute constructive fraud or abuse of discretion. A further issue is whether any such commissioners were disqualified to act because of conflict of interest, and the effect of any disqualification, if any. The Court considers that laches are a legal matter under all of the circumstances and it does remain one of the issues of the case.”
The reoord reflects the trial judge toured the area with consent of counsel to orient himself to the evidence and exhibits. The court later announced it would consider such “windshield view” along with all the evidence in the case.
Following a six-day trial, the court found plaintiffs were not guilty of laches because they had no notice their property was to be taken until the commencement of Phase II, Part 3; and their action did not impair city contracts since contracts to implement that portion of the project had been let after the commencement of this action.
The court further found defendants followed proper statutory procedures with reference to Phase II, Part 3, and that the same was not unlawful. We take that finding to be dispositive of any possible violation of K. S. A. 17-4758 requiring disclosure of commissioners’ indirect interest in property condemned.
Additionally, the court found the city commission’s determination of slum and blight was based upon “opinion without factual foundation,” and was unreasonable, capricious and arbitrary to the extent it constituted constructive fraud on the owners of property affected. Despite the breadth of its findings that no slum or blight existed in Garden City on March 22, 1972, or any other time, the court found it necessary to void only Phase II, Part 3, of the mb an renewal project. Pursuant to these findings, the court ordered defendants permanently enjoined from taking plaintiffs’ property for urban renewal purposes.
Defendants appeal from that order and allege among other points on appeal that the district court erred in substituting its judgment for that of the city commission. The rules limiting the scope of judicial review of municipal urban renewal activities are set out in Urban Renewal Agency v. Decker, 197 Kan. 157, 415 P. 2d 373, as follows:
“The legislature has the inherent power of eminent domain limited only by constitutional restrictions. Such power may be delegated by the legislature to any public authority to be exercised as directed. So the power of eminent domain as to urban renewal has been given by the legislature to the municipality to determine that slum or blighted areas exist in such municipality and the rehabilitation, conservation, or redevelopment of such areas is necessary in the interest of public health, safety, morals or welfare of the residents of the municipality. The municipality has the exclusive right within its statutory authority in the first instance to determine what lots, parcels or tracts of land are to be taken, after public hearing provided by statute, and then file a petition to exercise the right of eminent domain. The presumption is that public agencies and officers vested with discretionary administrative powers will perform their duties in a proper manner and exercise their powers in good faith. . . .” (p. 162.)
Plaintiffs’ evidence to prove the city commission’s action in finding slum and blight to be arbitrary, oapricious and unreasonable consisted of testimony of owners of property in the urban renewal area. They uniformly testified the area was not, in their opinion, one of slum or blight as they understood those words. These opinions were objected to by defendants as being without foundation since the witnesses were variously employed and occupied respectively as attorney, bookstore owner, accountant, businessman, real estate broker, insurance agent, and county assessor, and were not experts in engineering, city planning, architecture or related fields. Their opinions were based, not on the statutory definition of slum and blight, but upon the lay witness’ own concept of slum and blight; i. e., that it was a condition prevalent in and peculiar to large urban areas and was characterized by crowded, multifamily dwellings of the ghettos. The effect of much of plaintiffs’ evidence is to question the standards established by the legislature for deteimining slum and blight, and that is not at issue in this case.
Defendants presented as evidence of the reasonableness of their determination of slum and blight, testimony of consultants in city planning and engineering who had made the surveys and classifications of die property on which the urban renewal projeot and the commission’s findings of slum and blight were based.
Frank E. Smith, vice-president and general manager of Oblinger and Smith Corporation, testified they had offices in Kansas City, Denver, Wichita, and Dallas, and were consultants in commercial and city planning, mb an renewal, and land and subdivision planning. Urban renewal projects constituted approximately one-third of their work. Since 1968 this firm had worked for the City of Garden City, preparing maps, a four-volume comprehensive plan, and two neighborhood development program applications for the city. Smith had supervised the preparation of the Phase I application for urban renewal funds. In connection therewith, several exhibits were prepared, such as maps and statistical studies which he identified in court. When asked if he knew what information the city commission might or might not have relied on in making a conclusion, he replied: “They relied on our consultation as well as the detailed facts and figures that we produced for them.” These reports included deficiencies which the Kansas statutes define as characteristic of slum and blight. Smith testified:
“The following deficiencies were found to exist in the project:
“1. Overcrowding in both residential and non-residential uses with buildings or on sub-standard size lots without provisions for surface and/or parking.
“2. The area is dominated by obsolete residential, commercial and industrial buildings, which have a blighting influence on their surrounding.
“3. There is no cohesive pattern of uses. There exists a mixing of incompatible land uses to the detriment of all uses in the project area.
“4. There exists an excessive amount of land in public rights-of-way. There is traffic congestion and conflicts between pedestrian and auto.
“5. Public utilities and community facilities are inadequate, undersized, deteriorated, or totally lacking.
“6. There is a general disorganization of the pattern of uses and the flow of traffic. The entire project area exhibits a general deterioration 'and a sense of blight.”
Smith, testified the commission, had knowledge of the statutory definition of slum and blight since it was discussed with the city commission at tihe very first meeting with Oblinger and Smith.
Lowell E. Richardson, employed by the Oblinger and Smith Corporation as planner, testified he was responsible for preparation of the Phase II application; that he was connected with urban renewal projects in Garden City for over fifteen months; that he was in Garden City for twelve or fifteen meetings with defendant commissioners; that such meetings usually lasted a day and other employees were there for longer periods of time developing and updating information. He testified he was familiar with the Kansas statutes and in his opinion the area was blighted. In reaching that conclusion he considered the existence of mixed land uses, inadequate street layout, die need for storm drainage, lack of utilities, and the building conditions. He testified that in working with their urban renewal projects, he had a number of conferences with city officials and commisisoners, the city manager or his assistant, and that on two occasions he met with the city planning commission and the city engineer. Richardson testified he attended and participated in the public hearing on March 22, 1972; he expressed his opinion that the area was one of slum and blight and in need of development, and he presented factual data to the commissioners to support his finding of slum and blight. In the witness’ opinion, which was before the city commissioners on March 22, 1972, the greatest threat to Garden City’s downtown business district was the predominance of functionally obsolete buildings unsuited for current merchandising methods; that unless a modem retail facility was established in the downtown area to provide tire retail area estimated for future needs, such large facility would locate on the outskirts of town where large tracts of land were readily available. That would lead to rapid decay of the downtown area and further loss of value to the surrounding property. Locating such a facility downtown, he testified, would necessitate clearing and preparation of a large site, which was the purpose of Phase II, Part 3.
Other defense witnesses included two defendant commissioners who testified drat in making their determination of slum and blight they took into account their own knowledge of conditions, the exhibits prepared by Oblinger and Smith, and the expert opinion of these consultants.
The city manager testified the city commissioners were fully informed of local building codes, ordinances, the studies and data prepared by Oblinger and Smith, and the opinions of the consultants when they made their factual determination of slum and blight. He shared their opinion that slum and blight, as statutorily defined, existed in Garden City.
Witnesses from the Kansas City area office of HUD, who review and direct urban renewal grants to Kansas and other midwest communities, testified Garden City met all the eligibility standards for urban renewal funds, including the factual existence of slum and blight as defined by Kansas, statute. They had personally toured the area to verify the accuracy of the Oblinger and Smith data in the application.
Judicial review of the reasonableness of a legislative determination of slum and blight has frequently been urged by opponents of particular urban renewal projects. It has uniformly been held that a court cannot substitute its opinion for that of the legislature and its administrative agency, the local city governing body. To allow the court to originally determine the existence of a slum or blight condition by trial de novo would violate the doctrine of separation of powers and usurp legislative power. (Davis v. City of Lubbock, 160 Tex. 38, 326 S. W. 2d 699; Berman v. Parker, 348 U. S. 26, 99 L. Ed. 2d 27, 75 S. Ct. 98; Stockus v. Boston Housing Authority, 304 Mass. 507, 24 N. E. 2d 333, 336; Gohld Realty Co. v. Hartford, 141 Conn. 135, 104 A. 2d 365; Balsamo v. Prov. Redevelopment Agency, 84 R. I. 323, 124 A. 2d 238; Bowman v. City of Kansas City, 361 Mo. 14, 233 S. W. 2d 26; Kaskel v. Impellitteri, 306 N. Y. 73, 115 N. E. 2d 659; Apostle v. Seattle, 77 Wash. 2d 59, 459 P. 2d 792.)
