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The opinion of the court was delivered by
Allegrucci, J.:
This is a personal injury and wrongful death action brought by Marilyn Flagg and Richard Coonrod against the estate of their deceased father, Thomas Wesley Coonrod, for the death of their mother, Vera Coonrod. Plaintiffs appeal from the trial court’s granting of the defendant’s motion for summary judgment.
On January 15,1985, Vera Lois Coonrod was a passenger in an automobile driven by her husband, Thomas Wesley Coonrod. There was a collision involving the Coonrod automobile and a semi-tractor/trailer truck operated by Furnal Truck Line, Inc. Thomas Wesley Coonrod died in the accident and Vera Coonrod died from her injuries on February 1, 1985. The plaintiffs sued Kurtis I. Loy, administrator of the estate of their deceased father, and Furnal Truck Line, Inc., and its insurer. Defendant Kurtis I. Loy filed a motion for summary judgment based upon the doctrine of interspousal tort immunity. The trial court ruled this action was barred by the doctrine of interspousal tort immunity and granted the motion for summary judgment. A certificate of Final Judgment, pursuant to K.S.A. 1986 Supp. 60-254(b), was incorporated into the Journal Entry of Summary Judgment. This appeal followed.
The issue before the court is whether the doctrine of inter-spousal tort immunity should be abrogated. Before determining the merits of plaintiffs’ argument for abolishing the doctrine, we should first comment on plaintiffs’ argument in the alternative that an exception should be created where both spouses are deceased. Rhode Island has created such an exception. Asplin v. Amica Mutual Insurance Co., Inc., 121 R.I. 51, 394 A.2d 1353 (1978) (where one or both spouses are dead). This court has recognized an exception where the tortious act occurred prior to marriage, O’Grady v. Potts, 193 Kan. 644, 396 P.2d 285 (1964), and where the tort was intentional, Stevens v. Stevens, 231 Kan. 726, 647 P.2d 1346 (1982). However, because of our wrongful death statute, we are prevented from doing so in this case. K.S.A. 60-1901 provides:
“If the death of a person is caused by the wrongful act or omission of another, an action may be maintained for the damages resulting therefrom if the former might have maintained the action had he or she lived, in accordance with the provisions of this article, against the wrongdoer, or his or her personal representative if he or she is deceased.” (Emphasis added.)
The statute is clearly a survival statute. It creates no new cause of action for the heirs but, instead, provides that the cause of action survives if it could have been brought by the deceased had she lived. Mrs. Coonrod could not have maintained a personal injury action against the estate of her husband had she survived the accident. Therefore, absent abrogation of the doctrine of inter-spousal tort immunity, the plaintiffs would be barred from maintaining this action. The provisions of K.S.A. 60-1901 mandate such a result even though the traditional rationale for applying the doctrine of interspousal tort immunity is absent where one or both spouses are deceased. There is no marital harmony to preserve nor could the deceased spouses collude to defraud another defendant or an insurance carrier. This illogical result mandates that we reexamine our previous decisions and determine if this court should continue to recognize the doctrine of interspousal immunity in Kansas.
This court first recognized the doctrine of interspousal immunity in Sink v. Sink, 172 Kan. 217, 239 P.2d 933 (1952). Since that time, this court has continued to recognize interspousal tort immunity. In Sink, this court cited G.S. 1949, 77-109, which provided in part: “The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.” The constitutional provisions pertaining to married women (Kan. Const. art. 15, § 6), and K.S.A. 23-201 and 23-203, commonly referred to as the Married Women’s Act, were found not to modify the common-law doctrine of interspousal tort immunity and the doctrine was upheld because to not do so would be “contrary to public policy and [would] tend to disrupt the marital relation.” 172 Kan. at 219.
In O’Grady v. Potts, 193 Kan. 644, Syl. ¶ 1, this court held: “A woman may, after becoming the wife of the defendant, continue to maintain an action against her husband for an alleged tortious act” which occurred prior to the marriage. Although the holding in Sink was cited with approval, the court reasoned that a “chose in action” is personal property owned by a woman at the time of her marriage and remains her “sole and separate property.” O’Grady v. Potts, 193 Kan. at 648-49.
In Fisher v. Toler, 194 Kan. 701, 401 P.2d 1012 (1965), interspousal tort immunity was upheld even though a divorce action was pending when the personal injuries occurred.
In Miles v. West, 224 Kan. 284, 580 P.2d 876 (1978), this court again recognized the decision in Sink, but held it did not prevent a comparison of causal fault of both spouses in a comparative negligence case filed by both spouses against a third party tortfeasor.
This court recently affirmed the doctrine of interspousal tort immunity in Guffy v. Guffy, 230 Kan. 89, 631 P.2d 646 (1981). Justice Fromme, speaking for the majority, found “the doctrine of interspousal immunity presently existing in Kansas is vibrant and solidly based on the public policy of this State. It should not be abrogated.” 230 Kan. at 97. A well-reasoned and comprehensive dissent was written by Justice Prager (now Chief Justice) in which Justice Herd joined.
In Stevens v. Stevens, 231 Kan. 726, we recognized an exception to interspousal tort immunity for a willful and intentional tort committed by one spouse against the other. This exception was reaffirmed in Ebert v. Ebert, 232 Kan. 502, 656 P.2d 766 (1983).
The traditional reasons for retaining interspousal tort immunity are: (1) protection of family harmony and tranquility; (2) stare decisis; (3) absence of legislative action to abolish; and (4) possibility of fraud and collusion by the spouses where insurance coverage exists. These grounds, with the exception of fraud and collusion, were considered and recognized as grounds for the decisions in Sink and Guffy. We shall reexamine these grounds in light of present public policy and appellants’ argument that interspousal tort immunity is an archaic doctrine which has been “orphaned by logic and reason.”
Does the doctrine of interspousal tort immunity promote and protect family harmony and tranquility? We think not. The doctrine of interspousal tort immunity is a creature of common law evolving out of the legal fiction of the unity of husband and wife. The doctrine of unity was based upon the concept that, upon marriage, the wife’s identity was merged into that of her husband and she was, for all legal purposes, a chattel of her husband. The wife could not sue or be sued without the joinder of her husband. Ry reason of our constitution (Art. 15, § 6) and the Married Women’s Act, K.S.A. 23-201 and 23-203, the concept of unity of husband and wife is no longer recognized in Kansas. However, this did not prevent the majority in Guffy from justifying the continued recognition of interspousal tort immunity primarily on the premise that personal tort actions between spouses would destroy the peace and harmony of the marriage and therefore were contrary to public policy.
In Coffindaffer v. Coffindaffer, 161 W. Va. 557, 565, 244 S.E.2d 338 (1978), the West Virginia Supreme Court responded to the question of whether interspousal tort immunity promotes family harmony as follows:
“Undoubtedly family harmony is a laudable goal in this era of rising divorce rates. However, it is difficult to perceive how any law barring access to the courts for personal injuries will promote harmony. If this were a valid sociological consideration, the Legislature could orchestrate even greater harmony by abolishing the statute giving the right to divorce. Moreover, there is an obvious fallacy in this argument, as under the Married Women’s Act it has long been recognized that spouses may sue each other in regard to their property rights.”
In Shook v. Crabb, 281 N.W.2d 616 (Iowa 1979), the Supreme Court of Iowa, in abolishing interspousal tort immunity, commented:
“While the state has an interest in encouraging marital harmony, to deny a forum for the redress of a wrong would do little to advance the compatibility of a married couple. It is difficult to see how denying access to the legal process could be said with any certainty to encourage domestic tranquility. Interspousal suits are not barred for the vindication of a property interest, § 597.3, The Code, or for personal labor, § 597.16, The Code. It is difficult to understand why negligence actions between spouses would be any more disruptive than a case involving property or for personal labor, both of which are now permitted.” 281 N.W.2d at 619.
We find the cases from our sister states persuasive. We can no longer give judicial credence to the argument that personal tort actions between husband and wife will disrupt and destroy family harmony and tranquility.
Will interspousal tort immunity promote and encourage fraud and collusion? This court, in Guffy, did not discuss or rely upon the fraud and collusion theory in reaching its decision. However, appellee correctly argues that the threat of collusion and fraud has traditionally been relied upon as a reason to justify the doctrine of interspousal tort immunity. In Luna v. Clayton, 655 S.W.2d 893 (Tenn. 1983), the Tennessee Supreme Court responded to the fraud and collusion argument by stating:
“Our judicial system is not so ineffective that we must fear frivolous suits to deny relief to a plaintiff otherwise entitled simply because in some prospective application a litigant may be guilty of fraud or collusion. Built into the judicial process are numerous safeguards against fraudulent claims such as the deterrent of a perjury charge, modern discovery, procedures, and the presentation of evidence to juries, all inherent in the Tennessee Rules of Civil Procedure and designed to eliminate surprise and uncover the truth by revealing all the relevant facts. These same factors also militate against claims that insurance companies may be disadvantaged tactically. Moreover, to the extent that insurance companies may fear collusive actions, they have the right to protect themselves by either restricting the scope of their coverage or adjusting premiums accordingly.” 655 S.W.2d at 896-97.
In Nocktonick v. Nocktonick, 227 Kan. 758, 611 P.2d 135 (1980), this court rejected the fraud and collusion argument as justification for recognizing the doctrine of parental immunity as to motor vehicle accidents by concluding:
“We recognize a practical problem is that of possible collusion between parent and child aimed at securing an unjustified recovery from an insurance company. But the possibility of collusion exists to a certain extent in any case. Every day we depend on juries and trial judges to sift evidence in order to determine the facts and arrive at proper verdicts. Experience has shown that the courts are quite adequate for this task. In litigation between parent and child, judges and juries would naturally be mindful of the relationship and would be even more on the alert for improper conduct. We further must recognize that, under provisions ordinarily included in an insurance policy, the insurance company has the right to disclaim liability when there is lack of cooperation with the insurance company on the part of the insured. Lack of cooperation may be found in inconsistent or contradictory statements by the insured or in collusion between the injured party and the insured which results in false statements to the company.” 227 Kan. at 768-69.
We find this reasoning to be equally applicable to the present case and conclude that the “prevention of fraud and collusion” argument does not constitute a rational or logical ground for denying one spouse the right to maintain an action for the personal injuries resulting from the negligence of the other spouse.
Does the doctrine of stare decisis compel this court to continue to recognize interspousal tort immunity? The doctrine of stare decisis means “let the decision stand.” It does give stability to the law by continuing to recognize legal principles which are viable, workable, and just. Justice Prager, in his dissenting opinion in Guffy v. Guffy, 230 Kan. at 105-06, cautioned:
“We must recognize, however, that pillars of a building have a way of decaying and deteriorating from age. Likewise, pillars of the law, like pillars in a building, must be repaired or replaced from time to time to prevent the whole structure from collapsing. The courts of this country must recognize that the law is a changing force and, under our system, courts have always had the obligation to change the law to meet the needs of the people in a changing society at particular times. Thus, the courts have a two-fold responsibility of both preserving the law and changing the law by developing new legal principles to meet modern needs. It, of course, takes a great deal of wisdom to know which objective is the most important at any particular time.”
In Ebert v. Ebert, 232 Kan. 502, Justice McFarland, in upholding the Stevens decision creating an exception to the doctrine of interspousal immunity for intentional tort, stated:
“ ‘Judicial devotion to the doctrine of stare decisis is indeed a justifiable concept to be followed by our courts. However, it cannot and must not be so strictly pursued to the point where our view is opaqued and reality disregarded. To do so is to envision the common law to be as immutable as the laws of the Medes and Persians, and thus render our system of jurisprudence forever impotent. The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs.’ ” 232 Kan. at 503 (quoting Brooks v. Robinson, 259 Ind. 16, 22-23, 284 N.E.2d 794 [1972]).
The Maine Supreme Court, in MacDonald v. MacDonald, 412 A.2d 71 (Me. 1980), put stare decisis in its proper perspective:
“In recent years, too, we have forcefully stated that in matters of tort involving the marital relationship we cannot ‘stubbornly, hollowly and anachronistically’ stay bound by the ‘shackles’ of the ‘formalisms’ of the common law. [Citation omitted.] We have also stressed that by so declaring, we do not undermine the principle of stare decisis. Rather, we prevent it from defeating itself; we do not permit it to mandate the mockery of reality and the ‘cultural lag of unfairness and injustice’ [citation omitted] which would arise if the judges of the present, who like their predecessors cannot avoid acting when called upon, were required to act as captives of the judges of the past, restrained without power to break even those bonds so withered by the changes of time that at the slightest touch they would crumble.” 412 A.2d at 74.
The argument is made that any changes in the doctrine of interspousal immunity should be left to the legislature. We rejected such an argument in Ebert v. Ebert, 232 Kan. at 503. Justice McFarland, speaking for this court, said:
“Defendant first contends the holding and rationale of Stevens were erroneous and should be reconsidered. The public policy arguments advanced by defendant-husband were considered in Stevens and rejected. The argument is then made that any alteration in interspousal immunity is a matter reserved for legislative determination. We do not agree. The interspousal immunity doctrine was judicially created and, in Kansas, is not the subject of statutory law. It is therefore appropriate for this court to make alterations to said doctrine. E.g., Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969). See also Annot., Interspousal Tort Immunity, 92 A.L.R.3d 901, § 18.”
Finally, in Nocktonick v. Nocktonick, 227 Kan. 758, this court rejected parental immunity as to automobile negligence cases. In Guffy, the majority refused to apply the rationale of Nocktonick to abrogate interspousal tort immunity and made the following distinction:
“The appellant argues that the expressed public policy in Kansas of requiring insurance on all motor vehicles as enunciated in the Kansas Automobile Injury Reparations Act virtually compels the abrogation of immunity when personal injury arises from the negligent operation of an insured motor vehicle. The premise on which this conclusion is reached is no longer true. The legislature has now amended the Kansas Automobile Injury Reparations Act by enacting Senate Bill No. 371. Effective January 1, 1982, an insurer is given and will no doubt exercise its right in liability insurance policies to exclude coverage of ‘any bodily injury to any insured or any family member of an insured residing in the insured’s household.’
“Also, the decision in Nocktonick was premised on personal injuries caused by the negligence of a parent in the operation of a motor vehicle. The court was aware of the insurance laws of the State in effect when the decision was rendered. 227 Kan. at 769, 770. In addition, that decision is distinguishable from the present question because the parent-child relationship had not been the subject of extensive judicial and legislative action when Nocktonick was decided. In Nocktonick, this court was not faced with the rule of stare decisis, as it is in the present case.” 230 Kan. at 96.
Justice Prager, in his dissent, pointed out the fallacy of that distinction:
“Compulsory automobile liability insurance was the basis of this court’s decision to reject parental immunity in automobile negligence cases in Nocktonick. The majority opinion distinguishes Nocktonick primarily on the subsequent enactment of legislation authorizing the exclusion of family members from automobile liability polices (overruling this court’s conclusion in DeWitt v. Young, 229 Kan. 474, 625 P.2d 478 [1981], that such exclusions were void as contrary to legislative dictates of mandatory coverage). The majority’s reliance on this enactment is misplaced. First, the statute does not affect the facts of this case. Mr. Guffy possessed liability insurance. This is not a case where Mrs. Guffy is challenging the validity of an exclusion within the policy. The only impediment to her recovery under the terms of the policy is this court’s adherence to interspousal immunity. Second, the statute only authorizes the exclusion, and does not mandate its inclusion in all subsequent automobile liability insurance policies. There is nothing to keep the insurer and insured from contracting for liability coverage over that required by law, and extending it to family members. The availability of such insurance will be precluded, however, if this court maintains its position that a spouse cannot recover from a spouse-tortfeasor.” 230 Kan. at 110-11.
In his dissent in Guffy, Justice Prager listed the states which had abolished interspousal tort immunity in whole or in part as of October 1980. Since that time, the following states should be added to the list:
Arizona —Fernandez v. Romo, 132 Ariz. 447, 646 P.2d 878 (1982)
Montana — Miller v. Fallon County, _ Mont. _, 721 P.2d 342 (1986)
Ohio — Shearer v. Shearer, 18 Ohio St. 3d 94, 18 Ohio B. 129, 480 N.E.2d 388 (1985)
Pennsylvania — Hack v. Hack, 495 Pa. 300, 433 A.2d 859 (1981)
Tennessee — Davis v. Davis, 657 S.W.2d 753 (Tenn. 1983)
Utah — Stoker v. Stoker, 616 P.2d 590 (Utah 1980)
Thirty states have now abrogated the doctrine of interspousal tort immunity; additionally, twelve states have done so in part by creating exceptions, and eight states plus the District of Columbia have retained interspousal tort immunity. This trend toward abolishing interspousal tort immunity was prophesied in the Restatement (Second) of Torts § 895F, Comment f (1977):
“Abrogation. The last two decades have witnessed the definite rejection and abolition of the immunity between husband and wife in its entirety in a substantial number of jurisdictions. Numerous courts have followed a dissenting opinion of Mr. Justice Harlan in Thompson v. Thompson, (1910) 218 U.S. 611, and have held that the Married Women’s Acts and the position of equality in which they were intended to place the spouses have removed all reason and justification for the immunity, and that one spouse is subject to liability to the other for any tort whether it is to property or to the person. The number of these decisions has been on the increase in recent years and has been encouraged by the spread and general use of liability insurance, particularly in automobile cases. The indications are clear that this is the future state of the law in all states.”
This court has created several exceptions to the doctrine of interspousal immunity. The present case exemplifies the unjust and unfair consequence of interspousal tort immunity. Here, none of the traditional reasons for retaining interspousal tort immunity exist. The doctrine of interspousal tort immunity may have served a feudal society, but it does not serve a modern one. Although the majority in Guffy felt public policy was being served by continuing to recognize interspousal tort immunity, clearly, in the present case, justice is not. We cannot create another exception to the doctrine of interspousal tort immunity nor do we want to. To do so would continue to breathe life into a doctrine that has outlived its usefulness. The doctrine of inter- spousal tort immunity, as previously noted in Ebert, is of judicial origin. It rests upon this court’s decision in Sink and not upon our constitution or legislative act. It is a judicial anachronism that no longer merits recognition. We agree with appellant that the doctrine of interspousal tort immunity has been “orphaned by logic and reason,” and we hereby abrogate the doctrine of interspousal tort immunity. Sink, Guffy, and all prior opinions of this court in conflict with this decision are overruled.
The judgment of the district court is reversed and the case is remanded for further proceedings consistent with this opinion.
Holmes and McFarland, JJ., dissenting.
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The opinion of the court was delivered by
Allegrucci, J.:
Plaintiff Thomas Slaymaker sued defendants Westgate State Bank and Tom Rose for fraud and violations of the federal odometer law arising out of the purchase of a 1962 Triumph TR-3. The district court granted defendant bank partial summary judgment on the fraud count. On the federal odometer claim, the jury found for plaintiff and awarded actual damages of $3,500 (tripled under the federal law to $10,500). The trial court awarded $7,500 in attorney fees to plaintiff. Plaintiff appeals the district court’s judgment in all respects. Defendant Westgate State Bank cross-appeals from the award of attorney fees.
In June 1982, plaintiff attended a Kruse Auto Auction in Tulsa, Oklahoma. After arriving at the Tulsa auction, plaintiff discovered a 1962 Triumph TR-3 automobile.
Plaintiff had previously owned an old 1958 TR-3, and in 1975, he had purchased a 1960 TR-3 for nostalgic reasons.
The 1962 TR-3 carried a sign which stated:
“1962 TRIUMPH T-R 3
“Original - Unrestored . . .
“Stored 20 years, only 528 miles. Only one known in the world. Very rare, complete with original top, boot and side curtains.
“Last year ever made!
“A big plus — in any rare collection . . .
“(LOOK AND TAKE A PICTURE)
“ ‘BUT,’ PLEASE DON’T TOUCH”
Plaintiff believed that, if the information on the sign were correct, it would be “a hell of a buy.” He testified in a deposition that, if the sign were correct, the car would be worth $15,000 or more. The sign, however, was not correct.
A previous owner, Clint Pickett, had restored the car from the ground up and, during the restoration, had reset the odometer to zero. The car was eventually repossessed by defendant Westgate State Bank. The bank sold the car to defendant Tom Rose, a car dealer in the Kansas City area. In June 1982, Rose took the car to the Kruse Auto Auction in Tulsa.
When the TR-3 went on the block, plaintiff unsuccessfully bid $8,000. The bid went up to around $11,000, but the owner turned down the final bid. After the bidding, plaintiff spoke directly with Rose about the car. Plaintiff testified as to that conversation:
“A. [Plaintiff] . . . The conversation was generally revolving around whether the car was for sale. Obviously, he said yes. I told him that the only concern I had about the car was that — -the authenticity of its being original.
“Q. [Mr. Smith] Why were you concerned about that?
“A. I guess it didn’t seem right. It didn’t seem logical to have a 20-year-old vehicle have only 528 miles, but the condition of the car was such that I could have — if it was in an estate and it’s not an unusual thing to know of those type vehicles documented and I asked him for documentation, and his general response was that he didn’t know a lot about the car, that the bank had authenticated it. That they knew all about it and that as far as he knew what was said was correct.”
Plaintiff remained unconvinced of the “original” status of the TR-3. Plaintiff telephoned John Goans, a friend and a former Triumph dealer, in Kansas City. Plaintiff asked Goans if there was anything plaintiff could look at to determine if the car was in original condition, although they both realized “the problem of trying to identify over the telephone in any straightforward [way] whether the car was, in fact, original.” Goans suggested checking the gearbox and the tires. If the tires were not Pirellis or Dun-lops, or if the transmission was “synchromeshed,” then the car was probably not in original condition. Plaintiff inspected the car and found that the tires were Pirellis and that the transmission was not synchromeshed.
Plaintiffs doubts were not eliminated. He again spoke with defendant Rose and he testified to the following:
“[I went] back in and again voiced my reluctance to accept simply the verbal statement that the sign as represented was true. He reiterated the story that the car had come through a bank, through the Garber [estate], and at that point he said that if it turned out that I bought the car and it was not as represented by the sign, that we would negotiate the deal. He would give me the money back if the car was not driven. I would give him the car back if it was in the same state as when I got it.
“Q. Did that, then, induce you to buy the car?
“A. Yes.
“Q. At the time that he made that offer to you, that if it was not as represented in Exhibit 1 that he would let you back out of the deal and give you your money back, was that a satisfactory deal with you at that time?
“A. Well, I think part of that being a satisfactory deal at that time was that I had ascertained that he was a dealer; that he lived in or had the operation that he worked out of in Grandview, and it made it, I don’t know, a little more palatable that if there was- — if, in fact, it turned out not to be that, it was simply a short trip to do something about it.
“Q. Let me go back and ask you my question: At that time did you still have some lingering concern as to whether this Exhibit 1 data was correct?
“A. Maybe, lingering concern is a good word, but it was offset by his statement that if it turned out not to be that we would negotiate the deal.
“Q. And then that was a satisfactory transaction for you then to purchase it and if the contents of Exhibit 1 turned out to be true, you would have a vehicle that you would keep and the deal would go through, and if the contents of Exhibit 1 were untrue, then you would get your money back?
“A. Yes.”
Plaintiff purchased the car from defendant Rose for $9,000. At the time, plaintiff believed that, if the car was an original, he had a $15,000 car at a price that was, in his words, a “steal.”
Plaintiff took the car home and had Goans inspect the car. Goans told plaintiff that the car, although in excellent condition, had been rebuilt and was worth between $5,500 and $6,000. At trial, plaintiff testified that Rose refused to rescind the transaction. Rose testified that he offered to repurchase the car, that plaintiff was not interested in rescinding the transaction but, instead, in bringing suit.
On July 1, 1983, plaintiff filed suit against defendant Westgate State Bank. The petition alleged the defendant bank had committed fraud, and sought $9,500 in compensatory damages and $300,000 in punitive damages. Plaintiff also alleged that the bank had, with intent to defraud, failed to provide to defendant Rose a federal odometer statement, thereby violating 15 U.S.C. § 1988 (1982), and sought treble damages of $28,500. The petition was amended on January 30, 1984, to include defendant Rose.
The trial court sustained a partial summary judgment motion, dismissing the fraud claim against both defendants for plaintiff s failure to prove reliance on the alleged misrepresentations. The case proceeded to trial on the federal odometer statute count, and the jury found for plaintiff. The jury found that plaintiff s actual damages were $3,500 ($9,000 less $5,500 fair market value of the TR-3). The trial court awarded $7,500 in attorney fees.
Plaintiff first argues that the trial court incorrectly considered defendant Westgate State Bank’s motion for summary judgment. Plaintiff contends that the issue of reliance was not identified in the pretrial order and that the motion was not timely filed.
The pretrial order was entered on November 16, 1984, and specified that additional motions were to be filed on or before January 20, 1985. The order does not specifically address reliance under the headings of issues of fact or law. On August 2, 1985, defendant Westgate State Bank filed a motion for partial summary judgment, alleging that, as a matter of law, plaintiff had not relied upon false representations concerning the condition of the car.
Plaintiff failed to respond to the motion for partial summary judgment within 21 days. Under Supreme Court Rule 141 (235 Kan. cx), he has therefore been “deemed to have admitted the uncontroverted contentions of fact set forth” in the motion for summary judgment. In Black v. Don Schmid Motor, Inc., 232 Kan. 458, 469, 657 P.2d 517 (1983), this court addressed the nature of pretrial orders. The court noted the “broad discretionary power placed in the trial court over modification of pretrial orders,” and stated:
“ ‘Although federal judges generally recognize the binding effect of the pretrial order, this does not mean that it is rigidly and pointlessly adhered to at trial. The application of preclusion always is viewed as a matter of judicial discretion. Thus, in the absence of an abuse of that discretion, it not error for the court to permit the introduction of evidence or to give instructions on issues beyond the scope of the order or to hear witnesses not listed in accordance with the court’s order. In addition to allowing matter to be introduced that is outside the pretrial order in appropriate cases, courts have held that the order should be construed liberally so that it covers any of the possible legal or factual theories that might be embraced by its language. Even if the pretrial order cannot be interpreted to apply to the issue that is challenged as being outside its terms, relief still may be available because Rule 16 explicitly provides that the order may be modified to “prevent manifest injustice.” ’ ” 232 Kan. at 468-69.
Since the defendant bank denies the plaintiff s claim of common-law fraud, every element necessary to prove actionable fraud is in issue. An essential element of common-law fraud is justifiable reliance on the misrepresentations by the plaintiff which resulted in his injury. It was not necessary to set out in the pretrial order the elements necessary to constitute fraud as a prerequisite to the defendant bank filing its motion for partial summary judgment.
Plaintiff advances no convincing analysis of how the trial court abused its discretion in considering the motion for summary judgment. Nor does he suggest how he was prejudiced by the consideration of the motion, other than having to defend against it on the merits. Plaintiff also filed motions after the January 20, 1985, cut-off date designated in the pretrial order. His current argument that it was an abuse of discretion to permit the bank to do what he also had done is not convincing, and we find it has no merit.
Plaintiff next contends that the trial court erred by granting partial summary judgment for the defendants on the common-law fraud count.
Summary judgment may be granted where the “pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue [of] material fact and that the moving party is entitled to judgment as a matter of law.” Peoples Nat’l Bank & Trust v. Excel Corp., 236 Kan. 687, 695, 695 P.2d 444 (1985). In reviewing a grant of summary judgment, an appellate court must read the record in the light most favorable to the party who defended against the motion.
Much of plaintiff s present argument is based either upon testimony during the trial on the federal odometer count or on other portions of the record which were not timely presented to the trial court. On August 2, 1985, defendant Westgate State Bank filed its motion for partial summary judgment on the common-law fraud count, and personally served plaintiffs counsel with a copy of the motion. Plaintiff failed to file any memorandum opposing the bank’s motion within 21 days of its filing. Twenty minutes before 5:00 p.m. on August 23, 1985, plaintiff s attorney filed a motion for enlargement of time. The motion was not granted on that day nor at any subsequent time.
Pursuant to Rule 141, the district court in its discretion deemed the motion submitted. Plaintiff is deemed to have admitted to the uncontroverted contentions of fact contained in the bank’s partial summary judgment motion. The trial court’s deci sion will not be disturbed on appeal absent a clear showing of an abuse of discretion. The appellant has the burden of showing the trial court’s decision was an abuse of discretion. Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 715 P.2d 2 (1986). In support of his argument, plaintiff cites Timi v. Prescott State Bank, 220 Kan. 377, 553 P.2d 315 (1976), where this court stated that a trial court presented with a motion for summary judgment should search the record to determine whether factual issues exist. 220 Kan. at 386. Plaintiff then proceeds to attack the summary judgment motion on its merits by relying upon deposition testimony which was not timely presented to the trial court under Rule 141, or upon testimony during the trial on the federal odometer claim which occurred after the motion for summary judgment had been granted.
Plaintiff s attempt to use Timi to excuse his failure to comply with Rule 141 is not persuasive. This court’s decision in Timi does not directly or by inference relieve a party from compliance with Supreme Court Rule No. 141. It is not for the court to seek out, but for counsel to designate, that which supports a party’s position. A party whose lack of diligence frustrates the trial court’s ability to determine whether factual issues are controverted falls squarely within the sanctions of Rule 141. To oppose a motion for summary judgment, a party must actively come forward with something of evidentiary value to establish a material dispute of fact. Willard v. City of Kansas City, 235 Kan. 655, 657, 681 P.2d 1067 (1984). Therefore, we find the trial court did not abuse its discretion in finding that the defendant bank’s motion for summary judgment was submitted for determination. In that event, plaintiff is deemed to have admitted to the uncontroverted contentions of fact set forth in the bank’s memorandum. We must therefore determine whether the uncontroverted facts set forth in the bank’s memorandum are legally sufficient to support the granting of partial summary judgment in favor of the defendants on plaintiffs claim of common-law fraud.
Actionable fraud includes an untrue statement of material fact, known to be untrue by the person making it, made with the intent to deceive or recklessly made with disregard for its truthfulness, where another party justifiably relies upon the statement and acts to his injury. Nordstrom v. Miller, 227 Kan. 59, 65, 605 P.2d 545 (1980); Loucks v. McCormick, 198 Kan. 351, 356, 424 P.2d 555 (1967). The injured party must have been deceived by, and have relied upon, the defendant’s misrepresentations in order to recover damages for fraud. Youle v. Fosha, 76 Kan. 20, 25, 90 Pac. 1090 (1907). The injured party’s reliance on a fraudulent misrepresentation “must be reasonable, justifiable and detrimental.” Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 464, 701 P.2d 977, rev. denied 238 Kan. 877 (1985).
The summary judgment motion in the present case is based almost entirely upon statements made by plaintiff during his deposition. Defendant Westgate State Bank argues that plaintiff relied on defendant Rose’s promise to rescind the transaction, not upon the representations of the car’s mileage and “original” condition. Plaintiff contends that, while he may have relied in part upon Rose’s promise, he also relied upon the representations of the car’s mileage and “original” condition.
It is true that the misrepresentations need not be the sole cause of the plaintiffs conduct which results in his injury. Vernson v. Baker, 124 Kan. 575, 577, 261 Pac. 563 (1927). It is sufficient if the fraudulent misrepresentations were part of the moving cause, and, absent those misrepresentations, plaintiff would not have acted to his detriment. 124 Kan. at 577-78. Plaintiff contends that, while he may have relied in part upon defendant Rose’s promise to repurchase the TR-3, he also relied in part on the representations that the car was in “original” condition and had been driven only 528 miles. While a person claiming fraud may have relied only in part on the fraudulent representations of another, that reliance must still be reasonable, justifiable, and detrimental. Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d at 464. The question is whether plaintiff did partially rely upon the representations of “original” condition and, if so, whether it was reasonable and justifiable for him to do so.
When plaintiff directly spoke with defendant Rose after the unsuccessful auction of the car, he told Rose that his “only concern . . . about the car was . . . the authenticity of its being original.” Plaintiff felt that it was possible the representations of original condition were correct, but that “it didn’t seem right. It didn’t seem logical to have a 20-year-old vehicle have only 528 miles.” Plaintiff was sufficiently concerned over the truthfulness of the sign’s representations that he telephoned Mr. Goans in the Kansas City area, whom he knew to be an expert on Triumph automobiles. Roth Goans and plaintiff “realized . . . the problem in trying to identify over the telephone in any straightforward [way] whether the car was, in fact, original.” Goans told plaintiff several items to inspect which could show the car was not in original condition, but plaintiff s inspection of these did not show the car was not original.
Plaintiff testified that, after making the inspection, he still had doubts about the truthfulness of the sign, as well as defendant Rose’s verbal statements. He admitted that he had a “lingering concern” that the representations on the sign were false. This lingering concern was “offset” only by Rose’s promise to repurchase the car.
Plaintiff argues that the presence of the agreement to repurchase the automobile does not eliminate his reliance on the representations of the sign. The mere presence of a warranty will not ordinarily prevent liability where the plaintiff has also relied on the fraudulent misrepresentations of another.
Where the plaintiff has insisted on the warranty as a precondition to entering into any transaction, the decisions are divided. In Busch v. Wilcox, 82 Mich. 336, 339, 47 N.W. 328 (1890), the court stated:
“The third reason assigned for a rehearing by the defendant is mainly an argument upon the facts, and if addressed to the jury, or if we could decide upon the facts, would not be without great weight. But we cannot reverse a case upon disputed facts, however much wé might feel that they impressed us differently from what they did the jury. Now, we might infer and find from the testimony that Busch relied exclusively upon the guaranty of Mr. Hall as to the quantity of pine and of Van Riper’s estimate. The testimony is very strong in that direction. But Busch also testifies that he relied upon the representations made by Mr. Hall, and we cannot say that he did not rely upon both. It does not seem to us that, because he would not have entered into the contract without Hall’s guaranty, such fact was a waiver of his right to rely upon the prior representations made by Hall, whatever may have been the value of such verbal guaranty in a legal point of view.”
The Supreme Court of Connecticut took a different view in Elphick v. Hoffman, 49 Conn. 331, 332 (1881):
“The specific charge of fraud is that the petitioner misrepresented the quantity of ground, and the quantity, quality and value of the oysters planted thereon. The case finds that the respondent did not rely on these representations alone, but required and received a guarantee that they were true. If the alleged false representations did not induce the respondent to make the purchase, then it is a case of fraud without damage. If he refused to accept the representation unless put in the form of a guarantee, his only redress is on the contract. He is not at liberty to lay that aside and resort to fraud.”
However, in the instant case, it is not the presence of a warranty alone that prevents a finding of justifiable reliance. In none of the cases cited above did the plaintiffs face suspicious circumstances which caused them to entertain actual doubts of the truthfulness of the fraudulent misrepresentations. In neither of these cases did the plaintiffs seek to relieve those doubts by requiring a warranty. We are not presented with the simple case in which the tortfeasor adds a warranty to his misrepresentations, or where the victim requires a warranty as a part of his normal course of business. In the present case, defendant Rose’s promise to rescind the contract if the car was not in original condition is important because it reflects plaintiff s consistent refusal to believe the representations of original condition.
The essence of the tort of fraud is that the defendant tortfeasor has deceived his victim. See Smith v. Bridgeport Machine Co., 151 Kan. 444, 445, 100 P.2d 65 (1940). The victim must have believed the misrepresentations to be true. Canterbury Court, Inc. v. Rosenberg, 224 Kan. 493, 503, 582 P.2d 261 (1978).
Plaintiff did not rely on the truthfulness of the sign at the Tulsa auto auction because he never believed it was true. Plaintiff actively doubted the truth of the claims of “original” condition. Far from simply failing to recognize the danger signals that the sign’s representations were not correct, plaintiff consciously disregarded the acknowledged possibility or probability that the sign was not correct.
Based upon the facts of the case, as known to plaintiff at the time he purchased the car, only two possibilities existed. First, the car might be in “original” condition with only 528 miles, in which case plaintiff knew he would be “stealing” the car, as he termed it. He would be buying a car he felt was worth $15,000 for only $9,000. On the other hand, if plaintiff s concerns were correct and the car was not in original condition, he would be able to rescind the transaction.
Plaintiff, according to his own testimony, did not rely upon a belief that the representations of “original” condition were true. He actively doubted whether they were true. Rather, what plaintiff relied upon was the possibility that they might be true, coupled with the knowledge that he could rescind the transaction if they were not true. The situation is similar to the one presented in Humphrey v. Merriam, 32 Minn. 197, 20 N.W. 138 (1884). In Humphrey, the Minnesota- Supreme Court held that the plaintiff had not demonstrated a cause of action for fraud based upon the misstatements of the defendant’s agent:
“His only reliance upon Carver’s statements consisted, not in his belief of their truth, but because he thought, if false, Merriam would be responsible for them. He made his purchase, not because of any belief in the truthfulness, but because he thought Merriam would be liable as warrantor to make them good if they proved untrue. On such a state of facts, as the court below well remarked, if plaintiff made out anything, it was a cause of action on a warranty and not for deceit.” 32 Minn. at 200.
The Restatement (Second) of Torts § 548 (1976), provides:
“The maker of a fraudulent misrepresentation is not liable to one who does not rely upon its truth but upon the expectation that the maker will be held liable in damages for its falsity.”
The Comment to this section also emphasizes that the party claiming fraud must have believed the misrepresentations to be true:
“In order to justify recovery, the recipient of a misrepresentation must rely upon the truth of the misrepresentation itself, and his reliance upon its truth must be a substantial factor in inducing him to act or to refrain from action. ... It it not enough that, without belief in its truth, he proceeds to enter into the transaction in the expectation that he will be compensated in an action for damages for its falsity.” Restatement (Second) of Torts § 548, Comment a, p. 106.
Moreover, in addition to plaintiff s admitted failure to believe the sign’s representations of mileage and “original” condition, plaintiff knew that other parts of the sign were completely false. The sign claimed the car was from the last year in which Triumph TR-3’s were made. Plaintiff knew that was not true. In Gratz v. Schuler, 25 Cal. App. 117, 142 Pac. 899 (1914), the court held that a person cannot justifiably rely upon misrepresenta tions which a full investigation would show to be false, where he has discovered that other representations in the same transaction were untrue. The court stated:
“[Hjaving ascertained that the defendants falsely represented one material matter in the transaction, this was notice that the defendants may have been false in all else that they said; and therefore it was incumbent upon the plaintiff thereafter to make a full investigation as to the truth or falsity of every other material representation.” 25 Cal. App. at 121-22.
On this issue, our Court of Appeals has held, “if the recipient of a fraudulent representation has information which would serve as a danger signal to a person of ordinary intelligence and experience, he is not justified in relying upon that representation.” Young v. Hecht, 3 Kan. App. 2d 510, 516, 597 P.2d 682, rev. denied 226 Kan. 793 (1979). A person cannot justifiably rely on a representation where he possesses information which would be a “red light to any normal person of his intelligence and experience.” Goff v. American Savings Association, 1 Kan. App. 2d 75, 82, 561 P.2d 897 (1977). There is no justifiable reliance where the party alleging he was defrauded by the misrepresentations of another was so skeptical as to its truth that he reposed no confidence in it. See McIntyre v. Lyon, 325 Mich. 167, 173, 37 N.W.2d 903 (1949).
Viewing the record in the light most favorable to the plaintiff, we find that the district court did not err in granting partial summary judgment to the defendants.
After the motion for partial summary judgment had been granted for both defendants, the plaintiff orally moved to amend his petition to include the claim that defendant Rose’s promise to repurchase the car if it was not in “original” condition was a fraudulent promise of future performance. No written motion to amend the petition to include this claim has ever been filed. Plaintiff argues it was error to refuse to permit the amendment.
“ ‘[The] trial court is given wide latitude and discretion in permitting or refusing amendments [to the pleadings] in the interests of justice. In the absence of a clear abuse of discretion the order of the trial court should be approved.’ ” McAlister v. Atlantic Richfield Co., 233 Kan. 252, 265, 662 P.2d 1203 (1983) (quoting Hoover Equipment Co. v. Smith, 198 Kan. 127, 133, 422 P.2d 914 [1967]); accord Garcia v. Southwestern Bell Tel. Co., 216 Kan. 591, 592, 533 P.2d 1242 (1975); see also Hass v. Preferred Risk Mutual Ins. Co., 214 Kan. 747, 750, 522 P.2d 438 (1974). In the present case, the oral motion to amend the petition was made some 20 months after plaintiff had amended his original petition against defendant Westgate State Bank to include Rose as a defendant. It was made after the date set for the trial and after the jury had been impaneled. More importantly, plaintiff advances no reason for the failure to include the claim previously. The plaintiff fails to show how the court’s refusal to grant the motion to amend was a clear abuse of discretion.
Plaintiff next contends that the trial court erred in holding that the treble damages award was joint and several. Plaintiff recovered actual damages of $3,500 under the provisions of the federal Motor Vehicle Information and Cost Savings Act, 15 U.S.C.§ 1901 et seq. (1982). 15 U.S.C. § 1989(a) (1982) provides for civil liability for persons violating the act with an intent to defraud:
“Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
“(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and
“(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.”
In the present case, the jury found both defendants had violated the act, and found that plaintiff s actual damages were $3,500 (the $9,000 purchase price less the $5,500 actual value of the vehicle). Under the provisions of 15 U.S.C. § 1989(a)(1), the award was trebled to $10,500.
Plaintiff, however, contends that both defendants should be individually and separately liable for the treble damages award, rather than jointly and severally liable; that is, that defendants Westgate State Bank and Rose should each be liable for $10,500.
Contrary to plaintiff s contention, we find no direct support for his position in federal cases interpreting the Motor Vehicle Information and Cost Savings Act.
In Stier v. Park Pontiac, Inc., 391 F. Supp. 397, 401 (S.D. W. Va. 1975), the court stated: “Each of the defendants, under the assumed facts as stipulated, may be held liable by plaintiff for the statutory recoveries allowed.” In Stier, the court was addressing the issue of whether privity limited a plaintiff s recovery under the federal odometer law to his immediate seller, or whether prior sellers in the chain of title might also be liable. 391 F. Supp. at 401. See also Ryan v. Edwards, 592 F.2d 756 (4th Cir. 1979), addressing the same issue. The court did not address the issue of whether each defendant may be independently assessed punitive damages.
The other cases cited by plaintiff are also distinguishable. Mataya v. Behm Motors, Inc., 409 F. Supp. 65 (E.D. Wis. 1976), addressed the issue of whether one defendant in an action under the federal odometer law may seek contribution or indemnity from other codefendants. Alley v. Chrysler Credit Corp., 767 F.2d 138 (5th Cir. 1985), addressed the issue of whether a settlement with one defendant would bar the plaintiff from obtaining the $1,500 minimum civil penalty of 15 U.S.C. § 1989(a)(1) from another defendant. Neither Mataya nor Alley was presented with the issue of whether the treble damages provisions of the law may be separately applied to each defendant. The court in Alley did hold that, where separate odometer statements were issued, each issuer is subject to separate and individual liability under the act.
On the other hand, several cases have directly held that liability under the federal odometer law is joint and several. Yowell v. Boyd Chevrolet, Inc., 504 F. Supp. 77, 78 (W.D. Okla. 1980); Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381, 1388 (D. Neb. 1977), aff'd 578 F.2d 721 (8th Cir. 1978). In Duval, the court stated its reasons for so holding:
“The policy of the odometer statute is both to ‘prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers . . .’ 15 U.S.C. § 1981. The goal of deterring those tempted to turn back odometers, which is encompassed within the purpose of prohibiting tampering, is effected in several ways: Having a minimum civil liability of $1,500.00 payable to a victim; tripling the actual damages if that results in more than $1,500.00; allowing of civil penalties payable to the United States of up to $1,000.00 for each violation of the Act on suit by the Attorney General (15 U.S.C. § 1990b); providing for criminal penalties (15 U.S.C. § 1990c); authorizing inspections, investigations and administrative proceedings by the Secretary of Transportation for the enforcement of the statute (15 U.S.C. §§ 1990d and 1990e); and injunctive relief (15 U.S.C. § 1990).
“The array of techniques for controlling violators or potential violators militates against a holding that each violator should be required to pay the full judgment and not receive a diminution of his liability by reason of payment by another. If the statute depended entirely or primarily upon the civil liability provision to deter incipient violators, or if the civil liability provision were not itself punitive, the argument for requiring each violator to pay without benefit of credit for payment by another would be stronger.” 425 F. Supp. at 1388-89.
We agree and hold that the defendants are jointly and severally liable and that the plaintiff is entitled to recover only one treble damages award.
Pursuant to 15 U.S.C. § 1989(a)(2), the trial court awarded attorney fees of $7,500. Plaintiff has appealed this amount, arguing that it is so insufficient as to amount to an abuse of discretion. Plaintiff has requested attorney fees of at least $34,000. Defendant Westgate State Bank has cross-appealed, seeking a reduction of the attorney fee award to $3,500 and an order that the award should be equitably and severally allocated between the defendants by the trial court.
The parties are in agreement as to the legal standard by which the award should be measured. Both cite Hensley v. Eckerhart, 461 U.S. 424, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983), and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), which identified twelve factors to be used in calculating attorney fee awards. These factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the service properly; (4) the preclusion of other employment by acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Plaintiff s counsel Brown’s request for attorney fees is based upon the following charges:
Time Expended (hrs). Rate/Hr. Total
Attorneys’ Hours 473.2 % @ $50.00 $11,830.00
% @ $65.00 15,379.00
Law Clerks’/ Investigators’ hrs. . 5.8 $25.00 145.00
Bill submitted by Brown’s local counsel 1,500.00
$28,854.00
The final claim of $34,000 is then produced by increasing these figures by an extra 25% “[g]iven in particular the contingent nature of the attorney’s fee and the fact that a considerable amount of time spent by plaintiff s counsel has not been recorded.”
By applying the agreed standards to the trial court’s award of attorney fees, we can determine if the trial court abused its discretion. As to the time and labor required, the increasing of the requested attorney fee by 25% for work allegedly done, but which is not reflected in any form of documentation is, at best, questionable. Also absent from the record is an indication of the nature and extent of the services which underlie the $1,500 bill from the Kansas local counsel. Plaintiff does nothing more than state that a $1,500 bill was received, without presenting any sort of documentation for the services the bill reflects.
More importantly, the attorney fee award in this case is based solely upon the federal odometer statute. Plaintiff brought the original action claiming damages under the federal statute and under common-law fraud. Plaintiff s counsel never distinguished in their time records the amount of time spent on the common-law fraud count (for which attorney fees are not recoverable) and the amount of time spent on the federal statutory claim (for which attorney fees are recoverable). The federal odometer claim was not a novel or difficult question. The defendants admitted they had failed to provide federal odometer statements. Plaintiff s counsel had stated prior to the trial that he could try the federal count in his sleep, and had always “regarded the federal odometer violation to be very clear.”
There is nothing about the present case which would have precluded Brown from other employment. In fact, Brown indicated that the reason he was unable to timely respond to the partial summary judgment motion on the common-law fraud count was that he had been in trial and depositions on other cases. No evidence was introduced relevant to the customary fee charged in federal odometer cases. Counsel’s fees were partly fixed and partly contingent. There were no unusual time limitations imposed by the case. Plaintiff s counsel obtained $10,500 in total damages for his client. He had originally sought $28,500 under the federal odometer claim. Counsel testified that the award was “a good result and not a great result.” The length and nature of the professional relationship between plaintiff and counsel was not a factor, nor was the “undesirability” of the case. With regard to awards in similar cases, plaintiff cited only one case. Citing to one attorney fee award case does not indicate what the typical or normal result may be in similar cases.
Finally, with regard to the expertise, reputation, and ability of the attorneys, plaintiffs counsel contends that he “specializes” in federal odometer cases. The present case, however, was counsel’s first federal odometer case. In addition, plaintiff seeks attorney fees for three attorneys: Brown, an associate, and Brown’s local counsel. Brown’s associate and local counsel were present throughout the trial. Appellees point out that damages, not liability, was the primary issue and, in that regard, plaintiffs counsel could not qualify his expert to testify on damages. We conclude that the record does not support a finding that the district court abused its discretion.
The judgment of the district court is affirmed.
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Per Curiam:
This appeal in a habeas corpus proceeding raises only one question as to a minor fault in the journal entry of the judgment in which the appellant was convicted after a plea of guilty to a charge of second degree burglary. The journal entry has long ago been corrected by an order nunc pro tunc. The order denying the application for a writ of habeas corpus is affirmed upon the authority of Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165; Browning v. Hand, 184 Kan. 365, 366, 336 P. 2d 409; Converse v. Hand, 185 Kan. 112, p. 115-116, 340 P. 2d 874, and authorities cited. It is hereby so ordered.
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The opinion of the court was delivered by
Lockett, J.:
The plaintiff, Dean Fasse, brought this action for additional wages due him and 15 other former employees of the defendant, Lower Heating and Air Conditioning, Inc., (Lower). Fasse contends he is the intended third party beneficiary of a construction contract entered into between Lower and Wash-burn University. The trial court entered judgment for the plaintiff, and Lower appealed. We affirm.
Lower entered into a construction contract with Washburn University to perform the mechanical work on the Allied Health Center building on the Washburn campus. An addendum to the contract provided that Lower must comply with provisions of K.S.A. Chapter 44, Labor and Industries, and in particular the provisions of K.S.A. 44-201. The addendum, which included 44-201 in its entirety, concluded:
“The 'current rate of per diem wages,’ for purposes of this project, shall be defined as and synonymous with the required wages and benefits for each job classification in federal and federally assisted construction projects in Shawnee County, Kansas as determined by the Secretary of Labor of the United States Government, pursuant to the Davis-Bacon Act, (42 U.S.C. 276a et seq.), current and effective upon the date of execution of the contract.”
Lower began working on the project in June of 1982. During the construction, questions were raised concerning the wages being paid on the project. Representatives of Washburn met with Lower and others regarding the wages. At this meeting, Lower produced a document reflecting the wage scales paid employees on the construction project. Subsequently, Kenneth Hackler, attorney for Washburn, wrote a letter to Lower stating that, while the labor unions and the contractors each construed the effect of Addendum No. 1 differently, the university would not interpret the contract because contract construction was a function of the court.
Lower continued to pay the wages set forth in the schedule. Plaintiff filed this action alleging that, as an intended third party beneficiary under the contract, he was to be paid wages as set by the Davis-Bacon Act (40 U.S.C. § 276a et seq. [1982]).
The trial court determined that Lower had violated the terms of the contract by failing to pay the “current rate of per diem wages” as provided in the contract addendum. After taking judicial notice of the Davis-Bacon wage scale published in the Federal Register, the trial court ordered Lower to pay the difference between the wages actually paid and the wages required under Davis-Bacon, plus prejudgment interest. Lower appeals.
Lower contends that neither the Kansas and federal wage and hour laws nor the contract intend that the workers should be third party beneficiaries. Prior to examining the applicable state and federal law and the contract, we must determine who are third party beneficiaries.
Generally, where a person makes a promise to another for the benefit of a third person, that third person may maintain an action to enforce the contract even though he had no knowledge of the contract when it was made and paid no part of the consideration. Anderson v. Rexroad, 175 Kan. 676, 266 P.2d 320 (1954); Burton v. Larkin, 36 Kan. 246, 13 Pac. 398 (1887). But it is not everyone who may benefit from the performance of a contract between two other persons, or who may suffer from its nonperformance, who is permitted to enforce the contract by court action. Beneficiaries of contracts to which they are not parties have been divided into three classes: Donee beneficiaries, creditor beneficiaries, and incidental beneficiaries. Only those falling within the first two classes may enforce contracts made for their benefit. 17A C.J.S., Contracts § 519(4)b, p. 964; accord Burton v. Larkin, 36 Kan. 246. In more recent analyses of third party beneficiary law, beneficiaries have been divided into two general classes — intended beneficiaries and incidental beneficiaries. Third party beneficiaries are discussed in 2 Williston on Contracts, § 356 (3d ed. 1959).
To be a third party beneficiary to a contract, the contract must be made for the third party’s benefit as its object, and he must be the party intended to be benefited in order to be entitled to sue upon it. Burton v. Larkin, 36 Kan. 246. The third party beneficiary can enforce the contract if he is one who the contracting parties intended should receive a direct benefit from the contract. Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract. Ronnau v. Caravan International Corporation, 205 Kan. 154, 159, 468 P.2d 118 (1970). It is not necessary, however, that the third party be the exclusive beneficiary of all the promisor’s performance. The contract may also benefit the contracting parties as well. Martin v. Edwards, 219 Kan. 466, 473, 548 P.2d 779 (1976); 17 Am. Jur. 2d, Contracts § 306, pp. 731-32; 17A C.J.S., Contracts § 519(4)f, p. 983.
K.S.A. 44-201 requires contractors employing workers, laborers, or mechanics on public construction projects in Kansas to pay not less than the “current rate of per diem wages” in the locality where the work is to be performed. It also requires that all contracts made by or on behalf of the State of Kansas or any governmental subdivision, which involve the employment of laborers, workers, or mechanics, contain provisions requiring the payment of per diem wages for services on the project.
Under K.S.A. 44-201, the “current rate of per diem wages” is the “rate of wage paid in the locality” to workers in the same trade or work of a similar nature. The statute sets a floor below which wages paid by contractors on public projects may not fall. Andersen Construction Co. v. City of Topeka, 228 Kan. 73, 612 P.2d 595 (1980).
The Davis-Bacon Act, originally passed in 1931, 40 U.S.C. § 276a et seq. (1982), requires the Secretary of Labor to determine the minimum wages to be paid laborers and mechanics employed by contractors on federal or federally funded construction projects. Under published regulations, the Secretary compiles wage rate information, determines the prevailing wage scales, and publishes them periodically in the Federal Register. Davis-Bacon wages must be paid by all contractors on state and local construction projects when any federal financial assistance is utilized.
The Act directs the Secretary to determine not only the hourly wage but the prevailing fringe benefit payments as well. Section 276a(b) defines “minimum wages” to include both the employee’s basic hourly rate of pay and the amount paid by the contractor in fringe benefits. Fringe benefits include medical insurance, pension benefits, unemployment benefits, life insurance, disability or accident insurance, vacation and holiday pay, workers’ compensation insurance, and apprenticeship and training programs or “other bona fide fringe benefits.”
The Secretary of Labor has established two different types of wage determinations under the Act. The first type of determination is made when a federal agency awards a contract and requests the Secretary to determine the prevailing wage. The Secretary then determines wages for the work classifications involved and issues a determination for that particular project. See 29 C.F.R. § 1.5(a) (1986). The second type of determination is made by the Secretary for a particular area where large amounts of construction may be expected. These determinations are published, and once published, a contracting agency may use them without further notifying the Department of Labor. See 29 C.F.R. § 1.5(b).
For purposes of the Davis-Bacon Act wage scales, Kansas is divided into five wage areas. Ritchie Paving, Inc. v. Kansas Dept. of Transportation, 232 Kan. 346, 348, 654 P.2d 440 (1982). At trial in the present case, the plaintiff presented evidence showing that an area wage determination was prepared by the Department of Labor for the Shawnee County area. This area wage determination at the time that Washburn and Lower contracted was contained in Exhibit No. 5, which Kenneth Hackler, Washburn legal counsel, testified he had determined was the most recent wage determination for the Shawnee County area.
Both K.S.A. 44-201 and the Davis-Bacon Act were enacted not for the benefit of contractors but to protect employees by fixing a floor under wages on public projects. Andersen Construction Co. v. City of Topeka, 228 Kan. at 81. K.S.A. 44-201 clearly intends that for each day a worker labors on a contract covered by the statute, he shall be paid the current per diem rate for the type of work he is performing. Andersen Constr. Co. v. Weltmer, 224 Kan. 191, 577 P.2d 1197 (1978). We, however, have long recognized and approved the payment of Davis-Bacon wages in order to comply with K.S.A. 44-201. “Davis-Bacon wages are somewhat higher than ‘the rate of wage paid in the locality,’ computed under K.S.A. 44-201.” Andersen, 228 Kan. at 76.
In order to establish that a particular individual is an intended beneficiary of the contract, a court must determine whether or not the contract provides to that individual a direct benefit by the terms of the agreement. In determining the intent of the contracting parties as to the rights of a third party beneficiary, the court must apply the general rules for construction of contracts. The contract is to be considered as a whole, not simply from the standpoint of one isolated provision. Barnhart v. McKinney, 235 Kan. 511, 682 P.2d 112 (1984). The intention of the parties and the meaning of the contract are to be determined from the instrument itself where the terms are plain and unambiguous. First Nat’l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, 647 P.2d 1268 (1982). A contract is ambiguous when the words used to express the meaning and intention of the parties are insufficient in the sense the contract may be understood to reach two or more possible meanings. Arkansas Louisiana Gas Co. v. State, 234 Kan. 797, 675 P.2d 369 (1984). Regardless of the construction of a written instrument made by the trial court, on appeal the ap pellate court may construe the legal effect of the contract. Hall v. Mullen, 234 Kan. 1031, 678 P.2d 169 (1984).
Lower contends that it and Washburn did not contract to use the Davis-Racon wage scale as a basis for wages, but only intended to comply with the “statutory floor” dictated by 44-201. Addendum No. 1 to the contract, however, specifically states that:
“The ‘current rate of per diem wages,’ for purposes of this project, shall be defined as and synonymous with the required wages and benefits for each job classification in federal and federally assisted construction projects in Shawnee County, Kansas as determined by the Secretary of Labor of the United States Government, pursuant to the Davis-Bacon Act, (42 U.S.C. 276a et seq.), current and effective upon the date of execution of the contract.”
Where the provisions of a written contract are clear and unambiguous, there is no occasion for applying rules of construction. A contract must be enforced according to its terms so as to give effect to the intention of the parties, and that must be determined from the four corners of the instrument itself. Steel v. Eagle, 207 Kan. 146, 483 P.2d 1063 (1971).
Words will not be read into an agreement which impart an intent wholly unexpressed when the agreement was unexecuted. Cline v. Angle, 216 Kan. 328, 532 P.2d 1093 (1975). Here, the contract is clearly unambiguous. Even though this was not a federally funded project, the contract specifically provided that wages were to be based on the published Davis-Racon wage scales. The district court was correct in finding that the parties to the contract intended to pay workers contract wages based on the Davis-Racon wage scale and that the workers were third party beneficiaries under the contract.
Lower contends that 44-201 does not provide the plaintiff with a private cause of action to assert a claim for per diem wages.
Generally, the common-law procedure is regarded as the proper remedy where a right is created or a duty is required by statute and no adequate statutory remedy is provided for its enforcement or breach or where the special remedy created by statute is void. 1 Am. Jur. 2d, Actions § 75.
Courts do not require explicit statutory authorization for familiar remedies to enforce statutory obligations. When the legislature has left the matter at large for judicial determination, the court’s function is to decide what remedies are appropriate in light of the statutory language and purpose and the traditional modes by which courts compel performance of legal obligations. If civil liability is appropriate to effectuate the purposes of a statute, courts are not denied this traditional remedy because it is not specifically authorized. Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P.2d 172 (1957). For cases from other jurisdictions see: Montana-Dakota Co. v. Pub. Serv. Co., 341 U.S. 246, 95 L. Ed. 912, 71 S. Ct. 692 (1951); State ex rel. Phillips v. Wn. Liquor Bd., 59 Wash. 2d 565, 369 P.2d 844 (1962); and Branson v. Branson, 190 Okla. 347, 123 P.2d 643 (1942).
Here, K.S.A. 44-202 and 44-205 provide fines and imprisonment for violations of 44-201 et seq. The statutes, however, provide no civil remedies for those employees damaged by an employer’s failure to comply with the statute. Therefore, the employees are able to use whatever common-law remedies are available to them. A worker who claims violation of K.S.A. 44-201 may bring an action for recovery of the underpaid wages. Ritchie Paving, Inc. v. Kansas Dept. of Transportation, 232 Kan. at 351-52.
The district court was correct in finding that the workers, as third party beneficiaries, had a private cause of action to assert a claim for wages set by the contract.
Lower claims that the trial court erred in taking judicial notice of pages extracted from the Federal Register and that the Federal Register does not fall within the category of documents set forth at K.S.A. 60-409(b) for which judicial notice may properly be taken.
K.S.A. 60-409(b) provides:
“(b) judicial notice may be taken without request by a party, of (1) private acts and resolutions of the Congress of the United States and of the legislature of this state, and duly enacted ordinances and duly published regulations of governmental subdivisions or agencies of this state, and (2) the laws of foreign countries and (3) such facts as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute, and (4) specific facts and propositions of generalized knowledge which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.”
The Federal Administrative Procedure Act requires each federal agency to publish in the Federal Register (1) descriptions of its organization and the place at which and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions; (2) statements of the general course and method by which its functions are channeled and determined; (3) rules of procedure and descriptions of forms available or the places at which forms may be obtained; (4) substantive rules and statements of general policy; and (5) each amendment, revision, or repeal of the foregoing. 5 U.S.C. § 552 (1982). The Secretary of Labor is required by the Davis-Bacon Act to publish the Davis-Bacon wage scales in the Federal Register.
In McAfee v. City of Garnett, 205 Kan. 269, 469 P.2d 295 (1970), we recognized that courts could take judicial notice of Kansas administrative regulations. It is logical that since the Federal Register contains duly published regulations of federal agencies, courts should take judicial notice of federal administrative regulations, including the Davis-Bacon wage scales, as published in the Federal Register.
The trial court properly took judicial notice of the information published in the Federal Register.
Lower argues that the workers failed to prove the work classifications, tasks, or skills which would place them in comparison, for wage purposes, with other workers under the Davis-Bacon Act. Under the Davis-Bacon Act, it is the classification in which the employee works, not the employee’s particular qualifications, which determines the applicable wage rates to be paid.
In Baker v. R. D. Andersen Constr. Co., 7 Kan. App. 2d 568, 575, 644 P.2d 1354, rev. denied 231 Kan. 799 (1982), the court recognized that the appropriate per diem wage depends on the skill of the employee and the task being performed. Federal wage classification cases have generally held that an individual employee’s classification used to determine the prevailing wages for that particular area depends on the type of work performed, not the skill or experience of the employee in performing it. In any given work classification, the ability of individual laborers will vary, as will their training and experience. For example, see Matter of Lee Roy Corley dba Corley Mechanical Contractor, [1978-81 Transfer Binder, Wages-Hours] Lab. L. Rep. (CCH) ¶ 31,229 (March 21, 1978). The correctness of a wage classification is based not on skill or experience, but on the work actually performed. Matter of Hughes Aircraft Company, [1978-81 Transfer Binder, Wages-Hours] Lab. L. Rep. (CCH) ¶ 31,316 (August 20, 1979).
At trial, expert witnesses, Lower’s supervisory personnel, and the workers presented evidence as to the work actually performed on the contract. Under the circumstances, there was sufficient competent evidence to support the trial court’s finding that the workers on the project should be paid according to the various classifications listed in the Davis-Bacon wage scale.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Lockett, J.:
Defendant appealed his conviction of violating K.S.A. 21-3734(l)(c), (impairing a security interest), claiming the statute is unconstitutionally vague, and also claiming there was improper exclusion of evidence, improper inclusion of evidence, and other trial errors committed by the State and the judge. The Court of Appeals reversed defendant’s conviction holding sua sponte that K.S.A. 21-3734(l)(c) violates Section 16 of the Bill of Rights of the Kansas Constitution’s prohibition against imprisonment for debt. State v. Jones, 11 Kan. App. 2d 612, 731 2d 881 (1987). The State appealed pursuant to K.S.A. 1986 Supp. 60-2101(b) because a question as to the constitutionality of the statute arose for the first time as a result of the Court of Appeals decision.
After examining the record and giving the matter due consideration, we hold, by a unanimous court, that K.S.A. 21-3734(l)(c) is not unconstitutional.
In order that the other issues raised by the appellant, but not considered by the Court of Appeals, may be determined, the case is assigned for further argument on the remaining issues during the week of September 14, 1987.
This brief opinion announcing the decision of the court will be supplemented by a formal opinion to be filed when the remaining issues are decided by this court. The judgment of the Court of Appeals is reversed and the case is reset for oral argument on the remaining issues.
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The opinion of the court was delivered by
Nuss, J.:
This case is the third in a series of appeals by codefendants involved in the June 2006 killing of David Owen, an advocate for the homeless. For the contributions by Charles Lloyd Hollingsworth, III, he was convicted of felony murder and kidnapping. 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 concluding that statements Hollingsworth provided to the police during their investigation were voluntarily given? This issue was not preserved for appeal.
2. Did the trial court err in admitting evidence of Hollingsworth’s outstanding warrant under K.S.A. 60-455 as proof of motive or intent? No.
Accordingly, we affirm.
FACTS
Hollingsworth was convicted in July 2007 for felony murder and kidnapping in association with the killing of David Owen. Two codefendants involved in the same incident, Kimberly Sharp and Carl Lee Baker, have also been convicted of first-degree murder; their convictions have been affirmed on appeal. See State v. Sharp, 289 Kan. 72, 210 P.3d 590 (2009); State v. Baker, 287 Kan. 345, 197 P.3d 421 (2008).
Owen was an advocate on homelessness issues and visited several homeless camps around Topeka during the summer of 2006. During these visits, he attempted to persuade the camp residents to call their families to reconcile past differences and possibly resume permanent living arrangements. To accomplish these goals, Owen carried a black satchel containing several cell phones and prepaid phone cards. He would hand out the phone cards at the camps and encourage the residents to call relatives.
In mid-June 2006, Owen visited a homeless camp by the Kansas River in Topeka where Hollingsworth, Kimberly Sharp, John Cornell, and Carl Lee Baker were living. These four individuals became noticeably agitated when Owen approached Baker and encouraged him to call home. Baker told Owen to leave; Owen threatened to call the police and reached into his satchel for a cell phone.
When Owen reached into his satchel, Hollingsworth grabbed Owen’s hand and pulled it out of the bag. By then Owen was holding a cell phone. Hollingsworth jerked Owen’s arm and knocked the phone to the ground. Hollingsworth slammed Owen to the ground, picked him up, and slammed him onto a bench.
As these events occurred, Sharp looked through Owen’s satchel and found photographs of homeless camps that Owen apparently ransacked when the homeless individuals refused to five elsewhere. She started burning the photographs and other satchel items in a firepit.
Hollingsworth grabbed Owen and walked him outside the camp. Owen again threatened to call the police, and Hollingsworth grabbed a hatchet that had been stuck in a tree. Sharp followed Hollingsworth as he dragged Owen away.
Once outside the camp, Hollingsworth asked for a rope. Baker retrieved one from his tent and gave it to Cornell. When Cornell approached Hollingsworth to deliver the rope, Owen was kneeling on the ground. Hollingsworth stood behind Owen holding the hatchet. Sharp told Cornell that they were going to tie up Owen and make him sleep outside with the mosquitoes.
Hollingsworth brought Owen back to the main camp with Owen’s hands bound behind his back. The rope was tied around Owen’s neck and back down to his hands. Hollingsworth sat Owen down on the bench and put a gag in Owen’s mouth.
With this task accomplished, 'Hollingsworth and Baker sat down and rolled cigarettes. Taking the cigarettes with them, they grabbed the bound and gagged Owen and dragged him over the dike, across a field, and into a wooded area. Hollingsworth tied a rope over Owen’s head and secured his head to a tree. Hollingsworth then tied Owen’s feet, which forced him to sit against the tree with his feet lifted. This rigging would cause Owen to strangle if his feet dropped.
Hollingsworth and Baker returned to the camp. When Sharp asked how Owen was doing, Hollingsworth responded that he was “probably dead by now” because “he was turning blue” when they left him.
Hollingsworth returned to check on Owen four times over the next 2Vz hours. The fourth time Hollingsworth checked, Owen was dead. Hollingsworth and Baker untied the body and took it to another location where they hoped it would remain hidden from the authorities.
Owen’s body was found by law enforcement on July 2, 2006, near the Kansas River. The body’s decomposition prevented the examiner from definitively determining the cause of death. The examiner opined, however, that asphyxiation was a likely cause.
After the discovery of Owen’s body, Detective Michael Barron of the Topeka Police Department interviewed Ron Green on July 13, 2006. Green indicated that he had been at the homeless camp during part of the episode and implicated Hollingsworth, Baker, Sharp, and Cornell in Owen’s eventual death. Baker, Sharp, and Hollingsworth were arrested that same day and brought to the law enforcement center for questioning.
Before Hollingsworth would speak to the police, he wanted proof that Sharp was also being questioned at the law enforcement center. He therefore told Detective Barron that he would explain what happened to Owen only if Barron first asked Sharp what she would call him in his “native tongue.” After consulting Sharp, Barron told Hollingsworth that Sharp said Hollingsworth’s name was “Kusama.”
After receiving this information, Hollingsworth gave Detective Barron a detailed account of the events that led to Owen’s death. Barron subsequently took Hollingsworth to the homeless camps, and Hollingsworth reenacted the crime and explained statements he made during the initial interview. Both the interview and the reenactment were videotaped, and portions of those videos were later played for the jury at trial. Hollingsworth also provided a written statement. The entire interview process, including the reenactment, spanned 7 hours.
Hollingsworth filed a pro se motion to suppress his statements and reenactment video, arguing that he was under stress due to the events in question and due to his living conditions at the time of his arrest. The State requested a Jackson v. Denno hearing to determine the voluntariness of his statements. See Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964). After hearing testimony from Detective Barron, the trial judge ruled that Hollingsworth’s statements and reenactments on July 13, 2006, were “completely voluntary and intelligently made” and thus could be used at trial.
The State later filed a notice of intent to produce evidence under K.S.A. 60-455. In particular, the State sought to introduce evidence that Hollingsworth had an outstanding warrant at the time of the Owen episode to explain why Hollingsworth did not want Owen to call the police. At the close of a hearing on the issue, the trial court ruled that the evidence of Hollingsworth’s warrant was admissible under K.S.A. 60-455 to prove his motive and intent for the kidnapping.
The jury found Hollingsworth guilty of felony murder and kidnapping. He was sentenced to consecutive sentences of life im prisonment for the murder conviction and 206 months’ imprisonment for the kidnapping conviction.
More facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: Hollingsworth did not preserve for appeal the issue of whether the statements he provided to the police during their investigation were voluntarily given.
Hollingsworth first claims that the trial court erred when it admitted into evidence his handwritten and videotaped statements given during his police interrogation as well as the video of his reenactment of the events leading up to Owen’s death. According to Hollingsworth, these statements were not voluntary under the totality of the circumstances. See State v. Sharp, 289 Kan. 72, 210 P.3d 590 (2009) (voluntariness of a confession must be determined under the totality of the circumstances; this ultimate determination is a legal conclusion requiring de novo appellate review).
Hollingsworth specifically claims that his statements were not voluntary because (1) the interview lasted 7 hours; (2) the detectives knew that Hollingsworth was a diabetic, and throughout the interview, he would rock back and forth; (3) he made comments throughout the interview that life was not worth living, indicating that he was not in a sane state of mind; (4) he was 18 years old; and (5) he had asked Detective Barron to ask Sharp what Hollingsworth’s name was in his “native tongue” even though Hollingsworth only spoke English, indicating that he was not thinking clearly. Hollingsworth further argues that there were several “red flags” in the interview that should have indicated to the detectives that he was “quiet[,] young[,] and apparently influenced by his significantly older codefendants.”
The State responds that the issue was not preserved through a specific and contemporaneous evidentiary objection and thus may not be raised on appeal. K.S.A. 60-404; see State v. Bryant, 285 Kan. 970, Syl. ¶ 6, 179 P.3d 1122 (2008) (“As a general rule, a party must make a timely and specific objection to the admission of evidence in order to preserve the issue for appeal.”). While the record is unclear on whether Hollingsworth objected to these par ticular statements at all, at best he appeared to object on the basis of K.S.A. 60-455, not because of involuntariness. The State therefore argues that “[a] defendant cannot object to the introduction of evidence on one ground at trial and then assert another ground on appeal.” State v. Richmond, 289 Kan. 419, Syl. ¶ 4, 212 P.3d 165 (2009).
Hollingsworth acknowledges his shift in bases for objections. But he nevertheless contends his argument should be addressed “to prevent denial of fundamental rights” as acknowledged in State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006). In particular, Hollingsworth argues that the question of voluntariness implicates his Fifth Amendment right against self-incrimination.
We addressed a similar argument in State v. Richmond, 289 Kan. 419, 428-30, 212 P.3d 165 (2009). There, the defendant objected to the admission of evidence at trial on the basis of K.S.A. 60-455. On appeal, he not only argued 60-455, but also the additional bases of 60-447 and 60-445. We refused to address the newly asserted grounds on the merits because they had not been timely preserved with corresponding, specific objections at trial. We further refused to apply the asserted exceptions to our rule, i.e., the need to serve the ends of justice or, as here, to prevent denial of fundamental rights. Richmond, 289 Kan. at 428-30. We relied in part upon our recent decision in State v. King, 288 Kan. 333, 204 P.3d 585 (2009):
"[A]s recently as March of this year in State v. King, [citation omitted], we emphasized ‘the importance of this legislative mandate’ contained in K.S.A. 60-404 which ‘dictates that evidentiary 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 the Fifth and Fourteenth Amendments to the United States Constitution). We acknowledged, however, that we would continue to review, without trial objection, non-evidentiaiy-based claims of prosecutorial misconduct, e.g., comments to a jury during voir dire. 289 Kan. 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.” Richmond, 289 Kan. at 428-29.
Accordingly, the fact that an evidentiary claim may have a federal constitutional — rather than a state statutory — basis does not alone excuse the lack of compliance with K.S.A. 60-404. See Richmond, 289 Kan. 419, Syl. ¶ 3.
Hollingsworth provides no alternative rationale for why the court should review this issue on appeal. Without a timely and specific objection, the voluntariness of his statements has not been properly preserved for this court’s review.
Issue 2: The trial court did not err in admitting evidence of Hollingsworth’s outstanding warrant under K. S.A. 60-455 as proof of motive or intent.
Hollingsworth next argues that the trial court erred in admitting evidence of his outstanding warrant under K.S.A. 60-455 as proof of his motive or intent.
During his interview by Detective Barron, Hollingsworth indicated that he decided to participate in Owen’s kidnapping when Owen mentioned calling the police. Barron asked whether the reason Hollingsworth did not want Owen involving the police was because of “the warrants.” Hollingsworth indicated that this indeed was the reason.
The version of K.S.A. 60-455 in effect in June 2006 stated:
“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. 60-455 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identify or absence of mistake or accident.”
We observe that the legislature amended the statute effective April 30, 2009. Neither party, however, has filed a letter of supplemental authority pursuant to Supreme Court Rule 6.09 (2008 Kan. Ct. R. Annot. 47) arguing the amendments’ relevance to the issues before us.
Determining whether evidence was properly admitted pursuant to K.S.A. 60-455 requires several steps. State v. Gunby, 282 Kan. 39, 144 P.3d 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.’ ” State v. Garcia, 285 Kan. 1, 14, 169 P.3d 1069 (2007). 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 14 (“ ‘[T]he element or elements being considered . . . must be substantially at issue in the case.’ ”). The court must also determine whether the evidence 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 — for abuse of discretion. Reid, 286 Kan. at 507.
The court must next determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 503. Our standard for reviewing this determination is also abuse of discretion. Reid, 286 Kan. at 512 (citing Garcia, 285 Kan. at 18). Finally, if the presented evidence meets all of these requirements, 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.
Hollingsworth only argues step three error: that the district court erred in finding that the probative value of the warrants evidence outweighed the potential for producing undue prejudice. Accord ingly, we review the court’s decision to admit this evidence for abuse of discretion. Reid, 286 Kan. at 505.
We previously concluded that the issue of the voluntariness of Hollingsworth’s three statements to the police was not preserved for appellate review. Accordingly, their admission into evidence cannot now be challenged. His oral and written statements given at the police station clearly implicated him in the kidnapping, abuse, and death of Owen. His handwritten statement provides:
“David came to camp talking about getting me out of the woods and calling the police. I asked him not [to] and to please leave me alone. He persisted, started reaching into the bag (his bag) for what I still do not know. So I grabbed him and sat him down and tied his hands together. Then I took him down to the river and tied him to a tree. I told him don’t slouch or you’ll suffocate or you could pull the knot from behind your fingers out and set your self free. I left I checked on him 3x’s and he was alright still breathing. I checked on him a fourth time and he was dead. So I moved his body into the brush higher up along the KS river. I burned all his belongings and his personal things.”
Hollingsworth’s videotaped reenactment of the events at the homeless camp further implicated him. Various incriminating elements of these statements and the reenactment were corroborated by the testimony of defendant Cornell, as well as by certain physical evidence.
Evidence of Hollingsworth’s outstanding warrant would be prejudicial to him in his criminal case. This fact alone does not necessarily lead to the conclusion, however, that the evidence should have been excluded. Virtually all evidence presented by the State during a criminal prosecution is going to be prejudicial to the defendant. The question before this court is whether the trial court abused its discretion in determining that the evidence was not unduly prejudicial. Reid, 286 Kan. at 503. Evidence is unduly prejudicial when it “ ‘actually or probably brings about the wrong result under the circumstances of the case.’ ” Garcia, 285 Kan. at 18.
Given the large amount of incriminating information from Hollingsworth’s multiple statements alone, evidence of an outstanding warrant did not change the result of his trial. Moreover, the only evidence presented as to his outstanding warrant was that such a warrant existed. No information was provided regarding the spe cific information it contained. Considering all of these circumstances, we conclude that the trial court did not abuse its discretion in determining that the evidence of Hollingsworth’s outstanding warrant was not unduly prejudicial. See Reid, 286 Kan. 494.
Affirmed.
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The opinion of the court was delivered by
Wertz, J.:
This is an action arising out of an appeal to the district court of Pottawatomie county from a joint report of a survey by the county surveyors of Riley and Pottawatomie counties to establish the boundary line between the respective counties, as provided by G. S. 1949, Ch. 19, Art. 14. Plaintiffs filed a purported appeal bond, as hereinafter set forth. Defendants (appellees) moved to dismiss tire appeal on the ground that plaintiffs had failed to post a good and sufficient appeal bond, as required by G. S. 1949, 19-1426. This motion was sustained by the trial court. Plaintiffs thereafter brought the case here, the sole question being the sufficiency of the bond filed by them.
Section 19-1426 provides in pertinent part:
“Upon the filing of the report of each survey, any person interested in the same can at any time within thirty days thereafter appeal to the district court, by filing with the county surveyor a notice of Iris intention to appeal, and by giving a bond, to be approved by the clerk of the district court, conditioned for the payment of costs of the appeal if the report of the county surveyor shall be affirmed by the court. Upon the filing of such notice and bond the county surveyor shall certify the appeal to the clerk of the district court, . . .” (Emphasis supplied.)
The bond filed by plaintiffs (appellants) reads in pertinent part:
“The conditions of this bond are such, that, whereas, on the 22nd day of January, 1960, the county engineer and ex-officio county surveyor of Riley County, Kansas, and the county engineer and ex-officio county surveyor of Pottawatomie County, Kansas made a survey of the boundary and corners of the following described property:
[description]
and filed their joint report thereof in their respective offices on said date, from which said joint report the above John L. Eidson and Estella M. Eidson, his wife, have appealed to the District Court.
“Now, Therefore, if the said John L. Eidson and Estella M. Eidson, his wife, shall pay all the costs of said appeal in case they shall become obligated and adjudged to pay the same, then this obligation shall be void. Otherwise, to remain in full force and effect.” (Emphasis supplied.)
The substance of plaintiffs’ contention is that the aforementioned statute should be liberally construed and that the bond given by them was in sufficient compliance therewith.
Defendants contend that the appeal bond must be absolute and unconditional and that if the bond in any way limits the liability, it confers no jurisdiction on the trial court to hear the appeal.
The statute prescribes a simple procedure for perfecting an appeal, but two essential requirements must be met by the appealing party: (1) He must file a notice of his intention to appeal within thirty days from the date of the filing of the county surveyors report, and (2) he must give a bond for the payment of costs of the appeal if the report of the county surveyor shall be affirmed by the trial court. This procedure is clearly stated and easy to follow.