Our review of the record leads us to conclude proper study and consideration of the issue of slum and blight preceded the commission’s approval of Resolution 910. Private citizens disagreed with the commission’s determination of slum and blight, but their opinions were not based upon any statutorily recognized principles, and they were not experts whose opinions were relevant to rebut the commissioners’ determination of a question of fact. Those opinions cannot be said as a matter of law to be decisive of the factual issue. The expert testimony of defendants’ witnesses supported the city commissioners’ finding of slum and blight as statutorily defined. Giving proper weight to the testimony supporting the judgment of the trial court, we can only concede the question of slum and blight was at most debatable. Under those circumstances, the principle of separation of legislative and judicial powers compels us to support the decision of the city commission since they are charged by state law with that responsibility. The basis for our reversal of the trial court’s decision is aptly expressed in Apostle, supra:
“Had any member of this court been in Judge Hodson’s place, his reaction might have been the same, but, fortunately or unfortunately, the judiciary does not have the responsibility of passing on the credibility of the witnesses, or of weighing the evidence with reference to blight in such a proceeding. . . . [T]he legislature has made the local governing body (the city council in this instance) the tribunal which makes the factual determination of blight. The province of the court is only to determine whether the factual determination of blight is supported by sufficient evidence to prevent the city council’s determinations from being arbitrary and capricious. The trial court may not overrule the city council's determination of blight merely because it believes that the area is not blighted. . . .” (p. 63.)
From our review of tibe record we conclude the trial court erred in finding the city commission of Garden City acted arbitrarily, capriciously and unreasonably in determining the factual issue of slum and blight, and the injunction based upon that erroneous finding must be dissolved.
Reversed.
Fromme, J., not participating.
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The opinion of the court was delivered by
Prager, J.:
This is a dispute between the lessor and lessee of a a commercial building as to who has tibe duty to rebuild an exterior wall. The action was brought by the plaintiff-appellant, Mid-Continent Life Insurance Company, as lessor, against Henry’s, Inc., the defendant-appellee, as lessee. We will refer to the Mid- Continent Life Insurance Company as Mid-Continent or plaintiff. We will refer to Henry’s, Inc., as Hemy’s or defendant. The facts in this case are not greatly in dispute and are as follows: In the late 1940’s Henry’s Building Company, Inc. constructed a three-story commercial building for use as a retail clothing store. The building company had earlier acquired 99-year leases covering the store site. After completion the building was leased to a sister corporation, Henry’s, Inc., which operated the store. Three brothers, Henry, Isadore and Leo Levitt, were the original owners and the only stockholders of both companies. The store building is located in the downtown area of Wichita. The store sits immediately to the south of the Bissantz building, another three-story structure which existed when the store was erected. The Bissantz building abutted directly on the property line and at the time of construction the north wall of Hemy’s building was built in close proximity to the wall of the Bissantz building touching it in a number of places. Because of the location of the Bissantz building’s wall it was impossible to install exterior brick to finish the north wall of Hemy’s building. Instead a parapet was built between the roofs of the Hemy’s building and the Bissantz building so that the area between the two buildings was fully protected from the elements. As finally constructed the external face of the north wall of Hemy’s building consisted only of hollow tile. This was perfectly satisfactory so long as the wall was protected by the adjoining Bissantz building. Except for the penthouse area of the store building which houses the elevator shafts, the entire north wall was hidden from view by the wall of the Bissantz building.
In 1962 upon the advice of their tax consultant the Levitt brothers decided to sell the store building and enter into a sale-leaseback arrangement. The Levitt brothers through their agent got in touch with Mid-Continent and offered to sell their leasehold rights in the land and building to Mid-Continent for $1,050,000 with a leaseback to Hemy’s, Inc. for a 25-year term with a guaranteed rent of $80,000 per year, plus two percent of the annual gross sales in excess of $4,000,000. In the course of the negotiations the Levitts delivered the plans and specifications of the building to Mid-Continent for their examination. Mid-Continent employed an architect from Oklahoma City to inspect the building and to advise them as to its condition. Thereafter Mid-Continent purchased the leasehold interests and the building from Hemy’s Building Company, Inc. and simultaneously entered into a lease agreement under the terms of which Henry’s, Inc. leased the premises for a term of 25 years commencing July 1, 1962. It should be noted that the leasehold ownership in the land was based upon two 99-year leases, one of which terminated in the year 2023 and the other in 2028. Henry’s, Inc. took possession under the lease effective July 2, 1962, and continued to operate its merchantile business as it had done for many years. The lessor and lessee got along very well and apparently had no serious problems.
The problem in this case arose in 1970 when the owners of the Bissantz building decided to remove its two-top floors. The contractor who was hired to remove the top floors of the Bissantz building discovered the unfinished condition of the north wall of Henry’s building during the course of the construction work. Mr. Teall, the contractor, upon the discovery of the condition of the wall notified the Wichita City Inspection Department. Mr. Teall was advised that hollow tile on an exterior wall did not comply with the city building code. Mr. Teall immediately got in touch with one of the Levitt brothers and informed him that the north wall of the Henry’s building was not in compliance with the city building code and that something had to be done. The Levitt brothers through their attorney advised Mid-Continent of the condition of the wall and took the position that it was the obligation of Mid-Continent, as lessor, to rebuild the wall. At this point the controversy between Mid-Continent and Henry’s began. Whose obligation was it under the lease to rebuild the wall? Each of the parties pointed the finger of responsibility at the other. On one point there was complete agreement — the condition of the wall constituted an emergency situation and immediate steps should be taken to correct it. The parties agreed that Mr. Levitt should employ a contractor to proceed to rebuild the north wall but neither of the parties would waive its rights nor jeopardize its position that the responsibility for rebuilding the wall was on the other. Thereafter the wall was rebuilt with dispatch. Mid-Continent paid the contractor the cost of construction in the amount of $33,808.41. Henry’s employed an architect for the project and paid his fee in the amount of $3,416.15. Each of the parties stood firm in its position that the cost of rebuilding the wall should be borne by the other. On July 7, 1971, Mid-Continent filed this action against Henry’s for the recovery of the $33,808.41 which it had paid to the contractor. Henry’s counter-claimed for the architect fees it had paid in the amount of $3,416.15.
After the issues were framed the case was tried to the court which entered judgment in favor of the defendant Henry’s in the amount of the architect fees. The basis for the trial court’s holding was that the obligation to rebuild the wall fell on the shoulders of the lessor Mid-Continent. The trial court made extensive findings of fact and conclusions of law which it incorporated in its judgment. Mid-Continent has appealed to this court.
The petition filed by Mid-Continent contained a cause of action in Count 1 based upon the rights and obligations of the parties under the written lease. It further contained a cause of action in Count 2 based upon alleged false representations made by the Levitts as to the condition of the north wall at the time the building was sold to Mid-Continent. The trial court found from disputed evidence that false representations had not been established. It is contended by Mid-Continent on this appeal that the trial court erred in so finding. Based upon the entire evidentiary record we have concluded that the findings of the trial court are supported by substantial, competent evidence and that the trial court did not commit error in finding against Mid-Continent on the issue of false representation.
The remaining point of error asserted by the appellant is that the trial court erred as a matter of law in failing to hold that, under the express terms of the lease, Henry’s was required to assume the cost of restoring the north wall of the store building to first-class condition after the partial razing of the adjacent building. Furthermore Mid-Continent contends that the trial court’s findings of fact and conclusions of law to the contrary are clearly erroneous.
This case must be determined on the basis of the rights and obligations of the parties arising from the landlord-tenant relationship as set forth in the written lease. Mid-Continent takes the position that the provisions of the written lease placed the duty to restore the wall on the lessee, Henry’s. Mid-Continent relies specifically upon the following lease provisions:
“Section VI
“Maintenance of Improvements
“Lessee shall at its expense, except for damage by casualty, maintain the exterior and interior of the improvements in a first class manner during the term of this lease. The replacement and renewal of floor coverings, mechanical equipment, and items of like nature, including decorations, necessitated by obsolescence and ordinary wear and tear, shall be made by Lessee at its sole cost,
Provided that during the last 5 years of the term of this lease, LESSEE shall only be obligated to restore, replace, maintain, to the extent necessary to return said premises to LESSOR in substantially the same condition as they now are,
Lessee shall at all times protect LESSOR from liens and on such replacements and renewals not covered by insurance. Where the probable cost is in excess of $25,000.00, it shall furnish Lessor bond to protect it against liens, unless such bond is waived in writing by Lessor.”
“Section I
“Definitions
“3. Improvements. The word ‘improvements’ means the buildings and all those integral parts thereof, and attachments thereto, located on the leasehold estates, except such as are excluded under the definition of the word ‘fixtures.’ ”
“Section VII
“Conduct of Business
“Lessee further covenants with Lessor that it will not during the term of this lease, mortgage or otherwise hypothecate its fixtures or inventory except for the purpose of securing the purchase price of any such fixtures or the cost of remodeling or rebuilding fixtures, or remodeling or rebuilding the lease improvements without first having obtained the written consent of Lessor.”
“Section XV
“Right to Inspect
“It is further covenanted and agreed that Lessor shall at all reasonable times during business hours have free access to said leased premises for inspection as to the condition thereof; provided, however, that this right to inspect shall not in any way make the Lessor responsible for any condition found with reference to said premises.” (Emphasis supplied.)
In addition to the above lease provisions it should be noted that the lessee is made responsible for insurance, taxes, ground rental and special assessments.
Mid-Continent takes the position that the provisions of the lease clearly and unmistakably place the responsibility for making repairs and improvements to the exterior of the building on the lessee, Henry’s, and presents an able and forceful argument in support of its position.
Henry’s in support of its position contends that the duty placed upon the lessee is to maintain the exterior and interior of the improvement in a first-class manner during the terms of the lease. It points out that there is no provision in the lease which expressly states that either Mid-Continent or Henry’s has the obligation to construct new improvements on the premises as required by public authorities or public laws. In his brief counsel cites a number of cases from other jurisdictions which hold in effect that the word “maintain” means to repair or to keep in good condition things that exist and do not require the creation of something new. The word “maintain” does not mean to construct; it means to keep up, to keep from changing, to hold, to preserve in its present state or condition. Henry’s contends that the exposure of the wall was not the result or caused by decay, erosion, or partial destruction; the problem resulted and arose solely from the removal of the two-top floors of the adjoining building and the demands of the city to rebuild the wall so as to comply with the city building code. Henry’s freely admits its obligation under the lease to maintain the building and keep it in good repair. It denies, however, any responsibility to undertake substantial repairs and remodeling except as required in its ordinary business of retailing clothing. Essentially it asserts that the problem which occurred here was not within the contemplation of the parties at the time the lease was executed and hence must be determined on the basis of established principles of law pertaining to the landlord-tenant relationship.
In its findings of fact and conclusions of law the trial court found that there is no expressed statement in the lease concerning who, as between lessee and lessor, should bear the cost of the improvements made to the north wall, given the nature and extent of such, improvements. The trial court further found that under the lease it was not the intent of file parties at the time the lease was executed', for the lessee to have the duty, at its cost and expense, to construct-substantial improvements on the premises.
There are many cases from other jurisdictions arising out of’ similar factual circumstances. Both of the parties rely to some extent on an Oregon case which reviews many of the cases and states; die general principles to be applied in a dispute of this nature(Gaddis v. Consolidated Freightways, 239 Or. 553, 398 P. 2d 749, 22 A. L. R. 3d 514.) Gaddis is followed in 22 A. L. R. 3d by an annotation on the subject of who, as between landlord and tenant, must make, or bear expense of, alterations, improvements, or repairs ordered by public authorities. In Gaddis the Oregon court first recognizes the general rule that in the absence of a provision in the lease to the contrary, the lessee has no obligation to repair. Such a rule is supported by Garner v. Grocery Co., 102 Kan. 5, 169 Pac. 219. In Gaddis the court then summarizes the law as follows:
“We have examined all of the available authority on the subject and conclude, . . . that the criterion applied by the courts is briefly but fully stated in 1 American Law of Property, . . .” (1952, § 3.80 beginning at p. 353.) “Because the statement is concise we copy it in full:
“ ‘. . . If the lessee does not expressly covenant to repair, it would seem clear that he generally should be under no duty to make alterations and repairs required by governmental authority in order to conform the premises to health and safety laws. Any changes likely to be ordered for this purpose would be beyond the scope of the tenant’s common law duty to repair, and the expenses of compliance are properly regarded either as capital expenditures or as necessary carrying charges to be paid out of the rent.
“ ‘Where the lessee covenants to repair, the question of who should bear the cost of compliance depends upon the nature of the alteration or improvement and the reason for requiring it. If the order involves mere, repairs which the lessee would normally be required to make under his covenant, he should bear the cost. Likewise, the burden is on the lessee where the alteration is required only because of the particular use which he is making of the premises, although it may be questioned whether even in this case, the courts would place the burden of extensive and lasting improvements on the lessee, except perhaps where the lease is for a long term. At any rate, if the order requires the making of such improvements, so-called “structural” changes, and they are not required because of the particular use made of the premises by the lessee, the lessor must bear the burden of compliance.’” (pp. 557, 558.)
The court then stated that it had found no case which holds categorically that either the lessee or lessor is bound to make improvements or alterations required by governmental authorities and that each case must be determined on its own particular facts and circumstances.
We have found only one Kansas case which touches upon the problem presented here. In Electric Service Co. v. City of Mullinville, 125 Kan. 70, 262 Pac. 536, the city of Mullinville in Kiowa county, constructed a transmisison line from Bucklin to Mullinville for the purpose of supplying the inhabitants of Mullinville with electric light, heat and power, and constructed a distribution system within the city. The city leased the entire plant to an electric service company for operation and the service company agreed to maintain the transmission line in good operating condition. The transmission line was constructed on a public highway. During the term of the lease the board of county commissioners of Kiowa county desiring to widen the highway ordered the line removed. Pursuant to the order the line was removed and rebuilt on the addition to the highway made by widening it. A controversy arose between the electric service company and the city of Mullinville as to who should stand the expense of removing and rebuilding the line. This court held that such expenses should be borne by the city as lessor and owner. In the opinion this court discusses the obligation of the lessee to make repairs where an event occurs not within the contemplation of the parties. The court quoted from Baily v. De Crespigny, 4 Q. B. 180 (1869) as follows:
“ ‘We have first to consider what is the meaning of the covenant which the parties have entered into. There can be no doubt that a man may by an absolute contract bind himself to perform things which subsequently become impossible, or to pay damages for the nonperformance, . . .
“ ‘But where the event is of such a character that it cannot reasonably be supposed to have been in the contemplation of the contracting parties when the contract was made, they will not be held bound by general words which, though large enough to include, were not used with reference to the possibility of the particular contingency which afterwards happens.’ (p. 185.)” (p. 72.).
Following this quotation Mr. Justice Burch points out that in this instance the contract was to maintain the transmission line. The ordinary meaning of the word “maintain” is to keep in a particular state or condition, especially with reference to efficiency; to support, to sustain, to keep up; not to suffer to fail or decline. The transmission line was completed and in existence on the public highway when the contract was signed, and there is nothing to indicate the location was not regarded as permanent. The nature of the contract clearly indicated that good operating condition was the specific character of maintenance contemplated. The opinion further states that demolition of the line and reconstruction at another location was something quite different from keeping it up to a standard of efficiency, and it is scarcely reasonable to extend the meaning of the word “maintain” to include such a remote and extraordinary contingency as that occasioned by the removal order. We held that the responsibility for bearing the expense of removal and reconstruction of the transmission line was not contemplated by the parties at the time the lease was entered into. Because the lessee did not contract to bear that unforeseen expense, it must be borne by the owner of the line.
In this case the trial court found that under the facts and circumstances the cost of reconstructing and rebuilding the north wall should be placed upon Mid-Continent as lessor and owner rather than upon Henry’s as lessee. The rationale of the court is found in Finding of Fact 3 which states as follows:
“3. The Court finds from the evidence, with respect to the improvements made to the premises, that such improvements will survive the term of the lease between lessor and lessee; that such improvements are substantial and structural in nature; that such improvements will inure to the primary benefit of lessor during its reversion period of forty-one years; that such improvements were not required by or because of any particular use made of the premises by lessee, and that the costs of such improvements were substantial as opposed to nominal.”
In our judgment the trial court properly considered the tests and rules of law to' be applied in a dispute of the nature involved here. The court considered the significant factors and under all the facts and circumstances its judgment that Mid-Continent as lessor should bear the cost of rebuilding the wall is reasonable and just Clearly the necessity of rebuilding the north wall arose only because of the removal of the two upper stories of the Bissantz building. The event which necessitated the improvement was unusual, extraordinary and clearly unexpected. The trial court properly found under the evidence that such a contingency was not within the contemplation of the parties at the time the lease was executed. Under the circumstances we find no error in the trial courts determination of this case. The judgment is affirmed.
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Per Curiam:
This is an appeal from an order denying a motion to vacate sentence filed pursuant to K. S. A. 60-1507. On April 13, 1971, the appellant-petitioner, Benjamin Frank Underwood, entered his plea of guilty to taking indecent liberties with a child under the provisions of K. S. A. 1970 Supp. 21-3503. He was sentenced to confinement in the Kansas State Penitentiary for a period of three to twenty years. On August 31, 1972, the appellant filed a motion under K. S. A. 60-1507 to vacate his conviction and sentence. An evidentiary hearing was held in the district court on December 19, 1972, following which the motion was denied. The appellant has appealed to this court.
The appellant first contends that the trial court committed error by accepting his plea of guilty in violation of K. S. A. 1970 Supp. 22-3210 without first advising appellant as to the maximum penalty which might be imposed upon acceptance of such plea and in failing to determine that there was a factual basis for the plea. The record shows that before the plea was accepted the trial court thoroughly interrogated the appellant as to the nature of the charge; his understanding of his situation; his opportunity to discuss the charge fully with his attorney, Mr. Russell; the absence of any threats or promises; his absolute right to trial by jury; and as to the voluntary nature of his plea. At the evidentiary hearing on the 60-1507 motion Mr. Russell testified that he had informed the appellant about the nature of the charge, the consequences of a plea of guilty and the possible sentence that could be imposed according to Kansas law. In view of the evidence before us we think it clear that the appellant fully understood the nature of the charges, the possible sentence, and the consequences of his plea of guilty and that his plea of guilty was voluntary and understandably made. We find that the appellants first contention is without merit.