This court has on many occasions examined purported appeal bonds in other types of cases to determine if they complied with the provisions of the appropriate statutes, and we have consistently held that the obligation to secure the costs of an appeal must be absolute and unconditional, and that on failure to comply with the strict provisions of the statute, the appeal is not perfected and no jurisdiction to hear the case is vested in the district court. When the purported bond lacks the statutory requisites to perfect the right of appeal, the district court does not acquire jurisdiction of the cause. (Sogn v. Ratt, 181 Kan. 638, 313 P. 2d 253; Vesper v. Brier, 172 Kan. 84, 238 P. 2d 702; Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585; id., 139 Kan. 17, 29 P. 2d 1115; Jensen v. City of Chanute, 146 Kan. 162, 68 P. 2d 1080.)
In the instant case, the function of the county surveyors in conducting the survey under the statute was to locate the boundary between the respective counties. Title to property is not involved in such a proceeding (Boyer v. Champeny, 125 Kan. 319, 263 Pac. 1066).
The legislature, in its wisdom, made provisions for appeal by any interested person from the report of such a survey and specifically provided the manner in which such appeal shall be taken; that is, “by giving a bond . . . for the payment of costs of the appeal if the report of the county surveyor shall be affirmed by the court.” In the instant case, the bond given obligated the plaintiffs to “pay all the costs of said appeal in case they shall become obligated and adjudged to pay the same.” Plaintiffs did not unreservedly and unconditionally obligate themselves to pay the costs if the report of the surveyors were affirmed, as the statute requires. The obligation to pay the costs of appeal must be absolute, regardless of what the trial court may order or direct. The purported appeal bond given in the instant case did not provide for the unequivocal payment of the costs, as required by G. S. 1949, 19-1426, and therefore conferred no jurisdiction on the district court in said proceedings.
Plaintiffs contend that section 19-1426 should be liberally construed, as was G. S. 1949, 26-102 in the appeal of an eminent domain proceeding, Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189. A close survey of these two statutes reveals that there is a significant difference in the language. Section 26-102 merely requires giving a bond for costs. Section 19-1426, aforementioned, is much more exacting and explicit, is definite and without any ambiguity, and is an obligation conditioned for the payment of costs of the appeal if the report of the survey shall be affirmed by the trial court. There is no provision in the statute for the court to otherwise assess the costs. The mandate of the legislature cannot be enlarged by supplied language or by strained interpretation. It was competent for the legislature to prescribe the conditions upon which an appeal may be taken, and it made the provisions of the bond an essential requirement. No substitute method of bond is sufficient.
The legislature had a purpose in placing this requirement in the appeal bond. Section 19-1427 provides for the apportionment of the cost of the survey among the landowners, according to their respective interests. The interested landowners, not a public body, must bear the cost of the survey. Those landowners who are not appealing should be protected from paying costs of an appeal by one or more dissatisfied landowners. In the instant case, if the trial court, after affirming the report of the county surveyors, had the authority to tax costs and failed to tax them against the plaintiffs, then the costs would fall on the non-appealing interested landowners. It is clear that the counties would not be forced to bear any of the costs of the survey or of the appeal therefrom. The legislature, in attempting to guard against such a situation, placed on the appealing party the absolute obligation to pay the costs of the appeal if the survey should be affirmed.
It follows that the appeal bond given in the instant case did not provide for the unequivocal payment of costs of the appeal in the event the report of the survey should be affirmed by the court, and it was therefore ineffectual. Consequently, the district court did not acquire jurisdiction of the appeal. The judgment is affirmed.
It is so ordered.
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The opinion of the court was delivered by
Jackson, J.:
This is not the first time this case has been before this court on matters of pleading. It is here again. The first installment will be found in In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1, where the opinion begins by stating: “This proceeding was commenced in the probate court of McPherson County, Kansas, against the estate of a decedent for specific performance of an oral contract.”
The former case involved the petition of tire present appellant (hereinafter referred to as the petitioner) and the sustaining of a demurrer to her petition seeking a right under the alleged contract to inherit one-third of her mother’s estate. We held in the first case that it had been error for the district court to sustain the demurrer to the petition and reversed the trial court’s decision. The opinion in the former case sets out many details which need not be repeated at this time.
When the case returned to the district court, the executor filed an answer. The answer contained seven numbered paragraphs, the first of which was a general denial. Each of the other six paragraphs contained a separate affirmative defense and had a beginning title. The form will be clearer when the paragraphs involved in this appeal are examined infra.
On April 7, 1960, petitioner filed in one document separate motions to strike each of the separate affirmative defenses contending in effect that they were insufficient to state a defense as then pleaded in the answer. In many of the paragraphs, petitioner also moved, if the motion to strike were denied, that the defense be amended by alleging additional facts. On May 10, 1960, the district court sustained the motion to strike from the executor’s answer the seventh paragraph thereof involving the defense of an election of remedy, and overruled the balance of petitioner’s motions.
On May 27,1960, the petitioner filed a pleading entitled “Demurrers and Reply.” This pleading contained separate demurrers to each of paragraphs 3, 4, 5, and 6, on the ground that the separate defenses do not “state facts sufficient to constitute a defense to the causes of action alleged by claimant.” The pleading further contained a general denial as to the allegations in paragraph 2 of the answer relating to the non-claim statute.
On July 15, 1960, certain motions, not now involved but filed by petitioner after May 10, 1960, and the separate demurrers to the separate affirmative defenses contained in the answer were argued to the court. The motions were on that day overruled, and the court took the demurrers under advisement until July 25, 1960, at which time it sustained the demurrer to paragraph 3 of the answer and overruled the demurrers as to paragraphs 4, 5, and 6. On July 26,1960, petitioner appealed to this court from the orders on the demurrers and also from the orders on the motions to strike entered on May 10, 1960, together with the orders on various motions to make the answer definite and certain.
To sum up the situation, the part of the answer now under attack by the separate demurrers and motions to strike read as follows:
“4. Breach of Filial Obligations. For many years prior to the death of Gertrude McCourt Shirk, the claimant had by her conduct and actions breached each and every of her filial obligations to her mother, and her violations of such obligations were so serious as to effect a complete severance and termination of any reciprocal obligations, either moral or contractual owing to her by her mother. By reason of the same, the said deceased was completely freed of any legal obligation she may theretofore have had to treat the claimant as an heir at law.
“5. Advancements. Through the years prior to the death of the deceased, the claimant had by various devices repeatedly obtained large sums of money from her mother. Said sums also operated as a complete discharge of any obligation of the mother to treat the claimant as an heir at law and were advancements on any such obligation.
“6. Estoppel. The claimant is estopped herein from asserting any demand against the estate of her deceased mother inconsistently with the terms and provisions of the last will and testament of the deceased. The claimant herself petitioned the Probate Court of McPherson County, Kansas, for the probate of the said last will and testameiit. Since the same was admitted to probate, and in accordance with the provisions thereof, the claimant has been paid from the funds of the said estate the sum of $100 per month, and she is continuing to accept the same to the date of the filing of this Answer; and by her said conduct the claimant is ratifying and confirming the last will and testament of the decedent while she at the same time attempts to establish her demand herein completely inconsistently with the provisions of the said last will and testament. The claimant has never, and does not now, tender to restore any part of the said monies paid to her out of the estate of her mother by payment of the same back to the said estate.”
To restate the contention of the parties, petitioner claims the executor should plead more facts in the above paragraphs; that as now pleaded the allegations amount to mere conclusions of law. The executor apparently would have it held that these allegations amount to conclusions of ultimate fact, and that it is not necessary or proper to plead matters of evidence. This has been a recurring problem in all states having a code of civil procedure descended from the New York code of 1848, see Clark, on Code Pleading (2d ed.) sec. 38, p. 225 et seq. where the eminent author discusses the question at some length. As to the handling of this question in Kansas, attention may be directed to the cases cited in Dassler’s Kansas Civil Code, supplementary edition, Ch. 11, § 10.
The question which arises first is: Does petitioner as appellant have a timely appeal before the court?
The petitioner raised the same question on her motions to strike as she again raised on the separate demurrers to the various affirmative defenses of the executor’s answer. The motions to strike were overruled on May 10, 1960, and the petitioner actually sought only a rehearing of the same questions by filing her separate demurrers to the same paragraphs of the answer attacked by the motions to strike. It is quite clear that the time for an appeal is not extended by asking the trial court for a reexamination of the same question of law (Weiskirch v. Lux, 154 Kan. 464, 119 P. 2d 451; Rockhill, Administrator v. Tomasic, 186 Kan. 599, 352 P. 2d 444). The trial court first ruled on the sufficiency of the affirmative defenses in the answer on May 10, 1960; the appeal taken on July 26, 1960 was more than two months from the initial order of the court as to the sufficiency of paragraphs 4, 5, and 6 set out above (G. S. 1949, 60-3309). We are of the opinion that the filing of the separate demurrers to these paragraphs merely requested the court to reexamine the ruling on the motion to strike. The mere fact that the trial judge changed his mind upon the defense of the statute of limitations did not have the effect of extending the time for appeal as to the sufficiency of the other affirmative defenses. The only orders included in the notice of appeal which could be considered to allow an interlocutory appeal are the orders on the motions to strike and those overruling the demurrers.
We are fully aware that a motion to strike is not always an appealable order under our code, see the Rockhill case, supra, and Krey v. Schmidt, 170 Kan. 86, 223 P. 2d 1015. In the Krey case the court held that a “special demurrer” under the facts of that case amounted to a motion to strike and was not appealable. In Johnson v. Killion, 179 Kan. 571, 574, 297 P. 2d 177, the court held that a motion to strike the allegations of an answer and challenging the sufficiency thereof to state a defense amounted to a demurrer and was an appealable order. Certainly, the court must look into the substance of the pleading and cannot be bound merely by the name applied thereto by the pleader.
There can be no doubt of the right of the petitioner herein to demur to these separate defenses and to reply to another (G. S. 1949, 60-717 and 60-718).
The appeal in this case was not timely perfected and must be dismissed as the court has no jurisdiction over the subject matter (In re Estate of Kerrigan, 165 Kan. 245, 194 P. 2d 473). It should be noted that the only holding now made is as to the timeliness of the appeal, and that we do not pass upon the sufficiency of the pleading of the affirmative defenses; that question may yet be raised in the trial court or in this court in a proper manner (Dassler’s Kansas Civil Code, supplementary edition, Ch. 12, § 14).
The executor of the estate herein states in his brief that he has abandoned his cross appeal and asks that the cross appeal be dismissed. Therefore, the principal appeal and the cross appeal in this case are both dismissed.
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The opinion of the court was delivered by
Luckert, J.:
In this appeal, we hold that an outpatient mental health center and its employees did not owe a duty to those injured by a psychiatric patient who became violent 9 months after an outpatient treatment order was allowed to expire, even though there existed a basis for the continuation of the order. We conclude that an outpatient mental health treatment facility does not take charge of an outpatient subject to an outpatient treatment order in a manner that gives rise to a duty to control the outpatient’s conduct or to protect others from the outpatient.
Because no duty arose, we do not consider the question of whether an exception to liability exists because of the discretionary function exception to the Kansas Tort Claims Act (KTCA), K.S.A. 2008 Supp. 75-6104(e), which served as the basis for the district court’s grant of summary judgment.
Facts and Procedural Background
Katherine Adams and her granddaughter Alexandra Cummins (the Plaintiffs) brought suits against the Board of Sedgwick County Commissioners and several mental health care professionals after Adam Cummins, Katherine’s son and Alexandra’s father, attacked Katherine with a hammer. In an effort to save her grandmother’s life, Alexandra fatally shot her father.
During the 3-year period before this tragic incident, Adam had been treated at ComCare, a mental health agency operated by Sedgwick County, Kansas. Adam was first seen at ComCare in 1997 after he was discharged from inpatient treatment at the Topeka State Hospital (TSH). Adam’s admission to the TSH was triggered by his threats to kill family members, and while there he was diagnosed with “bipolar disorder, manic with psychotic features.” Later, he was diagnosed with “[schizophrenia, depressive type, continuous with prominent negative features, polysubstance abuse, personality disorder, NOS [not otherwise specified] with antisocial and dependent features.”
Upon release from the TSH and while under the care of ComCare, a cycle began that repeated itself several times: Shortly after discharge from inpatient treatment, Adam would refuse to take his medications, and Adam’s mental health would gradually deteriorate. He would become less compliant with the suggested treatment regimen; he would avoid one-on-one contact with his ComCare case managers; he would fail to keep appointments with various ComCare employees; and his behavior would become more hostile and threatening. On at least two occasions, Adam’s threats of violence resulted in him being hospitalized. He received court-ordered treatment at Osawatomie State Hospital (OSH) beginning in November 1997 and, for the final time, beginning in May 1999. With each hospitalization, the cycle would come full circle and then begin anew — Adam would stabilize, be discharged, refuse medications, and eventually threaten violence.
ComCare’s records relating to treatment before Adam’s final hospitalization, which began in May 1999, reflect this cycle, as well as individual practitioner’s concerns about Adam’s refusal to take medications and his potential for violence. These pre-May 1999 records also reflect that on occasion Katherine called ComCare to express her concerns for and about her son and his behavior. As a result of these contacts and because of other information, ComCare’s employees were aware that Adam had threatened Katherine, other family members, social workers, and others on several occasions.
The allegations in this case relate to the cycle that began in May 1999 with Adam’s court-ordered — i.e., involuntary — hospitalization at OSH. Adam was released from inpatient hospitalization at OSH in July 1999 and placed in outpatient therapy at ComCare. On July 20, 1999, which was several days after Adam’s discharge from OSH, the district court entered an outpatient treatment order. The court ordered that Adam:
“Shall comply with all directives and treatment as required by the treatment staff of the outpatient treatment facility;
“Shall take all medications prescribed without making any changes prior to authorization by the Outpatient Medicine Clinic Staff;
“Shall keep scheduled appointments with the Outpatient Medicine Clinic;
“Shall report use of any medication prescribed by other physicians;
“Shall abstain from using alcohol or illegally obtained drugs;
“Shall submit to random drug testing when requested by Outpatient Medicine Clinic;
“Shall meet with his designated Case Manager, Crisis or Homeless Team Staff member as scheduled; . . .
“Shall attend Day Treatment Program when recommended by clinical staff;
“Shall take all prescribed medications in the presence of the Outpatient Medicine Clinic Physician;
“Shall submit himself for lab work as prescribed by the Outpatient Medicine Clinic Staff.”
The order also required ComCare to immediately report to the district court any noncompliance by Adam with the terms of the order.
Even before this outpatient treatment order was entered, Adam’s reluctance to take his medications was reflected in a note made by Dr. Garry Porter, a ComCare employee, who wrote that Adam was trying to “chisel down” his medications. Then, 2 days after the outpatient treatment order was entered, Dr. Porter noted that Adam was not taking all his prescribed medications. Dr. Porter notified Adam’s case manager about the noncompliance and “assumed” that the noncompliance had been reported to the district court. In fact, the noncompliance was not reported.
On August 13, 1999, ComCare issued a report recommending that the involuntary outpatient care and the treatment order be allowed to expire. The report indicated that Adam was compliant with physician appointments, was taking his medications, and was meeting with his case manager. It was signed by nurse practitioner Joan Hertlein on behalf of Dr. Porter, who testified he had never seen the report. The involuntary treatment order expired on August 27, 1999.
Adam voluntarily saw Dr. Porter on September 10,1999. At that time, Dr. Porter noted Adam had “taken himself off all his meds,” and Adam stated he “feels much better” and “denies any aggressivity.” Dr. Porter’s diagnosis stated that Adam was “in partial remission” and that he had not heard anything from Adam’s family members recently. The following month, Adam’s ComCare case manager recommended that Adam’s case be closed to all services because of his refusal of ComCare’s services and being noncom-pliant with any services.
By April 2000, Adam’s condition had noticeably deteriorated, and on May 15,2000 — almost 9 months after the involuntary order had expired and 6 months after Adam had last been treated at ComCare — Adam became angry with Katherine and placed several phone calls to her home number, leaving messages that frightened both Katherine and Alexandra. They reported Adam’s behavior to the police, who told them to keep their doors locked but did nothing else.
Several hours later, Adam arrived at Katherine’s home and kicked down the door. Tragically, this time the threats of violence became a reality as Adam beat Katherine’s head and face with a hammer, leading Alexandra to fire the fatal shot that killed her father. Katherine sustained serious head injuries and permanent disabilities as a result of Adam’s attack.
This incident led to separate lawsuits being filed by Katherine and Alexandra. Katherine sued the Board of Sedgwick County Commissioners (County), Dr. Porter, and Hertlein (referred to collectively as Defendants) (Case No. 05-CV-1927). Alexandra sued only the County (Case No. 05-CV-1926). Although Katherine and Alexandra did not sue the same parties, their allegations relating to the Defendants’ duty to them and the basis for their claims of breach of duty were identical. As stated in Katherine’s petition, they allege:
“9. The Defendants had a duty to control the conduct of Adam Scott Cummins so as to prevent him from causing physical harm to the Plaintiff because:
a. A special relation existed between the Defendants and Cummins which imposed a duty upon the Defendants to control the conduct of Cummins; and
b. A special relation existed between the Defendants and the Plaintiff which gave rise to the Plaintiff a right of protection.
“10. The Defendants, individually and through the agents and employees of ComCare, were negligent in the treatment of Adam Scott Cummins as follows:
a. The Defendants determined or should have determined, under applicable professional standards, that Adam Scott Cummins posed a risk of violence to the Plaintiff;
b. The Defendants had a duty to exercise reasonable care to protect the Plaintiff who was the foreseeable victim of that danger; and
c. The Defendants had a duty to protect the Plaintiff (the intended or potential victim of its patient) when it determined or should have determined under the facts and under the standards of the profession that the patient was or might have been a danger to the Plaintiff.”
The Defendants answered and, among other things, alleged that they did not owe a duty to the Plaintiffs and that they were immune from liability under K.S.A. 2008 Supp. 75-6104(e), the discretionary function exception to the KTCA, because any decisions made by ComCare with respect to Adam’s treatment were discretionary acts. Eventually, the Defendants sought summary judgment, making the same arguments and also arguing the uncontroverted facts established that the Defendants’ actions did not cause the Plaintiffs’ injuries.
The district court granted summary judgment in favor of the Defendants. The court did not focus on whether there was a duty owed specifically to the Plaintiffs but instead analyzed whether any duties that might exist were subject to the discretionary function exception, stating:
“The only way that Defendants] could have protected Plaintiffs from Adam’s violent behavior was to seek and obtain an order for involuntary care and treatment. Such an order was entered in May of 1999. The decision to allow this order to expire and the decision not to seek additional orders for involuntary care and treatment were discretionary functions. Because the Plaintiffs’ claims are based upon Defendant[s’] performance or failure to perform discretionary functions, Plaintiffs’ claims are barred by K.S.A. 75-6104(e).”
Katherine and Alexandra now appeal, and pursuant to K.S.A. 20-3018(c), this court transferred the appeal on its own motion. The Plaintiffs disagree with the district court’s finding that the Defendants’ decision to allow the involuntary outpatient treatment order to expire, rather than recommend an extension, was protected under K.S.A. 2008 Supp. 75-6104(e), the discretionary function exception to the KTCA. The Plaintiffs argue the Defendants cannot claim governmental immunity because they violated clearly defined legal duties that they were required to follow.
While tire Defendants ask this court to affirm the conclusion that the discretionary function exception applies, they suggest that we should address the preliminary analytical step of determining whether the Defendants owed a duty to the Plaintiffs. The Defendants argue the issue of duty is dispositive. In addition, the County cross-appeals on the limited issue of whether this court lacks jurisdiction over Alexandra’s claims because her notice of appeal was not timely filed.
Standard of Review
This court’s standard of review on appeal from summary judgment is a familiar one:
“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.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
On appeal from summary judgment, an appellate court applies the same rules as the district court, and where the appellate court finds reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Miller, 288 Kan. at 32. When material facts are uncontroverted, as they are in this case, an appellate court reviews summary judgment de novo. Troutman v. Curtis, 286 Kan. 452, Syl. ¶ 1, 185 P.3d 930 (2008); Klein v. Oppenheimer & Co., 281 Kan. 330, Syl. ¶ 7, 130 P.3d 569 (2006).
KTCA
The focus of the district court’s decision was an exception to liability under the KTCA, K.S.A. 75-6101 et seq. This suit is subject to the KTCA because the Defendants are a governmental body and employees of that entity (or its agency). See K.S.A. 2008 Supp. 75-6102(b), (c) (defining “[governmental entity” to mean the state or a municipality and including counties such as Sedgwick County in the definition of “municipality”); see also K.S.A. 2008 Supp. 75-6102(d) (defining “employee” as including “any person acting on ■behalf or in service of a governmental entity in any official capacity”).
The KTCA provides:
“(a) Subject to the limitations of this act, each governmental entity shall be hable for damages caused by the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment under circumstances where the governmental entity, if a private person, would be liable under the laws of this state.” (Emphasis added.) K.S.A. 2008 Supp. 75-6103(a).
Several exceptions modify this general rule, including the exception relied on by the district court — the discretionary function exception of K.S.A'. 2008 Supp. 75-6104(e). In order to invoke one of these exceptions and “ ‘avoid liability, the governmental entity has the burden of proving that it falls within one of the enumerated exceptions found in K.S.A. 75-6104.’ ” Lane v. Atchison Heritage Conf. Center, Inc., 283 Kan. 439, 444, 153 P.3d 541 (2007) (quoting Jackson v. U.S.D. 259, 268 Kan. 319, 322, 995 P.2d 844 [2000]).
Hence, the analytical matrix established by the legislature in enacting the KTCA dictates that a governmental entity can be found liable for the negligent or wrongful act or omission of any of its employees while acting within the scope of their employment only if (1) a private person could be Hable under the same circumstances and (2) no statutory exception to HabiHty appHes.
Negligence
Regarding the first requirement, in order to establish HabiHty for negHgence against a defendant, including a governmental agency, the plaintiff must estabhsh: (1) The defendant owed a duty to the plaintiff; (2) the duty was breached; (3) the breach was the proxi mate cause of the plaintiff s injury; and (4) the plaintiff sustained damages. Hesler v. Osawatamie State Hospital, 266 Kan. 616, 623, 971 P.2d 1169 (1999); Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 397, 931 P.2d 26 (1997). Whether a duty exists is a question of law, and an appellate court’s review is unlimited. See Nero v. Kansas State University, 253 Kan. 567, 571, 861 P.2d 768 (1993).
Although the Defendants’ summary judgment motion touched on each of these elements, on appeal the Defendants focus on the element of whether they owed a duty to the Plaintiffs. In response, the Plaintiffs argue, as they alleged in their petitions, that the Defendants had a special relationship with Adam and with them. The language of the petitions parallels that found in the Restatement (Second) of Torts (1964) (Restatement), specifically Restatement § 315, which recognizes a duty in certain situations where a special relationship exists. The Plaintiffs also argue that the Defendants breached statutory duties.
Care and Treatment Act
The Plaintiffs’ arguments regarding a special relationship and a statutory duty are framed by the provisions of the Kansas Care and Treatment Act for Mentally 111 Persons, K.S.A. 59-2945 et seq. (the Act). Consequently, some discussion of the Act is necessary to our analysis of whether the Defendants owed a duty to the Plaintiffs.
In general, the Act includes provisions for (1) protecting the rights of individuals subject to the Act; (2) determining whether a person is a mentally ill person subject to involuntary commitment; (3) admitting and discharging voluntary patients from treatment facilities; (4) authorizing law enforcement officers to take a person suspected of being mentally ill into custody without a warrant; (5) administering medical treatment to individuals subject to the Act; (6) ordering outpatient treatment; (7) reviewing the status of individuals committed for treatment; and (8) disclosing a patient’s medical records.
Under the provisions of this Act, on several occasions Adam was determined to be subject to involuntary commitment. This means that at the time of commitment Adam was a
“mentally ill person . . . who also lacks capacity to make an informed decision concerning treatment, is likely to cause harm to self or others, and whose diagnosis is not solely one of the following mental disorders: Alcohol or chemical substance abuse; antisocial personality disorder; mental retardation; organic personality syndrome; or an organic mental disorder.” K.S.A. 59-2946(f)(l).
Each of the phrases “mentally ill person,” “lacks capacity to make an informed decision concerning treatment,” and “likely to cause harm to self or others” are defined in K.S.A. 59-2946(e) and (f). The first phrase — “mentally ill person” — is defined to mean:
“[A]ny person who is suffering from a mental disorder which is manifested by a clinically significant behavioral or psychological syndrome or pattern and associated with either a painful symptom or an impairment in one or more important areas of functioning, and involving substantial behavioral, psychological or biological dysfunction, to the extent that the person is in need of treatment.” K.S.A. 59-2946(e).
The second phrase — “lacks capacity to make an informed decision concerning treatment” — is defined to mean that
“the person, by reason of the person’s mental disorder, is unable, despite conscientious efforts at explanation, to understand basically the nature and effects of hospitalization or treatment or is unable to engage in a rational decision-making process regarding hospitalization or treatment, as evidenced by an inability to weigh the possible risks and benefits.” K.S.A. 59-2946(f)(2).
The final phrase — “likely to cause harm to self or others” — is defined to mean, in relevant part, that “the person, by reason of the person’s mental disorder: (a) Is likely, in the reasonably foreseeable future, to cause substantial physical injury or physical abuse to self or others or substantial damage to another’s property, as evidenced by behavior threatening, attempting or causing such injury, abuse or damage.” (Emphasis added.) K.S.A. 59-2946(f)(3).
Evidence estabhshing that a proposed patient’s condition meets these definitions must be presented at a trial. If a district court determines the criteria are met, an order of involuntary commitment may be entered. The order may not commit the patient for more than 3 months from the date of the trial. K.S.A. 2008 Supp. 59-2966(a). At least 14 days before the end of the treatment period, the head of the treatment facility must file a report “summarizing the treatment provided and the findings and recommendations for the treatment facility concerning the need for further treatment for the patient.” If further treatment is recommended, the patient has a right to a hearing. K.S.A. 59-2969(a),(b). At that point:
“Upon completion of the hearing, if the court finds by clear and convincing evidence that the patient continues to be a mentally ill person subject to involuntary commitment for care and treatment under this act, the court shall order continued treatment for a specified period of time not to exceed three months for any initial order for continued treatment, nor more than six months in any subsequent order for continued treatment, at an inpatient treatment facility as provided for in K.S.A. 59-2966 and amendments thereto, or at an outpatient treatment facility if the court determines that outpatient treatment is appropriate under KS.A. 59-2967 and amendments thereto.” (Emphasis added.) K.S.A. 59-2969(f).
As this provision indicates, there are criteria for determining if outpatient treatment, such as the order relating to Adam’s treatment, is appropriate. K.S.A. 59-2967 provides:
“(a) An order for outpatient treatment may be entered by the court at any time in lieu of any type of order which would have required inpatient care and treatment if the court finds that the patient is likely to comply with an outpatient treatment order and that the patient will not likely be a danger to the community or be likely to cause harm to self or others while subject to an outpatient treatment order.” (Emphasis added.)
If these requirements are met, the court may order outpatient treatment and, in doing so, may state specific conditions for outpatient treatment. These conditions impose obligations on both the treatment facility and the patient. See K.S.A. 59-2967(c), (e). It is those obligations imposed on treatment facilities that are relied on by the Plaintiffs as a basis for the Defendants’ duties.
The first statutory provision that Plaintiffs assert as a basis for a duty — K.S.A. 59-2967(e) — provides that “[t]he treatment facility shall immediately report to the court any material noncompliance by the patient with the outpatient treatment order.” The district court found it uncontroverted that Adam was not compliant in taking at least some of his medications, “which is material noncompliance with the outpatient treatment order.” Further, it is uncontroverted that the Defendants did not report this noncompliance to the court.
The Plaintiffs note that on receipt of a report of noncompliance, the court can modify the order and allow the patient to remain at liberty or “the court may enter an ex parte emergency custody order providing for the immediate detention of the patient.” K.S.A. 59-2967(e). If the patient is taken into custody, a hearing must be conducted “not later than the close of business on the second day the court is open for business after the patient is taken into custody.” K.S.A. 59-2967(f)(l). The statute further provides:
“The hearing held pursuant to subsection (f) shall be conducted in the same manner as hearings provided for in K.S.A. 59-2959 and amendments thereto. Upon the completion of the hearing, if the court finds by clear and convincing evidence that the patient violated any condition of the outpatient treatment order, the court may enter an order for inpatient treatment, except that the court shall not order treatment at a state psychiatric hospital unless a ■written statement from a qualified mental health professional authorizing such treatment at a state psychiatric hospital has been filed with the court, or may modify the order for outpatient treatment with different terms and conditions in accordance with this section.” K.S.A. 59-2627(g).
If a report of noncompliance is not filed, there is still a reporting obligation. K.S.A. 59-2969(a) requires that the head of a treatment facility — at least 14 days prior to the end of each treatment period — must submit a report summarizing the treatment provided and the findings and recommendations of the treatment facility concerning the patient’s need for further treatment. The Plaintiffs cite this provision as the second basis for arguing a statutory duty existed. Although the Plaintiffs recognize that the Defendants filed a report, they argued to the district court, as they do on appeal, that the Defendants breached a statutory duty to file an accurate progress report regarding Adam before his treatment ended. The Plaintiffs point to the Defendants’ failure to report that Adam was noncompliant with his medications and was resistant to case management.
Duty
Although the failure to report the noncompliance or to accurately report Adam’s progress during treatment is undisputed, the Defendants insist that they did not breach a duty owed to the Plaintiffs. The parties cite several cases decided by this court and federal courts that have considered whether Kansas statutes impose duties that are owed to individuals injured by psychiatric patients and whether a special relationship exists that gives rise to a duty under Restatement § 315. None of these cases deal with a patient who was subject to an outpatient treatment order, but each assists in our analysis. We will discuss those cases but also consider additional Kansas cases that discuss Restatement § 315 and associated sections, outpatient treatment cases from other jurisdictions that apply Restatement § 315, and additional Kansas cases discussing duties arising from reporting statutes. We will then apply those cases to the statutory and factual framework involved in this case.
Durflinger
In the first of the Kansas cases, Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), a psychiatric patient fatally shot his mother and brother 1 week after his discharge from an involuntary commitment. Heirs brought a diversity action against the hospital and several psychiatrists in federal court. Because the theory of recovery had not been considered in a Kansas case, the federal court certified a question to this court: Would Kansas recognize a valid cause of action for a claim which grew out of a negligent release of an involuntarily institutionalized patient who had violent propensities, as distinguished from negligent failure to warn persons who might be injured by the patient as result of the release? This court answered the question “yes.”
In doing so, the court rejected the plaintiffs’ argument that the duty arose from a. special relationship between the plaintiffs and the defendants. Rather, this court held that “general rules of negligence and medical malpractice control and there is no reason to apply the concept of a special relationship and the resulting affirmative duty to take some special step to protect a third party or the public.” Durflinger, 234 Kan. at 499.
Boulanger
This holding was disapproved in part, however, in the next case to consider the relationship between a psychiatrist and those who were injured by a psychiatric patient. In Boulanger v. Pol, 258 Kan. 289, 900 P.2d 823 (1995), a patient shot his uncle shortly after his release from an intermediate care facility where he had been a voluntary patient. Relying on Durflinger, the plaintiff argued a duty arose from the physician-patient relationship and no additional basis had to be established. The Boulanger court disagreed, recognizing that a physician-patient relationship creates a duty owed to the patient only, not to those outside that relationship. 258 Kan. at 297-98. In addition, the Boulanger court limited Durflinger s discussion of duty to cases involving involuntary commitments, stating:
“We conclude that the duty recognized in Durflinger was based upon the statutory provisions applicable to the commitment and release of involuntary patients and is not applicable to voluntary patients. The cause of action for negligent release of an involuntary patient recognized in Durflinger does not apply to voluntary patients.” Boulanger, 258 Kan. at 303.
In reaching this decision, the Boulanger court discussed two intervening federal decisions — Hokansen v. United States, 868 F.2d 372 (10th Cir. 1989), and Mahomes-Vinson v. United States, 751 F. Supp. 913 (D. Kan. 1990),- — the latter of which is relied on by the Plaintiffs in this case.
In Hokansen, the plaintiffs, who were appealing a federal district court decision that Durflinger applied only to involuntarily committed patients, argued that Durflinger should apply to voluntary as well as involuntary patients. The Tenth Circuit Court of Appeals rejected the argument and, in affirming the federal district court, noted that a patient may only be involuntarily committed if found to be “mentally ill,” which means the person must be a danger to self or others. Observing “[tjhat is the critical distinction,” the Tenth Circuit concluded that the Durflinger court had found a duty to the public arising from the “determination that the hospital professionals are required to make under the involuntary commitment statutes” that the patient is no longer a danger to self or others. In contrast, “[n]o such determination was required under the Kansas statutes when the hospital released [the patient] from treatment as a voluntary inpatient.” Hokansen, 868 F.2d at 376-77.
The Tenth Circuit in Hokansen also noted:
“A voluntary patient may request discharge, and a hospital is then required to release the patient within the next three days. . . . [K.S.A.] 59-2907 [repealed L. 1996, ch. 167, sec. 65; now K.S.A. 59-2951], however, does not impose any duty upon the hospital to seek commitment. It does not even suggest any criteria by which a hospital should decide whether or not to seek commitment. In any event, the statutory language at no point suggests any obligation by the hospital to third parties to exercise the power to seek commitment.” Hokansen, 868 F.2d at 376-77 n.7.
After citing and quoting from the decision in Hokansen, the Boulanger court considered the federal district court decision that is relied on by Katherine and Aexandra, Mahomes-Vinson, 751 F. Supp. 913, in making their argument that a duty arose under Restatement § 315. The case does not support their statutory duty argument, however.
Mahomes-Vinson arose after a voluntary patient, who had a long history of sexual and physical violence, was discharged from a veterans’ hospital and 8 days later raped, sodomized, and killed two young girls. The plaintiff in Mahomes-Vinson acknowledged the holding in Hokansen but argued an amendment to the statute allowed for a different result. The amendment, adopted in 1986, provided: “Nothing in this act shall prevent the head of a treatment facility or other person from filing an application for determination of mental illness with respect to a voluntary patient who is refusing reasonable treatment efforts and is likely to cause harm to self or others if discharged.” K.S.A. 1986 Supp. 59-2907 (repealed L. 1996, ch. 167, sec. 65) (Currently, K.S.A. 59-2952 provides that the head of a treatment facility “may file a petition . . . seeking involuntary commitment of a voluntary patient who now lacks capacity to make an informed decision concerning treatment and who is refusing reasonable treatment efforts or has requested discharge from the treatment facility.” [Emphasis added.]) The plaintiff argued the Kansas Legislature created a duty that did not exist in Hokansen by amending the statute in 1986 to indicate the head of the treatment facility could seek a commitment.
The federal district court disagreed, stating “the Kansas legislature in 1986 did not impose a duty on the defendant to apply for a determination of mental illness.” Mahomes-Vinson, 751 F. Supp. at 919. The court distinguished between having a mechanism available and having a duty that required use of the mechanism.
Quoting this discussion, the Boulanger court noted the 1986 amendment also applied in its case, and it also rejected the existence of a duty under the provision. 258 Kan. at 302-03. In Boulanger, the patient — like Adam — had been hospitalized on several occasions. At least one hospitalization arose after the patient assaulted his father and attempted to stab himself. Although the patient’s last hospitalization was voluntary, the head of the hospital evaluated whether the discharge should occur and allowed the discharge because he did not believe the patient was dangerous to himself or others as long as he took his medication and was in a structured setting. The patient was transferred to an intermediate care facility where his daily medication was monitored and he was observed for evidence of continuing homicidal or suicidal ideation. After a period of time, he was discharged to his parent’s care. Ten days later he shot his uncle.
Under those circumstances, the court agreed with the holding in Mahomes-Vinson that, even if the propensity for danger existed, the existence of a mechanism for seeking commitment did not create a duty to have the patient committed. Thus, the court concluded no statutory duty was owed to the uncle. Boulanger, 258 Kan. at 303.
The Boulanger court then focused on the uncle’s argument that the defendants owed him a duty under the special relationship doctrine set forth in Restatement § 315, which provides:
“There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.”
Citing to C.J.W. v. State, 253 Kan. 1, 7-8, 853 P.2d 4 (1993), the Boulanger court recognized several ways for a special relationship to exist: A duty to control arises because of the relationship between a parent and child (Restatement § 316), master and servant (Restatement § 317), persons in charge of one with dangerous pro pensities (Restatement § 319), and persons with custody of another (Restatement § 320). Boulanger, 258 Kan. at 303; see Restatement § 315, Comment c (special relations between the actor and the third person “which require the actor to control the third person’s conduct are stated in § § 316-319”; those which arise because of a relationship between the actor and another that “require the actor to control the conduct of third persons for the protection of the other are stated in §§ 314A and 320”).
The plaintiff in Boulanger, like the plaintiffs in Mahomes-Vinson and in this case, relied on Restatement § 319. That section provides:
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harms to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”
The Boulanger court noted that the federal district court in Ma-homes-Vinson and several courts in other jurisdictions had recognized a duty based on Restatement §§ 315 and 319 requiring a mental health care provider to take some affirmative action to protect a forseeable victim of the patient, such as notifying the potential victim, calling the police, or instituting commitment proceedings. The Boulanger court rejected that view under the facts of the case before it, however. The court noted the patient’s uncle knew of the patient’s dangerous propensities and that the patient considered the uncle to be the “devil incarnate.” See 258 Kan. at 290-92, 307-08. Because of this knowledge, the court concluded there was no duty to warn. Boulanger, 258 Kan. at 307.
Additionally, the Boulanger court concluded the doctors did not have a duty to seek the involuntary commitment of the patient and concluded that “defendants did not have the requisite control of [the patient] which might conceivably create a duty under § 319.” Boulanger, 258 Kan. at 308. Thus, the Boulanger court concluded there was no special relationship imposing a duty under the Restatement or under Kansas statutes. 258 Kan. at 308.
Hesler
The next case to consider the question of whether a mental health care provider had a duty to control a patient with dangerous propensities was Hesler v. Osawatomie State Hospital, 266 Kan. 616, 971 P.2d 1169 (1999). Hesler arose in a context where the mental health hospital had greater, but not complete, control of a patient who had been involuntarily committed.
In Hesler, an involuntarily committed patient was released from the hospital on a weekend pass. While riding in his mother’s car, the patient grabbed the steering wheel and steered the car into the path of an oncoming car. The driver of the other car was killed, and the patient’s mother was injured. The plaintiffs argued that Durflinger controlled, and the mental health care providers owed a duty to them based on the statutory standard that a patient could only be released if determined to no longer be a danger to himself or others. The district court characterized the plaintiffs’ position by stating that because the patient “was in need of care and treatment, he was, by definition of law, dangerous to himself and others. Therefore, OSH had a duty to simply confine the [patient] until released by court order or until he was in no further need of treatment.” Hesler, 266 Kan. at 628.
This court rejected the plaintiffs’ contention that there was a duty to maintain complete control over the involuntarily committed patient. The court simply stated: “The statute does not support such a theory.” Hesler, 266 Kan. at 628.
Having found no basis for a statutory duty, the Hesler court focused on whether there was a special duty under § § 315 and 319 of the Restatement. Noting the mental health providers had no reason to perceive the patient was a threat to the plaintiffs when they approved the weekend pass, the court concluded there was not a special relationship giving rise to a duty. Hesler, 266 Kan. at 632.
In reaching this decision, the court cited several cases arising in contexts other than the treatment of mentally ill patients. These cases and some decided after the Hesler decision explain Kansas’ approach to Restatement §§ 315 and 319.
Nonmental Health Cases
Several of these cases applying Restatement §§ 315 and 319 have emphasized the requirement that the defendant “must take charge” and have the ability to “control” the wrongdoer. As stated, in Calwell v. Hassan, 260 Kan. 769, 780, 925 P.2d 422 (1996), Restatement § 315 liability is limited to situations “in which the party owing the duty did have the ability or right to control the third person causing the harm. [Citations omitted.]” 260 Kan. at 783. In fact, the Calwell court observed that this court has “imposed a § 315 duty only in situations involving a dangerous person in a custodial setting.” 260 Kan. at 780; see, e.g., C.J.W., 253 Kan. 1 (under Restatement §§ 315 and 319 government owed special duty to 12-year-old boy confined in juvenile detention center when he was assaulted, raped, and sexually molested by another older youth; also basing result on Restatement § 320); Cansler v. State, 234 Kan. 554, 564, 675 P.2d 57 (1984) (under Restatement § 319 government had control of prison inmates and owed special duty to officer who was shot when seven inmates escaped); see also Jackson v. City of Kansas City, 263 Kan. 143, 156-60, 947 P.2d 31 (1997) (based on Restatement § 320, court found duty when officers arrested and handcuffed plaintiff at scene of domestic incident but failed to protect him from his girlfriend, who slit his throat as he sat on the curb while officers completed reports); Thomas v. Board of Shawnee County Comm’rs, 40 Kan. App. 2d 946, 951-56, 198 P.3d 182 (2008) (finding Restatement § 314A overlapped with Restatement § § 319 and 320 and was more applicable when inmate committed suicide); Washington v. State, 17 Kan. App. 2d 518, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992) (Restatement §§ 315, 319, and 320; prison inmates fighting each other).
When a defendant does not have the ability to control the behavior, that causes the harm, this court has not found the special relationship that must exist before a duty arises under §§ 315 and 319 of the Restatement. For example, this court focused on the fact that the defendants had neither legal nor physical custody of a child who was abused in a day care facility in concluding there was no special relationship between the child and governmental agencies that were allegedly negligent in granting a license to the facility and in failing to revoke the facility’s license. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 832-33, 877 P.2d 430 (1994). Similarly we have concluded that a school does not control a student to the extent of creating a special relationship. E.g., Beshears v. U.S.D. No. 305, 261 Kan. 555, 560-61, 566, 930 P.2d 1376 (1997) (defendant school district did not owe duty to minor plaintiff for injuries occurring off school premises and after school hours; district had neither ability nor right to control plaintiff or person causing harm); Nero v. Kansas State University, 253 Kan. 567, 581-82, 861 P.2d 768 (1993) (fact university had changed student’s residence hall assignment after rape accusation did not mean the university was “in charge” or “took charge” of accused rapist within the meaning of Restatement §§ 315 and 319).
Similarly, other cases have emphasized that the relationship must allow one to control another’s actions and the control must be of the nature to prevent the harm that caused a plaintiff s damages. See, e.g., D.W. v. Bliss, 279 Kan. 726, 734-37, 112 P.3d 232 (2005) (discussing cases and concluding no duty to control spouse; although finding duty as to possessor of land owed to licensees); Thies v. Cooper, 243 Kan. 149, 151, 753 P.2d 1280 (1988) (employer had no duty to control employee who, after consuming alcohol on employer’s premises, left employer’s premises and, while off duty, injured other persons).
The case most analogous to the facts in this case is Schmidt v. HTG, Inc., 265 Kan. 372, 961 P.2d 677, cert. denied 525 U.S. 964 (1998), which was relied on heavily in Hesler. In that case, the plaintiffs alleged a parole officer, who was supervising a parolee, owed a special duty to the parolee’s coworkers to advise them of the parolee’s dangerous propensities. Hence, unlike this case, Schmidt was primarily a duty to warn case. Nevertheless, it is instructive because of its discussion of the type of control that is necessary to give rise to a duty under Restatement § 319. This discussion occurred in the context of the court’s rejecting the out-of-state cases cited to support the plaintiffs’ position that a duty existed. The court stated:
“The better-reasoned and more logical approach is that taken in Fox v. Custis, 236 Va. 69, 75, 372 S.E.2d 373 (1988), which held that state parole officers did not take charge or exercise control over a parolee within the meaning of § 319, giving rise to any ‘special relationship.’ The Virginia Supreme Court held:
“ ‘The relationship between the parolee and officer is usually continuing because parole normally is for an extended period of time. But to “supervise and assist” during this period does not mean to assert custody in the sense that the parolee is in the personal care and control of the officer. While the record does not show the terms and conditions of [the] parole, parolees ordinarily are essentially free to conduct their day-to-day affairs, adhering to specific rules and reporting certain activities to the parole officer as they occur or are planned. The applicable statute does not contemplate continuing hourly or daily dominance and dominion by a parole officer over the activities of a parolee.
“ ‘Therefore we hold that the defendants did not take charge of or exercise control over [the parolee] within the meaning of accepted rules of tort law articulated in Restatement §§ 315(a) and 319.’ 236 Va. at 75.” Schmidt, 265 Kan. at 386-87.
The Schmidt court applied this reasoning to determine that a parole officer did not have a special relationship with a person who worked with and was killed by a parolee. 265 Kan. at 387. The reasoning of the decision continues the line of Kansas cases requiring a significant control over the person with dangerous propensities, specifically the ability to exercise control in a manner that can prevent the injury.
Out-of-State Cases
As the Schmidt court recognized, its decision is contrary to cases from some other jurisdictions. The difference is not in the rule— i.e., that there must be control of a nature that could prevent the harm — but in the determination of whether that type of control existed. After discussing the split of authority, this court adopted what some view as the narrower approach and determined that requisite control does not exist in a parole situation. See 265 Kan. at 385-87.
Similarly, there is a split of authority in the cases considering whether a Restatement § 319 duty exists between mental health care providers and mentally ill outpatients. Several courts have concluded an outpatient setting inherently lacks the level of control to give rise to a Restatement § 319 duty or that public policy militates against imposing a duty in that setting. See, e.g., Currie v. United States, 836 F.2d 209, 213 (4th Cir. 1987); Hasenei v. United States, 541 F. Supp. 999, 1009 (D. Md. 1982); King v. Smith, 539 So. 2d 262, 264 (Ala. 1989); Cooke v. Berlin, 153 Adz. 220, 224-25, 735 P.2d 830 (Ct. App. 1987); Boynton v. Burglass, 590 So. 2d 446, 448-49 (Fla. Dist. App. 1991); Santa Cruz v. N.W. Dade Com. Health Ctr., Inc., 590 So. 2d 444, 445-46 (Fla. Dist. App. 1991); Wagshall v. Wagshall, 148 A.D.2d 445, 446-47, 538 N.Y.S.2d 597 (1989).
The Plaintiffs in this case cite and rely on a case taking the opposite view — Morgan v. Fam. Counseling Ctr., 77 Ohio St. 3d 284, 673 N.E.2d 1311 (1997). In Morgan, the Ohio Supreme Court noted that Restatement § 320 imposes a duty on one who “takes the custody” of another to control the conduct of the other to prevent them from doing harm to others. As compared to this requirement of “custody,” the Ohio court viewed the “takes charge” requirement of Restatement § 319 as covering “diverse levels of control which give rise to corresponding degrees of responsibility.” Morgan, 77 Ohio St. 3d at 299.
In part, the Ohio Supreme Court based the mental health care provider s ability to control on the ability to commit the patient. Morgan, 77 Ohio St. 3d at 309. In addition, the Ohio Supreme Court aligned the mental health care provider s duties to the patient with the duties owed to third parties, stating: “Society’s interest in being free from harm caused by mentally ill persons is, in the final analysis, dependent upon ‘[t]he patient’s right to good medical care.’ [Citation omitted]. Without good medical care, society would stand unprotected from mental patients with violent propensities.” 77 Ohio St. 3d at 307.
As we consider this holding, we recognize the validity of the analytical distinction between Restatement §§ 319 and 320. Yet, Kansas precedent is contrary to the rationale of the Morgan decision. First, this court rejected a reliance on the duties arising from a psychiatrist-patient relationship as a basis for a duty with a person outside that relationship in Boulanger, 258 Kan. at 297-98, 303. Second, Boulanger held that the leverage of having a mechanism to involuntarily commit a patient did not give rise to a duty to commit, 258 Kan. at 303, and Hesler, indicates that even involuntarily committed patients are entitled to the least restrictive environment called for by the patient’s current condition. 266 Kan. at 632.
In addition, the view adopted in Schmidt and other Kansas cases is more in line with the view taken by the Ohio Supreme Court dissenters in Morgan, who argued that Restatement § 319 requires evidence of an ability to control in a manner that would be meaningful in the prevention of the harm that actually occurred. Morgan, 77 Ohio St. 3d at 317-19 (Cook, J., dissenting; Moyer, C.J., and Stratton, J., concurring in dissent); see Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 853 (Ky. 2005) (considering whether special relationship exists in employment situation; recognizing cases generally require “ ‘control’ ... ‘in a very real sense’ ” and that the control “must be related in some manner to the harm caused by the person under control, such that its exercise would restrict the person’s ability to cause harm”). Hence, Morgan does not persuade us that a duty arises under Restatement § 319.
Statutory Reporting Obligations
Nevertheless, as we previously noted, all of these cases, while helpful in distilling Kansas’ view, are distinguishable from this case because of the statutes and court order dealing with outpatient treatment, which imposed reporting obligations under K.S.A. 59-2967(e) and K.S.A. 59-2969(a) that were violated by the Defendants. Consequently, we must consider an additional line of cases that deal with statutory reporting obligations. Of these cases, the one that is the most analogous is Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 352, 819 P.2d 587 (1991), which involved the sexual molestation of a student by an employee retained by a school district to transport students in a special education program who had been reported to call the children names and act in a manner described as “out of control.”
In Kansas State Bank & Tr. Co., it was argued that the statutory obligation to report child abuse created a duty to a child who was subsequently abused. This court noted that the reporting obligations were intended, at least in part, to protect the general public. Nevertheless, generally “[statutes enacted to protect the public ... do not create a duty to individuals injured as a result of a statutory violation.” 249 Kan. at 371; but see Schlobohm v. United Parcel Service, Inc., 248 Kan. 122, 125, 804 P.2d 978 (1991) (citing rule but finding legislative intent to create duty in adopting building regulations that was owed to special class of individuals which included plaintiff who was injured in fall on noncompliant premises; Restatement §§ 288 Comments a and d, 288B Comments a and d). Applying this general rule, this court rejected the argument that the child abuse reporting statute created a duty owed to a subsequently abused child. In doing so, the court adopted the reasoning of an Indiana court that concluded:
“ “When the provisions of the act are considered as a whole, there is no apparent intent to authorize a civil action for failure of an individual to make the oral report that may be the means of initiating the central procedures contemplated by the act. Furthermore, such an action is not authorized at common law . . . .It would, we believe, misdirect judicial time and attention from the very real problems of children in need of services in favor of pursuing collateral individuals, who are presumably capable of responding in money damages, on the ground that they knowingly failed to make an oral report. We concluded that was not within the legislative purpose of the act.’ ” Kansas State Bank & Tr. Co., 249 Kan. at 372-73 (quoting Borne v. N.W. Allen County School Corp., 532 N.E.2d 1196, 1203 [Ind. App.1989]).
Duties in this Case
The same rationale applies in this case and is generally supported by the cases we have discussed applying the Act. The reporting requirement of K.S.A. 59-2967(e) relating to noncompliance with the outpatient treatment order, which was also included in the court order, provides a means to initiate the procedures in the Act in the same way as the child abuse reporting requirements are a means to initiate procedures under the child in need of care provisions. And, the child abuse reporting requirements, like those in the reporting requirements relating to outpatient therapy, were intended to protect the general public from those with dangerous propensities but were not intended to create a duty to particular individuals who are injured by the one with dangerous propensities. Thus, applying the reasoning of Kansas State Bank & Tr. Co. to this case, we conclude the reporting obligation imposed by K.S.A. 59-2967(e), while creating a duty owed to the public, did not create a statutory duty that was owed to the Plaintiffs.
In other respects, particularly with regard to the obligation imposed by K.S.A. 59-2969(e) to report to the court regarding Adam’s treatment and to recommend whether treatment should be continued, Durflinger, Boulanger, Hokansen, Mahomes-Vinson, and Hesler are instructive. These cases create a continuum of sorts, with Durflinger — dealing with a patient involuntarily committed to inpatient treatment — at one end; Boulanger, Hokansen, and Mahomes-Vinson — dealing with voluntary patients — at the other; and Hesler — dealing with an involuntarily committed patient not under the constant control of the defendants — in between. This case, like Hesler, fits somewhere in between the two end points of this continuum, where a court has ordered treatment but around the clock hospitalization is not required.
In Hesler, 266 Kan. 616, a pass from the hospital was allowed when treatment personnel determined it was appropriate. Here, Adam was in outpatient treatment and treatment personnel recommended that treatment be terminated. Had, however, Adam’s noncompliance led to a recommendation of continuing treatment, Adam could have either been committed to a state hospital again or the outpatient treatment order could have been continued. In considering these potential outcomes, the circumstances existing when the Defendants recommended that the outpatient order expire must be considered. At that time, Adam — like the patient in Hesler — was not deemed to be dangerous. Adam had been released from inpatient care, which means that it had been determined by someone other than the Defendants that Adam was “not likely [to] be a danger to the community or [to] be likely to cause harm to self or others.” K.S.A. 59-2967(a); see K.S.A. 59-2946(f)(3) (defining “likely to cause harm to self or others” to mean patient “in the reasonably foreseeable future” is likely to cause substantial physical injury or physical abuse, “as evidenced by behavior threatening, attempting or causing such injury, abuse or damage”). Further, as of September 10, 1999 (which was several weeks after the outpatient order had expired), Dr. Porter noted that Adam stated he “feels much better” and “denies any aggressivity.” Dr. Porter’s diagnosis stated that Adam was “in partial remission,” and Dr. Por ter even noted that there had been no contact from the family suggesting concerns.
When Adam was not a danger to others, he was entitled to the least restrictive environment possible, an environment in which the Defendants lacked the ability to exercise the type of dominion that would have prevented the harm to the Plaintiffs. See Hesler, 266 Kan. at 632. Consequently, to impose a duty to seek commitment at that point in time would be contrary to the policy of the Act for, as one court observed, “lack of control by the therapist and maximum freedom for the patient is oft times the end sought by both the psychiatric profession and the law.” Hasenei, 541 F. Supp. at 1009-10. Thus, as this court determined in Hesler, although Adam had been involuntarily committed and ordered to participate in outpatient therapy, there was no statutory duty to refuse Adam an environment less restrictive than hospitalization. And, under the Boulanger/Hokansen rationale, the Act, even though it provides a mechanism to hospitalize a patient, does not impose a duty to commit individuals to inpatient treatment.
Alternatively, if the report would have recommended continuation of the outpatient order and the order had not expired, there is no provision in Kansas law that would have given the Defendants the level of control over Adam’s actions that would have prevented Adam’s attack on his mother. Ultimately, the only way to gain the control was through commitment, and no provision of the Act imposes a duty to take that action. In addition, the reasoning of Hesler is once again applicable and suggests that, even if a patient is under court-ordered treatment, no duty arises to maintain control of the patient if the patient is not deemed at that point in time to be dangerous. Hence, we conclude K.S.A. 59-2969(a) does not impose a duty owed to individuals who are injured by the outpatient to recommend continued outpatient treatment when a mental health patient is not a danger to the community when the report is made.
Finally, we must apply these cases to determine whether there was a duty owed under Restatement § § 315 and 319. The Kansas cases applying these sections require real control that would allow the prevention of the harm that gives rise to the lawsuit. In a manner comparable to the relationship between a parole officer and the parolee discussed in Schmidt, 265 Kan. at 386-87, neither the actual level of supervision inherent in the outpatient therapy relationship nor the leverage of reporting noncompliance gave the Defendants this type of control over Adam or his actions. In other words, an outpatient mental health treatment facility does not take charge of a patient subject to an order for outpatient therapy in a manner that gives rise to a duty to control the patient’s conduct or to give rise to a special relationship with others who come in contact with the patient.
Conclusion
Hence, we conclude there was no duty under Restatement §§ 315 and 319—the only Restatement sections raised by the Plaintiffs—and no statutory duty owed by Defendants to the Plaintiffs. Because we conclude that there was no duty, we need not address the question of whether the discretionary function exception applies. See Hesler, 266 Kan. at 632-33 (“Having decided that defendants owed no duty to plaintiffs, we need not base our decision on whether the Kansas Tort Claims Act [KTCA] provides defendants immunity from plaintiffs’ claims under the KTCA”); Kansas State Bank & Tr. Co., 249 Kan. at 368. Nor do we need to address the other reasoning of the district court or the County’s cross-appeal. See In re Marriage of Bradley, 282 Kan. 1, 8, 137 P.3d 1030 (2006) (appellate court may affirm if district court reaches the right result; the reason given by district court for its ruling is immaterial if the result is correct).
Affirmed.
McFarland, C.J., not participating.
Daniel L. Love, District Judge, assigned.
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The opinion of the court was delivered by
Schroeder, J.:
This is a workmen’s compensation case in which the respondent and its insurance carrier appeal from a judgment of the district court of Brown County, Kansas, which affirmed an award of compensation to the claimant by the workmen’s compensation commissioner.
Aside from the claimant’s (appellee’s) motion to dismiss, the only question presented for review is whether the written claim for compensation was filed within the time required by the workmen’s compensation act.
The trial court made the following findings of fact:
“The relationship of employer and employee existed between the claimant and respondent herein on September 6, 1958, and at all pertinent time mentioned herein. That the claimant was employed by The Wilde Tool Company an at average weekly wage of $57.50; that the parties were governed by the Kansas Workmen s Compensation Act. The Consolidated Underwriters were the insurance carrier for the respondent. That on September 6, 1958, the claimant met with an accidental injury which arose out of and in the course of employment with the respondent. That the employer had notice of claimant’s injury and actual knowledge of the accident on September 7, 1958, and the employer made its employer’s report of accident to the Kansas Workmen’s Compensation Commission on September 15, 1958.
“The claimant employed Dr. Converse to treat her for said injuries and the employer acquiesced in this selection and furnished medical care and paid all medical expense of the claimant in connection with this accident until she returned to work for her employer on January 19, 1959. That on May 22, 1959, claimant reinjured her back or aggravated the previous condition, and the employer’s report of the accident of May 22, 1959, was filed June 6, 1959. That on May 26, 1959, the claimant went to Dr. J. F. Binkley for treatment and he continued to treat her until June 26, 1959. That on July 7, 1959, the Consolidated Underwriters wrote to Dr. J. F. Binkley which they stated that they were arranging to have claimant examined at the University of Kansas Medical Center, and until we have the benefit of their examination we cannot authorize any additional treatment by anyone.
“The employer acquiesced in her treatment by Dr. Binkley. That as a result of the claimant’s accident on September 6, 1958, she was temporarily totally disabled until January 19, 1959, and the claimant aggravated or reinjured herself on May 22, 1959, and again became temporarily totally disabled and is so disabled at the present time.” (Emphasis added.)
Thereupon the trial court concluded the proceedings were duly filed in time as provided by the workmen’s compensation act, and that the claimant was entitled to 415 weeks temporary total disability at the rate of $34 per week from September 7, 1958, to January 19, 1959, and from May 22, 1959, until fully paid. Further appropriate orders were made with respect to the award of compensation.
The date which gives rise to the controversy on appeal was not mentioned by the district court in its findings. The respondent and its insurance carrier contend that formal written claim was not made by the claimant until the 15th day of December, 1959, and that by reason thereof the claim is barred by the 180-day limitation under the workmen’s compensation act.
While the workmen’s compensation commissioner made a similar award of compensation to the claimant, it should be noted his findings of fact were not in all respects in accordance with the findings made by the trial court. The commissioner found “the employer having had notice and actual knowledge of the accident on September 6, 1958, and further, the employer having failed to file the report of accident within seven days as provided in G. S. 1949, Section 44-557, as amended, limitation of time for serving written claim for compensation was and is tolled and the time for instituting these proceedings extended to one year from the last payment of compensation; that last payment of compensation was made in January, 1959; and that these proceedings were brought within time.”
The appellants go into great detail concerning the evidence as to whether tire employer s report of accident was made within seven days after the date of injury. A discussion of the various contentions would be at best academic. We shall assume, as the district court found (the 14th day of September, 1953, being a Sunday), that the employer’s report of accident was filed within the seven-' day limitation provided in G. S. 1959 Supp., 44-557, and that the claimant was required to file a written claim for compensation within 180 days after the accident, or where compensation payments have been suspended, as here, within 180 days after the date of the last payment of compensation, pursuant to G. S. 1959 Supp., 44-520a.
Under the foregoing statute it has been held the furnishing of medical treatment by an employer or its insurance carrier to a workman, following injury compensable under the workmen’s compensation act, is tantamount to payment of compensation. Therefore, the 180-day period of limitation begins to run from the time medical treatment was last furnished to the claimant by the respondent. Moore v. Dolese Brothers Co., 171 Kan. 575, 236 P. 2d 55; Angleton v. Foster Wheeler Construction Co., 177 Kan. 134, 276 P. 2d 325; and Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P. 2d 172.)
The foregoing rule was recognized in Solorio v. Wilson & Co., 161 Kan. 518, 169 P. 2d 822, but on the facts there presented it was held the procurement of medical treatment on his own account by an employee claiming to have suffered injury, after refusal or neglect of his employer to furnish such medical attention, is not tantamount to the payment of compensation under the act, and does not toll the running of the period of time within which a claimant must make and serve a claim for compensation.
The question therefore arises whether there is any substantial competent evidence in the record to sustain the finding of the trial court that the medical services of Dr. Binkley to the claimant were actually furnished by the respondent. If so, the respondent paid compensation to the claimant through June 26, 1959, and the formal written claim was filed within 180 days thereafter as required.
As to questions of fact this court reviews the record only to determine whether it contains substantial evidence to support the trial court’s finding, and in doing so all the evidence is reviewed in the light most favorable to the prevailing party below. If substantial evidence appears, such finding is conclusive and will not be disturbed on review, even though the record discloses some evidence which might warrant the trial court making a finding to the contrary. (Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681; Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372; Weimer v. Sauder Tank Co., 184 Kan. 422, 337 P. 2d 672; and Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235.)
It is the appellants’ contention that the finding of the trial court, as to the acquiescence of the respondent in the claimant’s treatment by Dr. Binkley, was based entirely upon the letter written by the respondent’s insurance carrier to Dr. Binkley on the 7th day of July, 1959.
Actually, what the trial court meant by its ultimate finding that the respondent acquiesced in the claimant’s treatment by Dr. Binkley must be determined from all the evidence in the case favorable to the claimant, and cannot be limited merely to the finding that respondent’s insurance carrier wrote the letter in question to Dr. Binkley.
Logically, it would seem that a letter of this character to the doctor treating the claimant for injuries suffered on the job, stating that additional treatment could not be authorized until the claimant had been examined at the University of Kansas Medical Center, would leave the impression that prior treatment by Dr. Binkley was authorized by the respondent. This interpretation is fortified by other evidence in the record. The claimant testified, sometime after she had returned to work on January 19, 1959, that she told Thomas F. Sullivan, supervisor for the respondent, she could not continue working. The testimony was:
“Q. Now, you have testified that you went to Tom Sullivan to talk about going to a doctor again.
“A. Tom Sullivan was standing at the table when I said something about, ‘Should I go to a chiropractor’, and Tom Sullivan told me it would be all right, so that is the reason I went.
“Q. And I believe you did testify on cross-examination .at the last one of these hearings, that you were the one who named Dr. Binkley and that it was not Mr. Sullivan who named Dr. Binkley?
“A. No. He didn’t tell me who to go to.
“Q. He didn’t tell you Dr. Binkley?
“A. No. I just told him I’d go to a chiropractor, and he said that was fine.
“Q. But Dr. Binkley was your idea?
“A. Yes, because he is right there in town. I knew I’d have to be — ”
It is also clear from the record that the respondent knew the claimant was claiming compensation. When the claimant went to the respondent on the 6th day of June, 1959, she saw Paul Froeschl, Jr., vice president and general manager of the respondent. In his testimony he admitted receiving the written claim for compensation on or about the 15th day of December, 1959, and explained the office papers filled out on claimant’s injury in connection with workmen’s compensation. He said the second employer’s report of accident on the claimant was made out on the 6th day of June, 1959. On cross examination he testified:
“Q. Now, Mr. Froeschl, I believe you testified that when she came back in she asked to have papers filled out on a claim for compensation, is that right?
“A. That is right.
“Q. You understood at that time that she was attempting to make a claim for compensation, didn’t you?
“A. Yes, sir.”
The record also contains the testimony of Herman M. Swafford, an adjuster and attorney for the insurance carrier of the respondent, regarding conversations he had with the claimant on the 22nd day of June, 1959. He indicated they discussed a possible settlement of her case and in answer to a question said:
“The conversation, which I remember very well, with Mrs. Dexter was that I had advised her, in the presence of her husband, that we were not paying any compensation for any loss of time, that I told her following the receipt of the reporter’s statement that I would call her by telephone, that I would then make an offer to her of a lump-sum settlement. . . .”
On the other hand, the claimant’s husband who was present on the 22nd day of June, 1959, testified that he overheard Mr. Swafford say they would “try to settle — try to pay for 30 days or more, but he didn’t know for sure how long.”
The evidence all through the record discloses that the claimant injured her back, returned to work, and either aggravated or re- injured her back. Reports were made, investigations were conducted and the employer and its insurance carrier knew the claimant was going to a chiropractor. The record indicates the employer and its insurance carrier, in fact, approved the treatment by Dr. Binkley, hoping to get this lady back in a position where they could compromise and settle her claim. She was repeatedly examined by other doctors, and there can be no contention by the respondent that it did not know the claimant was seeking compensation.
Upon the record here presented we think the trial court’s ultimate finding — that the employer acquiesced in the claimant’s treatment by Dr. Binkley — is equivalent to a finding that the respondent authorized the treatment by Dr. Binkley, and therefore supplied medical services for the claimant to and including the 26th day of June, 1959. Therefore, the formal written claim filed on the 15th day of December, 1959, was within time.
Viewing the over-all picture presented by the record, the respondent fully recognized an obligation to the claimant for medical aid as a result of the injuries she sustained in the course of her employment, but it attempted by various approaches to limit its obligation. This was not its privilege. This case closely resembles those in which the respondents have persuaded the claimants to take a course of action, and then seek to take advantage of the claimants’ position. (See, Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 85 P. 2d 22; and Johnson v. Skelly Oil Co,, supra.)
The claimant herein contends this appeal is moot and should be dismissed.
The issue on this point was previously raised by the claimant (appellee) on a motion to dismiss, which was denied by the court on August 31, 1961, with leave to renew at the hearing on the merits. The motion recites the workmen’s compensation commissioner awarded compensation and ordered payment of the amount due in the sum of $324.71 forthwith. The claimant served a written demand for payment of compensation pursuant to G. S. 1949, 44-512a. The demand was received by the respondent, but instead of making payment the respondent replied by stating that it was insured. Subsequently, the respondent and its insurance carrier appealed the commissioner’s award to the district court, and it is recited in the motion that the claimant filed an action under 44-512a, supra, because of the respondent’s failure to pay the compensation due within fourteen days. It is admitted by the parties that compensation has not been paid.
The mere fact that a claimant has the right to proceed with a suit for lump sum judgment does not bar the respondent from appealing an award of the commissioner. (Bentley v. State Department of Social Welfare, 187 Kan. 340, 356 P. 2d 791.)
The provisions of 44-512a, supra, give the claimant the right to sue for a lump sum judgment, upon the conditions prescribed, and if found to be entitled to a judgment, to receive such judgment and to collect on the same. However, at this point, no judgment has been obtained by the claimant for a lump sum. The mere fact that the claimant has the right to sue for a lump sum judgment cannot be held tantamount to the right to receive judgment or the right to receive payment on such judgment. Until the parties have had a right to litigate this question in the district court, the claimant does not have an absolute right to receive the award in a lump sum. Therefore, the claimant’s motion in the Supreme Court to dismiss the appeal is premature to raise the issue which the claimant seeks to present, and the issues raised by the appeal are not moot.
For the most recent decisions touching upon the provisions of G. S. 1949, 44-512a, entitling a claimant to recover a lump sum judgment, see Harris v. Moore Associates of Topeka, No. 42,578, 188 Kan. 822, 365 P. 2d 1085; and Teague v. George, No. 42,549, 188 Kan. 809, 365 P. 2d 1087, decided this date.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Price, J.:
Defendant appeals from a conviction of murder in the second degree.
Highly summarized, the record shows the following:
At about 9:30 on the night of April 6, 1959, as one Linden M. Black was preparing to close his liquor store in Kiowa the defendant and two companions entered the store and ordered a bottle of whiskey — naming the brand. While Black was making change from his cash register defendant pulled a pistol from where he had it concealed on his person and shot Black in the back of the head— causing instant death. The three men fled from the store. About thirty minutes later Black’s body was found on the floor. With the exception of some coins, and one $20 bill which was in the back of the cash register, the cash register was empty. According to the cash register tape showing the receipts for the day it should have contained approximately $100 in currency. Some nine or ten months later defendant was apprehended and returned to Barber county and charged with murder in the first degree — the information alleging that defendant shot and killed Black while engaged in an attempt to commit robbery (G. S. 1949, 21-401).
Competent local counsel was appointed for defendant and represented him throughout the trial. Among his defenses was that of alibi — his contention being that at the time of the killing he was either in a pool hall or restaurant in Kiowa.
The jury was instructed as to murder in the first degree, and also as to murder in the second degree under G. S. 1949, 21-402, which provides that every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree.
The jury returned a verdict of murder in the second degree.
Defendant filed a motion for a new trial on three grounds — (1) the court admitted illegal testimony; (2) newly discovered evidence, and (3) the verdict is contrary to the evidence.
The motion was overruled and defendant was sentenced to confinement for a period of thirty-five years (G. S. 1949, 21-403; G. S. 1949, 21-109).
Defendant — apparently pro se — filed a notice of appeal from the verdict, sentence, and the order denying the motion for a new trial, following which present counsel for defendant entered the case.
Five specifications of error are set out in the abstract, but upon oral argument of the appeal counsel stated to this court that he abandoned all except specification No. 2, which is that the court erred in instructing the jury as to murder in the second degree. He further stated that no error was being predicated on the contents of the instruction and conceded that it correctly states the law as to murder in the second degree. The contention is that inasmuch as the information charged the killing was committed in the perpetration of a robbery, and as the state’s evidence established such fact, whereas defendant’s evidence was that he was not even at the liquor store at the time in question, defendant, if guilty at all, was guilty of murder in the first degree, and the giving of the instruction as to murder in the second degree erroneously provided the jury with an “out” insofar as defendant’s conviction is concerned.
Ordinarily, of course, and particularly in homicide cases, questions pertaining to the giving of instructions have arisen where the court refused to instruct as to a lower degree. Here we have just the opposite situation.
The general rule is that a trial court must examine the evidence as a whole and then instruct upon such questions as the evidence naturally, reasonably and probably tends to prove, and it is under no duty to, and should not, instruct as to any degree of the offense which the evidence does not tend to prove. (State v. Hardisty, 121 Kan. 576, 580, 581, 249 Pac. 617; The State v. Roselli, 109 Kan. 33, 40, 198 Pac. 195.) Our statute, G. S. 1949, 62-1447, among other things, provides that a jury is to be instructed upon all matters of law which are necessary for their information in arriving at their verdict. In State v. Fouts, 169 Kan. 686, 692, 221 P. 2d 841, it was said that in prosecutions for homicide it is the imperative duty of the trial court to instruct the jury not only as to the offense charged— but as to all lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced, and that such is the rule even though the court may deem the evidence supporting the lesser offense to be weak and inconclusive, and notwithstanding a request for such an instruction had not been made.
It is true that here the defendant was charged with the killing while in the perpetration of a robbery. It also is true there was evidence to the effect the cash register was “short” when the victim’s body was found some thirty minutes later — thus lending weight to the suspicion that defendant and his companions made off with the money, which, in turn, as contended by defendant, established that his guilt, if any, was that of murder in the first degree, and that no occasion arose for the giving of the instruction as to murder in the second degree.
On the other hand, the record does not establish that the killing was committed while a robbery was in progress. There was no evidence of any threats to Black, and neither does the record show, other than the circumstances above mentioned, that defendant or his companions committed a robbery before, during or after the killing. For all the record shows, the money could have been taken (if in fact any was taken) from the cash register by some other person who may have entered the store during the interval between the killing and the discovery of Black’s body.
Giving the defendant the benefit of every doubt — as indeed the trial court did — the evidence was such that the jury was warranted in finding that the killing was done, not in the perpetration of a robbery, but that it was done purposely and maliciously, but without deliberation and premeditation (G. S. 1949, 21-402), in which event the court properly instructed as to murder in the second degree. Moreover, the record shows that no objection to the instruction was made — either to its contents or to the giving of it. On appeal it is conceded the instruction contained correct statements of law relating to murder in the second degree. The motion for a new trial did not mention instructions. The denial of the motion for a new trial as a specification of error has been abandoned.
Notwithstanding that in a technical sense it perhaps could be contended the question here presented is not open to appellate review, we nevertheless have considered the matter and our conclusion is the court did not err in instructing on murder in the second degree. The verdict is supported by the evidence and the judgment is affirmed.
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The opinion of the court was delivered by
Jackson, J.:
After a full trial by a jury, the appellant was convicted of robbery in the first degree in the district court and sentenced to twenty years to life imprisonment under the habitual criminal statute, G. S. 1949, 21-107a. He has appealed the conviction to this court and has assigned ten alleged errors in the trial of the case.
Upon a motion stating that appellant had no funds, this court waived the rules of the court as to printing of abstract and brief.
The abstract of appellant contains some ninety-four legal size pages and his brief contains thirty pages. However, the abstract is composed largely of the objections and long arguments of counsel for both sides without showing the testimony of witnesses nor the situation in the trial in which orders made by the district court occurred. Thus, it is impossible for this court to examine the record of the trial to determine whether all of the ten assignments of error are completely groundless. We would observe, from what we can discover concerning the trial, that many of the ten assignments would appear to have no merit.
It is a quite well-known rule, even in a criminal appeal, that it is incumbent upon the appellant to make it clearly appear that reversible error has occurred in the trial from which the appeal was taken. As was said in State v. Russell, 182 Kan. 649, 655, 323 P. 2d 913:
“Error is never presumed and it is incumbent upon the party complaining to establish affirmatively that error was committed.”
Attention is also directed to State v. Hess, 178 Kan. 452, 457, 289 P. 2d 759, and cases cited.
The counter abstract of the state gives a quite complete synopsis of the evidence introduced at the trial and shows that there was ample evidence to support the verdict of the jury.
Since there is no showing of reversible error in the record and since it would be impossible and of no importance to discuss the individual assignments of error, the judgment and sentence appealed from must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Schroeder, J.;
This is an action to cancel oil and gas leases as to the undeveloped portions thereof for breach of the implied covenants to develop in such leases.
The principal questions presented are whether the evidence supports the findings of the trial court, and whether the findings support the judgment entered.
The plaintiffs (appellees and cross appellants) are owners of the oil, gas and mineral rights under six separate eighty-acre tracts upon which they, as lessors, executed oil and gas leases to the defendants
(appellants), making them the working interest-owners. The petition sets forth each lease in a separate cause of action.
Each oil and gas lease is on Form 88 (Producers) 1-43 B, a form in common use in the Mid-Continent area, and none of the leases contains any express covenant relating to the issues in this case. In each lease the lessors reserved the usual l/8th royalty, plus an overriding royalty of l/32nd of the 7/8ths of the production. The one-year primary term of each lease has expired, and each lease subsists by reason of the continuation of production.
The leaseholds are located in the Dopita East Pool in Rooks County, Kansas, principally comprising Sections 28, 29, 32 and 33, Township 8, Range 17 West. Three possible producing formations underlie each of the leases in question, the Arbuckle Dolomite, the Marmaton Sand, and the Lansing-Kansas City Lime.
To assist in clarification of the factual situation, somewhat complicated by the existence of six separate leases between the .same parties with production from three different formations in the Dopita East Pool, a sketch map, with legend, is reproduced. Each eighty-acre tract is numbered in Roman numerals and it corresponds with the number of the cause of action to assist in identification. (To illustrate: The lease which is the subject of the first cause of action is on the eighty-acre tract numbered T, etc.) The wells drilled on the Stamper leases are numbered in Arabic numerals immediately above the well location.
The parties concede drainage from the tracts covered by these leases to other property is not a factor involved in this lawsuit, and production in this area is not controlled by proration.
After hearing all the evidence and taking the case under advisement upon submission of briefs, the trial court made findings of fact and conclusions of law.
The findings, after preliminary recitations heretofore indicated, read as follows:
“3. Six oil and gas test wells have been completed as producers on the retained acreage, and each of said wells is producing oil in paying quantities at the present time, said wells were drilled and completed as producers on the following dates and locations:
Cause of Action Well No. Date of Completion Location
1st 1 5-17-1953 SW/4 SW/4 SW/4 of Sec. 28
2d 3 12-21-1953 SW/4 SW/4 NW/4 of Sec. 33
3d 4 12-16-1953 SE/4 SE/4 NE/4 of Sec. 32
4th 5 2- 24-1954 SE/4 NE/4 NE/4 of Sec. 32
5th 7 3- 22-1954 NW/4 NE/4 SW/4 of Sec. 28
6th 9 9-27-1954 NW/4 SW/4 SE/4 of Sec. 28
“Well No. 1 produces from the Arbuckle formation; Well No. 7 produces from the Marmaton; and Wells No. 3, 4, 5, and 9 produce from the Kansas City Lime formation.
“4. All of the six retained leases are being produced into one common tank battery which is located on the S/2 SW/4 of Section 28, with the oral consent of the mineral owners.
“5. Well No. 6 was drilled as a disposal well and Well No. 2 was a dry hole, but neither of these two wells are located on the retained leases.
“6. The only dry hole drilled on the retained leases was Well No. 8, which was a dry hole completed on the S/2 SW/4 of Section 28.
“7. The average monthly production from said leases between 1954 and 1958, when this action was commenced, was in excess of 2500 barrels of oil per month, and that the average monthly production since commencement of this action, and up to and including October of 1959, is 2400 barrels of oil per month.
“8. The six leases have produced, up to and including October, 1959, a gross total of 202,827.03 barrels of crude oil. The six existing producing wells have produced in excess of 33,600 barrels each of oil, to date, on the average. That it is impossible to determine the exact amount each well has produced, as all wells are being produced into one tank battery, and since monthly barrel tests on each well were not commenced until about time suit was commenced.
“9. The value of the gross production of oil from said leases, up to and including October 1959, is $553,653.00.
“10. At the end of the year 1962, said leases and the producing wells now located thereon will still, in all probability, be producing 2000 barrels of oil per month.
“11. Defendants recovered their original investment in said leases on or about April, 1957, or shortly thereafter.
“12. Defendants have realized a profit of in excess of $160,000.00 in the operation of said leases to date.
“13. The present wells, as now located on each ,of said leases, will not adequately drain the acreage covered by each of said leases.
“14. There are some proven or semi-proven locations on each of the retained leases, which should have been drilled by the defendants long prior hereto.
“15. The proven or semi-proven locations which should have been drilled by defendants are in all probability, capable of producing a minimum of 30,000 barrels of oil each.
“16. Demands for additional development or release of undeveloped acreage was made upon defendant operator.
“17. It would cost from $35,000.00 to $40,000.00 to drill and equip a well to be drilled on each of the proven or semi-proven locations, and the Court finds that, in all probability, sufficient oil could be produced by each of such wells to return the operator his cost of drilling, the operation thereof, all miscellaneous expenses and provide a substantial profit for the operator in addition to paying the landowner the usual l/8th royalty and the 1/32 of 7/8th overriding royalty retained in each of said leases to the landowners. This profit would at least amount to, or exceed, the original investment of said operator in drilling and equipping each of said wells.” (Emphasis added.)
The appellants upon the evidence concede in their brief all production was collected in and delivered from one tank battery, at an average gravity of 29.1 for which purchase was made at $2.69 per barrel.