Appellant next maintains that his appointed counsel was derelict in not advising the court of the appellant’s mental deficiency and in not requesting a continuance at the time of the preliminary hearing in magistrate court in order to counsel with the appellant. The record shows that following the waiver of a prehminary hearing his attorney, Mr. Russell, gave notice to the court that the appellant might use a defense of “lack of mental responsibility” and that arrangements were made for the examination and evaluation of appellant’s mental condition, at the Wyandotte County Mental Health Center. According to Russell’s recollection the report from the mental health center failed to show any mental disability of appellant which would justify a defense of lack of mental capacity. It appears to us from the record that the appellant’s counsel made an appropriate inquiry as to his mental condition and found no evidence to support such a defense. Furthermore on the entire record the trial court was justified in finding that the appellant was provided adequate representation by Mr. Russell. The appellant was originally charged with two counts of indecent liberties and had made a full statement implicating himself prior to the time he was seen by Mr. Russell. Mr. Russell conferred with the appellant on the very evening when he was arrested and later was formally appointed to represent him on the day the preliminary hearing was set. Through Mr. Russell’s efforts appellant was able to obtain a reduction in the amount of his appearance bond and the second count of the information was dismissed following the entry of his plea of guilty to the first count. We cannot say that gauged by the totality of representation the appellant Underwood was denied adequate representation by counsel.
Finally the appellant takes the position that he was denied due process of law by the failure of the authorities to bring him before a magistrate until the lapse of a period of six days following his arrest. Although we expressly disapprove an unwarranted delay of six days in holding a person under arrest without bringing him before a magistrate, the record does not show that appellant suffered any prejudice in the ultimate disposition of his case as a result of such a delay. It is only where an unwarranted delay in bringing a defendant before the magistrate has prejudiced his trial that it may be said to violate the precepts of due process. (Cooper v. State, 196 Kan. 421, 411 P.2d 652.)
For the reasons set forth above the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
The defendant, Ronald Platz, was tried by a jury and convicted of forcible rape as defined by K. S. A. 1970 Supp. 21-3502 (a). He was sentenced pursuant to K. S. A. 1970 Supp. 21-4501 and 21-4504 as a second felony offender for a period of a minimum term of ten (10) years and a maximum term of forty (40) years. This is a direct appeal from this conviction and sentence.
The defendant first urges error by contending the state failed to establish the crime beyond a reasonable doubt. The state correctly points out that this issue on appeal in a criminal case is not whether the evidence establishes guilt beyond a reasonable doubt but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in a light most favorable to the state. See State v. Hill, 211 Kan. 239, 505 P. 2d 704, and State v. Mans, 213 Kan. 36, 515 P. 2d 810.
We do not need to set forth the testimony in the record for a review of tire testimony of the victim establishes all the essential elements of forcible rape. She testified she was forcibly ejected from defendant’s vehicle at a roadside park, that she resisted defendant’s attempts -until her resistance was overcome by force, fear and threats to use a gun. She testified as to the act of sexual intercourse with the defendant under these circumstances. Her testimony was corroborated in certain particulars by the testimony of defendant’s companion who assisted the defendant in completing the crime and by the testimony of the victim’s husband who heard her cries for help as he drove by the scene of the crime. This evidence was more than sufficient for this court to say a reasonable inference of defendant’s guilt was established.
The defendant next contends that error was committed during the trial when testimony was permitted which pertained to other criminal charges pending against the defendant. The incident arose during the trial when defendant’s counsel was cross-examining defendant’s accomplice, Kenneth McGranahan. In response to questioning McGranahan testified that he and the defendant had been apprehended on other charges in Wabaunsee County and that the defendant had informed the law enforcement authorities he was involved in the incident. There was no further elaboration. There was no request to have the statement stricken.
A party cannot successfully assert as error the admission of testimony which he has elicited in his own behalf on cross-examination. (State v. Mallett, 192 Kan. 154, 156, 386 P. 2d 214; see also State v. Runnels, 203 Kan. 513, 518, 456 P. 2d 16; State v. Garcia & Bell, 210 Kan. 806, 813, 504 P. 2d 172.) Consequently this contention is without merit.
The third issue raised by defendant is based on the claim of publicity surrounding a murder charge filed against defendant in another county. The matter was first raised in defendant’s motion for a new trial. In denying this claim the trial court stated:
“There is no evidence presented here from which this Court could find that this was inflammatory, if, in fact, it might have been, I don’t think it was. There is no evidence that the jury took any notice of it. There is no evidence presented before this Court as to the claim of Mr. Henderson [attorney for defendant] that the demise of Mr. Benjamin Weiller was fully covered by the mass media and T.V., and the motion for new trial is overruled as to Point two. . . .”
A review of the record clearly demonstrates the trial court’s decision was proper. No change of venue was requested. There is no evidence in the record to support the defendant’s allegations of publicity or to indicate a single juror was cognizant of or influenced by any publicity. On appeal this court will not consider allegations of prejudicial publicity claimed to have affected the fairness and impartiality of the trial proceedings where the defendant neither sought a change of venue below nor raised any objection to such publicity during the trial. (State v. Hickok & Smith, 188 Kan. 473, 363 P. 2d 541, cert. den. 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545; State v. Eldridge, 197 Kan. 694, 421 P. 2d 170, cert. den. 389 U. S. 991, 19 L. Ed. 2d 483, 88 S. Ct. 486.) The bald assertion of possible prejudice is unsupported by the record and without merit.
The fourth point of error pertains to the admission of evidence as to the use of firearms constituting a separate crime of which defendant was not charged.
There was testimony that defendant had a rifle in his vehicle when he picked up his victim, that he had his accomplice get the gun and threaten the victim in order to accomplish the initial act of sexual intercourse and that the gun was fired at the husband’s vehicle when it approached the scene of the crime.
Since the firearm was used to assist in carrying out the crime and to keep another person from coming to die scene of the crime this testimony was part of the res gestae. Acts done or declarations made before, during or after the happening of the principal fact may be admissible as part of the res gestae where such are so closely connected with it as to form in reality a part of the occurrence. (22A C. J. S., Criminal Law, §§ 662 (4), 662 (5), pp. 672, 673; State v. Gillespie, 62 Kan. 469, 63 Pac. 742; Campbell v. Brown, 81 Kan. 480, 484, 106 Pac. 37.) The fact that evidence bearing upon the crime charged may indicate the commission of another crime does not render such evidence inadmissible if it is relevant to establish the guilt or innocence of the defendant with respect to the crime charged. (State v. Martin, 175 Kan. 373, 385, 265 P. 2d 297.)
The final point raised by defendant relates to the court’s failure to instruct the jury on the crime of adultery. He contends that adultery is a lesser offense included in the crime of forcible rape, and under State v. Warbritton, 211 Kan. 506, 506 P. 2d 1152, the court is required to instruct on not only the offense charged but also all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced. The point is without merit.
K. S. A. 1970 Supp. 21-3502 defines forcible rape. In order to constitute the crime the act must be committed without the woman’s consent and the woman’s resistance must be overcome under certain specified circumstances or by force and fear as alleged in the present case. Adultery as defined in K. S. A. 1970 Supp. 21-3507 cannot be a lesser included offense because it is a crime of consenting parties. Proof of consent is a complete defense to the charge of forcible rape, so adultery cannot be a lesser offense-of which the accused might be found guilty under an information. charging forcible rape. Forcible rape and adultery are separate, and distinct crimes, since proof of one necessarily disproves the other.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from an order of a district court affirming an order of the probate court taxing the cost of administering a no-asset estate to the creditor petitioning for administration. There is no dispute in the facts.
Alexander Blakely, prior to his death on January 26, 1965, resided in Elk City, Kansas, and was a recipient of welfare assistance through the Montgomery County Department of Social Welfare, having received during his lifetime the aggregtae sum of $7,172.53.
.Subsequent to the death of Alexander Blakely, the Montgomery County Welfare Department informed the appellant, the State Department of Social Welfare, of the death of the decedent, the amount of assistance provided him, and the fact that he owned real estate in Elk City. The information also showed that four-years back taxes were owed on this property and that the location and condition of the house a $1,000.00 valuation would probably be high.
On October 14, 1965, appellant was informed that the total amount of back taxes owed was $174.78. It filed a petition for the appointment of an administrator December 9, 1965. Subsequently, Timothy R. Emert was appointed administrator of this estate and in due time three demands were filed and allowed against the estate, being those of:
Webb Funeral Home........................................ $443.38
Olive McKenzie ............................................ 59.55
State Department of Social Welfare............................ 7,172.53
Subsequently the Elk City real estate, which was appraised at $450.00, was sold under tax foreclosure for the sum of fifty dollars and the estate was without any assets. On July 25, 1967, there was filed a final decree of summary closing and final settlement in which the appellant, original petitioner herein, was taxed with the costs of administration in the amount of $179.48, and the administrator was discharged. From this final decree of summary closing and final settlement, the State Department of Social Welfare appealed to the District Court of Montgomery County which affirmed the decision of the probate court. Appellant has appealed from the decision of the district court.
The administrator of the estate, also acting as attorney, filed a motion for additional attorney fees to enable him to defend his position in the appeal to the district court. The district court allowed his motion for additional attorney fees and the State Department of Social Welfare has also appealed from that decision.
Appellant suggests that K. S. A. 39-719a provides that the State Board of Social Welfare may file a claim against the estate of a deceased who had received welfare assistance and the petition for administration of the estate of Alexander Blakely, deceased, was started in good faith pursuant to the authority granted by K. S. A. 59-2221, extending to any interested person the right to petition for administration of an estate. Appellant contends that under these circumstances it could not be charged with the costs incurred in administering the no-asset estate.
The district court concluded:
“The Probate Court has discretionary power to tax the costs and necessary expenses of administration against such party or parties as it appears to the Court is just and equitable in the premises where it appears that it would be unjust and inequitable to tax them against the estate.”
The district court based its decision on K. S. A. 59-2214 which provides insofar as material here:
“In all probate proceedings relating to the estate of a decedent or ward, the court shall tax the costs thereof against the estate unless otherwise pro vided by this act, or unless it appears that it would be unjust and inequitable to do so, in which event the court shall tax such costs or any part thereof against such party as it appears to the court is just and equitable in the premises. . . .”
The trial court stated the reasons for its conclusion in a memorandum decision:
“. . . The matter of costs was placed by the legislature just where it should be left, a discretionary matter for the Probate Court. The ‘costs’ in a probate proceeding are on a different footing from costs in other proceedings. The administrator represents both heirs and creditors. If the creditor can compel the appointment of an administrator then under the proper circumstances (where it would be unjust and inequitable to assess against the estate) the Probate Court must be in a position to do justice to the administrator, who is by reason of the creditors’ petition for administration, personally obligated for attorney fees and expenses.”
Although this court has not passed directly on the question, we did have a related question in In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305. At page 380 of the opinion we stated:
“We find much in pertinent provisions of oar comparatively new probate code, especially when they are considered together, indicating that administration of the estate of an intestate resident decedent, regardless of its known assets, is required if and when a creditor demands it.”
We stated on page 383 of the opinion what might be done as to costs under such circumstances:
“Appellants suggest the conclusion just announced would result in no benefits to heirs at law who oppose administration and expense to them or to the county in those cases where creditors are unable to establish assets in amounts sufficient to pay their demands. The answer to one phase of this contention is to be found in our decisions holding that administration is for the benefit of creditors as well as heirs. Be that as it may, our decision need not result in financial injury to heirs or to the county. The provisions of 59-2214 authorize the probate court to tax costs against creditors and even permit it to require them to give security for costs if and when, in the exercise of its discretion, it deems that action is just and equitable.”
We conclude tbat a probate court may in its sound discretion charge the cost of administering a no-asset estate to the creditor who petitioned for administration, but such discretion should be exercised with great caution in order that creditors not be fearful of asserting their rights. We find no basis for disturbing the discretionary act of the probate court in the procedings under consideration.
Reasonable attorney fees are proper items of cost of administering a decedent’s estate, including a reasonable fee on appeal to the district court or the supreme court. (In re Estate of Eyth, 157 Kan. 268, 139 P. 2d 378.)
The judgment is affirmed.
APPROVED BY THE COURT.
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Per Curiam:
On March 6, 1970, Thomas Willard Cunningham voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, which is now on file with the clerk of this Court.
It is therefore ordered by the Court that the surrendered certificate be accepted and the clerk of this Court is ordered and directed to mark the certificate void and to strike Thomas Willard Cunningham’s name from the roll of attorneys.
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The opinion of the court was delivered by
Fromme, J.:
The State of Kansas appeals from an order dismissing a charge of first degree arson (K. S. A. 21-581) filed against Kenneth Christendon. The charge, as contained in the amended information, describes the property burned as the Parrish Hotel in Great Bend, Kansas, and alleges it was the property of C. C. (Monte) Parrish, the owner thereof, and Bonnie Evitt and other persons, the occupants thereof.
Prior to trial the defendant presented a motion to the court in the nature of a plea in abatement. In support of the motion a transcript of the testimony given at the preliminary hearing was presented to the court. No evidence appears in the transcript to refute the testimony that the owner of the hotel hired the defendant to burn the property. On oral argument the state admitted that the evidence at a trial would establish that defendant, Christendon, burned the hotel at the request of the owner and that Christendon was motivated by some anticipated reward from the owner. The district court ordered the charge of first degree arson dismissed.
A separate charge of first degree arson against the owner, C. C. (Monte) Parrish was also dismissed. It should be noted that the order of dismissal in the Parrish case was affirmed on appeal by this corut. (See State v. Parrish, 205 Kan. 33, 468 P. 2d 150.) Based upon our holding in that case a necessary element of the crime of first degree arson as defined in K. S. A. 21-581 is that the building burned be the property of another person.
However, Parrish was convicted of insurance arson and third degree arson. (See State v. Parrish, 205 Kan. 178, 468 P. 2d 143.)
The trial court held in the present case that Christendon, who applied the torch to the property at the request and procurement of the owner, could not be guilty of a more serious crime than the owner who hired him. We agree.
First degree arson is defined by K. S. A. 21-581 as follows:
“That any person who willfully sets fire to or burns or causes to be burned, or who aids, counsels or procures the burning of any dwelling house, whether occupied, unoccupied or vacant, or any kitchen, shop, bam, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, such property being the property of another person, shall be guilty of arson in the first degree, and upon conviction shall be punished by confinement and hard labor for not less than two nor more than twenty years.” (Emphasis added.)
It is not necessary to cite the cases which have previously construed this statute. These cases appear in State v. Parrish, 205 Kan. 33, 468 P. 2d 150, which supports the trial court’s holding.
The controlling question in the present case is whether a person procured or hired by the owner to burn a building of the owner may be held guilty of first degree arson as defined in K. S. A. 21-581 when the building is burned with an intent by the owner to injure or defraud an insurer as proscribed by K. S. A. 21-584.
In an annotation appearing in 54 A. L. R. p. 1236 the author, commenting on the case of State v. Craig, 124 Kan. 340, 259 Pac. 802, says:
“The Craig Case seems to be the only case in which the courts have discussed the effect of a subsequent ratification by the owner of the burning of a building. However, in a number of other cases, the courts have discussed the criminal liability of one who burns a building with the sanction of the owner at the time of the burning, and have held that such a person is not guilty of arson, since, at common law and under most statutes, one cannot be criminally liable for burning his own building, and an agent cannot be more liable than his principal would be if he did the act. [Citing cases.]”
In 5 Am. Jur. 2d, Arson and Related Offenses, § 23, p. 818, it is said:
“If the owner in possession is not guilty of arson in burning his own property, then one who assists the owner in burning it or who burns it at the owner’s request is not guilty of arson, for the agent’s guilt can only be coextensive with that of the principal.”
See also 6 C. J. S. Arson § 15, p. 735.
In this state every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any felony before the fact, shall be guilty of the offense in the same degree as the principal in the first degree. (K. S. A. 21-105.)
The Ohio Supreme Court in holding an agent’s guilt was coextensive with the owner who procured his own property to be burned said in Haas v. State, 103 Ohio St. 1, 132 N. E. 158, 17 A. L. R. 1164:
“It is but the application of ordinary logic to say that if the aider and abettor is guilty of the same crime as the principal, and may be prosecuted as a principal, that the principal is guilty of the same crime as the aider and abettor; that in law the action of the one is treated as the action of both, and that the actions of both are no different than though the separate acts of each were performed by one person. . . .” (p. 5)
Under statutes similar to K. S. A. 21-581 the cases are quite uniform in holding that an agent who bums the owner’s building at the request of the owner cannot be held guilty of burning the property of another. (Haas v. State, supra; Commonwealth v. Makely, 131 Mass. 421; State v. Haynes, 66 Me. 307; Elisha Roberts v. The State, [Tenn.] 7 Cold. 359; Heard v. State, 81 Ala. 55, 1 So. 640; Dedieu v. The People, 22 N. Y. [Appeals] 178; State v. Sarvis, 45 S. C. 668, 24 S. E. 53; State v. Greer, 243 Mo. 599, 147 S. W. 968. See also Wharton’s Criminal Law and Procedure [Anderson] Vol. II, Arson § 405, p. 20.)
Although the relationship of principal and agent is not technically applicable to criminal law, yet responsibility for burning property generally depends upon the intent or mens rea of the owner who procures the burning. If the owner desires to rid himself of a building by burning and can limit the fire to his own building he may do so. Without a willful or malicious intent he commits no crime. An owner can hire someone to do to his property what he himself may do. The person hired to bum the property of the owner commits no greater crime than the owner.