The trial court in its memorandum opinion, which incorporated the findings and conclusions, said:
“The plaintiffs have asked that all leases be canceled. The Court has decided that that is an unreasonable request. The defendants have asked that no action be taken. This, too, the Court finds is unreasonable. This Court feels and finds that the defendants should have the right to drill additional wells, and is confronted with the question of whether or not in the case where the plaintiffs elected to try the cases as separate causes of action; that one cause of action can be in any way dependent upon the other. The Court has reached the conclusion that because that is strictly an equitable matter, and that justice cannot be rendered except by basing its decision on one cause of action upon the other, that it has that power.”
Upon the foregoing assumption of power the trial .court made the following conclusions of law:
“1. The above facts do not justify cancellation of any of the leases as set out in Finding of Fact No. 1.
“2. The Court finds that the defendants shall have six months to drill on the lease on the South Half of the Northeast Quarter of Section 32-8-17, as set out in plantiffs’ third cause of action. If the defendants shall file an intention to drill within thirty days after date of this judgment and shall drill and complete a well thereon within six months, plaintiffs’ cause of action will be denied. Should the defendants fail to file such intention to drill such a well] and fail to drill, the lease shall be ordered cancelled.
“3. Should the well as provided in the second Conclusion of Law be drilled by the defendants and be a commercial producer, the defendants are directed to drill and complete a well within six months on the South Half of the Northwest Quarter of Section 33-8-17 [Tract II] within one year from the date of this judgment. Should the defendants fail to carry out the direction of this finding] said lease shall be cancelled at the expiration of one year. Should the well be drilled as required in No. 2 and be a non-commercial well, judgment shall be for the defendants.
“4. So far as the first, fourth, fifth, and sixth causes of action are concerned, the Court finds the issues in favor of the defendants, and judgment on each of those actions are for the defendants; however, because of the question of this matter becoming res judicata, the Court retains jurisdiction of all of said causes of action for further hearings thereon should facts develop making this judgment improper. The purpose of this order being that the plaintiffs will not be prohibited in future actions from introducing the evidence in a future case now before this Court in this case.”
Costs were divided and judgment was entered in harmony with the conclusions, except we note, in the journal entry, regarding the First, Fourth, Fifth and Sixth causes of action, appears the recital “Provided However, that the Court shall have and retain jurisdiction of each of said causes of action for further hearing thereon, should further development be had making this portion of the judgment improper.”
Post trial motions were overruled and appeal was duly perfected by the respective parties presenting the questions hereafter considered.
Was there any evidence to sustain the trial court’s determination that the defendants had failed to comply with the implied covenant to develop?
The appellants contend there is no evidence to sustain the trial court’s apparent determination that they are obligated to undertake additional development on the leases involved in the third and second causes of action.
Rules of law applicable to this case have been long established and were stated and applied in Temple v. Continental Oil Co., 182 Kan. 213, 320 P. 2d 1039, rehearing denied 183 Kan. 471, 328 P. 2d 358. Some of the rules material to the issues in this case are the following, taken from the syllabus in the Temple case.
There is an implied covenant by the lessee, under an oil and gas lease, that the tract will be prudently developed, and where the existence of oil in paying quantities is made apparent, it is the duty of the lessee to continue the development of the property and to put down as many wells as may be reasonably necessary to secure the oil for the common advantage of both the lessor and the lessee. (Syl. f2.)
A lessee, under the implied covenant to develop an oil and gas lease, is required to use reasonable diligence in doing what would be expected of an operator of ordinary prudence, in the furtherance of the interests of both the lessor and lessee. Under this rule neither the lessor nor the lessee of an oil and gas lease is the sole judge of what constitutes prudent development of the tract. (Syl. ¶3.)
A lessor who alleges breach of the implied covenant to develop has the burden of showing, by substantial evidence, that the covenant has been breached. He must prove that the lessee has not acted with reasonable diligence under the facts and circumstances of the particular situation at the time. (Syl. f 4.)
The appellants argue the language used by the court “where the existence of oil in paying quantities is made apparent” means the existence of such oil on the undeveloped tract, and not on the portion which had been developed. This must be conceded, but the existence of oil in paying quantities on the developed tract is material evidence, when considered with all of the other evidence adduced in the case, to determine whether oil is likely to be produced in paying quantities from the undeveloped portion of the lease.
It is universally recognized that geology is not an exact science. Therefore, in cases of this type courts are concerned with probabilities or reasonable expectations. Thus, when a qualified expert witness expresses an opinion that oil could be produced from the undeveloped portion of a tract in question with reasonable expectations that it would be produced therefrom in paying quantities, it is sufficient evidence upon which to base a finding that the lessee has failed to comply with the obligation imposed by the implied covenant to develop the lease, provided the facts upon which an expert opinion is based afford a reasonably accurate basis for the conclusion reached, as distinguished from mere guess or conjecture. (Syl. ¶ 8.)
The same situation exists here as in the Temple case, the expert witnesses of the appellees were not possessed of all the technical facts and information which the appellants’ expert witnesses had available to them, but this did not disqualify them as experts.
The evidence is undisputed that all of the oil produced from the six tracts in question was pumped into one common tank battery. No record was maintained as to the production from each well. An effort was made by the appellants to arrive at the total production for each well on the leases in question by monthly barrel tests which were first initiated about two years before the hearing. This was approximately five years after production began on these leases. On cross examination the production figures relating to each well were admitted to be estimates.
The appellees’ evidence consisted of the expert testimony of Richard C. Findeiss, a graduate petroleum engineer from the University of Oklahoma in 1940, who had engaged in the oil business with his father. He prepared exhibits which were introduced in evidence showing the total monthly production for all six wells with the witness’ interpretation of anticipated future production; a contour map showing the witness’ interpretation of the Lansing-Kansas City Lime formation underlying the tracts in question; and a contour map showing the witness’ interpretation of the Arbuckle Dolomite formation underlying the tracts in question.
The subsea level depths at which the various producing formations were encountered on the tracts in question are disclosed by these maps and by contour maps introduced by the appellants. The highest producing elevation at which the Arbuclde Dolomite was encountered is 1425 feet and 1424 feet in Stamper No. 1-C on Tract I, and Stamper No. 7-C on Tract V, respectively. The lower limit at which an operator might encounter production in this formation in the area of these leases is 1431 feet. The highest producing elevation at which the Marmaton Sand was encountered is 1387 feet in Stamper No. 7-C on Tract V. This formation was also encountered on Tract VI at 1387 feet in the abandoned well located northeast of Stamper No. 9-C. The highest producing elevation at which the Lansing-Kansas City Lime was encountered is 1141 feet in Stamper No. 4-C on Tract II. The lower limit at which an operator might encounter any production in this formation is approximately 1150 feet. This formation was described as highly erratic in that porosity and permeability is not constant in the area, with the result that wells encountering the formation at elevations as high or higher than producing wells fail to produce.
Needless to say, the elevations at which the various formations would be encountered on the undeveloped portions of the tracts in question vary widely on the contour maps prepared by Findeiss for the appellees from those prepared by an expert for the appellants. Findeiss gave his opinion as to the amount of production that could reasonably be expected from the undeveloped portions of the tracts in question as follows:
“The wells in this pool have already produced in excess of 30,000 barrels per well; that is average. It is my opinion these locations we have selected, these undrilled locations should produce at least as much if not more than the wells that have already been drilled and are producing on the average.”
He further testified:
“At present time there is just one well on each eighty acres. They are on ten acre spacing, and definitely in this territory in Rooks County they have all been developed on at least twenty acre spacing. In the immediate vicinity there have been nine spot locations drilled. I do not think this area is any different from those in the adjacent area, which it has been shown that certainly less than the eighty acre locations are necessary to drain this pool.
“I think in order to drain oil from underneath this Arbuclde high or Kansas City, different Kansas City Zones, you will have to drill 20 acre locations eventually to complete drainage of it. The first Dopita wells were drilled on the basis of 40 acres. That was done because of shortage of material during the war. After that they came down and drilled 20 acre locations. They drilled nine spot locations through the Continental Oil and Shell Oil Company. That was on the basis of 17.7 acres. I think 80 acres could not be drained by one well should the formation be productive underneath the entire eighty.”
The appellants concede if there is any evidence to sustain the trial court’s findings, such findings must be affirmed on appeal. Their position, however, is that on cross examination the testimony of Findeiss disclosed the foregoing opinion was unworthy of credence, because average production was used as the basis upon which Findeiss gave his opinion. It is argued the witness was offering his opinion without any facts to afford a reasonably accurate basis for the conclusion reached because he had not ascertained what the production was from each producing well. (See, Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P. 2d 810, Syl. ¶ 6.) The appellants contend the burden of proof cast upon the appellees “was not discharged by assuming, contrary to known facts, that each well had produced the average of six wells, and then building upon that assumption, the further assumption that the undeveloped acreage would produce the assumed average amount.”
If the court were to recognize this as a valid argument on the facts presented by the evidence in this case, it would permit an operator of oil and gas leases to avoid the implied covenant to develop merely by pumping all wells into one common tank battery. By their own conduct in operating these leases the appellants are in no position to be heard regarding the foregoing argument. On the facts in this case average production is acceptable to show the existence of oil in paying quantities on the undeveloped portion of a given lease in this action. It has been said the nearest wells to an undeveloped portion of a lease are the best evidence to ascertain whether oil is likely to be produced in paying quantities from the undeveloped portion of the lease. (Myers v. Shell Petroleum Corp., supra; and Temple v. Continental Oil Co., supra.)
Findeiss testified that he knew each individual well had not produced the average amount of oil, but said “we have no way of testing all the various zones and know what any of the wells will produce. I don’t believe there is any way, since all the zones have not been checked in each well.”
On cross examination as to each tract and formation Findeiss gave his opinion where a given oil-bearing formation would be encountered, but declined to give an opinion as to whether it would be commercially productive, or how much production might be obtained. The witness had previously given his opinion based upon facts heretofore stated, but counsel for the appellants sought to press the witness for an exact determination whether a given formation would produce commercially. Upon the facts and circumstances here under consideration this would not be controlling, since there are three producing formations to contend with under each tract.
The trial court, after overruling the appellants’ demurrer to the appellees’ evidence, heard the appellants’ evidence, and was entitled to rely upon it to the extent that he felt it merited consideration in making his findings.
Evidence of the appellants as to the wells on the tracts in question disclosed Stamper No. 1-C (See Sketch) on Tract I was completed as a producer on May 17, 1953, in the Arbuckle Dolomite at 1425 feet. (Note: All elevation figures given in this opinion are subsea level depths.) As of October 1, 1959, the well had recovered approximately 66,600 barrels of oil, representing 33% of the total production on the six leases. (All production figures are admitted to be estimates for the reasons heretofore stated.) No other formation has been tested on this well which is still pumping from the Ar-buckle formation.
On the same tract Stamper No. 8-C encountered the Arbuckle fifty feet lower than in the No. 1 well and was dry. It encountered the Lansing-Kansas City Lime at 1148 feet and failed to produce.
Stamper No. 6-C on the eighty-acre tract south of Tract I was dry in all formations, but is being used for salt water disposal purposes by the appellants on their Stamper leases and other leases in the area under separate contract with the appellees. It encountered the Lansing-Kansas City Lime at 1143 feet and the Arbuckle at 1437 feet, twelve feet lower than the No. 1-C.
Stamper No. 2-C on this same eighty was dry in all formations, encountering the Lansing-Kansas City Lime at 1144 and the Ar-buckle at 1438 feet.
A direct west offset to Stamper No. 1-C is a Murfin-S tamper well which encountered the Arbuckle at 1431 feet without production, but produced approximately 21,000 barrels of oil from the Lansing-Kansas City Lime, encountered at 1149 feet, before being plugged and abandoned.
Stamper No. 7-C on Tract V was completed April 23, 1954, as a producer in the Arbuckle at 1424 feet, and produced for thirty months, recovering approximately 24,000 barrels of oil, and upon the depletion of that formation, was recompleted in the Marmaton Sand at 1387 feet, from which formation it had recovered 20,400 barrels of oil in thirty-four months to October 1, 1959, with a combined production of 22% of the total production of the six leases, and was still producing at the time of the trial.
Stamper No. 9-C on Tract VI encountered the Arbuckle at 1434 feet and was nonproductive. It is producing from the Lansing-Kansas City Lime, encountered at 1157 feet. Up to October 1,1959, it had recovered 29,260 barrels of oil representing 13.3% of the total production of the leases. The well was originally drilled and production casing set July 23, 1954, by another operator and lessee, who determined to abandon it. The appellants purchased it for the cost of the pipe, and produced it for 59 months to October 1, 1959, and at the time of trial it was still producing.
A northeast offset from No. 9-C on the same tract encountered the Arbuckle at 1443 feet and the Lansing-Kansas City Lime at 1152 feet and was nonproductive in these formations, but was productive in the Marmaton Sand for a while at 1387 feet until it was abandoned.
The appellants completed Stamper No. 5-C on Tract IV as a producing well in the Arbuckle on June 4, 1954, encountered at 1431 feet. It produced approximately 4500 barrels from the Ar-buckle in ten months to deplete the formation, and was plugged back to the Lansing-Kansas City Lime, encountered at 1145 feet, from which approximately 24,386 barrels had been recovered to October 1, 1959, with a combined production of 14.3% of the total production of the six leases.
On January 8, 1954, appellants completed Stamper No. 3-C on Tract III as a producing well in the Arbuckle, encountered at 1427 feet. It recovered approximately 5,000 barrels of off from the Arbuckle in ten months at which time such formation was depleted, and the well plugged back to the Lansing-Kansas City Lime, encountered at 1143 feet, from which it had recovered 11,160 barrels of oil up to the time of trial, making a combined total production of 8% of the total production from the six leases. The initial potential of this well in the Arbuckle was 149 barrels of oil per day.
A direct south offset to No. 3-C is The Petroleum, Inc. — Brown E-l, which was productive in the Arbuckle, encountered at 1426 feet, but which had been plugged and abandoned at the time of trial. The Petroleum, Inc. — Brown E-l B well, located about 50 feet northeast of the E-l, produced from the Lansing-Kansas City Lime at 1141 feet, recovering 8,400 barrels of oil before being plugged and abandoned. The Lansing-Kansas City Lime was encountered at the same depth in E-l but was dry.
On January 15, 1954, the appellants completed Stamper No. 4-C on Tract II as a producing well in the Lansing-Kansas City Lime, encountered at 1141 feet. This well was nonproductive in the Arbuckle, encountered at 1432 feet. It had an initial potential of 109 barrels of oil per day and at the time of trial was still producing. As of October 1, 1959, this well had recovered about 19,000 barrels of oil, representing 9.4% of the total production from the six leases.
A direct offset to the south is McMullen No. 2, which was productive in the Arbuckle at 1423 feet, and after depletion in that formation, was plugged back to the Lansing-Kansas City Lime, encountered at 1142 feet, from which formation it was producing at the time of the trial.
John O. Farmer, one of the appellants, testified as an expert for the appellants. He is engaged in the drilling for, and production of, oil and gas. Beginning in 1947 he was associated in the firm of Jones, Shelburne & Farmer, engaged in such business, which company is now known as John O. Farmer, Inc., of which he is president. He testified that in his opinion a prudent operator would not undertake to drill the locations designated by the appellees’ witness Findeiss, on the undeveloped portions of the leases in question, because at this time the price of oil and the cost are such that the operator would not “expect to get a return that is in line with good and accepted business practice.”
Mr. Farmer had previously testified that taking into consideration the risk of drilling dry holes and cost of drilling, equipping and operating a well, and the geological factors a reasonable and prudent operator must be able to anticipate a minimum recovery of three to one. That is, three dollars return for one invested. On the same point he said it was generally recognized in the industry that an operator should get three times his investment cost back in from nine to ten years. He testified the cost of drilling, equipping and completion of a well in this area would be around $42,000 to $45,000, exclusive of a tank battery. Other expert witnesses for the appellants on costs gave figures ranging from $35,000 to $45,000 total costs for an original well.
As to the Stamper wells on the tracts of land in question, other than Stamper No. 7-C, Mr. Farmer testified the Marmaton Sand had not been tested as far as perforating is concerned. On this formation it was his opinion that:
“There is possibly some production, and we will eventually try to get some out of it, but it is definitely marginal. We don’t anticipate great recoveries. It will be wind falls.”
The appellees’ witness Findeiss testified a commercial well would be one which produced enough oil to pay back the money the operator had expended plus a reasonable profit. He knew of no formula as to profit that would satisfy a “reasonable, prudent operator.” (See, Temple v. Continental Oil Co., supra, Syl. ¶ 3.)
The appellees called two witnesses, who were defendants below, to testify. They were S. J. Peavey and Harlan Miller. The two had purchased the Stamper leases here in question and turned them to the appellants, retaining an overriding royalty. Roth were engaged in the oil business which consisted of owning royalty interests, overriding royalty interests, working interests and as lease brokers. Over objection they were permitted to testify that they knew the costs of drilling and equipping a well in the vicinity, and in their opinion a prudent operator would have drilled additional wells upon the six leases in question. They recognized that if the leases in question were cancelled by the court, they would lose their overriding interest.
The appellees introduced a letter written by Mr. Farmer. It reads:
“John O. Farmer, Inc.
Oil Producers and Drilling Contractors
RUSSELL, KANSAS
February 21, 1938 [1958]
Forrest Stamper
Plainville, Kansas
RE: Further Development
Stamper Leases
T 8 S-R 17 W
Roolcs County, Kansas
Dear Forrest:
We are in receipt of a letter from Hindman and Krysl requesting that we either do additional drilling on our Stamper Leases or release the undeveloped acreage.
Some time ago I had our engineers make a study and prepare a report on these leases, one copy of which is attached. As you will note we have recommended that additional drilling be done on this acreage. Copies of this report have been sent to our associates and we are awaiting their reply to our recommendation.
Just as soon as I have heard from our partners, I will advise you of our intentions. Yours very truly,
John O. Farmer, Inc.
/s/ John O. Farmer
John O. Farmer
JOF/lk”
Mr. Farmer testified the engineering study mentioned in the letter disclosed locations on the eighty-acre tract lying immediately south of Tract I. The appellants contend the letter does not disclose whether a prudent operator would have drilled on the leases in question. It must be observed the appellants did not have the lease on the eighty lying south of Tract I on the date the letter was written, the primary term of one year having expired without production, and the letter makes specific reference to the Stamper leases. The probative value of this testimony of Mr. Farmer and of the letter was a question for the trial court to determine, when considered in connection with all the other evidence adduced in the case.
The findings of the trial court which the appellants challenge are Nos. 13, 14, 15 and 17, heretofore quoted. These findings are specific and apply to each cause of action. They are adverse findings to the appellants on each cause of action. Taking the evidence presented by the entire record into consideration, we think there was substantial evidence to support all of the “Findings of Fact” made by the trial court. In arriving at this conclusion those portions of the evidence most favorable to the appellees, and which tend to support the findings, have been presented in the foregoing discussion of the case. (The evidence on findings which are uncontroverted has not been set forth.)
Did the trial court err in failing to restrict its decree of alternative cancellation to the undeveloped acreage specified in the pleadings?
The foregoing question relates directly to one of the appellants’ specification of errors. An answer, however, requires some explanation of the pleadings.
In the petition the appellees requested cancellation of each lease, except as to the ten-acre tract upon which the producing well was located. The trial ■ court upon motion of the appellants ordered the appellees to make their petition definite in certain respects, but the appellees in complying therewith amended their petition by going beyond the court’s requirement and designated the portion of each lease where they thought an additional well or wells should have been drilled. (These portions of each lease are designated by hatch marks on the sketch heretofore set forth.) Actually, these allegations were surplusage and the appellees were not limited to such locations in their proof as the petition stood at the time of trial. This was the holding of the trial court, and we fail to see how the appellants were prejudiced by such ruling. It is therefore proper for the trial court to decree alternative cancellation for each lease, except the ten-acre tract upon which the producing well is located.
Did the trial court err in retaining jurisdiction for further hearing on the leaseholds involved in the First, Fourth, Fifth and Sixth causes of action?
The appellants contend the only consistent interpretation of the apparent conflict in the court’s conclusions of law is, that breach of the implied covenant by the appellants was established as to the leaseholds covered by the Third, and possibly, Second causes of action, but that such breach was not established as to the remaining causes of action.
The appellees on the other hand contend the findings of the trial court are inconsistent with the conclusions concerning the First, Fourth, Fifth and Sixth causes of action; and that upon the findings of fact they are entitled to cancellation or additional development of the leases described in these causes of action. This point is well taken.
The trial court in its memorandum opinion assumed that it had power, this being an equitable matter, to consider one cause of action as being dependent upon another — that the decision on one tract could be made dependent upon another. This was an erroneous assumption.
While this lawsuit does involve the same lessors and lessees as parties, each lease was separate and distinct from any other in its terms, and was made the subject of an independent cause of action. Neither the fact that the parties are the same, nor the fact that the tracts of land covered by the leases in question embrace oil-bearing formations comprising a common source of supply, alter the independent legal nature of the leases in question- or make them dependent upon one another. Furthermore, the confusion caused in this case by collecting all of the oil produced from the six leases into one common tank battery, without the maintenance of individual production records for each well, has not effected a merger of these leases. In other words, the appellants’ choice as to the manner in which these leases were operated has not altered their obligations under each individual lease.
To extend the rights and obligations of the parties to a contract, such as a lease, beyond the specific undertaking would be no less than the impairment of the obligation of contract, contrary to fundamental concept in our society. It is basic to the ownership of real property, which includes mineral interests in land, that the owner be free to contract with respect to such property. The owner of a large tract of land is free to make each eighty-acre tract, or a lesser amount, in which he owns the mineral interests the subject of an independent oil and gas lease, and each one carries with it independent rights and obligations, including the implied covenants. Recently the court said in Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P. 2d 326:
“In evolving the doctrine of implied covenants courts have placed great emphasis on individual property rights and construed oil and gas leases ‘to promote development and prevent delay’ upon the theory that the lessor had the right to have his land developed as rapidly as possible . . .” (p. 167.) (Emphasis added.)
The very purpose in dividing one’s real property into eighty-acre units for leasing purposes is to assure development of each unit. Thus production on one lease could not hold another lease beyond the primary term in the absence of independent development or production on such other lease. The same is true of the implied covenant to develop. (See, Renner v. Monsanto Chemical Co., supra.) One lease covering an eighty-acre tract of land is in no way dependent upon a lease on another eighty-acre tract of land, even though it may join, or lie adjacent thereto, or involve the same parties, absent a binding agreement between the parties making such leases interdependent.
The parties in this case were free to bargain for the oil and gas leases on the eighty-acre tracts of land in question. If the lessees were unwilling to assume the obligations of six independent leases (actually seven, the primary term of one expired, no oil having been found), they should have asserted their objection by refusing to enter into such contractual obligations. Nevertheless, the lessors prevailed at the bargaining stage of the case and six (actually seven) independent leases resulted and thereby fixed the parties’ rights and obligations.
On the facts here presented one cause of action is no way dependent upon the other. Each must be treated as an independent lease. The trial court made findings relative, to each of the leases which in substance determined that the lessees had failed to develop each of the leases in accordance with prudent development. In other words, the trial court found the existence of oil in paying quantities was made apparent on the undeveloped portion of each tract covered by each lease, and it was the duty of the lessees to continue the development of each tract and put down as many wells as may be reasonably necessary to secure the oil for the common advantage of both the lessor and the lessee; that the lessees had not used reasonable diligence in doing what would be expected of an operator of ordinary prudence, in the furtherance of the interests of both the lessors and lessees on each of the six tracts.
The trial court said it would be unreasonable to cancel each of the leases, and likewise found that it would be unreasonable to take no action as requested by the appellants (defendants below)— that the appellants should have the right to drill additional wells. The foregoing findings and general conclusions of the trial court are within the evidence and determine the issues in this lawsuit.
Here the appellees sought cancellation of the undeveloped portions of each of the leases, but this does not preclude the granting of alternative relief. In Temple v. Continental Oil Co., supra, it was said:
“In the Berry case the relief prayed for was cancellation of the undeveloped portion of the lease. It was not for an order requiring further development or cancellation in the alternative, but this court had no difficulty granting alternative relief. While equity abhors forfeitures it likewise abhors injustice. (Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005.)” (p. 236.)
The judgment of the trial court as to the Third cause of action is affirmed (subject to modification by the trial court as to the time of drilling and completion of a well), but as to all other causes of action the judgment is reversed, with directions to enter judgment in the alternative for the appellees on each of these causes of action (Second, First, Fourth, Fifth and Sixth) as the trial court may equitably determine proper, viewing the lease on each tract of land independent of the lease on any other tract.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a judgment in favor of plaintiff for personal injuries received in an accident involving a water truck and an automobile in which plaintiff was riding.
On Sunday afternoon March 15, 1959, plaintiff Georgia Kline, who was sixty years of age, and her husband, Harry Kline, who was sixty-six years of age, drove from their country home northwest of Marion to Emporia to visit their son and daughter-in-law. The family car, a 1952 Pontiac, was driven by Harry Kline. On their return trip home that evening at about 9:00 p. m. Mr. Kline was driving west on a country road six miles north of Marion. The road was twenty-one to twenty-three feet wide and was surfaced with a heavy covering of large-sized chat, rock, or slag. The small amount of traffic using this road had worn two tracks approximately in the middle thereof which had the appearance of being smooth. There was a banister bridge twenty feet and one inch wide at the point where the road crossed Schemblin creek. A great amount of water was used in the oil fields located in that vicinity which was obtained by operation of water trucks going to this creek to be filled and tiren hauling the water to the different leases. The trucks were generally parked somewhere on or about the bridge, long hoses were put into the water, and the water was drawn into the tanks by suction pumps.
The country road in question proceeded from the east over a hill to the west. Approximately 150 to 200 feet east of the bridge the road leveled out so that car lights would show what was ahead on the bridge for that distance. On the north side of the road at the east end of the bridge there was a washout, or a hole, where the rear wheels of the water trucks had made depressions and it had the appearance of a washout and made the road narrower, or at least made it appear narrower to a driver approaching from the east.
Defendant Ash owned four water trucks and these, along with some twenty or thirty other similar trucks, obtained water from the creek. The particular truck in question carried about 1,500 gallons of water.
On this occasion Jim Jacobson, the driver of the truck, stopped on the south side of the road facing west with the front wheels of the truck on the bridge and the rear wheels on the road at a lower level than the front wheels. In pumping the water the motor of the truck had to be run slowly in order to operate the power takeoff properly. It took about twelve minutes to fill the tank. This would weaken the generator and Jacobson would turn off his lights and this is what he had done immediately prior to the accident. The rear end of the truck was muddy and dirty and as the tank was being filled Jacobson and a friend were sitting in the cab- of the truck with the radio turned on listening to some music. The car in which plaintiff was riding came over the hill from the east at approximately fifty miles an hour. Neither plaintiff nor her husband saw the truck, or any lights thereon, or anything else to warn them of its presence. The car laid down 127 feet of brake marks and was still traveling about fifteen miles an hour when it collided with the rear end of the water truck. At the time the skidmarks started the left wheels of the car were approximately seven feet from the south edge of the roadway. The car apparently had been traveling in the track established by the vehicular traffic. Plaintiff was not shown to have objected to her husband’s speed or how he drove the car. Both of them saw the truck at approximately the same time and she exclaimed, “Look out” or “Be careful.”
Jacobson admitted he had had the lights on the truck turned off prior to the impact but testified he had turned them on again as soon as he noticed the headlights of the approaching car in his rear vision mirror. However, a highway patrolman, as well as the sheriff and undersheriff, stated the lights on the truck were not on. Ollie White, who drove an ambulance to the scene, stated that in his vague memory he thought he remembered the clearance lights on the truck were on when they arrived, but Bill Meyer, who accompanied White in the ambulance, stated the truck was dark when they arrived although the two clearance lights were on when they left.
While defendants requested certain instructions, a careful study of them shows' they either have no application or they were given by the trial court and, therefore, we think it unnecessary to go into full detail regarding defendants’ objection to the refusal of the trial court to give all of their requested instructions.
In regard to the instructions the trial court did give, which are set out in full in the record but need not be repeated here, an examination of them shows they fully, impartially, and completely cover the case and state, in substance, the words of the appropriate statutes. (G. S. 1959 Supp., 8-532 [b] [3]; G. S. 1949, 8-570; 8-572 [a] [13]; 8-581; 8-586.) Particular objection was made by defendants to instruction 13 in regard to imputing any negligence of Mr. Kline to the plaintiff. In view of the discussion later contained herein on this point, we are unable to state that on the record before us this instruction was improper.
The jury returned a verdict in favor of plaintiff in the sum of $15,290.55 together with answers to twenty-two special questions as follows:
“1. Was the north half of the roadway in the vicinity of the Ash truck open at the time of the collision? A. Yes — open to nominal speed.
“2. How far east of the Ash truck was Georgia Kline when she first saw it? A. 175-200 feet.
“3. How far east of the Ash truck was Harry Kline when he first saw it? A. Approximately the same.
“4. Did Harry Kline apply his brakes as quick as he could after he saw the Ash truck? A. Yes.
“5. How far east of the Ash truck could Georgia Kline have seen it if she had been watching in a careful and discerning manner? A. We don’t know— factors we can’t determine such as eyesight.
“6. How fast was the Kline car traveling when Georgia Kline first saw the Ash truck? A. Neighborhood of 50 m.p.h.
“7. How fast was the Kline car traveling when it struck the Ash truck? A. We do not know. (From evidence of Mr. Kline approximately 15 m.p.h.)
“8. How wide was the roadway where the Kline car struck the rear of the Ash truck? A. 21 to 23 feet.
“9. How far south of the center of the roadway was the farthest north portion of the Ash truck? A. 1 ft. and 8".
“10. At the speed which you find the Kline car was traveling in your answer to Question No. 6, what was the distance in feet required to bring the Kline car to a stop or under such control as to avoid colliding with the Ash truck under the existing circumstances? A. We can’t fairly estimate due to too many conditions.
“11. Was Harry Kline travelling with at least part of the Kline automobile in the south traffic lane when approaching the Ash truck? A. Yes.
“12. Did Georgia Kline make any objection to the speed at which Harry Kline was driving while travelling toward the bridge where the collision occurred? A. No.
“13. If you answer Question No. 12 ‘yes’, then state what Georgia Kline said and how far east of the Ash truck she was when she said it? A. —.
“14. Did Georgia Kline make any objection to Harry Kline’s driving partially or entirely in the south traffic lane while travelling toward the bridge where the collision occurred? A. No.
“15. If you answer Question No. 14 ‘yes’, then state what Georgia Kline said and how far east of the Ash truck she was when she said it. A. —.
“16. If the Kline vehicle had been operated entirely in its own lane of traffic would the collision have occurred? A. Questionable.
“17. Was Georgia Kline familiar with the general character of the land where the accident occurred and know that such road was through rolling country? A. Yes.
“18. Were there any lights burning on the rear of defendant’s truck at the time of the accident? A. We can’t tell from the evidence whether the lights were actually on at the time of the collision or not.
“19. Do you find defendant committed any act of negligence which was the proximate cause of the accident? A. Yes.
“20. If your answer to Question No. 19 is ‘yes’, then state what was defendant’s negligence.
A. Parked on a bridge No displayed flares, lanterns, or
Parked on wrong side of road red reflectors
Not leaving 20 feet clearance.
“21. Do you find that Georgia Kline committed any act of negligence which was the proximate cause of her injuries? A. No.
“22. If your answer to Question No. 21 is ‘yes’, then state what was Georgia Kline’s negligence. A.”
Defendants objected because of the insufficiency of answers to questions 5, 7, and 10, and the jury was sent back for further deliberations thereon. The words, “From evidence of Mr. Kline approximately 15 m.p.h.”, were added to the answers to question 7. The jury stated it was impossible for it to give better answers to questions 5 and 10. The verdict and answers were accepted and approved by the trial court on May 24, 1960. On September 5, 1960, defendants’ motion to set aside answers to special questions 19, 20, and 21, their motion for judgment on the answers to special questions of the jury, and their motion for new trial were presented to and overruled by the trial court. This appeal was thereupon perfected. In connection with the record on appeal, it is helpful to this court when the notice of appeal is set out in full in the abstract which was not done by counsel in this case.
Many authorities are cited by counsel for the parties on both sides in this case but for all practical purposes, a similar situation existed in Drake v. Moore, 184 Kan. 309, 336 P. 2d 807. The only distinguishing feature is that the bridge in our present case was situated in a valley with rises at some distance to the west and east of it. We have already detailed how vehicles coming down the rise from the east would be unable to discern any object on the bridge especially when the owner or operator thereof had not seen fit to comply with statutory requirements as to lights and proper parking. In the Drake case a large truck had stalled on an incline and after passage of time spent by defendants in trying to get the truck started by towing it, plaintiff automobile ran into the rear of the truck which had no lights and was stopped and parked in the traveled portion of the roadway. The traveled portion of the roadway in the Drake case was concrete slab twenty-two feet wide while here the roadway was of heavy gravel or slag and approximately in the middle of it there was a well-defined single track which had been worn thereon by the vehicular traffic. There is no question but that plaintiff here proved several acts of negligence on the part of defendants, some of which were even admitted by them, and were set out in detail by the jury in the answer to special question 20. Any contributory negligence of the driver of the plaintiff automobile, or of the plaintiff herself was an affirmative defense which had to be proved by defendants. (Hoff v. Johnston, 186 Kan. 214, 219, 349 P. 2d 873.)
We turn next' to the answers to special questions by the jury. The answers, which were based on abundant substantial competent evidence, not only fixed defendants’ negligence as the proximate cause of the accident but made clear there was no finding of negligence either on the part of Harry Kline, the driver of the plaintiff automobile, or on the part of Georgia Kline, plaintiff. Therefore, we must conclude, as did the jury, there was no competent substantial evidence to show any such negligence on the part of the Klines. The trial court apparently reached the same conclusion when it accepted and adopted the verdict of the jury and the answers to the special questions.
Under the Drake case the complaint of defendants as to the trial court’s ruling on the demurrer is well answered and we hold here, as there, that the demurrer was properly overruled.
Defendants argue the theory of assumption of risk but we remain unconvinced from their argument and the record before us that there is any application of that doctrine because when the danger was apparent to one of the Klines, it was apparent to both. Mrs. Kline warned of the danger and Mr. Kline immediately applied his brakes and laid down 127 feet of skidmarks. Similarly we cannot see there was such knowledge and appreciation of danger and peril on the part of both of the Klines, or either of them, as would make it proper to consider the doctrine of assumption of risk. (Kleppe v. Prawl, 181 Kan. 590, 594, 313 P. 2d 227, 63 A. L. R. 2d 175.)
Other complaints of error are noted but in view of the discussion herein, we think they have been sufficiently answered.
Judgment affirmed.
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The opinion of the court was delivered by
Marshall. J.:
The defendant appeals from a judgment decreeing that the plaintiffs were the owners in fee simple of certain real property and quieting their title thereto. The contest arose over the following mutual and reciprocal joint will:
“I, T. W. Lewis, and I, Betsy A. Lewis and each of us and both of us being of sound mind and memory and realizing the uncertainty of life and the certainty of death and wishing to direct how our property shall be distributed on our death, do hereby make, publish and declare this to be our last will and testament. Made at Esbon, Kansas, this 28th day of April, A. D. 1909, hereby revoking all former wills by us or either of us made.
,, “First. It is the will 'of each one of us and of both of us that our just debts and funeral expenses be paid.
“Second. It is the will and desire of each of us and the mutual wish and desire of both of us that on the death of either of us all the property of the deceased party, whether real, personal or mixed, shall descend to and become the sole and separate property of the surviving party for his or her use and benefit so long as the survivor shall live.
“Third. It is the will and desire of each of us and our mutual desire that on the death of whichever one of us that survives the other that all of our property of whatsoever kind or nature, descend to and become the property of our beloved children, Emery H, Lewis, Meriam B. Lewis and Celestine R. Lutz, share and sháre alike, except the two hundred dollars provided for and devised in section four of this will.
“Fourth. It is the will and desire of each of us and our mutual desire that our beloved grandson, Tolbert William Lutz, son of our deceased daughter Amanda L. Lutz, have and receive the sum of two hundred dollars, on the death of the one of us who survives the other and I, T. W. Lewis and I, Betsy A. Lewis each for ourselves do hereby give, devise and bequeath to our beloved grandson Tolbert William Lutz the sum of two hundred dollars on the death of the one of us surviving the other.
“Fifth. I, T. W. Lewis and I, Betsy A. Lewis each for ourselves do hereby give, devise and bequeath to the other all our property whether real, personal or mixed for his or her use and benefit so long as he or she may live and. we hereby further declare, give, devise and bequeath the fee in all our property of whatsoever kind or nature to our beloved children Emery H. Lewis, Meriam B. Lewis and Celestine R. Lutz (nee Lewis) share and share alike, on the death of the one of us who survives the other. We do not intend to devise and this bequest is made with the specific intention of not including the sum of money hereinbefore willed to our beloved grandson Tolbert William Lutz, in part four of this will.”
The court made findings of fact among which were the following :
“1. On or about the 28th day of April, 1909, T. W. Lewis was the husband of Betsy A. Lewis and was the father of all of the plaintiffs, and the said Betsy A. Lewis was the mother of all of the plaintiffs.
“5. On the death of Betsy A. Lewis, which occurred in September, 1912, T. W. Lewis took charge and exercised dominion over all of the property above described, and received the rents and benefits accruing from it.
“6. On the 29th day of July, 1914, the said T. W. Lewis was united in marriage to the defendant Mattie M. Lewis.
“8. The said T. W. Lewis departed this life on November 16th, 1916.
“14. T. W. Lewis never accounted to any one for any rents or benefits which he may have received or realized in the use or management of the property which had belonged to Betsy A. Lewis.
“18. After the instrument was probated, as above recited, the defendant was cited by the probate court of Jewell county, Kansas, to appear and make her election as to whether she would take under the will or under the laws of descents and distributions.
“19. In response to such citation she appeared in the probate court of Jewell county, Kansas, and made her election to take under the laws of the state regulating descents and distributions and not under the will.
“21. After the death of Betsy A. Lewis the plaintiffs expressed the wish of being permitted to enjoy the use of the farm, or a part of the farm, owned by Betsy A. Lewis in her lifetime, and the said T. W. Lewis so informed some of his acquaintances, but stated that the children need not worry because they, meaning himself and Betsy A. Lewis, had made provision for the children in their will, and thus recognized the. will as such after the death of Betsy A. Lewis, although shortly before his second marriage he told the sister of the defendant that if the defendant came into his home, she would come in just as his wife went out, meaning to give the sister of the defendant to understand that if he married the defendant she, the defendant, would enjoy all the rights and privileges his first wife had.”
The defendant claims under the statute of descents and distributions, and argues that the will is against public policy; that, so far as T. W. Lewis was concerned, the will was revoked by his marriage to the defendant; and that the will was not a conveyance and, therefore, that the defendant, under her election, inherited one-half of the property owned by T. W. Lewis. Each of these propositions will be noticed.
1. It is not apparent why. such a will, executed by a husband and his wife, making provision for themselves during their lifetime, and the life of the survivor, and giving the property to their children after their death, is against public policy. That policy ought to be favorable to such wills. In Carle v. Miles, 89 Kan. 540, 132 Pac. 146, this court discussed this subj ect and said:
“Mutual wills made in pursuance of an agreement in consideration of reciprocal gifts or devises are not opposed to public policy nor contrary to the statutes of this state.” (syl. ¶ 2.)
The validity of such wills has been either expressly or impliedly recognized in Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; in Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Id., 102 Kan. 104, 171 Pac. 769; Id., 102 Kan 619, 171 Pac. 773.
But the defendant argues that, if such wills are upheld, the surviving spouse will be left dependent on those to whom the remainder is given. That may be true, but if an arrangement, such as the one now before the court, is voluntarily made, there is no more reason for saying that it is opposed to public policy than there would be for saying it is opposed to public policy if the arrangement had been made by deed executed and delivered in the lifetime of the parties ther.eto. There is not much difference between such an arrangement by deed and the one now under consideration.
2. The principal contention of the defendant is that the will, so far as T. W. Lewis is concerned, was revoked by his subsequent marriage. To support that contention the defendant argues that, if the will stands, the statutory provision made for her benefit, as the surviving wife of T. W. Lewis, is defeated; that her election to take under the law is of no avail; and that the promise made by T. W. Lewis to the defendant’s sister before the marriage is defeated.
The widow’s right under the statute of descents and distributions, whether the husband dies intestate, or whether he makes a will and she elects to take under the law, attaches to one-half in value of all the real estate in which he, at any time during the marriage, had a legal or an equitable interest. (Gen. Stat. 1915, § 3831.) Her right does not attach to any property to which the husband held the legal title but which in equity belonged to others. (Dillon v. Gray, 87 Kan. 129, 123 Pac. 878.)
The representation made by T. W. Lewis to the defendant’s sister, “that if the defendant came into his home, she would come in just as his wife went out,” was made after the will had been executed, after the first wife of T. W. Lewis had died, after he had accepted the benefits conferred by the will, and after the interests of the plaintiffs had attached to the land in controversy. Unless T. W. Lewis had the power to revoke the will after these things had transpired, nothing that he did could in any way change the rights of the plaintiffs.
Where a property owner about to be married makes disposition of that property in fraud of the rights of the intended spouse, the courts will set aside that disposition. (Butler v. Butler and Austin, 21 Kan. 521; and Green v. Green, 34 Kan. 740, 10 Pac. 156.) But a disposition of property made long prior to contemplation of a marriage, and while another marriage relation exists, cannot be in fraud of the rights of a second spouse.
Another argument advanced to support the theory that the will was revoked is that, because T. W. Lewis, after the death of Betsy A. Lewis, conveyed to third parties a part of the land that had been owned by him, he repudiated the will', or did not recognize it as binding on him. Those conveyances may have been wrongful, but that question is not before the court, and need not be decided. What has been said concerning the representation to the defendant’s sister applies with equal force to this argument.
All the supporting argument of the defendant fails, and she is left with the argument that the second marriage of T. W. Lewis, without any other act, revoked his will. It is not necessary to decide that question at this time; but for the purpose of argument, it may be conceded that marriage does revoke a will previously made, where it can be revoked. If it cannot be revoked, it must be because the instrument partakes of the nature of both a will and a contract. The defendant says that there was no evidence to show that T. W. Lewis and Betsy A. Lewis ever entered into any contract to make the will, and that there was no finding of the court that such a contract was made. How could such a will be voluntarily executed if there was no agreement or understanding that it would be made? The will itself, its terms, and its execution, are evidence that such a contract was made. (Nelson v. Schoonover, 89 Kan. 388, 392, 131 Pac. 147; Baker v. Syfritt, 147 Iowa, 49; Bower v. Daniel, 198 Mo. 289, 320; Frazier v. Patterson, 243 Ill. 80; Campbell v. Dunkelberger, 172 Iowa, 385, 390; Larrabee v. Porter, 166 S. W. 395 [Tex. Civ. App. 1914].)
There is some confusion in the authorities concerning the power of one of the parties to a mutual and reciprocal joint will to revoke it; but the rule supported by the better reasoning and by the weight of authority is that if' such a will has been made and one of the parties thereto dies and the other accepts benefits thereunder, the survivor cannot thereafter revoke it. The authorities last' cited fully support this rule.
At the time of his second marriage, T. W. Lewis did not have power to revoke the will on his part so as to render it inoperative after his death. Even if the testamentary part of the instrument now under consideration had been revoked, the-contractual part could be enforced by the plaintiffs. (Newton v. Lyon, 62 Kan. 306, 62 Pac. 1000; Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Gemmel v. Fletcher, 76 Kan. 577, 92 Pac. 713; Bless v. Blizzard, 86 Kan. 230, 120 Pac. 351; Dillon v. Gray, 87 Kan. 129, 123 Pac. 878; Nelson v. Schoonover, 89 Kan. 388, 131 Pac. 1183; Meador v. Manlove, 97 Kan. 706, 156 Pac. 731, closely parallel to the present case; Cathcart v. Myers, 97 Kan. 727, 156 Pac. 751.)
3. The defendant argues that a will cannot operate as a conveyance of land, and cites Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769. Three opinions were written in that case: the first was published in 98 Kan. 444; the second, in 102 Kan. 104; and the third, in 102 Kan. 619. The controversy there concerned the homestead character of devised land occupied by remaindermen. The land had been occupied by the testators as their homestead. Creditors were seeking to subject the land to the payment of the testators’ debts. The ramaindermen claimed that the land came to them by conveyance from testators, who then occupied it as a homestead, and was, therefore, not chargeable with the testators’ debts. The ruling was that the will did not convey to the remaindermen the homestead character of the land. That is not the present case; and Postlethwaite v. Edson cannot be extended to cover it.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
Judgment was rendered in favor of the defendants in an action to enjoin them from opening a public highway. The plaintiffs appeal.
The board of county commissioners of Scott county, on a petition signed by fifteen householders of that county, and by one householder of Logan county, established a road in the former county, fifteen or eighteen miles from Scott City. Of the fifteen petitioners from Scott county, eleven lived in Scott City. The petition was first heard on September 4, 1916, which was a legal holiday. (Gen. Stat. 1915, § 5077.) There were a number of postponements, but final action was taken on December 9, 1916, when the road was established and ordered opened. The county commissioners found that the petition was a legal one. Damages were awarded to the plaintiffs, and they appealed from that award to the district court, where the matters involved therein were determined. ■ Subsequently, this action was brought., and on the trial the court made findings of fact and conclusions of law as follows:
“FINDINGS of fact.
“The. Court finds that prior to the bringing of this action, the plaintiffs and each of them had made claim for damages by reason of the laying out and establishing of the road involved in this action, said claims for damages being regularly made to the Board of County Commissioners of Scott County, Kansas; that afterwards the plaintiffs herein, being •dissatisfied with the damages allowed by the Board of County Commissioners of Scott County, Kansas, appealed therefrom to the District Court.
“CONCLUSIONS OF LAW.
“The plaintiffs having filed claim for damages, and having appealed from the award of damages under said claims, they are as a matter of law estopped from bringing this action to enjoin the laying out and opening of said road.”
1. The plaintiffs question the validity of the petition on which the board of county commissioners acted. It is argued that the petition did not comply with the law, because it was not signed by twelve householders of the county residing in the vicinity of the road to be established. (Gen. Stat. 1915, §8756.) Eleven of the petitioners lived in Scott City. The road was fifteen or eighteen miles away. Did the petitioners reside in the vicinity of the road ? The court must take judicial notice of the fact that a number of the western counties of this state, including Scott county are sparsely populated. It follows that in that county the vicinity of the road may be a number of miles therefrom. Vicinity does not mean a fixed area; it is a relative term, and what is the vicinity of the particular place under one set of circumstances may not be such under other circumstances. While the number of miles may be many, present-day methods of transportation make the time used in traveling over them comparatively short.
This court cannot say that a householder living fifteen miles away from a proposed road in Scott county does not live in the vicinity thereof.
2. The plaintiffs contend that the action of the board of county commissioners was void for the reason that the board first acted on the petition on a legal holiday, labor day. This contention is based on the assumption that courts and officers cannot legally act on that day. The assumption is unwarranted. The designation by statute of a day as a legal holiday does not invalidate official or judicial acts performed on that day, unless the statute expressly or by clear implication prohibits the performance of those acts. (Note, 19 L. R. A. 320; Note, 10 L. R. A., n. s., 791; Note, Ann. Cas. 1916 E, 847; 21 Cyc. 440, 445; Selders v. Boyle, 5 Kan. App. 451.) The statute making the first Monday in September a legal holiday neither expressly nor impliedly prohibits any court or officer from acting on that day.
3. The plaintiffs cannot question the validity .of the proceedings for laying out the road, for the reasons stated in Wilson v. Cloud County, 90 Kan. 107, 132 Pac. 1176, where this court said:
“Where a landowner appeals to the district court from the allowance of a claim for damages for the laying out of a .road through his land he thereby affirms that his land has been taken and damaged by the laying out of the road, and he can not afterward be heard to say that the road was not in fact laid out.” (syl.)
The judgment is'affirmed.
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The opinion of the court was delivered by
Mason, J.:
The Santa Fe Railway Company, in connection with its water service, constructed a well of masonry on a frame foundation resting on the bed of the Walnut river. The well was twelve feet in diameter and twenty-five feet high, and was some fifteen feet from the west bank when the river was low. High jvater had resulted in the cutting away of the bank so that this distance was increased to about twenty feet, or, according to one witness, to fifty or sixty feet. The water around the well was some twenty feet deep, the current being very rapid. Willie Brown, seventeen years of age, was drowned while assisting a party of employees of the railway company who were removing the driftwood that had accumulated against the well. His mother, as administratrix, recovered a judgment against the company, and it appeals.
1. The defendant asserts that the boy'was not an employee of the company, but a mere volunteer, and that there was no evidence to the contrary. One witness testified to this: During the forenoon of the day of the drowning the-foreman in charge of the work said they would have to have a boat in order to get the drift away. The witness told him that Willie Brown had a boat, and suggested that he get him. He then saw Willie and told him there was a chance to get a job, advising him to see the foreman. Afterwards he saw the boy talking with the foreman, but could not hear what was said. Another witness gave testimony to this effect: In the afternoon of the same day the boy was at work with the railroad men. He would take the end of a rope from- the west shore and give it to a man on the well, who would fasten it to a part of the drift, which would then be pulled away, this operation being repeated several times. Finally, the foreman told the boy to go to the well and get the workman who was there, saying that they would then quit. The boy undertook to do so, but the well fell over just as he was reaching it, and the workman jumped into the boat, which was drawn into the vortex and half filled with water. The man and the boy jumped out, or were thrown out, and the boy was drowned. Some of this testimony was contradicted, but its credibility was for the jury, and it warranted the inference that the foreman had engaged the services of the boy.
2. The foreman testified that he had been in the water service of the company for twenty-five years; that he had jurisdiction of that service from Arkansas City to Purcell and Shawnee — about 800 miles; and that he hired and discharged the men under him, but that a rule of the company forbade the employment of minors without the written consent of their parents or guardians. The point is made in behalf of the company that even if the foreman did undertake to employ Willie Brown his act was not binding on the company, because of this rule. If the point were otherwise good, it might be met by the suggestion that the employment of the boy was within the apparent scope of the foreman’s authority (Townsend v. Railway Co., 88 Kan. 260, 128 Pac. 389; 2 C. J. 567, 568; 21 R. C. L. 856), or that the foreman was authorized to employ the boy at once, notwithstanding his minority, by reason of the emergency by which he was confronted. (2 C. J. 659.) However, we deem it unnecessary to invoke either of the principles referred to. The rule of the company that when a minor is employed the written consent of the parents shall be required does not, in our judgment, prevent the relation of employer and employee being established between the company and a minor without such consent, so far, at least, as to render the company liable for an injury received' by him while working for it, caused by its failure to take such precautions for his protection as it owes to employees generally. The fact that a minor or a person below a specified age is employed in violation' of a statute on the subject, not only does not relieve the employer of the duty of exercising reasonable care in his behalf (Note, 48 L. R. A., n. s., 676), but constitutes, in itself, such negligence as to make the employer liable for an injury to which his lack of maturity contributed. (Casteel v. Brick Co., 83 Kan. 533, 112 Pac. 145; 18 R. C. L. 552-554.) A minor employed as a brakeman, contrary to a rule of the company making, twenty-one years the minimum age for that position, has been held to be entitled to the same care at the hands of the employer as any other employee. (Lupher v. Railway Co., 81 Kan. 585,106 Pac. 284.) There the brakeman had obtained the employment by professing to be of full age, a fact which obviously did not better his position, and the doubtful question on which the case turned was whether or not he had thereby lost his right to the protection due an ordinary employee. The rule that a minor shall not be employed in the service of the company without the written consent of his parents or guardian, seems rather a direction to employing agents as to methods than a limitation upon their authority. But however that may be, we hold that a minor who, without notice of such a rule, performs services for the company at the instance of the person authorized to employ workmen for that purpose, is, while so engaged, entitled to the care and protection ordinarily, due from an employer to an employee.
8. A reversal is also asked on the ground that no negligence on the part of the defendant was shown. The jury were asked what acts or omissions of the defendant caused the death of the deceased, and replied: “Negligence on part of defendant to provide necessary means for escape.” The contention is made that this finding excludes all other forms of negligence. It is to be interpreted, however, in the light of the three preceding findings, which were to the effect that the deceased had not been warned that the place where the men were working was dangerous; that he did not have as good an opportunity as the defendant to know the danger of his boat being drawn into the vortex if the well should fall; and that the defendant had a greater opportunity to know such fact by reason of former experience. These three findings show clearly that the jury were of the opinion that the defendant ought to have warned the boy of the dangerous character of the work he was doing. Therefore, this form of negligence was not cut off by their failure to include an express reference to it in their answer to the next question. (Springer v. Railroad Co., 95 Kan. 408, 148 Pac. 611.) The well was leaning upstream while the work was being done. This appears to have been due to the action of the current in undermining its foundation. Obviously it was supported by the pressure of the water against the drift wood, and when this was removed it fell against the current, which was not strong enough to hold it up without the purchase afforded by the accumulated débris. The situation was such that it could reasonably be believed that persons used to such work ought to have anticipated the result which followed, while an inexperienced boy could not have been expected to foresee it. ,The foreman testified, in effect, thát one reason why the man left on the well was chosen for that purpose was that he could swim and could take care of himself if anything happened; that he knew the boy was too young to be employed in dangerous work; that he knew this work was very dangerous, and would n’t employ a minor to do it; and that he was afraid the well would fall over. There was clearly room for a reasonable conclusion that if the boy had been warned of the likelihood of the well falling, and of the probable effect of its fall, he might have proceeded with more caution and saved himself. This is perhaps what the jury had in mind in saying that the company neglected to provide necessary means for escape. At all events, we consider the evidence as justifying the verdict against the defendant on the ground of negligence in failing to warn the boy of the danger he was incurring.
4. Complaint is made of the wording of an instruction to the effect that even if it afterwards turned out that the boy would have been saved if he had remained in the boat, but had jumped out of it at a time when it reasonably appeared to him that it was more dangerous to stay with it than to leave it, this would not relieve the defendant of liability. We do not regard it as open to the objections made.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a fire insurance policy. The plaintiff, whose farming equipment was insured by defendant, sustained a loss by fire. Defendant admitted the loss and conceded its liability, but contended that one chattel — a corn shredding machine — was excluded from the insurance by the terms of the policy. The pertinent clause of the policy, reciting what the policy did and did'not cover, reads:
“(14) $500.00 On harness, saddles, robes, blankets, whips, carriages, buggies, sleighs, wagons, including hay racks, and all other farm vehicles (excluding automobiles and electric motors). On mowers, reapers, harvesters, farm implements, tools, cream separators, milk cans, empty sacks and bags, utensils and farm machinery (excluding threshing machines and engines, gasoline and steam power engines and machines) while on or off the premises.”
The plaintiff testified that he used the corn shredder to shred his own corn and that of many other farmers; that he hauled it with an ordinary traction engine and operated it with the engine, making connections with a belt as is done in operating a threshing separator. It operated much like a separator. Plaintiff had hauled it on the road with horses, and testified that it could be operated by steam, gasoline or horse power, but he had always operated it with a gasoline engine.
The trial court held that the machine was insured under the terms of the policy.
Defendant contends that the corn shredder did not fall within the list of specified chattels covered by the policy, but was specifically excepted therefrom by the second bracketed phrase in the clause quoted above — “ (excluding . . . gasoline and steam power ." . . machines).” With this contention a majority of this court is inclined to agree. A fair reading of the text of the policy shows a c'omprehensive list of the chattels which the insurance was intended to cover, and only by considerable stretching of language could any of the specified classes of chattels insured be interpreted to include the corn shredder. On the other hand, a fair reading of the text indicates that a “gasoline and steam power machine” for shredding corn, as described in the evidence, is one of the class of chattels specified in the second exclusion clause of the policy. Indeed, it is not asserted that a corn shredder is not a gasoline and steam power machine — only that it could also be operated by horses, although it never was so operated. In short, the corn shredder does not fairly appear in the list of chattels included, and it does fairly appear in the list of chattels excluded.
A secondary matter was an item for the destruction of the belt which conducted the power from the engine to the shredder. The belt was a mere incident to the effective use of the engine and machine. It pertained to both of them, and as both the engine and machine were excluded from the insurance by the plain terms of the policy, the item pertaining to the belt must likewise be excluded.
The judgment of the district court is reversed, with instructions to deduct the items allowed for the shredder and belt from the amount of the judgment awarded'to the plaintiff.
Johnston, C. J., and Burch and Mason, JJ., dissent.
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The opinion of the court was delivered by
Mason, J.:
The Union Pacific Railroad Company brought ejectment against Herman Theden and Anna Theden for tracts of ground which formed outside portions of the four-hundred-foot strip granted by congress as a right of way to a railway corporation of which the plaintiff is the successor in interest. Neither the grant nor the plaintiff’s successorship is disputed, but the defendants rely upon facts which they claim.show that the railroad’s title and right of possession to the tract in controversy have been lost by abandonment and estoppel. A demurrer to the evidence introduced in support of this contention was sustained, and they appeal.
The evidence on which the defendants relied tended to prove these facts, among others: For thirty years or more the tract in controversy had been occupied by dwellings, orchards and other permanent improvements placed there by persons having a record title to the ownership except for the railroad grant. Adjacent parts of the original right of way had been used for public streets. The plaintiff maintained a fence on each side of its track 150 feet distant therefrom. It has made conveyances of portions of the 400-foot strip adjoining the tract in controversy. It has paid for conveyances of other tracts similarly situated. Defendant Herman Theden purchased a part of the tract held by him in 1899, after having been in possession of it for years as a renter. He then knew .of the railroad company having fenced the occupied right of way, leaving this on the outside, and of near-by buildings being located on the outer portion of the 400-foot strip. He did not know of the plaintiff’s claim until 1904, when it for a time asserted it, but shortly afterwards paid him $800 for his orchard.
1. Decisions of the supréme court of the United States have settled these propositions: A railroad company to whom a right of way has been granted by the general government “is not at liberty to alienate any part of it so as to interfere with the full exercise of the franchises granted.” (G. Trunk R. R. Co. v. Richardson et al., 91 U. S. 454, 468.) By making the width of the granted right of way 400 feet, congress is deemed to have conclusively determined that width to be necessary to the purposes of the grant. And as the owner of the franchise cannot through affirmative action diminish its scope by conveying to an individual a permanent right of possession to any part of such 400-foot strip, it cannot accomplish the same result by indirection and inaction by suffering such individual to occupy a part thereof for the period of the local statute of limitations, notwithstanding the whole tract may be amenable to the police power of the state. (Northern Pacific Ry. v. Townsend, 190 U. S. 267.)
The' defendants maintain that their view is not in conflict with any controlling decision, and that it is supported by a decision of the United States circuit court of appeals (Union Pac. R. Co. v. City of Greeley, 189 Fed. 1), an appeal from which was voluntarily dismissed by the appellant. (231 U. S. 757.) It was there decided, by a divided court, that, as against a city and public service corporation having the power of eminent domain, the company could be estopped by its conduct from asserting a right to the possession of. a part of the original right of way which it had permitted to be used by them under such circumstances as to make its demand against them inequitable. The decision has a tendency to support the theory of the defendants, but is not directly in point because of the public character of the use to which the tracts had been and were to be put — a feature of the case which was treated in the majority opinion as important, if not controlling.' Of this phase of the matter it was said in one of the cases already cited:
“Of course, nothing that has been said in any wise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusiye right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.” (Northern Pacific Ry. v. Townsend, 190 U. S. 267, 272.)
Whatever may be the rule as to public and quasi-public bodies capable of acquiring a right of occupancy by condemnation, we think that, the situation being such that the railway company cannot by contract or submission to an adverse possession permanently divest itself of its rights with respect to any of the 400-foot strip granted by congress, it cannot accomplish that result (except by virtue of a federal statute) by abandonment or by the operation of equitable estoppel.
2. It remains to consider the effect of the act of congress of June 24, 1912, known as the Norris act, containing these provisions:
“That all conveyances or agreements heretofore made by the Union Pacific Railroad Company, or the Union Pacific Railway Company, or Union Pacific Railroad Company, or the Leavenworth,N Pawnee and Western Railroad Company, or the Union Pacific Railway Company, Eastern Division, or the Kansas Pacific Railway Company, or the successors or assigns of any of them, of or concerning land forming a part of the right of way of the Union Pacific Railroad Company granted by the Government by the Act of Congress of July first, eighteen hundred and sixty-two, entitled ‘An act to aid the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean and to secure to the Government the use of the same for postal, military, and other purposes’; and also all conveyances or agreements heretofore made by the Union Pacific Railroad Company, or the Union Pacific Railway Company, or the Denver Pacific Railway and Telegraph Company, or the successors or assigns of any of them, of or concerning land forming a part of the right of way between Denver, Colorado, and Cheyenne, Wyoming, of any of said companies granted by or held under any Act of Congress, and all conveyances or agreements confining the limits of said right of way, or restricting the same, are hereby legalized, validated, and confirmed to the extent that the same would have been legal or valid if the land involved therein had been held by the corporation making such conveyance or agreement under absolute or fee-simple title.
' “That in all instances in which title or ownership of any part of said right of way heretofore mentioned is claimed as against said corporation, or either of them, or the successors or assigns of any of them, by or through adverse possession of the character and duration prescribed by the laws of the state in which the land is situated, such adverse possession shall have the same effect as though the land embraced within the lines of said right of way had been granted by the United States absolutely or in fee instead of being granted as a right of way. ■
“Sec. 2. That any part of the right of way heretofore mentioned which has been, under the law applicable to that subject, abandoned as a right of way is hereby granted to the owner of the land abutting thereon.” (Part 1, 37 U. S. Stat. at Large, p. 138, ch. 181.)
It has been- determined that the paragraph referring to the loss of rights through adverse possession is not retroactive, and that in order for the company’s title to be extinguished by a state statute of limitation the entire period fixed must elapse subsequent to the federal enactment quoted. (Un. Pac. R. R. v. Laramie Stock Yards, 231 U. S. 190; Un. Pac. R. R. Co. v. Snow, 231 U. S. 204.) These decisions were not based on the view that the mere letter of the statute showed a purpose that its operation should be prospective only. On the contrary, the .opinions explicitly disclosed that the literal terms of the act were regarded as indicating an intention that it should operate at once upon conditions then existing — that to reach the conclusion adopted it was necessary to invoke the rule of construction that “Courts will not . . . enforce a literal interpretation when by so doing antecedent rights are' affected or human conduct given a consequence it did not intend. Such a purpose the courts refuse to assign to the legislature unless compelled by language explicit and imperative.” (p. 213.)
The second section of the act, by.referring to any part of the right of way which “has been abandoned,” instgad of “shall have been abandoned,” may likewise be regarded as intended to operate on conditions already in existence, if read literally. The mere tense of the verb, however, is rightly considered of little importance in such a situation. We regard the reasoning of the cases cited as compelling such ah interpretation of this section as will make its operation wholly prospective. These considerations require a decision against the defendants, whether or not the facts on which they rely would otherwise sustain their claim on the ground of abandonment or estoppel.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:.
This case presents the one question as to the proper interpretation of a clause in the will of Kathryn E. Mills. This will contains about thirty bequests and devises and was drawn by the.testatrix. In eleven of these, provision was made'that in case of the death of the beneficiary the devise or bequest should revert to the estate. In onp paragraph was the following:
“To my uncle Benson S. Bennett, Baldwin, Kansas, three thousand dollars, said amount, I desire to be used in purchasing a home and to belong to last member of family living at home, unmarried, after death of parents. Also I desire during the lifetime of my uncle that he may receive the rent from store building,- 429 Kansas ave., Topeka, Kansas, after all necessary expenses are paid — at his death same to revert back to estate.”
A subsequent provision is in the following language:
“To Orphans’ Home As's’n, Topeka, Kansas, I give and bequeath all that remains of my estate, real estate to be sold as seems advisable, retaining 429 Kansas ave., until last, and when all claims are paid, amount to be turned over to the board of directors, Methodist minister, and J. Groll to be two members of this board and consulted as to best way of using this bequeath, for advantage of said home. I desire two rooms set aside for older grown up orphans needing aid.”
The defendants claim that the provision of the will first quoted passed the title of the real estate in question to the estate of the decedent, subject to a life estate in the uncle, and that the subsequent provision was thereby rendered nugatory..
The old rule is invoked that the first taker in a will is preferred, and that a clause in a will cannot be cut down by a subsequent uncertain or ambiguous clause.
The case was submitted on agreed facts and documentary evidence. The learned counsel for the defendants urges that when the testatrix used the words “revert back to estate” their legal effect was to vest the fee in her heirs, and he asks:
“Can a testator will part of his estate to one or more persons, a definitely described property to his estate, and the remainder to "a residuary legatee or devisee? If so, what becomes of the specific property devised to his estate?”
Attention is called to the statute (Gen. Stat. 1915, § 11808) providing that lands devised to one for life, and after his death to his heirs in fee, shall be construed to vest a life estate in the former and a remainder in fee in the latter. Counsel also contends that a devise will not be cut down by a subsequent uncertain or ambiguous clause, and it is argued that a residuary clause can never cut down a previous clause which leaves no residue, and that “all that remains” cannot include what the, testatrix had already given to her estate, which means her heirs.
Whatever the force of this logic may be, it must be borne in mind that in the prior clause she was giving a life estate only to the uncle, and the clause about a reverter did not add to, nor detract from, what she was giving, or what she was retaining. All her estate not given remained hers, and no mention of a reverter was necessary. But admitting for the moment that she intended that the fee should go to her heirs, still, before completing the will, she plainly expressed her wish and intention that after the uncle should pass away, and his use for this property cease, the fee should go to the plaintiff with all the rest of her remaining estate. There is no uncertainty or ambiguity about this clause. At most, it is merely in conflict with the former. What then ? Must it be utterly ignored and the former fully recognized? Or, must the intent to be derived from all the provisions in the will be followed? . In Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802, the joint devise was to the survivor, and upon, his or her death all the estate not disposed of was devised or bequeathed°to their children. Here was a direct devise to the survivor of all the estate of the one dying first, which meant of course a fee-simple title thereto, but, following this in the same clause was the further and different devise that all of such estate not disposed of by the survivor should vest in the children of the joint devisors. Instead of holding the latter clause void because in conflict with the former, it was held that the language used vested in the survivor a life estate with the power of disposal, remainder to the children. It was said that when a clause manifests a clear intention to devise a fee, this shall not be destroyed by a subsequent disconnected item attempting to reduce such fee to a less estate, unless the entire will indicates that such was the real and fixed intention of the testator, (p. 449.) This decision was adhered to in the same case when here later. (Postlethwaite v. Edson, 102 Kan. 104, Id. 102 Kan. 619, 171 Pac. 769.) A 'similar provision was likewise considered in Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132, following the Edson decision. See, also, Bryant v. Flanner, 99 Kan. 472, 162 Pac. 280, where it was said:
“Certain rules, as that a gift or devise in a will can not be cut down by a subsequent provision, have less authority and are applied with greater- discrimination than formerly. Other rules, as that the whole will should be considered and effect given to every part if consistent with a general purpose apparent from the entire instrument, are more depended on.” (p. 476.)
It was said in Brown v. Brown, 101 Kan. 335, (syl. ¶ 1), 166 Pac. 499, that “the rule to which all others are subordinate, is that the intention as gathered from all parts of the will is to be given effect.”
Of course, the first clause taken by itself would simply give the uncle a life estate, but, under the rule suggested, we have no right to overlook or ignore the subsequent clause which plainly provides that the Kansas avenue property shall be retained until all the other real estate necessary for the payment of debts has been sold, and that unless necessarily sold, it shall go to the Orphans’ Home Association. There is no conflict be tween the two provisions in the will; the one gives a life estate, and the other a fee, if the devise is not necessarily sold to pay debts. There is no difficulty in ascertaining from the language Used by the testatrix what her desire and intentions were, and as it was the disposal of her own property, her wish thus plainly indicated must be followed.
(Filed April 12, 1919.)
The judgment is affirmed.
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The opinion of the court was délivered by
Burch, J.:
The action was commenced before a justice of the peace. From a judgment in his favor the plaintiff appealed. In the district court the defendants’ motion to dismiss the appeal was denied, and judgment was again rendered for the plaintiff. The defendants assign as error the denial of the motion to dismiss the appeal.
The motion was grounded on the fact that before appealing the plaintiff caused a general execution to be issued on the judgment of the justice of the peace. Because of the appeal, the execution, was recalled. Of course, the plaintiff was not authorized to deny, by appealing, the propriety and conclusiveness of a judgment which he accepted and sought to enforce by causing an execution to issue; but the defendantsestopped themselves from raising the question. Property of the defendants had been attached in the proceedings before the justice of the peace. In the district court the defendants asked for and obtained an order of restoration, before moving to dismiss, and of course they could not deny, by a motion to dismiss, the propriety of an appeal which they had used to their own advantage.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
West, J.:
This action was to recover damages for the alleged wrongful use of funds of the plaintiff bank in making a loan to the defendant Brown.
It was alleged, in substance, that while Watson was a stockholder, director, cashier and manager of the plaintiff bank, he wrongfully entered into an arrangement with Brown to use funds of the bank to purchase hay, Brown being financially worthless; that the venture resulted in a loss to Watson and Brown of $1,500, to cover which it was alleged that they made a note for that sum to the order of the plaintiff, which represented the balance due the bank from them for money that had been wrongfully, unlawfully and dishonestly used by them jointly as indicated. It was sought to recover from the surety company also under its bond guaranteeing the honesty of the defendant Watson.
It is undisputed that during the time covered by the hay transactions, Watson was cashier and managing officer of the plaintiff bank; that Brown did carry on a considerable hay business, buying with the aid and assistance of Watson, resulting in a loss substantially as alleged. It is the contention of the plaintiff that Watson and Brown went into the hay business as a joint adventure or partnership; that the loss was the result of such relationship and dealing; that the devotion of the bank’s funds to these transactions was without the knowledge of the,bank and was by Watson concealed from it; and that Watson acted in bad faith in the matter.
Without going into the details or quoting from the evidence, it suffices to say that these assertions were vigorously denied by Mr. Watson, and on the two questions — the alleged partnership and alleged bad faith — there was evidence on which the jury might with sufficient support have found either way. They did,find, however, in favor of the plaintiff on both these questions, and there is in the record such basis for those findings that we cannot, under the familiar rule, disturb them.
It is also claimed that the verdict, which was for $1,899.26, is excessive. This also is a matter on which the testimony was conflicting. It is urged that the balance on hand for the hay account of $115.98 at the time of the trial should have been credited on the note, but it is also argued that a credit of $200 which was made on the hay account consisted of a promissory note to which Watson signed Brown’s name, and which has never been paid. It is asserted and denied that the parties agreed on the amount of the verdict in case the plaintiff should recover., but at any rate the trial court gave much attention to the motion for a new trial, and appeared to feel satisfied with the verdict as it is, and we see no sufficient reason for changing it.
The issues as between the plaintiff and the defendants, Watson and Brown, were submitted to a jury, but the alleged liability on the bond was tried by the court, and judgment was rendered for the plaintiff. It is contended that this separation of the issues was prejudicial to the surety company, but we are inclined to the view that the trial by the court after the jury had been discharged was favorable, rather than unfavorable, to the company. At any rate, no error in this respect is apparent from the record.
It is contended that as Watson, by himself and his relatives, held 43 shares of the stock of the bank, the plaintiff should have secured itself by its lien thereon, and should not call upon this defendant to reimburse it for its loss. But it must be borne in mind that before the alleged liability of Watson arising out of the hay deal was discovered by the bank, Watson sold his stock, and the surety company was paid for its contract of indemnity, and cannot ask the bank to stand aside until it recoups from some other source.
Complaint is made about the special findings, and the sufficiency of the evidence in the jury part of the trial, but we can discover no merit in this complaint.
It is argued that as Mr. Bishop was a director and employee » of the bank, and had or should have had knowledge of the hay transactions appearing upon the books, the bank was bound thereby. But* the testimony fails to show that Mr. Bishop had much to do with the management of the bank, or knew very much about these transactions, Mr. Watson being the alert and active man who was steering its financial course.
It is urged that the bond contained a provision that no claim thereunder should be payable if filed with the company after six months from the expiration or cancellation of the bond.
The terms of the bond on this point are:
“Now therefore . . . it is hereby agreed that subject to the obligations imposed on the employer by this bond and the warranties aforesaid, which are part hereof, . . . the company shall, at the expiration of three months next after proof of a pecuniary loss, as hereinafter men tioned, has been given to the company, reimburse the employer to the extent of the sum of Five Thousand Dollars, and no further, for such pecuniary loss of moneys, securities, or other personal property belonging to the employer, as the employer shall have sustained by any dishonest act or acts committed by the employee in the performance of the duties of the office or position in the service of the employer hereinbefore referred to, or of such other office or position as the employee may be subsequently appointed to or called upon to fill by the employer as such duties have been, or may hereafter be stated in writing by the employer to the company, and occurring during the continuance of this bond, and discovered at any time within six months after the expiration or cancellation of this bond, or in case of the death, resignation or removal of the employee prior to the expiration or cancellation of the bond within six months after such death, resignation or removal. ... . Provided, that no claim shall be payable hereunder that shall be filed with the company after the period of six months from the expiration or cancellation of this bond.”
This is the kind of contract the parties made for themselves, and we cannot change it.
It has been held that this six-months provision does not amount to a limitation as to. the time of suit. (14 R. C. L. § 580.) In Guarantee Co. v. Mechanics’ Sav. Bank & Trust Co., 80 Fed. 766, it was held by Justices Taft, Lurton and Hammond, that—
“A provision in the bond limiting the risk to a loss sustained and discovered during the continuance of the bond, and within six months from the employee ceasing to be in the said service, does not bind the company for any loss discovered, more than six months after the expiration of the bond, whether the employee had then quitted the service of teller or not.” (syl- ¶ 12.)
We cannot regard the six-months provision in this bond as governed by the same rule applicable in Republic County v. Guaranty Co., 96 Kan. 255, 150 Pac. 590; McClure v. Construction Co., 97 Kan. 695, 156 Pac. 692; or Asphalt Co. v. Building Co., 99 Kan. 567, 162 Pac. 299. Hence, we are constrained to hold that the company is not liable, and the judgment as to it is reversed. This ruling makes it unnecessary to notice certain other complaints made by the" bonding company. The judgment as to the defendant Watson is affirmed.
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The opinion of the court was delivered by
PORTER, J:
The defendant appeals from a judgment in plaintiff’s favor for damages caused by smoke, fumes and gases from the defendant’s smelter, which destroyed plaintiff’s crops and killed or- inj ured his live stock.'
The plaintiff was in possession of a 12-acre tract of land adjoining defendant’s smelter on the east, which he had rented for a number of years, and upon which there was growing an acre of strawberry plants, a number of bearing grapevines, and various other crops. On another tract near by, occupied by plaintiff as a residence, there were bearing peach trees and a garden. Three or four blocks' west of the smelter plaintiff owned several lots upon which there were growing strawberry plants. Another tract of 40 acres was used by plaintiff as a pasture for his horses and other live stock. The petition alleged and the plaintiff’s evidence tended to prove that smoke and fumes were blown over each of these tracts at different times, and that smelter smoke contains sulphur, arsenic, lead and zinc in various' combinations, all of which are liable to poison animals, and to destroy growing vegetation.
The special findings were in favor of plaintiff’s contentions. There are nine specifications of error, several of which are presented and argued together. Upon a careful examination of the 200-page abstract we are unable to concur in the defendant’s claims numbered 1, 2, and 5, that there is no evidence to support certain findings of the jury with respect to the damages sustained by the plaintiff, or to sustain the finding that these damages were caused by fumes and gases that came from the defendant’s smelter. In order to answer these contentions of the defendant it would be necessary for us to weigh the testimony. The third and fourth points urged are that certain findings are “against the clear preponderance of the evidence,” and it is quite manifest that these cannot be considered, because they require the court to weigh the conflicting evidence.
It is insisted that because plaintiff’s evidence showed that his strawberry plants were in excellent condition when they were mulched down in the fall of 1916, the jury were not justified in arbitrarily saying that they must have been injured by something from the smelter because they did not produce a good crop in the year 1917. The facts referred to furnished merely a basis for an argument to the jury. It is argued that defendant’s demurrer to the evidence should have been sustained because of the total absence of any evidence that the animals died from any poison that came from the smelter, and because of the positive testimony of plaintiff’s two veterinarians, on cross-examination, that in their opinion the horses and mares did not die from smelter poisoning, but from other diseases. It is true that the veterinarians were.careful not to state their positive opinion that the animals had died from smelter .poisoning. They were not called as witnesses for the purpose of testifying to their opinion upon the disputed fact, but of showing that fumes given off by smelters sometimes contain sulphur and arsenic, lead and zinc, and their combinations, and that any and all of these might poison animals. It was for the jury to say, in view of all the testimony, including that of the experts, whether or not the symptoms exhibited by the animals were caused by smelter poisoning.
In Wichers v. New Orleans Acid & Fertilizer Co., 128 La. 1011, it was held:
“A plaintiff sustains the burden of proof when he shows that at the time his plants were destroyed and damage suffered, the defendant’s factory was freely emitting- fumes, gases, and acids, which are destructive-of 'plant life, and that the wind was blowing the fume, etc., towards his premises, some 900 feet distant, and tt/at there was no other known agency of destruction existing in the vicinity.” (syl. ¶ 2.)
(See notes in the same case in 1 N. C. C. A. 697.)
If there was inconsistency in the statements and testimony of the experts called by the plaintiff, the defendant would not be entitled to have the demurrer sustained for that reason. The effect of their testimony was properly submitted to the jury. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.)
It- is said that the court erred in permitting the veterinarians to testify that in their opinion the stock in the vicinity of the smelter had been made sick from smoke and fumes from the smelter, without proof that the smoke and fumes contained deleterious substances. The contention is that the evidence was incompetent until there had been expert evidence that zinc, lead and sulphur emanated from the stacks. We do not think it was necessary to produce testimony to show the precise nature of the gases and fumes which came from the stacks of the defendant’s smelter. There was considerable circumstantial evidence which tended to show that at some seasons of the year, when the prevailing winds were in one direction, the crops on lands opposite thereto and in the vicinity of the smelter were affected or destroyed by the fumes; and that these fumes had an effect upon the health of live stock. It is said that it was error to admit evidence as to the condition of other premises and the experiences of . other farmers located at varying distances and in different directions from the smelter, but we think this was competent for the purpose of proving what the defendant insists was not proven; that is, that whatever the fumes consisted of, they were poisonous and deleterious to live stock.
During the trial the plaintiff called a witness who lived about a mile from the smelter, and he was asked whether he had had a conversation with Mr. Hinkle, who was in the smelter office, and who sometimes went and examined claims of this character against the company. The witness testified that Mr. Hinkle came to his pasture and looked after his stock in 1916, that “the smoke was very bad there, but not so bad .as lots of times, and Mr. Hinkle told me that if your stock won’t eat it they’ll breathe them, and — .” The answer was interrupted by an objection which was overruled. The witness further testified that the conversation was about his young mules, and that he had no conversation with Mr. Hinkle about cattle. The admission of this testimony is urged as reversible error. It is said there was no proof that Hinkle was an officer of the company or that he had authority to make any statements to bind the company; and the usual authorities are cited in support of the contention that the declarations of an agent, in order to bind his principal, must not only come within the scope of the agent’s authority, but must also be made by the agent while he is transacting his principal’s business and be connected therewith. We think that whether the evidence was admissible or not, all Mr. Hinkle was shown to have said could not have prejudiced defendant or affected the merits of the case.
We find no error in the record, and the judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Edgar Eames, a boy not quite nine years old, while walking home from school along a country road, was killed by being run over by an automobile going in the same direction, driven by Frank Clark. The boy’s father, Fred L. Eames, brought this action against Clark for damages on that account. A jury trial resulted in a verdict and judgment for the defendant, and the plaintiff appeals.