The reasoning which limits the guilt of the agent arises out of the law of principals and accessories. The person who applies the torch to the property is the principal. The person who procures, counsels and aids the principal to burn the property is the accessory. In theory the accessory (owner) is regarded as constructively present, giving aid, counsel and encouragement to successfully accomplish the common purpose. The separate acts of the accessory (the owner) and of the principal (the torch) unite in one purpose. (See Perkins on Criminal Law [University Textbook Series], Parties to Crime, p. 572.) The purpose in this case, which makes the burning criminal in nature is the owner’s intent to defraud the insurer by burning the property. If the defendant knew he was assisting the owner in defrauding the insurer when he set fire to the owner’s property he too was guilty of accomplishing the crime proscribed by K. S. A. 21-584. But in any event the purpose accomplished by both accessory and principal remains the same. The purpose was not to bum the property of another person.
When the owner procures another to burn a building of the owner with intent to injure or defraud an insurer as proscribed by K. S. A. 21-584, such burning is not a willful burning of the property of another person as defined in K. S. A. 21-581.
Therefore, the order dismissing the charge of first degree arson against the defendant Christendon was proper.
One additional matter deserves comment. The appeal brief of the state is devoted almost entirely to argument and citations on the authority of a county attorney to commence and control criminal prosecutions within his county. The citations in support of this argument begin with K. S. A. 19-702, Clough & Wheat v. Hart, 8 Kan. 487, and run through State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99. The thrust of the argument is that the district judge exceeded his authority and encroached upon the duties of the county attorney by dismissing the charge of first degree arson and by volunteering statements that under the agreed facts the crime lodgable against both Parrish and Christendon was insurance fraud.
We do not view the record as indicating any invasion of the province of the county attorney.
The defendant in a criminal proceeding may present factual matters outside the accusatory pleading in support of a plea in abatement which may render the pleading invalid, or which may tend to impeach the validity of such pleading. (State v. McCarther, 196 Kan. 665, 671, 414 P. 2d 59; 21 Am. Jur. 2d, Criminal Law §468, p. 464.)
In this case it was by agreement of all parties that the court consider facts which were extrinsic to the information. The facts appeared in the transcript of testimony taken at the preliminary hearing. This testimony appears in the record before us. Two of the witnesses testified Christendon told them the owner of the hotel had hired him (Christendon) to burn the hotel. The state does not deny or refute this testimony. It would have been futile to proceed to trial on this amended information in view of the admitted facts.
Under the facts and the law the district judge properly dismissed the charge of first degree arson. The commencement and control of other possible criminal proceedings against the defendant was left entirely in the hands of the county attorney. The statements and suggestions of the district judge were merely volunteered in support of the order of dismissal.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to recover taxes paid under protest on the administrative office building of the United Methodist Church in Kansas located in Topeka. The trial court denied relief and appeal has been duly perfected.
The underlying question is whether the church property in question is exempt from taxation under Article 11, Section 1 of the Kansas constitution and K. S. A. 79-201, Third.
There is no dispute in the facts. The parties stipulated that the use of the property in question and the improvements thereon were covered by the testimony of W. McFerrin Stowe, Robert Kendall, Roger Biddle and Glen Matthews.
The real estate and improvements occupied by the Kansas East Conference of the United Methodist Church, formerly the Kansas Conference of the Methodist Church, are owned by the Kansas East Conference of the United Methodist Church, herein referred to as the “Conference,” by and through its board of trustees.
The building is used for the offices of the Bishop of the Methodist Church of the State of Kansas; the District Superintendent of the Topeka District of the Methodist Church; the Executive Secretary of the Interboard Council of the Methodist Church; the Assistant Secretary of the Interboard Council of the Methodist Church for Children; the Superintendent of Ministry of the Methodist Church for the State of Kansas; and the Superintendent of Campus Ministry of the Methodist Church for the State of Kansas. All of the foregoing persons who occupy the building are ministers of the Methodist Church, with the exception of their secretaries, and devote their efforts to carrying on the ministry and work of the Methodist Church.
The tract and building are located in Topeka, Kansas, adjacent to the Lowman United Methodist Church on West Fifteenth Street immediately west of Gage Boulevard.
It was stipulated by the parties that the Conference, by and through its board of trustees, purchased the real estate in July, 1966, and commenced the construction of the building thereon in July, 1967, which it now occupies. The property was placed on the tax rolls of Shawnee County, Kansas, and a real property tax was assessed against it in the amount of $1,642.42 for the year 1968. This sum of money was paid under protest by the plaintiff on December 17, 1968, and on December 26, 1968, this action was filed to recover the taxes paid under protest.
The building houses the following administrative officers and their staff:
W. McFerrin Stowe, Bishop of Kansas, who assigns the ministers to the churches and gives guidance in the aspects of church life to the Methodist colleges and universities. As chief pastor, he preaches almost every Sunday all over the state.
Rev. Robert Kendall, the Executive Secretary of the Conference, who serves as a “minister of ministers,” and trains pastors and leaders to work on the board of missions, evangelism and education. James Uhlig, assistant to Rev. Kendall, works with the youth programs and plans summer camps and institutes.
Roger Biddle, District Superintendent, who is responsible for 89 churches in the Topeka district and is concerned with the assignment of pastors and any counseling they may need concerning their lives and their work. He preaches nearly every Sunday.
Glen Matthew, Area Superintendent of Ministry, who works in die field of career development for the ministers. He preaches sermons by invitation.
This Conference contains some 900 churches and 650 ministers in Kansas. No persons other than those associated with the Kansas Conference ever use the building. It is never rented out to any other persons. All financial support of the Conference comes from gifts of the local church members, and the Conference treasurer pays the expenses of the building and the salaries of those who work in the building from such funds. There is no responsibility at the Conference level to raise funds; the Conference has no assets other than what the colleges may have; there is no management of income-producing properties; and no one in the building participates in the investment of church funds.
The appellant contends the property is used exclusively for religious purposes and is not a center for fund raising or the financial management of church assets.
Article 11, Section 1 of the Kansas constitution provides:
“System of taxation; classification; exemption. The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and all household goods and personal effects not used for the production of income, shall be exempted from taxation.” (Emphasis added.)
Consistent with the above cited constitutional provision the legislature enacted K. S. A. 79-201, which in material part provides:
“That the property described in this section, to the extent herein limited, shall be exempt from taxation:
“First. All buildings used exclusively as places of public worship, as public schoolhouses or both, with the furniture and books therein contained and used exclusively for the accommodation of schools and religious meetings, together with the grounds owned thereby if not leased or otherwise used with a view to profit.
“Third. All real property, and all tangible personal property, actually and regularly used exclusively for literary, educational, scientific, religious, benevolent or charitable purposes: Provided, That this exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.”
(K. S. A. 1968 Supp. 79-201, First and Third, here applicable, are identical with K. S. A. 79-201 insofar as they are material to this case. K. S. A. 79-201 was last amended by L. 1969, ch. 429, § 1.)
The trial court after reviewing Kansas decisions concluded:
“. . . that property is exempt from taxation for religious or literary or educational or scientific or benevolent and charitable purposes only if it is used directly, immediately, and exclusively for such purposes. This would require that religion be directly dispensed from the property or that the property itself be used directly in the dispensing of charity or education. It is not enough that the property be used only indirectly for teaching religion or for dispensing charity or for accomplishing any of the other exempted purposes.”
Later in its memorandum opinion the trial court stated:
“. . . that in order for a building in Kansas to be exempt from taxation as being used exclusively for religious purposes the property in question must be used by a religious society or body of persons as a stated place of public worship or as a Sunday school or as a place where religious instruction is regularly conducted. Property which is used strictly for administrative purposes, for general supervision of ministers, for supervising their professional careers, for counseling and advising officials of educational institutions operated by a church body, are not used exclusively, directly and immediately for religious purposes within either the constitutional provision or the provisions of K. S. A. 79-201. Such property is used only indirectly for such purposes, and does not qualify for exemption from taxation.”
The real question here to be determined is whether the property in question is “actually and regularly used exclusively for . . . religious, . . . purposes.”
It is firmly established in this jurisdiction that constitutional and statutory provisions exempting property from taxation are to be strictly construed and all doubts resolved against the exemption. (Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344; Griswold v. Quinn, 97 Kan. 611, 156 Pac. 761; Manhattan Masonic Temple Ass’n v. Rhodes, 132 Kan. 646, 296 Pac. 734; and Clements v. Ljungdahl, 161 Kan. 274, 167 P. 2d 603.)
Furthermore, the question of ownership or title to the property is not a determining factor. The exemption from taxation declared by Article 11, Section 1 of our constitution is a property exemption based solely upon the exclusive use made of the property. (Masonic Home v. Sedgwick County, 81 Kan. 859, 106 Pac. 1082; and Clements v. Ljungdahl, supra.)
The question is not whether the property is used partly or even largely for the purposes stated in the exemption provisions, but whether it is used exclusively for those purposes. (State, ex rel., v. Security Benefit Ass’n, 149 Kan. 384, 87 P. 2d 560, and cases cited therein; and Clements v. Ljungdahl, supra.)
As a preliminary to further discussion of the constitutional and statutory provisions here in question, a definition of the word “religious” is in order. It is the adjective form of the word “religion” which has been defined as being an apprehension, awareness or conviction of the existence of a supreme being controlling one’s destiny. (Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1, 6, 293 P. 2d 234.) In McMasters v. State, 21 Okla. Crim. 318, 207 Pac. 567, 29 A. L. R. 292, the court said:
“It has been held that ‘religion’ has reference to man’s relation to Divinity; to reverence, worship, obedience, and submission to the mandates and precepts of supernatural or superior beings. In its broadest sense it includes all forms of belief in the existence of superior beings, exercising power over human beings by volition, imposing rules of conduct with future rewards and punishments. Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637; 4 Words and Phrases, Second Series, p. 253; People v. Board of Education, 245 Ill. 334, 92 N. E. 251, 29 L. R. A. (N. S.) 442, 19 Ann. Cas. 220; State v. Amana Society, 132 Iowa, 304, 109 N. W. 894, 8 L. R. A. (N. S.) 909, 11 Ann. Cas. 231.” (pp. 322, 323.)
In Davis v. Beason, 133 U. S. 333, 33 L. Ed. 637, 10 S. Ct. 299, the United States Supreme Court said:
“The term religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. . . .” (p. 342.)
It is apparent the term “religious” found in the constitution and statutory provisions under consideration has been used in our decisions in the broad sense indicated by the foregoing definitions,
The word “exclusively” as used in the constitutional and statutory provisions under consideration has been defined in Sunday School Board of the Southern Baptist Convention v. McCue, supra, where the court said:
“In connection with the word ‘exclusively’, plaintiff seems perplexed because that word has not been explicitly defined in any of our previous decisions, and it quotes a portion of a definition from Webster’s New International Dictionary, Second Edition. The word is an adverb form of the verb ‘exclude’ defined in the above dictionary as ‘To shut out; to hinder from entrance or admission; to refuse participation, enjoyment or inclusion,’ and as used in the adverb form means, among other things, to the exclusion of all others, without admission of others to participate, only, solely, purely. We think it implicit in our many decisions where the word has been used, it is in the sense that the use made must be only, solely, and purely for the purpose stated in our constitution, and without admission to participate in any other use. Numerous definitions of like content may be found in Words and Phrases, Permanent Edition. . . .” (p. 5.)
It is conceded there is no Kansas case directly in point on the question here presented. Here the property is used by a religious organization as administrative offices for a vast number of churches located throughout the state of Kansas. Some of our decisions, principally Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005; Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 Pac. 869; and Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 254 P. 2d 830, tend upon first blush to support the position of the trial court — that the provisions of the constitution and the statute here in question exempt from taxation only such property as it used “directly, immediately and exclusively” in dispensing charity or religion as the case may be.
Stripped of unnecessary language, and as applied to the facts in this case, Article 11, Section 1 of the Kansas constitution exempts all property used exclusively for religious purposes. While the legislature can broaden the exemption permitted by the constitution, it cannot limit or curtail the constitutional provisions. (Ottawa University v. Stratton, 85 Kan. 246, 116 Pac. 892.)
The legislature in 79-201, First and Third, heretofore quoted, has spoken on the subject of exemptions of property from taxation used for religious purposes under the provisions of the constitution here in question.
For many years following the original enactment of the tax exemption statute by the legislature in 1862 (L. 1862, ch. 198) the only provision in the statute pertaining to an exemption of property from taxation for religious purposes was contained in 79-201, First, as it now appears. It was not until 1963 (L. 1963, ch. 456, § 1) that 79-201, Third, as it now appears, was amended to include property exclusively used for religious and educational purposes. Prior to 1963 paragraph Third provided only for the exemption from taxation of all buildings belonging to scientific, literary and benevolent associations used exclusively for scientific, literary and benevolent purposes.
On the issue here presented the provisions of 79-201, Third, exempting from taxation all real property actually and regularly used exclusively for religious purposes, is identical with the constitutional provision authorizing an exemption from taxation of all property used exclusively for religious purposes.
The situation here presented is parallel to a very recent case in which the United States Supreme Court upheld the constitutionality of exempting church properties from general taxation. In Walz v. Tax Commission, 397 U. S. 664, 25 L. Ed. 2d 697, 90 S. Ct. 1409, Chief Justice Burger noted that previous language used in opinions of the United States Supreme Court tended to reflect too restrictive an interpretation of the first amendment. He said:
“. . . The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.” (p. 668.)
None of the cases relied upon by the trial court concerning the tax exemption of property used for religious or educational purposes was decided after the 1963 amendment of 79-201, Third.
While the foregoing observation may be significant in that it suggests the legislature intended a change in granting a tax exemption for all property used exclusively for religious and educational purposes, another observation may be made which is even more significant.
In Mason v. Zimmerman, supra, the court was confronted with a claim for tax exemption on property used by a Masonic Lodge on the ground that it was used exclusively for charitable and benevolent purposes. In reversing the trial court and denying the tax exemption for such property, the court said:
“. . . the provisions of section 1 of article 11 of the constitution of Kansas that all property used exclusively for . . . benevolent and charitable purposes . . . shall be exempt from taxation’ must be strictly construed, as should the similar provision of section 2 of chapter 408 of the Laws of 1907. So construed, these provisions exempt from taxation only such property as is used exclusively, directly and immediately in dispensing charity. . . .” (p. 807.) (Emphasis added.)
This appears to be the first time in our Kansas decisions when the above quoted words in italics are stated as a principle of law which purports to amend Article 11, Section 1 of the Kansas constitution by limiting its scope. Significantly, the court was there concerned with the statutory provision, 79-201, Third, as it appeared prior to the 1963 amendment.
The source of the words “directly” and “immediately” in the Mason case was St. Marys College v. Crowl, Treasurer, &c., 10 Kan. 442. The opinion was written by Valentine, J., in 1872. (The term “exclusively” first appeared in L. 1866, ch. 118, § 3 [1st], in connection with Article 11, Section 1 of the Kansas constitution.) In Crowl an action was brought to restrain the collection of certain taxes levied upon property claimed to have been used exclusively for educational purposes. The property in question was 320 acres adjoining the college grounds of St. Mary’s College. In the cultivation of this tract of land a portion of the products was consumed at the college, but other products were sold and the funds used for educational purposes. In the opinion it was stated the facts disclose “the property was used more or less mediately or remotely for educational purposes. But none of it was used exclusively, directly, and immediately for such purposes.” (p. 448.) A careful reading of the opinion will indicate the terms “directly” and “immediately” used in the opinion were explanatory and designed to be descriptive of the factual situation. It is clear in the opinion the rule applied by the court to exempt property from taxation was that it must be used “exclusively for educational purposes.” In clarifying the court’s position it was said:
“. . . And no property is exempt because it is used for educational purposes unless it is exclusively so used. (Const., art. 11, §1.) Property used partially for educational purposes, and partially for some other purpose, is not exempt. Even property used mainly for educational purposes, but not •exclusively, is not exempt. . . . The constitution does not exempt a farm used to raise produce to sell to other persons to obtain means whereby to purchase articles of food and clothing to feed and clothe the students, professors, ■and missionaries connected with a school. . . .” (pp. 449, 450.)
Presumably the words “directly” and “immediately” used in Mason v. Zimmerman, supra, have been construed in the same sense they were used in the Crowl case, because two subsequent cases involving Masonic property relied upon Mason v. Zimmerman, ■supra, without quoting its language. In Manhattan Masonic Temple Ass’n v. Rhodes, 132 Kan. 646, 296 Pac. 734, exemption of property from taxation claimed to have been devoted to benevolent and •charitable purposes was denied because the property “was not used exclusively for benevolent and charitable purposes” so as to bring it within constitutional exemption, (p. 650.)
Similarly, in Clements v. Ljungdahl, supra, the writ was denied in an original mandamus proceeding wherein property known as the Masonic Temple was taxed and the tax held to be proper. There Mason v. Zimmerman, supra, was discussed without reiterating the rule stated in Mason v. Zimmerman, supra, but stating, “Under prior decisions and particularly Manhattan Masonic Temple Ass’n v. Rhodes, supra, a construction of the constitutional provision involved has now been long established.” (p. 280.)
Inferentially, the Supreme Court had disapproved the words “directly” and “immediately” used in stating a principle of law in some of its prior decisions on tax exemption in the case of Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1, 293 P. 2d 234. The court there said:
“Plaintiff further states that in construing a constitutional provision a court is governed not by what the framers might have meant to say but by what they did say, and that the language of the constitutional provision under consideration is clear and unambiguous. Plaintiff also directs attention to some of our decisions where it has been said that property to be exempt must be used directly, immediately and exclusively and argues that these decisions expand the constitutional mandate. We shall not dwell on the lanugage used nor discuss whether the italicized words were used only as emphasis, for, in any event the three cases cited, i. e., Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344; St. Marys College v. Crowl, Treasurer, &c., 10 Kan. 442; and Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005, are but a small part of our many decisions dealing with exclusive use.” (p. 6.)