1. The petition alleged that the defendant was negligent in driving too fast and in failing to obey the statute requiring him to reduce his speed to eight miles an hour while undertaking to pass the boy. In making his case in chief, the plaintiff introduced evidence tending to show that the car was going from twenty-five to thirty miles an hour; that as it approached the boy both were on the west or right-hand side of the road, which was wide enough for three cars to pass — that the smooth, beaten part of the road was a little more than thirty feet wide; that the boy started to the other side of the road, and the defendant did the same, the collision occurring on the east side; that no signal was sounded just before the accident; and that the defendant shortly afterward pointed out to a witness the tracks his car had made, and they showed it had skidded seven or eight feet.
The defendant testified that as he approached the boy, he sounded his horn; that the boy looked back and saw him, and at once turned to the right and got out of the road; that the boy stepped back into the west or right-hand track of the road and continued to walk south in that track; that as he came nearer he slowed down his machine, and when he saw the boy intended to hold the road, being then twenty or thirty feet from him, turned his car to the left and got over in the east track; that at this time he was running between seven and ten miles an hour, and when he got over into the east track about six or eight miles; that just as he was about to pass, the boy ran diagonally across the road in front of the car; that as soon as he saw him running he threw on the brakes and did everything he could to stop the car; that, thinking the boy might get across, he wheeled his car to the right, but that the boy struck the car between the left front fender and spring; that the boy had run ten or fifteen feet from the place where he was walking to where the car struck him; that the hind wheels slid or skidded eight or ten feet when he applied the brakes, and when he saw he had struck the boy he released the brakes to avoid shoving or rolling him if the hind wheel should go over him ; that the car ran from twenty to thirty feet past the boy, when he applied the brake and stopped it; and that the car was not going over five or six miles an hour when it struck the boy.
In rebuttal, the plaintiff produced a witness who was in the automobile business — had operated automobiles for eleven years and was familiar with their speed — and asked him this question:
“-Now, Mr. Lamb, assuming- that on a dry road, practically level, an automobile weighing some thirty-six hundred pounds, under control, equipped with good brakes and otherwise in fair working condition and in running operation on said road, and the operator of the car immediately upon discovering a child in the highway throws out the clutch and puts on the brake in an attempt to stop the car, going at the rate of from six to eight miles an hour, how many feet, in your opinion as an expert, would the said automobile go before it could be brought to a complete stop?”
An objection was made upon various grounds, and was sustained, the judge saying: “I don’t think this is rebuttal testimony.” The witness, if permitted, would have given the answer, “Two feet.” A second question was then asked, having the same beginning, but concluding thus ■;
“And skidded from eight to ten feet; that thereafter, he ran over the child, and, in so running over him, released the brake, and immediately after running over said child the car skidded for an additional space of thirty feet before it could be brought to a full stop.; at What speed, in your opinion as an expert, was the said car going at the time that said clutch was thrown out and said brakes applied?”
An objection to this question upon the ground, among others, that it was not rebuttal, was made and sustained. The answer would have been, “Thirty to thirty-five miles an hour.” These rulings are complained of.
It is true the ultimate purpose of the excluded evidence was to support the claim of the plaintiff that the car was going too fast, and the rate of speed was one-of the matters sought to be established by his evidence in chief. But in offering the expert witness he was undertaking to counteract or impair the effect of the defendant’s testimony, not by merely producing cumulative evidence — more evidence of the kind he had already introduced — but by showing the falsity of the specific testimony attacked. This he could not have done sooner, for he could not anticipate the details of the defendant’s narrative. It is true that the original evidence in behalf of the plaintiff included statements with regard to tlie speed and action of the car, but only the defendant could know positively just when the brake was applied and taken off, and what movements had followed. When his version of these matters was laid before the jury, its interpretation as bearing upon the question of speed, by one competent to form a judgment, became of obvious importance. Moreover, the evidence offered tended to. contradict the testimony of the defendant by showing it to be inconsistent with itself. “For matters properly not evidential until the rebuttal, the proponent has a right to put them in at that time, and they are therefore not subject to the discretion ary exclusion of the trial court.” (3 Wigmore on Evidence, § 1873, p. 2477.) We conclude that the evidence was admissible in rebuttal.
In the appellee’s brief it is argued that the hypothetical questions were properly ruled out because they contained the assumption that the road at the place in question was “practically level,” whereas several witnesses had testified that it was a little downhill. One of them said she thought it was “a little bit downhill” — that it was nearly level — almost level. We do not think the variance between almost or nearly level and “practically level” is sufficient to warrant an approval of the. rejection of the evidence, inasmuch as the attention of neither court nor counsel appears to have been directed to it at the time, the ruling having been placed upon- the ground already discussed. A further objection is urged.in the brief to the second of the two hypothetical questions, on the ground that it assumed that the car skidded after striking the boy, the evidence being that the brake had then been released and that the car rolled until the defendant again applied the brake and stopped it. This was such a material variation as to warrant a rejection of the question.
2. The court refused to give an instruction to the effect that it was the duty of the defendant on approaching the boy to reduce his speed to a rate not exceeding eight miles an hour and not to exceed such speed until entirely past him. The statute then in force (Gen. Stat. 1915, § 506, superseded by Laws 1917, ch. 74, § 5) contained this provision:
“Upon approaching- railroad crossing- and intersection of highways, or a bridge or a sharp curve or a steep descent^ or another vehicle or an animal or person outside of any village or city, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour and shall not exceed such speed until entirely past such intersection, bridge, curve, descent, vehicle, animal or person.”
It has been held that this statute is not to be construed as forbidding the driving of an automobile at a higher rate of speed than eight miles an hour while passing a horse-dr,awn vehicle going in the same direction. (State v. Pfeifer, 96 Kan. 791, 153 Pac. 552.) This decision was possibly interpreted by the trial court as nullifying the statutory requirement that the speed of a motor vehicle shall be reduced to eight miles an hour when passing a person on foot in the highway. It was not so intended, and the reason given for it — that the statute con-. templates the passing of vehicles going in the same direction, and this would be’ rendered practically impossible by a speed limit of eight miles — does not apply to the case of a pedestrian. We hold the omission to instruct upon the effect of this part of the statute to have been erroneous.
3. Complaint is also made of the refusal of the court to give an instruction reading:
“You are further instructed that children of tender age are not held to the same strict accountability as persons of full age and experience, but are required to.exercise such prudence and care as persons of their age, experience, knowledge and intelligence are ordinarily expected to exercise under like circumstances.”
The jury were properly instructed as to the additional precaution on the part of the defendant made necessary by the boy’s youth, but the only instruction they were given with regard to the question of the boy’s contributory negligence as affected by his age was in these words:
“If the jury find and believe from the evidence that he was of sufficient age, intelligence and understanding as to know that he should get out of the highway in case of the approach of an automobile and that if he did not do so that he was liable to be struck and injured, and if he did not do so, if he knew or might know that the automobile in question was coming, by the exercise of proper care, he would in such case be guilty of contributory negligence under other instructions herein defining contributory negligence.”
This instruction, in our judgment, did not cover the field indicated by that requested. It limited too closely the effect of the boy’s immaturity. It is also open to objection as assuming that if his mind was mature enough to appreciate the danger of the situation, it was his duty to get out of the highway on ,the approach of the automobile, a question involved in the next assignment of error to be considered.
4. The court gave the following instruction, of which complaint is made:
“You are instructed that it is the duty of a foot passenger traveling upon a public highway outside of a city or village when he knows of the approach of an automobile coming in the traveled and beaten track upon such highway to step aside'and out of such traveled and beaten track to avoid and prevent injury to himself when such automobile is approaching and passing him, and if he does not step aside when he knows such automobile is coming and approaching him to avoid being struck by the same, and is struck and injured in such case, he, would be guilty of contributory negligence and could not in such case recover for his injuries even though the party running and operating such automobile was guilty of negligence upon his part in the operating and running of such automobile.”
Foot travelers have equal rights upon the highway with the drivers of vehicles, and the usual statement of their obligation is that they must use what amounts to reasonable care in the particular circumstances. (Note, 51 L. R. A., n. s., 992.) It may be that as a matter of law reasonable care requires a pedestrian who is about to be overtaken by an automobile to step to one side and allow it to pass, so that it will not have to turn out and go around him. And if the road (or the traveled portion) is so narrow that one or the other must get outside of it in order that the car may pass, doubtless this should be done by him who is on foot, because he can do it the more easily. But where the beaten track is wide enough for several vehicles to pass (as seems to have been the case here) there can be no hard and fast rule that pedestrians must get completely outside of the highway or of the traveled portion of it. It may not have been the intention of the trial court to announce such a rule, but the language used is sufficiently open to that interpretation to suggest its modification upon a new trial.
A number of other requested instructions were either covered by the general charge or relate to the matters already discussed. An objection to a question asked of a witness on cross-examination seems to have been properly sustained, as the matter referred to had not been touched upon in the direct examination.
The judgment is reversed, and the cause is remanded for a new triak
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The opinion of the court was delivered by
Hatches, C.:
This is an appeal from a verdict and judgment rendered in an action for damages resulting from a motor vehicle collision at a street intersection.
There is no dispute as to the pleadings. The facts may be summarized.
The plaintiff, Robert C. White, was returning home from work on the evening of December 27, 1960, at about 6:40 P. M. in the city of Wichita, Kansas. Freezing rain or mist had been falling. He turned left on 31st Street South and proceeded south on Everett Street approaching the intersection at 33rd Street.
At the same time a Mr. Fred Hicks was driving a bus for the defendant, the Rapid Transit Lines, Inc. Upon reaching 33rd Street South Mr. Hicks turned east and proceeded toward the intersection of Everett and 33rd Street.
The defendant’s bus collided with plaintiff’s automobile at the intersection. The bus struck the right side of plaintiffs automobile “almost dead center.”
The plaintiff testified that because of a playground located on the east side of Everett Street extending from 31st Street to 33rd Street he was proceeding south at a leisurely speed of from fifteen to twenty miles per hour. The first time he observed the bus approaching from his right, or from the west, was when he was twenty-five or thirty feet from the intersection. The bus was traveling at a speed of thirty miles an hour or more. He applied his brakes but his car started skidding.
The testimony of Mr. Hicks, the driver of defendant’s bus, is abstracted in narrative form. We quote:
“He approached the intersection of 33rd and Everett Streets at a speed of approximately 15 to 20 miles per hour. And when he was approximately 45 to 55 feet west of the west curb line of Everett Street, and before he could see past the house that was located on the northwest comer of the intersection, he observed the reflection of car lights in the intersection. Whereupon, he began to check his speed by applying his brakes and had reduced his speed to approximately 10 or 12 miles per hour by the time he could see north on Everett Street. At that point he observed a southbound automobile 50 to 60 feet north of the intersection, traveling at a speed of 30 to 35 miles per hour. Whereupon, Mr. Hicks applied his brakes with full force. . . .”
The plaintiff suffered personal injuries. The muscles, ligaments and cartilage of his right knee were bruised and tom.
The jury returned a general verdict in favor of the plaintiff. The defendant has appealed.
The appellant first contends that the trial court erred in failing to sustain its demurrer to appellee’s evidence and in failing to direct a verdict in favor of appellant at the close of all of the evidence. The contention is based on the premise that the evidence shows contributory negligence on the part of appellee as a matter of law.
We do not agree with appellant’s contention.
The appellee testified that he approached the intersection at a leisurely speed of fifteen or twenty miles per hour and that the driver of the bus approached the intersection at a speed of thirty miles an hour or more. The driver of the bus testified that he approached the intersection at a speed of fifteen or twenty miles per hour and that the appellee approached the intersection at a speed of thirty to thirty-five miles per hour.
The jury had a right to assume that approaching the intersection at a speed of thirty miles per hour or more constituted negligence under the existing circumstances. The testimony of the only two eye witnesses was in direct conflict. It was for the jury to determine which of the witnesses it was to believe.
The determination of a controverted question of fact involving the credibility of witnesses and the truth of their testimony is ordinarily a question for the jury.
In Wheeler v. Jackson, 132 Kan. 742, 297 Pac. 427, we stated at page 744 of the opinion:
“. . . Although defendant produced more witnesses in support of his claim as to signals than did the plaintiff in his support of her contention, it does not require the acceptance of the testimony of defendant’s witnesses to be the truth. It is not necessary to cite authorities to uphold the rule that controverted questions of fact involving the credibility of witnesses are questions for the jury. ...”
The rule was again stated in Phoenix Indemnity Co. v. Zinn, 177 Kan. 689, 696, 281 P. 2d 1065 where it is said:
“. . . The trier of the facts is not constrained or compelled to believe, or conversely, to disbelieve, any evidence so long as it is competent evidence. (1 Hatchers Kansas Digest, rev. ed., App. & Err., §§ 503, 504, p. 205; § 507, p. 206; § 508, p. 208; 2 West’s Kansas Digest, App. & Err., § 989, p. 589.)”
It is the function of the trier of the facts, not this court, to determine what testimony should be believed. We stated in Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 365, 139 P. 2d 846:
“. . . It is not for us to say what testimony should be given credence or what evidence should be disbelieved. Under the rule often announced it is the function of the trial court, not the appellate court, to weigh conflicting evidence. (Brown v. Olson Drilling Co., 155 Kan. 230, 231, 124 P. 2d 45; Earhart v. Wible Ice & Cold Storage Co., 150 Kan. 695, 698, 95 P. 2d 366; Johnson v. Voss, 152 Kan. 586, 589, 106 P. 2d 648, and Meredith v. Seymour Packing Co., 141 Kan. 244, 40 P. 2d 325.)”
The rule applicable to testing the sufficiency of evidence when challenged by demurrer has been many times repeated by this court.
In Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, 337 P. 2d 1003, we held in the first paragraph of the syllabus:
“In testing the sufficiency of evidence as against a demurrer, the evidence and the inferences that may be properly drawn thereform must be considered in the light most favorable to the party against whom the demurrer is directed and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and impartial judgment, may reach different conclusions thereon, the demurrer should be overruled and the issue submitted to the jury.”
Again in Lloyd v. Runge, 186 Kan. 54, 56, 348 P. 2d 594, it is said:
“From what has been previously stated it becomes obvious the over-all issue raised by this appeal is whether the trial court erred in sustaining the demurrer to the appellant’s evidence. On that account it should now be stated such issue must be disposed of in the light of the universal rule (Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396; and numerous other decisions to the same effect listed in West’s Kansas Digest, Appeal & Error, § 927[5], Trial, § 156 [2], [3]; Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 488, Trial § 149) that in ruling on a demurrer to evidence court’s do not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all inferences that may be drawn therefrom, and consider only such portions thereof as are favorable to the party adducing it.”
The trial court instructed the jury:
“The provisions of law governing right of way at intersection of two streets are not absolute — they are relative. This means that the duty to avoid an accident or collision at an intersection of two streets of equal precedence rests on both drivers of two vehicles approaching the intersection at approximately the same time. . . .”
The appellant contends that the trial court erroneously refused to add to the instruction the following: “. . . Neither driver may avoid the duty by presuming the other would stop or yield the right of way.”
We are of the opinion the instruction given sufficiently covered the particular issue in the case. The record discloses no evidence which would indicate that the appellee presumed the driver of the bus would stop or yield the right of way.
An instruction, although it correctly states the law, should not be given on issues not involved in the lawsuit. (Randel v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235 and Kettler v. Phillips, 191 Kan. 486, 382 P. 2d 478.)
The appellant contends that the verdict in the amount of $8,081.50 was so excessive as to indicate passion and prejudice on the part of the jury. We do not agree.
The testimony was to the effect that the appellee’s activities were materially curtailed because of the knee injury, and that there would be some permanent disability even though a successful operation was to be performed.
The only standard for evaluating the amount of damages resulting from an injury is such amount as reasonable persons estimate to be fair compensation for the injury. The law has entrusted this responsibility to the trier of facts. A reviewing court will not interfere unless the amount is so great as to shock the conscience of the court. (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321; Neeley v. St. Francis Hospital & School of Nursing, 188 Kan. 546, 363 P. 2d 438, and Kettler v. Phillips, supra.)
We find no trial errors which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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.The opinion of the court was delivered by
Fatzer, J.:
The plaintiff brought this action against four defendants to recover damages for personal injuries, charging each with concurrent negligent acts which proximately caused his injuries and damages. The district court sustained each of the defendant’s demurrers to plaintiff’s second amended petition, and the plaintiff perfected this appeal.
The parties will be referred to as plaintiff and defendants in order of their appearance in the district court, unless otherwise indicated.
• As a result of various motions to strike and to make more definite and certain, the plaintiff’s second amended petition is lengthy, containing 61 separate paragraphs which comprise 20 printed pages in the abstract. The recital in detail of the facts surrounding plaintiff’s injuries, including a great deal of evidence demanded by defendants, is highly summarized.
The plaintiff alleged that the defendant, Parsons Stockyard Com pany, and defendants Arlie Burtin and P. W. Beaman, doing business as Burtin-Beaman Commission Company, were engaged in a joint enterprise in the purchase and sale of livestock; that the defendant Frank Burt was in the employment of the commission company; that Burt was given to playing pranks involving physical force upon customers who were doing business in the stockyard area; that defendants Burtin and Beaman knew or had knowledge for over one year that Burt played pranks of a dangerous nature which might result in physical injury and pain to persons lawfully upon the premises, and the nature of such “horseplay” resorted to on at least eight separate occasions, other than the one involving the plaintiff in this action, was pleaded in detail in the amended petition.
Following the foregoing recital, plaintiff alleged that on November 19, 1957, he took a truckload of calves to the stockyard company to be sold through Burtin-Beaman Commission Company; that the calves were unloaded from his truck by employees of the stockyard company and placed in pens for sale by the commission firm; that during the course of the sale of his calves from the pens, plaintiff climbed upon a “2 by 6” wooden board affixed to the top of the cattle pen and seated himself thereon; that it was customary for cattle sellers to use that board as a seat so as to be present when their cattle were sold and thereby permit free movement of the livestock in the pen and down the alleys of the stockyard. That while plaintiff was seated in the foregoing position, the defendant Burt, in an act of “horseplay,” grasped plaintiff’s feet and lifted them into the air, causing him to lose his balance and fall from the top of the pen to the concrete floor, a distance of six feet; that defendant Burtin was in the pen when Burt grasped the plaintiff’s feet and lifted them into the air and although knowing of Burt’s propensities for playing practical jokes upon customers involving physical force, he paid no attention to Burt and made no protest to him to leave the plaintiff alone; that as a result of the fall, plaintiff suffered severe injuries which were itemized in detail.
Plaintiff first contends he alleged a cause of action against the defendant Parsons Stockyard Company on the theory of a joint enterprise with the defendants Burtin and Beaman. It was alleged that those defendants operated a joint enterprise for several years prior to November 19, 1957, and that the defendant stockyard company owned the stockyard which consisted of docks to load and unload livestock, pens covered by a roof, alleys, runways, and scales; that Burtin and Beaman occupied pens and alleyways and used the scales of the stockyard company and charged a commission for each animal sold; that when livestock was brought to the stockyard, it was unloaded at docks at the south side of the stockyard by employees of the stockyard company where it was marked for identification, and a record was made of the name of the seller, the number and type of stock and which commission firm would sell the stock, and a copy of the record was delivered to the seller and commission firm; that when livestock was to be sold through Burtin and Beaman, the same was placed in their pens; that Burtin and Beaman received bids from buyers of stock and when the stock was sold it was driven down the alleyway north to the scales maintained and operated by the stockyard company where the stock was weighed and driven into pens in the north part of the stockyard; that after the stock was weighed it belonged to the purchasers; that the employees of the stockyard company who weighed the stock prepared weight tickets and gave the same to Burtin and Beaman who, from those records, gave the seller weight tickets together with the records of the livestock company; that the seller took those tickets and records to the office of the stockyard company, located in a two-story building where Burtin and Beaman had their office, and the seller was paid by Burtin and Beaman upon presentation of his weight tickets. The purchaser was also given a carbon copy of the weight tickets. It was alleged the seller of the stock did not receive the full amount of the sale price but that Burtin and Beaman deducted therefrom yardage fees and a fire insurance premium which they paid to the stockyard company, and a commission fee which they paid to themselves. Plaintiff alleged he did not know what percent of the sale price of the livestock was charged for yardage, fire insurance, and commission, but those matters were peculiarly within the knowledge of the defendants, and further, that there was an agreement between the stockyard company and the commission firm with respect to such joint enterprise but that such facts were peculiarly within the knowledge of those defendants and he was unable to plead the agreement in any greater detail.
At the outset it should be observed that as against the defendants’ demurrers, a liberal construction should be given the plaintiff’s amended petition. It alleged the Parsons Stockyard Company and Burtin and Beaman were engaged in a “joint enterprise,” and in this court all of the parties cite and discuss authorities relating to “joint adventure.” In applying the law of negligence, there is no distinction to be drawn between joint adventure and joint enterprise. The rule is stated in 30 Am. Jur., Joint Adventures, § 56, p. 982, to the effect that although there is a distinction between the term joint enterprise as used in the law of negligence, and the term joint adventure as defined in that article, “it is clear that the parties to a joint adventure may be deemed participants in a joint enterprise for the purposes of the application of the tort rule of imputed negligence.” See, also, 48 C. J. S., Joint Adventures, § 14e, p. 870. Under the doctrine of joint enterprise or joint adventure the negligence of one participant in such enterprise or adventure may be imputed to another participant so as to render the latter liable for an injury sustained by a third person as the result of the negligence. The law considers that each is the agent of the other, and the acts of one within the scope of the enterprise or adventure may be charged against the other. (Howard v. Zimmerman, 120 Kan. 77, 79, 242 Pac. 131; Whan v. Smith, 130 Kan. 9, 11, 285 Pac. 589; Schmid v. Eslick, 181 Kan. 997, 1002, 317 P. 2d 459, and cases cited.)
It is unnecessary to define precisely the term “joint adventure,” but suffice it to say it is an association of two or more persons to carry out a single business enterprise for profit. (Whan v. Smith, supra; Curtis v. Hanna, 143 Kan. 186, 53 P. 2d 795.) A joint adventure can exist only by the agreement of the parties. (Whan v. Smith, supra.) The agreement may be found in the mutual acts and conduct of the parties. (National Bank v. Hoover, 114 Kan. 394, 218 Pac. 1003; Howard v. Zimmerman, supra; Curtis v. Hanna, supra; Grannell v. Wakefield, 169 Kan. 183, 186, 217 P. 2d 1059.) While courts do not treat joint adventure in all respects as identical with a partnership, it is so similar in its nature and in the contractual relations created thereby that the rights and liabilities as between the adventurers are governed practically by the same rules that govern partnerships. (Whan v. Smith, supra; Curtis v. Hanna, supra; Flitch v. Boyle, 147 Kan. 600, 602, 78 P. 2d 9.) The usual test of a partnership as between the parties to a joint adventure is their intent to become partners. Joint ownership of property is not essential to create the relationship; it is only a circumstance which should be considered with other circumstances. (Grantham v. Conner, 97 Kan. 150, 154 Pac. 246; Grannell v. Wakefield, supra.)
Where a petition discloses a series of correlated facts and circumstances some of which meet some one of the tests regarded as a standard for determining such relationship, under the rule as laid down in Potts v. Lux, 161 Kan. 217, 166 P. 2d 694, the existence of such relationship may be considered to be sufficiently pleaded when attacked by a demurrer. In the Potts case it was said:
“Numbered among the often approved tests to which we have referred are tíre following: Intention of parties to the contract; sharing in profits and losses; charging of losses against accumulated profits; community of control over management and direction of the business; active participation in management of the affairs of the enterprise; joint control and exercise of ownership over all or part of the business assets; participation in division of the net earnings; sharing in payment of expenses of operation; fixing of salaries by joint agreement; investment in the business of undistributed profits for the purpose of building up a substantial cash reserve; division of undistributed profits in the event of liquidation contingent upon repayment to one of the parties of cash originally invested in capital.” (l. c. 222.)
Giving the amended petition all the favorable inferences to which it is entitled and the liberal construction which we are required to give it, we are of the opinion it tends to show that by their mutual acts and conduct, these defendants were associated together in a joint adventure with equal privileges to control the method and means of accomplishing the purchase and sale of livestock for profit and to prescribe the conditions and use of the yard for that purpose. (Whan v. Smith, supra.) In reaching this conclusion, we point out that we are dealing with a ruling on a demurrer to an amended petition. In drawing reasonable inferences in favor of that pleading, we do not wish to be understood as passing upon them as true. It cannot be stated at this point just what the evidence will show the relationship to be between the Parsons Stockyard Company and Burtin and Beaman. Many of the elements of the relationship, whatever it is, may be shown by proof of surrounding facts and circumstances including proof of the agreement between these defendants. Some of the matters defendants argue should be in the petition are within the sole knowledge of the defendants. (Grannell v. Wakefield, supra.) On this point the rule is stated in 71 C. J. S., Pleadings § 10, p. 28, as follows:
“Facts peculiarly within the knowledge of the other party ordinarily may be alleged with less certainty and particularity than would otherwise be necessary, and may sometimes be omitted entirely; but the pleader should state his reasons for the omission or lack of particularity.”
The allegations of the amended petition remain susceptible to proof by substantial evidence and before a decision can be made on the merits of plaintiff’s allegations, evidence will have to be introduced to determine whether a joint adventure existed in fact between the stockyard company and the commission firm.
As previously indicated, plaintiff charged each defendant with concurrent negligent acts which proximately caused his injuries and damages. There is nothing alleged which would require us to hold that the stockyard company committed any direct negligent act which proximately caused the plaintiff’s injury. A cause of action is the wrong done, not the measure of compensation or character of the relief sought. When the pleader has stated the facts of his case, he will be entitled to recover thereon just what such facts authorized. Despite the fact that the plaintiff has misconceived the legal effect of his allegations, he should be given whatever relief the facts entitle him to. (Foster v. Humburg, 180 Kan. 64, 67, 299 P. 2d 46; Crabb v. Swindler, Administratrix, 184 Kan. 501, 504, 337 P. 2d 986; Ablah v. Eyman, 188 Kan. 665, 680, 365 P. 2d 181, 90 A. L. R. 2d 766.) Once the plaintiff has established a joint adventure between the stockyard company and the commission firm, and proved the other allegations of his amended petition, liability is imposed upon the stockyard company, not by concurrent acts of negligence, but through the relationship of joint adventure or joint enterprise on the theory that Burtin’s and Beaman’s negligence, if any, is imputed to it as a member of the enterprise under the rule noted above. (38 Am. Jur., Negligence, §§ 253, 254, pp. 942, 943, 944; Anno: 48 A. L. R. 1061.)
Did the district court err in overruling the remaining defendants’ demurrers? The appellees Burtin and Beaman contend that (1) the negligent retention of Burt as an unfit and incompetent employee is insufficiently alleged, and (2) at most, the allegations of the amended petition are that Burt committed assault and battery upon the plaintiff, and since the action was not commenced within one year thereafter, it is barred by G. S. 1949, 60-306, Fourth. The appellee Burt, like Burtin and Beaman, contends the amended petition charged him with the commission of assault and battery upon plaintiff and he asserts the action is barred by the same statute of limitations. We are not persuaded the contentions are meritorious. Under the rule announced in Murray v. Modoc State Bank, 181 Kan. 642, 313 P. 2d 304, we think the plaintiff has alleged a cause of action against defendants Burtin and Beaman and the individual defendant Burt on the theory of negligence which was not barred by G. S. 1949, 60-306, Fourth. (Hackenberger v. Travelers Mutual Cas. Co., 144 Kan. 607, 610, 611, 62 P. 2d 545.)
It would require a tortured construction of the amended petition to arrive at the conclusion that the plaintiff’s cause of action against those defendants was for assault and battery. The gravamen of a civil assault and battery is grounded upon die actor’s intention to inflict injury. (Hershey v. Peake, 115 Kan, 562, 223 Pac. 1113; Hackenberger v. Travelers Mutual Cas. Co., supra; Murray v. Modoc State Bank, supra; 4 Am. Jur., Assault and Battery, § 3, p. 126.) In the Murray case, the distinction between assault and battery and negligence was clearly stated:
“This subject has been thoroughly discussed in earlier decisions of this court and the law is now clear that the fundamental distinction between assault and battery, on the one hand, and negligence, on the other, is that the former is intentional and the latter is unintentional. . . .” (l. c. 646.)
Here, there are no allegations of malice or intention to do bodily harm to plaintiff by raising his legs in the air, or of any intention to subject him to assault and battery, and there is no claim for punitive damages. On the contrary, it is alleged that plaintiff was injured by Burt’s negligent conduct. The act of Burt consisted of a farcical prank involving rude, boisterous play with no intention to do bodily harm. His conduct was that of a buffoon, putting into practice a practical joke in the nature of “horseplay.” He was “having a little fun,” so to speak, with the plaintiff and unintentionally caused the injuries inflicted. One who plays a dangerous practical joke on another takes the risk that his victim may not appreciate the humor of his conduct, but that does not relieve him from liability where, as here, there was no consent. (Restatement of the Law, Torts, § 13, p. 30.) The term “negligent conduct” was defined in the Hackenberger case as follows:
“ . . an act which the actor as a reasonable man should realize as involving an unreasonable risk of causing an invasion of an interest of another.’” [Restatement, Torts, §284.] (l. c. 611.)
We think the amended petition is not susceptible of an interpretation that Burt intentionally inflicted plaintiff’s injuries. It stated a cause of action founded on negligence and not on assault and battery. That being the case, the two-year period of limitations ap plies, and the defendants’ contention that the action is barred by G. S. 1949, 60-306, Fourth, cannot be sustained.
The doctrine of respondeat superior is not here involved. This is a common-law action charging the master with actionable negligence in retaining an incompetent and unfit employee, and it is unnecessary to determine whether Burt was acting within the scope of his employment. In Murray v. Modoc State Bank, supra, it was held:
“A master may be liable for injuries to a third person which are the direct result of the incompetence or unfitness of his servant where the master was negligent in employing the servant or in retaining him in employment when the master knew or should have known of such incompetence or unfitness of the servant.” (Syl. ¶ 1.)
See, also, Balin v. Lysle Rishel Post No. 68, 177 Kan. 520, 280 P. 2d 623.
The allegations are that Burtin and Beaman knew or had reason to know of Burt’s propensities for over one year, and eight separate acts of “horseplay” involving physical force upon persons lawfully in and around the stockyard were alleged. Also, that Burtin was present in the pen at the time the plaintiff was injured but made no protest against Burt’s act or took any measure to protect the plaintiff. Giving the allegations all reasonable inferences, we think it must be said that Burt was an incompetent and unfit employee retained by Burtin and Beaman after they knew or had reason to know of his propensities, and that the plaintiff has alleged a cause of action against them on the theory of negligence.
The foregoing conclusions require us to order a reversal of the case with directions to the district court to overrule defendants’ demurrers to plaintiff’s second amended petition.
It is so ordered.
Jackson, J., not participating.
Parker, C. J., and Price, J., dissent from (c) of the syllabus and the corresponding portion of the opinion.
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The opinion of the court was delivered by
Hatcher, C.:
This controversy stems from pretrial rulings of the district court in an appeal from an award in a condemnation proceeding.
The appellants appealed to the district court from the appraisers’ award in a condemnation proceeding instituted by the State Highway Commission. Parts of several adjoining tracts in which there were common interests were taken. However, the appeal to this court covers 7.22 acres more or less, exclusive of existing highways, described by metes and bounds, and located in the northeast quarter of section 20, township 25 south, range 6 east, Rutler County, Kansas.
The appeal proceedings were pretried the day before the issues were to be tried on the merits. During the pretrial proceedings the appellants orally raised three legal questions which the district court determined. The next day when the case came on for trial the appellants presented a motion for determination of questions of law before trial. The motion presented the same questions as were presented at the pretrial conference. The court considered the motion and made the same determination, but it reduced its rulings to writing in the form of a journal entry.
The questions presented read:
“Wherefore, said O. J. Connell, Jr., and Eldon Schwemmer respectfully move the Court to determine, as a matter of law that:
“1. They are entitled to try their portion of the appeal with relation to said Tract 11 (c) on the legal theory and rule that it was a part of a farm unit consisting of 1,058.7 acres of land; on February 24, 1962, and prior thereto.
“2. They are entitled to the legal interpretation that the area comprising the previously existing township road laying within the description as set out relating to said Tract 11 (c) has not been condemned in the proceeding set out above;
“3. They are entitled to recover from the State Highway Commission as a part of the damages attributable to the taking of said Tract 11 (c) such sum or amount, as a portion of the damage to the remainder of said 1,058.7 acres as would be reasonably required to connect said existing township road to the proposed new state highway. . .
The journal entry determining the questions states in part:
‘Whereupon, counsel for landowners orally moved the Court for continuance of said cause and announced that the landowners would appeal from the ruling of the Court on said motion, and the Court finds that said cause should be continued until further order of the Court.
“It Is Therefore by the Court Considered, Ordered and Adjudged that that part of said motion contained in paragraphs 1 and 2 of the prayer thereof be and same hereby are overruled and denied and that paragraph 3 of the prayer of said motion be and same hereby is sustained subject to such modifications dictated into the record by the Court.
“It Is Further by the Court Considered, Ordered and Adjudged that the trial of said cause be continued until further order of the Court.”
The appellants have appealed from the trial court’s determination of the questions of law adverse to their contentions and also from an order of the trial court reserving the determination of the question of the admissibility of a certain letter as evidence until the letter was introduced at the trial on the merits.
At the outset we are confronted with the contention of the appellee that the orders and rulings from which the appeal was taken are not final orders and therefore the appeal should be dismissed.
We are forced to agree with appellee’s contention as applied to rulings at pretrial proceedings.
The jurisdiction of this court on appeal is covered by G. S. 1949, 60-3302. The provisions material to this controversy read:
“The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First — A final order. . . . Third — An order that involves the merits of an action, or some part thereof. . . .”
Final orders are defined by G. S. 1949, 60-3303, as follows:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment. . . .”
This court at a very early date defined a final order or judgment as follows:
“A final judgment is one which finally decides and disposes of the whole merits of the case, and reserves no further question, or direction, for the future or further action of the court . . .” (Brown v. Galena Mining and Smelting Co., 32 Kan. 528, 4 Pac. 1013, Syl. 2.)
The court has continued to restate the definition in considering appellate jurisdiction. In Cheney v. Cheney, 186 Kan. 743, 352 P. 2d 959, it was held: “For an order of the trial court to be final and appealable, it must be such as would result in the final determination of the action.” (Syl. 2.)
Many exceptions or distinctions have been noted in the decisions which appear to be in conflict with the general definition. This was perhaps due to the rather ambiguous statutory phrase, “an order that involves the merits of an action, or some part thereof,” and was necessary prior to 1937 if the right to have errors of the trial court, which might have affected the right of a party, reviewed on appeal. The time for appeal might very well have expired between the time an erroneous order or ruling was made by the trial court and a final judgment was entered. This situation was corrected in 1937 (G. S. 1949, 60-3314a) and clarified in 1951 by the following enactment:
“When an appeal or cross-appeal has been timely perfected the fact that some ruling of which the appealing or cross-appealing party complains was made more than two months before he perfected his appeal shall not prevent a review of the ruling.” (G. S. 1961, 60-3314a.)
If a timely appeal was taken from a final judgment, previous orders could be reviewed regardless of the expiration of time. However, before the provision was enacted this court had committed itself to certain exceptions to the rule that a judgment or order to be appealable must result in a final determination of all issues. In deciding in excess of two hundred cases in which the question was raised, no doubt some inconsistencies have crept into the decisions. If not inconsistent, many of the decisions can only be distinguished by reference to the facts and circumstances of tire particular case. (Allman v. Bird, 189 Kan. 331, 369 P. 2d 387.)
It would serve no useful purpose to extend this opinion by discussing the meaning of the words “final order” or the phrase “merits of the action or some parts thereof” as used in G. S. 1949, 60-3302 and 60-3303, nor to review the cases which have considered the statutes. These sections were repealed by the adoption of the new code, which will control future appeals, and the decisions which interpreted the old provisions are now obsolete except as they may be applicable to cases, if any, remaining on the appeal docket.
The policy of the new code leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.
The provisions for appeal, after making special provisions for orders pertaining to provisional remedies, special proceedings, and intermediate rulings at the discretion of the trial court and the supreme court state:
“The appellate jurisdiction of the supreme court may be invoked by appeal as a matter of right from:
“(4) A final decision in any action, except in an action to recover money, the amount in controversy must be in excess of five hundred dollars ($500). In any appeal or cross-appeal from a final decision, any act or ruling from the beginning of the proceeding shall be reviewable.” (Code of Civil Procedure, Laws 1963, ch. 304, § 1, amending Laws 1963, Ch. 303, § 60-2102.)
No attempt was made to define the word “final” and confuse the issue. The word is to be given its ordinary meaning. A judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues. The last sentence of the paragraph quoted above protects the right to have a review of interlocutory or intermediate orders on appeal from the final determination of the case.
Regardless of any exceptions or distinctions that may have been made in construing the words “final order” or the phrase “merits of the action or some parts thereof” as used in G. S. 1949, 60-3302 and 60-3303, which are applicable to this controversy, we are forced to conclude that an appeal does not lie from a pretrial ruling unless it has the effect of a final decision which disposes of all the issues in the case. The very nature, purpose and effect of pretrial procedure requires such a conclusion.
Pretrial proceedings are an adjunct to or a part of the trial of an action on its merits. They are not authorized until such time as all necessary pleadings are on file and the case is at issue. (City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428.) Until such time neither questions of law nor questions of fact are ripe for determination. After such time any proceeding constitutes a part of the trial on the merits. Where discovery is permitted, pretrial proceedings should not take place until the discovery proceedings are completed.
The primary purpose of pretrial procedure is to define the issues and eliminate those that are unnecessary; avoid the necessity of proof of purely formal matters that should be admitted; expedite the trial, avoid surprise; consider and identify exhibits and documentary evidence, and amend the pleadings to conform to the issues as defined. Pretrial procedure was adopted to enable courts to call the parties before them and cut away, by agreement and admission of the parties, all encumbrances to a speedy trial on simplified issues. At a pretrial conference, the trial court has authority to compel the parties to agree as to all facts concerning which there can be no real dispute, but the court should not attempt to determine disputed questions of fact at such conference.
In the case of Cow Creek Valley Flood Prevention Ass’n v. City of Hutchinson, 163 Kan. 261, 181 P. 2d 320, the court considered the application of the pretrial statute and stated in the opinion:
“. . . We think the primary purpose of the statute is to enable district courts to aid counsel in the orderly and efficient trial of cases. It vests in the district court the discretion to determine, in advance of trial, questions of law arising in the case irrespective of whether pleadings are challenged by motion or demurrer. Such procedure may, in certain cases, serve to aid counsel in trying cases with greater efficiency and with a substantial saving of time and expense. It must, however, be observed the statute grants such discretionary power to pass upon questions of law ‘arising in the case’ only ‘under the allegations of the pleadings.’ That means all of the pleadings that may be filed under the provisions of the civil code. Until such pleadings are completed it cannot be certain that the issues are fully joined. Until the issues are fully joined there can be no determination of questions of law which may be relied upon to govern the trial of the case. . . (p. 263.)
On the conclusion of a pretrial conference the admissions, stipulations, rulings of the court, and all other matters which are to determine the course of the trial should be reduced to writing in the form of an order if the conference is at all extended. The statute provides that the trial court shall make an order which recites the actions taken at the conference. (Southard v. Mutual Benefit Health & Accident Ass’n, 177 Kan. 26, 276 P. 2d 299.)
Once the pretrial proceedings are so concluded the results reached become the rule or law of the case. The order controls the issues and the subsequent course of the trial. However, the trial court is not helpless to permit additions or corrections, or change its own rulings if necessary in the interest of justice.
The doctrine of law of the case, as applied to the effect of previous rulings on later action of the trial court, is a salutary and utilitarian rule to be applied to pretrial orders, but it is not to be considered as a limitation on the power of a trial court to do justice or correct prior rulings which are clearly erroneous. A trial court has inherent power to review its own proceedings to correct errors or prevent injustices. The power to reconsider a ruling in a case resides in the trial court until a final judgment or decree is issued. This court should not usurp this inherent power of the trial court by entertaining an intermediate appeal from a ruling which occurred during the course of the trial inclusive of pretrial proceedings.
The cases, in jurisdictions where pretrial procedure has been generally used, announcing the general principles above stated are too numerous to be cited. They may be found by reference to Modern Federal Practice Digest, Federal Civil Procedure, §§ 1921-1943; Baron and Holtzoff, Federal Practice and Procedure, §§ 471 et seq., and 35B C. J. S., Federal Civil Procedure §§905-914.
This court has held that a pretrial order which does not in effect determine the action is not appealable prior to the entry of a final judgment. (Borgen v. Wiglesworth, 190 Kan. 365, 375 P. 2d 600; Carr v. Kendzora, 190 Kan. 533, 376 P. 2d 795.)
The appeal is dismissed.
APPROVED BY THE COURT.
Jackson, J., not participating.
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The opinion of the court was delivered by
Beier, J.:
These consolidated appeals focus on the meaning and constitutionality of K.S.A. 22-2501(c), a part of the Kansas statute on searches incident to arrest. We hold that the United States Supreme Court’s recent decision in Arizona v. Gant, 556 U.S. 332, 173 L. Ed. 2d 485, 129 S. Ct. 1710 (2009), controls in this case and that it compels us to strike down K.S.A. 22-2501(c) as unconstitutional.
Factual and Procedural Background
There is no material dispute on the relevant facts.
Defendant Randy Henning came to the attention of Deputy Sheriff Patrick F. Stevenson when they crossed paths one morning at an Emporia convenience store. Stevenson believed that there was an outstanding warrant for Henning’s arrest and radioed a dispatcher. When the dispatcher confirmed the existence of a warrant, Stevenson left the store and asked Henning to step out of the passenger side of the car he had just entered. Defendant Kelly Zabriskie was sitting in the driver’s seat. Once Stevenson confirmed Henning’s identity, he arrested and handcuffed him.
Stevenson then searched the car while Henning stood on a sidewalk 5 feet to 7 feet from the front of the car. Zabriskie stood beside Henning during the search. Stevenson determined that the car was registered to Henning but insured by Zabriskie. In the car’s closed center console, Stevenson found a flashlight case. Inside the case, he discovered a clear glass pipe, a syringe, and two Q-tips. The clear glass pipe appeared to contain drug residue; the residue was later tested and identified as amphetamine. After finding this evidence, Stevenson placed Zabriskie under arrest for possession of drug paraphernalia.
Defendants moved to suppress. On hearing, Stevenson testified that he searched the car “[b]ecause the Kansas statute had changed to be able to search for items after an arrest, fruits of a crime, and that law had taken [effect] July 1st. [T]his was July 6th and . . . [Henning] had been in that vehicle and the law also stated that I could search the vehicle where I made an arrest out of.”
Stevenson was referring to a one-word change made in K.S.A. 22-2501(c) by the 2006 legislature. Since 1970, when the statute was enacted, it had provided:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for file purpose of
(a) Protecting the officer from attacks;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of the crime.” (Emphasis added.)
During the 2006 legislative session, the statute was first repealed and then revived with a change that took effect on July 1, 2006. The new subsection (c) has since read: “Discovering the fruits, instrumentalities, or evidence of a crime.” (Emphasis added.)
Stevenson’s testimony also made clear that, at the time he searched defendants’ car, he had no expectation that he would find evidence of any particular crime committed by any particular person:
“Q: [Zabriskie’s attorney] So what crime were you looking for fruits of[,] evidence of?”
“A: [Stevenson] Of any crime.
“Q: None in particular just a crime, any crime?
“A: I recall being trained that on the 1st, July, 2006 the Kansas statute changed to be able to fruit -to search for fruits of a crime.
“Q: A crime and I’m asking you what crime in particular were you searching.
“A: I don’t know until I find it, sir.”
In each of the defendants’ cases, the district judge held that Stevenson’s search was unconstitutional. Our Court of Appeals consolidated the State’s appeals in the two cases and then reversed and remanded. We granted defendants’ petition for review.
We address two questions in the following order: (1) What was the significance of the legislature’s 2006 change of “the” to “a” in subsection (c) of the statute? and (2) Is the current statute constitutional?
Replacement of “The” with “A”
The appellate standard of review for a question of statutory interpretation or construction is unlimited. See State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). Our most fundamental guideline is that the' intent of the legislature governs if that intent can be ascertained. See Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). Thus,, our first task is to discern “the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007).
“When a statute is plain and unambiguous, we do not speculate as to the legislative intent behind it and will not read the statute to add something not readily found in it. We need not resort to statutory construction. It is only if the statute’s language or text is unclear or ambiguous that we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007).
See State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 769, 69 P.3d 1087 (2003).
As a general rule, criminal statutes must be strictly construed in favor of the accused. Nevertheless, this rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Paul, 285 Kan. 658, 662, 175 P.3d 840 (2008). When the legislature has revised an existing law, we presume that a change in meaning was intended. State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006).
“A” is often referred to as an indefinite article, while “the” is denominated a definite article. See Gamer s Modem American Usage 1, 785 (2nd ed. 2003). The word “a” is “used as a function word before singular nouns when the referent is unspecified.” Merriam Webster’s Collegiate Dictionaiy 1 (11th ed. 2003). “A” can also mean “any.” Merriam Webster’s Collegiate Dictionary 1. “The” is “used as a function word to indicate that a following noun or noun equivalent is definite or has been previously specified by context or by circumstance.” Merriam Webster’s Collegiate Dictionary 1294.
In State v. Anderson, 259 Kan. 16, 910 P.2d 180 (1996), this court examined a vehicle search incident to arrest and explicitly considered the specificity denoted by the use of “the” in the earlier version of K.S.A. 22-2501(c).
In Anderson, a police officer took the driver of a car into custody after a traffic stop and license check turned up an arrest warrant. The driver was handcuffed and situated in the back seat of the officer’s car; a front-seat passenger was asked to step out. The officer then searched the car, uncovering drug evidence. The passenger was then arrested. Anderson, 259 Kan. at 17-18.
Writing for a unanimous court, then Chief Justice Kay McFarland first observed: “The search of the vehicle was purely and solely a search incident to arrest. There is no evidence of or claim made that probable cause was present for the search.” Anderson, 259 Kan. at 19. Chief Justice McFarland then reviewed the language of K.S.A. 22-2501 and addressed the State’s argument that the statute had been intended to codify federal law enunciated in Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034, reh. denied 396 U.S. 869 (1969), and should be read as coextensive with the later United States Supreme Court ruling in New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981).
In Chimel, the Court had held that a search of an arrestee’s entire house could not be justified under the Fourth Amendment; “[t]he search here went far beyond [defendant’s] person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area.” Chimel, 395 U.S. at 768.
In Belton, the search at issue was conducted in the passenger compartment of a car after four occupants were removed from the car, placed under arrest, searched, and separated from each other. Drug evidence was found in the defendant’s jacket on the back seat. In that case, the Court held that the scope of a constitutional search incident to arrest was broad enough to include the interior of the car. Belton, 453 U.S. at 460. As Chief Justice McFarland noted in Anderson, the Belton decision also expressly denied that its holding altered “ ‘the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.’ Belton, 453 U.S. at 460 n.3.” 259 Kan. at 22.
With Chimel and Belton as backdrop, Chief Justice McFarland then concluded that the original language of K.S.A. 22-2501(c), i.e., which used “the” rather than “a,” may “be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute.” Anderson, 259 Kan. at 22.
“Belton may expand the scope of the constitutionally permissible search of a vehicle but not the permissible purpose of the search. . . .
“. . . The statute sets out three purposes for which . . . searches [incident to arrest] may be made, and a search wholly under the statute must be for one of the purposes set forth therein. By the searching officer’s own testimony, none of the three statutory purposes was his purpose in conducting the search.” 259 Kan. at 23-24.
Anderson thus held that K.S.A. 22-2501(c) permitted a law enforcement officer to search a car or truck incident to an occupant’s or a recent occupant’s arrest for die purpose of uncovering evidence to support only the crime of arrest. 259 Kan. at 23. That case, like this one, arose from a vehicle search incident to arrest, but the core of the ruling would apply whenever a search of any space incident to arrest has been justified solely on the basis of subsection (c) of K.S.A. 22-2501; it would have to be limited to the purpose of uncovering evidence of the crime of arrest.
Both the legal presumption that arises from the fact that our legislature traded “the” for “a” in subsection (c)'of K.S.A. 22-2501 and the distinctions in the definitions and usage of “a” and “the” demonstrate that some sort of change was intended in 2006. But that is as far as “the plain language” of the current statute will take us. The ordinary meaning of the very ordinary “a” can indicate “a particular” person, place, or thing, albeit one not previously mentioned,' or it can indicate “any” person, place, or thing. This duality leads us to conclude that the cúrrent text of the statute is ambiguous, requiring consultation of legislative history, employment of canons of construction, and review of other background considerations to divine the meaning of the text. In short, we must move from statutory interpretation to construction. See State v. Paul, 285 Kan. 658.
K.S.A. 22-2501(c)’s legislative history demonstrates that the 2006 change from “the” to “a” may have been, at least in part, responsive to our holding 10 years earlier in Anderson. '■
The legislature first looked at amending K.S.A. 22-2501 in 2004, when it considered H.B. 2541. House J. 2004, p. 967. The House Corrections and Juvenile Justice Committee heard testimony from Kyle G. Smith, Director of Public and Governmental Affairs for the Kansas Bureau of Investigation. Smith opined that K.S.A. 22-2501(c), as interpreted in Anderson, limited officers’ search capabilities and led to confusion. He urged legislators to change “the” in subsection (c) of the statute to “a,” arguing that Belton established that no arrestee’s constitutional rights would be infringed by such a change in the wording or in law enforcement practice. Minutes, House Corrections and Juvenile Justice Comm., February 2, 2004. Randall L. Hodgldnson, Deputy Appellate Defender, also testified on H.B. 2541. He voiced his concern that H.B. 2541 would encourage questionable arrests so that law enforcement could gain access to vehicles. Minutes, House Corrections and Juvenile Justice Comm., February 2, 2004. No further action to amend K.S.A. 22-2501 took place in 2004. Minutes, House Corrections and Juvenile Justice Comm., February 2, 2004.
In 2005, the House proposed H.B. 2261, a bill that would have repealed K.S.A. 22-2501 entirely. House J. 2005, p. 230. Again, the House Corrections and Juvenile Justice Committee heard testimony. Jared S. Maag, Deputy Attorney General of the Criminal Litigation Division, testified that only six states, including Kansas, had codified the procedure for a search incident to arrest. He asserted that such codification “only [bred] conflict with prevailing case law.” Minutes, House Corrections- and Juvenile Justice Comm., February 14,2005. Maag also discussed Belton and Thornton v. United States, 541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004). Maag explained that in Thornton, a plurality of the Court, applying Belton, permitted a search of a car even though its occupant had already left it when he made contact with a law enforcement officer. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005. Smith also testified in 2005, on behalf of the KBI and the Kansas Peace Officers Association. This time, however, he asked the Committee to repeal K.S.A. 22-2501 rather than amend it. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005. The Committee also heard from R. Michael Jennings, legislative chair of the Kansas County and District Attorneys Association. Jennings also requested amendment of K.S.A. 22-2501 to permit officers making an arrest of a vehicle’s occupant to search the passenger compartment of that vehicle for evidence of “any” crime. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005. Hodgkinson testified against the 2005 proposal. His testimony was essentially similar to that he had given in 2004. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005.
The House voted 101 to 21 in favor of H.B. 2261. House J. 2005, p. 282. The Senate Judiciary Committee heard testimony from Maag and Smith, Minutes, Senate Judiciary Comm., March 17, 2005; but it reverted to amendment rather than repeal and changed “the” in subsection (c) to “a,” Senate J. 2005, p. 383. Realizing that the change undermined the holding of Anderson, Representative David Haley opposed the amendment, stating:
“By adopting a warrantless search incident to any crime and not to a specific crime, this Legislature attempts to shred the Constitutional protections against unwarranted searches or seizures and erodes the bases for probable cause.
“The result, if this bill becomes law, will allow ‘fishing expeditions’ for what will then become admissible evidence for any crime and not necessarily the base allegation. ‘A crime’ in the bill should read ‘the crime.’
“The notion is absurd and, I predict, will be found unreasonable under state and/or federal constitutional mandates.” Senate J. 2005, p. 396.
Although the Senate passed the bill to amend the statute, no change in K.S.A. 22-2501(c) survived in the final version of the bill. House J. 2005, pp. 1025-27. Senate J. 2005, pp. 836-38.
During the 2006 legislative session, the House, Senate, and Governor approved a repeal bill, S.B. 366. House J. 2006, p. 2184; Senate J. 2006 pp. 2102-03. However, a later Conference Committee amended a subsequent bill, S.B. 43Í, to revive and amend K.S.A. 22-2501, again changing “the” to “a” in subsection (c). Minutes, House Conference Comm., May 5, 2006. S.B. 431 was subsequently approved by the House, Senate, and Governor. House J. 2006, p. 2333; Senate J. 2006, pp. 1966,2104. The record is silent on legislative reasoning.
K.S.A. 22-2501(c)’s legislative history does not definitively explain whether the legislature meant for its amendment of the statute to allow search of a space surrounding or recently surrounding an arrestee only for evidence of “a particular” actual crime or “any” merely imagined crime or something in between. It also does not tell us whether the officer conducting the search need possess any particular level of suspicion or probable cause. Although the language appears to move toward Belton, the legislature’s rejection of outright repeal in favor of amendment may indicate that it wished to retain some restrictions in excess of those demanded by United States Supreme Court case law. It is clear that at least certain members of the legislature were actually aware of the potential constitutional dimension of their choice of article in K.S.A. 22-2501(c). In addition, our construction of the statute is guided by .the general presumption that the legislature acts with full knowledge of existing law. See State v. Anderson, 281 Kan. 896, 912, 136 P.3d 406 (2006).
Under these circumstances, we believe we can safely say that the legislature at least intended to undercut our holding in Anderson. We thus rule here that K.S.A. 22-2501(c)’s current wording would permit a search of a space, including a vehicle, incident to an occupant’s or a recent occupant’s arrest, even if tire search was not focused on uncovering evidence only of the crime of arrest. We need not further define K.S.A. 22-2501(c)’s current parameters because Arizona v. Gant, 556 U.S. 332, leaves those parameters without legal effect.
Constitutionality
The State and Zabriskie correctly agree that our standard of review on the constitutionality of statutes is unlimited. We interpret Section 15 of the Kansas Constitution Bill of Rights to provide the same protection from searches and seizures as the Fourth Amendment to the federal Constitution. See State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963). Thus, regardless of whether the statute is challenged under the federal or the state Constitution, we consider ourselves bound by United States Supreme Court precedent. Further,
“[a] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional, if the same can be done within the apparent intent of the legislature in passing the statute.” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 (2008).
In Gant, officers, acting on an anonymous tip, knocked on the front door of a suspected drug house and asked to speak to its owner. Defendant Rodney Joseph Gant answered the door, identified himself, and explained that the owner was away. Officers left and “conducted a records check [on Gant], which revealed that Gant’s driver’s license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license.” Gant, 556 U.S. at 336.
Officers returned to the house later that evening, arresting a man for providing a false name and a woman for possessing drug paraphernalia. “Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived” in his car. 556 U.S. at 336. An officer called out to Gant. Gant got out of his car, shut the door, and approached the officer. The officer arrested Gant 10 feet to 12 feet from his car, handcuffed him, and placed him in the back of a patrol car. An officer then searched Gant’s car, discovering a bag of cocaine in the pocket of a jacket on the backseat. The officer admitted at the suppression hearing that he conducted the search only “[bjecause the law says we can do it.” 556 U.S. at 337.
The Court’s analysis first returned to Chimel’s rule and rationale.
“In Chimel, we held that a search incident to arrest may only include ‘the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. [Citation omitted.] If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and tire rule does not apply. [Citation omitted.]” Gant, 556 U.S. at 339.
That the Court chose to begin with Chimel is significant for at least two reasons.
First, in doing so, it limited Belton and rejected cases from other courts that have interpreted it broadly to scale back the general Chimel rule. The Court expressly stated that Belton “considered Chimel’s application to the automobile context” and observed that its holding was “based in large part on our assumption ‘that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within “tire area into which an arrestee might reach.” ’ ” Gant, 556 U.S. at 341. The Court unambiguously reaffirmed drat Chimel’s reasoning remains the go-to rubric. It “continues to define the boundaries of the [search-incident-to-arrest] exception”; if one of the exception’s two purposes cannot be served by a search, the exception cannot save the search, under the Fourth Amendment. Belton did not create an exception to the exception to be invoked every time law enforcement wants to search a vehicle in the vicinity and from which the arrestee has emerged. Rather, Belton merely applied Chimel to the unique set of circumstances before the Court.
The Court’s return to the first principles of Chimel is also significant because it set up compelling reinforcement of our court’s Anderson interpretation of the pre-2006 version of K.S.A. 22-2501(c). Gant’s equation of purpose and scope deviated somewhat from the Anderson discussion, but it arrived at the same ultimate destination: To have a valid search incident to arrest, when there is no purpose to protect law enforcement present, the search must seek evidence to support the crime of arrest, not some other crime, be it actual, suspected, or imagined. In the vehicle context, “in many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains . . . evidence [relevant to the crime of arrest.]” Gant, 556 U.S. at 343.
In Gant, the Court recognized, Gant was in no position to reach into his car to access a weapon or to destroy or conceal evidence of the crime of arrest. This contrasted with the defendant in Belton, where there had been four arrestees and a lone officer with one set of handcuffs. Gant had already been secured in a patrol car, and there were several officers at the scene. There was a real threat in Belton that the defendant or another arrestee could reach into the vehicle. That threat was nonexistent in Gant.
The Court also observed:
“Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safely or evidentiaiy concerns demand. For instance, Michigan v. Long, 463 U.S. 1032 (1983), permits an officer to search a vehicle’s passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is ‘dangerous’ and might access the vehicle to ‘gain immediate control of weapons’ [Citation omitted.] [And] “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-21 (1982), authorizes a search of any area of tire vehicle in which the evidence might be found. . . . [, allowing] searches for evidence relevant to offenses other than the offense of arrest [ . . . .]” Gant, 556 U.S. at 346.
The Court thus held that Gant’s search was unreasonable under the Fourth Amendment because Gant was secured and could not reach the passenger compartment; and it was unreasonable to believe the vehicle contained evidence of Gant’s offense of arrest, i.e., driving with a suspended license.
Factually, this case is more similar to Gant than to Belton but, analytically, a factual comparison is unnecessary. There is no dispute that there was no warrant to search the car. A recognized exception to die Fourth Amendment’s warrant requirement must apply, see State v. Thompson, 284 Kan. 763, 776, 166 P.3d 1015 (2007); or the search was invalid and the evidence it uncovered appropriately suppressed by the district court judge. When a search is challenged, the State bears the burden of demonstrating that it was lawful. See State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006). The State’s only argument here is that the search of the car was a proper search incident to the arrest of Henning under K.S.A. 22-2501(c). (Zabriskie, although out of the car and standing near Henning during the search, had not yet been arrested herself.) Even more specifically, the State’s only argument, based as it must be on the testimony of Stevenson, is that the search depended upon the recently amended and newly effective language of K.S.A. 22-2501(c), which, as we have discussed above, considerably broadened its scope and exceeded the purposes allowed for such searches under the Chimel rule. As Stevenson noted, his training was up-to-the-minute and told him he was permitted to search the car not only for evidence of the crime of arrest but for evidence of another crime or crimes.
Gant expressly disapproved of this approach:
“To read Belton as authorizing a vehicle search incident to every recent occupant’s arrest would thus untether die rule from the justifications underlying the Chimel exception- — a result clearly incompatible with our statement in Belton that it ‘in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.’ [Citation omitted.] . . . [T]he Chimel rationale authorizes police to search only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U.S. at 343.
In view of Gant, we are compelled to strike down the current version of K.S.A. 22-2501(c) as facially unconstitutional under the Fourth Amendment and Section 15 of the Kansas Constitution Bill of Rights. The district court judge was right to be suspicious of the statute’s wording; its breaddi cannot be reconciled with the narrowness of the search and seizure concept it was meant to codify, not automatically in a vehicle context nor in the context of any other area within immediate control of an arrestee.
The district court is affirmed. The Court of Appeals is reversed.
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The opinion of the court was delivered by
Rosen, J.:
On review from a published decision by the Court of Appeals in State v. Casady, 40 Kan. App. 2d 335, 191 P.3d 1130 (2008), Cynthia Casady seeks review of its opinion affirming the district court’s imposition of a $100 Board of Indigents’ Defense Services (BIDS) application fee.
The facts underlying this appeal are not in dispute. On March 29, 2007, the State filed a complaint charging Casady with one count of possession of prescription drugs without a prescription, K.S.A. 65-4160; one count of possession of marijuana, K.S.A. 65-4162(a)(3); and one count of possession of drug paraphernalia, K.S.A. 65-4152(a)(2). The district court found that Casady was indigent and appointed an attorney from the panel prescribed by the Board of Indigents’ Defense Services (BIDS) to represent her. She eventually entered a plea of guilty to the count of possession of prescription drugs without a prescription; the two other counts were dismissed. The district court sentenced her to 30 months’ incarceration. At sentencing, the court also assessed court costs of $163, a drug testing fee of $10, a booking fee of $25, and a BIDS administrative fee of $100. The court found Casady financially unable to pay the BIDS attorney fees. Casady made no objection to the imposition of the other costs and fees.
Casady filed a timely notice of appeal. The Court of Appeals affirmed the district court’s assessment of the $100 administrative fee in Casady, 40 Kan. App. 2d at 338-41; see also State v. Loggins, 40 Kan. App. 2d 585, 194 P.3d 31 (2008) (relying on and adopting the rationale of Casady). This court granted Casady’s petition for review.
Casady urges this court to find that the $100 BIDS application fee mandated by K.S.A. 22-4529 violates an indigent defendant’s rights under the United States and Kansas Constitutions.
Constitutional grounds for reversal asserted for the first time on appeal are generally not properly before an appellate court for review. State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 843 (2007). When a statute places mandatory duties on a district court to impose BIDS attorney fees, however, it may be necessary for this court to consider an issue not raised below in order to serve the ends of justice. State v. Stevens, 285 Kan. 307, 330, 172 P.3d 570 (2007); see also State v. King, 288 Kan. 333, 353-54, 204 P.3d 585 (2009) (even though appellant did not raise to district court issue of ability to pay restitution, court may consider issue on appeal as necessary to serve ends of justice or prevent denial of fundamental rights). We accordingly elect to consider the appeal on its merits.
When reviewing a constitutional challenge to a statute authorizing reimbursement by indigent defendants for litigation expenses, the standard of review is unlimited. See State v. Robinson, 281 Kan. 538, 540, 132 P.3d 934 (2006).
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional, if the same can be done within the apparent intent of the legislature in passing the statute. [Citation omitted.] However, we may not rewrite a clear and unambiguous statute to malee it pass constitutional muster. [Citation omitted.]” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629-30, 176 P.3d 938 (2008).
K.S.A. 22-4529 provides in relevant part:
“Any defendant entitled to counsel pursuant to K.S.A. 22-4503, and amendments thereto shall pay an application fee in the amount of . . . $100 on or after July 1, 2004, to the clerk of the district court. If it appears to the satisfaction of the court that payment of the application fee will impose manifest hardship on the defendant, the court may waive payment of all or part of the application fee. ... If the defendant is acquitted or the case is dismissed, any application fee paid pursuant to this section shall be remitted to the defendant.”
The Sixth Amendment to the United States Constitution provides that the accused shall enjoy the right “to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI; see also § 10 of the Kansas Constitution Bill of Rights (“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel.”). The Sixth Amendment right to counsel is a fundamental constitutional right and, unless that right is knowingly and intelligently waived, counsel must be provided to an indigent defendant. Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). The right to counsel for indigent criminal defendants is tied to the Due Process Clause of the Fourteenth Amendment to the United States Constitution and applies to state court actions. 372 U.S. at 342-43.
In Robinson, 281 Kan. at 543-44, this court considered reimbursement of BIDS attorney fees under K.S.A. 22-4513 and held that the district court must consider on the record the defendant’s financial resources and the burden the payment would impose on the defendant at the time of sentencing. The court also rejected a due process claim that the appellant was denied the opportunity to contest the amount or validity of the attorney fees, finding that the appellant had advance access to the fee schedule and the opportunity to speak regarding the schedule at sentencing. 281 Kan. at 548. The court did not explicitly address the Sixth Amendment right-to-counsel implications of the reimbursement statute.
The K.S.A. 22-4529 BIDS application fee was a subject of appeal in State v. Hawkins, 285 Kan. 842, 176 P.3d 174 (2008). That appeal also did not raise a Sixth Amendment objection to the imposition of the application fee. Instead, the appellant in Hawkins argued that it was “unfair” to require nonlawyer defendants to understand that they could request waiver of the application fee prior to the appointment of counsel. This court disagreed, finding that a district court would have adequate documentation relating to a defendant’s financial status at the time the request for counsel was initially submitted and could assess the fee at that time. 285 Kan. at 852. The court could also determine at that time, based on affidavits submitted by the defendant, whether the application fee would constitute “manifest hardship.” 285 Kan. at 853.
Most recently, this court revisited the subject of BIDS attorney fees and BIDS application fees in State v. Phillips, 289 Kan. 28, 210 P.3d 93 (2009). In Phillips, we held that an order to pay an application fee is merely an imposition of costs and is neither punitive nor part of a sentence. 289 Kan. 28, Syl. ¶ 4. Because the defendant’s ability to pay the fee is considered at the time the defendant submits an application for appointed counsel, the district court is not required to make further findings at sentencing to validate the assessment of the application fee. 289 Kan. 28, Syl. ¶ 8.
In Fuller v. Oregon, 417 U.S. 40, 40 L. Ed. 2d 642, 94 S. Ct. 2116 (1974), the United States Supreme Court provided the central analysis relating to Sixth Amendment implications for assessing costs for court-appointed counsel. In Fuller, the Supreme Court examined an Oregon statute that provided for the reimbursement of the costs for legal representation only after indigent defendants acquired the financial means to make payments. The Oregon statute was “carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so.” 417 U.S. at 53. Defendants who had no likelihood of being able to repay the costs at the time the costs were imposed were not even conditionally obligated to pay, and defendants who were obligated to pay were not subjected to collection proceedings until they were no longer indigent. 417 U.S. at 44-45. The Court did not regard the fact that a defendant might some day be required to pay the costs of representation as a factor detracting from the right to counsel that the statute provided. 417 U.S. at 53. This was because the obligation to pay did not come into being until the defendant was no longer indigent or under circumstances where the payment would constitute “ ‘manifest hardship.’ ” See 417 U.S. at 53-54.
In Olson v. James, 603 F.2d 150 (10th Cir. 1979), the Tenth Circuit Court of Appeals decided that the version of the Kansas attorney fee reimbursement statute in effect at that time was unconstitutional. After examining United States Supreme Court decisions, the court inferred that a reimbursement statute “must not indiscriminately pursue the indigent as well as those who have ac quired the means of repaying.” 603 F.2d at 154. The court found that a constitutional reimbursement statute contains four hallmarks. These are: (1) The requirement of repayment is imposed only on “a convicted (not an acquitted) defendant or on one whose conviction is reversed on appeal” [sic]; (2) courts must not require convicted defendants to pay counsel expenses unless the defendants are able to repay them or will likely be able to repay them in the future; (3) convicted persons who are obligated to repay counsel costs should be able to petition for remission of the payment costs at any time; and (4) convicted defendants who can demonstrate that they did not intentionally default on their repayment orders must not be held in contempt of court, 603 F.2d at 155.
Other states have approached indigent reimbursement statutes in a fashion generally consistent with these opinions.
In State v. Tennin, 674 N.W.2d 403 (Minn. 2004), the court considered a statute that required defendants who were eligible for representation by public defenders to pay a $50 copayment for legal assistance. The Minnesota statute read: “Upon appointment of the public defender, an individual who receives public defender services shall be obligated to pay to the court a copayment for representation provided by a public defender.” Minn. Stat. § 611.17(l)(c) (2003 Supp.). The Minnesota Supreme Court found the statute unconstitutional. 674 N.W.2d at 410-11. The court found that “[t]he fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the cost of these services does not impair the defendant’s right to counsel.” 674 N.W.2d at 407. The court went on to hold, however, that “the requirement to repay costs of counsel is not without limit.” 674 N.W.2d at 407. The absence of an option for judicial waiver of the copayment placed the statute in conflict with the Sixth Amendment and rendered it unconstitutional. 674 N.W.2d at 410.
In State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004), the North Carolina Supreme Court considered a statute that imposed a $50 appointment-of-counsel fee at the time of appointment and regardless of the outcome of the case. The court found that a requirement that the defendant pay regardless of the outcome of the prosecution violated state constitutional protection from assessment of costs against acquitted defendants. The court found no distinction of constitutional significance between a statutory “fee” and statutory “costs.” 358 N.C. at 97-98. The court severed the statutory requirements that payment be made “at the time of appointment” and “regardless of the outcome of the proceedings” from the remainder of the statute and permitted the State to collect the fee from indigent defendants after they were convicted or pled guilty or nolo contendere. 358 N.C. at 99-100. After construing the statute so as to meet constitutional standards, defendants would not be required to pay the appointment fee until they were convicted. 358 N.C. at 100.
In both State v. Threatt, 108 Ohio St. 3d 277, 279-81, 843 N.E.2d 164 (2006), and State v. White, 103 Ohio St. 3d 580, 581-84, 817 N.E.2d 393 (2004), the Ohio Supreme Court distinguished between payment of attorney fees and payment of court costs and upheld the collection of costs even from indigent defendants. In Threatt, the court held that attorney fees and court costs are constitutionally distinct.
“The purpose of determining before or during trial whether a defendant is indigent is to protect his or her constitutional rights, such as the right to counsel, from infringement caused by his or her indigency. [Citation omitted.] Thus, that protection does not shelter a convicted defendant from other burdens, such as court costs. [Citation omitted.]” 108 Ohio St. 3d at 280.
Those costs are imposed at sentencing and may be waived at the sentencing court’s discretion upon a showing of indigence. 108 Ohio St. 3d at 282.
A synthesis of these cases leads to several conclusions. The State must provide the assistance of legal counsel to an indigent defendant. Defendants may be required to repay some or all of the costs associated with their legal defense, but the repayment may not obstruct the defendant’s access to counsel at any stage of a criminal proceeding, and repayment may only be enforced if there is some likelihood that the defendant will be able to repay the costs. The courts must be able to review the defendant’s financial circumstances to determine whether to reduce or waive repayment of these costs. If changed circumstances reduce the defendant’s abil ity to repay defense costs, then the defendant must be able to petition for reduction or elimination of the assessed costs. If the defendant is acquitted or the charges are dismissed, the defendant must not be required to repay the costs of counsel. Finally, courts may reasonably construe reimbursement statutes in a manner consistent with constitutional mandates.
K.S.A. 22-4529 allows a court to waive the application fee if manifest hardship would result from its imposition. Hawkins held that the district court may use the same supporting documentation for its findings relating to both the attorney fees and the application fee. 285 Kan. at 852-53. In the present case, the district court apparently considered Casady’s financial circumstances, because it declined to impose BIDS attorney fees.
Hawkins implies that the BIDS application fee may be required prior to appointment of counsel. 285 Kan. at 851 (distinguishing K.S.A. 22-4529 as allowing for assessment of application fee prior to trial from K.S.A. 22-4513, which assesses costs of representation following conviction). “The legislative enactments obviously contemplate that the application fee, as the name suggests, is to be assessed at the time the defendant applies for court-appointed counsel.” 285 Kan. at 852. Hawkins also recognizes, however, that part or all of the fee may remain unpaid at the time of sentencing. 285 Kan. at 853. If payment of the fee may be deferred, then the fee will not interfere with the immediate right to counsel.
Our Court of Appeals affirmed the imposition of the application fee. Casady, 40 Kan. App. 2d at 341. The Court of Appeals found that K.S.A. 22-4529 satisfies each of the four Olson elements of a constitutional statute.
The Court of Appeals refers to a finding of “manifest injustice” in order to waive the application fee. 40 Kan. App. 2d at 338. Such language is not contained in the statute; manifest hardship and manifest injustice are not identical concepts. When determining whether to waive the BIDS application fee based on manifest hardship, a district court is not required to find that the imposition of a BIDS application fee would also result in manifest injustice.
The Court of Appeals referred to a document that Casady signed when she applied for appointment of counsel, which read in part:
“C. Repayment to the State
“The court shall take into account the financial resources and the nature of the burden that payment of such sum will impose. Any person who has been required to pay such sum and who is not willfully in default may petition the sentencing court to waive payment of any remaining balance or portion thereof.” 40 Kan. App. 2d at 337.
It is unclear whether this declaration referred only to payment of the cost of legal representation under K.S.A. 22-4513 or referred to payment of both the cost of legal representation and the application fee. The Court of Appeals found that the signed statement satisfied the third part of the Olson test, in that it allowed for petition for remission or waiver of the payment of costs in the event of financial hardship. 40 Kan. App. 2d at 339-40. Although this statement was signed by Casady, the language is not contained in the statute relating to the application fee and was not binding on the district court. The statement did not operate to preserve the constitutionality of K.S.A. 22-4529.
Even in the absence of a written statement acknowledging her rights, however, Casady was subject to the statutory BIDS application fee. We note that the application fee is typically assessed at first appearances or initial docket calls, proceedings not designed to address factual or legal issues. First appearances and docket calls are multifaceted, expedited proceedings. They are designed to apprise defendants of the charges on which they are being detained; to set bonds, conditions of release, and future court dates; and to appoint counsel, which includes assessing the BIDS application fees.
The BIDS application fee is constitutional so long as safeguards are in place to protect an indigent defendant’s access to counsel. A district court is to determine tire propriety of imposing the K.S.A. 22-4529 application fee at the time of the initial determination to appoint counsel. This assessment determination does not require any subsequent findings by the district court. In order to comport with constitutional standards, however, any enforcement of the obligation to pay the fee is to be deferred until the conclusion of proceedings in district court. If the defendant raises the issue of the ability to pay and demonstrates circumstances that preclude payment of the application fee, the district court may reduce or waive a previously imposed application fee.
We find the application fee statute constitutionally sound both on its face and as applied and affirm the district court and the Court of Appeals.
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The opinion of the court was delivered by
Nuss, J.:
Michael D. Houston, Sr., was convicted of intentional second-degree murder for shooting Joshua Johnson and received a sentence of 165 months’ imprisonment. He appealed, and the Court of Appeals affirmed. State v. Houston, No. 98,373, unpublished opinion filed September 5,2008. We granted Houston’s petition for review under K.S.A. 60-2101(b).
Houston’s issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court prevent Houston from fully presenting his theory of defense by refusing to admit certain evidence about Johnson’s prior acts of violence against Houston’s family? No.
2. Did the prosecutor commit reversible misconduct in eliciting testimony from Houston about his stay at Lamed State Hospital? No.
3. Did the trial court commit reversible error in admitting testimony about Johnson’s statement that Houston had a gun hours before the shooting occurred? No.
4. Did the trial court commit reversible error in refusing Houston’s request to instruct the juiy on the lesser included offense of involuntary manslaughter? No.
5. Did cumulative error deny Houston a fair trial? No.
6. Did the trial court violate Houston’s Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when sentencing him to the aggravated sentence in the grid box without requiring that die aggravating factors be charged in the complaint, put before a jury, and proved beyond a reasonable doubt? No.
Accordingly, we affirm.
FACTS
The defendant, Michael D. Houston, Sr., lived on Delavan Avenue in Kansas City, Kansas, with his wife and children. Around 2000, Houston became friends with Joshua Johnson. Johnson did not live in the neighborhood, but his grandparents lived next door to Houston, and Johnson’s mother lived across the street.
The friendship soured in 2001 when Johnson learned that Houston had a sexual relationship with Johnson’s girlfriend, Natasha Tavai. One of Houston’s sons also allegedly had sex with Tavai.
Johnson and Tavai continued to date, but the Houston and Johnson families became embroiled in an ongoing feud that involved threats and acts of violence by both sides. This feud lasted for more than a year and a half. During this time, Tavai gave birth to Johnson’s son, and the three continued to visit his family members in Houston’s neighborhood.
Both families filed complaints against the other, with some resulting in municipal court cases. Sherri Houston, Houston’s wife, testified that there was always something going on between the two families, and that she kept a journal documenting the incidents. According to Sherri, on one occasion Johnson drove by and directed racial slurs at her family; her son ended up hurt the next day. She could not recall exactly when this incident occurred. Sherri also testified that she tried to get help from the police de partment, the Federal Bureau of Investigation, the United States Department of Justice, and the community police officer.
On March 24, 2003, the day of Johnson’s death, Houston was driving three of his children home when a bottle flew across his windshield. He quickly turned and saw Johnson and Tavai going by in a minivan. There were no other cars nearby. Houston followed them to Leonard’s auto body shop. When he arrived, he got out of his car, approached Johnson, and the two men got into a heated argument on the lot.
Houston claimed to have seen Johnson reaching into Tavai’s minivan for a baseball bat during one point in the argument. After several bystanders gathered, the argument ended, and Houston drove away. Johnson remained at Leonard’s for about 2 hours waiting on his car to be repaired.
Linda Parker, Johnson’s grandmother, testified that she and her husband Donald drove past Leonard’s during the altercation. Linda and Donald both testified that there was a lot of yelling and cussing. According to Linda, Houston told Johnson, “[C]ome on, big boy, come on.”
Houston’s versions are mixed on exactly what he did after leaving Leonard’s. According to his statement to the police the next day, he drove to a liquor store and purchased a 6-pack of beer. He then drove to his house, where the children got out. Houston told the police he went into the house and got his loaded shotgun out of his closet, got back into the car with the gun, and then called his son, Mike, Jr., to tell him about the argument. He then drove to Conoco to get more cigarettes.
At the later trial, however, Houston testified that he went to the liquor store and bought some liquor and a 6-pack of beer. According to his testimony, he went to his house where the children got out and he called 911; he was advised that police would not be dispatched. Houston then got his shotgun out of the closet, returned to his car, smoked the last of his cigarettes, and went to Conoco for more cigarettes.
Jeff Betts, who witnessed the earlier altercation from his auto shop next door to Leonard’s, testified that Houston called him afterward. According to Betts, Houston told him about an ongoing feud with Johnson. Betts also testified that Houston told him that someone had hit one of his sons with a crowbar or pipe, and indicated — but did not say — it was Johnson.
Johnson s mother, Lora Walker, testified that Johnson called her from Leonard’s about an hour before the shooting and told her to be careful because he thought Houston had a gun. Ashley Walker, Johnson’s sister, testified that Johnson called her a litde later and said that he was planning to come back to their house for a family dinner.
Ashley testified that sometime after the call she heard horns honking so she went to the front door. According to Ashley, her mother was already headed out the front door, and yelled for her son D.J. to bring the phone to her. When Ashley went outside, she saw Tavai’s van parked behind Johnson’s car in front of the house. She also saw Houston’s car parked across the street. Ashley testified that she heard her mother screaming and saw Houston fire a “long gun” at Johnson. She believed that Houston was 6 or 7 feet away from Johnson’s car when he pulled the trigger.
D.J. testified he heard horns honking in front of the house and followed his mother to see what was going on. When D.J. got to the porch, he saw Houston pointing a shotgun at Johnson. A few seconds later, he saw the blast of the gun and immediately ran to Johnson’s car. He saw Houston get in his car and back down Delavan Street.
Houston testified that Johnson swung his car door open, forcing Houston to swerve his own car. Houston then stopped his car in the middle of the street. He testified that he got out and approached Johnson’s car. According to him, by then Johnson was almost completely out of his car. Houston testified that he shot Johnson because Johnson was reaching behind him for a weapon.