The Washburn College case in the above quotation is incorrectly cited, but other cases could have been cited.
The trial court relied upon Defenders of the Christian Faith, Inc. v. Horn, 174 Kan. 40, 254 P. 2d 830. There an original proceeding in mandamus was brought to compel the removal of plaintiffs’ property from the tax rolls of Sedgwick County on the ground that the Defenders of the Christian Faith were using the property exclusively for religious purposes.
In the opinion the court said the only question before it was whether the property sought to be exempt was used exclusively for religious purposes. The property was alleged to be the headquarters of the Defenders of the Christian Faith which the court said is not a church as that term is ordinarily understood. In disposing of the case the court simply cited a number of prior decisions which it said “clearly establish these rules and sustain our conclusion and that of our commissioner.” (p. 44.) The commissioner’s findings of fact and conclusions were appended to the opinion.
The commissioner’s findings disclosed that some of the activities conducted on the property were political and not religious, and that some were neither of a political nor a religious nature. It therefore found such use was not devoted exclusively to religious matters. The commissioner concluded that the revenue derived from the sale of books and merchandise was used for the sale of other books and merchandise for resale, and for activities of the corporation other than missionary activities, and that such revenue was not exclusively used for religious purposes. The commissioner concluded the building owned by the Defenders of the Christian Faith was not, within the constitution and statutory provisions of the state of Kansas, “used exclusively, immediately and directly for religious purposes,” and such building was not exempt from taxation, (p. 52.)
Factually, the Defenders case is analogous to St. Mary’s College v. Crowl, Treasurer, ¿rc, supra. The manner in which the opinion is written does not warrant the conclusion that it holds property used as the headquarters building of the Defenders of the Christian Faith to carry on religious work is not tax exempt.
The Defenders case was discussed in Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 351 P. 2d 19, without giving significant consideration to the words “direct” and “immediate.” The court concluded in the Kansas State Teachers Ass’n case:
“. . . Thus, the inescapable conclusion is that the headquarters building is used, in part at least, for the individual benefit of the teacher-member; consequently, it is not used directly, immediately, solely, and exclusively for educational purposes as those terms are defined by the decisions of this court so as to entitle the property to exemption from taxation under Article 11, Section 1 of our constitution.” (p. 501.)
The concluding words above used to show the property was not used exclusively for educational purposes were not designed to give the constitutional tax exemption a new dimension.
An analysis of the factual situations in cases where the words “direct” and “immediate” have been used with some force of persuasion indicates the words were employed to describe a situation where the property was held or used, either in part or in whole, for investment to produce income which was in turn used by the organization for purposes which it claimed were tax exempt. Under these circumstances, a strict construction of the tax exemption provisions led the court to say the property was being used indi rectly and not directly or immediately for the tax exempt purpose. Thus, it was not entitled to tax exemption because the property was not used exclusively for the tax exempt purpose.
This condition was specifically added in the proviso to K. S. A. 79-201, Third, by the 1963 amendment, wherein it received legislative recognition as going beyond the tax exempt authorization of the constitution.
Where prior decisions have used the words “directly” and “immediately,” it cannot be said that their application was necessarily required by the constitution as a basis for the decision. The words-were explanatory or descriptive of the facts rather than controlling in the decision-making process, and their use must be considered in the light of the facts in the particular case in which they appear. To interpret “exclusively” to mean only that which is also “directly” and “immediately” used for a tax exempt purpose is unrealistic and would in substance add a new dimension to Article 11, Section 1 of the Kansas constitution limiting the tax exemption guaranteed by the constitution.
Turning now to K. S. A. 1968 Supp. 79-201, here applicable, it must be observed that it specifically lists thirteen different situations where tax exemptions are granted by the legislature, and no more than one ground is necessary to establish the exemption. The statute does not use the word “and” between the various grounds. Therefore, an exemption may be granted under the first paragraph, and an exemption may also be granted under the third paragraph of that section. It is not necessary to combine the requirements of both paragraphs. Either one is sufficient. The decision in this case is therefore controlled by the constitutional provision and 79-201, Third. It should be noted the Defenders case and Kansas State Teachers Ass’n v. Cushman, supra, were decided prior to the 1963 amendment of 79-201, Third.
Under 79-201, Third, it is not necessary for the property to be used as a place of public worship in order to be exempt. Property that is used exclusively for religious purposes is exempt from taxation even though it is not used as a place of worship. If this were not so, the third paragraph of 79-201 would be unnecessary, useless and mere surplusage.
It is apparent the trial court treated the facts here presented without regard to the separate provisions of K. S. A. 79-201, in holding that the use of property by a religious society or body must be as a place of public worship, or as a Sunday School, or as a place where religious instruction is regularly conducted, because it is only in 79-201, First, that any reference is made to buildings used exclusively as places of public worship, as public schoolhouses or both, and used exclusively for the accommodation of schools and religious meetings.
The rule applicable to determine whether property is exempt from taxation under Article 11, Section 1 of the Kansas constitution is well summarized by Brewer, J., in Washburn College v. Comm'rs of Shawnee Co., 8 Kan. 344, as follows:
“. . . To bring this property within the terms of the section quoted it must be ‘used exclusively for literary and educational purposes.’ This involves three things, first, that the property is used; second, that it is used for educational purposes; and third, that it is used for no other purpose. . . .” (p. 349.)
On the issue here presented the rule applicable to determine whether the administrative building of the Conference is exempt from taxation under Article 11, Section 1 of the Kansas constitution and K. S. A. 79-201, Third, is that the property be actually used for religious, educational, benevolent or charitable purposes, and that it be used for no other purpose, in whole or in part.
The use of the administrative building occupied by the Conference on the facts here presented meets these requirements.
It was not the intention of the framers of our constitution or of our legislators that the law would be interpreted to deny exemption to administrative offices so essential to a well organized and efficient system for providing religious, charitable or educational benefits to the citizens of Kansas. The administrative offices of such institutions, although perhaps a step removed from the performance of the ultimate beneficial act, are no less an integral, essential and absolutely necessary part of the act itself. To hold otherwise would be to ignore the obvious necessity for the administrative function. It would refute the involvement of the executive official in the delivery of socially beneficial services, and would discourage the development of well organized institutions serving society through the most effective management techniques.
The constitution exempts from taxation all property used exclusively for literary, educational, scientific, religious, benevolent and charitable purposes. All of these uses under the law fall in the same category. An administrative building owned by a college, in which meetings of the faculty and other officials were held, situated across a street from the campus, in the same block with domitories for students, and occupied as a residence by the president and his family, this arrangement being for the benefit of the school, was held to be exempt from taxation on the ground that it was used exclusively for educational purposes in Kansas Wesleyan Univ. v. Saline County Comm'rs., 120 Kan. 496, 243 Pac. 1055.
Apparently the court in the foregoing case found that to deny a tax exemption for an administration building at a college campus because it was not “immediately” or “directly” involved in the teaching process was not realistic and constituted an unreasonable, restrictive interpretation of the law. A strict construction of tax exemption provisions in the constitution and statutes does not warrant an unreasonable construction of such laws.
The Supreme Court of California in Cedars of Lebanon Hosp. v. County of L. A., 35 C. 2d 729, 221 P. 2d 31, was confronted with a tax exemption provision for “property used exclusively for . . . hospital . . . purposes.” The court there applied the rule of strict but reasonable construction of exemption laws and held that “property used exclusively for . . . hospital . . . purposes” included any facility incidental to and reasonably necessary for the fulfillment of a complete modern hospital plant, such as a nurses’ training school and housing for interns, resident doctors, student nurses, and other employees required to be readily available. The facilities in question were allowed the tax exemption, even though they were not used for the care and treatment of patients, because they were “incidental to and reasonably necessary for the accomplishment of hospital purposes.” (p. 736.)
In a large church organization, such as the United Methodist Church in Kansas, having many church congregations and numerous members, some centralization of functions is desirable and necessary to achieve the ultimate aims of the organization — to induce men to live in accordance with moral principles and the will of the Creator. Certainly the promotion of these aims was felt worthy of special encouragement by the state and it granted a tax exemption on property used for such purposes.
The building here in question is used solely and exclusively for the administration of religious activities of the Conference, for general supervision of ministers and churches, for training and guidance of those engaged in the work of the church and occasionally for holding religious services.
We hasten to add, on the record here presented, there is nothing to show that any part of the use of the building in the administration of the Conference activities embraced political action or activities which would remove the property from its tax exempt status. But if it can be said educational, benevolent and charitable purposes are embraced within the administrative activities of the Conference in using the property for religious purposes, the use of the property for such purposes, on the facts here presented, is likewise exempt from taxation under the constitution.
In conclusion we hold the Conference property here in question is exempt from taxation under Article 11, Section 1 of the Kansas constitution and K. S. A. 79-201, Third, because it was actually and regularly used exclusively for religious purposes.
The judgment of the lower court is reversed.
Price, C. J., dissenting.
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