“[PROSECUTOR]: . . . What was he [Johnson] doing with his right hand?
“[HOUSTON]: Reaching just like I’m coming out now (indicating).
“[PROSECUTOR]: Okay. Could you tell what he was reaching for?
“[HOUSTON]: No, sir, I could not.
“[PROSECUTOR]: What did you think he was reaching for?
“[HOUSTON]: I didn’t know.
“[PROSECUTOR]: Did you have some idea, though?
“[HOUSTON]: I knew it had to be a weapon of some type, but what type of weapon, no.”
Police found no weapons in Johnson’s car. However, after Houston told them that they would find a bat in Tavai’s van, they recovered one there.
Houston turned himself in to the police the morning after the shooting. As mentioned, his statement to the police contained some differences from his trial testimony, e.g., he did not claim that Johnson was almost completely out of his car. Rather, Houston only told them that Johnson was in his car trying to open the door when Houston fired. Indeed, because Johnson was 6' 2" and weighed over 400 pounds, his family members testified that he would have had a difficult time getting out of the car quickly. Also unlike Houston’s trial testimony, he did not tell the police that he thought Johnson was reaching for a weapon.
Officer Dustin Sillings, who picked up Houston when he turned himself in, testified that Houston told him, “I said I’m tired of this shit, I got out of the car with my gun and I walked around and pulled the trigger.” When the police asked Houston whether he saw Johnson with a weapon, he responded, “Not as far as, not like drawn on me or nothing like that, as far as I know.” The officer then asked, “You didn’t see any weapon?” Houston responded, “No.”
Houston was charged with first-degree premeditated murder. A jury convicted him of the lesser included offense of second-degree intentional murder. The Court of Appeals reversed and remanded for a new trial in State v. Houston, No. 93,771, unpublished opinion filed March 31, 2006.
Upon remand, the State amended the complaint and charged Houston only with second-degree intentional murder. At the retrial, he contended that he shot Johnson in self-defense. After being instructed on second-degree intentional murder, voluntary manslaughter, and self-defense, the jury again convicted Houston of second-degree intentional murder.
Houston appealed and the Court of Appeals affirmed on all issues. More facts will be provided as necessary to the analysis.
ANALYSIS
As a threshold matter, we observe that the parties devoted their entire oral arguments before this court to discussing issue 4: whether Houston was entitled to a juiy instruction on involuntaiy manslaughter. Consequently, their positions on the remaining five issues derive entirely from their appellate briefs and the petition for review.
Issue 1: The trial court did not prevent Houston from presenting his theory of defense.
Houston first argues that the trial court violated his right to present his theory of defense by excluding evidence of Johnson’s prior acts of violence. Specifically, he claims that the trial court erroneously excluded evidence that on prior occasions Johnson: (1) hit Houston’s son, Frank, with a crowbar; (2) hit Frank with a rock; (3) hit Houston’s son, Michael, Jr., in the head with a brick; and (4) spun his tires at Houston’s family and made racial slurs. Per Houston’s petition for review, he claims this evidence was necessary to his theory of defense because it was relevant to establish his state of mind at the time of the shooting.
The State responds that the record is replete with numerous other acts of violence by Johnson, and Houston’s thorough exploration of this behavior allowed him to present his self-defense theory.
Houston additionally argues that the Court of Appeals erroneously applied an abuse of discretion standard of review. He contends that whether evidence is relevant is a legal question that appellate courts review de novo.
We begin our analysis by noting that during a hearing on pretrial motions, extensive discussion occurred regarding Houston’s written proffer containing 20 items. The hearing transcript reveals that the trial court recognized that evidence of Johnson’s violent nature or acts toward Houston was relevant to Houston’s self-defense theory. See State v. Walters, 284 Kan. 1, 14, 159 P.3d 174 (2007). However, the court found that some testimony, i.e., regarding acts
committed by, or directed toward, Johnson’s or Houston’s family members, was not relevant.
“Switching over to defendant’s proposed evidence, I think evidence showing tire propensity of the deceased for violence towards Mr. Houston I .think is admissible as well, but I don’t drink evidence of—I think it has to be limited to that type of evidence. The fact that something was going on with the deceased and the defendant’s children, ... I don't believe that that is probative to any issue in the case.” (Emphasis added.)
The trial judge later observed in the hearing, “I think we need to limit ourselves here to the evidence that is clearly relevant to this issue was this self defense or not?’.” (Emphasis added.) The court then recited the specific testimony to which the State objected:
“Okay. Well, let’s talk tiren—let’s just start on number three, August 2001, defendant’s children have rocks thrown and pepper spray directed at them by Joshua and Iris family.
“Number four, September 2001, Joshua hit Frank Houston with a crowbar. Donald Walker pulled a gun and pointed it at defendant’s son. Joshua hit Frank Houston in the head with a rock.
“Number nine, Joshua spun truck tires at family and said he was going to get us niggers and the next day hit Michael Houston, Jr. in head with a brick.
“Those are on this proffer items number three through nine. [Defense counsel], it does not appear to me that those would be relevant to the issue of your client’s— that would give your client reason to believe that Mr. Johnson was going for a gun and that he needed to kill him in self defense under the circumstances that this occurred.” (Emphasis added.)
After argument from botb sides, the court disallowed Houston’s use of items three through nine of his proffer.
In rejecting Houston’s argument, the Court of Appeals noted that much of his proffer of Johnson’s acts about which he now argues should have been admitted into evidence was actually presented at trial. It stated:
“Jeff Betts testified that Houston called him after the incident at Leonard’s. Betts testified that Houston told him about previous problems with Houston’s daughter being hit and his son being hit with a crowbar. Betts testified that he assumed Johnson had committed these acts because that is who Betts and Houston were talking about. [Next,] Sherri Houston testified that Johnson drove by and directed racial slurs at her family and that her son ended up hurt the next day. It appears that the only specific evidence that was excluded was that Johnson hit Frank with a rock, and in a separate incident, Johnson hit Michael, Jr., in the head with a brick.” Slip op. at 3.
The panel then determined that the trial court did not abuse its discretion in excluding evidence of these final two episodes because they were not “relevant to Houston’s claim of self-defense.” Slip op. at 3. Specifically, the panel found the allegation that Johnson previously threw a rock or a brick at Houston’s sons was not logically connected to Houston’s belief that Johnson was reaching for a weapon in his car on the night of the shooting. Slip op. at 3.
Houston now argues that both lower courts denied his fundamental right to a fair trial because the erroneously excluded evidence was relevant to his theory of self-defense by tending to prove his state of mind at the time of the shooting.
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 interpretation of the rules of evidence and procedure.” Walters, 284 Kan. 1, Syl. ¶ 1.
We also acknowledge that when a defendant raises a claim of self-defense, evidence of the victim’s violent or turbulent character maybe relevant to establish the defendant’s state of mind. Walters, 284 Kan. at 10-11. However, to establish relevance, i.e., probativity, there must be some logical connection between the asserted facts and the inference or result they are intended to establish. See State v. Reid, 286 Kan. 494, 502-03, 186 P.3d 713 (2008). In Reid, we explained that the definition of “relevance” as described in K.S.A. 60-401(b) (“ ‘[rjelevant evidence’ means evidence having any tendency in reason to prove any material fact”), like Federal Rule of Evidence 401, contains both a probative element and a materiality element. There we held that we review trial court determinations of the probativity prong of relevance for an abuse of discretion, and determinations of materiality are reviewed de novo. 286 Kan. at 508-09. We therefore expressly reject Houston’s general assertion that relevance is reviewed de novo.
Plouston relies upon Walters and State v. Mays, 254 Kan. 479, 866 P.2d 1037 (1994). Neither case, however, supports his argument. In Walters, the defendant was charged with and convicted of second-degree murder. He argued that the trial court erred in excluding evidence establishing his actions were in self-defense. This court explained that evidence tending to prove the defendant’s state of mind prior to the shooting, i.e., that “he was induced to believe in good faith that he was in imminent danger of death or great bodily harm at the hands of the person killed,” is admissible. 284 Kan. at 10 (quoting State v. Burton, 63 Kan. 602, Syl. ¶ 3, 66 P. 633 [1901]).
Walters sought to call a witness to testify about an incident approximately 1 year before the murder in which the victim told the witness that the victim was going to kill Walters and then commit suicide. This threat was relayed to Walters. The trial court excluded the evidence, finding it was irrelevant due to its remoteness. After observing that “ ‘ “[determining whether evidence is too remote to be admissible rests within the sound discretion of the trial court,” ’ ” 284 Kan. at 14, the Walters court noted that more recent incidents were testified to at trial. Consequently, the court concluded that the trial court did not err in excluding this evidence. 284 Kan. at 15.
As noted above, the incident involving Frank getting struck by a rock happened in 2001, but the fatal shooting occurred in 2003. Because this incident occurred 2 years before the shooting, per Walters it was well within the trial court’s discretion to determine that the evidence failed to provide a logical connection to Houston’s state of mind the day of the shooting.
In Mays, the defendant was charged with rape and aggravated robbery. He argued that the trial court denied him a fair trial by excluding evidence that supported his theory of defense. This court agreed because the excluded evidence was “key to and an integral part of the defendant’s defense.” 254 Kan. at 486. The only evidence supporting the conviction was the victim’s testimony; therefore, the excluded evidence bearing on the victim’s credibility was key to Mays’ defense. The Mays court noted that if the jury believed the victim’s testimony, “it necessarily would convict the defendant.” 254 Kan. at 486.
By contrast, in addition to the testimony of Betts (Frank being struck by a crowbar) and Sherri Houston (Johnson’s spinning tires and racial slurs) noted by the panel, Houston was able to present his own considerable testimony in support of his theory of self-defense. He testified extensively to his history with Johnson, including the following:
“[DEFENSE ATTORNEY]: ... At any point in the past had Joshua done anything with a baseball bat or had you heard or were you familiar with him doing something with a baseball bat?
“[HOUSTON]: He had never swung or hit at me or nothing like that with a baseball bat, but past experience, gentleman said every time they get into it with somebody, this is what weapon they would use.
“[DEFENSE ATTORNEY]: Okay. How about had Joshua ever said anything to you about having a gun or using a gun towards you?
“[HOUSTON]: There have been times that he have hollered, you niggers gonna malee me get my gun and stuff like that.
“[DEFENSE ATTORNEY]: Was there any point when you were almost — almost struck by a car driven by Joshua?
“[HOUSTON]: Yes, sir. . . . [A]fter he made his turn, heswove [sic] over and tried to hit me. ... I jumped up against the fence out of the way from getting hit by the car.
“[DEFENSE ATTORNEY]: At any time had Joshua made threats to you?
“[HOUSTON]: Several times.
“[DEFENSE ATTORNEY]: And had you filed complaints with the police?
“[HOUSTON]: Yes, sir.”
As for the remaining excluded evidence about which Houston complains — Johnson hitting Michael with a thrown brick on an unknown date — we agree that the trial court was within its discre tion to exclude this as having no logical connection to Houston’s belief that Johnson was reaching for a weapon in his car on the night of the shooting.
Finally, the panel noted that even if the trial court had erroneously excluded the relevant evidence, reversal would not be required. Slip op. at 4. See State v. Drayton, 285 Kan. 689, 702, 175 P.3d 861 (2008) (consistent with K.S.A. 60-261, errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial.); Walters, 284 Kan. 1, Syl. ¶ 6 (“Before a federal constitutional error can be held harmless, the appellate court must be able to declare a belief that it was harmless beyond a reasonable doubt; stated another way, that the error had little, if any, likelihood of having changed the result of the trial.”).
The panel observed that the jury heard Houston’s testimony set forth above, testimony about the general animosity between the Houston family and the Johnson family, and the specific animosity between Houston and Johnson after Houston had sex with Tavai. The record on appeal readily supports the panel’s observation. We independently observe the testimony of Betts and Sherri Houston and the testimony regarding the confrontation at Leonard’s 1 hour before the shooting.
In short, we agree with the Court of Appeals that the trial record as a whole clearly established that Houston was able to adequately present his theoiy of defense.
Issue 2: The prosecutor did not commit reversible misconduct.
Houston next argues that the prosecutor committed reversible misconduct when he “willfully” elicited testimony from him that he had been to Lamed State Hospital. He contends that the key issue in this case was his state of mind and that this testimony was highly prejudicial because it inferred that he was not “reasonable or ordinary.” Houston further argues that the Court of Appeals erred in concluding that his statement was simply a nonresponsive answer and that the prosecutor’s questions were permissible.
The State essentially responds that the prosecutors primary question was proper and that Houston’s answer was nonresponsive to a simple yes-or-no question.
Our standard of review of 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, Syl. ¶ ¶ 5,7, 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).
During Houston’s direct examination, the following exchange took place with his counsel:
“[DEFENSE COUNSEL]: And we’ve heard testimony actually from the State’s witnesses as well that there was some kind of problems going on between the families, correct?
“[HOUSTON]: Yes, sir.
“[DEFENSE COUNSEL]: Okay. And what did that do to you over a period of time having that go on? What — how did that get into your mind?
“[HOUSTON]: It — to any parent, any individual that goes through situations as far as a child. I don’t know if I can say. You say I can only say so much or maybe understand from what I’m saying—
“[DEFENSE COUNSEL]: Right now I’m asking you about generalities, the fact that this stuff went on over a period of time, how did that — what did that do to your mind?
“[HOUSTON]: It ate me up. It ate me up. It disturbed me. I couldn’t sleep, the whole nine yards where I was more or less paranoid, you know. You try to sleep, you hear a noise, you always looking around, seeing if you gonna be approached from any angle. I mean, yes, it bothered me a whole lot.”
During the State’s resultant cross-examination of Houston, the following exchange occurred:
“[PROSECUTOR]: Okay. And this [thrown] bottle incident, was it— and you testified I think this was really no different than any other time you’ve had a dispute with Josh?
“[HOUSTON]: Any incident — anything that goes on is different because it’s never the same.
“[PROSECUTOR]: Were you any more angry?
“[HOUSTON]: I mean I’m upset, don’t get me wrong.
“[PROSECUTOR]: Right.
“[HOUSTON]: Confused, you know. Why would you—
“[PROSECUTOR]: And you’re not trying to put your mental state in question here, are you? You’re just saying you might have been angry, you might have wanted to protect?
“[HOUSTON]: Mental state, I say mental state like this, if you [are] looking at the history of things that happened to my family, yes, it would be a mental state.
“[PROSECUTOR]: But you’ve talked to somebody about your mental state, correct?
“[HOUSTON]: Lamed State Hospital.
“[PROSECUTOR]: Right. And they didn’t have any — they didn’t confirm it?
“[HOUSTON]: But they felt their — ”
Defense counsel then interrupted, asked to approach the bench, objected to the prosecutor s line of questioning, and moved for a mistrial. The prosecutor responded that Houston had put his state of mind at issue during direct examination.
“[PROSECUTOR]: Judge, one of the questions that was directly asked of him on direct examination was what did that do to your mind, and he’s sitting there tiying to explain it. And I didn’t bring ... up there was a mental eval. I said you’ve talked to someone. I don’t obviously have the chance to pretrial [interrogate] Mr. Houston to know he’s going to blurt out that he went to Lamed Mental Hospital. I was wanting to ask him, you’ve addressed that issue and that’s not present today?
“[DEFENSE COUNSEL]: Well, Judge, the record should show that, in fact, my client was evaluated at Lamed State Hospital. Mr. Bryant’s been the prosecutor for the entire case so he well knows that he was evaluated there. And when he asked a question about did you talk to somebody, I think it’s pretty obvious that he should know what the answer is going to be, it’s going to be in reference to a mental hospital.
“[PROSECUTOR]: If he would have answered ‘yes’ or ‘no,’ it would have never come up.
“THE COURT: Well, the motion for a mistrial would be denied. I’m not sure that — I’m not sure the impact of that question and answer on the jury if that was made perfectly clear that he went to Lamed that that, in fact, has a negative impact on how anybody would take a look at it, but that’s not- — that’s not an issue the fact that he went there. So, Mr. Bryant, can you move on to something else?”
At the hearing on Houston’s motion for new trial, the trial court concluded that the prosecutor did not specifically elicit the testimony about Lamed State Hospital and did not commit misconduct.
The Court of Appeals first considered whether the prosecutor’s questions were impermissible. It observed that prior to the first trial, Houston had filed a motion for a competency evaluation, and the court ordered an evaluation at Larned State Hospital. The trial court adopted the findings in the Larned report and found Houston competent to stand trial. The panel noted that Houston nevertheless testified about his state of mind resulting from the ongoing feud between his family and Johnson’s family. Therefore, the panel noted that Houston arguably opened the door to the prosecutor’s questions by placing his mental state at issue during his direct examination. Slip op. at 5.
The panel also found that Houston’s statement that he had talked to someone about his mental state at the hospital was not responsive to the prosecutor’s question, which called for a yes-or-no answer. It concluded that when placing the entire examination into context, the questions were not impermissible. It further held that even if impermissible, the questions did not constitute plain error.
Even assuming, without deciding, that the questions were impermissible, we generally agree with the panel. The prosecutor’s line of questioning was not gross and flagrant but apparently responded to Houston’s attempt to introduce evidence about his state of mind in the years before the shooting. Moreover, there is no evidence of prosecutorial ill will in the record. Finally, we agree that the purported misconduct was harmless under both K.S.A. GO-261 (inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18 (conclusion beyond reasonable doubt that the error had little, if any, likelihood of having changed the results of the trial). Like the panel, we observe that Houston admitted that he did not see Johnson holding any weapon when Houston shot him. We independently observe that Houston did not tell the police tlaat he thought Johnson was even reaching for a weapon. We also independently observe that Houston told the police that Johnson was still in his car trying to open the door when Houston fired. This statement is consistent with the undisputed fact of Johnson’s immense size and the testimony of his relatives that he would have had difficulty getting out of the car quickly.
As a result, we hold that Houston was not denied a fair trial because of prosecutorial misconduct. See White, 284 Kan. 333, Syl. ¶1.
Issue 3: The trial court did not commit reversible error in admitting Johnsons statement that Houston had a gun before he arrived at the scene of the shooting.
Houston next argues that the trial court erred in admitting Lora Walker’s testimony that her son, Johnson, had called her an hour before the shooting and told her to be careful, “that Mike had a gun.” He further contends that the Court of Appeals erred in holding the issue had not been preserved for appeal because no contemporaneous objection had been made. The State generally responds that Houston is wrong on both bases.
Houston first contends that he sufficiendy preserved this issue. He points out that he filed a motion in limine that sought to exclude from evidence: “Telephone call from Joshua Johnson to Lora Walker where she claims that he stated that defendant pulled a gun on him and threatened him at Leonard’s auto shop.” After hearing arguments on the motion the morning of trial, the judge asked the State whether Walker would be among its first witnesses. The State indicated that she might be called after the morning break. The judge replied:
“I want to think about that issue just a little bit longer, but I’ll make a ruling certainly before — I’ll make that ruling before she testifies and hopefully during the morning recess I can look up what I want to look up, but I’ll make a ruling just as soon as I can.”
Following the morning break, the judge ruled:
“Regarding the defendant’s motion in hmine about the defendant’s conversation with his mother that said — where the mother said she had a telephone conversation with her son, the victim, said, ‘be careful, Mike has a gun.’ The Court is going to let that testimony come in. Court would note that it’s over the defendant’s objection.” (Emphasis added.)
Because Walker testified later that afternoon and because of the court’s earlier observation that her testimony was “over the defendant’s objection,” Houston argues this shows a sufficient compliance with the contemporaneous objection rule.
We have held that when a pretrial motion to suppress has been denied, the moving party must still object to introduction of the evidence at trial in order to preserve the issue for appeal. State v. Jones, 267 Kan. 627, 637, 984 P.2d 132 (1999). The latter requirement is commonly known as the contemporaneous-objection rule and is codified in K.S.A. 60-404. See King, 288 Kan. 333. Specifically, the statute requires an on-the-record “objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” (Emphasis added.)
In Jones, the defendant argued that his counsel’s action at the beginning of trial to renew his previous motions to suppress was the equivalent of a timely interposed objection to evidence when it was offered later during trial. The court rejected this argument, citing State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), for “why nothing short of an objection at the time evidence is offered satisfied the requirement” of a contemporaneous objection. 267 Kan. at 637. The Court of Appeals has rejected a similar defense argument after denial of a pretrial motion to suppress, i.e., that an objection at the close of the State’s evidence is contemporaneous. See State v. Daniels, 28 Kan. App. 2d 364, 369, 17 P.3d 373 (2000), rev. denied 272 Kan. 1420 (2001). Because the objections were not contemporaneous, both the Jones and Daniels courts concluded that the evidentiary issue was not preserved for appeal.
Consistent with this case law, we hold that when a pretrial motion to suppress has been denied, the evidence must also be objected to at the time it is offered during the trial in order to preserve the issue for appeal. This holding is also consistent with the language in K.S.A. 60-404 — objection to the evidence must be “timely interposed” — and consistent with this court’s longstanding characterization of the statutory language as requiring a “contemporaneous” objection. Among other advantages, this holding allows a court to rule on the evidence before trial, but after hearing how the evidence unfolds during trial, allows the court to be prepared— after timely trial objection — to reconsider its original ruling. Cf. Luce v. United States, 469 U.S. 38, 41-42, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984) (in limine ruling “is subject to change when the case unfolds”).
In our view, if the court’s intent by the comment “it’s over the defendant’s objection” was unclear, Houston’s counsel should have asked for clarification, e.g., “[Wjill an objection still be required at the time the testimony is offered during trial?” In the alternative, counsel should have asked for a continuing objection and thereby eliminated the need for the later trial objection. In State v. Parker, 277 Kan. 838, 845, 89 P.3d 622 (2004), the State allegedly violated an in limine ruling, but the court’s granting a continuing defense objection preserved the issue on appeal for defendant:
“Where the trial court has granted counsel’s request for continuing objection to evidence excluded by an order in hmine, the trial court is in a position to avert error on account of the introduction of objectionable evidence. Thus, the rationale underlying the contemporaneous objection rule has been met, and the issue is preserved for appeal.” 277 Kan. at 845.
We not only agree with the panel that Houston’s evidentiary issue is not preserved for appeal, but even if it were, any error is also harmless. Houston argues this evidence suggests he was “looking for” Johnson to shoot. However, the panel correctly noted that the evidence was undisputed that Houston was armed with his shotgun on the evening of the shooting. The juiy’s hearing that Houston was first armed at the confrontation at Leonard’s approximately 1 hour before the shooting, instead of when he admittedly returned home straight from there to retrieve his loaded shotgun and begin driving around town, had little, if any, impact on the particular offenses alleged (second-degree intentional murder and voluntary manslaughter based upon sudden quarrel or heat of passion) and the self-defense asserted. It can be equally argued that Johnson’s knowledge that Houston had a gun at Leonard’s actually increased the likelihood that Johnson later would have felt compelled to obtain a gun or other weapon- — which Houston testified he “knew” Johnson was reaching for when Houston shot him.
Issue 4: The trial court did not err in refusing to instruct on the lesser included offense of involuntary manslaughter.
On retrial, the jury was instructed on the amended charge of second-degree intentional murder, as well as on voluntary manslaughter and self-defense. Houston argues that the trial court er roneously refused to instruct on involuntary manslaughter as a lesser included offense. Specifically, he asserts that the instruction was warranted because the jury could have found that he committed a lawful act of self-defense but in an unlawful manner because he used excessive force. See K.S.A. 21-3404(c) (Involuntary manslaughter is an unintentional killing “during the commission of a lawful act in an unlawful manner.”). Houston cites State v. Gregory, 218 Kan. 180, 186, 542 P.2d 1051 (1975), for its holding that “use of excessive force could be found to be an ‘unlawful manner’ of committing the lawful act of self-defense, and thus supply that requisite element of involuntary manslaughter.”
In denying Houston’s request, the trial court reasoned that Houston’s position on self-defense would be covered by the instruction on voluntary manslaughter based upon an unreasonable but honest belief that circumstances justified the use of deadly force. See K.S.A. 21-3403(b) (Voluntary manslaughter is an intentional killing based on “an unreasonable but honest belief that circumstances existed that justified deadly force [in defense of a person].)”. The court held that the case’s facts did not fall within the involuntary manslaughter definition of “a lawful act in an unlawful manner.”
Houston argued to tire Court of Appeals that “the jury could have easily found that Mr. Houston unintentionally killed Mr. Johnson based on Mr. Houston’s excessive use of force for self defense.” (Emphasis added.) The panel generally recited the correct standard of review: whether the jury could have reasonably convicted the defendant of involuntary manslaughter. But the panel did not appear to analyze whether the killing was unintentional under this standard. Rather, it appeared to reject Houston’s position purely on the sua sponte basis of lack of self-defense. It concluded that “[b]ased upon the overwhelming evidence. . . Houston was not lawfully acting in self-defense, [and] the district court did not err in failing to instruct the jury on involuntary manslaughter.” (Emphasis added.) Slip op. at 7. Of course, when analyzing the issue of involuntary manslaughter, the exercise of the right of self-defense is typically accepted as a lawful act, but the “unlawful manner” of committing that lawful act is the excessive use of force. See Gregory, 218 Kan. at 186.
As a result, the panel failed to address Houston’s specific argument. Moreover, when it sua sponte addressed the larger question of whether Houston was lawfully acting in self-defense, it also apparently faded to consider that the trial court had instructed on self-defense — which neither party suggests was erroneous under the facts of this case.
To this court, Houston again argues that the killing was unintentional, thus warranting an instruction on involuntary manslaughter. See K.S.A. 21-3404(c) (involuntary manslaughter is an unintentional killing). According to his supplemental brief, “if Mr. Houston did not intend to kill Mr. Johnson, but his excessive use of force in self-defense resulted in Mr. Johnson’s death, then the proper conviction would have been involuntary manslaughter.” Houston contends that his testimony suggests he intentionally acted in self-defense against Johnson, “but that he did not intend to cause Mr. Johnson’s death.” At oral arguments, the State directly responded to this contention, arguing that Houston’s killing of Johnson was indeed intentional.
Our analysis of this particular argument requires a review. The legislature has established the parameters for when jury instructions on lesser included offenses should be given. K.S.A. 22-3414(3) provides in relevant part:
“In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (2) of K.S.A. 21-3107 and amendments thereto, the judge shall instruct the jury as to the crime charged and any such lesser included crime.” (Emphasis added.)
In State v. Anderson, 287 Kan. 325, 333, 197 P.3d 409 (2008), we reiterated our current standards for reviewing jury instructions on lesser included offenses. We defined that standard recently in the murder case of State v. White, 284 Kan. 333, 347, 161 P.3d 208 (2007):
“ ‘ “A trial court must instruct the jury on a lesser included offense ‘where there is some evidence which would reasonably justify a conviction’ of the lesser offense. [Citation omitted.] ‘If the defendant requests the instructions, the trial court has a duty to instruct the jury regarding all lesser included crimes that are established by the evidence, regardless of whether the evidence is weak or inconclusive.’ [Citation omitted.] ‘However the duty to so instruct arises only where there is evidence supporting the lesser crime.’ [Citation omitted.]. An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented. [Citation omitted].” ’ State v. Boyd, 281 Kan. 70, 93, 127 P.3d 998 (2006) (quoting State v. Drennan, 278 Kan. 704, 712-13, 101 P.3d 1218 [2004]).” (Emphasis added.)
Accord State v. Reid, 286 Kan. 494, 522, 186 P.3d 713 (2008); see also State v. Pham, 281 Kan. 1227, Syl. ¶ 22, 136 P.3d 919 (2006) (“The instruction need not have been given if the evidence would not have permitted a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offense.”); State v. Jones, 279 Kan. 395, 401, 109 P.3d 1158 (2005) (same).
In determining whether the defendant is entitled to instructions on his or her lesser included offense claim, the evidence must be viewed in the light most favorable to the defendant. State v. Horn, 278 Kan. 24, 40, 91 P.3d 517 (2004).
In support of Houston’s argument that he did not intend to kill Johnson, he points to his own testimony that (1) he only shot Johnson because he thought Johnson was reaching for a weapon and that (2) “initially the shooting was not intentional.” The primary testimony upon which Houston relies actually states:
“[PROSECUTOR]: What did you think you were going to do with the gun?
“[HOUSTON]: ... To protect myself if needed.
“[PROSECUTOR]: Were you intending to go shoot somebody?
“[HOUSTON]: No, sir.
“[PROSECUTOR]: Were you intending to go shoot Josh Johnson?
“[HOUSTON]: No, sir.” (Emphasis added.)
Viewing this testimony in the light most favorable to Houston, however, does not override his own testimony that clearly established that whatever his intent may have been initially, it ripened into an intent to shoot Johnson. He has never contended, for example, that the shooting was an accident.
“[PROSECUTOR]: Mike, you pulled the trigger on that shotgun that we’ve seen?
“[HOUSTON]: Yes, sir, I did.
“[PROSECUTOR]: Why did you do that?
“[HOUSTON]: I mean reaction is a response from the reaction that he was doing. . . .
“[PROSECUTOR]: Okay. You pulled the trigger?
“[HOUSTON]: Yes, sir.
“[PROSECUTOR]: This was in reaction to his movement?
“[HOUSTON]: Yes, sir.
“[PROSECUTOR]: The right hand movement?
“[HOUSTON]: Yes, sir.”
Houston’s testimony elaborated upon Johnson’s “right hand movement” to which he reacted and further established that the shooting clearly was intentional:
“In the process of him coming out [of the car], as he was pushing his door open, he was reaching back [‘for what I knew had to be a weapon of some type’]. I come around just about when he wasn’t quite standing up, but he was almost standing up, when I come around the car and this is when I swung my gun up and I pulled the trigger which knocked him back.” (Emphasis added.)
Although the shooting of Johnson was clearly intentional, the question remains whether the killing of Johnson was intentional. Rather than examine all of the facts as the panel appeared to do, reviewing several salient ones will suffice.
We initially observe that Houston told the police the day after the shooting, “I said I’m tired of this shit, I got out of the car with my gun and I walked around and pulled the trigger.” Although some of his later trial testimony was not entirely consistent with his statement to police, he has never disputed that he intentionally pulled the trigger. Nor has he ever disputed that he shot Johnson in the left jaw with a 12-gauge shotgun. And through the close of oral arguments to this court, Houston has never contended that he was not intentionally aiming at Johnson’s head. Contrast State v. Mitchell, 23 Kan. App. 2d 413, 416-17, 422, 932 P.2d 1012 (1997) (Defendant claimed victim had pulled a gun on him and he was afraid for his life, so he pulled out his own gun, closed his eyes, and began shooting. Reversed and remanded for instruction on involuntary manslaughter.).
Additionally, it is uncontroverted that Houston fired his shotgun at Johnson from within 15 feet. Houston admitted to the police the day after the shooting that he fired from 8 to 10 feet; Ashley Walker testified Houston fired from 6 to 7 feet. Based upon the medical evidence, the coroner opined that the shooting range could have been as close as 3 feet, and that he “would be surprised” if it were as far as 15 feet. The jury read a transcript of Houston’s police statement, heard the testimony of Ashley and the coroner, and saw a photograph of the empty shotgun shell — ejected from Houston’s gun — lying in the middle of the street opposite Johnson’s driver’s-side door. Perhaps most compelling to the jurors, they saw a photograph of the shotgun blast’s damage to Johnson’s jawline.
Under these circumstances, we conclude that no rational jury in this state could have found that Houston did not intend to kill Johnson. Because involuntary manslaughter requires an unintentional killing, the evidence would not reasonably justify a conviction of that crime. See K.S.A. 22-3414(3). Accordingly, the trial court did not err in refusing such an instruction.
In light of this holding, we need not reach the Court of Appeals’ alternative holding: application of the skip rule. See Horn, 278 Kan. at 40.
We acknowledge that several weeks after oral argument Houston’s counsel filed a 4-page “letter of additional authority pursuant to Supreme Court Rule 6.09(b) (2008 Kan. Ct. R. Annot. 47).” The letter cited several of this court’s decisions concerning the appellate standard of review regarding juiy instructions for lesser included offenses. See, e.g., State v. Hoffman, 288 Kan. 100, 200 P.3d 1254 (2009). Those decisions, although postdating Anderson, Reid, White, Boyd, and Drennan, do not articulate the standard of review as precisely as the one identified in this opinion. More particularly, the statement in Hoffman, 288 Kan. at 104-05, that “the evidence of the lesser crime does not have to be strong or extensive as long as the jury might reasonably infer the lesser crime from that evidence” is a less precise form of the standard from K.S.A. 22-3414(3) (“some evidence which would reasonably justify a conviction of some lesser included crime”) and from other case law, e.g., Anderson, 287 Kan. at 333 (instruction “ ‘ “is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented” ’ ”). Accordingly, use of the clearer standard of review articulated in the instant opinion is preferable.
Houston’s letter cites to those decisions to address “the questions at oral argument concerning the standard of review for determining whether the district court was required to instruct the juiy on involuntary manslaughter.” This statement generally represents a correct application of Rule 6.09(b). That rule states in relevant part:
“(b) When significant relevant authorities not previously cited to the court come to the attention of a party after the party’s brief has been filed, or after oral argument but before decision, the party shall promptly advise the court, by letter, setting forth the citations. There must be a reference either to the page(s) of the brief intended to be supplemented or to a point argued orally to which the citations pertain. A brief statement may be made concerning application of the citations.”
But while “a brief statement may be made concerning application of the citations,” providing two pages of purely factual statement — with citation to the record — is not a correct application of the rule. In the instant case, these facts purportedly supporting the claim for an involuntary manslaughter instruction — many of which appeared for the first time in the letter — should have been argued in (1) Houston’s brief to the Court of Appeals, (2) Houston’s petition for review, or (3) Houston’s supplemental brief to this court. Rule 6.09 was not intended to be, nor should it be, used as yet another briefing opportunity. The appellate courts will not consider those parts of a Rule 6.09 letter that fail to comply with the rule.
Issue 5: Cumulative error did not deny Houston a fair trial.
Houston next argues that cumulative error requires reversal of his conviction and remand for a new trial. The State responds that no error was committed; but if error exists, any accumulation did not deny Houston 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. Reid, 286 Kan. 494, Syl. ¶ 20.
The errors, if any, were harmless, both singly and collectively. The totality of circumstances did not substantially prejudice Houston and deny him a fair trial.
Issue 6: The trial court did not violate Houston s rights under the Sixth and Fourteenth Amendments.
Finally, Houston argues that the trial court violated his Sixth and Fourteenth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), when it sentenced him to the aggravated sentence in the grid block — 165 months — without requiring that the aggravating factors be charged in the complaint, put before a jury, and proved beyond a reasonable doubt. More specifically, he contends that this court should overrule its recent decision in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008). There, we held that Kansas appellate courts are without jurisdiction to consider challenges to a presumptive sentence, even if that sentence is to the highest prison term in a Kansas Sentencing Guidelines presumptive grid block and even if the aggravator is not proved to a jury beyond a reasonable doubt.
The Court of Appeals concluded it was without jurisdiction to review Houston’s presumptive sentence. Slip op. at 8. While Houston asks us to reconsider Johnson, he has not presented any new facts or law that merit reconsideration of this issue. Accordingly, we see no reason to retreat from that position now.
Affirmed.
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The opinion of the court was delivered by
Nuss, J.:
Jeremy Joseph Wells was convicted of one count of aggravated criminal sodomy of his fiancée’s 5-year-old-daughter, C.B., in violation of K.S.A. 21-3506. He was sentenced to life in prison without the possibility of parole for 25 years. He now appeals his conviction. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).
The issues on appeal, and our accompanying holdings, are as follows:
1. Did the trial court commit reversible error when it admitted evidence of Wells’ prior bad acts under K.S.A. 60-455? Yes.
2. Did the trial court violate Wells’ right to a fair trial by limiting the testimony of his expert witness? No.
Because of the erroneous admission of prior bad acts evidence, we reverse Wells’ conviction and remand for new trial.
FACTS
Wells lived with his fiancée, R.B., in Manhattan, Kansas. Also living in the home were R.B.’s three children from previous relationships: 11-year-old B.H., 8-year-old C.H., and 5-year-old C.B. B.H. had her own room. C.H. and C.B. shared a bedroom, with C.H. sleeping in a regular bed and C.B. on a mattress on the floor alongside.
R.B. worked the night shift at a store, usually from 10 p.m. to 7 a.m. Wells worked as a caterer, so he would stay home with the children while R.B. worked. The three children all called Wells “daddy.” Prior to the incident alleged in this case, Wells and R.B. had lived together for approximately 5 years, and they intended to get married. However, they recently had been fighting a lot. Wells claimed that about eight times per week R.B. threatened to kick him out of the house. Whenever Wells and R.B. fought, R.B. confided in B.H. and brought her into the problem.
When R.B. returned from work the morning of December 16, 2006, B.H. reported what she had observed in C.B.’s room several hours earlier. Based upon this report and information from C.B., 2 days later Wells was charged with one count of aggravated criminal sodomy.
At the subsequent jury trial, B.H. testified that around 3:30 a.m. she heard C.B. making a groaning noise, so she went to her room to check on her. When she got to C.B.’s room, B.H attempted to turn on the light, missed and hit the wall, but switched on the light on her second tiy.
According to B.H., when the light finally came on she saw C.B. lying naked and face down on her bed. Wells was beside her but under the covers. She testified that she “never saw [Wells] without clothes.” B.H. knew C.B. was crying because her eyes were wet.
B.H. testified that she asked Wells what he was doing, and he replied “nothing.” B.H. said, “I am going to tell mom,” and Wells told her he did not care. B.H. then turned off the light and went back to her own room. According to B.H., she then heard C.B. ask if she could put her pants back on, to which Wells said yes. After looking at her statement to police, B.H. recalled that after she confronted Wells in C.B.’s room, he had walked past B.H.’s room and said, “ ‘[Y]ou are pathetic.’ ”
According to B.H., once Wells left C.B.’s room, B.H. went back into C.B.’s room and either asked her why she had her pants off or why she asked Wells to put her pants back on. C.B. replied, “I don’t know.” B.H. then went back to her bedroom. Before R.B. came home, B.H. tried to talk to C.B. about the incident. According to B.H., C.B. could not really tell her anything: “She didn’t act like anything happened.” When R.B. returned home from work, B.H. reported to her mother what she had seen.
B.H. also testified that Wells had a drinking problem. According to B.H., Wells “drank a lot” of beer and tequila. B.H. was “pretty sure” he was drinking the night of the incident because she could hear bottles moving around in the other room and because his eyes were watery.
During her cross-examination, B.H. admitted that she had lied several times in the past. Her mother admitted this problem had surfaced on a number of occasions.
R.B. testified that once she heard B.H.’s information that morning, she took C.B. aside and told her to tell her the truth about what happened the night before. R.B. asked C.B. if Wells had asked her to take off her pants, and C.B. replied, “Yes.” R.B. also asked if Wells had asked C.B. to take off her panties, and C.B. replied, “Yes.” R.B. then asked, ‘What did he do?” and C.B. said he “hugged her a lot.” After more questioning, C.B. told R.B. that Wells made her touch his “winky,” which R.B. knew was a reference to Wells’ penis.
According to R.B., she became extremely upset. When she went into her bedroom to confront Wells, he was passed out on the bed. R.B. shook him, rolled him over, and told him to get out. But Wells just rolled over and went back to sleep.
R.B. again spoke with C.B. and asked her whether Wells had done anything else. C.B. said that she did not want to say it because it was a bad word. After assurances from R.B., C.B. said that Wells had put Iris thing on her butt (the bad word). R.B. asked whether it was “in” or “on” her butt, and C.B. said that it was “in.” R.B. clarified, “Where your poop comes out?” and C.B. said, “Yes.” R.B. also asked, “Did it hurt?” and C.B. said, “Yes.” C.B. also said that Wells touched her “there,” putting her hand on her crotch. When R.B. again told Wells to leave, she received no response because he was passed out on the bed.
R.B. testified that after receiving this information, she called the police, with Officers Les Horn and Danielle Kelley responding. According to Officer Horn’s testimony, Wells was snoring in the bedroom when they approached. Horn announced his presence three times before Wells woke up. Wells’ eyes were bloodshot and he smelled of intoxicants.
A pretrial ruling had allowed the State to present evidence of Wells’ prior bad acts toward C.B. and B.H. Accordingly, Officer Kelley testified that during her interview, B.H. reported that at some previous time Wells “had tried to take her underwear off.” According to Kelley, B.H. had told him “no” and he left the room. B.H. also testified about the incident, saying she could not remember when it occurred but that “it was at nighttime and he had tried to get my pants off.” B.H. further testified, “He just like tried to pull the side down.” She told Wells “ ‘leave me alone,’ ” so he left the room.
Similarly, Detective Ryan Runyan testified C.B. told him in her interview that Wells “placed his crotch into her butt crack and it hurt” and that this incident was not the first time it had happened, although she could not give him a number of occurrences. She also told him that the prior episodes had all occurred after their move into their present house. Runyan gave her an example of “in” versus “out,” and C.B. confirmed it was in her butt crack. Runyan’s videotaped interview with C.B., which also contained this information, was played for the jury in lieu of her testimony.
Detective Runyan, who also interviewed Wells and R.B., additionally conducted videotaped interviews of C.B.’s siblings: B.H. and C.H. According to Runyan, C.H. had told him that C.H. woke up in the middle of the night and saw B.H. come into the room when she turned on the light. C.H. looked down and saw Wells lying in the bed next to C.B.
Runyan also testified that he had completed a week-long Finding Words interview course to learn the protocol on how to interview children. He testified about what the protocol requires and how he used it. He was cross-examined regarding this training, as well as his knowledge of other protocols and methods of questioning. He was further questioned about the discrepancies in the children’s statements.
A physician’s assistant trained as a sexual assault examiner testified that after a thorough examination of C.B., there was no obvious trauma to her. Moreover, the results of the DNA test were inconclusive, and no physical evidence connected Wells to the alleged crime. Diana Schunn, Director of the Sexual Assault Nurse Examiner/Sexual Assault Response Team Program in Wichita, testified that the “lack of injury does not confirm or deny that penetration could have occurred.”
Wells also testified on his own behalf. According to Wells, he checked on C.B. that night because she often kicks off the covers and he heard a noise. As he was tucking C.B. into bed, B.H. walked into the room, turned on the light, and asked what he was doing. He said, “None of your business. Go back to bed.” B.H. told Wells that she was “telling mom,” and Wells said, “I don’t care. Go back to bed.” B.H. went back to bed.
According to Wells, he then went to the room he shared with R.B. and fell asleep. The following morning, R.B. began yelling at him, but he assumed R.B. was upset because he did not pick her up from work, so he fell back asleep. Wells awoke sometime later when two police officers came into the bedroom. He vehemently denied touching C.B. altogether.
Dr. Kathie Nichols, a Ph.D. psychologist, testified on Wells’ behalf as an expert on the subject of interviewing children. She testified about five protocols commonly used for conducting interviews with children who have alleged sexual misconduct. She testified about the use and non-use of their common principles by Detective Runyan in this case. The trial court limited her testimony, however. Among other things, it prohibited her from testifying that the Finding Words protocol as used by Runyan could cause a false accusation of sexual abuse.
The jury convicted Wells of one count of aggravated criminal sodomy in violation of K.S.A. 21-3506. The trial court later sentenced him to life in prison without the possibility of parole for 25 years.
More facts will be provided as necessary to the analysis.
Analysis
Issue 1: The trial court erred when it admitted evidence of Wells’ prior bad acts under K. S.A. 60-455.
Wells challenges the trial court’s ruling allowing evidence of his prior bad acts pursuant to K.S.A. 60-455. Specifically, the trial court allowed B.H. to testify that one night Wells had tried to remove her pajama pants. It also permitted tire jury to hear C.B.’s statements that Wells had previously done the same thing to her as charged in the present case.
The State argues that the trial court was correct in finding that this evidence was relevant to prove Wells’ motive and intent. Wells responds that motive and intent were not disputed material facts; that consequently this evidence was inadmissible; that the error was not harmless; and that he is therefore entitled to reversal of his conviction and remand for a new trial.
The version of K.S.A. 60-455 in effect at the time of the alleged crime and during Wells’ trial is as follows:
“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 com mitted 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, identify or absence of mistake or accident.”
We observe that the legislature amended the statute effective April 30,2009. See L. 2009, ch. 103, secs. 12,15. Neither party, however, has filed a letter of supplemental authority pursuant to Supreme Court Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47) arguing the amendments’ relevance to the issues before us.
Standard of Review
As the statute provides, although evidence of prior crimes or civil wrongs cannot be 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.’ ” State v. Garcia, 285 Kan. 1, 12, 169 P.3d 1069 (2007). Several steps are required in determining whether evidence was properly admitted under K.S.A. 60-455. See State v. Gunby, 282 Kan. 39, Syl. ¶ 3, 144 P.3d 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 in 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 that the material fact is disputed. Reid, 286 Kan. at 505; Garcia, 285 Kan. at 14 (“ ‘[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 K.S.A. 60-455 evidence for abuse of discretion. Reid, 286 Kan. at 507. The burden of proof is on the party alleging that the discretion was abused. Reid, 286 Kan. at 512 (citing Garcia, 285 Kan. at 18-19).
The court must then also determine whether the probative value of the evidence outweighs the potential for producing undue prejudice. Reid, 286 Kan. at 503. 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 for admission — 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. These 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. Gunby, 282 Kan. at 48.
Motive
The trial court determined that motive was a disputed material fact and the prior bad acts evidence was admissible to prove it. According to the trial court, motive was a disputed fact because Wells claimed that his presence in C.B.’s room was for an innocent purpose, e.g., to check on her covers, while the State alleged his motive for being there was to commit sex crimes against her.
“Motive is one of the material facts listed in K.S.A. 60-455 and it is directly disputed. Defendant contends that his presence in C.B.’s room was for the innocent purpose of checking on the child or tucking her in. The evidence proposed by the state bears on its claim that the Defendant had a different, criminal motive in going to C.B.’s room in die middle of the night.”
The court determined that the probative value of this evidence outweighed its prejudice and that an appropriate limiting jury instruction would be required.
This court has explained that “motive is the moving power that impels one to action for a definite result.” Reid, 286 Kan. at 504 (citing State v. Jordan, 250 Kan. 180, 190, 825 P.2d 157 [1992]). Evidence of motive is an attempt to explain why a defendant did what he or she did. Reid, 286 Kan. at 504 (citing State v. Engelhardt, 280 Kan. 113, 128, 119 P.3d 1148 [2005]).
Wells argues that motive evidence only speaks to his impulse or motivation to commit the actual criminal act and that he does not dispute that the motive for an assailant’s commission of an aggravated criminal sodomy would be for sexual gratification or the exercise of power. As a result, he argues that motive evidence does not speak to his impulse or motivation to enter C.B.’s room: “Disagreement between the State and Mr. Wells as to his reasons for entering the alleged victim’s bedroom is not a valid ‘dispute’ to satisfy the second requisite of the Gunby 60-455 analysis.” He claims that the “motive” evidence allowed was instead propensity evidence prohibited under Gunby, 282 Kan. at 48-49.
The State essentially responds that the prior acts “showed his motive to commit this current criminal act against CB, as opposed to his innocent explanation that he was just tucking CB in because she had lacked her covers off.” It cites Engelhardt, 280 Kan. at 128:
“Motive supplies the jury with some degree of explanation, responding to a juror s natural tendency to wonder why a defendant behaved in the manner described by the State. Often it is a prominent feature of the State’s theory of its case. Motive malees some sense out of what otherwise appear to be completely senseless crimes.”
In our view, the use of the defendant’s prior bad acts to ostensibly prove his motive for entering the bedroom here is a dangerously short step away from simply using prior bad acts to prove his motive for committing the current, virtually identical, bad act. A prosecutor might argue: “We know his motive for going to her room that night was to sodomize her — because the evidence shows that he had sodomized her in this same house, perhaps in this same room, on prior occasions.” Indeed, the language chosen by the State comes close to making this very argument in the instant case. In its motion to admit into evidence Wells’ prior bad acts, it argued: “Motive is defined as the cause or reason which induces action. . . . The prior acts of the defendant towards both C.B. and B.H. show the defendant’s motive to commit this current act against C.B.” The State essentially repeats this same argument in its brief to this court: “The juiy would want to know why the defendant would enter C.B.’s room and sodomize her.” (Emphasis added.)
Conviction for mere “propensity” — defined by The American Heritage Dictionary of the English Language 1048 (1971), as “an innate inclination, a tendency or bent” — would be the almost certain result of admitting this evidence for motive. If this evidentiary admission practice were approved, prosecutors would understandably begin pressing trial courts for admission of all other past bad acts of a defendant to serve as motive for his or her present charges, especially when any degree of similarity existed.
Our caselaw reveals that typically the prior bad acts used to show motive have not, as in the instant case, been virtually identical to the acts for which the defendant is presently charged. Indeed, few show similarity between the past and present acts. For example, in State v. Myrick & Nelms, 228 Kan. 406, 419-20, 616 P.2d 1066 (1980), we held that evidence of an outstanding robbery warrant was admissible as evidence of a defendant’s motive for killing a highway patrol trooper who had stopped defendants’ car. He simply wanted to avoid arrest on that charge. Similarly, in State v. Ruebke, 240 Kan. 493, 503, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), we held that evidence of defendant’s prior theft was admissible to show his motive. The victims had discovered him as he was committing a theft, and he killed them allegedly to prevent his identity from being found and his probation revoked. In the same vein is Engelhardt, 280 Kan. at 128-29, where we held that defendant’s previous time in prison or his parole status was admissible as motive. The State contended that defendant killed his victim because he was afraid the victim was a snitch who would report him as a parole absconder.
Prior bad acts have also typically been used to explain hostility between the victim and perpetrator as the motive for the crime. See State v. Tolson, 274 Kan. 558, 564, 56 P.3d 279 (2002) (“An example of the proper admission of evidence of prior acts to show motive would be a showing of previous conduct that resulted in longstanding bad blood between an assailant and the victim he or she seeks out.”) (citing Jordan, 250 Kan. at 191).
Our most recent cases follow these models. In Reid, 286 Kan. at 509-10, evidence that defendant had been fired from store employment for stealing money from the cash register was admissible as motive because it tended to explain why he would return to that same store to rob it and kill the clerk. In State v. Carapezza, 286 Kan. 992, 999-1000, 191 P.3d 256 (2008), this court approved admission of evidence of defendant’s prior drug use and addiction as motive for the robbery, i.e., needing money to buy drugs. Similarly, in State v. Hughes, 286 Kan. 1010, 191 P.3d 268 (2008), the defendant was charged with murder, burglary, and robbery. This court approved admission of evidence of defendant’s prior drag use and addiction as motive for the robbery, again to obtain money to buy drugs and to “fuel his addiction.” 286 Kan. at 1023.
We acknowledge that not all cases show a total lack of similarity between the prior bad acts and the charged ones. In State v. Vasquez, 287 Kan. 40, 52-53, 194 P.3d 563 (2008), we allowed evidence of marital discord — an earlier domestic battery by pushing and biting the victim — to show the defendant’s motive for killing his wife. In State v. Brown, 285 Kan. 261, 300, 173 P.3d 612 (2007), we held that evidence of prior confrontations and altercations was admissible as motive for chasing down the victim and stabbing him to death. However, no appellate decisions approach the instant case’s degree of similarity between prior and present bad acts.
We conclude that Wells’ motive for committing the crime of aggravated criminal sodomy was not a disputed material fact, i.e., it was not substantially in issue in the case. See Reid, 286 Kan. at 505. Accordingly, the trial court erred in admitting on this basis the evidence of virtually identical prior bad acts against C.B. It also erred in admitting on this basis the evidence of a similar prior bad acts against B.H.: Wells’ attempting to pull down her pajama bottoms one night so he could perhaps sodomize her as he allegedly did C.B.
Intent
The trial court used the same basic rationale to conclude that intent was a disputed material fact and the prior bad acts evidence was admissible to prove it:
“Intent, like motive, is one of the statutorily designated material facts. As with motive, the intent with which Defendant entered C.B.’s room is both material and disputed as he claims a proper and innocent intent while the state asserts a criminal purpose.”
The trial court determined that the probative value of this evidence outweighed its potential prejudice, provided the jury was properly instructed on the limits for which the evidence could be considered.
In support of the trial court’s ruling, the State argues that the reason for Wells’ presence in C.B.’s room or on her mattress is subject to two interpretations and therefore in dispute. Wells responds that because he absolutely denies any of the wrongful conduct alleged, intent cannot be a disputed material fact.
This court recently held that “ ‘ “[t]he crucial distinction in admitting other crimes evidence under K.S.A. 60-455 on the issue of intent is not whether the crime is a specific or general intent crime but whether the defendant has claimed that his or her acts were innocent.” ’ ” (Emphasis added.) State v. Boggs, 287 Kan. 298, 314, 197 P.3d 441 (2008) (quoting State v. Dotson, 256 Kan. 406, 413, 886 P.2d 356 [1994]). If the defendant admits the conduct but offers an “innocent” explanation, the Dotson court suggests the evidence of other crimes is admissible on intent. 256 Kan. at 413 (citing State v. Clements, 252 Kan. 86, 843 P.2d 679 [1992]).
But if, as in Dotson, the defendant admits the conduct and offers no explanation, and no inference can be drawn regarding the innocence of the conduct, the evidence is not admissible on intent:
“[D]efendant admitted to police officers facts sufficient to support his conviction of indecent liberties with [a child] (as acknowledged by his counsel in closing argument). Defendant presented no evidence of ‘innocent’ acts. The evidence of the circumstances surrounding the indecent liberties acts and the specified acts themselves leave no room for even an inference the acts may have been innocent acts lacking the requisite intent.” 256 Kan. at 413.
See also State v. Nunn, 244 Kan. 207, 212, 768 P.2d 268 (1989) (defendant admitted during his testimony that he had committed the acts described by the victims; error for court to admit evidence of prior crimes on issue of intent because not in issue).
When a defendant wholly denies committing the alleged acts, admitting evidence of prior bad acts to prove intent is error. See, e.g., State v. Plaskett, 271 Kan. 995, 1020, 27 P.3d 890 (2001) (“Intent and related facts are not at issue in that defendant denied all allegations.”). In State v. Davidson, 31 Kan. App. 2d 372, 65 P.3d 1078, rev. denied 276 Kan. 971 (2003), tire defendant completely denied the occurrence of the acts underlying the charges of aggravated criminal sodomy and aggravated indecent liberties with a child. After reviewing Kansas case law, which “has not always been consistent,” Judge, now Justice, Beier concluded that “[t]he most recent cases from the Supreme Court and our court seem to require the defendant to have asserted an innocent explanation before intent will be considered a disputed material issue. [Citations omitted.]” 31 Kan. App. 2d at 382. The panel held that “[fjollowing this trend, we hold that the K.S.A. 60-455 evidence questioned here [prior acts of molestation against different victims] was inadmissible to demonstrate intent.” 31 Kan. App. 2d at 383.
This court recently affirmed the efficacy of die Davidson decision in Boggs, 287 Kan. 298, albeit in a drug context. There, defendant’s only defense was that he did not ever possess the glass pipe found under the passenger seat in the pickup truck of a friend’s father. After citing Davidson and other cases, this court held that “[b]ecause Boggs’ only defense was that he did not possess the glass pipe, the element of intent. . . [was] not at issue in this case.” 287 Kan. at 315. Accordingly, the issue of intent was not material to the resolution of Boggs’ case “as the only issue in dispute was whether Boggs ever possessed the pipe and its contents at all.” 287 Kan. at 316. As a result, we held that the trial court erred in admitting evidence of Boggs’ prior crime of possession of marijuana. 287 Kan. at 317.
Here, the disputed fact is whether Wells touched C.B., not Wells’ purpose in entering her bedroom. He completely denies any touching. Therefore, intent was not a disputed material fact in the crime of aggravated criminal sodomy. Accordingly, the trial court erred in admitting the evidence of prior bad acts against B.H. and C.B. on that basis.
Magnitude of Error
Now that we have established that the evidence of Wells’ prior bad acts was not admissible to show motive or intent under K.S.A. 60-455, we next consider whether the error was harmless or reversible. See State v. Henderson, 284 Kan. 267, 294, 160 P.3d 776 (2007)
“ ‘[Ejrrors that do not affirmatively cause prejudice' to the substantial rights of a complaining party do not require reversal when substantial justice has been done.’ [Citation omitted.]” State v. Voyles, 284 Kan. 239, 252, 160 P.3d 794 (2007); see K.S.A. 60-261. Among other things, this court specifically considers whether the error is of such a nature as to affect the outcome of the trial. See Engelhardt, 280 Kan. at 130 (reversal is required only where erroneous admission of evidence is of such a nature as to affect the outcome of the trial and deny substantial justice).
Similar to our observation in State v. Jones, 277 Kan. 413, 423, 85 P.3d 1226 (2004), the absence of physical evidence of sexual abuse transformed this case into a credibility battle. On the one hand, Wells vehemently denied that he ever got into bed with C.B., removed her pants and panties, or inserted his penis into her anus. On the other hand, the conviction was based primarily on the testimony of B.H. and C.B. B.H. did not witness the alleged crime. Her testimony — that she had seen Wells under the bedding with a naked C.B. alongside on top of the covers — only suggested that the crime had occurred. Runyan’s videotaped interview with 5-year-old C.B. was played for the jury, and R.B. and Runyan both testified about what C.B. had told them.
In light of all the evidence presented, the juiy might well have believed Wells’ version were it not for the admission of the prior bad acts evidence. That evidence, since it failed to meet the requirements of K.S.A. 60-455, could have easily created the unfair inference that Wells had a propensity to commit the crime for which he had been charged. This evidence of predisposition is particularly strong concerning C.B., since he allegedly had committed almost identical crimes on prior occasions against her in the same house. The evidence regarding B.H. is admittedly not as strong. However, the testimony that Wells previously had attempted to pull down her pajama bottoms one night until she said no is similar enough to the present allegations against him of pulling down C.B.’s pants early in the morning and sodomizing her so as to also present prejudicial propensity problems. As we noted in Jones, 277 Kan. at 424:
“ ‘[Ajdmission of prior wrongful acts simply to show the defendant’s bad character, notwithstanding that one possessed of a bad character is more likely to commit a crime than one who is not, is likely to prejudice the jury and blind it to the real issue of whether the defendant is guilty of the crime charged. For example, the jury may feel unsure that the government has proved its case, but decide that the defendant is an evil person who belongs in prison anyway. The jury may wish to punish the defendant for the prior act, even if they are unconvinced that he committed the act charged. Moreover, the jury may be unconvinced that the defendant committed either act, but that he more than likely committed at least one of them and should be punished.’ ” (Quoting United States v. Peden, 961 F.2d 517, 520 [5th Cir. 1992].)
Accordingly, Wells’ conviction is reversed and the case is remanded for a new trial.
Wells claims the trial court committed additional error. This claim could now be disregarded because of our reversal and remand. We address it below, however, to supply guidance because it could arise in a retrial. See State v. Kunellis, 276 Kan. 461, 476, 78 P.3d 776 (2003).
Issue 2: The trial court did not violate Wells’ right to a fair trial hy limiting the testimony of his expert witness.
Wells claims the trial court erred by limiting the testimony of his expert witness, Dr. Kathie Nichols. Specifically, he argues that she should have been allowed to testify: (1) to present the Sam Stone Research Study concerning the suggestibility of children; (2) to criticize R.B.’s questioning of her daughter, C.B., shortly after the incident; (3) to criticize the Finding Words protocol used by Detective Runyan in his interviews of the children; and (4) to present data on the percentage of false reporting of sexual abuse claims.
Wells argues that these limitations prevented him from presenting evidence in support of his theoiy of defense and therefore violated his right to a fair trial. See State v. White, 279 Kan. 326, 331, 109 P.3d 1199 (2005). The State basically responds that the trial court’s limitation was proper and certainly did not stop Wells from presenting substantial evidence supporting his defense theory.
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). But that right is not unlimited. “[T]he right to present a defense is subject to statutory rules and case law interpretation of the rules of evidence and procedure.” State v. Walters, 284 Kan. 1, Syl. ¶ 1, 159 P.3d 174 (2007). Furthermore, when a criminal defendant is allowed “to present evidence supporting his or her theory of defense such that the jury could reach a conclusion on its validity, exclusion of other evidence is not necessarily error.” State v. Jones, 287 Kan. 547, 555, 198 P.3d 756 (2008).
Primary among the rules of evidence to be considered in the instant case is the one absolutely prohibiting a witness from expressing an opinion on the credibility of another witness. State v. Elnicki, 279 Kan. 47, 53-54, 105 P.2d 1222 (2005). This is particularly true in the area of child sexual abuse. See Plaskett, 271 Kan. at 1009 (“trial court erred in allowing Detective Langer to express his opinion as to whether A.W. was telling the truth” about being the victim of aggravated incest); State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999) (trial court erred in allowing witness to be asked and to provide answer — whether child victim “was coached, which is another way of asking if he was telling the truth”); see also State v. Lash, 237 Kan. 384, 385-86, 699 P.2d 49 (1985) (question “clearly was improper” because it called for an expression of expert’s opinion about the credibility of minor victim accusing his father of molestation; the determination of the credibility of a witness is for the jmy).
The trial judge essentially acknowledged this prohibitory rule of evidence when he addressed the possible limitations on Dr. Nichols’ testimony, particularly her criticism of the methodology used in the child witness interviews. He opined that it is “difficult to draw [a] line allowing a criticism of methodology such that it does not become [‘] therefore this child is not telling the truth. [’]” We address how well the judge drew this line and others to provide guidance on retrial.
Equally important to this case as the prohibitory rule articulated in Elnicki are the rules concerning the admission of expert testimony. K.S.A. 60-456(b) states:
“If die witness is testifying as an expert, testimony of die 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 die special knowledge, skill, experience or training possessed by the witness."
This court has provided guidance beyond this statute on the admissibility of expert testimony. “Necessity under the particular circumstances of the case, e.g., helpfulness to the jury, is the basis for the admissibility of expert witness testimony.” Cooperwood, 282 Kan. 572, Syl. ¶ 5. Consequently, “ ‘ “ '[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 necessaiy.’ ” ’ [Citations omitted.]” Cooperwood, 282 Kan. at 578.
Admission of expert testimony usually lies within the discretion of the district court. See Cooperwood, 282 Kan. at 578. Sometimes, however, review of this issue is de novo. White, 279 Kan. 326, Syl. ¶ 1; see Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 14 P.3d 1170 (2000) (quoting Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 [1996]). Additionally, we have held that when a defendant’s claim is that the trial court’s ruling interfered with his or her constitutional right to present a defense, review is de novo. State v. Carter, 284 Kan. 312, 318-19, 160 P.3d 457 (2007) (citing State v. Kleypas, 272 Kan. 894, 921-22, 140 P.3d 139 [2001], cert. denied 537 U.S. 834 [2002]). There, this court held that the trial court’s ruling was neither an abuse of discretion nor a constitutional violation. Carter, 284 Kan. at 320.
Discussion
Wells begins by pointing out that this court has not yet addressed the admissibility of expert testimony on the reliability of child witnesses and concerns about the techniques of interviewing them. He points to Court of Appeals opinions addressing the issues and argues they support his contention of trial court reversible error.
Wells first points to Mullins v. State, 30 Kan. App. 2d 711, 46 P.3d 1222, rev. denied 274 Kan. 1113 (2002). He argues that Mullins “strongly implies” that expert testimony on interview techniques can be critical to the defense. Mullins had been convicted of aggravated criminal sodomy and aggravated indecent liberties with a child, primarily based on the testimony of the victim, as there were no visual signs of sexual abuse and no witnesses to the alleged offenses. After Mullins’ convictions were affirmed in his 1991 direct appeal to the Supreme Court, he filed a motion under K.S.A. 60-1507 alleging ineffective assistance of counsel, in part because of counsel’s failure to consult or procure an expert on the subject of child interviewing techniques.
The Mullins Court of Appeals held that defense counsel had been ineffective and reversed and remanded for a new trial. 30 Kan. App. 2d at 716-19. The court observed that if counsel had obtained an expert witness on proper interview techniques, “the jury would have been presented with relatively strong evidence to potentially undermine the allegations of [sexual] abuse.” 30 Kan. App. 2d at 717. The court also stated that “because trial counsel failed to present (or even search for) such available expert testimony, the jury heard only the victim’s unchallenged allegations of abuse.” 30 Kan. App. 2d at 718.
Wells also relies upon State v. Criqui, 2003 WL 22119226 (Kan. App. 2003) (unpublished opinion), rev. denied 277 Kan. 925 (2003). There, defendant was convicted of multiple counts of sexual abuse of children. A psychologist testified at a suppression hearing and identified the following problems with the interviews of the children:
“[T]he interviewers did not explore alternative hypotheses; the school counselor did not interview the girls separately; several of the interviews were not videotaped or audio recorded; and the use of the ‘Snoopy dog’ created an atmosphere of ‘playfulness, pretend, fantasy/ [The psychologist] opined that although the children’s statements were not ‘totally unreliable,’ the reliability of their statements ‘needs to be carefully considered.’ ” 2003 WL 22119226, at *2.
Defense counsel sought to introduce the psychologist’s testimony at trial on how interviewing problems affected the reliability and accuracy of the children’s statements. The trial court excluded the testimony.
Quoting State v. Sargent, 144 N.H. 103, 106, 738 A.2d 351 (1999), the Criqui court held: “ ‘[W]e agree with those jurisdictions that find that the proper protocols and techniques used to interview child victim witnesses is a matter not within the knowledge and understanding-of the average juror.’ ” 2003 WL 22119226, at *5. It also quoted with approval Barlow v. State, 270 Ga. 54, 507 S.E.2d 416 (1998): “ ‘[T]he defendant in a child molestation case is entitled to introduce expert testimony for the limited purpose of providing the jury with information about proper techniques for interviewing children and whether the interviewing techniques actually utilized were proper.’ ” Criqui, 2003 WL 22119226, at *5.
The Criqui court concluded that the trial court erred in excluding that part of the expert testimony regarding proper and improper interviewing procedures and techniques to be used in child sexual abuse cases and the problems perceived by the expert with the interviewing techniques used in that case. While the expert had also been prohibited from testifying about how certain procedures and techniques could adversely affect the reliability and accuracy of the statement of “a given child,” the Criqui court nevertheless held that the expert should have been allowed to testify how those could adversely affect the statement of “a child,” i.e., any child. The Criqui court held that the expert could not testify, however, about how those interview problems actually affected the reliability and accuracy of the statements of these particular girls or that these girls’ statements needed to be viewed with caution. 2003 WL 22119226, at *5.
Nevertheless, the Criqui court concluded that the exclusion of the expert testimony was harmless. It noted that there were eyewitnesses and physical evidence and that defense counsel was able, through cross-examination and closing argument, to bring the interviewing errors to the jury’s attention. 2003 WL 22119226, at ®5. Because the defendant claimed the exclusion resulted in denial of his constitutional right to present a defense, the court applied the federal standard for reviewing error and declared beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. 2003 WL 22119226, at *5; see Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967).
Wells also relies upon State v. Huntley, 39 Kan. App. 2d 180, 177 P.3d 1001 (2008), a decision released after his conviction. In Huntley, the defendant was convicted of six counts of rape of a child under the age of 14 and seven counts of aggravated criminal sodomy. The defense sought a trial continuance to locate an expert to view the videotaped interviews of the 5-year-old female victim and the 4-year-old male victim and to analyze their testimony. The trial court refused to grant a continuance, finding that the testimony would be inadmissible. The Court of Appeals reversed and remanded the case, concluding that the trial court should not have refused to grant a continuance on the ground that the testimony was likely inadmissible. 39 Kan. App. 2d at 188-89.
The Huntley court cited the three erroneous grounds of excluding expert witness testimony in Criqui. It also recited Criqui’s conclusion that the proper protocols and techniques used to interview child victim witnesses is a matter not within the knowledge and understanding of the average juror. After reciting Criqui's cited caselaw in support of that conclusion, the Huntley court observed that “[t]his caselaw seems to be in step with an emerging trend to recognize and permit expert testimony on the impact of suggestive interviewing techniques on child witnesses” in general. 39 Kan. App. 2d at 188.
The Huntley court noted that the trial court’s determination was premature because the expert had not been “secured, and the scope of his or her testimony could not yet be established.” 39 Kan. App. 2d at 188. It held that the exclusion of the testimony was error because “such testimony could be critical to the defense . . . [especially where, as here, the defense was heavily dependent on casting doubt on the reliability of child witnesses.” 39 Kan. App. 2d at 189. Further, the court concluded that the trial court had been guided by “the erroneous legal conclusion that any such testimony from an expert in these areas would not be admissible.” 39 Kan. App. 2d at 189.
The State correctly points out that each of these cases is distinguishable from Wells’ case because they contained no expert witness testimony. Here, Nichols was allowed to testify but in a limited fashion.
The State also urges us to rely upon caselaw considering the admissibility of expert testimony regarding interrogation techniques employed with adults and regarding eyewitness identifications. In a letter of additional authority filed pursuant to Supreme Court Rule 6.09(b) (2009 Kan. Ct. R. Annot. 47), the State points to State v. Cobb, 30 Kan. App. 2d 544, 54 P.3d 855, rev. denied 274 Kan. 1115 (2002), and State v. Oliver, 280 Kan. 681, 124 P.3d 493 (2005), cert. denied 547 U.S. 1183 (2006).
The State cites to Cobb for the proposition that an expert’s testimony about interrogation techniques and the resultant phenomenon of false confessions “invades the province of the jury and should not be admitted. Cross-examination and argument are sufficient to malee the same points and protect the defendant.” Cobb, 30 Kan. App. 2d at 567. The Cobb court held that “ 'the jury could decide die issue of the statement’s reliability using its common knowledge.’ ” 30 Kan. App. 2d at 567 (quoting State v. Davis, 32 S.W.3d 603, 609 [Mo. App. 2000]). It analogized the situation to the Kansas Supreme Court’s prohibition of evidence on the unreliability of eyewitness identification. Cobb, 30 Kan. App. 2d at 567; see, e.g., State v. Warren, 230 Kan. 385, 395-97, 635 P.2d 1236 (1981).
The State cites to Oliver for the proposition that while an expert may testify on the defendant’s ability to respond reliably to interrogation, the expert cannot testify as to the reliability of the defendant’s answers in the specific confession. In that case where the defendant confessed to his involvement in multiple murders, this court reviewed the trial court’s decision to exclude the expert’s testimony “regarding Oliver’s diagnoses and their potential for affecting his reaction to interrogation.” 280 Kan. at 694. We concluded that while an expert may give testimony bearing on a defendant’s ability to respond reliably to the police interrogation, such testimony must “remain hypothetical or theoretical. It must stop short of expressing judgment on defendant’s reliability in the specific instance of the confession submitted for the jury’s consideration.” 280 Kan. at 702. We held that if such expert testimony met these parameters, it was admissible, subject to the trial court’s discretion: “We have purposely stated this holding permissively.” 280 Kan. at 702.
Before proceeding with our analysis, we observe there does not appear to be a dispute between the parties on several key points. First, a witness cannot testify about another’s credibility, particularly in child sexual abuse cases. See, e.g., State v. Plaskett, 271 Kan. 995, 1008-09, 27 P.3d 890 (2001). Wells’ brief concedes that
“[t]he Criqui decision reflects that Warren, [230 Kan. 385], and Mullins, [30 Kan. App. 2d 711], would support exclusion of the portions of the expert’s proposed testimony in which she would have commented on the children’s credibility, i.e., her opinions on how the interviewing problems affected the ‘reliability and accuracy of the children’s statements’ and that those statements needed to be ‘viewed with caution.’ [Citation omitted.] Defendant agrees that those comments, or similar, would have properly been prohibited here.”
Second, expert testimony regarding certain child interview techniques in child sexual abuse cases generally can be admissible. Such testimony can take the form of that factor described in Criqui: evidence of proper and improper interviewing procedures and techniques to be used. Third, experts may testify about the problems they perceive with the interviewing techniques used in the particular case. See Criqui, 2003 WL 22119226 at *4-5.
Wells primarily argues, however, that the trial court’s ruling effectively eliminated the third area of expert testimony allowed by the Criqui court, i.e., how certain procedures and techniques could adversely affect the reliability and accuracy of a child’s statement. He argues that this negative influence, although admittedly implied from the evidence, should be allowed to be made expressly:
“Without tlie ability to go into those areas [how certain interviewing procedures and techniques could adversely affect the reliability and accuracy of a child’s statements], the [1] testimony regarding proper and improper interviewing procedures and techniques, and [2] the problems perceived with the techniques used in this case, could fail to impress the jury because the consequence, although implied, was not clearly stated or explained.” (Emphasis added.)
Wells then provides “specific examples” of the trial court’s impermissible elimination of this third area of expert testimony in the form of four categories. These concern Dr. Nichols’ testimony that was excluded: (1) concerning the Sam Stone Research Study about child suggestibility; (2) criticizing R.B.’s questioning of her daughter, C.B., the morning of the incident; (3) criticizing the Finding Words protocol used by Detective Runyan in his interviews of the children; and (4) regarding data on false reporting. Each will be explored below.
Before analyzing the parties’ position on this particular issue, we should make several points. We agree with those courts holding that in child sexual abuse cases (1) identifying proper protocols and techniques for interviewing children and (2) determining whether the techniques actually utilized were proper, i.e., any perceived problems with the techniques used, may be matters not within the knowledge and understanding of the average juror. We recognize, in such cases, that how certain interviewing procedures and techniques could adversely affect the reliability and accuracy of children’s statements may similarly be outside the knowledge and understanding of the average juror. However, as more fully explained below, the trial court should be given some latitude in determining what expert testimony will be admitted and is not required to faithfully follow the recipe articulated by the Criqui court under its facts. See Cooperwood, 282 Kan. at 578 (trial court has considerable discretion in determining whether to permit expert testimony).
The Sam Stone Research Study and Suggestibility
For Wells’ first claim that the trial court erred in disallowing expert testimony on how certain procedures and techniques could adversely affect the reliability and accuracy of a child’s statement, he contends Nichols should have been allowed to testify about the Sam Stone Research Study. In this study of preschool-aged children, 72% of the children attributed to an individual, Sam Stone, negative behavior that they had not observed but was based upon information they had been told prior to seeing him. Their mistaken attribution was elicited by leading questions after he left.
Wells argues that most laypersons are not aware that preschool-aged children can and do make totally false reports under suggestive or leading questions. He alleges that “[m]ost laypersons would not recognize that questions that required a yes or no answer are in fact, as applied to young children, considered to be leading or suggestive.” He acknowledges that Nichols was allowed to testify that a suggestive question is different from a leading question and that both types of improper questions were present in all three of the videotaped interviews she watched: C.B., C.H., and B.H. However, Wells complains that Nichols “was not allowed to give specific examples or explain how these types of questions can produce inaccurate results.”
The State points not only to these Wells acknowledgments but also to the fact that Nichols was allowed to testify about accepted interview protocols from five different professional associations: the National Institute of Child Health and Human Development; the American Academy of Child and Adolescent Psychiatry; the American Medical Association; the American Professional Society on the Abuse of Children; and the American Psychological Association.
The State further emphasizes that Nichols was allowed to testify generally about the problems she perceived with the interviewing techniques used here, e.g., that the professionally accepted protocols from these organizations were not followed. Specifically, she opined that Runyan’s interviews were more like interrogations. They were short, and rapport with the children probably was not established; Runyan interrupted the children; the children were not first allowed to tell their story, followed by directed questions by Runyan to “tease out details that weren’t given;” and Runyan made no assessment of each child’s knowledge of the difference between truth and lying.
In specific response to Wells’ argument about the improper limitations on Nichols’ testimony regarding suggestibility, the State argues that she was allowed to opine that the suggestibility of children is a concern, without getting into the reasons. It also argues that she was additionally allowed to testify about the effects of coercive or suggestive questioning techniques in general.
Even though Nichols was not allowed to testify about the Sam Stone Research Study on suggestibility, we agree with the State that the jury was allowed to hear Nichols testify about the specific problems with Runyan’s interviews in this case. In particular, it heard her opinion of how he inappropriately used suggestive and leading questions in all the interviews. We observe that Nichols was allowed to explain that a suggestive question usually has a yes or no answer because the interviewer is suggesting that the inquiry actually constitutes a statement of fact. She was also allowed to explain that, on the other hand, a leading question leads to a story that may not actually have been told by the child. Most important, she was further allowed to testify that Runyan’s leading questions “tend to provide information to the children that they did not know” which “contaminates” the interviews. In short, on these facts there was no abuse of trial court discretion in disallowing evidence about the Sam Stone study.
Mothers Questioning
For Wells’ second claim that the trial court erred in disallowing expert testimony on how certain procedures and techniques could adversely affect the reliability and accuracy of a child’s statement, he contends Nichols should have been allowed to criticize the way R.B. questioned her daughter, C.B., the morning of the incident. Wells sought to have Nichols testify that R.B. asked C.B. suggestive and leading questions, apparently as gleaned from R.B.’s written statement memorializing the interview. The trial court ruled that only Detective Runyan’s videotaped interviews of the three children could be critiqued by Nichols.
As mentioned, Nichols testified that she criticized Runyan’s videotaped interviews because, among other things, they did not simply elicit a story from each of the children and then follow up with directed questions. Wells now argues that it was “important for the jury to know that the questioning of C.B. by the mother was also defective in that way.”
We observe Wells candidly admits that Nichols was allowed to testify that one of her criterion for proper questioning was to avoid multiple interviews of the child witnesses, including unsupervised questioning by family members. She also testified that this practice was not followed because multiple interviews were conducted— which would necessarily include R.B.’s interview of C.B.
Wells’ brief also expressly directs us to the trial transcript to show that “the process of mother’s questioning of C.B. was testified to extensively by [R.B.].” The transcript also reveals, however, that Wells’ counsel was able to cross-examine R.B. at length and to criticize her interview approach. For example, he asked several questions about how R.B. questioned her daughters after she returned home the morning of the incident. The transcript also shows that counsel asked multiple questions about the exact questions she asked and their sequence. He then confirmed that she did ask those “types” of questions.
Counsel also forced R.B. to admit that a word used in her testimony, “winky,” was not used in the home by her children, perhaps suggesting she placed that word and others in C.B.’s mouth during her questioning. In short, he had ample opportunity to cross-examine R.B. on her purported use of leading and suggestive questions and other doubtful techniques, e.g., her purported failure to allow her 5-year-old daughter to first simply tell the story and then ask direct questions of C.B.
We conclude that even though Nichols was not allowed to testily critically about R.B.’s interviewing approach with her daughter, her testimony on this subject was not necessary to the jury’s decision. The jurors heard Nichols’ specific criticisms of the techniques of trained interviewer Detective Runyan. This included her opinion that as a result of leading questions, information could have been provided to C.B. that she did not know which then contaminates the interview. The trial court was within its discretion in determining that the jurors did not need Nichols to repeat many of these same criticisms about similar techniques used by an untrained mother with her daughter, especially when defense counsel addressed them on cross-examination. See Cooperwood, 282 Kan. 572, Syl. ¶ 5 (necessity under the particular circumstances of the case is the basis for the admissibility of expert witness testimony). In short, Wells was able to present evidence to the jury of problems existing with the mother’s interviewing approach.
Critique of Finding Words Protocol
For Wells’ third claim of error, he contends Nichols should have been allowed to state her specific criticisms of the Finding Words protocol used by Detective Runyan. Defense counsel indicated that Nichols would have provided general criticisms of the program based on the content of its website and her general knowledge. This criticism would have included, among other things, that the program is for profit; that the website reflects no research or peer-reviewed articles; that the program is sponsored by the Association of Prosecutors Research Institute; that it was established by Cornerhouse; that the protocol does not have the criteria of other protocols; and that the protocol is secret. Consequently, Nichols would have testified that these factors make it difficult for researchers to compare the Finding Words protocol with other protocols.
Although the State does not dispute that Nichols is an expert in clinical/adolescent psychology, it argued that Nichols did not have sufficient knowledge to testify about the Finding Words protocol. She had never been to the training course and had never read its protocol. Her only information came from reading the Finding Words website and from a colleague who had previously used this particular protocol.
The trial court held that Nichols did not have sufficient knowledge of whether the Finding Words Protocol is a valid method because her knowledge was limited to a review of the website and discussions with a colleague. As set forth above, K.S.A. 60-456 limits expert opinion or inference testimony to “such opinions as the judge finds are ... (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” We agree with the trial court’s analysis and holding under 60-456. At the time of trial, Nichols did not have special knowledge about whether the Finding Words protocol is a valid interviewing method. The court properly limited her testimony to a discussion of what is required by other interviewing protocols.
Moreover, even though Nichols was not allowed to testify critically about the Finding Words protocol, we agree with the State that the record reveals Wells was able to present evidence to the jury indicating that the program was suspect. Most important is Runyan’s admission that this protocol is not verified by the scientific community, in apparent contrast to the other five protocols testified to by Nichols, e.g., the American Academy of Child and Adolescent Psychiatry and the American Medical Association. Of additional significance is his admission that the Finding Words protocol does not require him to ascertain whether a child knows the difference between telling the truth and telling a he. Accordingly, he did not “attempt to assess with [C.B.] if she knew the difference between telling a story and telling truth.”
Data on False Reporting
For Wells’ last claim of error, he contends Nichols should have been allowed to testily that scientific data shows that the “ ‘incident of false reporting is approximately 68% in cases in which families are being separated.’ ” He points to evidence in the record and argues that “[i]t is fair to say from that evidence that the family was in turmoil and separation was a definite possibility. Consequently, the cited statistical relationship had potential relevance to the allegation which arose under such circumstances.” (Emphasis added). Wells argues that this data is important because, again, it is “necessary that the expert be able to comment to some extent about what can happen, in general, if improper methods of interviewing are used.”
Frankly, the threshold premise for the admission of this particular evidence — the family’s separation — is speculative. Wells himself describes the separation, at best, as merely a “definite possibility.” Moreover, his characterization of the evidence as having “potential,” as opposed to “actual,” relevance further dilutes his argument. Finally, relevance is a determination obviously within the trial court’s discretion. State v. Reid, 286 Kan. 494, 507, 186 P.3d 713 (2008). We cannot hold that the decision to exclude speculative evidence was an abuse of discretion.
In addition to the State’s specific responses to Wells’ four categories of purported evidentiary error, it also argues that Wells was nevertheless able to present evidence of his defense through other means. Without reviewing its specific examples, we simply note that Wells essentially admits as much. As mentioned, his brief acknowledges that the adverse effects on the reliability and accuracy of a child’s statement of employing improper interviewing procedures and techniques — as used in this case — are implied. He asks merely that the adverse consequences be clearly stated or explained, i.e., as part of Nichols’ testimony.
After thoroughly reviewing the record, we conclude that there was neither an abuse of discretion nor a constitutional violation, i.e., a trial court’s interference with Wells’ constitutional right to present a defense by excluding evidence that was an integral part of it. See State v. Carter, 284 Kan. 312, 320, 160 P.3d 457 (2007); Cooperwood, 282 Kan. at 578-80. More particularly, the trial court allowed expert testimony on two of the three categories identified in State v. Criqui, 2003 WL 22119226, at *4-5 (Kan. App. 2003) (unpublished opinion), rev. denied 277 Kan. 925 (2003): (1) proper and improper interviewing procedures and techniques to be used in child sexual abuse cases and (2) the problems perceived by the expert with the interviewing techniques used in this case.
As previously mentioned, the third area addressed in Criqui— expert testimony on how certain procedures and techniques could adversely affect the reliability and accuracy of a child’s statement — • is not a mandatory ingredient in a required recipe. Accordingly, its exclusion from evidence does not necessarily constitute error. Rather, as here, it is subject to the trial court’s balancing of the rule prohibiting testimony about a witness’s credibility against other evidentiary rules, e.g., the helpfulness of expert testimony to a jury.
In conducting this balancing, the trial court in tire instant case did allow some evidence from Criqui’s third area. More specifically, Nichols was allowed to testify that the use of leading questions by Runyan — and through implication, by C.B.’s mother— contaminates their interviews of children by providing information that the children did not know. Moreover, after hearing related evidence, the jury was left to determine if other purported improper, or improperly used, procedures and techniques similarly could adversely affect the reliability and accuracy of the witnesses and their statements. The jury was capable of connecting these particular dots; expert testimony was not required to help them.
Reversed and remanded for a new trial.
McFarland, C.J., not participating.
Marquardt, J., assigned.
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The opinion of the court was delivered by
Johnson, J.:
Shawn M. Johnson seeks review of die Court of Appeals’ decision in State v. Johnson, No. 96,526, unpublished opinion filed July 20, 2007 (“Johnson II”), which reversed die district court’s dismissal of the criminal charges against Johnson, directed the district court to order Johnson to submit to a psychiatric or psychological examination, and instructed the district court to hold a hearing to determine whether Johnson has now become competent to stand trial. Finding that the district court followed the appropriate statutory procedures and that diere were no reasonable grounds to support an order for another competency hearing, we reverse the Court of Appeals and affirm the district court’s dismissal of the criminal proceedings.
This is the second time the Court of Appeals has reviewed this case and attempted to interpret the provisions of K.S.A. 22-3301 et seq., dealing with die competency of a defendant to stand trial. See State v. Johnson, No. 91,797, unpublished opinion filed July 22, 2005 (“Johnson I”). Unfortunately, on botii occasions, the panels failed to review the cross-referenced provisions of Article 29 of Chapter 59 of the Kansas Statutes Annotated, relating to the involuntary commitment of mentally ill persons. That failure apparently led to a misunderstanding of how those involuntary commitment procedures could be applied in the competency determination of a person who has suffered a traumatic brain injury, i.e., who does not fit the criteria for a “mentally ill person” for involuntary commitment under K.S.A. 59-2945 et seq.
The event precipitating this case occurred on November 24, 2001, when Johnson drove a vehicle into a tree, killing a passenger. Johnson was hospitalized with serious injuries, including a coma-inducing traumatic brain injury. Several months later, on July 8, 2002, the Reno County prosecutor’s office charged Johnson with involuntary manslaughter, claiming that he was driving under the influence when the fatality accident occurred. In October 2002, pursuant to K.S.A. 22-3302(1), the district court ordered an evaluation at Horizon’s Mental Health Center to assess Johnson’s competency to stand trial, and subsequently held hearings on December 18, 2002, and January 2, 2003.
Delmar Thibault, a licensed masters-level psychologist from Horizons, testified on behalf of the State that he had met with Johnson for approximately 2 hours and had performed some limited testing, from which he concluded that Johnson was competent to stand trial. In contrast, Johnson presented the testimony of Mitchel A. Woltersdorf, Ph.D., a clinical and forensic neuropsychologist with the Midwest Brain Function Clinic. Dr. Woltersdorf gave a detailed description of the extensive battery of tests performed on Johnson on January 10, 2002, and repeated on July 31 and August 1, 2002, explaining that the nature of the testing done on head injury patients made separate testing for competency to stand trial unnecessary. Johnson showed some modest improvement on the second set of tests, but he still displayed widespread and severe deficits in memory, nonverbal reasoning, sensory-perception, and processing speed, indicating a permanent impairment in these areas. Dr. Woltersdorf opined that Johnson could understand the nature and purpose of the criminal proceedings against him, but would be unable to malee or assist in making his defense, i.e., that Johnson was not competent to stand trial.
The district court found that the conclusions of Dr. Woltersdorf, which were supported by more objective scientific data, were more credible than the conclusions of Dr. Thibault. Accordingly, the court held that Johnson was unable to assist his counsel in the making of a defense or assist his counsel during trial or hearing and therefore was incompetent to stand trial.
Next, the district court ordered that Johnson be committed for evaluation and treatment, pursuant to K.S.A. 22-3303(1), for a period not to exceed 90 days. Initially, the order was for commitment to Lamed State Hospital, but ultimately, on April 18, 2003, Johnson was ordered to be committed to the Oklahoma NeuroRestorative Center (ONRC), a facility which presumably was better equipped to address Johnson’s diminished cognitive abilities resulting from the traumatic brain injury. The facility’s chief medical officer was directed to certify to the court within 90 days whether Johnson had a substantial probability of attaining competency to stand trial in the foreseeable future.
On June 4, 2003, ONRC filed a neuropsychological evaluation report with the court. In the report, Dr. Roscoe G. Burrows opined that Johnson would be unable to effectively function at trial and that the doctor did not expect any dramatic or meaningful changes in Johnson’s cognitive status. Based on the report, the district court found that there was not a substantial probability that Johnson would attain competency to stand trial in the foreseeable future. In accordance with K.S.A. 22-3303(1), the district court ordered the Secretary of Social and Rehabilitation Services (SRS) to commence involuntary commitment proceedings pursuant to Article 29 of Chapter 59 of the Kansas Statutes Annotated.
On December 3, 2003, SRS sent the prosecutor’s office a letter acknowledging that nothing further had been done in the matter and inquiring about Johnson’s location. The State then filed a motion for a status hearing. Attached to the motion was an affidavit from the lead investigator on the case, Detective Stewart, who had observed Johnson engaged in a conversation with a store clerk in which Johnson was able to discuss a computer program “in some technical detail.” Consequently, at the January 23, 2004, hearing on the motion, the State asked the court to reconsider its incompetency order in light of the new evidence from the detective. The court found that the detective’s affidavit did not refute the expert evidence before the court and denied the request for reconsideration. The court took the matter of SRS’s inaction under advisement and temporarily stayed its order to commence involuntary commitment proceedings.
In a subsequent memorandum opinion and order, the court reiterated that Johnson remained incompetent to stand trial and that there had been no evidence proffered to the contrary. Further, the court found that a letter submitted by Kansas Advocacy and Protective Services, Inc. (KAPS) was persuasive on the question of the involuntary commitment proceedings. The memorandum decision recited that the letter was “attached hereto and incorporated by reference.”
The KAPS letter pointed out that the evidence at the competency hearing established that Johnson was diagnosed with a traumatic brain injury, which “means non-degenerative, structural bran damage resulting in residual deficits and disability that have been acquired by external physical injury. See Kansas Administrative Regulation 30-5-300(a)(48).” The letter succinctly stated: “Traumatic brain injury is not mental illness.” That statement was corroborated by quoting the definitions of “mentally ill person” and “mentally ill person subject to involuntary commitment for care and treatment” contained in K.S.A. 59-2946(e) and (f)(1).
Additionally, the letter explained the disconnect in K.S.A. 22-3303’s mandate that the court must order SRS to commence involuntary commitment proceedings pursuant to Article 29 of Chapter 59 of Kansas Statutes Annotated. For SRS to comply with that order, it must have a petitioner who is willing to sign a verified petition that alleges, inter alia, that the petitioner has a reasonable belief that the respondent “is a mentally ill person subject to involuntary commitment.” K.S.A. 59-2957(b)(l). All of the evidence contradicted such an allegation.
Accordingly, the district court found, based upon the previously admitted medical testimony and reports, that Johnson was not a “mentally ill person” within the meaning of the involuntary commitment statutes, i.e., the prerequisites for a petition under K.S.A. 59-2957 were not present. The court then opined that the law should not require the performance of a futile act, presumably meaning that SRS should not be required to file a perjurious or facially inadequate petition. The court set aside its prior order for commencement of involuntary commitment proceedings and dismissed the criminal case with prejudice.
The State appealed and the Court of Appeals reversed in Johnson I. Johnson I opined that the language of K.S.A. 2004 Supp. 22-3303(1) is clear and mandatory in its requirement that the district court issue an order to the Secretary of SRS to commence involuntary commitment proceedings. Slip op. at 11. The panel faulted the district court for failing to force SRS to comply with the initial order to commence Chapter 59 proceedings by utilizing its criminal contempt power, if necessary, and criticized the withdrawal of the order “based on the judge’s own belief that Johnson was not, in fact, mentally ill.” Slip op. at 11. The panel apparently ignored that portion of the district court’s memorandum decision that in corporated the KAPS letter and failed to review and discuss the involuntary commitment provisions of Article 29 of Chapter 59. Moreover, the opinion appeared to presume that a traumatic brain injury was a mental illness.
Consequently, Johnson I remanded the case to the district court with directions to order the Secretary of SRS to commence involuntary commitment proceedings pursuant to Article 29 of Chapter 59 of the Kansas Statutes Annotated. Slip op. at 15. The opinion also held that the district court’s failure to comply with K.S.A. 22-3303(1) resulted in an abuse of discretion in denying a supplemental competency hearing and an erroneous dismissal with prejudice. Slip op. at 14.
Inexplicably, the Supreme Court denied Johnson’s petition for review, and the case was remanded to the district court. Upon remand, the district court dutifully issued the mandated order to SRS on November 7, 2005. On March 24, 2006, the Secretary of SRS filed a verified petition in the District Court of Ness County. The pleading was carefully worded to clarify that it was being filed pursuant to a court order, rather than alleging the petitioner’s belief that Johnson was a mentally ill person subject to involuntary commitment. The petition included the statutorily required certificate from a qualified mental health professional, but that certificate stated that “Mr. Johnson is a medical patient surviving a severe TBI & is not mentally ill.” The certificate contained the recommendation “that the patient not be detained and admitted to an appropriate inpatient treatment facility for further observation and treatment pending court proceedings." The petitioner also attached Dr. Woltersdorfs evaluation from August 2002 and the ONRC evaluation from May 2003, as well as Johnson’s Home & Community Based Services TBI Waiver Plan of Care.
Upon receiving the Chapter 59 petition, the district court found that there had been no showing of probable cause to believe that Johnson was a mentally ill person subject to involuntary commitment, as that term is defined at K.S.A. 59-2946(f). The court noted that the Secretary was required to file the petition under K.S.A. 22-3303, but opined that no useful purpose could be fulfilled by proceeding further. To the contrary, continuing the proceedings “any further would serve only to delay or interrupt the appropriate provision of services to Mr. Johnson.” The court dismissed the petition, released Johnson from the jurisdiction of the court, and directed that the Reno County District Court be notified of the dismissal.
SRS apparently notified the district attorney’s office that the Ness County District Court had found that Johnson was not a mentally ill person. On March 29, 2006, the State filed a request for a hearing to determine whether Johnson had been restored to competency, specifically complaining that SRS had failed to comply with K.S.A. 22-3305(2), which requires an opinion from the head of the treatment facility as to whether Johnson was now competent to stand trial. The State argued that a new competency evaluation was justified because it had been approximately 4 years since the last set of competency evaluations. Johnson objected to the request, arguing that the State had presented no new evidence which would provide reasonable grounds to conduct a new hearing pursuant to K.S.A. 22-3303(3).
Apparently, the district court advised the parties by letter that it was not ordering Johnson to submit to a new competency evaluation unless the State proffered new evidence to show that Johnson had been restored to competency. However, that letter is not in the record on appeal. On April 24, 2006, the prosecutor filed a motion requesting the district court to reconsider the State’s request for a competency evaluation. The district court issued an order denying the State’s requests for another competency evaluation and a hearing to determine whether competency had been restored. The court also denied the request for a court order directing SRS to supplement its notification pursuant to K.S.A. 22-3305(2), based on the simple fact that Johnson had not been detained or admitted to a psychiatric treatment facility during the pendency of the involuntary commitment proceeding. The pending charges were dismissed without prejudice.
The State again appealed to the Court of Appeals, which in Johnson II again reversed the district court’s order dismissing the criminal charges. The Court of Appeals opined that the district court had “abused its discretion when it denied the State’s motion for an evaluation and hearing ‘on the issue of whether or not the defendant has been restored to competency.’ K.S.A. 2006 Supp. 22-3305(2).” Johnson II, slip op. at 12. It based that conclusion on several factors, including the provisions of K.S.A. 2006 Supp. 22-3305(2) which direct a treatment facility to render an opinion as to current competency; the fact that the evidence of competency at the original hearing was controverted and limited to only one of the two statutoiy factors; the Court of Appeals’ assessment that the evidence available since the original determination suggests that Johnson’s mental processing, memory loss, and distractibility had shown some improvement over time; the panel’s own view of the significance of Johnson’s 2002 performance on the Trail’s Test administered by ORNC; Detective Stewart’s affidavit of the conversation he overheard between Johnson and the store clerk; the panel’s belief that Dr. Woltersdorfs recommendation for computer-assisted cognitive rehabilitation was an acknowledgement that Johnson could get better; and Dr. Woltersdorfs discussion of strategies or accommodations which could be employed at trial to mitigate the effects of Johnson’s brain injury.
The Court of Appeals then “endeavored to fashion a remedy that would provide relief to the State yet facilitate the prompt resolution of whether Johnson has been restored to competency.” Johnson II, slip op. at 21. It remanded the case to the district court with directions to order a psychiatric or psychological examination for the defendant in a manner provided by K.S.A. 22-3302(3), and, upon receipt of the examination report, the district court was directed to hold a hearing to determine whether the defendant has been restored to competency. Slip op. at 21.
STATUTORY PROVISIONS
We begin by describing the path which must be traversed to comport with the statutes governing a defendant’s competency to stand trial, albeit with the knowledge that our journey will dead end at the edge of a precipice which only the legislature can bridge. We will be called upon to interpret the statutes governing competency to stand trial, K.S.A. 22-3301 et seq., and the statutoiy provisions for the care and treatment for mentally ill persons, K.S.A. 59-2945 et seq. The interpretation of a statute is a question of law over which this court has unlimited review. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
Our journey is guided by certain rules of statutory construction:
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Although ordinary words are to be given their ordinary meanings, “ ‘[tjechnical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.’ ” In re Vanderblomen, 264 Kan. 676, 680, 956 P.2d 1320 (1998) (quoting Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 5, 885 P.2d 1246 [1994]). Nevertheless, a court may only go so far in attempting to give effect to legislative intent.
“It is also well established that the doctrine of liberal construction does not allow this court to delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct. [Citation omitted.]” Eveleigh v. Conness, 261 Kan. 970, 978, 933 P.2d 675 (1997).
The criteria for the underlying competency inquiry is set forth in the definition contained in K.S.A. 22-3301(1):
“(1) For the purpose of this article, a person is Incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable:
(a) To understand the nature and purpose of the proceedings against him; or
(b) to make or assist in making his defense.”
The connecting word “or” ordinarily indicates that the connected items are in the disjunctive. See 82 C.J.S, Statutes 331 (“and” ordinarily conjunctive; “or” ordinarily disjunctive). Thus, a person who is either unable to understand the criminal proceedings or unable to assist with his or her defense is considered incompe tent to stand trial. Further, the reason for the defendant’s inability to comprehend can be caused by either a mental illness or a mental defect. In this case, it will be important to keep in mind that Johnson claimed to fall within the definition of a person incompetent to stand trial because of a mental defect that rendered him unable to make or assist in making his defense:
The issue of a defendant’s competency to stand trial may be raised by the defendant, the defendant’s counsel, the prosecutor, or sua sponte by the judge at any time between the filing of the charging document and the pronouncement of sentence. If the judge has reason to believe that the defendant is incompetent to stand trial, the criminal proceedings are suspended and a competency hearing must be held. K.S.A. 22-3302(1). The judge can order a psychiatric or psychological examination of the defendant and may impanel a six-person jury. K.S.A. 22-3302(3).
After the hearing, if the defendant is found to be competent, the criminal proceedings are resumed. K.S.A. 22-3302(4). If the defendant is found to be incompetent to stand trial, tire defendant shall be committed for evaluation and treatment to the state security hospital or any appropriate county or private institution; such commitment shall not exceed 90 days. K.S.A. 22-3302(5); K.S.A. 22-3303(1). Within that 90-day period, the chief medical officer of the commitment institution “shall certify to the court whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future.” K.S.A. 22-3303(1). If such probability exists, the defendant is ordered to remain in the institution for 6 months from the date of the original commitment or until he or she attains competency to stand trial, whichever occurs first. K.S.A. 22-3303(1).
If the institution’s certification states that a substantial probability of attaining competency does not exist or if a detained defendant does not attain competency within 6 months of the original date of commitment, the court “shall order the secretary of social and rehabilitation services to commence involuntaiy commitment proceedings pursuant to article 29 of chapter 59 of the Kansas Statutes Annotated, and any amendments thereto.” K.S.A. 22-3303(1), (2). However, for certain high severity level crimes, which are not involved in this case, the definition of a “mentally ill person subject to involuntary commitment for care and treatment” is modified. That modification will be briefly discussed below.
To this point in our case, the district court had strictly followed the statutory scheme. The issue of competency was timely raised, and the district court formed a belief that Johnson was incompetent to stand trial. The judge referred Johnson to Horizons for a competency evaluation. The defendant obtained an evaluation from Dr. Woltersdorf and submitted a report with his own motion for a competency hearing. A full hearing was conducted, after which the district court made findings on the credibility of the evidence presented and on the ultimate issue, declaring that Johnson was not competent to stand trial. The court committed Johnson to ONRC for up to 90 days. Dr. Burrows, the chief medical officer of ONRC, made the requisite certification to the district court, which then made the finding that there was not a substantial probability that Johnson was likely to be competent to stand trial in the foreseeable future. Pursuant to K.S.A. 22-3303(1), the district court ordered the Secretary of SRS to commence involuntary commitment proceedings under Article 29 of Chapter 59 of the Kansas Statutes Annotated.
Then, however, progress on the case halted. In Johnson I, the Court of Appeals appeared perplexed as to why SRS had not commenced the involuntary commitment proceedings and why the .district court had not invoked its contempt powers to force SRS to do so. Perhaps if the panel had carefully considered that portion of the district court’s memorandum decision that incorporated by reference the KAPS letter, it would have discerned that the answers were to be found in the provisions of K.S.A. 59-2945 et seq.
Again, we will begin our review of the applicable statutory provisions by looking at the fundamental definitions underlying the Act. K.S.A. 59-2946 provides:
“When used in the care and treatment act for mentally ill persons:
“(e) ‘Mentally ill person’ means any person who is suffering from a mental disorder which is manifested by a clinically significant behavioral or psychological syndrome or pattern and associated with either a painful symptom or an impair ment in one or more important areas of functioning, and involving substantial behavioral, psychological or biological dysfunction, to the extent that the person is in need of treatment.
“(f)(1) ‘Mentally ill person subject to involuntary commitment for care and treatment’ means a mentally ill person, as defined in subsection (e), who also lacks capacity to make an informed decision concerning treatment, is likely to cause harm to self or others, and whose diagnosis is not solely one of the following mental disorders: Alcohol or chemical substance abuse; antisocial personality disorder; mental retardation; organic personality syndrome; or an organic mental disorder.”
Prior to the 1996 enactment of the current Care and Treatment Act for Mentally 111 Persons, K.S.A. 59-2945 et seq., the predecessor act, the Treatment Act for Mentally 111 Persons, K.S.A. 59-2901 et seq., only contained a definition for “mentally ill person,” which was found in K.S.A. 59-2902(h). See In re Vanderblomen, 264 Kan. at 680. In providing separate definitions for “mentally ill person” and “mentally ill person subject to involuntary commitment for care and treatment,” the new Act clarified “ ‘that there are certain mentally ill persons who should not be subject to involuntary proceedings to restrict their liberty.’ ” In re Vanderblomen, 264 Kan. at 682 (quoting comments of the Care and Treatment Advisory Committee of the Judicial Council). The mental disorders listed in K.S.A. 59-2946(f)(l) as being specifically not subject to involuntary commitment were intentionally excluded because they “ ‘are generally professionally recognized as unresponsive to psychiatric treatment.’ ” In re Vanderblomen, 264 Kan. at 682 (quoting comments of the Care and Treatment Advisory Committee of the Judicial Council).
According to all of the evidence in the record, including all of the professional diagnoses, Johnson was afflicted with a traumatic brain injury. We have previously clarified that a traumatic closed head injury resulting from a motor vehicle accident is an “ ‘organic mental disorder,’ which . . . [is] one of those diagnoses which will not justify an involuntary commitment.” In re Vanderblomen, 264 Kan. at 683. Like Vanderblomen, Johnson was not a mentally ill person subject to involuntary commitment for care and treatment because his sole diagnosis was an organic mental disorder.
Armed with that knowledge, we proceed to consider what the SRS had to do to commence the court-ordered involuntary commitment proceedings. K.S.A. 59-2957 sets forth the requirements of a petition to obtain a judicial determination of mental illness, an obvious prerequisite to an involuntary mental illness commitment. First, the petition must be verified, i.e., the petitioner must swear an oath that the statements contained in the petition are true and correct. One of the statements required to be contained in the petition is “[t]he petitioner s belief that the named person is a mentally ill person subject to involuntaiy commitment and the facts upon which this belief is based.” K.S.A. 59-2957(b)(l). Thus, the first hurdle for the Secretary of SRS was how to swear an oath that the Secretaiy believed Johnson to be a mentally ill person subject to involuntary commitment and how to state the true and correct facts upon which that belief was based when all of the facts available to the Secretary refuted such a belief. Because Johnson was solely diagnosed with an organic mental disorder, he was statutorily excluded from the definition of a mentally ill person subject to involuntary commitment, and the Secretaiy could not swear otherwise.
Furthermore, the petition must be accompanied by a certificate from a physician, psychologist, or qualified mental health professional stating that such professional has personally examined the person and any available records and has found that the person, in such professional’s opinion, is likely to be a mentally ill person subject to involuntary commitment for care and treatment under the Act. K.S.A. 59-2957(c)(l). The provision provides an exception where the proposed patient has been so uncooperative as to prevent an examination, but that was not the case here. Johnson had cooperated with all of the examiners and, presumably, SRS had access to the reports from Dr. Woltersdorf, Dr. Burrows, and Mr. Thibault. However, none of those professionals’ diagnoses would support an allegation that Johnson was mentally ill for involuntary commitment purposes. SRS was simply unable to comply with the certificate requirement.
Thus, we have reached our first statutory dead end. Although K.S.A. 22-3303(1) mandates that the district court order SRS to commence proceedings to involuntarily commit a defendant who has been adjudged incompetent to stand trial with no substantial probability of attaining competency in the foreseeable future, SRS cannot legally comply with that order under K.S.A. 59-2945 et seq. if the incompetency is due solely to an organic mental disorder such as traumatic brain injury. The district court understood that dilemma, as evidenced by the statement in the memorandum decision that the law should not require a futile act. Even the legislature apparently understood the problem as early as 2001, when it enacted K.S.A. 22-3306, entitled “Task force to study programs for alleged offenders with disabilities who are potentially incompetent to stand trial and make recommendations,” which provides:
“The secretary of social and rehabilitation services shall convene a task force to study current programs and laws for alleged offenders with disabilities that render such offenders potentially incompetent to stand trial, but who do not nieet the criteria for involuntary commitment under Kansas law. The task force shall review and make recommendations on the adequacy of Kansas programs and services, and current Kansas law, in protecting public safety and in providing services and support to such alleged offenders. The secretary shall report to the judiciary committee during the 2001 interim and shall malee a final report including programmatic and statutory recommendations to the 2002 legislature.” (Emphasis added.)
As the legislature noted, the competing interests are protecting public safety on the one hand, and providing services and support for persons with disabilities on the other. If a person is incompetent to stand trial and also cannot be committed for mental illness treatment, that person is simply returned to the community without supervision, in derogation of public safety. Yet, if a person has a condition that cannot be improved through treatment, e.g., a traumatic brain injury, then involuntarily committing that person under K.S.A. 59-2945 et seq. is akin to a life sentence without possibility of parole. In 2001, the legislature struck a balance between the competing interests by amending K.S.A. 22-3303(1) to add a provision which would permit the involuntary commitment of persons who are incompetent to stand trial because of one of the excepted diagnoses listed in K.S.A. 59-2946(f)(l), but who have been charged with certain crimes. The added provision states:
“When a defendant is charged with any off-grid felony, any nondrug severity-level 1 through 3 felony, or a violation of K.S.A. 21-3504 [aggravated indecent liberties with a child], 21-3511 [aggravated indecent solicitation of a child], 21-3518 [aggravated sexual battery], 21-3603 [aggravated incest] or 21-3719 [aggravated arson], and amendments thereto, and commitment proceedings have commenced, for such proceeding, ‘mentally ill person subject to involuntary commitment for care and treatment’ means a mentally ill person, as defined in subsection (e) of K.S.A. 59-2946, and amendments thereto, who is likely to cause harm to self and others, as defined in subsection (f)(3) of K.S.A. 59-2946, and amendments thereto. The other provisions of subsection (f) ofKS.A. 59-2946, and amendments thereto, shall not apply.” (Emphasis added.) K.S.A. 22-3303(1).
Unfortunately, Johnson I did not appear to pick up on the legislatively recognized problem, because it remanded with directions for the district court to reinstate and enforce the order for SRS to commence involuntary commitment proceedings, even though Johnson had not been charged with one of the crimes with a modified definition of mentally ill person subject to involuntary commitment for care and treatment. One can only imagine the consternation and frustration the district court and SRS must have experienced when faced with an appellate court mandate to do that which could not be done.
As it turned out, the district court’s prediction was accurate. The filing of the commitment petition was truly a futile and superfluous act, correctly resulting in an immediate dismissal for lack of probable cause to believe that Johnson was a mentally ill person subject to involuntary commitment. See K.S.A. 59-2959(d)(3) (at temporary custody hearing, court must find probable cause or, lacking probable cause, “the court shall terminate the proceedings and release the person”); K.S.A. 59-2962 (court must find probable cause to order mental evaluation; lacking probable cause, “the court shall terminate the proceedings”).
With the dismissal of the involuntary commitment petition, the disconnect with the competency statutes continued. Both Johnson I and Johnson II discuss K.S.A. 22-3305, which addresses what is to happen after SRS has commenced the Chapter 59 involuntary commitment proceedings. If the defendant is not admitted as a patient in the treatment facility to which he or she was sent for evaluation, the defendant is to remain in that institution and the SRS is to notify the court and prosecutor of the county where the criminal proceedings are pending. K.S.A. 22-3305(1). Also, if a defendant has been admitted as a patient but is thereafter to be discharged, he or she is to remain at the institution while the court and prosecutor are notified. K.S.A. 22-3305(2). When giving the required notification to the court and prosecutor, the treatment facility is to include “an opinion from the head of the treatment facility as to whether or not the defendant is now competent to stand trial.” K.S.A. 22-3305(2). The prosecutor may then request a hearing on the issue of competency restoration, but if such request is not made within 10 days of receipt of the treatment facility notification, “the court shall order the defendant to be discharged from commitment and shall dismiss without prejudice the charges against the defendant.” K.S.A. 22-3305(2).
Obviously, this provision does not contemplate an immediate dismissal of the involuntary commitment petition for lack of probable cause to believe the patient is mentally ill, because without probable cause the defendant cannot be sent to a treatment facility for evaluation. If the defendant never gets to a treatment facility, then that non-existent facility cannot continue to detain the defendant and the head of the phantom facility cannot form an opinion as to the absent defendant’s competency to stand trial.
In Johnson II, the Court of Appeals chastised SRS for failing to comply with the plainly-stated mandate of K.S.A. 22-3305(2) to provide a competency opinion from the head of the treatment facility. Again, the Court of Appeals looked solely at the competency statutes, without considering the interface with K.S.A. 59-2945 et seq., and opined that SRS should have done the impossible. This time, however, it was not only legally impossible for SRS to comply with the provisions of the competency statutes, but it was physically impossible as well because there was no treatment facility from which to obtain an opinion. Accordingly, Johnson IFs reliance on a violation of K.S.A. 22-3305(2) is misplaced.
Finally, we come to the only statute which has any relevance to Johnson’s case at this time. K.S.A. 22-3303(3) provides a mechanism for the district court to revisit the competency issue. It states, “When reasonable grounds exist to believe that a defendant who has been adjudged incompetent to stand trial is competent, the court in which the criminal case is pending shall conduct a hearing in accordance with K.S.A. 22-3302 and amendments thereto to determine the persons present mental condition.” K.S.A. 22-3303(3).
REHEARING ON COMPETENCY
The Court of Appeals applied an abuse of discretion standard of review, presumably relying on the language in K.S.A. 22-3305(2) that says the court “may” set a hearing after notification of discharge from the treatment facility. Here, we are dealing with K.S.A. 22-3303(3), which says the court “shall conduct a hearing.” Nevertheless, in determining whether reasonable grounds existed to revisit the competency issue, we should afford a great deal of deference to the trial court that conducted the original proceedings.
On the existence of reasonable grounds to believe that Johnson had become competent to stand trial, the district court made the following findings:
“2. The defendant was found incompetent to stand trial as a result of brain trauma and the evidence established the effects of the trauma are permanent and irreversible, and therefore, the passage of time is not a reasonable ground to believe the defendant is competent.
“3. The recent dismissal of involuntary commitment proceedings in Ness County District Court Case No. 2006-CT-02 does not provide reasonable grounds to believe that the defendant is competent as contemplated by K.S.A. 2005 Supp. 22-3303(3).”
The district court was absolutely correct in its assessment of the relevance of the dismissal of the involuntary commitment proceedings. That action simply meant that there was no probable cause to believe that Johnson was a mentally ill person subject to involuntary commitment for care and treatment because his sole diagnosis was an organic mental disorder. An organic mental disorder is, however, a mental defect within the meaning of the competency statutes. As noted previously, the district court understood the distinction; the prosecutor should have understood it as well.
The district court’s finding as to the nature and extent of Johnson’s traumatic brain injury is directly supported by the opinions of both Dr. Woltersdorf and Dr. Burrows. Even Mr. Thibault, who testified for the State, did not dispute the diagnosis, but rather he simply disputed the effect of the injury on Johnson’s ability to assist with his defense. Even then, Mr. Thibault acknowledged that Dr. Woltersdorf s testing was considerably more thorough. The district court specifically found Dr. Woltersdorf s testimony to be more credible.
Nevertheless, it is not the function of an appellate court to weigh conflicting evidence, to evaluate witnesses’ credibility, or to redetermine questions of fact. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). The Court of Appeals appeared to do all three in Johnson II.
One of factors the Court of Appeals cited as supporting a new competency evaluation and hearing was a belief that the original competency hearing “was both controverted and limited in scope.” Johnson II, slip op. at 16. A determination of whether reasonable grounds existed to have a second competency hearing should not lead an appellate court to redetermine the factual questions from the original hearing. Moreover, as we noted, incompetency can occur if the defendant is either unable to understand the nature and purpose of the proceedings against him or unable to malee or assist in making his defense. The fact that only one of the alternative definitions of incompetency was present in the case does not provide reasonable grounds to believe that competency has been restored.
The Court of Appeals not only weighed the evidence, it endeavored to provide its own analysis of the significance of certain test scores. That task was best left to the experts. Two of those experts, Dr. Woltersdorf and Dr. Burrows, opined that, given the lapse of time since the accident, they would not expect to see any significant improvement in Johnson’s cognitive abilities. In rendering those opinions, the experts had the benefit of Johnson’s results on the base line tests in January 2002 and the results from the same tests which were given subsequently. Although the experts noted slight improvement on the later tests, part of that was attributed to the patient’s familiarity with the tests the second time around. Nevertheless, the experts had the test results when opining that Johnson would not significantly improve. We should not question the credibility of those opinions based upon our own lay analysis of what the test results show.
Moreover, the experts’ opinions directly refute Johnson ITs assertion that the passage of time since the last medical evaluation of Johnson’s cognitive abilities provides a reasonable ground to believe he is now competent. If the diagnosis is permanent and irreversible brain damage, the relative date of that assessment is immaterial.
Further, any reliance on the detective’s affidavit setting forth the conversation he overheard between Johnson and a store clerk is suspect. The State provided no foundation as to the detective’s knowledge of computer programs to give context to his statement that the conversation contained “some technical detail.” For the uninformed, gibberish can sound like technical detail. Moreover, we do not know whether Johnson’s part of the conversation was responsive to that of the clerk. Nevertheless, the district court considered the affidavit and opined that it did not override the expert opinions that were contained in the court file. We agree. If the State wanted an assessment of what the conversation may have meant on tire issue of competency, it should have submitted the information to an expert for analysis.
Also, we question the Court of Appeals’ characterization of Dr. Woltersdorf s recommendation that Johnson engage in computer-assisted cognitive rehabilitation. Johnson II viewed it as an acknowledgment that Johnson could be rehabilitated to competency to stand trial. We are unwilling to put those words in the doctor’s mouth. The more likely reason for the treatment recommendation was to assist Johnson in reaching some level of independent living, rather than to attain competency to stand trial.
Finally, tire Court of Appeals believed it was a factor that Dr. Woltersdorf had testified about “certain strategies or accommodations which could be employed by the district court during a trial of this matter in an effort to mitigate the effects of Johnson’s brain injury.” Johnson II, slip op. at 20. However, the doctor discussed those possible strategies while giving his opinion that Johnson was incompetent to stand trial; he did not say that the strategies would resolve the problem. To the contrary, the doctor said that he knew of no adjustments in the courtroom which could compensate for Johnson’s slow mental processing, which emanated from a non-healing area of the brain.
In conclusion, the district court’s finding that the State had not proffered any evidence to establish reasonable grounds to believe that Johnson had been restored to competency to stand trial is supported by the record. In fact, the record provides reasonable grounds to believe that Johnson will never be restored to competency to stand trial. Accordingly, we reverse the Court of Appeals’ decision and affirm the district court’s order dismissing the criminal proceedings without prejudice.
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The opinion of the court was delivered by
Luckert, J.:
This appeal arises from a district court’s decision to quash the registration and attempted enforcement of a Florida temporary injunction, filed under the Uniform Enforcement of Foreign Judgments Act (Foreign Judgments Act), K.S.A. 60-3001 et seq. We affirm this decision, holding that an ex parte temporary injunction is not entitled to full faith and credit because it is a prejudgment, temporary order. Therefore, it is not subject to enforcement under either the Foreign Judgments Act or the Full Faith and Credit Clause of the United States Constitution, Article 4, § 1. We further hold that the district court erred in examining the merits of the underlying action, considering a counterclaim, and entering an injunction and other orders because the Foreign Judgments Act grants only limited subject matter jurisdiction for the purpose of enforcing a foreign judgment. Finally, we conclude the district court did not abuse its discretion in refusing to recognize the foreign judgment as a matter of comity because the Florida order is contrary to the public policy of this state.
Factual and Procedural Background
The foreign judgment at issue in this case was entered in an action filed on March 18, 2008, in the Circuit Court of MiamiDade County, Florida. The Florida action was filed by Orlando Padrón, a resident of Florida, and HLMP Aviation Corporation, a Delaware corporation jointly owned by Padrón and Heman Lopez. (For ease of reference the plaintiffs will be collectively referred to as Padrón.) The named defendants in the Florida action were Lopez, a resident of Florida; PTC Aviation Corporation, a Florida corporation; Dodson International Parts, Inc., and Dodson Aviation, Inc., a/k/a Dodson International (collectively referred to as Dodson), both Kansas corporations; and 1st Source Bank, a “USA Indiana licensed banking institution.” Padrón alleged that Lopez, PTC, and Dodson conspired to defraud Padrón into organizing and investing capital in HLMP Aviation and then used the capital to purchase the Beech 200 Model Aircraft that is the focus of this case. At the time the Florida action was filed, Dodson, which is in the business of repairing aircraft, had possession of the aircraft in Kansas and had performed repairs on the aircraft.
In the Florida action, Padrón obtained an ex parte temporary order that enjoined the defendants “from selling, transferring, transporting, encumbering, auctioning, and operating” the aircraft. Further, the Florida temporary injunction ordered those in possession of the aircraft to transfer possession of the aircraft to Padrón or Padron’s agents “upon presentation of this Order” and authorized the relocation of the aircraft to Dade County, Florida. The Florida court indicated that the ex parte temporary injunction was being “granted without notice to the Defendants to prevent the Aircraft from being sold or transferred to third parties.” Although the order became effective upon the filing of a bond, the Florida order further provided: “The Defendants and all interested parties may petition this Court for relief from this Temporary Injunction as provided for under the Florida Rules of Civil Procedure and applicable Florida Law.” Under Rule 1.610 of the Florida Rules of Civil Procedure, 31 Fla. Stat. R.C.P. Rule 1.610 (2004), a party against whom an ex parte temporary injunction has been entered may move to dissolve or modify a temporary injunction. A hearing must be scheduled within 5 days of that motion.
The day after the ex parte temporary injunction was entered in the Florida action, Padrón filed a “Notice of Filing of Foreign Judgment” pursuant to the Foreign Judgments Act, K.S.A. 60-3001 et seq., in Franklin County, Kansas, where Dodson possessed the aircraft while performing repairs. Attached to the notice were copies of the Florida ex parte temporary injunction and a notice that Padrón had posted a $450,000 injunction bond in Florida. Within hours of the filing, Padron’s agents, with the assistance of the Franklin County Sheriff, removed the aircraft from Dodson’s possession.
Later that same day, Dodson filed a “Motion to Quash Foreign Judgment.” A few days later, Dodson filed an amended motion in which it expanded on its arguments. In both motions, Dodson alleged the Florida court did not have personal jurisdiction over Dodson and was without authority to enter the injunction. Dodson also asserted a mechanic’s hen pursuant to K.S.A. 58-201 and alleged that Padron’s removal of the aircraft jeopardized Dodson’s possessory mechanic’s hen and its ability to collect the amounts it was owed for parts and services related to the repair of the aircraft. Finally, Dodson asserted the judgment should be quashed because a bond had not been posted in Franklin County District Court as required by K.S.A. 60-901, the Kansas injunction statute. In the amended motion, Dodson requested that
“the court immediately quash the temporary injunction for lack of jurisdiction and failure to post the required bond and order [Padrón] to return the aircraft to the possession of [Dodson] in the State of Kansas. If the court declines to quash the temporary injunction, [Dodson] requests] that the court issue a stay of the injunction, return the aircraft to the possession of [Dodson], and order the aircraft to remain in [Dodson s] possession until such time as the matter can be more fully heard. If possession [of the aircraft] is not returned to [Dodson, it] requests that the court require a bond in an appropriate amount to be filed
Attached to the amended motion were affidavits of the president of Dodson Aviation and the chief financial officer of Dodson International Parts, Inc. The affidavits supported Dodson’s argument that its Kansas corporations were not subject to the Florida court’s jurisdiction; each affiant stated that the corporations were not registered to do business in Florida and had not done business in Florida. Attached to the Dodson Aviation president’s affidavit was a copy of Dodson’s mechanic’s hen that had been filed with the Franklin County Register of Deeds.
While Dodson objected to the Kansas action and filed pleadings in the Kansas case to quash the temporary injunction, no steps were taken in Florida to modify the ex parte temporary injunction. However, another defendant in the Florida action — 1st Source Bank— filed a motion seeking an increased injunction bond. The Florida court granted this motion and required an additional $800,000 to be posted. Padrón complied on April 30, 2008, and filed a notice in the Franklin County action reporting the filing of the additional bond.
Meanwhile, several hearings were conducted in the Kansas proceeding. On April 1, 2008, the Franklin County District Court granted Dodson’s motion to quash and found that the Franklin County Sheriff had not been given the authority in Kansas to seize the aircraft. Even though the district court granted Dodson’s prayer to quash the foreign judgment, it also granted Dodson’s alternative prayers by entering orders requiring the return of the aircraft to Kansas or the posting of an injunction bond in the Franklin County District Court that was specifically designated for the satisfaction of Dodson’s lien. The journal entry reflecting these orders was entered on April 4, 2008.
By April 8, 2008, Padrón had not returned the aircraft or posted a bond in Kansas, leading Dodson to file a motion seeking an order to show cause why Padrón should not be held in contempt of court. On April 15,2008, Padrón filed a motion for rehearing. In Padron’s memorandum of support, Padrón argued, inter alia, that the district court erred in quashing the Florida injunction because the court failed to find any procedural defect in the filing of the foreign judgment in Kansas and, to the extent the district court’s ruling was based on an implicit finding of no personal jurisdiction over Dodson in Florida, the district court erred. Padrón asserted that the Florida court merely ordered the return of the aircraft pending final adjudication of the underlying matter, which would not impair Dodson’s ability to challenge jurisdiction in Florida or to raise other defenses in the Florida lawsuit.
In addition, Padrón raised a challenge based on jurisdiction, arguing Padrón had consented to jurisdiction in Kansas only for the limited purpose of making the foreign judgment valid and “ripe” for. enforcement in Kansas. Padrón contended that once the district court set aside the Florida injunction and declined to give it full faith and credit, there was no basis to subject Padrón to the general jurisdiction of the Kansas court for purposes of issuing additional orders.
At the hearing on the contempt motion, the district court first denied Padrón s motion for rehearing. The court reiterated that the Florida injunction failed to comply with either K.S.A. 60-903 or K.S.A. 60-905 and that those statutes required Padrón to post a bond in Kansas. The court reasoned that a bond must be posted in Kansas because K.S.A. 60-3002 requires that “any foreign judgment would be subject to the same procedures, defenses and proceedings as any other judgment in Kansas.” (Emphasis added.) The court noted that in Kansas, a bond is required in every case before a temporary injunction will operate, unless another statute expressly dispenses with the requirement. See K.S.A. 60-905; Ostler v. Nickel, 196 Kan. 477, 479-80, 413 P.2d 303 (1966) (issuing a temporaiy injunction without a bond is erroneous).
Regarding the allegation of contempt, the district court concluded it had jurisdiction to hold Padrón in contempt and further determined that Padrón was in contempt of court due to Padron’s failure to return the aircraft to Kansas. Padrón was given until May 5,2008, to either return the aircraft or to post a bond in the amount of $502,000 with the clerk of the Franklin County District Court.
On May 6, 2008, Dodson filed a verified motion to foreclose its mechanic’s hen and a counterclaim for damages. On the same day, the district court held a hearing and granted Padron’s request for a 1-week continuance for compliance with the court’s previous orders to return the aircraft or post a bond. At that time, the district court denied Dodson’s request to impose a daily fine on Padrón for fading to comply with the court’s orders.
The parties once again appeared before the district court through counsel on May 13, 2008. Dodson renewed its request for the imposition of a daily fine to nudge Padrón into compliance with the court’s orders, and Padron’s counsel raised a general objection to the issuance of a contempt fine. After finding that Padrón had not returned the aircraft to Kansas and had not posted a bond in Kansas, the district court ordered Padrón to pay a fine of $2,500 per day beginning May 13,2008, and continuing until Padrón complied with the court’s orders. The court’s journal entry was filed on May 21, 2008.
Padrón subsequently filed a motion for relief, arguing that the journal entry of contempt was void for lack of service of process because Dodson’s motions regarding contempt were never personally served on Padrón. The district court denied Padron’s motion, observing that despite Padron’s status as an out-of-state litigant, Padrón had continued to litigate the validity of the district court’s order quashing the Florida injunction, essentially submitting to the jurisdiction of the Kansas court.
Padrón now appeals. The district court stayed the foreclosure of Dodson’s mechanic’s Men pending this appeal.
Full Faitpi and Credit and Comity
The parties have based their arguments on the Full Faith and Credit Clause of the United States Constitution, Article 4, § 1; the Foreign Judgments Act, K.S.A. 60-3001 et seq.; and the common-law doctrine of comity. While the parties have often failed to distinguish between these provisions and doctrines, for purposes of our analysis it is important to separate the concept of comity from full faith and credit, which comes into play in an analysis under either the Full Faith and Credit Clause or the Foreign Judgments Act.
A. Full Faith and Credit
As a general rule, when a properly authenticated judgment of a state other tiran Kansas is offered as evidence in a Kansas court, the Full Faith and Credit Clause of the United States Constitution, Article 4, § 1, gives the foreign judgment the same force and effect in Kansas as it has in the state where the judgment was rendered. Hamilton v. Netherton, 194 Kan. 683, 685, 401 P.2d 657 (1965); Fischer v. Kipp, 177 Kan. 196, 197-98, 277 P.2d 598 (1954). In other words, once a copy of an authenticated judgment from another state is filed with a clerk of the district court, the foreign judgment “is then treated as a judgment of [this] state and can be executed upon the same.” 1 Elrod and Buchele, Kansas Law & Practice: Kansas Family Law § 9.71, p. 617 (4th ed. 1999).
In Kansas, a party has the option to file either a common-law action to enforce a foreign judgment or may file a judgment pur suant to the Foreign Judgments Act, K.S.A. 60-3001 et seq. See K.S.A. 60-3006 (declaring that the right of a judgment creditor to bring an action to enforce a judgment instead of proceeding under the Foreign Judgments Act remains unimpaired); Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 407, 661 P.2d 1242 (1983); see Warner v. Warner, 9 Kan. App. 2d 6, 8, 668 P.2d 193 (1983); see also 5 Gard and Casad, Kansas Law & Practice, Kan. C. Civ. Proc. Annot. § 60-3001, p. 476 (4th ed. 2003) (Foreign Judgments Act “provides a convenient optional alternative to bringing an action based on the foreign judgment and pleading the fact of such judgment as provided in K.S.A. 60-209[e] as a ‘special matter,’ with the result that by such judicial process the judgment is reduced to the status of a local Kansas judgment, enforceable as such.”).
Padron’s single sentence “Notice of Foreign Judgment,” which served as the basis for this action, indicated it was filed under the Foreign Judgments Act.
1. Standard of Review
Analyzing the full faith and credit aspects of the issue requires examining the Constitution, applicable statutes, and various jurisdictional considerations. Questions involving jurisdiction and constitutional or statutory interpretation are legal questions over which appellate courts have unlimited review. Harsch v. Miller, 288 Kan. 280, 286, 200 P.3d 467 (2009); Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008); Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 371, 130 P.3d 560 (2006).
As we consider the provisions of the Foreign Judgments Act, the most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Winnebago Tribe of Nebraska v. Kline, 283 Kan. 64, 77, 150 P.3d 892 (2007). An appellate court’s first task is to “ascertain the legislature’s intent through the statutory language it employs, giving ordinary words their ordinary meaning.” State v. Stallings, 284 Kan. 741, 742, 163 P.3d 1232 (2007). When a statute is plain and unambiguous, this court will not speculate as to legislative intent and will not read the statute to add something not readily found in it. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 172 L. Ed. 2d 239 (2008).
2. Foreign Judgments Act
K.S.A. 60-3002 of the Foreign Judgments Act specifically provides for the filing and treatment of foreign judgments:
“A copy of any foreign judgment authenticated in accordance with the act of congress, the statutes of this state or certified in accordance with the statutes of the state in which the judgment was rendered, may be filed in the office of the cleric of any district court of this state. Such copy must be filed by an attorney licensed to practice law in the state of Kansas. The clerk of the district court shall. treat die foreign judgment in the same manner as a judgment of the district court of this state. A judgment: filed as provided by this section has the same effect and is subject to the saíne procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner.” (Emphasis added.)
Addressing the procedural aspects of this provision, the district court concluded: “[I]t appears [the Florida judgment is] valid . . . and was filed properly ... in Franldin County.” Nevertheless, the district court quashed the Florida injunction because it did “not appear to protect the interest” of Dodson. Padrón argues that this conclusion is based on the district court’s disagreement with the Florida ruling and, therefore, is contrary to the Foreign Judgments Act which does not allow an examination of the merits of a foreign judgment. Rather, Padrón argues, the Foreign Judgments Act requires the district court to give full faith and credit to a foreign judgment unless the court finds (1) fraud in the procurement of the judgment or (2) that the issuing court lacked jurisdiction. Because the district court did not find the existence of either of these grounds, Padrón argues the district court had no choice but to enforce the Florida judgment.
As Padrón argues, it is well settled under the Full Faith and Credit Clause drat “[a] judgment of a sister state, where there is no want of jurisdiction, cannot be impeached for irregularities in the proceedings or erroneous rulings, but must be regarded as binding, until set aside by the court rendering it, or by a reviewing court on appeal.” Littlefield v. Paynter, 111 Kan. 201, 205, 206 Pac. 1114 (1922); see State v. Duke, 205 Kan. 37, 40, 468 P.2d 132 (1970). Kansas courts, as have other courts, have applied the same rule to actions brought pursuant to the Foreign Judgments Act. National Equip. Rental, Ltd. v. Taylor, 225 Kan. 58, 60, 587 P.2d 870 (1978) (applying K.S.A. 60-3001 and citing prior Kansas cases applying Full Faith and Credit Clause); Landon v. Artz, 6 Kan. App. 2d 617, 619, 631 P.2d 1237 (1981) (discussing cases from sister jurisdictions under the Foreign Judgments Act and stating general rule). As a result, foreign judgments and journal entry recitals are presumed valid and may not be impeached by collateral attack except for lack of jurisdiction or fraud in the procurement. Duke, 205 Kan. at 40-41. Further, the party seeking to prevent enforcement of the foreign judgment has the burden of establishing either the lack of jurisdiction or fraud underlying the foreign judgment. Brockman Equipment Leasing, Inc. v. Zollar, 3 Kan. App. 2d 477, 482, 596 P.2d 827 (1979) (“ ‘The burden of undermining the verity which [foreign] decrees import rests heavily upon the assailant.’ Williams v. North Carolina, 325 U.S. 226, 233-34, 89 L. Ed. 1577, 65 S. Ct. 1092 [1945]”).
Dodson does not dispute these principles but makes a three-pronged argument as to why those rules do not undercut the Franklin County District Court’s decision. First, for the first time on appeal, Dodson argues that these rules do not come into play if the foreign judgment is a temporary judgment. Second, Dodson argues that the Florida court lacked jurisdiction over Dodson. Finally, Dodson argues the district court’s actions were allowed because of K.S.A. 60-3002, which provides in part: “A judgment filed as provided by this section has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner.”
a. Temporary Prejudgment Orders and Full Faith and Credit
Regarding Dodson’s first argument, Padrón does not dispute that the Florida injunction was not a final order and concedes it was not a determination of the merits of the underlying lawsuit. Instead Padrón argues the lack of finality is not determinative be cause the language of K.S.A. 60-3001(a) recognizes “any judgment, decree or order” of a sister state and suggests this language is sufficiently broad to encompass the Florida temporary injunction.
This argument ignores the limiting language of K.S.A. 60-3001(a) that recognizes “any judgment, decree or order” of a sister state “which is entitled to full faith and credit in this state.” (Emphasis added.) In other words, only if a foreign judgment or order is entitled to full faith and credit can the judgment or order be enforced. Dodson argues that temporary prejudgment orders are not orders entitled to full faith and credit under either the United States Constitution or the Foreign Judgments Act.
This argument is not supported by any specific statement to this effect in the Foreign Judgments Act. Nevertheless, the concept of the finality of judgment is incorporated in K.S.A. 60-3004(a), which permits the fifing of foreign judgments that have been appealed or are subject to appeal, but it requires that enforcement of such judgments be stayed until the appeal is concluded, tire time for appeal expires, or the stay of execution expires or is vacated. The provision states:
“If the judgment debtor shows the district court that an appeal from die foreign judgment is pending or will be taken, or that a stay of execution has been granted, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated, upon proof that the judgment debtor has furnished the security for the satisfaction of the judgment required by the state in which it was rendered.” K.S.A. 60-3004(a).
Applying this provision, this court has indicated that K.S.A. 60-3004(a) does not require that the foreign judgment be a “final judgment” in the sense that time for an appeal has expired or appellate remedies have been exhausted; instead, when the district court is notified of an appeal of the foreign judgment, the enforcement of the foreign judgment is stayed until the appeal becomes final. Otherwise, “attempts to enforce a foreign judgment which is subject to modification would be a waste of everyone’s time.” In re Estate of Rains, 249 Kan. 178, 185, 815 P.2d 61 (1991).
This holding does not clearly apply to this case, however, because Estate of Rains dealt with a judgment on appeal, not a temporary injunction. Further, K.S.A. 60-3004(a) does not directly apply because the temporary injunction was not an appealable order. In fact, there does not appear to be any controlling authority on point; the parties do not cite and we have not found a Kansas case determining whether a prejudgment order, such as a temporary restraining order or injunction, is entitled to full faith and credit. See Hicks v. Hefner, 210 Kan. 79, 82-86, 499 P.2d 1147 (1972) (approvingly citing cases from other states holding that orders subject to modification are not entitled to full faith and credit but deciding issue on other grounds).
Nevertheless, the question has been considered in other jurisdictions — under both the Full Faith and Credit Clause and the Foreign Judgments Act — with the generally accepted result being that full faith and credit is not required when a decree is interlocutory or subject to modification under the law of the rendering state, except for an exception in some jurisdictions for child custody orders. E.g., Harris v. Harris, 14 Conn. App. 384, 388, 540 A.2d 1079 (1988) (“The plaintiff, by obtaining both final orders, made the judgment impervious to modification and therefore took the necessary step in entitling her case to full faith and credit under Connecticut law.”); Cook v. Soo Line Railroad Co., 347 Mont. 372, 378, 198 P.3d 310 (2008) (Hmiting the Full Faith and Credit Clause to “final judgment”); Clark v. Clark, 714 A.2d 427, 430 (Pa. Super. 1998) (because child and spousal support orders are modifiable, they are considered nonfinal orders not subject to full faith and credit in Pennsylvania); Bard v. Charles R. Myers Ins. Agency, 839 S.W.2d 791, 794 (Tex. 1992) (full faith and credit not required when decree is interlocutory or subject to modification under the law of the rendering state); Mindis Metals v. Oilfield Motor & Control, 132 S.W.3d 477, 484 (Tex. App. 2004) (only when judgment is conclusive locally does Full Faith and Credit Clause preclude any inquiry into merits; party seeking to enforce foreign judgment has initial burden to present judgment that appears on its face to be final, valid, and subsisting judgment); see also Restatement (Second) of Conflict of Laws § 107 (1971) (“A judgment will not be recognized or enforced in other states insofar as it is not a final determination under the local law of tire state of rendition.”).
Presumably, a distinction is made between final and nonfinal orders because a judgment that is conclusive in tire state where it was pronounced is equally conclusive elsewhere, and a judgment that is not conclusive in the state of its rendition is equally inconclusive in another state. Overmyer v. Eliot Realty, 83 Misc. 2d 694, 704-05, 371 N.Y.S.2d 246 (1975) (stating that a foreign judgment is entitled to same weight in state in which enforcement is sought as the rendering state would accord it there; if judgment could be impeached in the rendering state, it can be collaterally attacked in a state where enforcement is sought). For example, in this case it is possible the Florida court would determine it did not have jurisdiction over Dodson or would otherwise determine that Padrón was not entitled to relief on the merits. As a result, the Florida court could modify the injunction.
Because of such a possibility, our sister jurisdictions have generally refused to allow a prejudgment remedy based on a nonfinal judgment. E.g., Cahaly v. Benistar Property Exchange Trust Co., 268 Conn. 264, 275, 842 A.2d 1113 (2004) (“Since a plaintiff cannot bring an action to enforce a foreign judgment until that foreign judgment is obtained, a plaintiff likewise cannot base an application for a prejudgment remedy on an action to enforce a foreign judgment until that foreign judgment is obtained.”); American Refractories v. Combustion Controls, 70 S.W.3d 660, 663 (Mo. App. 2002) (“[Jjurisdiction over an attachment proceeding is derived from tire main action, so the main action must necessarily be in the court where the attachment is sought, otherwise there is no action in that court from which to acquire jurisdiction. Thus, there is no jurisdiction to enter a writ of attachment in Missouri based on a Pennsylvania legal action.”).
The rationale of these decisions is persuasive and consistent with this court’s holding in In re Estate of Rains, 249 Kan. 178. An additional consideration is that K.S.A. 60-3007 obligates us to interpret and construe the Foreign Judgments Act in uniformity with other states that have adopted tire uniform act. As a result, although there may be exceptions we are not called on to consider in this case, we conclude that in general an ex parte temporary injunction is not entitled to full faith and credit and is not subject to enforcement under the Foreign Judgments Act, K.S.A. 60-3001 et seq.
Nevertheless, Padrón argues we cannot affirm the district court on this basis because Dodson did not raise the issue before the district court and the district court did not rely on the temporary nature of the Florida order in making its ruling. In response, Dodson suggests that although the district court did not articulate the finality issue, it correctly refused to limit its considerations to extrinsic fraud and Florida’s jurisdiction to issue the injunction. We agree with Dodson, although on slightly different grounds.
As discussed, a Kansas court enforcing the Full Faith and Credit Clause or the Foreign Judgments Act only has jurisdiction to enforce a foreign judgment that is entitled to full faith and credit. In other words, the district court’s subject matter jurisdiction is limited to such orders, and subject matter jurisdiction is a question that may be raised at any time, including for the first time on appeal or even on an appellate court’s own motion. Ships v. Public Wholesale Water Supply Dist. No. 25, 289 Kan. 160, 166, 210 P.3d 105 (2009); see also Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967) (recognizing three situations where an issue, including a constitutional issue, can be presented for first time on direct appeal: [1] newly asserted theoiy involves only question of law arising on proved or admitted facts and issue is finally determinative of the case; [2] resolution of question is necessary to serve ends of justice or to prevent denial of fundamental rights; or [3] district court reached right conclusion but relied on wrong ground or assigned wrong reason for its decision).
As a result, we are not precluded from considering whether the district court lacked subject matter jurisdiction because of either Dodson’s failure to argue the issue before the district court or the district court’s lack of reliance on that basis for its decision.
We, therefore, affirm the district court’s refusal to enforce the Florida ex parte temporary injunction under the Foreign Judgments Act, K.S.A. 60-3001 et seq. Because we reach this conclusion, we need not consider the parties’ arguments regarding whether the Florida court had jurisdiction over Dodson. However, we must consider Dodson’s arguments that the Kansas district court was entitled to order the return of the aircraft to Kansas, to order an additional bond, and to consider Dodson’s counterclaim because of the provisions of K.S.A. 60-3002.
b. Procedures, Defenses, and Proceedings
Dodson argues these additional orders of the Kansas district court were permitted under the Foreign Judgments Act because K.S.A. 60-3002 states: “A judgment filed as provided by this section has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner.”
Padrón argues this provision does not give a Kansas district court jurisdiction to impose those orders. To support its argument, Padrón cites Landon, 6 Kan. App. 2d 617.
In Landon, the Court of Appeals held that a counterclaim may not be asserted in a proceeding instituted under the Foreign Judgments Act. In reaching the holding, the Court of Appeals cited cases from other jurisdictions where the court rejected the argument that Dodson is now advancing. The court noted:
“ ‘Absent any question of jurisdiction over the defendant or the subject matter, full faith and credit must be accorded the judgment of a sister state and forum court may not rehear the case upon its merits, as it is res judicata concerning plaintiffs claim and all defenses raised or which could have been presented.’ [Concannon v. Hampton, 584 P.2d 218, 222 (Okla. 1978).]” Landon, 6 Kan. App. 2d at 621.
Applying this rule to the question of whether a counterclaim could be brought in an action filed pursuant to the Foreign Judgments Act, the court stated:
“The thrust of [K.S.A. 60-3002] is to treat a foreign judgment once properly filed exactly like a Kansas judgment. To our knowledge it has never been thought that a counterclaim could be asserted in response to proceedings to enforce a Kansas judgment through execution, garnishment, or the like. Defenses may be asserted, and relief may be sought in an appropriate case by motion under K.S.A. 60-260(b). After final judgment, however, it is too late to asseit a claim for affirmative relief arising out of the transaction underlying the judgment.” Landon, 6 Kan. App. 2d at 618-19.
Dodson responds that this case is distinguishable from Landon in that the Florida injunction is not a final judgment. This is a valid point and emphasizes the reasons full faith and credit is not given to a temporary injunction. Nevertheless, we reject Dodson’s position that filing a notice of foreign judgment grants the Kansas district court subject matter jurisdiction over the merits of the underlying action. The Foreign Judgments Act allows for postjudgment proceedings only, and the Kansas district court’s refusal to enforce the Florida judgment essentially resulted in a dismissal of the action, leaving the court without subject matter jurisdiction over any further proceedings.
Such a result, Dodson argues, would cause the Florida temporaiy injunction to erroneously gain “the super power of a final judgment.” See Hicks, 210 Kan. 79, Syl. ¶ 2 (“No greater effect need be given by a court of the forum state to any judgment of a court of another state than is given to it in the state where the judgment was rendered.”); Tanner v. Hancock, 5 Kan. App. 2d 558, 563, 619 P.2d 1177 (1980) (purpose of Foreign Judgments Act is to facilitate enforcement of a judgment in state where registered, not to enhance judgment of original state of rendition; it was not designed “to impose a ‘super status’ upon judgment of a sister state”). Again, this argument ignores the district court’s refusal to give the Florida judgment any effect.
Further, the cases cited by Dodson — i.e., Hicks and Tanner— do not alter the rule that the Foreign Judgments Act does not grant subject matter jurisdiction to consider the merits of the action that underlies the foreign judgment or order. Rather, the cases merely stand for the proposition that a judgment cannot be enforced in a manner contrary to the law of the original jurisdiction. Hicks, 210 Kan. at 87 (because Texas only allows enforcement of unpaid child support via contempt proceeding, Kansas could not require lump-sum payment); Tanner, 5 Kan. App. 2d at 563-64 (judgment entered against judgment debtor in Kansas, with motion for relief by judgment debtor still pending, did not become an independent Missouri judgment when registered in Missouri under Foreign Judgments Act and could not be registered in Kansas under Foreign Judgments Act as a new Kansas judgment). In other words, the cases are consistent with the considerable authority holding that the Foreign Judgments Act does not allow consideration of the merits of the action that underlies the foreign judgment or order.
Nevertheless, Dodson argues a contrary result is justified because of cases holding that a person seeking relief from a court subjects him or herself to the general jurisdiction of the court. E. g., In re Marriage of Thompson, 17 Kan. App. 2d 47, 832 P.2d 349 (1992). This argument confuses personal jurisdiction, which was at issue in the cited cases, and subject matter jurisdiction. As we recently reiterated:
“Subject matter jurisdiction is vested by statute and establishes the court’s authority to hear and decide a particular type of action. [Citation omitted.] Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel, and parties cannot convey subject matter jurisdiction on a court by failing to object to the court’s lack of jurisdiction. [Citation omitted.]” Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
Applying these authorities, we conclude the district court erred in entering the various orders after refusing to recognize the foreign judgment. Further, these orders were contrary to the Foreign Judgments Act, which limits the court’s jurisdiction to postjudgment procedures. Consequently, we conclude that once the court refused to allow the registration of the foreign judgment, it essentially dismissed the action and lost subject matter jurisdiction to take any further action.
There may remain a question of whether Padrón could be held in contempt for failing to abide by the district court’s orders, even though we have concluded the district court did not have jurisdiction to enter the orders. We need not resolve this question, however, because we agree with Padron’s arguments that the district court’s May 21, 2008, judgment establishing a contempt fine of $2,500 per day was void due to Dodson’s failure to serve Padrón personally with the district court’s order to appear and show cause.
K.S.A. 20-1204a(b) requires an order to appear and show cause to be served on a party allegedly in indirect contempt of the court, and where the accused has not waived the service requirement the court is without jurisdiction to proceed. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 390, 673 P.2d 1126 (1983); see K.S.A. 20-1204a(b); In re Seelke, 235 Kan. 468, 471, 680 P.2d 288 (1984) (service of order to show cause on attorney for party not sufficient to confer jurisdiction; “[a] citation for contempt is an action against a specific person requiring all of the due process criteria”); Bond v. Albin, 29 Kan. App. 2d 262, 263, 28 P.3d 394 (2000), rev. denied 271 Kan. 1035 (2001).(failure to comply with the procedural requirements of K.S.A. 20-1204a is jurisdictional); Geiger-Schorr v. Todd, 21 Kan. App. 2d 1, 7, 901 P.2d 515 (1995) (citing Pork Motel and concluding that although substantial compliance with service requirements of Chapter 60 is sufficient to acquire jurisdiction in action, it is not acceptable under more stringent contempt statute); cf. Harsch, 288 Kan. at 295 (failure to comply with procedural requirements of direct contempt statute K.S.A. 20-1203 is jurisdictional); Alpha Med. Clinic v. Anderson, 280 Kan. 903, 926-27, 128 P.3d 364 (2006) (procedure governing indirect contempt is strictly construed against the moving party).
Further, we conclude that Padron’s objections to jurisdiction at the hearing and in subsequent motions for rehearing were sufficient to preserve the issue of jurisdiction, and Padron’s efforts to defend against the contempt accusation and Padron’s attempt to enforce the Florida judgment did not result in a waiver of his jurisdiction defense. Padron’s stated objection and continued renewal of the objection distinguishes this case from the case relied on by Dodson, see In re Marriage of Brotherton, 30 Kan. App. 2d 1298, 1300, 59 P.3d 1025 (2002), where the contemptuous party raised jurisdiction for the first time on appeal.
As a final argument related to the contempt order, Dodson argues that Padron’s appeal is untimely. Dodson’s argument is not persuasive given the fact that the district court did not enter its final journal entry summarizing the contempt matter and establishing the contempt fine until May 21, 2008. Hence, this appeal was timely filed when Padrón filed its notice of appeal on June 17, 2008, less than 30 days later. See K.S.A. 60-2103(a).
B. Principles of Comity
Further, Padrón argues that even if the ex parte temporary order was not enforceable under the Foreign Judgments Act, it should have been enforced under principles of comity. When granting comity, courts of one state give effect to the laws and judicial decisions of another, not as a matter of obligation but out of deference and respect. Head v. Platte County, Mo., 242 Kan. 442, Syl. ¶ 2, 749 P.2d 6 (1988); Boyce v. Boyce, 13 Kan. App. 2d 585, 590, 776 P.2d 1204, rev. denied 245 Kan. 782 (1989). In other words, comity differs from the application of the Full Faith and Credit Clause in that a state court must give credit to a foreign judgment or order that is subject to full faith and credit without inquiry into the merits of the action, but a foreign judgment or order may be enforced as a matter of comity. Rich v. Con-Stan Industries, 449 S.W.2d 323, 327 (Tex. Civ. App. 1969).
It is appropriate to exercise comity when a court recognizes the rights upon which a decree of a sister state is based and decides that the enforcement of such rights does not violate any principle of public policy of the forum court’s state. Where public policy is not violated, it is generally recognized that a court should exercise comity over a foreign judgment or order in order to avoid expense, harassment, and inconvenience to the litigants. Perrenoud v. Perrenoud, 206 Kan. 559, 573, 480 P.2d 749 (1971); In re Marriage of Laine, 34 Kan. App. 2d 519, 523, 120 P.3d 802 (2005), rev. denied 281 Kan. 1378 (2006); Rich, 449 S.W.2d at 327. The determination of whether to exercise comity is a matter of district court discretion that will only be reversed on a determination that discretion was abused. In re Miller, 228 Kan. 606, 610, 620 P.2d 800 (1980).
Some courts have recognized and enforced a foreign jurisdiction’s temporary injunction under the doctrine of comity. E.g., Intrinsic Values Corp. v. Superintendencia, 806 So. 2d 616, 619 (Fla. Dist. App. 2002) (recognizing temporary injunction of Guatemalan court); Cardenas v. Solis, 570 So. 2d 996, 999 (Fla. Dist. App. 1990) (recognizing and enforcing temporaiy injunction of Guatemalan court freezing half the funds in defendant’s Florida bank accounts); Rich, 449 S.W.2d at 327 (“[E]ven if this judgment cannot be given effect under the full faith and credit clause of the U.S. Constitution” because it is not technically a final judgment or “for any of the reasons herein stated, we find that the California judgment can be given credit under the doctrine of comity.”).
Hence, at least theoretically, Padrón could have requested the Franklin County District Court to recognize the Florida temporary injunction under the doctrine of comity. Nevertheless, Padrón did not do so. Rather, the action underlying this appeal was filed pursuant to the Foreign Judgments Act, which requires that a foreign judgment or order be entitled to full faith and credit; it was not filed as a common-law action to enforce a judgment or order. See K.S.A. 60-3006 (preserving ability to bring common-law action as alternative to an action under Foreign Judgments Act).
Moreover, even if we were to construe some of Padron’s later motions and arguments liberally as a request to enforce the judgment based on comity, Padrón does not convince us that the district court abused its discretion in refusing to recognize the Florida judgment. In making its findings, the district court, in essence, concluded the Florida judgment was against Kansas public policy because the temporary injunction altered, rather than preserved, the status quo by requiring the transfer of possession of the aircraft. See Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 492, 173 P.3d 642 (2007) (purpose of temporary or preliminary injunction is not to determine any controverted right but to prevent injury to a claimed right pending final determination of controversy on its merits; temporary injunction merely preserves status quo until final determination of controversy can be made).
We note, however, that the portion of the Florida court injunction prohibiting “selling, transferring, transporting, encumbering, auctioning, and operating” was consistent with the purpose of preserving the status quo, and enforcement of that portion of the order would have been consistent with both public policy and comity. Yet, by the time the matter came to the attention of the district court, Padrón had altered the status quo and removed the aircraft from Kansas. Under those circumstances, Padrón cannot complain that the district court abused its discretion by not taking action that had been largely rendered moot by Padron’s actions.
In summary, we affirm the district court’s refusal to enforce the Florida ex parte temporaiy injunction under either the Foreign Judgments Act or comity. But we reverse the district court’s order that the aircraft be returned to Kansas and that an additional bond be posted because we determine the district court lacked jurisdiction to enter these orders. Further, we reverse the district court’s order of contempt because of the failure to comply with K.S.A. 20-1204a(b).
Affirmed in part and reversed in part.
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The opinion of the court was delivered by
Luckert, J.:
As part of a plea agreement, Joe N. Mondragon pled guilty to two counts of aggravated indecent liberties with a child in violation of K.S.A. 2006 Supp. 21-3504(a)(3)(A). For these convictions, he received concurrent sentences of life imprisonment without the possibility of parole for 25 years and postrelease supervision for life pursuant to K.S.A. 2006 Supp. 21-4643(a)(l), commonly known as “Jessica’s Law.” On appeal, Mondragon claims the district court abused its discretion in denying his motion for a downward durational departure under K.S.A. 2006 Supp. 21-4643(d). For the first time on appeal, he also challenges his life sentences as a cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights or the Eighth Amendment to the United States Constitution. We reject his arguments and affirm his sentences.
Facts and Procedural Background
Under the plea agreement, the State dismissed a rape charge and agreed to recommend concurrent hard 25 life sentences in exchange for Mondragon’s plea of guilty to the two counts of aggravated indecent liberties, both of which had been charged as off-grid felonies. Mondragon was also free to seek a sentencing departure, which he did by filing a motion requesting a downward durational departure.
In support of the motion for downward departure, Mondragon stated that he was 63 years old, had no prior felony convictions, had a consistent employment history, and had a supportive family. At the sentencing hearing, he expanded on these mitigating factors by arguing that a sentencing departure was appropriate because of his diabetic and hypertensive medical conditions and because of his willingness to join a local sex offender treatment program. The district court denied Mondragon’s motion after finding that none of the asserted mitigating factors constituted a substantial and compelling reason to depart from the mandatory minimum sentence associated with each crime.
Mondragon filed a timely appeal of his life sentences. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
I. Departure
We first consider Mondragon s argument that the district court erred by denying his request for downward durational departure sentences.
Under the statute in effect when Mondragon’s offenses were charged, a first-time offender who is 18 years old or older and convicted of aggravated indecent liberties with a child under the age of 14 must be sentenced to a mandatory lifetime sentence with a minimum of not less than 25 years “unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” K.S.A. 2006 Supp. 21-4643(d). If the sentencing judge departs from the mandatory minimum term, the departure sentence “shall be the sentence pursuant to the sentencing guidelines act, . . . and no sentence of a mandatoiy minimum term of imprisonment shall be imposed.” K.S.A. 2006 Supp. 21-4643(d).
The statute specifies a nonexclusive list of mitigating factors that a judge may consider in determining whether substantial and compelling reasons for departure exist: (1) The defendant has no significant criminal history; (2) tire crime was committed while the defendant was under the influence of extreme mental or emotional disturbances; (3) the victim was an accomplice, and the defendant’s participation was relatively minor; (4) the defendant acted under extreme distress or substantial domination of another person; (5) the defendant’s capacity to appreciate the criminality of his or her conduct or conform such conduct to the requirements of the law was substantially impaired; and (6) the defendant’s age at the time of the crime. K.S.A. 2006 Supp. 21-4643(d)(l)-(6).
When an appellate court reviews a district court’s determination as to whether mitigating circumstances presented under K.S.A. 2006 Supp. 21-4643(d) are substantial and compelling, an abuse of discretion standard of review applies. State v. Spotts, 288 Kan. 650, 654-55,206 P.3d 510 (2009); see State v. Ortega-Cadelan, 287 Kan. 157, 165, 194 P.3d 1195 (2008). We have concluded that K.S.A. 2006 Supp. 21-4643(d) grants broad discretion, meaning “ ‘ “judicial discretion is abused when no reasonable person would take the view adopted by the district judge.” ’ [Citations omitted.]” State v. Thomas, 288 Kan. 157, 164, 199 P.3d 1265 (2009).
Mondragon argues no reasonable person would agree with the district court’s conclusion that he had not presented substantial and compelling reasons for departure. On appeal he asserts the following mitigating circumstances warranted departure: (1) a criminal history score of I; (2) his medical ailments, namely diabetes and high blood pressure; (3) his age of 63; (4) a consistent employment histoiy in that he worked at Boeing Military Aircraft for 18 years before retiring within approximately 1 year of sentencing in this case; (5) his supportive family; and (6) his having taken the initiative to visit Dr. Don Blasi, a psychologist, on at least two occasions concerning the sex offenses and his willingness to continue counseling.
The State responds by arguing that the district court was justified in denying departure. The State points out that the district court indicated that it had “plenty of time to think about this case,” and a transcript of the sentencing hearing reflects that the court thoroughly considered the mitigating circumstances presented by Mon-dragon.
As the State argued, the district court considered each of the mitigating factors. Many of those factors carried little weight in the court’s view. For example, the district court considered Mon-dragon’s employment histoiy but noted that Mondragon had recently retired. Mondragon’s advanced age was also considered by the district court, but the court found his age and maturity level worked against Mondragon because he “should have known better.” As for Mondragon’s medical conditions, the district court pointed to the fact that members of the prison medical staff routinely care for inmates with those health problems. The district court further noted that despite the lack of previous felony convictions in Mondragon’s criminal history, he was prosecuted in 1988 for aggravated incest, a felony, but was granted a 3-year diversion. In citing the diversion, the district court clearly indicated it was not looking to the diversion as criminal history but was focusing on Mondragon’s admission to the conduct. In light of that admission, the district court found that behavior “giving rise to the current crimes of conviction is not an aberration on the part of Mr. Mon-dragon.” Finally, the district court took into consideration the fact that there were two victims in the present case — girls who were 8 and 9 years old at the time of the offenses.
In summary, the district court considered all of Mondragon’s arguments, acknowledged the mitigating circumstances asserted by Mondragon, explained why the cited factors were not substantial and compelling reasons to impose departure sentences, and rejected the request for a downward durational departure. Reasonable people could agree with the district court’s assessment of whether the mitigating circumstances were substantial and compelling.
The district court did not abuse its discretion by denying Mon-dragon’s motion for downward durational departure sentences under K.S.A. 2006 Supp. 21-4643(d).
II. Cruel or Unusual Punishment
Mondragon also argues his life sentences violate the right against cruel or unusual punishment provided for in § 9 of the Kansas Constitution Bill of Rights. He briefly refers to the Eighth Amendment to the United States Constitution as well. In asserting the cruel or unusual nature of his sentences, Mondragon presents two arguments. First, he argues that applying the factors of State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978), leads to the conclusion the sentences were unconstitutional. Second, he argues a mandatory hard 25 or hard 40 sentence is cruel or unusual in light of procedures and treatments available under the Sexually Violent Predators Act (SVPA), K.S.A. 59-29a01 et seq. Both contentions are presented for the first time on appeal.
As Mondragon notes, the determination of whether a sentence is a cruel or unusual punishment because of its length is controlled by a three-factor test stated in Freeman. The Freeman test states:
“(1) The nature of the offense and the character of tire offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of dre crime, die violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and die penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
We have noted these factors include both legal and factual inquires, and no one factor controls. Ortega-Cadelan, 287 Kan. at 161. Because of the factual inquiries involved in several recent cases, we have refused to consider an argument that a sentence is cruel or unusual for the first time on appeal, citing as reasons that the State has not been given the opportunity to develop a record on the issue and the district court had not made factual findings. E.g., State v. Easterling, 289 Kan. 470, 213 P.3d 418 (2009); Spotts, 288 Kan. at 653-54; Thomas, 288 Kan. at 161; Ortega-Cadelan, 287 Kan. at 161.
Mondragon argues that unlike the situation in these cases, the record in this case is sufficient for review of the factual issues. In considering this argument, we must consider our recent decision in State v. Seward, 289 Kan. 715, 217 P.3d 443 (2009), which was filed after the briefs in this case were submitted and which resulted in a remand for the district court to make factual findings regarding whether a Jessica’s Law sentence was cruel or unusual. In addition, we must consider Mondragon’s argument that the availability of a commitment pursuant to the SVPA makes a lifetime sentence of imprisonment a cruel or unusual punishment. Mondragon argues no factual findings are required in order to consider this argument.
In making his first argument that the record is sufficient for our review, Mondragon does not point to district court findings regarding the Freeman factors. Rather, he reiterates the mitigating factors he presented to the court in his motion for departure and corresponding arguments at sentencing. Such an argument ignores the role of appellate courts, which do not make findings but merely review those made by a district court. Thomas, 288 Kan. at 161; see also In re Adoption of A.A.T., 287 Kan. 590, 599, 196 P.3d 1180 (2008) (stating that an appellate court does not reweigh evidence, substitute its evaluation of evidence for that of district court, or pass upon credibility of witnesses).
Furthermore, as in Easterling, 289 Kan. at 486-87, the factual findings in the record as a result of the district court’s denial of Mondragon’s request for a downward departure cut against a finding that the sentences are cruel or unusual. For example, the district court expressed concern about there being multiple victims and noted that because of Mondragon’s age and maturity “he should have known better” than to sexually molest the young girls in this case. Regardless, these factual findings are simply insufficient to consider the application of the Freeman factors.
Next, we consider whether this case is similar to Seward, 289 Kan. 715. In Seward, the defendant mentioned his cruel or unusual punishment argument during plea negotiations, included it in his written downward departure motion, and reiterated the claim on the record at the sentencing hearing. This court held the issue was sufficiently raised before the district court and that the district court should have made the necessary findings. Seward, 289 Kan. at 720. After discussing the relative responsibilities of the district court and the defendant to assure there are sufficient findings for appellate review, we remanded the case. However, we cautioned:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by the district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessaiy.” Seward, 289 Kan. at 721.
In contrast to the record in Seward, which reflected efforts by the defendant to raise the issue before the district court, in this case we can find no mention of the phrase “cruel or unusual punishment” in the record of proceedings before the district court. Because there was no effort before the district court to present the issue of whether a Jessica’s Law sentence is cruel or unusual, the issue cannot be raised for the first time on appeal.
Finally, we conclude that Mondragon’s argument regarding the SVPA does not change this analysis. There are several reasons for this conclusion. First, in Kansas v. Hendricks, 521 U.S. 346, 362, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), the United States Su preme Court concluded that an involuntary commitment under the SVPA was civil in nature and was not punitive. Hence, a commitment under the SVPA is not a “punishment” to be compared under the second prong of the Freeman test. Moreover, there are necessary factual components that underpin Mondragon’s argument that the SVPA would apply. Specifically, the applicability of the SVPA is conditioned on a finding that an individual who has been convicted of a sexual offense is a “sexually violent predator,” a term which is defined as “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence.” K.S.A. 2006 Supp. 59-29a02(a); see also K.S.A. 2006 Supp. 59-29a07(a) (committing person until “such time as the person’s mental abnormality or personality disorder has so changed that the person is safe to be at large”). There is no showing in the record that Mondragon would meet this definition and, therefore, that commitment under the SVPA is an alternative.
Consequently, we conclude Mondragon’s claim that his life sentences under K.S.A. 2006 Supp. 21-4643(a)(l) constitute cruel or unusual punishment is not properly before this court.
Affirmed.
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The opinion of the court was delivered by
Johnson, J.:
Jerry W. Trussell appeals his convictions for aiding and abetting first-degree murder and conspiracy to commit first-degree murder. Combined in his first issue, Trussell asserts that the evidence was insufficient to support the verdict and that the district court should have given a self-defense jury instruction. Secondly, Trussell argues that the district court erred in refusing to suppress his statements to law enforcement. Finally, Trussell contends that the district court erred in allowing the State to aslc leading questions and in declaring one of the witnesses to be hostile. Finding no reversible error, we affirm.
The principal participants in this unusual scenario were two couples who, in the 1990s, had lived in the south part of Wichita and had formed a friendship. One couple was Franklin Harrod, Jr., also known as “Punkie,” who is the victim in this case, and his wife, Kelly Harrod; the other couple was Jerry Wayne Trussell, who is the defendant in this case, and his wife, Tammy Trussell. By 1997, Jerry and Punkie jointly owned a car that they raced at a local speedway.
Kelly Harrod testified that Punkie was an abusive husband and that she had left him in January 1997, taking their two daughters with her to Arkansas. After Punkie filed for divorce in Sedgwick County, obtaining an order awarding temporary custody of the children to him, Kelly returned to the South Wichita home. Shortly thereafter, Kelly discovered that she was pregnant, and Punkie dismissed the divorce action.
However, Kelly began confiding in Tammy about her situation, ultimately expressing a desire to have Punkie out of her life and a fear that Punkie would kill her if she left him again. Kelly said that she could not get rid of Punkie, because she would be the first one suspected of foul play. She suggested that Tammy could do it for her. Tammy subsequently told Jerry about Kelly s conversations.
The conversations between Kelly and Tammy initially took the form of vague fantasizing about life without their husbands. However, Jerry began to discuss the endeavor in earnest and struck a deal with Kelly to “take care of it” in return for her having sex with him. Kelly, Tammy, and Jeriy began having weekly conversations about “doing away” with Punkie. In the spring or early summer of 1997, Jeriy and Tammy asked a neighbor, Jeriy Wilson, for a gun. Wilson testified that Jerry said he wanted the gun “because he was going to kill someone or get rid of that Punkie guy or do something to him.”
In late June or early July 1997, the Trussells were evicted from their home and moved in with Punkie and Kelly. Kelly continued to have sex with Jerry as payment for arranging for Punkie’s demise. By late July, Kelly told both Tammy and Jerry that she wanted to get things “over with.” Tammy testified that, the night before Punkie was killed, she and Jerry had a conversation during which he informed her that he could not find anyone willing to take care of Punkie. Realizing that they “would have to do this [them]selves,” the couple devised a plan for Tammy to shoot Punkie while Jeriy distracted him or held him down. Kelly was not a participant in that conversation.
The next morning, Jerry instructed Kelly to remain in the house. While she was getting the children ready for school, Jeriy and Punkie began fighting outside. As the fight escalated, Tammy ran outside, yelling at the combatants to stop. Jerry yelled for her to get the gun, and Tammy retrieved the weapon from a nearby truck. After returning, Tammy heard Punkie say that he would kill everyone when he got off the ground. Jerry repeatedly told Tammy to
“do it” or “shoot it.” Tammy complied, shooting Punkie in the head.
The next day, Tammy and Jerry took Punkie’s body, wrapped in a blue roofing tarp, to a remote location and buried it in a shallow grave. Kelly made a missing person report to the police.
In August 1997, Wilson anonymously reported the Trussells’ attempt to obtain a gun from him. Tracy Wells, the former wife of Shawn Martinez, used a pseudonym to report that Jerry had tried to enlist Shawn’s help with disposing of Punkie’s body. Nevertheless, the case remained under investigation for years, with Jerry, Tammy, and Kelly holding to their original story that Punkie had just disappeared.
However, in 2001, Tammy began offering the police many different versions of what happened, implicating both Jerry and Kelly in Punkie’s death. Ultimately, in May 2004, Tammy confessed her role in the murder, in exchange for a plea to voluntary manslaughter and her testimony against Jeriy. Tammy showed police the location of Punkie’s grave, albeit the body was never recovered. Police did find a blue tarp in the vicinity of the gravesite. Kelly bargained for a plea to solicitation of first-degree murder, conditioned on her testimony against Jerry, for which she received derivative use immunity'
Jerry was finally charged with Punkie’s murder on July 7, 2005. After amendments, the information charged him with aiding and abetting murder in the first degree and conspiracy to commit first-degree murder. The trial commenced on October 10,2006. During that trial, the district court suppressed a November 19,2001, statement that Jerry made to a Detective Hopper, finding that it was the product of a custodial interrogation without the benefit of Miranda warnings. The jury could not reach a unanimous verdict, and the court declared a mistrial.
A new trial began June 18, 2007. The State filed a motion to reconsider the court’s suppression of Jerry’s statement to Detective Hopper. The court granted that motion and ruled that the statement could be admitted. The jury convicted Jerry on both counts. His motions for mistrial, new trial, and directed verdict of acquittal were denied. The court sentenced Jerry to a hard 25 life sentence on the murder charge and a consecutive 146-month prison term on the conspiracy count. Jerry timely appealed, and we have jurisdiction pursuant to K.S.A. 22-3601(b)(l).
SUFFICIENCY OF THE EVIDENCE
Where Jerry has combined more than one legal question under a single issue, we take the liberty of considering each issue separately. First, Jerry argues that the evidence was insufficient to convict him of aiding and abetting first-degree murder. Our standard of review is well settled; we view the evidence in a light most favorable to the prosecution to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. See State v. Vasquez, 287 Kan. 40, 59, 194 P.3d 563 (2008); State v. Saleem, 267 Kan. 100, 104, 977 P.2d 921 (1999). We do not weigh the evidence or reassess witness credibility. See Ives v. McGannon, 37 Kan. App. 2d 108, 124-25, 149 P.3d 880 (2007).
Jerry’s principal argument is that the State failed to meet its burden of proving premeditation beyond a reasonable doubt. Even though the State proceeded on an aiding and abetting theory, it was required to prove that Jerry possessed the specific intent of premeditation in order to convict him of first-degree murder. See State v. Overstreet, 288 Kan. 1, 11, 200 P.3d 427 (2009); State v. Engelhardt, 280 Kan. 113, 132, 119 P.3d 1148 (2005).
Jerry contends that the testimony about his participation in the planning of the murder was conflicting and it failed to establish that he had made a specific commitment to do a specific act in .furtherance of the plan. Further, he suggests that Tammy’s testimony about the specific plan hatched the night before the murder was not believable, because it was a virtually unworkable plan. Although Jerry’s characterization of the evidence is suspect, we need not quibble about that. His arguments are simply an invitation to reweigh the evidence and to reassess the credibility of the witnesses. We decline the invitation to go outside our function as an appellate court.
Moreover, to prove the premeditation element of the first-degree murder charge, the State was not required to prove that Jerry planned the murder the night before. That proof was required for the conspiracy charge, but premeditation does not require such advance planning. Jerry acknowledged this difference by citing to the pattern instruction defining premeditation:
“Premeditation means to have thought the matter over beforehand, in other words, to have formed the design or intent to kill before the act. Although there is no specific time period required for premeditation, the concept of premeditation requires more than the instantaneous, intentional act of taking another’s life.” PIK Grim. 3d 56.04(b).
Nevertheless, the State put on evidence which, viewed in the light most favorable to the prosecution, established that Jerry participated in developing a plan to kill Punkie. One would be hard-pressed to find a more definitive example of a murderer having “thought the matter over beforehand.” Further, Tammy testified that Jerry repeatedly yelled at her to “do it” or “shoot it,” prior to the killing, further evidencing a premeditation. In short, the evidence of premeditation in this case was more than sufficient to support the first-degree murder conviction.
JURY INSTRUCTION
Jerry contends that evidence existed to warrant an instruction on the use of force in defense of another person or in self-defense. He argues that the evidence established that Jerry was no match for Punkie in a hand-to-hand fight, that Jerry was losing the fight with Punkie, and that Punkie had yelled that he was going to “kill everybody.”
Jerry acknowledges that he did not request such an instruction or object to its omission, triggering a clearly erroneous standard of review. See K.S.A. 22-3414(3) (party may not assign as error the failure to give an instruction unless the party objects thereto, stating distinctly the matter to which the party objects and the grounds of the objection unless the failure to give an instruction is clearly erroneous); see also State v. Sappington, 285 Kan. 158, 163, 169 P.3d 1096 (2007) (when the defendant does not request or object at trial to the omission of a juiy instruction, appellate court applies a clearly erroneous standard of review). Under that standard, the reviewing court must find that there was a real possibility the jury would have rendered a different verdict if the instruction had been given. 285 Kan. at 163.
Citing to State v. Sims, 265 Kan. 166, Syl. ¶ 3, 960 P.2d 1271 (1998), Jerry summarily argues that a court shall give a jury instruction on self-defense if there is any evidence to support that theory of defense. That case, however, does not provide authority for Jerry’s position. There, Sims had requested the instruction, so that the clearly erroneous standard was not applicable. Further, that opinion actually found that
“ ‘a trial court must instruct the jury on the law applicable to the defendant’s theories for which there is supporting evidence. When considering the refusal of the trial court to give a specific instruction, the evidence must be viewed ... in the light most favorable to the party requesting the instruction.’ ” 268 Kan. at 168 (quoting State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 [1992]).
Here, Jerry does not contend that his trial strategy was to defend on the basis of self-defense or defense of others. In opening statement, defense counsel indicated that the defense theory was that Jerry was a “fall guy” for the murder plan’s architects, Kelly and Tammy. Contending that Punkie had to be killed to protect Jerry and/or Tammy from Punkie’s attack is inconsistent with the “fall guy” theory. We have previously noted that, while inconsistent theories of defense are permissible, trial courts should not interfere with a defendant’s chosen defense theory by giving an instruction which neither party requested and which may undermine defendant’s chosen theory. Sappington, 285 Kan. at 164-65. Moreover, trial courts are not required to provide instructions for every possible theory of defense just because some supporting evidence may be produced at trial, if the defendant has not relied on the particular defense theory. 285 Kan. at 165.
In conclusion, we find that, under the circumstances of this trial, the trial court was not obligated to give a self-defense or defense of others instruction in the absence of a request for such an instruction.
FAILURE TO SUPPRESS DEFENDANT’S STATEMENT
Jerry contends that the district court erred in reversing itself at the second trial and allowing the admission of his unwarned state ment to Detective Hopper. Our review is constricted to some degree because the transcript from the first trial is not in the record on appeal, even though the parties have cited to the record volumes as if the record contained the original trial transcript. Accordingly, we do not have the court’s factual findings and legal conclusions for its original ruling suppressing the statement. The court’s ruling at the second trial indicates that its sole focus at that point was determining whether the encounter was a custodial interrogation so as to require the officer to give the Miranda warnings. See State v. Morton, 286 Kan. 632, 647, 186 P.3d 785 (2008) (Miranda warnings required only where there has been such a restriction on a person’s freedom as to render him or her “ In custody’ ”). Specifically, the district court stated:
“[T]he Court believes that its initial ruling in this matter at the first trial was in error and that the motion to reconsider should be granted and that the statement given by the defendant at the station will be admissible at this trial. I tend to agree with the State that we focused previously too much on whether or not Miranda was given or not and I think the Court got into a feeling that custodial interrogation was assumed then.
“And after reexamining the facts surrounding that interview, the Court finds that it was not a custodial interrogation.” (Emphasis added.)
In his brief on appeal, Jerry makes an alternative argument that, notwithstanding the Miranda issue, his statement was not voluntary. That argument was not developed at the trial level, and the district court did not make the requisite factual findings to allow a review of that issue. Accordingly, we will confine our review to the second trial finding that Jerry was not subjected to a custodial interrogation. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007) (issues not raised before trial court cannot be raised on appeal).
The determination of whether an interrogation is custodial involves a two-prong test. Under the first prong, the court determines the circumstances surrounding the interrogation, employing a substantial competent evidence standard. The second prong employs a de novo standard to determine whether, under the totality of those circumstances, a reasonable person would have felt free to terminate the interrogation and disengage from the encounter. Morton, 286 Kan. at 640.
At the second trial, the State argued that the interview was conducted under the following circumstances: Detective Hopper met Trussell at work indicating that he wanted to talk; Detective Hopper suggested that they go to a nearby substation of another law enforcement agency, so that they could have some privacy without interruption by customers; Trussell agreed to go; Trussell drove himself to the substation in a separate vehicle; Tammy rode with Trussell to the substation; the interview was conducted in the lobby of the substation; the interview took approximately 30 minutes; Trussell was never placed under arrest; Detective Hopper told Trussell he was free to leave at any time; Trussell was told that he was not required to speak to Detective Hopper; and Trussell eventually left on his own free will. In finding that the defendant was not in a custodial interrogation, the district court recited three of those facts: (1) the interview occurred in a lobby; (2) the defendant drove to the substation “independently”; and (3) the defendant was advised at least twice that he was free to go at any time he wanted.
The parties’ mistaken belief that the first trial transcript is in the appeal record hampers our analysis of the first prong, i.e., whether substantial competent evidence supports the factual findings as to the circumstances of the interview. Some of the circumstances surrounding the interview were apparently related in Detective Hopper’s testimony at the first trial, but not repeated at the second trial. However, Jerry has not contested the State’s recitation of those interview circumstances, has himself cited to the missing first trial transcript of the detective’s testimony, and has not challenged the evidentiary support of the facts upon which the district court relied. See State v. Paul, 285 Kan. 658, 670, 175 P.3d 840 (2008) (appellant’s duty to designate record on appeal). Accordingly, we will accept the State’s recitation. See State v. Haney, 34 Kan. App. 2d 232, 236, 116 P.3d 747, rev. denied 280 Kan. 987 (2005) (where record inadequate, appellate court presumes district court’s findings are properly supported).
Moving to the second prong, many of the circumstances surrounding Jerry’s interview are .comparable to other instances in which we have determined that the interviewee was not in custody. See, e.g., Morton, 286 Kan. at 646-47 (interview noncustodial where defendant voluntarily drove herself to the police station, interview did not take place in a regular interview room, she was told she was not under arrest and could refuse to answer questions, she was told she could leave at any time, and she was not physically restrained in any way); State v. Jones, 283 Kan. 186, 196-97, 200-01, 151 P.3d 22 (2007) (interview noncustodial where, although defendant was under subpoena and was arrested after the interview, he came to the interview voluntarily, officers told him he was not in custody and that the interview was voluntary, he was not restrained or threatened, and he was initially questioned as a witness); State v. Heath, 264 Kan. 557, 591, 957 P.2d 449 (1998) (interview was not custodial where defendant went to the police station voluntarily to be interviewed and waited unrestrained in waiting room prior to interview); State v. Ninci, 262 Kan. 21, 32-33, 936 P.2d 1364 (1997) (defendant who voluntarily agreed to appear at a police station for questioning was not subjected to “custodial interrogation,” despite the fact that he was asked questions that the police knew were reasonably likely to elicit an incriminatory response); State v. Loosli, 130 Idaho 398, 399-400, 941 P.2d 1299 (1997) (interrogation not custodial where the defendant agreed to come to the police station to answer questions, the officers informed the defendant he was free to leave, and the defendant was allowed to leave after the questioning).
Here, although the interview occurred in a law enforcement facility, it was not the station of the interviewing detective. The detective suggested moving the interview to that site for convenience, i.e., to avoid interruption by customers at Jerry’s workplace, and Jerry agreed to the move. Jerry drove himself to the location, accompanied by Tammy. The interview was conducted in the lobby of the facility, rather than an isolated interview room. Jerry was told he was free to leave whenever he wanted. Further, Jerry points out in his brief that the detective “told [him] numerous times that no matter what he said he would not be arrested.” The totality of the circumstances would indicate to a reasonable person that he or she was free to terminate the conversation and leave at any time. Accordingly, we affirm the district court’s determination that Jerry was not in custody and the failure to give him the Miranda warnings did not mandate the suppression of his statements.
LEADING QUESTIONS
Next, Jerry asserts that the district court erred in permitting the State to ask leading questions in direct examination and in declaring one witness to be a hostile witness. We first consider the complaint that the prosecutor used leading questions in the direct examination of the State’s witnesses, other than the hostile witness.
Jerry recites that the decision to permit leading questions rests within the discretion of the trial court, so that our standard of review is abuse of discretion. See State v. Jones, 204 Kan. 719, 727, 466 P.2d 283 (1970). The disconnect in Jerry’s argument is that the trial court did not permit the prosecution to use leading questions. Each time the defense objected to the prosecutor’s use of a leading question, the trial court sustained the objection, unless the prosecutor offered to rephrase or withdraw the question. The district court committed no error in that regard.
However, Jerry also contends that the prosecutor asked many leading questions to which the defense did not object, many of which involved information critical to the State’s case. The record confirms this allegation. Nevertheless, those errors were not preserved for review. See K.S.A. 60-404 (no reversal for erroneous admission of evidence unless contemporaneous objection appears of record); see also State v. Williams, 228 Kan. 723, 731, 621 P.2d 423 (1980) (holding that defendant’s assertion that the use of leading questions violated the rules of evidence to such an extent that defendant was denied his right to a fair trial was not preserved for appeal without contemporaneous objections).
We can appreciate Jerzy’s argument that the State’s repeated use of leading questions creates a dilemma for defense counsel, i.e., whether to constantly object to preserve the issue for appeal and thereby risk having the juzy misconstrue the numerous objections as an attempt to hide information. Likewise, we agree with his observation that even where an objection to a leading question has been sustained, the prosecutor has effectively communicated to the witness the answer the prosecutor would like to hear. Unfortunately, the record in this case poignantly illustrates those points. At one point in the trial, the following exchange occurred:
“Q: (By Ms. Satterfield) She didn’t say to you, I was having sex so he would help get rid of Punkie?
“A: No.
“MR. BROWN: Am I going to get to cross-examine the prosecutor sometime during this trial? She seems to be testifying, Judge?
“THE COURT: I’ll let you.
“MR. BROWN: Thank you.
“THE COURT: Counsel.
“MS. SATTERFIELD: All right. You are not really going to let him do that, are you?
“THE COURT: No, but let’s—
“MS. SATTERFIELD: I’ll mind my Ps and Qs, Your Honor. Sony.
“THE COURT: Please.”
Thereafter, the prosecutor continued to employ leading questions. In fact, the very next question was: “She told you she had an affair with him?” However, the defense refrained from objecting to that question and only sporadically objected thereafter.
Interestingly, the State responds to this issue by referring us to the two-step analysis employed where an appellant has made allegations of prosecutorial misconduct. Perhaps prosecutorial misconduct could be an avenue to seek redress for a prosecutor who was unwilling or incapable of refraining from asking leading questions and suggesting answers on direct examination of State witnesses, after being admonished to do so by the trial court. However, Jerry did not raise an issue of prosecutorial misconduct and as the issue is presented to us, it must fail.
HOSTILE WITNESS
Finally, Jerry argues that the trial court erred in not sustaining his objection to the trial court’s declaring Tracy Wells to be ahostile witness, which allowed the State to utilize leading questions. He relies on State v. Young, 277 Kan. 588,601, 87 P.3d 308 (2004), where this court recited:
“The determination of whether a witness is hostile is entrusted to the discretion of the district court. It should be ‘based upon the demeanor of the witness, the witness’ situation and relationship to and with the parties, the witness’ interest in the case, and the inducements he or she may have for withholding the truth.’ State v. Manning, 270 Kan. 674, 681-82, 19 P.3d 84 (2001). Once a witness is declared hostile, the witness may on direct examination be subjected to leading questions, . . . and be examined regarding prior inconsistent statements.”
The Young court also noted that “a witness who does not recall making the earlier statement or statements or who simply refuses to testify” may be declared a hostile witness. 277 Kan. at 601.
Jerry argues that Wells did not testify contrary to her previous statements and was not testifying adverse to the State. The record belies that assertion. Detective Hopper related Wells’ statements from his January 2003 interview, which included a statement that her husband had told her that Punkie had died while fighting with Jerry and that Tammy had shot Punkie. Some of Wells’ answers at trial contradicted her statements to Hopper, and in some instances, Wells professed to being unable to remember what others, including her husband, had told her. Moreover, even from the cold record, it is clear that Wells’ responses to the prosecutor’s questioning, many of which were one-word answers, manifested hostility.
In addition, Jerry contends that the proper foundation was not laid to permit the trial court to find Wells to be a hostile witness. The first time the question arose was in connection with a hearsay objection by the defense. The exchange was as follows:
“MR. BROWN: Judge, objection. Is the Court going to declare her an uncooperative witness?
“MS. SATTERFIELD: She’s not being uncooperative. She’s just answering the questions, what she did, how she did it, when she did it.
“THE COURT: Okay. All right. The questions are leading. I’ll sustain that motion. I don’t find that she is as of yet a hostile witness so. You can’t lead. If you feel a bit later that she is, why you can certainly ask me again about that.”
After further attempts by the prosecutor to elicit testimony from Wells, the following exchange occurred:
“Q. Do you recall being interviewed by Glenn Hopper in 2003, January?
“A. A little bit, yes.
“Q. Okay. And did you tell him that Punkie had been killed?
“A. I don’t remember what I told him.
“THE COURT: Ms. Satterfield, I’m going to declare her a hostile witness at this point?
“THE WITNESS: What does that mean?
“THE COURT: Apparently you have contrary information about what she has testified to at early times than what she is now.
“MS. SATTERFIELD: Yes.
“MR. BROWN: Judge, can we have determination made on the record, please, out of the presence of the jury?
"THE COURT: No.
“MR. BROWN: All right.
“THE COURT: So you have the Court’s permission to lead.
“MS. SATTERFIELD: Thank you.
“MR. BROWN: Please note my objection. I don’t think we followed the proper procedure for the declaration of a hostile witness.
“THE COURT: All right.”
By the time the court made its determination to declare Wells a hostile witness, it had been afforded an opportunity to observe the witness’ demeanor, to hear her declare that she did not remember on multiple occasions, and to observe the prosecutor’s attempts to refresh the witness’ recollection or impeach her testimony with her prior statements. The court had sufficient foundation upon which to make its ruling, and it did not abuse its discretion in declaring Wells to be hostile to the State.
Affirmed.
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The opinion of the court was delivered by
Nuss, ].:
This is a property damage case arising out of a public improvements project in Frontenac, Kansas. Southwestern Bell Telephone Company d/b/a AT&T Kansas (SBT) obtained judgment against Beachner Construction Company, Inc. (Beachner) for damages negligently caused to an SBT underground telephone cable which SBT had relocated at the city’s request to accommodate Beachner’s project construction. We transferred Beachner’s appeal to this court pursuant to K.S.A. 20-3018(c).
The issue on appeal, and this court’s holding, is as follows:
Did the district court err in holding that SBT’s only duty was to relocate the cable “to avoid any conflicts” with Beachner’s completed construction? Yes.
Accordingly, we reverse the district court and remand.
Facts
The Kansas Department of Transportation (KDOT) submitted to interested contractors the specifications for a project involving McKay Street in Frontenac, Kansas. Defendant Beachner Construction Company, Inc., (Beachner) submitted a bid price in reliance upon the plans and specifications and was awarded the contract. The project required Beachner to tear out and widen McKay Street, to install a storm sewer, new curb, gutter, and inlets, and then to repave the street. KDOT and Beachner ultimately signed a contract for the project.
The KDOT construction plans required the storm sewer to be installed at specified underground locations at a depth of 4 feet 11 inches sloping downward to 5 feet 1 inch for drainage. According to Beachner, the construction plans required the actual depth of the sewer to deviate no more than 2 inches from the depth provided in the plans.
SBT had an underground telephone cable located in the same public right-of-way where the sewer was to be trenched and laid. Prior to construction, KDOT notified SBT of the upcoming project and instructed SBT to move the cable in accordance with the project plans and specifications. SBT was provided a copy of the plans.
David Ghram was in charge of the cable relocation for SBT. He testified on cross-examination about his understanding of the relocation standards:
[ATTORNEY]: Okay. And basically what they [KDOT] indicate to you is Southwestern Bell, here are die plans and specifications, you move your line to comply widi ensuring that you don’t violate those plans and specifications, isn’t Üiat die requirements?
“[GHRAM]: That sounds correct.
“[ATTORNEY]: Okay. And if tiiey say we are putting a storm sewer in and these are — and this is die location, tiiis is the depdi, we want you to move your fines so it doesn’t interfere with that, isn’t tiiat, in fact, what they indicate to you or to your engineers?
“[GHRAM]: That would be correct.
“[ATTORNEY]: Okay. And your engineers, based on KDOT’s plans and specifications for die project on your behalf, diey being your agent, draw up plans and specifications for Southwestern Bell on what they drink should be done?
"[GHRAM]: That would be correct.
“[ATTORNEY]: Okay. So it is not — these plans are not KDOT’s plans, it is the plans diat your agent has done for you on what they think they should do?
“[GHRAM]: That is correct.”
Ghram testified that he was able to point out the location of the proposed sewer line on the plans drawn up by SBT’s engineers for the cable relocation. He further testified that based upon KDOT specifications and SBT’s resultant engineering plan, the SBT cable was to be relocated at a minimum depth of 36 inches, unless otherwise noted. SBT’s engineers and its contractor, Radell Construction Company, relocated the cable outside of the public right-of-way and the area where the sewer line was to be built, except for two locations.
First, the cable remained within the public right-of-way at the eastern location but was lowered to a depth of 10 feet in accordance with SBT’s engineering plans. This depth was approximately 5 to 6 feet below Beachner’s subsequent trench and was not damaged by Beachner during construction. When Ghram was effectively asked whether SBT engineers could only avoid the storm sewer at this eastern location by drafting plans to bury the cable at 10 feet, he replied, “That sounds correct.”
Second, at the western location, SBT abandoned an older portion of cable and instead installed new cable. While SBT was able to place the majority of the new cable outside the right-of-way, a 30-foot “jog” of cable was simply relocated within the right-of-way, at a depth of 3 feet, to avoid conflict with an adjacent private landowner s circle drive. A portion of this jog was the part damaged during construction by Beachner.
KDOT held a preconstruction conference between state and city officials involved in the project, and utility companies were invited to attend. The purpose of the conference was to discuss issues involved with the project, including traffic concerns and utility conflicts. When Radell Construction Company attended the preconstruction conference on SBT’s behalf, its cable relocation for SBT was already complete.
Before Beachner began construction, it called the Kansas One Call notification center pursuant to K.S.A. 66-1801 et seq. SBT was notified of the call. Both parties agree that SBT then accurately marked with orange paint the “tolerance zone” of its cable at the east and west locations where Beachner would be operating. The tolerance zone is a lateral marking of a 24-inch area in all directions from where the cable is located underground. K.S.A. 66-1802(p). The marking does not provide information regarding the depth of the cable.
Ron Vyhlidal (Vyhlidal), Beachner’s construction foreman on the project, saw the SBT tolerance zone markings at the east and west locations. He testified he knew that Beachner would be digging within both zones during construction, i.e., according to the plans, the cable was in the area where the sewer trench was to be dug and the line was to be laid. Prior to any digging, Vyhlidal asked SBT’s Ghram about the depth of SBT’s cable at the east location. Ghram replied that the cable at the east location was 9 or 10 feet deep. Vyhlidal did not ask Ghram about the depth of SBT’s cable at the west end of the project. After receiving this information, Beachner began sewer line construction at tire east end of the project and progressed west. Beachner excavated 7 feet deep in SBT’s eastern tolerance zone and did not encounter the cable.
When Beachner reached the west end tolerance zone, Vyhlidal knew that the SBT cable was underneath the paint marking and that the construction project would cross the cable. Vyhlidal testified that when the depth of a utility is unknown, the standard procedure is to use a backhoe to excavate 18 inches and then dig by hand to expose the cable. However, he knew that SBT was to have received the construction plans which provided that utility companies were scheduled to relocate their utilities prior to the construction to avoid any conflicts. He therefore assumed that the west end of the cable was located at the same depth, 9 to 10 feet, as the east end because “that’s the way it jogged out into our excavation.” Accordingly, Beachner used a backhoe to trench 6 feet deep. The backhoe, which had a 30-inch-wide bucket, "just nicked” the side of SBT’s 3 to SVUfoot-deep cable on the extreme southern boundaxy of the trench. Vyhlidal estimated that the alternative of hand digging to this depth would have taken 1 hour.
SBT filed suit to recover the cable repair cost. After a bench trial, the district court determined the duty and fault of each party. The court determined that Beachner breached the statutorily imposed duty to exercise reasonable care by failing to ascertain the depth of SBT’s cable prior to excavation with a backhoe. See K.S.A. 66-1809(a) (Upon receiving information from the utility of the tolerance zone of the underground utilities, “an excavator shall exercise such reasonable care as may be necessary for the protection of any underground facility in and near the construction area when working in close proximity to any such underground facility.”). It also determined that SBT breached no duty. It found Beachner 100% at fault and awarded full damages of $4,365.13 to SBT.
Analysis
Issue: The district court erred in holding that SBT’s duty in relocating its cable was solely to avoid any conflicts after completion of construction.
The district court decision
The district court determined that SBT was required only “to relocate its cable ‘to avoid any conflicts’ because of K.S.A. 17- 1902(1).” The court further determined that this phrase, which came solely from the KDOT plans, only required SBT to avoid any conflicts with the city’s sewer line after completion of its construction.
The district court began by quoting the KDOT construction plans, which do not appear in the record on appeal:
“ ‘Utility Companies located within the City’s right-of-way have been furnished with construction plans. Utility Companies are scheduled to relocate their utilities prior to the roadway construction to avoid any conflicts. The Contractor is responsible to have utilities located prior to construction to avoid damage. The Contractor will be required to work around the existing utilities within the right-of-way, which do not conflict with the proposed construction.’ ” (Emphasis added.)
The court proceeded with its analysis by observing that the plans required SBT “to relocate [its] utilities prior to the roadway construction to avoid any conflicts.” The court then noted that the contractor, Beachner, “is responsible to have utilities located prior to construction to avoid damage.” The court heavily emphasized this latter obligation and treated it as essentially superseding SBT’s obligation “to avoid any conflicts” by strictly hmiting SBT’s obligation to those conflicts occurring after construction. It expressly rejected the proposition that SBT was required “to relocate its cable to avoid any conflict with the excavation necessary to construct the sewer line.”
Because tire sewer line eventually was to be buried at a depth (5 to 6 feet) below the cable (approximately 3 feet), the district court found no postconstruction conflict. The court effectively determined that Beachner could have worked around the shallow SBT cable when trenching 2 to 3 feet beneath it for the sewer installation. Accordingly, the court held that SBT did not breach its duty.
Beachner s position
Beachner contends the district court improperly substituted the construction plans’ requirement for SBT “to avoid any conflicts” for SBT’s duty imposed by K.S.A. 17-1902(1). Subsection (1) gen- . erally provides that at the request of the city, the utility must re move or relocate its cable “in order to accomplish construction . . . activities.” Beachner further claims that SBT breached this statutory duty. When SBT placed its western section of cable within the right-of-way, it should have dug deeper than the 5 to 6 feet that the construction plans required Beachner to bury the sewer line there. In the alternative, Beachner argues that SBT should have avoided interference with Beachner s required construction in that location by buiying all of its cable completely outside of the work area — regardless of depth.
SBT’s position
SBT essentially responds that the district court was correct in both defining SBT’s obligation as “avoiding any conflicts” only after completion of construction and also in holding that SBT met this obligation. It argues that the evidence is undisputed that its cable did not conflict with the sewer line as constructed: “[a]t the point of damage, the sewer line was buried at a depth of 6 feet, and Plaintiff s cable was buried at a depth of 3 to 4 feet.” From this information SBT argues that “[t]he sewer line simply needed to go below Plaintiff s cable.”
SBT also argues in the alternative. It contends that if the district court should have applied K.S.A. 17-1902(1) instead, SBT nevertheless met this statutory obligation as well.
“The evidence concerning whether Plaintiff s cable prevented the Defendant from ‘accomplishing construction’ of the storm sewer, as this phrase is used in K.S.A. 17-1902(1) was conflicting, although the weight of the evidence showed that the Defendant could have installed the sewer without hitting Plaintiffs cable.”
As more fully discussed below, we agree with Beachner: The duty properly imposed upon SBT arises from K.S.A. 17-1902.
Discussion
When, as here, a city plans to repair or maintain a public right-of-way, it can require a provider such as SBT to adjust or remove its facilities to permit the city’s activity. K.S.A. 17-1902(1) provides:
“If requested by a city, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public, a provider shall promptly remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the political subdivision. Such relocation or adjustment shall be completed as soon as reasonably possible within the time set forth in any request by the city for such relocation or adjustment. Any damages suffered by the city or its contractors as a result of such provider s failure to timely relocate or adjust its facilities shall be borne by such provider.” (Emphasis added.)
Beachner argues that the italicized language imposes a duty of care on SBT. More specifically, because the street project was an improvement for the public, SBT was obligated to remove, relocate, or adjust its facilities, i.e., cable, to the extent necessary for Beachner to accomplish its construction goals of installing the sewer line. Beachner essentially contends that SBT’s actions needed to be reasonable if Beachner were to accomplish its goals.
We independently observe that because SBT admits that it was “furnished with construction plans” before construction began, the district court’s ruling effectively authorized SBT to relocate its cable to a place which it knew, or should have known, could interfere with Beachner’s future actions to install the sewer line. These actions included, inter alia, digging the trench, fitting and laying the pipe, and refilling the trench. The only prohibition was the physical interference of SBT’s relocated cable with the subsequently completed sewer line, e.g., the cable could not block the sewer line.
Our standard of review when interpreting statutes is well settled. Interpretation of a statute is a question of law, and our review is unlimited. Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, Syl. ¶ 2, 181 P.3d 549 (2008). In reviewing a statute, the “fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained.” Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007). “ "As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation.’ ” Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006) (quoting In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 [2002]).
With these principles in mind, we hold that the district court erred in substituting “avoiding any conflicts” for SBT’s statutory obligation: K.S.A. 17-1902(1). We further hold that for subsection (1) to have any real meaning, a duty of reasonable care must be imposed upon the provider like SBT when removing, relocating, or adjusting its facilities at the request of tire city “in order to accomplish construction . . . activities.” Cf. Hawley, 281 Kan. at 631. Accordingly, SBT’s duty is not limited solely to the timeliness of its actions. See, e.g., 17-1902(1) (“a provider shall promptly remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right of way”).
When, as here, we have sought the meaning of a specific statutory subsection, we have also often looked to the broader statute for guidance. “[V]arious provisions of an act in pari materia must be construed together in an effort to reconcile the provisions so as to make them consistent, harmonious and sensible.” State v. Gaudina, 284 Kan. 354, 358, 160 P.3d 854 (2007).
We addressed an analogous situation in Brown v. State, 278 Kan. 481, 484-85, 101 P.3d 1201 (2004). Consistent with these principles, we determined that K.S.A. 22-4506(b) implicitly requires appointed counsel in postconviction matters to have a minimum level of competence despite the absence of such language in the statute. In making this determination, we looked to the broader purpose of the statute and to others, e.g., 22-4522(e)(4) (State Board of Indigents’ Defense Services “shall. . . adopt rules and regulations . . . for the guidance of appointed counsel. . . including . . . qualifications, standards, and guidelines for . . . appointed counsel”). We concluded that “[wjhen counsel is appointed by the court in postconviction matters, the appointment should not be a useless formality.” Brown, 278 Kan. at 484. We have similarly looked to the purpose behind a statute, as well as other statutory provisions, when interpreting a specific section. See State v. Breedlove, 285 Kan. 1006, 179 P.3d 1115 (2008) (reading various subsections of K.S.A. 38-1681 together to reinforce the court’s holding on a specific subsection).
Interpreting the provider’s obligation in subsection (1) — to remove, relocate or adjust facilities “in order to accomplish construction . . . activities” — as including a duty of reasonable care is also entirely in harmony with several other subparagraphs in K.S.A. 17-1902 as set forth below.
We observe that subparagraph (b) gives SBT the right to construct, maintain, and operate appurtenances and facilities along, across, upon, and under any public right of way. But it also provides that SBT’s “facilities shall be so constructed and maintained as not to obstruct or hinder the usual travel or public safety on such public ways or obstruct the legal use by other utilities. “ (Emphasis added.)
We next observe that subparagraph (d) establishes the overall superior authority of the city over SBT in such matters:
“The authority of a provider to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety, and welfare requirements and regulations of the city.”
Subparagraph (k) is more explicit and addresses the possibility of damage caused by SBT and the city’s rights to recover:
“A city may require a provider to repair all damage to a public right-of-way caused by the activities of that provider, or of any agent affiliate, employee, or subcontractor of that provider, while occupying, installing, repairing, or maintaining facilities in a public right-of-way and to return the right-of-way, to its functional equivalence before the damage pursuant to the reasonable requirements and specifications of the city.”
Subparagraph (k) goes on to address the city’s rights in tire event SBT would not repair all damages that it caused:
“If the provider fails to make the repairs required by the city, the city may effect those repairs and charge the provider the cost of those repairs. If a city incurs damages as a result of a violation of this subsection, then the city shall have a cause of action against a provider for violation of this subsection, and may recover its damages, including reasonable attorney fees, if the provider is found liable by a court of competent jurisdiction.”
We further observe that subparagraph (n) grants the city additional authority to protect itself from the provider by assessing certain fees for the provider’s use and occupancy of the public right-of-way:
“(3) inspectionfees to recover all reasonable costs associated with city inspection of the work of the provider in the right-of-way.
(4) . . . costs associated with repairing and restoring the public right-of-way because of damage caused by the provider ... in the right-of-way; and
“(5) a performance bond, in a form acceptable to the city, . . . insuring appropriate and timely performance in the construction and maintenance of facilities located in tire public right-of-way.” (Emphasis added.)
Lastly, subparagraph (q) specifically protects the city, through indemnification and hold harmless provisions, from the provider’s negligent conduct:
“Providers shall indemnify and hold the city . . . harmless against any and all claims ... of harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the provider . . . , while installing, repairing or maintaining facilities in a public right-of-way.“ (Emphasis added.)
We acknowledge that (q) also provides that “[t]his section is solely for tire benefit of the city and provider, and does not create or grant any rights, contractual or otherwise, to any other person or entity.” Even assuming, without deciding, that its reach expansively prevents Beachner from relying upon it to identify a duty owed to Beachner by SBT, it nevertheless shows that the legislature knows how to clearly express such a “limitation.” The legislature did not do so in the other subsections to K.S.A. 17-1902 discussed earlier in this opinion, e.g., subsection (1). Indeed, subsection (1) expressly states that providers will bear “[a]ny damages suffered by the city or its contractors as a result of such provider’s failure.” (Emphasis added.)
Simply put, K.S.A. 17-1902 expressly recognizes the duty of care owed by a provider working in the public right-of-way. See, e.g., subsection (q) and the provider’s required indemnification of the city for the harm caused by the provider’s negligence. The statute also impliedly recognizes the provider’s duty of reasonable care. For example, what would otherwise be the purpose of city inspections of tíre provider’s work as authorized by subsection (n)(3)? And what would be the purpose behind a performance bond guaranteeing to the city “appropriate” performance in the provider’s construction and maintenance of its facilities as authorized by subsection (n)(5)? Although admittedly there is no express statutory statement that the provider must use reasonable care in choosing a location for the removed/relocated utility, that obligation is implicit.
We contrast the situation in the instant case with one in which a party simply desires to dig in an area where a utility line may be buried, i.e., where there is no need to move the utility line at the city’s request. The digging party is obligated to first call One Call to be informed of the line location. See K.S.A. 66-1805. Because the utility has no need to move its line in such a situation, only to mark its tolerance zone, that digging party generally has the sole obligation to proceed with reasonable care. See K.S.A. 66-1809.
However, when, as here, a city has ordered a provider to move its utility line “in order to accomplish construction” of the city’s sewer line by a contractor, the duty of reasonable care cannot rest entirely upon the contractor. This conclusion is particularly valid when, as here, the utility has been given an advance copy of the construction plans. The advance copy is presumably to help the utility plan the movement of its line to a location where the line will not interfere with the contractor’s performance of its contractual construction obligations. In short, it simply makes no sense for SBT to be allowed to relocate its cable to a place which it knows, or should have known, is in Beachner’s planned “construction path” — so long as the cable will not be in conflict with the completed sewer line. In die testimony of SBT’s agent in charge of the cable relocation, David Ghram, he essentially agreed.
In conclusion, we hold that when a provider is requested by a city under K.S.A. 17-1902(1) to remove, relocate, or adjust its facilities “in order to accomplish construction . . . activities directly related to improvements for the health, safety and welfare of the public,” the provider’s duty implicitly contains an obligation to use reasonable care. This obligation includes the specific need to avoid interfering with the construction plans to be executed by the contractor. Accordingly, the district court erred as a matter of law in essentially overriding SBT’s statutory duty by limiting SBT’s obligation to simply avoid conflicts occurring after construction.
We now turn to SBT’s alternative argument: that its obligation under K.S.A. 17-1902(1), if any; was met. SBT first generally contends that it met its statutory obligation “to relocate its underground cable as necessary to accommodate the storm sewer” because it buried its cable at 3 feet, and the sewer line was to be buried at 5 to 6 feet. SBTs counsel contended at oral arguments that while SBT alone could determine the depth in which to bury its newly placed cable, its engineers were nevertheless required to follow “reasonable” engineering standards in the process. According to SBT, its engineers followed reasonable standards because “[tjhere was no physical conflict between the cable and the sewer line.”
SBT next generally contends that it met its statutory obligation because if Beachner would have properly located the cable by hand digging before baclchoeing, there would have been no damage to the cable.
“[T]he evidence was that the Defendant knew that the cable was positioned beneath the locate marks, yet did nothing to ascertain the cable’s depth before digging with its backhoe. Just like every other excavator, tire Defendant had the ability to hand dig or otherwise expose the cable to make sure that it would not hit the cable while digging to the required depth for the storm sewer.”
SBT argues that although the evidence was conflicting, “the weight of the evidence favored a finding that the location of Plaintiff s cable did not. . . prevent the Defendant from ‘accomplishing construction' of the sewer line.” Because Beachner “could have installed the sewer without hitting the cable,” SBT contends it did not breach its duty, was not negligent, and was not at fault.
We observe that because the district court relied upon an erroneous legal conclusion, it focused on the wrong groups of facts. Consequently, it made no relevant findings of fact that we can examine for substantial competent evidence, i.e., to which we can apply our deferential standard of review. Nevertheless, SBT essentially asks us to review the record and determine de novo that the preponderance of the evidence supports its position: that SBT did not breach its duty, that Beachner did breach its duty, and that Beachner was wholly at fault. Determining breaches of duty and degrees of fault based upon the entire record are not functions lypically performed by an appellate court. See, e.g.. Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008) (“[i]n the vast majority of cases, the question of negligence is a factual determination for the jury, not a legal question for the court”; whether duty has been breached is a question of fact); PIK Civ. 4th 105.01, 105.05; State v. Sharp, 289 Kan. 72, 80, 210 P.3d 590 (2009) (an appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence). We decline the invitation now.
Even if we were inclined to attempt making these determinations, we are handicapped, if not prevented, by the state of the record on appeal. None of the 10 exhibits admitted at trial are included. There are no photographs and no construction plans or drawings by KDOT or SBT. There are no documents marked by the witnesses to otherwise show the respective locations of the city right-of-way, SBT’s cable (complete with jog), Beachner’s trench, and precisely where the backhoe struck the cable. Even the best speculations by counsel at oral arguments cannot overcome inadequacies in the appellate record. The responsibility for providing a record on appeal sufficient to support a party’s argument belongs to that party: here, SBT. See Kenyon v. Kansas Power & Light Co., 17 Kan. App. 2d 205, 206, 836 P.2d 1193 (1992) (“It is well-settled that the burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims.”).
Accordingly, under these circumstances, the best course of action is to remand to the district court for that court’s application of the correct legal standard to the evidence at trial. The district court may then address the specific allegations of SBT negligence that Beachner claims were essentially rejected by the court’s holding that SBT breached no duty because its cable relocation successfully “avoided any conflicts” after completion of construction. According to Beachner’s brief, these allegations of SBT negligence include (1) relocating the cable at the West location in the same area where Beachner was required to excavate; (2) burying the cable at 3 feet, when it was aware that Beachner would be digging to a depth of 5 feet in this area; and (3) failing to disclose to Beachner the actual depth of its cable at the West location. Whatever Beachner’s specific allegations of SBT negligence are — both before and during Beachner’s construction — we agree that the district court’s legal ruling substantially limiting SBT’s duty had the effect of erroneously and prematurely rejecting these Beachner contentions as a matter of law.
In conclusion, we hold that the district court incorrectly determined SBT’s duty of care. Because we are not equipped, or disposed, to determine if SBT met its duty of care under K.S.A. 17-1902, we reverse the district court and remand for proceedings consistent with this opinion.
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The opinion of the court was delivered by
Schroeder, J.:
This is a malpractice action to recover damages against three defendants, the surgeon, the anesthetist and a resident physician. The case is here on appeal from the trial court’s ruling upon separate demurrers to the petition which was alleged in two counts, on an ordinary negligence and the other under the doctrine of res ipsa loquitur.
The question presented is whether the petition states a cause of action against each of the three defendants on each of the two counts.
The petition was filed on the 17th day of September, 1959, by Garrett Voss, an incompetent person, by and through Thelma Voss, his wife, the duly appointed guardian of his person and estate. After preliminary allegations concerning the plaintiff’s residence and the appointment of his wife as guardian for him upon an adjudication of incompetency by the probate court of Graham County, Kansas, the petition alleged:
“3. That the said Garrett Voss was rendered an incompetent person by reason of the negligent and careless acts and omissions of the defendants, all as will be more particularly set forth herein.
“4. The defendant Russell E. Bridwell is now and was on the 28th day of August, 1958, a duly licensed and regularly practicing physician and surgeon, and was on said date engaged in the practice of medicine at the University of Kansas Medical Center and elsewhere, and said defendant maintains an office in the National Reserve Life Building in the City of Topeka, Shawnee County, Kansas.
“5. That the defendant John I. Davies is now and was on the 28th day of August, 1958, a licensed and practicing physician, and was on said date a member of the staff at the University of Kansas Medical Center and the supervising head of the Department of Anesthesiology at said hospital.
“6. That said defendant is a resident of Johnson County, Kansas, and that his post office address is 2012 West 85th Terrace in said County.
“7. That the defendent A. K. Sen was on the 28th day of August, 1958, in residency at the University of Kansas Medical Center, and in the Department of Anesthesiology working under the direct supervision and control of the defendant John I. Davies, but plaintiff does not know, and is therefore unable to state whether said defendant A. K. Sen was duly licensed to practice medicine within the State of Kansas or elsewhere; that said defendant is a resident of the State of Kansas, and may be served with process at St. Margaret’s Hospital, Kansas City, Wyandotte County, Kansas.
“8. That on the 28th day of August, 1958, Garrett Voss sought the medical advice of the defendant Russell E. Bridwell for the purpose of procuring medical treatment for a mastoid infection of the ear, the exact nature and type of infection being unknown to the plaintiff, but being within the knowledge of the defendants herein and particularly the defendant Russell E. Bridwell.
“9. That said defendant Russell E. Bridwell, after having conducted an examination of the plaintiff herein, advised plaintiff that it would be necessary that an operation be performed for the purpose of curing and treating said mastoid infection, and further advised plaintiff that immediate surgery thereof should be had.
‘TO. Plaintiff, [in reliance upon the statements of the said Russell E. Bridwell to the above effect,] did then and there engage and employ the services of the said defendant Russell E. Bridwell to perform said surgical operation and treatment, [and the said defendant Russell E. Bridwell did then and there undertake such employment, and did agree to treat, operate, and heal the said Garrett Voss, and to use and employ the ordinary medical skill, treatment, and means generally employed and used by physicians and surgeons in the practice of the medical profession within the community.]
“11. That the said Garrett Voss [relying upon the diagnosis, recommendation, and prescribed surgery consented thereto,] and said defendant Russell E. Bridwell procured the admission of the plaintiff herein to said Medical Center, making all necessary arrangement for the performance of said operation and surgery including the assistance of nurses and particularly the services of an anesthesiologist.
“12. That the defendant, John I. Davies, was the head of the Department of Anesthesiology of the University of Kansas Medical Center and was responsible for and had direct control of administering anesthesia to the plaintiff and undertook the administration of anesthesia to the plaintiff through the said A. K. Sen. Plaintiff does not know and is therefore unable to state, said information being, however, within the knowledge of the defendants, how and in what manner the defendant A. K. Sen was assigned for the purpose of administering a general anesthesia to the plaintiff herein, but plaintiff alleges the facts to be that the said A. K. Sen, being in residency as aforesaid in said Department of Anesthesiology as aforesaid, was at all times herein complained of under the direct supervision and tutelage of the defendant, John I. Davies, and the said John I. Davies, being the head of the Department of Anesthesiology, and having undertaken the administration of anesthesia to the plaintiff, was responsible for and had control of the medical activities of the defendant, A. K. Sen, and was responsible for the proper administration of anesthesia to the plaintiff.
“IS. That the defendant Russell E. Bridwell, being the operating surgeon, likewise was responsible for and had direct control of the proper preparation of the plaintiff herein as his patient, for said surgical operation including the administration of anesthesia.
“14. Plaintiff further alleges and shows to the Court that the defendants carelessly and negligently failed to use and employ ordinary medical skill, care and treatment generally employed by doctors of medicine, surgery and anesthesiology in the community, and that said defendants were negligent and careless in the preparation of the plaintiff for surgery and the administration of a general anesthesia to the plaintiff in the following particulars, to-wit:
“A. The defendant A. K. Sen, after having administered an anesthetic to the plaintiff and therefore causing plaintiff to become unconscious, thereafter negligently and carelessly, and while said plaintiff was unconscious from said anesthetic, inserted an endotracheal tube into the esophagus of the plaintiff instead of into and past the larynx of the plaintiff.
“B. The defendants, after the negligent and careless acts of the defendant A. K. Sen, failed to observe that said endotracheal tube had wrongfully and carelessly been inserted as aforesaid, when the defendants saw or by the exercise of reasonable and ordinary care and medical skill could have seen that said insertion of said endotracheal tube had been improperly made.
“C. The defendants negligently and carelessly failed to take the ordinary and customary medical precautions to determine the blood pressure, respiration, and pulse count of the plaintiff, while plaintiff was unconscious from a general anesthetic.
“D. The defendants failed to observe that said endotracheal tube was not performing its function of supplying air and oxygen to the plaintiff while plaintiff was unconscious from anesthesia, when the defendants saw or by the exercise of ordinary medical skill and observation could have seen that plaintiff was not obtaining air and oxygen.
“E. The defendants negligently and carelessly failed to observe that plaintiff was becoming cynotic from lack of oxygen, when they saw or by the exercise of ordinary care and medical skill could have seen the plaintiff turning blue and becoming cynotic.
“F. The defendants negligently and carelessly failed to observe that said endotracheal tube was improperly transmitting air and oxygen to the plaintiff’s stomach and abdominal region, and not to the plaintiff’s lungs and blood stream, and that by virtue thereof plaintiff’s stomach and abdominal region was becoming inflated, greatly and unnaturally distended, when defendants by the exercise of ordinary care and skill could have seen and observed said unnatural distension.
“G. That said defendants negligently and carelessly permitted the plaintiff to be so deprived of oxygen and pulmonary ventilation for such a long period of time, the exact period of time being unknown to the plaintiff, that plaintiff suffered irreparable damage to his body, nerves, tissue, and particularly his brain, all as will be more particularly set out hereafter.
“H. That the defendants saw or by the exercise of ordinary medical care and skill could have seen that plaintiff was being deprived of pulmonary ventilation, and as a result thereof defendants knew or should have known that such deprivation would result in irreparable damage to the plaintiff, and particularly plaintiff’s brain, but notwithstanding the same said defendants negligently and carelessly failed to alleviate said condition when the defendants could have done so had said defendants exercised ordinary care and medical skill, and by so doing thereby avoid irreparable damage to the plaintiff.
“15. That as a direct and proximate cause of the negligent and careless acts and omissions on the part of said defendants as aforesaid, resulting in the plaintiff being deprived of oxygen for a long period of time, the exact time being unknown to the plaintiff, plaintiff was rendered decerebrate, has been rendered wholly incompetent in mind, and plaintiff’s eyesight has been so impaired that plaintiff is blinded save and except the ability to discern light and dark; plaintiff is unable to talk coherently, or to control any part of his body, is unable to move or to perform any other human or bodily function without aid or- assistance, and plaintiff has been and is now under the constant care of a medical doctor, and is required to have constant medication to keep plaintiff from going into convulsions, and is under constant medication and sedation.
“16. That plaintiff has to be cared for, fed and bathed, being unable to perform any of said functions, and that said condition as aforesaid will continue so long as plaintiff lives.
“17. That prior to the 28th day of August, 1958, plaintiff was an able-bodied man, possessing unusual strength, large in stature, and robust in health, engaged in farming seven hundred twenty (720) acres of farm land, located in Graham County, Kansas, earning an average conservative sum from said farming endeavor of Four Thousand ($4,000.00) Dollars per year.
“18. That plaintiff was fifty-five (55) years of age at the time plaintiff was totally incapacitated as aforesaid, and plaintiff had a life expectancy of approximately nineteen (19) years.
“19. That by reason of plaintiffs total incapacity, plaintiff will be unable to perform any type of work so long as plaintiff shall survive.
“20. That in addition thereto plaintiff has incurred medical, hospital, nursing and expenses for medication in the sum of Four Thousand One Hundred Thirty-eight and 03/100 ($4,138.03) Dollars to date, and will be required in the future to expend large sums for drugs, doctors, hospital, nursing, and other medical care, the exact amount being unknown at this time.
“21. That by reason of said negligent and careless acts and omissions as aforesaid on the part of said defendants, plaintiff herein has suffered pain, shock, physical and mental disability, and will in the future be permanently incapacitated physically and mentally, all to his aggregate damages in the sum of Two Hundred Thousand ($200,000.00) Dollars, and costs of suit.” (Emphasis and brackets added.)
In Count II of the plaintiff’s canse of action against the defendants paragraph 1 through 13 inclusive of the first cause of action were incorporated by reference. It further alleged:
“2. That the attempted aforesaid operation and surgical treatment of the said Garrett Voss, and the procedure followed therein, and the instrumentalities employed in connection therewith, including the administration of a general anesthetic to the plaintiff, and the use and employment of said endotracheal tube were under the entire, complete and exclusive supervision and control of all of said defendants.
“3. That during all of the period of time complained of on August 28, 1958, the said Garrett Voss was unconscious due to the administration of said anesthesia and such other drugs as may have been administered to him by said defendants, and that plaintiff has never since being rendered unconscious as aforesaid regained sufficient mental competence to know in any particular what transpired, and plaintiff exercised no control or voluntary action during said time.
“4. Plaintiff alleges the fact to be, however, that the irreparable damage and injury to the plaintiff complained of in Count 1 of plaintiff’s petition do not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the insertion of an endotracheal tube.
“5. That in truth and in fact said mastoid operation was never performed by the defendants for reasons known to the defendants and unknown to the plaintiff.
“6. That plaintiff was without knowledge of the proper technique, manner or methods of operating procedure, of administering an anesthetic and other drugs in connection with said operating procedure, and was without knowledge of the proper technique, manner, or methods of supplying sufficient pulmonary ventilation during the time within which plaintiff was unconscious, and plaintiff relied wholly upon the defendants to render said treatment and operation, and the necessary supervision and control thereof in a proper, careful, and medically skillful manner.
“7. That at the time plaintiff entered said hospital and immediately prior to being placed under anesthesia by said defendants, plaintiff was neurologically sound and physically fit in mind and body.
“8. That said defendants carelessly and negligently caused and permitted said operation, preparation, and procedure to be rendered in such a manner as to cause the plaintiff to be rendered decerebrate and totally incapacitated, all as alleged in Count I hereof, which by reference is hereby made a part hereof as though fully set out herein.
“9. Plaintiff alleges the fact to be that without negligent and careless acts upon the part of said defendants in the preparation of plaintiff and treatment and surgical care, plaintiff’s injuries would not have occurred.
“10. Plaintiff further alleges and shows to the Court that certain medical charts were kept with regard to the procedure employed by said defendants, and that plaintiff, by and through his guardian and attorneys have heretofore made demand for a right to inspect and make copies thereof, but that said right so to do has been denied the plaintiff, Iris guardian, and attorneys, said Medical Center making claim that said charts and medical records are the personal property of said Medical Center.
“11. Plaintiff alleges on information and belief that if said medical charts were made available the specific acts of negligence could be by the plaintiff ascertained, but plaintiff being denied access thereto, such acts of negligence are within the knowledge of the defendants.” (Emphasis added.)
Thereupon allegations concerning the plaintiff’s injury and damage similar to those alleged in Count I were set forth, and the petition concluded with a prayer for judgment against the defendants in the sum of $200,000 and costs.
The trial court overruled the motion of the defendant Bridwell to strike various allegations from Counts I and II, except for those allegations set forth in paragraphs numbered 10 and 11 within the brackets. These allegations were stricken only from Count II in the petition. The trial court also overruled motions of the defendants Davies and Sen to strike and to make the petition definite and certain.
Thereafter the trial court overruled the “Demurrer of Joint Separate Defendants Bridwell and Sen,” challenging the sufficiency of the petition to state a cause of action, as to each count of the petition, but sustained a similar demurrer of the defendant Davies as to both counts of the petition, granting the plaintiff twenty days in which to amend as to the defendant Davies, and further granting Davies twenty days thereafter to plead.
Appeal has been duly perfected by Bridwell and Sen from the order of the trial court overruling their respective demurrers to the petition, and the plaintiff has appealed from the order sustaining the demurrer of the defendant Davies.
Throughout the remainder of this opinion the defendants, Bridwell (appellant), Sen (appellant), and Davies (cross appellee), will be referred to by name, and the petitioner, Garrett Voss (appellee and cross appellant), will be referred to as the plaintiff to avoid confusion.
The petition upon the record presented herein as we construe it under recent decisions is entitled to a liberal construction. (Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152; Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359; and Wycoff v. Winona Feed & Grain Co., 187 Kan. 98, 353 P. 2d 979.)
In construing a petition for the purpose of determining its effect, allegations are to be liberally construed with a view to substantial justice between the parties. (G. S. 1949, 60-736.) The general rule is that against a demurrer the petition of the plaintiff is entitled not only to the benefit of the facts pleaded, which must be taken as true, but to all reasonable inferences that may be derived therefrom. (Cassity v. Brady, 182 Kan. 381, 321 P. 2d 171, and authorities cited therein.) In construing the sufficiency of any pleading all of the allegations thereof are to be construed together, and it is improper to segregate allegations and determine their sufficiency without regard to the context of the whole pleading. (Fyne v. Emmett, 171 Kan. 383, 233 P. 2d 496; Emrie v. Tice, 174 Kan. 739, 258 P. 2d 332; and Kitchen v. Smith, 184 Kan. 188, 334 P. 2d 413.)
Where a general demurrer challenges the sufficiency of the entire petition to state a cause of action, as here, the demurrer must be overruled if the pleading so challenged states a cause of action on any theory. (Fernco, Inc., v. Kennedy, 181 Kan. 25, 309 P. 2d 400; Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986; and Wycoff v. Winona Feed & Grain Co., supra.)
When the plaintiff in an action has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one cause of action or in separate counts. The pleader may state his case in as many ways as he sees fit in separate causes of action in the alternative to meet any possible phase of the evidence. (Vakas, Administratrix v. Collins, 185 Kan. 103, 107, 340 P. 2d 99, and authorities cited therein.)
In Emrie v. Tice, supra, the court was confronted with a malpractice action to recover damages for injuries resulting from X-ray treatments, and the court held the separate demurrers to the first cause of action based on specific acts of negligence, and to the second cause of action based on the theory of res ipsa loquitur, were properly overruled for the reasons stated in the opinion.
Thus, in the instant case if the plaintiff has properly alleged a cause of action in each of the alternative counts, he may attempt to prove specific acts of negligence on the part of the defendants and still rely on res ipsa loquitur, subject to the qualification that if his evidence goes so far as to fully explain the cause or causes of his injury, he loses the right to rely on res ipsa loquitur, but an unsuccessful attempt to prove specific acts of negligence on the part of the defendants would not deprive the plaintiff of such right. (See, Kemalyan v. Henderson, 45 Wn. [2d] 693, 277 P. 2d 372.) The following language was used in Emrie v. Tice, supra:
“It lias been said where specific acts of negligence are proved the doctrine of res ipsa loquitur does not apply. (Waddell v. Woods, 158 Kan. 469, 471, 148 P. 2d 1016.) Appellee’s theory of the second cause of action was not predicated on specific acts of negligence. His idea clearly was to file the second cause of action on the theory of res ipsa loquitur and to rely on it in the event he failed to establish the specific acts of negligence pleaded in the first cause of action. In order, however, to plead fully the circumstances and conditions, as far as he was able to do so, under which he submitted himself to appellant for treatment, which have been stated and need not be repeated, he made paragraphs 1, 2 and 3 of count one a part of count two . . .” (p. 745)
For text authority on the procedural effect of res ipsa loquitur see Prosser, Law of Torts, 2nd Ed., § 43, pp. 211 to 215, incl.; and 37 Calif. L. Rev. 183, at p. 214.
Has the plaintiff alleged a cause of action against each of the defendants on each of the alternative counts in the petition?
It is conceded in the brief of Rridwell and Sen that Count I of the petition as tested on demurrer states a cause of action against Sen.
Rules which have become firmly established in this jurisdiction from decisions concerning the liability of physicians and surgeons in malpractice cases will be summarized, since all of the parties in this action rely upon these rules.
The relationship between a physician and his patient, implied in law by reason of the physician’s undertaking, is that he possess that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities, having due regard for the advance in medical or surgical science at the time; that he will use such learning and skill in his treatment of the patient with ordinary care and diligence; and that he will use his best judgment in all cases of doubt as to the proper course of treatment. This rule is founded upon considerations of public policy, its purpose being to protect the health and lives of the public. (Erastus Tefft v. Hardin H. Wilcox [1870], 6 Kan. 46; Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458; Saylor v. Brady, 114 Kan. 764, 220 Pac. 1047; Goheen v. Graber, 181 Kan. 107, 309 P. 2d 636, and cases cited in the latter decision.)
On the facts presented by the evidence in Goheen v. Graber, supra, it was proper to say:
“. . . A physician is not a guarantor of good results, and civil liability does not arise merely from bad results, nor if bad results are due to some cause other than his treatment . . .” (p. 112.)
The duty of a physician to his patient is not affected by the fact that the service rendered is gratuitous, or by the fact that the physician was employed by a third person, so that no contractual relation existed between the physician and the patient. (41 Am. Jur., Physicians and Surgeons, § 79, p. 198; and see, Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P. 2d 472.)
In Hershey v. Peake, 115 Kan. 562, 223 Pac. 1113, the following language from 30 Cyc. 1583 was approved:
“It is ordinarily sufficient for plaintiff, in an action for malpractice, to aver that defendant was a physician and surgeon; that plaintiff retained and employed him as such to attend upon him; that he accepted and entered upon such employment, yet conducted himself in an unskillful and negligent manner, whereby plaintiff was injured, to his damage, etc. Want of skill and care on the part of the physician must be alleged, and also the specific acts of commission or omission concerning which negligence is imputed.” (p. 567.)
Bridwell relies upon the general rule that a physician or surgeon is presumed to have exercised his legal duty of ordinary care and skill and, in the absence of an allegation in the petition to the contrary, it is presumed that he possesses that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or similar communities, and that he carefully and skillfully operated on the patient. (Cummins v. Donley, 173 Kan. 463, 249 P. 2d 695.)
It is the contention of Bridwell that he could not be chargeable with negligence in a matter over which he had no duty; that the charges of negligence all involve the administration of an anesthetic and the insertion of an endotracheal tube in connection therewith; and that there is no charge in the petition that the so-called negligence was the result of acts or omissions which he had a duty to perform; and that the mere failure to perform creates no negligence if there was no duty. (Citing, Ramsland v. Shaw, _ Mass. _, 166 N. E. 2d 894; and Emrie v. Tice, supra.)
It is contended Bridwell’s duties as the general surgeon do not encompass the administration of the anesthetic. It is argued:
“It is common knowledge that the fields of medicine have become highly specialized. The field of anesthetics has developed experts, called anesthesiologists, whose duties are the administration of anesthetics. He has duties independent of the surgeon. Each must pursue and apply his specialty with his own degree of skill, care and discretion, exercising his own best judgment, for the benefit of the patient and riot for another doctor.
“The petition does not charge Dr. Bridwell with any training or specialized knowledge in the field of anesthetics or anesthesiology. Quite to the contrary, it charges the administration of the anesthetic by A. K. Sen was a part of the service of the Department of Anesthesiology of the University of Kansas Medical Center. Specialists in that branch. It must be assumed that plaintiff accepted the service of the anesthesiology department by implied consent, because there is no charge or contention that the service was without authority or an assault or trespass upon the person of plaintiff.”
Cases from foreign jurisdictions are cited to uphold the foregoing proposition of law propounded for adoption by the court. The factual situation presented in most of the cases cited makes them irrelevant to the issue at hand. Those most nearly in point are Thompson v. Lillehei [Minn., 1958], 164 F. Supp. 716, sustained on appeal in 273 F. 2d 376; 13 A. L. R. 2d 11s; 31 A. L. R. 2d 885s; Huber v. Protestant Deaconess Hospital, etc., 127 Ind. App. 565, 133 N. E. 2d 864; Dohr v. Smith [Fla.], 104 So. 2d 29; Brossard v. Koop, 200 Minn. 410, 274 N. W. 241; Brown v. Bennett, 157 Mich. 654, 122 N. W. 305; and Wiley v. Wharton, 68 Ohio App. 345, 41 N. E. 2d 255.
Considerable reliance is placed upon Thompson v. Lillehei, supra. There the plaintiff was a blood donor for a controlled cross circulation heart operation on her eight year old daughter, at the University of Minnesota Medical School. Her husband made all arrangements through Dr. Lillehei, a salaried member of the University of Minnesota medical staff with teaching and surgical duties assigned by his superior. Written authorization for the operation was given to the “staff of the University Hospitals.” Prior to surgery plaintiff’s husband consulted with Dr. Lillehei who assured him there was very little danger involved to the blood donor, and that pre cautions would be taken to prevent an air embolism. In the course of surgery, and while the plaintiff was giving blood, there was evidence the bottle containing glucose and water from which she was fed intravenously became empty and caused her to receive bubbles of air in her veins, diagnosed as air embolisms, as a result of which the operation to the child was abandoned.
The plaintiff allegedly as a result of the air embolism suffered severe and permanent brain damage, including physical and mental change. Suit was brought against six doctors, among which Dr. Lillehei was the chief operating surgeon. The district court held:
“. . . There was no showing that Lillehei appointed or employed Dr. X or others in the operating room, or that he had any supervision or control over Dr. X or others at the donor’s table, or that he had any knowledge of any negligent act being taken by others. Absent this, the doctrine of ‘respondeat superior' is inapplicable and Lillehei has no vicarious responsibility . . .” (pp. 720, 721.)
And further in the opinion the district court said:
“And even assuming that Lillehei was ‘surgeon-in-charge’ or ‘captain of the ship,’ as urged, does it follow that he is responsible for the negligence, if any, of an anesthesiologist such as Dr. X assigned to the case by his own superior, exercising his own independent special medical knowledge in performing Iris duties without any specific directions from. Lillehei? I don’t think so. The cases so indicate . . .
“To extend the doctrine of respondeat superior to a situation such as that reflected in the evidence would be to strain the doctrine beyond the basis for its creation. See Prosser, Torts, 2d Ed. 1955, Sec. 62. There is no evidence that Lillehei engaged or directed Dr. X or any of the others in the operating room, or that he had the authority to do so. The evidence is to the contrary. The only evidence is that Lillehei was the one through whom the operation was arranged — the one who dealt with the plaintiffs in connection with it. This relationship does not spell out responsibility by Lillehei for every event which transpired in the operating room . . .” (p. 721.)
The Federal Court of Appeals, Eighth Circuit, sustained the district court on the ground, among others, that the evidence did not establish Dr. Lillehei was the “surgeon in charge” or that he exercised supervision over those participating in the operative procedures so as to require that he, under the doctrine of respondeat superior, stand responsible for the alleged negligent conduct of those under his supervision. In tire opinion it was said:
“. . . As applied to physicians and surgeons in malpractice cases, the usual standards of ordinary care are modified to some extent in recognition of the fact that the practice of medicine is a special art. Thus, under Minne sota law, a physician or surgeon is not an insurer; ‘[h]e is only required to possess the skill and learning possessed by the average member of his school of the profession in good standing in his locality, and to apply that skill and learning with due care.’ . . .” (p. 381.)
In the Wiley case the anesthesiologist forced a needle into the bony structure of the spine causing the needle to break, resulting in injury which the court held was prima facie negligence. However, the court held that a surgeon employed to perform an operation upon a patient is not liable for the negligent acts of a fellow surgeon, engaged by him with the implied consent of the patient to administer the necessary anesthetic, when it appears there was no negligence in the employment, and no participation, active or passive, in the negligent conduct of the other person.
In determining the sufficiency of the petition here under attack on demurrer, we cannot reach beyond the allegations of the petition itself. It should be observed in the Lillehei case the court had before it the benefit of all the evidence after a trial, and many of the other cases relied upon by Bridwell fall in this category.
. Here the petition with particularity alleges specific acts and negligent omissions on the part of each of the defendants Bridwell and Sen. It should be observed that the petition alleges Bridwell made arrangements for the performance of the operation, including the services of an anesthesiologist, and that Bridwell, being the operating surgeon, was responsible for and had direct control of the proper preparation of the plaintiff as his patient, including the administration of anesthesia. Thus, in addition to specific acts and omissions charged as negligence against Bridwell, the petition alleges he was responsible for any negligent acts of Sen. This would be under the doctrine of respondeat superior.
The court is not called upon to write a treatise on the law of malpractice embracing all contingencies which the evidence may ultimately disclose the facts to be in this case. In rejecting the contentions of Bridwell we simply hold, upon all the confronting facts and circumstances here presented, a cause of action is stated in Count I against Bridwell. In other words, where a person undertakes to administer anesthesia to a patient and fails to use due care in so doing, he is not the only one who under all circumstances may be held liable for the resulting injury.
It is an established rule that a physician or surgeon must exercise due care in selecting his assistants, and on the simplest principles of law, agency, or of master and servant, a physician or surgeon may be liable for the neglect or fault of his apprentice, agent or employee, such as an assistant who is working under his direction, for injury resulting therefrom to a patient. The fact that a physicians assistant is a member of the same or a similar profession does not make the rule of respondeat superior inapplicable. (Natanson v. Kline, 186 Kan. 393, 350 P. 2d 1093; 41 Am. Jur., Physicians and Surgeons, § 112, p. 223; and 70 C. J. S., Physicians and Surgeons, § 54e, p. 978.)
In determining whether a person is the servant of another it is necessary that he not only be subject to the latter’s control or right of control with regard to the work to be done and the manner of performing it, but that this work is to be performed on the business of the master or for his benefit. Actual control, of course, is not essential. It is the right to control which is determinative. On the other hand, the right to supervise, even as to the work and the manner of performance, is not sufficient; otherwise a supervisory employee would be liable for the negligent act of another employee though he would not be the supervisor or master of that employee in the sense the law means it. (Restatement, Agency 2d, § 220[1], [1958]; and Yorston v. Pennell, Appellant [1959], 397 Pa. 28, 39, 153 A. 2d 255.)
In Jackson v. Joyner, 236 N. C. 259, 72 S. E. 2d 589, a physician performing an operation selected and arranged for the help of an anesthetist employed by a hospital and had full power and control over him in the performance of his duties during the operation. It was held the anesthetist was, during the period of the operation, the agent of the physician, and the physician was liable for the negligence of the anesthetist in tire administration of the anesthesia.
For similar malpractice decisions applying the doctrine of respondeat superior in other jurisdictions see Minogue v. Rutland Hospital [1956], 119 Vt. 336, 125 A. 2d 796; Ybarra v. Spangard [1944], 25 C. 2d 486, 154 P. 2d 687, 162 A. L. R. 1258; Meadows v. Patterson [1937], 21 Tenn. App. 283, 109 S. W. 2d 417; Heimlich v. Harvey [1949], 255 Wis. 471, 39 N. W. 2d 394; Simons v. Northern Pac. Ry. Co. et al. [1933], 94 Mont. 355, 22 P. 2d 609; McConnell, Appellant, v. Williams [1949], 361 Pa. 355, 65 A. 2d 243; Com. to the use of Orris v. Roberts et al., Aplnts. [1958], 392 Pa. 572, 141 A. 2d 393; and Beadles v. Metayka [1957], 135 Colo. 366, 311 P. 2d 711. Vicarious liability is discussed in Prosser, Law of Torts, 2nd Ed., Ch. 12, p. 350.
It is the contention of Davies that the petition fails to allege a duty and a breach thereof as to him. Therefore, he argues the petition fails to state facts sufficient to clearly and fairly advise him of the precise nature of plaintiffs claim against him. Davies’ whole argument is founded upon the proposition that an attempt has been made in the petition to reach out and join him as a party merely because he is the Head of the Department of Anesthesiology at the University of Kansas Medical Center, and to impose vicarious liability upon him as a physician by reason of his official status alone.
We do not construe the petition as being so restricted. Had Davies been sued only in his official capacity as Head of the Department his demurrer would have to be sustained. (Gresty v. Darby, 146 Kan. 63, 68 P. 2d 649.) In Thompson v. Lillehei, supra, the action was dismissed as to the University of Minnesota and the Regents of the University on the ground each was a state governmental body, immune from suit. For a discussion of the doctrine of governmental immunity under Kansas law see Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.
Where the employer is a state governmental agency and immune from tort liability under the governmental function doctrine, the official cloalc of immunity does not extend to the negligent employee, as an individual, so as to shield him from answering for his wrongful act by which another has suffered injury. (Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652.)
Reference to Davies as Head of the Department in the petition serves to properly identify him, but the petition as construed on demurrer, in our opinion, states a cause of action against Davies in his capacity as an individual. This has been indicated by the emphasized portions in paragraph 12 of the petition as heretofore quoted. It is alleged Davies was responsible for and had direct control of administering anesthesia to the plaintiff, and undertook the administration of anesthesia to the plaintiff through Sen. Thereafter, the petition set forth specific acts and omissions charged as negligence against Davies similar to those charged against Bridwell. It alleged sufficient facts to show Davies was responsible for the negligent acts of Sen.
Under the doctrine of respondeat superior a person may be the servant of two masters, not joint employers, at one time as to one act, if the service to one does not involve abandonment of the service to the other. (Restatement, Agency 2d, § 226, [1958]; McCon nell, Appellant, v. Williams, supra; and Dickerson v. American Sugar Refining Co., 211 F. 2d 200.)
A petition similar to the pleading here under attack was filed against a physician who was a staff member at the University of Kansas Medical Center in Emrie v. Tice, 174 Kan. 739, 258 P. 2d 332. The defendant there relied upon Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78, apparently to support his assertion of the governmental immunity doctrine, but the court rejected the doctrine of immunity in the following language:
“. . . The case is not controlling. Among other distinguishing features there was privity of contract between appellee and appellant in the instant case. If appellant has a valid defense on the theory of being engaged in the performance of a governmental function it does not affirmatively appear in the petition and cannot be raised on demurrer to the petition.” (p. 744.)
In the Warren case a contract was made by a municipal corporation with an individual for the concessions of a city park, requiring of him the performance of certain specific duties for the benefit of the public generally. The individual contractor neglected and omitted to perform such duties required by his contract with the city, and was held not to be individually liable for damages to a private citizen for loss on account of such neglect or breach, unless there was a privity of contract between such citizen and the individual contractor.
Even under the Warren decision we think the petition herein sufficient to allege a cause of action against Davies in his individual capacity, because it alleges that the plaintiff engaged and employed Bridwell to perform the surgery for which Bridwell in turn arranged for the services of an anesthesiologist.
Does the petition state a cause of action in Count II under the doctrine of res ipsa loquitur?
Some of the general rules of law applicable to physicians and surgeons in malpractice cases have heretofore been stated. Additional rules with authoritative citations have been quoted or stated in Rhodes v. DeHaan, 184 Kan. 473, 337 P. 2d 1043; and in Riggs v. Gouldner, 150 Kan. 727, 728, 96 P. 2d 694. These rules have become firmly established in this jurisdiction and are made a portion of this opinion as fully and completely as if set forth herein at length.
It must be conceded the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Based upon previous decisions of this court (Rhodes v. DeHaan, supra; and Natanson v. Kline, supra) the doctrine of res ipsa loquitur has no application where, in an ordinary suit against a physician or surgeon for malpractice, the only showing is that the desired result of an operation or treatment was not accomplished.
This court has said the doctrine of res ipsa loquitur is not a rigid or arbitrary doctrine to be mechanically applied, but a rule to be cautiously applied, dependent upon the circumstances of the case. (Waddell v. Woods, 158 Kan. 469, 148 P. 2d 1016; Pierce v. Schroeder, 171 Kan. 259, 232 P. 2d 460; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Rhodes v. DeHaan, supra; 38 Am. Jur., Negligence, § 303; and 65 C. J. S., Negligence, § 220[6].) The difficulty courts often encounter is the application of the doctrine to the situation disclosed by the facts and circumstances alleged in the petition. This was recognized in Lamb v. Hartford Accident <Lr Indemnity Co., supra.
Established general rules in this jurisdiction which particularly militate against application of the doctrine of res ipsa loquitur in malpractice cases are: (1) That a physician or surgeon is presumed to have carefully and skillfully treated or operated on his patient, and there is no presumption of negligence to be indulged from the fact of injury or adverse result by reason of such treatment or operation; and (2) To establish liability in a medical malpractice case there must be proof by expert medical testimony that there was a lack of due care or that approved procedure and methods were not followed.
After the rule in (2) above was stated in Riggs v. Gouldner, supra, its limitations were recognized in the following language:
“This does not mean, however, that there may not be certain facts concerning which persons not medical experts are permitted to testify. This court has said in numerous cases that the general rule applies only to such matters as are clearly within the domain of medical science, and that matters that are within the common knowledge of mankind may be testified to by anyone familiar with the facts. (McMillen v. Foncannon, 127 Kan. 573, 274 Pac. 237; Stockham v. Hall, 145 Kan. 291, 65 P. 2d 348; Flentie v. Townsend, 139 Kan. 82, 30 P. 2d 132; Yard v. Gibbons, 95 Kan. 802, 149 Pac. 422; Stecher v. London Guarantee & Accident Co., 133 Kan. 89, 298 Pac. 754.) . . .” (pp. 728, 729.)
Regarding the presumption in medical malpractice cases stated in (1) above, it is important to observe the plaintiff in Count II of the petition alleged the mastoid operation for which he engaged Rridwell as a surgeon was never performed.
Our decisions cannot be interpreted as holding that under no circumstances might the condition in which a patient has been left, as a result of his submission to an operation or treatment, give rise to an application of the doctrine of res ipsa loquitur; or that under no circumstances may an operation or a treatment, however unreasonable and plainly destructive for curative purposes, give rise to an application of the doctrine, despite the empirical and professional veil. Each case must stand upon its own bottom. In Emrie v. Tice, supra, the doctrine of res ipsa loquitur was extended by a unanimous court to X-ray treatments upon the facts there alleged in a petition. Previously, a divided court had rejected application of the doctrine in an X-ray case on the facts alleged in Waddell v. Woods, supra. (See, Rhodes v. DeHaan, supra, at p. 478.)
Courts in other jurisdictions have generally restricted application of the doctrine of res ipsa loquitur in malpractice cases to situations where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not such as would ordinarily have followed if due care had been exercised.
A respectable line of authorities in other jurisdictions has made a distinction in medical malpractice cases between the failure to secure results, and the occurrence of something more unusual and not ordinarily found where the service performed followed the usual procedure of those skilled in that particular practice.
In Meadows v. Patterson, 21 Tenn. App. 283, 109 S. W. 2d 417, damages were sought for the loss of an eye which was injured in some manner while the plaintiff was under the influence of an anesthetic, during or following an operation for appendicitis, and the court held the doctrine of res ipsa loquitur applicable. The court said in the opinion:
“. . . However, where, as in this case, the liability of the physician or surgeon is predicated upon alleged negligence for want of reasonable care of the patient while unconscious and not upon an alleged want of skill in diagnosis or treatment, we think a practical administration of justice dictates the application of the doctrine when it appears that a sound and unaffected member of the body is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physician. In no other way, under usual and ordinary conditions could the patient obtain redress for such an injury, and it is no hardship upon the defendant to explain, as he alone can, how the injury occurred. If innocent of any wrong, the door of escape is left open. The distinction between such a case and the ordinary malpractice case is recognized and upheld in the case of Vonault v. O’Rourke, 97 Mont., 92, 33 P. (2d), 535, where other holdings of like import are cited and discussed.” (pp. 286, 287.)
In Meyer v. St. Paul-Mercury Indemnity Co., (La.), 61 So. 2d 901, a patient submitted herself to the care and custody of an anesthetist and oral surgeon for the purpose of having her teeth extracted, and in the process of administering anesthetics one of the patient’s teeth became dislodged and found its way into one of her lungs. The court held the patient was entitled to the aid of the doctrine of res ipsa loquitur in her malpractice action against the anesthetist and oral surgeon, notwithstanding the fact there was more than one defendant whose negligence could have been responsible for the patient’s injury. Reference is made to a number of decisions of like import which are cited and quoted in the Meyer case.
The distinction between malpractice cases in which the doctrine of res ipsa loquitur is applicable and those in which it is not was given in Sanders et ux. v. Smith, 200 Miss. 551, 27 So. 2d 889, as follows:
“. . . the test, generally, is not that the result of the operation was unusual and unexpected, or even fatal, alone and by itself, because, without an abnormal and rare end to operation, there would not exist an occasion for an action in damages from it. The real question, generally, is whether or not in the process of the operation any extraordinary incident or unusual event, outside of the routine of the action of its performance, occurred, and beyond the regular scope of its customary professional activity in such oper-. ations, which, if unexplained, would themselves reasonably speak to the average man as tire negligent cause or causes of the untoward consequence. If there were such extraneous interventions, then the doctrine of res ipsa loquitur would be applicable to call upon the defendant to explain the matter, by evidence of exculpation, if he could. The jury would then decide the issue of fact in the case.” (p. 561).
Where a plaintiff seeks to take advantage of the doctrine of res ipsa loquitur, it is incumbent upon him to show fully a situation where it is applicable, otherwise there may be an attempt to shift the burden of proof in negligence cases by merely asserting the doctrine itself. (Johnson v. Latimer, 180 Kan. 720, 308 P. 2d 65.) The doctrine is a rule of evidence and not one of substantive law. In actions for damages because of the defendant’s negligence, the general rule is that the negligence of the defendant is never pre sumed, but must be established by proof. The cases in which res ipsa loquitur is applicable are not exceptions to the general rule. It does not dispense with proof of negligence in personal injury cases. Rather, in cases in which the phrase is applicable, proof of negligence is made, if at all, by circumstantial evidence; that is, the proof of the injury and of the surrounding circumstances are such as to leave no reasonable conclusion to be drawn therefrom other than that the casualty happened because of the negligence of the defendant, or defendants. Basically, the conditions which must be met are that (a) the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; (b) it is caused by an instrumentality within the exclusive control of the defendant or defendants; and (c) the possibility of contributing conduct which would make the plaintiff responsible is eliminated. (Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501; Lamb v. Hartford Accident & Indemnity Co., supra; and Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 P. 2d 647.)
We think where proper inferences may be drawn by ordinary men from approved facts which give rise to res ipsa loquitur, without infringing basic principles heretofore stated, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things when proper care is exercised. Where common knowledge and experience teach that a resulting injury would not have occurred to a patient if due care had been exercised, an inference of negligence may be drawn, thus giving rise to an application of the doctrine of res ipsa loquitur, without medical evidence which is ordinarily required to show not only what occurred but how and why it occurred.
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control of his physician who had complete and exclusive control over him, but the operation was never performed. At the time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endotracheal tube. Ordi narily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not such as would ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics and unconscious, and the circumstances are such that the true explanation of the event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held a cause of action is stated under the doctrine of res ipsa loquitur. This holding, however, should not be interpreted to say the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases.
In Rhodes v. DeHaan, supra, the gratuitous statement made in Waddell v. Woods, supra, was quoted to the effect that the doctrine of res ipsa loquitur “has no application to the death of a patient under an anesthetic.” It is argued that if this is true, the doctrine should have no application where a patient is injured while under an anesthetic. It must be noted the statement says “while under an anesthetic.” It does not say where death is caused from an anesthetic. Usually a patient is placed under anesthetics for the purpose of surgery. The failure of the surgery or a combination of the surgery and the anesthetic could cause death, and fall within the general rules applicable to medical malpractice cases which prevent application of the doctrine. The decision herein is not foreclosed by the foregoing statement appearing in the Waddell and Rhodes cases.
We have not overlooked Ibarra v. Spangard, 25 C. 2d 486, 154 P. 2d 687, 162 A. L. R. 1258, from which the plaintiff has quoted extensively in his brief. There some of the language used in discussing res ipsa loquitur as applicable to medical malpractice cases is inconsistent with Kansas law, and the case cannot be cited with full approval. (See, Comment by Warren A. Seavey, 63 Harv. L. Rev. 643; 25 Ins. Counsel J. 97; 30 So. Calif. L. Rev. 80; and annotation in 162 A. L. R. 1265 to, 1329.)
For other cases and text authorities on the application of the doctrine of res ipsa loquitur in medical malpractice cases see Cavero v. Franklin etc. Benevolent Soc., 36 C. 2d 301, 223 P. 2d 471; Salgo v. Leland Stanford etc. Bd. Trustees, 154 C. A. 2d 560, 317 P. 2d 170; Maki v. Murray Hospital, 91 Mont. 251, 7 P. 2d 228; Pendergraft v. Royster, 203 N. C. 384, 166 S. E. 285; 10 So. Calif. L. Rev. 166, 459; and 20 Minn. L. Rev. 241.
Application of the doctrine of res ipsa loquitur to plural defendants has been upheld many times under various circumstances. (Worden v. Union Gas System, supra, and authorities cited therein.) Here the facts presented are much stronger for application of the doctrine to plural defendants than were the facts in the Worden case, for here the petition is subject to the construction that a legal relationship exists among the several defendants which placed them in either actual or constructive control of the instrumentalities of anesthesia.
In conclusion we hold the petition states a cause of action against each of the defendants on both Counts I and II. The judgment of the lower court overruling the demurrers of Bridwell and Sen, as to each count of the petition, is affirmed. The judgment of the lower court sustaining the demurrer of Davies, as to each count of the petition, is reversed.
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The opinion of the court was delivered by
Luckert, J.:
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009), the United States Supreme Court recently held that the admission of a forensic laboratory certificate of analysis without the testimony of the analyst, as allowed by a Massachusetts statute, violates a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. In this case, we apply that holding to a similar Kansas statute, K.S.A. 22-3437, and determine whether the statute undermines the Confrontation Clause by permitting the use of an analyst’s certificate in lieu of testimony if the State has given notice of its intent to use the certificate and the defendant has not objected or, if the defendant has objected, by providing that the “certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis ... will be contested at trial.” K.S.A. 22-3437(3).
Facts and Procedural History
Michael Edward Latumer was arrested and charged with possession of methamphetamine, possession of drag paraphernalia, and making a criminal threat. The State filed a pretrial notice of intent to admit into evidence a Kansas Bureau of Investigation (KBI) laboratory analyst’s certificate reporting the results of forensic testing. The certificate and accompanying forensic report, which contained an analysis of the contents of four plastic bags, concluded that three of the four bags contained methamphetamine.
Before trial, Latumer filed an objection to “any reports from the Kansas Bureau of Investigation being admitted into evidence without the forensic scientist being present in person.” He specified that the report indicated methamphetamine was detected in three of the four bags tested, but the report was unclear about which bags. Latumer further complained that the certificate of analysis did not explain what equipment was used by the forensic scientist. The district court denied Laturner’s objection, finding it went “to the weight and not the admissibility of the evidence.”
A jury found Latumer guilty of possession of methamphetamine and possession of drag paraphernalia, acquitting him of the criminal threat charge.
On appeal, citing Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), Latumer raised the Confrontation Clause issues now before this court, as well as issues related to the jury instruction on possession of methamphetamine, the consideration of his criminal history during sentencing, and the “reassessment” of the attorney fees. The Court of Appeals rejected Latumer’s instruction, sentencing, and attorney fee arguments but reversed Latumer’s convictions based on the violation of his right of confrontation in State v. Laturner, 38 Kan. App. 2d 193, 163 P.3d 367 (2007).
In ruling on the Confrontation Clause issues, the Court of Appeals first determined that Latumer had preserved the issues. In addition, the Court of Appeals held the laboratory report and accompanying certificate of analysis, which contained only the con elusions from the tests, was testimonial for Confrontation Clause purposes and also held that K.S.A. 22-3437(3), which requires the defendant to assert an objection or waive the right of confrontation and gives the district court the authority to evaluate the defendant’s objections, undermines the criminal defendant’s right of confrontation. In so ruhng, the Court of Appeals severed K.S.A. 22-3437(3) when it ápplies in a criminal case and determined that the remaining statutory language — i.e., K.S.A. 22-3437(1) and (2) — leaves behind a “workable procedure.” 38 Kan. App. 2d at 205-06.
The State sought this court’s discretionary review of the Court of Appeals decision. After this court granted review, the State moved to stay further proceedings because the United States Supreme Court had granted the petition for certiorari in Commonwealth v. Melendez-Diaz, 69 Mass. App. 1114, 870 N.E.2d 676 (2007), cert. granted 170 L. Ed. 2d 352 (2008), rev’d sub nom. Melendez-Diaz v. Massachusetts, 557 U.S. 305. The State argued that Melendez-Diaz would decide the question of whether the Confrontation Clause is violated when a forensic laboratory analyst’s certificate is admitted into evidence without testimony. We did not stay the oral arguments in this case but, after the State established Latumer was not in custody, subsequently stayed a decision pending the Supreme Court’s decision.
On June 25, 2009, the United States Supreme Court issued its decision in Melendez-Diaz, following which this court issued an order granting the parties until August 3,2009, to file supplemental briefs. In that order, we suggested that “[t]he parties may also want to address the possible implications of Magruder v. Commonwealth of Virginia, 275 Va. 283, 657 S.E.2d 113 (2008), cert. granted [sub nom. Briscoe v. Virginia, 557 U.S. 933] (June 29, 2009).” The Virginia decision addressed the question of whether a Virginia statute that allows the admission of a certificate of forensic laboratory analysis into evidence violates the Confrontation Clause, and the United States Supreme Court granted the petition for certiorari just 4 days after its decision in Melendez-Diaz.
Additional briefs were filed by the State and Latumer relating to Melendez-Diaz and Briscoe. After review of the briefs, the court concludes additional oral arguments are not necessary.
General Principles
The Sixth Amendment, made applicable to the States via the Fourteenth Amendment to the United States Constitution, Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.”
Under the Confrontation Clause, the right to confront a witness is satisfied when a defendant has the opportunity to cross-examine a witness. Conversely, a possible Confrontation Clause violation arises if an out-of-court declaration is admitted into evidence in lieu of the declarant’s testimony and, therefore, without the defendant’s opportunity to question the declarant; but the admission of the statement without cross-examination is not a per se violation of the Confrontation Clause. Unfortunately, it can be a challenging task to sort the situations where the admission of a statement is a Confrontation Clause violation from those where it is not, especially because the United States Supreme Court has altered the test and application of the new test is fraught with unresolved questions, including the one in this case. See State v. Brown, 285 Kan. 261, 282-83, 173 P.3d 612 (2007).
When K.S.A. 22-3437, which allows the use of a forensic analyst’s certificate in lieu of the analyst’s testimony, was adopted by the Kansas Legislature (L. 1993, ch. 261, sec. 3), the interplay between out-of-court statements and the Confrontation Clause was controlled by the decision of Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), overruled by Crawford, 541 U.S. 36. Under the holding of Roberts, admission of a statement made by an unavailable witness, even if admitted for the truth of the matter asserted in the statement, did not violate confrontation rights if the evidence contained adequate guarantees of trustworthiness or indicia of reliability. Roberts, 448 U.S. at 66.
The Roberts approach was limited by the Court in Crawford because the test had led to unpredictability and did not reflect a historically accurate view of the intent of the Constitution’s framers. Crawford, 541 U.S. at 61-69. In adopting a new test, the Court reasoned that confrontation rights attach whenever a witness bears testimony, which the Court defined as “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ [Citation omitted.]” Crawford, 541 U.S. at 51. Under Crawford’s holding, any testimonial statement is barred unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 54.
The Supreme Court described the class of testimonial statements covered by the Confrontation Clause by stating:
“Various formulations of this core class of‘testimonial’ statements exist: ‘ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’ [citation omitted]; ‘extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,’ [citation omitted]; [and] ‘statements that 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].” Crawford, 541 U.S. at 51-52.
1. Is a KS.A. 22-3437 Certificate Testimonial?
Applying the principles adopted in Crawford, in Melendez-Diaz, 557 U.S. 305, the United States Supreme Court considered whether a certificate prepared by a forensic laboratory analyst fell within the core class of testimonial statements. The issue arose in the same context as it does in this case. The prosecutor in Melendez-Diaz admitted into evidence several bags seized during the defendant’s arrest plus three certificates prepared by laboratory analysts that reported the weight of the substance in each bag and stated that the bags “ ‘[h]a[ve] been examined with the following results: The substance was found to contain: Cocaine.’ ” Melendez-Diaz, 557 U.S. at 308. The certificates were sworn to before a notary. As in this case, the analysts did not testify at trial.
Although the document reporting the laboratory analysis was labeled a “certificate” by the Massachusetts Legislature, the United States Supreme Court concluded such documents “are quite plainly affidavits: ‘declaration[s] of facts written down and sworn to by the declarant before an officer authorized to administer oaths.’ Black’s Law Dictionary 62 (8th ed. 2004).” Melendez-Diaz, 557 U.S. at 310. As affidavits, the certificates were, according to the Court, included in the “ ‘core class of testimonial statements’ ” identified in the Court’s decision in Crawford, 541 U.S. at 51, as the type of evidence which is subject to confrontation under the Sixth Amendment. The Court explained:
“The fact in question is that the substance found in the possession of Melendez-Diaz and his codefendants was, as the prosecution claimed, cocaine — the precise testimony the analysts would be expected to provide if called at trial. The ‘certificates’ are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ Davis v. Washington, 547 U.S. 813, 830, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). .
“Here, moreover, not only were the affidavits ‘ “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” ’ Crawford, [541 U.S., at 52], but under Massachusetts law the sole purpose of the affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance, Mass. Gen. Laws, ch. Ill, § 13. We can safely assume that the analysts were aware of the affidavits’ evidentiary purpose, since that purpose — as stated in the relevant state-law provision — was reprinted on the affidavits themselves. [Citation omitted.]
"In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ‘ “be confronted with” ’ the analysts at trial. [Citation omitted.]” Melendez-Diaz, 174 L. Ed. 2d at 321-22.
Similarly, in this case, a KBI laboratory analyst prepared a “certificate” that was labeled as a “Certificate of Analysis Pursuant to Kansas Statutes [K.S.A.] 22-3437 and [K.S.A.] 53-601.” In the body of the certificate, the laboratory analyst “attested” to the chain of evidence procedures and stated her qualifications and experience. She then explained that approved methodologies had been followed and properly functioning equipment had been utilized. The “certificate” ended with the following statements:
“I certify that I am the Forensic Scientist who analyzed the test results and attest that the conclusion(s) on said Laboratory Report are, with reasonable scientific certainty, accurate.
“I declare, verify and certify under the penalty of perjury that the foregoing is true and correct.”
The certificate, as its heading indicated, followed the form prescribed by K.S.A. 22-3437 and K.S.A. 53-601. K.S.A. 22-3437 authorizes the certificate, directs what the certificate must include, and establishes a procedure to be followed if a certificate is to be used as evidence. It states in part: “In any hearing or trial, a report concerning forensic examinations and certificate of forensic examination executed pursuant to this section shall be admissible in evidence if the report and certificate” are prepared by an analyst or technician employed by one of several listed governmental agencies, including the KBI. K.S.A. 22-3437(1). In addition, the statute directs that a certificate be prepared if requested by a law enforcement agency and further specifies the contents of the report, requiring the analyst to swear under oath to the following:
“The type of analysis performed; the result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber’s training or experience to perform the analysis; the nature and condition of the equipment used; and the certification and foundation requirements for admissibility of breath test results, when appropriate.” K.S.A. 22-3437(2).
The certificate in this case complied with those requirements.
The second statute listed in the heading of the KBI laboratoiy analyst’s certificate, K.S.A. 53-601, provides that any matter stated in an unsworn statement “may be supported, evidenced, established or proved with the same force and effect” as a sworn statement, if the unsworn document includes a statement that “ 1 declare (or verify, certify or state) under penalty of perjury that the foregoing is true and correct.’ ” K.S.A. 53-601(a)(2). Because the KBI analyst used these words, even though she did not take an oath, the certificate was effectively a sworn statement and the legal equivalent of an affidavit.
Therefore, we conclude that the KBI laboratory analyst’s use of the language required by K.S.A. 53-601 and the form prescribed by K.S.A. 22-3437 along with the certificate’s reference to those two statutes indicates the certificate was intended to be and was “functionally identical to five, in-court testimony, doing precisely what a witness does on direct examination’ [, citation omitted,]” and was “ ‘ “made under circumstances which would lead an ob jective 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. As such, the KBI laboratory analyst’s certificate was testimonial, giving rise to Latumer’s rights under the Confrontation Clause. Consequently, absent a showing that the KBI analyst was unavailable to testify at trial and that Latumer had a prior opportunity to cross-examine the analyst, Latumer was entitled to be confronted with the analyst at trial unless that right was waived. See Melendez-Diaz, 557 U.S. at 311.
2. Is KS.A. 22-3437(3) ConstitutionalP
Waiver of the right to confront witnesses was also addressed in the Melendez-Diaz majority opinion, in which five of the justices joined. The majority addressed the topic in a portion of the opinion aimed at answering points made in the dissenting opinion, in which the four dissenters also discussed the concept. These discussions are relevant to the State’s argument in this case that Latumer waived his right to confront the laboratory analyst by failing to comply with K.S.A. 22-3437(3). In response, Latumer argues that K.S.A. 22-3437(3) is unconstitutional.
A. Standard of Review
The arguments relating to this issue require us to interpret K.S.A. 22-3437(3) and determine its constitutionality and, thus, present questions of law over which this court exercises unlimited review. State v. Ortega-Cadelan, 287 Kan. 157, 164, 194 P.3d 1195 (2008) (de novo review applies to statutory interpretation and questions of statute’s constitutionality).
Whenever a court considers the constitutionality of a statute, the separation of powers doctrine requires the court to presume the statute is constitutional. State ex rel. Morrison v. Sebelius, 285 Kan. 875, 883-84, 179 P.3d 366 (2008). Consistent with this principle, all doubts must be resolved in favor of the statute’s validity, and a court must interpret the statute in a manner that makes it constitutional if there is any reasonable way to do so within the apparent intent of the legislature in passing the statute. State v. Johnson, 286 Kan. 824, 842-43, 190 P.3d 207 (2008).
B. Notice-and-Demand Statutes
K.S.A. 22-3437(3) is a form of a “notice-and-demand” statute. The United States Supreme Court generally described such statutes in Melendez-Diaz, stating:
“In their simplest form, notice-and-demand statutes require the prosecution to provide notice to the defendant of its intent to use an analyst’s report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent die analyst’s appearance live at trial. [Citations omitted.]” Melendez-Diaz v. Massachusetts, 557 U.S. at 326.
Continuing its discussion, the Melendez-Diaz Court stated that the simplest notice-and-demand statutes do not unconstitutionally impose a burden on the defendant but simply require a defendant to assert a Confrontation Clause objection within the time period specified by the particular statute. The majority observed:
“States are free to adopt procedural rules governing objections. [Citation omitted.] It is common to require a defendant to exercise his rights under the Compulsory Process Clause in advance of trial, announcing his intent to present certain witnesses. [Citations omitted.] There is no conceivable reason why he cannot similarly be compelled to exercise his Confrontation Clause rights before trial. See Hinojos-Mendoza v. People, 169 P.3d 662, 670 (Colo. 2007) (discussing and approving Colorado’s notice-and-demand provision).” Melendez-Diaz, 557 U.S. at 327.
The case cited in this quotation, Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007), cert. denied 557 U.S. 934 (2009), discusses a Colorado statute that is an example of a notice-and-demand statute in its simplest form. The Colorado statute requires only that a defendant give notice at least 10 days before a trial that he or she is demanding the laboratory analyst’s personal appearance at trial. The Hinojos-Mendoza court explained its rationale for finding this procedure constitutional by stating:
“Assuming the opportunity for confrontation is provided, the right to confrontation is not denied because the prosecution is allowed to present testimony which the defendant chooses not to cross-examine. [Citation omitted.] In other words, where a defendant chooses not to take advantage of the opportunity to cross-examine a witness, the defendant has not been denied his constitutional right to confrontation. The procedure provided in [Colo. Rev. Stat. §] section 16-3-309(5) [2006] for ensuring the presence of the lab technician at trial does not deny a defendant the opportunity to cross-examine the technician, but simply requires that the defendant decide prior to trial whether he will conduct a cross-examination. The statute provides the opportunity for confrontation — only the timing of the defendant’s decision is changed.” Hinojos-Mendoza, 169 P.3d at 668.
Interestingly, the United States Supreme Court, which had been holding petitions for certiorari in Hinojos-Mendoza and Briscoe for some time, denied the petition in Hinojos-Mendoza and granted the petition in Briscoe just 4 days after filing the decision in Melendez-Diaz. While a denial of certiorari does not necessarily mean the Court agrees with the decision by the lower court in Melendez-Diaz, the majority seemingly agreed with the Colorado court’s reasoning when it recognized the constitutionality of notice-and-demand statutes in their simplest form and further stated: “[T]he dissent believes that those state statutes ‘requiring the defendant to give early notice of his intent to confront the analyst,’ are ‘burden-shifting statutes [that] may be invalidated by the Court’s reasoning.’ [Citation omitted.] That is not so.” 557 U.S. at 326. Thus, although in what is arguably dicta, the majority approved the constitutionality of notice-and-demand statutes in their simplest form.
In applying that discussion to K.S.A. 22-3437(3), if one compares the Kansas and Colorado statutes there is some overlap. In other words, K.S.A. 22-3427(3) incorporates the features of a simple-form notice-and-demand statute and establishes the judicial procedure that must be followed if a laboratory analyst’s certificate is to be used at trial. Under those provisions, if a party wishes to introduce a certificate and accompanying forensic report into evidence, notice must be given to the district court and opposing party at least 20 days before the trial or hearing. Along with the notice, the offering party must provide copies of the certificate and the reports relating to the analysis in question. Within 10 days of receiving the notice, the opposing party must assert any objection to the use of the certificate, and the failure to timely object “shall constitute a waiver of any objections to the admission of the certificate.” K.S.A. 22-3437(3).
In addition to these provisions that overlap with those in the simplest form of a notice-and-demand statute, K.S.A. 22-3437(3) imposes additional requirements. In particular, it requires not just that a defendant demand that the laboratory analyst testify at trial but that the defendant state an objection and the grounds for the objection. Further, it is not enough to state an objection based on the Confrontation Clause because the statute also provides:
“A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial.” K.S.A. 22-3437(3).
The trial court must rule whether the objection is sufficient at least 2 days before trial. K.S.A. 22-3437(3).
C. Court of Appeals Decision
Without the benefit of the Melendez-Diaz decision, the Court of Appeals found all of K.S.A. 22-3437(3) unconstitutional because it “restricts the objections a defendant can assert to the admission of a lab report, requires the defendant to assert an objection or waive the right of confrontation, and gives the district court the authority to evaluate the defendant’s objections.” State v. Laturner, 38 Kan. App. 2d 193, 205, 163 P.3d 367 (2007). The Court of Appeals further explained:
“There is no doubt that this portion of the statute undermines a criminal defendant’s Sixth Amendment right of confrontation as explained in Crawford. This provision of the statute permits the admission of a testimonial statement based on a judicial determination of reliability: a permissible practice under Roberts but not now under Crawford. Further, the defendant is deemed to have waived the Sixth Amendment confrontation right if the defendant fails to take affirmative steps to assert it. The United States Supreme Court and Kansas appellate courts disapprove of waivers of Sixth Amendment trial rights based on a silent record. See Boykin v. Alabama, 395 U.S. 238, 242-43, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) (requiring record show defendant entered plea voluntarily); State v. Browning, 245 Kan. 26, 31-32, 774 P.2d 935 (1989); State v. Anziana, 17 Kan. App. 2d 570, 571, 840 P.2d 550 (1992).” Laturner, 38 Kan. App. 2d at 205-06.
Melendez-Diaz casts doubts on any portion of this reasoning that suggests a defendant cannot be required to assert the right of con frontation before trial — i.e., any reasoning that casts doubt on those provisions that would be found in the simplest form of a notice- and-demand statute. 557 U.S. at 326. Further, although less clear, the Melendez-Diaz majority decision also casts doubt on the Court of Appeals’ conclusion that a waiver of confrontation rights cannot occur by silence or inaction. The Melendez-Diaz majority recognized that many states “permit the defendant to assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report.” 557 U.S. at 326. Then, in a nod of approval, the majority cited a Colorado decision Hinojos-Mendoza. The apparent approval of HinojosMendoza is significant because the Colorado Supreme Court rejected the argument that confrontation rights can only be waived if the defendant personally makes a voluntary, knowing, and intentional waiver on the record. Rather, the right of confrontation “falls into the class of rights that defense counsel can waive through strategic decisions, such as choosing whether and how to conduct cross-examination or by stipulating to the admission of evidence. [Citation omitted.]” Hinojos-Mendoza, 169 P.3d at 669; see Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008), cert. granted sub nom. Briscoe v. Virginia, 557 U.S. 933 (2009) (hereinafter Briscoe).
The conclusion that a defendant does not have to personally assert the waiver is consistent with the Supreme Court’s statement in Taylor v. Illinois, 484 U.S. 400, 418, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988), that “[p]utting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer’s decision to forgo cross-examination.” See also 3 LaFave, Israel, King & Kerr, Criminal Procedure § 11.6(a), pp. 779-80 (3d ed. 2007) (“[T]he Supreme Court has indicated, in dictum or holding, that counsel has the ultimate authority in . . . foregoing cross-examination.”).
Similarly, this court has repeatedly recognized that the decisions of whether and how to conduct cross-examination are strategic and tactical and are the exclusive province of the lawyer after consultation with his or her client. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007); see State v. Gonzales, 289 Kan. 351, Syl. ¶ 4, 212 P.3d 215 (2009). Consequently, we reject the Court of Appeals’ conclusion that K.S.A. 22-3437(3) is unconstitutional because it does not require an explicit waiver by the defendant of the right to cross-examine the laboratory analyst. More generally, the provisions of K.S.A. 22-3437(3) that mirror the simplest form of a notice-and-demand statute are constitutional.
D. Beyond Notice and Demand
Still, the Melendez-Diaz majority’s approval of notice-and-demand statutes in their “simplest form” does not mean K.S.A. 22-3437 is constitutional because the statute is not the “simplest form” of a notice-and-demand statute. Rather, it requires that the objection to the use of the certificate must be sufficient to convince the court that the conclusions in the certificate will be contested at the trial or hearing. K.S.A. 22-3437(1).
The majority in Melendez-Diaz did not directly address such a provision; rather it explicitly reserved judgment, stating:
“[S]ome state statutes, ‘requir[e] defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst.’ We have no occasion today to pass on the constitutionality of every variety of statute commonly given the notice-and-demand label. It suffices to say that what we have referred to as the ‘simplest form [of] notice-and-demand statutes,’ supra, at 326, is constitutional.” Melendez-Diaz, 174 L. Ed. 2d at 327 n.12.
In contrast, the four dissenting members of the Court stated:
“As further reassurance that the ‘sky will not fall after today’s decision,’ ante, at 325, the Court notes that many States have enacted burden-shifting statutes that require the defendant to assert his Confrontation Clause right prior to trial or else ‘forfeit’ it ‘by silence.’ Ibid. The Court implies that by shifting the burden to the defendant to take affirmative steps to produce the analyst, these statutes reduce the burden on the prosecution.
“The Court holds that these burden-shifting statutes are valid because, in the Court’s view, they ‘shift no burden whatever.’ Ante, at 327. While this conclusion is welcome, the premise appears flawed. Even what the Court calls the ‘simplest form’ of burden-shifting statutes ante, at 326, do impose requirements on the defendant, who must make a formal demand, with proper service, well before trial. Some statutes’impose more requirements, for instance by requiring defense counsel to subpoena the analyst, to show good cause for demanding the analyst’s presence, or even to affirm under oath an intent to cross-examine the analyst. See generally Metzger, Cheating the Constitution, 59 Vand. L. Rev. 475, 481-485 (2006). In a future case, the Court may find that some of these more onerous burden-shifting statutes violate the Confrontation Clause because they ‘impos[e] a burden ... on the defendant to bring... adverse witnesses into court.’ Ante, at 324.” Melendez-Diaz, 557 U.S. at 354-55 (Kennedy, J., dissenting, joined by Roberts, C.J., Breyer, J., and Alito, J.).
Responding to these points, the majority rejected the dissent’s view regarding the “simplest form” statute but did not reject the dissent’s prediction that a statute would be unconstitutional if it required more than a pretrial demand for the presence of a witness. Melendez-Diaz, 557 U.S. at 326-27 & n.12. Nevertheless, the Melendez-Diaz decision does not answer that question, even in its dicta. The answer may come when the United States Supreme Court decides Magruder, 275 Va. 283, cert. granted sub nom. Briscoe, 557 U.S. 933, although that case may also be decided on the narrow issue of whether a defendant’s power to subpoena a witness preserves confrontation rights; see Appellate Petition for Writ of Certiorari, 2008 WL 6485425 (May 29, 2008); but see Melendez-Diaz, 557 U.S. at 324 (answering this issue by noting that ability to subpoena witness “is no substitute for the right of confrontation” and condemning such statutes for shifting “consequences of adverse-witness no shows from the State to the accused”).
Without knowing what the United States Supreme Court might say in a future case, for our current purposes Briscoe is worth some consideration because the Virginia court’s decision is the most recent case addressing the same issues presented in this case. Hence, we suggested the parties address that decision in addition to Melendez-Diaz in their supplemental briefs.
As we consider these arguments, we will first focus on the parties’ discussion of Briscoe, 275 Va. 283. In his supplemental brief, Latumer argues we can take little from the Virginia opinion because of the differences in the statutes. The Virginia statute allows a defendant to summon the witness and “examine him in the same manner as if he had been called as an adverse witness. Such witness shall be summoned and appear at the cost of the Commonwealth.” Va. Code Ann. §19.2-187.1 (Michie 2008). In contrast, the Kansas statute does not shift the burden to the defendant to produce the witness. Further, this court’s decision in State v. Fisher, 222 Kan. 76, 563 P.2d 1012 (1977), much like the Supreme Court’s majority opinion in Melendez-Diaz, 557 U.S. 324, made it clear that “for the declarant to be subject to full and effective cross-examination by the defendant, he must be called to testify by the state.” Fisher, 222 Kan. at 82. Hence, we agree with Latumer that Briscoe has little impact on our analysis of the specifics of K.S.A. 22-3427(3) because of the differences in the Virginia and Kansas statutes.
Nevertheless, as the State notes, some of the rationale in the Briscoe decision applies under any notice-and-demand statute. For example, the decision discusses the appropriateness of a state imposing procedural mies governing the manner in which constitutional rights may or must be exercised and recognizes that the right of confrontation may be waived by counsel. See Briscoe, 275 Va. at 300-04. As previously discussed, there is support for these points in Melendez-Diaz.
The State also emphasized in its supplemental brief that the Virginia Supreme Court relied on the United States Supreme Court’s holding that “ ‘the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.’ Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973).” Briscoe, 275 Va. at 299. In making this argument, the State does not acknowledge the Melendez-Diaz majority’s discussion of the interests that are often cited to justify notice-and-demand statutes — i.e., the burden on public resources — and tire majority’s rejection of those reasons as a basis for limiting the right to cross-examine the analysts. The majority stated:
“[Respondent [the State] asks us to relax the requirements of the Confrontation Clause to accommodate the ‘ “necessities of trial and the adversary process.” ’ Brief for Respondent 59. It is not clear whence we would derive the authority to do so. The Confrontation Clause may malee the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause — like those other constitutional provisions — is binding, and we may not disregard it at our convenience.” Melendez-Diaz, 557 U.S. at 325.
Hence, contrary to the State’s argument (or at least the implication of that argument), accommodating the goal of relieving the burden on the resources of a laboratory and its analysts cannot serve as a basis for burdening a defendant’s right to confront witnesses.
The State, however, makes other arguments. Primarily, the State argues that Briscoe supports and Melendez-Diaz does not prevent a determination that the objection provisions in K.S.A. 22-3437(3) are “entirely appropriate and constitutional” and are intended to assure “that defendants did not raise frivolous challenges whose only purpose is to burden the prosecution rather than actually test the evidence.” The State notes that this conclusion is supported by this court’s decision in State v. Crow, 266 Kan. 690, 706, 974 P.2d 100 (1999), in which this court found K.S.A. 22-3437 (then K.S.A. 1996 Supp. 22-3437) constitutional. (There have been only minor amendments in the statute after Crow was decided, and none would alter the reasoning in that decision.)
As the State observes, some additional rationales stated in the Briscoe decision were also relied on in Crow. We, therefore, examine whether these rationales remain valid after the decision in Crawford and refer to many portions of the Melendez-Diaz decision to assist in this analysis.
E. Crow
The Crow court relied on several United States Supreme Court cases, including Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), overruled by Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), to conclude it was permissible to require a defendant to challenge the admissibility of laboratoiy reports and to show the necessity of the testimony of witnesses who prepared such reports. See Crow, 266 Kan. at 698-99, 705-06. The focus of the Crow opinion was on ensuring that the statutory requirements for the certificate were sufficient to ensure the reliability of its statements. In discussing this objective, the Crow court’s analysis is replete with references to the key phrase of the Roberts test — indicia of reliability — and is largely based on the since-rejected theory that unconfronted testimony was admissible as long as it bore indicia of reliability or particularized guarantees of trustworthiness. See Crow, 266 Kan. at 699, 704-05.
Once the Crow court concluded that the requirements of 22-3437 were sufficient to pass the Roberts indicia of reliability test, the court examined the notice-and-demand procedure and, in doing so, concluded the only grounds for an objection that will lead to live testimony of the analyst is one that reveals there is a real contest about the certificate’s trustworthiness or reliability. Crow, 266 Kan. at 704-06. In reaching this conclusion the court relied on decisions from other courts, first discussing State v. Sosa, 59 Wash. App. 678, 800 P.2d 839 (1990), and then two New Jersey decisions.
Discussing Sosa, the Crow court stated:
“[I]f we choose to uphold the constitutionality of this statute, we analyze it much as the Washington Court of Appeals did in State v. Sosa, 59 Wash. App. 678, 684-86, 800 P.2d 839 (1990), where it was held: (1) unavailability need not be shown because persons involved in routine activity are unlikely to recall the details of the transaction and cross-examination would serve little or no purpose; (2) the certified copy of the lab report is reliable evidence because skilled professionals, many with advanced degrees, perform the tests with no motive to falsify the report; (3) the statute parallels the firmly rooted business records exception; (4) the failure to subpoena the lab expert by the defendant was a waiver of a right under the rule and not the constitution, and (5) defense counsel’s failure to demand the presence of the expert was not ineffective assistance of counsel Crow, 266 Kan. at 700.
These reasons bear striking similarities to many of the arguments made in the Melendez-Diaz dissent, points which were countered (and rejected) by the majority.
For example, in arguments similar to the first reason listed by the Crow court, the Melendez-Diaz dissenters proffered a variety of reasons a laboratory analyst should not be considered a typical or “conventional witness.” The reasons included: (1) The witness is not accusatory; (2) the report is nearly contemporaneous, (3) the analyst has not observed the crime or any human action related to it, and (4) the report and certificate are not made in response to interrogation. Melendez-Diaz v. Massachusetts, 557 U.S. at 330-63 (2009) (Kennedy, J., dissenting, joined by Roberts, C.J., Breyer, J., and Alito, J.).
The majority rejected each of these points and other assertions posed by the dissent, noting among other things that the arguments would exclude all expert witnesses from confrontation. Melendez-Diaz, 557 U.S. at 313-17. Further, the Court stated:
“The text of the [Sixth] Amendment contemplates two classes of witnesses— those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.” Melendez-Diaz, 557 U.S. at 313-14.
In addition, the Melendez-Diaz Court responded to several of the dissenters’ points which, like the second and third Crow rationales, were married to and dependent on the Roberts test regarding the reliability of the evidence. The majority in Melendez-Diaz summarized many of these points in the dissent as being ones suggesting that the certificate should be admissible because it is the “ ‘resul[t] of neutral, scientific testing’ ”... [or] because ‘one would not reasonably expect a laboratory professional... to feel quite differently about the results of his scientific test by having to look at the defendant.’ [Citations omitted.]” Melendez-Diaz, 557 U.S. at 317.
Rejecting these arguments, the Court observed:
“This argument is litde 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. Id., 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 than 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 rehable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.’....
“Nor is it evident that what respondent calls ‘neutral scientific testing’ is as neutral or as rehable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation.” Melendez-Diaz, 557 U.S. at 317-18.
In addition, the Court rejected a business record justification, stating:
“[T]he affidavits do not qualify as traditional official or business records, and even if they did, their authors would be subject to confrontation nonetheless.
“Documents kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman, 318 U.S. 109[, 63 S. Ct. 477, 87 L. Ed. 645] (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad’s operations, it was ‘calculated for use essentially in the court, not in the business.’ [Citation omitted.]” Melendez-Diaz, 557 U.S. at 321.
The Court further explained why drawing a parallel to the business records exception did not provide a grounds for determining the Confrontation Clause did not apply, stating:
“As we stated in Crawford: ‘Most of the hearsay exceptions covered statements that by their nature were not testimonial — for example, business records or statements in furtherance of a conspiracy.’ 541 U.S., at 56. Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — -they are not testimonial. Whether or not they qualify as business or official records, the analysts’ statements here — prepared specifically for use at petitioner’s trial — were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” Melendez-Diaz, 557 U.S. at 324.
These conclusions by the Court are contrary to the first three rationales of the Crow decision.
The fourth and fifth reasons stated by the Crow court — that the defendant’s failure to subpoena the laboratory analyst was a waiver of a right under the rule and not the Constitution and that defense counsel should assert the right by subpoenaing the witness if a waiver is not intended — are also disputed by the Melendez-Diaz majority, which stated:
“Respondent [the State] asserts that we should find no Confrontation Clause violation in this case because petitioner had the ability to subpoena the analysts. But that power — whether pursuant to state law or the Compulsory Process Clause — is no substitute for the right of confrontation. Unlike the Confrontation Clause, those provisions are of no use to the defendant when the witness is unavailable or simply refuses to appear. [Citation omitted.] Converting the prosecution’s duty under the Confrontation Clause into the defendant’s privilege under state law or the Compulsory Process Clause shifts the consequences of adverse-witness no-shows from the State to the accused. More fundamentally, the Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.” Melendez-Diaz, 557 U.S. at 324-25.
Hence, the Crow court’s rationales that derived from the Wisconsin decision are not valid in light of Crawford and Melendez-Diaz.
As additional support for its holding, the Crow court cited New Jersey decisions — specifically State v. Matulewicz, 101 N.J. 27, 30, 499 A.2d 1363 (1985), and State in Interest of J.H., 244 N.J. Super. 207, 217, 581 A.2d 1347 (1990). In Matulewicz, the New Jersey court imposed requirements to assure that the conclusions in a laboratory analyst’s certificate are rehable. 101 N.J. at 30. Then, in State in Interest ofJ.H., the New Jersey court concluded the statutory procedure “may be construed to establish a procedural framework under which the State may ascertain before trial whether a defendant will object to the admission of a laboratory certificate and, if so, whether the certificate satisfies the tests of reliability set forth in Matulewicz.” State in Interest of J.H., 244 N.J. Super, at 218.
Relying on this authority, the Crow court concluded that 22-3437 imposed particularized guarantees of trustworthiness and assured the reliability of the certificate’s contents by specifying the required contents of the certificate, including many matters that would establish that the analysis complied with professional standards. See K.S.A. 22-3437(2); Crow, 266 Kan. at 704-06. The Crow court extended this analysis beyond the holding of the New Jersey court by addressing the standard to be applied in judging whether a certificate was to be admitted even if the defendant had stated some form of objection. Noting that 22-3437 required the trial court to determine whether the objection was sufficient, the Crow court reasoned that to have a right to confront the witness the defendant would have to establish that the trustworthiness and reliability of the certificate was in issue because, if it was trustwor thy and reliable, there was no confrontation right under Roberts. Specifically, the court required that “the grounds of the objection have an indicia of merit, not be interposed for delay, and result in a valid issue being contested at trial”; in discussing this test, the court explained that an objection with “an indicia of merit” was one which attacked the reliability of the hearsay. Crow, 266 Kan. at 706.
This reasoning, grounded on the Roberts test, was undercut by Crawford, 541 U.S. 36. As explained in Melendez-Diaz, it does not matter how reliable the evidence may be; a defendant still has a right to cross-examine the witness. 557 U.S. at 317. In addition, even before Crawford was decided, the New Jersey Supreme Court in State v. Miller, 170 N.J. 417, 435, 790 A.2d 144 (2002), rejected Crow’s holding, which it categorized as a minority position, when it addressed the question it had not reached in either Matuletvicz or State in Interest of J.H. — whether a specific objection could be demanded of a defendant before the State is required to produce a witness. Miller, 170 N.J. at 435.
In Miller, the New Jersey Supreme Court focused on the sentence in that state’s statute providing that “ ‘a proffered certificate shall be admitted unless it appears from the notice of objection and specific grounds for that objection that the composition, quality, or quantity of the substance submitted to the laboratory analysis will be contested at trial.’ N.J. [Stat. Ann. §] 2C:35-19c.” (Emphasis added.) Miller, 170 N.J. at 432. This portion of the New Jersey statute is strikingly similar to one sentence in K.S.A. 22-3437(3), which states: “A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial.” There are differences between the two statutes, however, one of which is tire New Jersey statute’s requirement quoted above that the objection include “specific grounds.” Nevertheless, this statutory difference was erased by the holding in Crow, which imposed a requirement “that the grounds of the objection have an indicia of merit, not be interposed for delay, and result in a valid issue being contested at trial.” Crow, 266 Kan. at 706. In effect, this judicially imposed requirement made a defendant state a specific objection.
In concluding such a requirement was unconstitutional, the New Jersey court stated that a defendant “cannot, as a matter of constitutional imperative, be assigned any burden to detail an objection to the admission of [a forensic] lab certificate.” Miller, 170 N.J. at 436. Observing that the State has the burden to prove guilt beyond a reasonable doubt, the Miller court stated a defendant should not be required “to vault a legal hurdle” in order to exercise his or her right to confront State witnesses. Miller, 170 N.J. at 434. Citing similar decisions from other states, the New Jersey court noted:
“ When a defendant attempts to surmount the barrier, he finds himself in the untenable position of having to identify “specific grounds” in order to confront the analyst, but being unable to confront the analyst in order to identify the “specific grounds.” Requiring a defendant to request the presence of the witnesses against him and to explain why he requires their presence in order to be afforded his constitutional right of confrontation places too heavy a burden on the assertion of a constitutional protection.’ Miller v. State, 266 Ga. 850, 472 S.E.2d 74, 79-80 (1996).” Miller, 170 N.J. at 435.
See State v. Christensen, 135 N.H. 583, 586, 607 A.2d 952 (1992); State v. Kent, 391 N.J. Super. 352, 381-82, 918 A.2d 626 (2007).
This reasoning is sound. The purpose of cross-examination, in part, is to explore weaknesses in the reliability of a witness’ testimony and, when that witness is a laboratory analyst, in the results of forensic tests. See Melendez-Diaz, 557 U.S. at 318-20. Demanding that a defendant determine the nature of an objection to the reliability of the tests before questioning the witness imposes a difficult burden. Yet, this burden would have to be met to satisfy the Crow requirement that the objection have an indicia of merit, and merely stating an intent to attack reliability of the report would fall short. Moreover, the justification for imposing the requirement that there be an indicia of merit — i.e., the belief that a confrontation right only arose if the hearsay evidence did not have particularized guarantees of trustworthiness — is no longer valid in light of Crawford. We, therefore, abrogate and overrule the holding in Crow and conclude that decision imposes an improper hurdle on the assertion of a defendant’s rights under the Confrontation Clause as interpreted in Crawford and subsequent decisions.
There remains the question of whether, in light of our abrogating and overruling of Crow, K.S.A. 22-3437 itself is unconstitutional. The New Jersey court in Miller determined it was the word “ ‘specific’ ” that caused its statute to violate the Confrontation Clause. The court excised that word and left the language that is similar to our statute — i.e., that an objection state grounds contesting the composition, quality, or quantity of the substance tested. The New Jersey court viewed this language as merely imposing a procedural requirement that did not create a barrier to the assertion of the right to confront the witness. Nevertheless, the court stated:
“We agree with the majority view expressed in legislation and case law that a defendant cannot, as a matter of constitutional imperative, be assigned any burden to detail an objection to the admission of an lab certificate. However, unlike some other jurisdictions, we see no reason to invalidate the entire notice and demand procedure. Rather, to avoid constitutional infirmity, we interpret N.J.S.A. 2C:35-19c to require only that a defendant object to the lab certificate and assert that the composition, quality, or quantity of the tested substance will be contested at trial.” Miller, 170 N.J. at 436.
While we could provide similar direction, the Kansas statute would still have provisions requiring the court to rule on the objection. This potentially leads to a pitfall that is made apparent by the circumstances of this case where Latumer’s objection was not directed at contesting the composition, quality, or quantity of the substance tested but at learning information left out of the certificate and accompanying report — i.e., which three of the four bags tested positive for methamphetamine. This detail could be critical in defending a constructive possession case. Yet, if a defendant raised the same objection as raised by Latumer, a district judge considering the objection would be faced with the sentence in K.S.A. 22-3437(3) stating that the certificate “shall” be admitted unless it is established that the test results will be challenged. The objection would not satisfy this test, the district judge could deny the motion, and the defendant would be deprived of the right to confront the witness and the ability to clarify an ambiguity that might be crucial to the defense.
As this illustrates, it is combination of the two sentences — one requiring the district judge to rule on the objection and the other stating that the certificate shall be admitted unless it meets the narrowly defined, permissible objection — that imposes too heavy a burden on a defendant’s rights and causes us to conclude K.S.A. 22-3437(3) is unconstitutional when applied in a criminal case.
3. Severance
Although the Court of Appeals relied on different grounds and reasoning, it reached the same conclusion and severed the following language from Kansas’ notice-and-demand statute when applied in criminal cases:
“ ‘An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the ground for the objection within 10 days upon receiving the adversary’s notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined no later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate.’ ” Latumer, 38 Kan. App. 2d 193, Syl. ¶¶ 7, 9; K.S.A. 22-3437(3).
Such a drastic step is not necessary in light of the statements in Melendez-Diaz that a notice-and-demand statute in its simplest form would be constitutional. We reach this conclusion, in large part, because K.S.A. 22-3438 provides that portions of this statutory Act are severable:
“If any provision of this act or the application thereof to any person or circumstances is beld invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application. To this end the provisions of this act are severable.”
This provision evidences a legislative intent that offending language should be severed rather than have the entire provision nullified as done by the Court of Appeals, as long as the remaining language leaves a workable procedure. See State v. Limon, 280 Kan. 275, 304-05, 122 P.3d 22 (2005); State v. Denney, 278 Kan. 643, 659-60, 101 P.3d 1257 (2004).
TVhat then is the offending language? As previously discussed, it is the third and fourth sentences of K.S.A. 22-3437(3), which state: “Whenever a notice of objection is filed, admissibility of the certificate shall be determined no later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial.” Consequently, we sever these sentences from K.S.A. 22-3437(3) when that statute is applied in cases where Sixth Amendment rights have arisen.
Finally, we must consider whether requiring a defendant to state the grounds for an objection is unconstitutional. This consideration is influenced by our decision to sever the language specifying the substance of an objection. With that requirement severed, a defendant need only object on the basis of the Confrontation Clause, and, as the Melendez-Diaz majority stated, “[t]he defendant always has the burden of raising his Confrontation Clause objection.” 557 U.S. at 327. This rule is consistent with the general rule that “a timely and specific objection for the admission of evidence is necessary to preserve the issue for appeal. See K.S.A. 60-404. Thus, even if constitutional grounds for inadmissibility are asserted, the issue is not properly before this court for review if raised for the first time on appeal.” State v. Johnson, 286 Kan. 824, 839, 190 P.3d 207 (2008).
In summary, in any case where the right of confrontation arises under the Sixth Amendment to the United States Constitution, we sever the third and fourth sentences of K.S.A. 22-3437(3) leaving that subsection to read:
“Whenever a party intends to proffer in a criminal or civil proceeding, a certificate executed pursuant to this section, notice of an intent to proffer that certificate and the reports relating to the analysis in question, including a copy of the certificate, shall be conveyed to the opposing party or parties at least 20 days before the beginning of a hearing where the proffer will be used. An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the ground for the objection within 10 days upon receiving the adversary’s notice of intent to proffer the certificate. [Third and fourth sentences are severed and deleted.] A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section may be extended upon a showing of good cause.”
However, in this case, these offending provisions were enforced, with the result that the district court concluded Latumer s objection was not adequate to require the live testimony of the KBI analyst. Consequently, Latumer’s right to confront the analyst, which he had timely asserted, was unconstitutionally burdened and, as a result, evidence was impermissibly admitted. This evidence related to an element of the charge of possession of methamphetamine, establishing that the substance seized during Latumer’s arrest was methamphetamine. In addition, this evidence may have influenced the jury’s determination that Latumer possessed drug paraphernalia. Therefore, we cannot say that the error was harmless. Latumer’s convictions must be reversed. See State v. Atkinson, 276 Kan. 920, 925, 80 P.3d 1143 (2003) (constitutional error harmless if appellate court “willing to declare beyond a reasonable doubt that die error had little, if any, likelihood of having changed the result of the trial”).
The Court of Appeals decision reversing the district court is affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded with directions to the district court for a new trial.
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The opinion of the court was delivered by
Pabkeb, C. J.:
This is a workmen’s compensation case in which the award to the employee is not in dispute. In this appeal the only questions presented to the court are (1) whether the employers, and their respective insurance carriers, are jointly liable for payment of the award and (2) if so, which of such respondents is primarily liable for the payment.
Counsel for the contesting parties have filed a joint abstract thus simplifying the statement of facts which present the legal questions. The facts, none of which are disputed, may be summarized as follows:
The claimant, Herman Hobelman, regularly worked for the respondent, Joe Kreutzer Construction Company, a general contractor. This company owned a large crane and made a business of renting it to other contractors in the same area. Respondent, Mel Krebs Construction Company was also a general contractor in such area.
On the date claimant sustained his accidental injuries the Krebs Construction Company was erecting a building in Garden City, Kansas, known as the Garden Bowl. Through a telephone conversation between the involved employer respondents, hereinafter referred to in our factual statement as Kreutzer and Krebs, it was arranged for Kreutzer to furnish Krebs with the crane and a crane operator on the morning of July 9, 1960, for the purpose of setting steel beams at the Garden Bowl project. In addition to the crane operator, Kreutzer also sent along the claimant, Hobelman, to help the crane operator in assembling the boom on the crane. Hobelman’s original instructions were to go to another job where Kreutzer was carrying on construction work when -the boom was assembled. Sometime after the arrival of the Kreutzer employees at the Garden Bowl project Krebs’ foreman requested that Hobelman be left with Krebs to help it with setting the steel beams as it was shorthanded. The Kreutzer crane operator replied that he had no authority to allow the claimant to remain with Krebs on its job. Later the Krebs foreman in a conversation with Joe Kreutzer, one of the owners of the Kreutzer Company, renewed the request he had made to the Kreutzer crane operator. Thereupon Joe Kreutzer acceded to the foreman’s request and instructed Hobelman to stay on the Krebs job and assist it in setting the steel beams. In this conversation Joe Kreutzer advised the foreman that Kreutzer would charge Krebs $2.00 an hour for Hobelman’s services.
After Hobelman started working for Krebs, and while engaged in assisting with the setting of the steel beams, Hobelman was injured. At that time the work was being supervised by Krebs’ foreman. Hobelman remained upon the regular payroll of Kreutzer, withholding taxes and other payroll deductions were made from his wages by Kreutzer, his wages were to be paid by Kreutzer, and its workmen’s compensation insurance premiums were based as though Hobelman remained on its payroll.
Following Hobelman’s accidental injury he filed his claim for workmen’s compensation against both Kreutzer and its insurance carrier, the Western Casualty and Surety Company, and Krebs and its insurance carrier, the Tri-State Insurance Company. Ultimately an award was rendered in his favor.
On appeal the district court, in harmony with the findings and conclusions of the Examiner, as described by its journal entry of judgment concluded as follows:
“1. That the relationship of the claimant to the two respondents was that of a general employee of the Joe Kreutzer Construction Company and that of a special employee of the Mel Krebs Construction Company.
“2. That the Joe Kreutzer Construction Company was not a sub-contractor of the Mel Kreb’s Construction Company as that term is used in Section 44-503, G. S. 1949.
“3. That both respondents and their respective insurance carriers are jointly and severally liable to the claimant for the payment of all Workmen’s Compensation, medical expenses, and other items due him under the Workmen’s Compensation Law.
“4. That as between themselves, the two respondents and their insurance carriers are each equally liable for the payment of said items and that if either should fail to pay its one-half share of the same and the other be required to pay all, that the one being required to pay all would then be entitled to recover of and from the other the one-half it paid upon the other’s behalf; but that as between themselves, so long as each pays its one-half share of said compensation, there is no primary and secondary liability and neither is entitled to recover from the other any of the compensation and other items that it is hereby required to pay.”
Neither of the respondents question the right of the claimant to file his claim against them jointly. The respondent, Krebs, and its insurance carrier, have appealed contending that the trial court erred in finding that the relationship of the claimant to respondents was that of a general employee of Kreutzer and that of a special employee of Krebs. It further contends that the court should have found that Kreutzer was the subcontractor of Krebs within the meaning of the term “subcontractor” as used in G. S. 1949, 44-503, and that Kreutzer and its insurance carrier were primarily liable to claimant for all compensation and that no compensation was due him from Krebs or its insurance carrier, unless Kreutzer and its insurance carrier failed to pay all compensation due.
The respondent, Kreutzer and its insurance carrier have filed a cross-appeal contending that the court, having found the relationship between the respondents to be that of general employer and special employer, should have found the special employer primarily liable for the award.
We have no difficulty in concluding, under the facts of this case, that the status of the respondents is that of general employer and special employer and not that of contractor and sub-contractor. Neither do we have difficulty in concluding that the respondents are jointly liable for the award to claimant under the Workmens Compensation Act.
In the case of Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868, under very similar facts, we stated that the relationship of the respondents to the claimant was that of general employer and special employer and there held:
“Where a general employer loans his workman to another and directs him to do certain work which is being done under the supervision and control of such other or special employer, and which work is also a part of the general employer’s trade or business in which injuries are compensable under the compensation act, and the workman continues at all times in the employ of the general employer who pays his compensation and who remains vested with full power to discharge him for refusal to do the work for the special employer which he was directed to do, such employee, if injured while engaged in such work, may look to both employers and their respective insurance carriers for compensation.” (Syl. ¶ 4.)
The extension of this opinion to include the reasons and the authorities for our conclusion in the Mendel case would serve no useful purpose.
In Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494, we said:
“Appellant’s petition expressly alleged the work was directed \ . . by an employee of defendant acting within the scope of his employment. . . .’ His evidence showed it was so directed. It also proved appellant and his co-employees freely followed such directions without complaint and without challenging appellee’s right to exercise such control. The reason for the emphasis given in appellant’s brief to the fact the work was done entirely under the direction and supervision of appellee is obvious. That evidence is very properly stressed, in connection with the damage action, for the purpose of absolving, or tending to absolve, appellant from alleged acts of negligence, in some of which he participated, and of other alleged acts of negligence he observed, without objecting thereto. The fact, however, the work is conceded to have been done under appellee’s direction and control makes it clear appellee was appellant’s special employer with respect to the particular work out of which the injury arose.
“In determining the actual relationship of the parties under any employment, the courts will look to all the circumstances involved in the particular case. (Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120; Mendel v. Fort Scott Hydraulic Cement Co., supra; Bell v. Hall Lithographing Co., supra.)
“The real test whether a person becomes a special employer, of course, is whether he has the right to control and direct the particular activity as a consequence of which the injury occurred and not merely whether he exercised the power of direction. (Mendel v. Fort Scott Hydraulic Cement Co., supra; Bell v. Hall Lithographing Co., supra.)” (pp. 411, 412.)
And held:
“Our workmen’s compensation act does not differentiate between special and general employers. (G. S. 1949, 44-508A) In this state, there being no provision to the contrary, the workmen may look to either or both employers for compensation.
“The recórd, set forth in the opinion, examined, considered and held: The defendant in an action by a workman to recover damages was a special employer of the workman with respect to the particular work out of which the injury arose and the workman could have asserted a valid claim for compensation against him.” (Syl. ¶| 3, 4.)
See, also, Judd v. City of Emporia, 183 Kan. 689, 331 P. 2d 316, where the decision was based on the opinion in the Bright case and additional cases having a bearing on the question involved are cited.
The undisputed facts disclose that Kreutzer loaned for hire its regular employee, the claimant, to Krebs and that at the time of the injury claimant was doing work for Krebs which was part of its trade and business, and under the supervision, direction and control of its foreman. Under these circumstances we have no difficulty in concluding that relationship of the respondents to the claimant is that of general employer and special employer, and both are liable to the claimant for the compensation award.
We are asked by both respondents to determine their primary and secondary liability to the claimant. We are forced to conclude that neither the commissioner in making the award, the district court nor this court on appeal has jurisdiction to make such determination in a workmans compensation case where the relationship of the respondents to the claimant is that of general employer and special employer.
We will not prolong this opinion by presenting a lengthy discussion of applicable general principles but they should be mentioned.
The remedies and the procedure provided under the Workmen’s Compensation Act are complete and exclusive from the inception of the claim to final judgment. (See, e. g., Taylor v. Taylor, 156 Kan. 763, 137 P. 2d 147; Brewington v. Western Union, 163 Kan. 534, 183 P. 2d 872.) The act borrows nothing from the code of civil procedure or other statutes. (See Welden v. American Steel & Wire Co., 143 Kan. 125, 53 P. 2d 1195; Dean v. Hodges Bros., 170 Kan. 333, 224 P. 2d 1028.)
The Workmen’s Compensation Commissioner has no jurisdiction beyond that specifically provided by the Workmen’s Compensation Act. On appeal, neither the district court nor this court can extend its jurisdiction beyond that of the Commissioner.
We stated in Bright v. Bragg, supra, that the Workmen’s Com pensation Act does not differentiate between special and general employers. Neither the Workmen’s Compensation Commissioner nor the courts on appeal, can differentiate or attempt to fix primary or secondary liability. We must distinguish this relationship from that of principal contractor and subcontractor as the act itself differentiates between the two. (G. S. 1949, 44-503.)
The Workmen’s Compensation Act has as its primary purpose an expeditious award of compensation in favor of an injured employee against all persons who may be liable therefor. The Act does not contemplate that such proceedings should be hampered or delayed by the adjudication of collateral issues relating to degrees of liability of the parties made responsible by the Act for the payment of compensation. Questions of contractual obligations or even equitable considerations may well be involved between the responsible parties which are of no concern to the injured employee. If such questions are involved, they should be resolved by a court in an independent proceeding in which the employee should not be required to participate.
Although the specific question as to whether or not the primary and secondary liability between a general employer and a special employer should be determined in a workmen’s compensation case has not been determined by this court, we have established precedents which throw light on the question.
In United States Fidelity & Guaranty Co. v. Maryland Cas. Co., 186 Kan. 637, 352 P. 2d 70, it is said:
“The appellee argues that if the action is based on the workmen’s compensation act of Kansas it must be commenced before the Kansas compensation commissioner, citing Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456; and Hartford Accident & Ind. Co. v. Tri-State Casualty Ins. Co., (1951), 205 Okla. 117, 235 P. 2d 703.
“The concern of this court under the workmen’s compensation act pertains primarily to the liability of the employer to the workman and not to the settlement of independent controversies which may arise between the various insurance carriers. (Justice v. Continental Can Co., 174 Kan. 539, 257 P. 2d 564; and Attebery v. Griffin Construction Co., supra.) The Matlock case was fully discussed and reviewed in the Attebery case where it was factually distinguished from the instant action which is primarily between two insurance carriers. We therefore hold the trial court had jurisdiction of the subject of the action, and the action was properly instituted in the district court.” (p. 642.)
In the above case this court was considering an action by one workmen’s compensation insurance carrier against another seeking to shift liability for the payment of the award by an independent action.
See, also, Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598, where it is said:
“By this appeal U. S. F. & G., who was a party to the proceedings before the Workmen’s Compensation Commissioner, seeks to draw in another respondent and its insurance carrier and litigate rights, not relative to the obligation of U. S. F. & G. on its own policy to the respondent, Griffin, or the claimant, but its rights against the other insurance carrier. We are of the opinion that this is not only contrary to the spirit of the Workmen’s Compensation Act but also contrary to the intention of the legislature in applying the Act which is designed primarily for the protection of the injured workman or his dependents.
“At no place is this procedure authorized by the Workmen’s Compensation Act itself. It follows that the remedies under the Workmen’s Compensation Act are exhausted, thereby giving rise to an independent action by one insurance carrier against another on such matters incidentally arising out of contract which have no direct relation to the injured workmen’s right to compensation. Independent action arising out of incidental matters was contemplated by the Act where reference is made to indemnity and rights of subrogation.” (p. 460.)
A somewhat limited independent research of cases from foreign jurisdictions dealing with the subject discloses that the general rule is in harmony with our conclusion on the point now under consideration.
The Workmens Compensation Act of the-state of Colorado does not differentiate between a general contractor and a subcontractor. The Supreme Court of Colorado had before it the question as to whether or not the primary and secondary liability of a general contractor and a subcontractor could be determined in a workmen’s compensation case. The court held:
“Under pertinent provisions of the Workmen’s Compensation Act, a contractor and subcontractor employer each are liable to an employee for injuries sustained by him in an accident arising out of and in the course of his employment.
“There is no express authority in Colorado giving the Industrial Commission or any court reviewing the proceedings of the commission, the power to determine or fix a comparative degree of liability for compensation as between a subcontractor employer and the contractor.
“The primary purpose of the Workmen’s Compensation Act is to expeditiously provide an award of compensation in favor of an injured employee against all persons who may be liable therefor. As to questions concerning the responsibility for payment under this general liability, the employee is not concerned; these are to be resolved by a court in independent proceedings.” (Syl. ¶¶ 4, 5 and 6.) (Sechler v. Pastore, 103 Colo. 139, 84 P. 2d 61.)
In the absence of a specific statute to the contrary, such as G. S. 1949, 44-503, we are in accord with the statement made in the case of Johnson v. Mortenson, 110 Conn. 221, 147 Atl. 705, as follows:
. . The better view and practice of the compensation commissioners appears to have been to regard their jurisdiction as limited to determination of the right of the employee to compensation and as to who is liable therefor to such claimant, leaving the rights and liabilities between those held jointly liable to the claimant to “be worked out in such proceedings, among themselves, as may be brought for the purpose.’ ” (p. 225.)
In conclusion it may be stated that, except for its conclusion of law No. 4, the general judgment of the district court, as set out in its journal entry, which includes its conclusions of law Nos. 1 to 4 inch, as heretofore quoted, is not out of harmony with the views expressed and conclusions reached by the court in this opinion. However, with direct reference to the trial court’s conclusion of law No. 4, what has been heretofore stated and held makes it clear that tribunal had no authority to determine liability of the contesting respondents as between themselves in the compensation proceeding and it erred in attempting to do so. It follows the judgment, so far as it relates to the subject last mentioned, must be reversed and that all other portions thereof should be and are affirmed. Therefore, since the judgment must be modified as herein indicated, the cause is remanded to the district court for final disposition in accordance with the views herein expressed.
It is so ordered.
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiff, Earl Robinson, commenced this action against Wayne F. Nightingale, d/b/a Fabricated Metal Products Company; Eldon G. Cowell, d/b/a E. G. Cowell, Contractor; Harveyville Grain and Seed Co., Inc., and Simio, Incorporated, to recover damages for personal injuries received on the premises of the Harveyville Grain and Seed Co., Inc., and for damages to, and the loss of use of, his 1956 Ford truck. The sole question presented is whether the amended petition alleges a cause of action against the defendant Simio, Incorporated, under the doctrine of res ipsa loquitur. The district court concluded that it did, and overruled Simlo’s general demurrer to the amended petition. During oral argument we were advised that the other defendants had answered, and that each answer alleged specific acts of negligence on the part of Simio in furnishing defective and dangerously designed equipment and incorrect plans and instructions for erecting the Ruck hoist, which was installed three months prior to the injury.
The amended petition is summarized as follows: On July 2, 1958, plaintiff drove his truck loaded with wheat onto the premises of the grain company for the purpose of unloading and storing his wheat in its elevator. In order to unload his truck, plaintiff was directed by the grain company’s employees to drive upon a certain truck hoist, and he did so. The Ruck hoist which was put into operation by the grain company’s employees, lifted the front of the truck and the wheat moved by gravity from the truck bed into the grain company’s bins. The truck was lowered by the hoist, and plaintiff was directed to drive away. As he began to drive his Ruck away, the movable overhead portion of the hoist fell, crushing the cab and causing the injuries and damages sued for.
It was alleged that defendants Nightingale, Cowell, and Simio, acting for themselves and through their agents and employees, entered into a contract or conRacts to consRuct and erect a Ruck hoist on the grain company’s 'premises; that Nighüngale and Cowell constructed and erected the Ruck hoist by using materials prepared and supplied by and upon some advice of Simio, the particulars of the conRact or conRacts being within the knowledge of the defendants and each of them and not within the knowledge of the plaintiff.
It was further alleged that plaintiff did not know and could not allege or describe specific negligent acts or omissions of which the defendants may have been guilty and that may have been the proximate cause of his damages, but alleged that the falling of the upper portion of the truck hoist was an occurrence which could not have taken place except for some negligent acts or omissions on the part of the defendants, or one or more of them, when the hoist was within the exclusive and sole management, possession and control of each or all of them during their respective preparation, supply, advice, work, construction, use and operation; that his injuries and damages were the direct and proximate result of such negligent acts or omissions while the defendants and each of them, acting individually or through their agents and employees, were in the exclusive management, possession, and control, use and operation of the truck hoist, the facts of which were peculiarly within the superior knowledge of the defendants and each of them, and not within the knowledge of the plaintiff.
It was further alleged that as a result of the negligence of the defendants and each of them, plaintiff was violently struck by the top of the cab of his truck and suffered severe and crippling injuries to his head, neck, shoulders, back and upper extremities. The prayer was that the plaintiff recover from the defendants and each of them the sum of $50,841.65, and for costs.
Whether the doctrine of res ipsa loquitur, which means simply “the thing speaks for itself,” is to be applied depends upon the character of the injury and the circumstances under which it occurred. Standing alone the injury does not permit the application of the doctrine. For a petition to be sufficient as against a demurrer the court must be able to find as a matter of common knowledge and experience, from the facts and circumstances alleged, that the injury could not have occurred except for negligence on the part of the defendant, that is, the injury must be of such character that the circumstances of its occurrence imply a breach of duty and care (Ratliffe v. Wesley Hospital, 135 Kan. 306, 309, 10 P. 2d. 859). In reaching such a conclusion it is not essential that the court take judicial notice of the inferences of negligence in the sense that it is exclusive or impelling; it is sufficient if the court can say that it is an inference that would be drawn by reasonable men (Mayes v. Kansas City Power & Light Co., 121 Kan. 648, 650, 249 P. 2d 599; Truhlicka v. Beech Aircraft Corp., 162 Kan. 535, 178 P. 2d 252; Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 300 P. 2d 387; Worden v. Union Gas System, 182 Kan. 686, 324 P. 2d 501).
In actions for damages because of defendant’s negligence, the rule is, of course, that the negligence of the defendant is never presumed, but must be established by proof. In cases which warrant the application of the doctrine, a prima facie case is established in favor of the plaintiff, and the inference of negligence from the want of the exercise of ordinary care operates to place upon the defendant the burden of producing sufficient evidence against the presumed fact to avoid a directed verdict, but only that and nothing more. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff (Mayes v. Kansas City Power & Light Co., supra; Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 582, 134 P. 2d 1102; Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77).
In determining whether the amended petition, judged upon its merits and standing alone, warrants the application of the doctrine of res ipsa loquitur against Simio, we keep in mind that three essential elements must be alleged to establish a prima facie case, namely, the defendant must have management and control of the instrumentality which, at that time or later, caused the injury; the circumstances must be such that according to common knowledge and the experience of mankind, the injury would not have occurred without negligence on the part of those having management and control, and that plaintiff’s injuries resulted from the occurrence, and that he was free from fault (Worden v. Union Gas System, supra). We also keep in mind the further rule that it is incumbent upon the plaintiff to show fully a situation where the doctrine is applicable, otherwise there may be an attempt to shift the burden of proof in negligence cases by merely asserting that the doctrine is applicable (Johnson v. Latimer, 180 Kan. 720, 308 P. 2d 65).
In support of its contention that the district court erred in overruling its demurrer Simio first argues there were two instrumentalities involved in plaintiff’s injury — the plaintiff’s truck which was under his management and control, and the truck hoist which was under the exclusive management and control of the grain company —hence, the doctrine may not be applied to it. The contention is based upon an erroneous premise. The plaintiff expressly pleaded he was not guilty of any fault or contributory negligence, and other allegations of the amended petition compel a reasonable conclusion that he was not. The truck had been emptied and plaintiff was preparing to leave the area when the hoist fell and crushed the cab of his truck and injured him. The plaintiff’s truck was not an instrumentality of the injury (Truhlicka v. Beech Aircraft Corp., supra; Lamb v. Hartford Accident & Indemnity Co., supra).
Simio principally contends the facts alleged are not sufficient to permit the application of the doctrine against it, and directs our attention that the amended petition affirmatively alleged Simio was the original supplier of materials to other defendants who constructed the hoist. It states in its brief that those defendants whose liability may be encompassed by the doctrine must necessarily be those who, in view of the facts alleged, are such that in the ordinary course of events, the plaintiff’s injury could not have occurred in the absence of negligence on their part. It then points out that only the most tenuous of connections between it and the truck hoist are alleged, that is, that the hoist was erected by Nightingale and Cowell “upon some advice of and from materials prepared and supplied by defendant” Simio, and asks, can the “causal chain” link one defendant to the unknown negligent act of an unidentified tort-feasor merely because that defendant supplied materials to be used by other defendants, absent any indication or allegation that the materials furnished were defective, or, as in the instant case, that the advice was erroneous. It then argues that the materials it supplied, upon being incorporated into the hoist, became materially changed from the time they left its management and control and that it never exercised management and control of the hoist in its final assembled form, hence there was no causal relation to the injuring instrumentality alleged and it was improperly joined as a multiple defendant.
In making the contention, Simio concedes it to be the settled law of this state that the doctrine of res ipsa loquitur may, under proper circumstances, be applied to multiple defendants (Woods v. Kansas City, K. V. & W. Rld. Co., 134 Kan. 755, 8 P. 2d 404; Ratliffe v. Wesley Hospital, supra; Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887; Guthrie v. Powell, 178 Kan. 587, 290 P. 2d 834). It further concedes that the causal relationship to the injuring instrumentality is sometimes extended back through mesne defendants to the manufacturer or the original supplier (Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P. 2d 601; Nichols v. Nold, supra; Morrison v. Kansas City Coca-Cola Bottling Co., 175 Kan. 212, 263 P. 2d 217; Worden v. Union Gas System, supra), but it distinguishes those cases by stating they are not controlling since in each case the ultimate defendant at some time had exclusive control over the instrumentality which caused the injury, and at a time when the instrumentality was in its completed and final form.
Simio concludes its contention with the suggestion that if plaintiff is permitted to join it as a defendant because it prepared and supplied material and instructions to the defendant contractors that the lumber company, the steel mill, and the cement manufacturer should also be named as additional parties defendant because they too furnished materials to construct the elevator and the hoist.
We are of the opinion Simio has not correctly analyzed the amended petition. In the first place, as against a demurrer, it is entitled to be liberally construed and its allegations given all reasonable inferences. As used in the pleading, the word “advice” should be construed to mean, but not limited to, information, consultation, and instructions (Webster’s New International Dictionary, Second Edition, Unabridged), and a reasonable inference and intendment of the word “materials” alleged to have been prepared and supplied by Simio, includes not only structural materials, but also blueprints, and plans and specifications. In the second place, Simio overlooks material allegations. Under the facts and circumstances alleged Nightingale, Cowell, and Simio entered into a contract or contracts for the purpose of preparing and erecting a completed truck hoist upon the grain company’s premises. The relationship of the defendants was fixed by their contract or contracts, which placed them in successive and exclusive management and control during their respective preparation, supply and construction, the totality of which resulted in a completed and installed truck hoist.
The particulars of the contract or contracts being exclusively within the knowledge of the defendants and each of them, the plaintiff was unable to allege that the condition of the materials supplied by Simio were not changed after they left its management and control, or whether the materials were structural members of the hoist or whether a completely fabricated hoist was shipped in disassembled form to be assembled and erected by the defendant contractors on the site. Re that as it may, the fact that Simio did not have exclusive management and control of the completed hoist is immaterial. The real test is whether it was in control at the time of the negligent acts or omissions which either at that time or later produced the injury (Nichols v. Nold, supra; Lamb v. Hartford Accident & Indemnity Co., supra). Nor are we impressed with the suggestion that the lumber company, the steel mill, and the cement manufacturer should have been joined as additional party defendants. No attempt is made in the amended petition to hold those companies. Whether their liability, or the liability of one supplying component parts to a manufacturer, would extend to injury to persons or property is not before us. Neither are we greatly concerned with the contention of lack of allegations that the materials prepared and supplied were defective or the advice was erroneous, and the resulting claim of no causal relation to the injuring instrumentality. There was not only privity of contract between the defendants but also unanimity of interest in the preparation, supply and construction of the hoist, and there was no break in the chain of causal relation between Simio and the injuring instrumentality. While the contract or contracts here involved were the private agreements of the defendants, nonetheless if Simio were negligent in performing its part of the contract so that a dangerous structure was in fact erected, having knowledge as it must have had that the hoist would be used by the general public, it would be liable to an injured third person such as the plaintiff if its negligence were the direct and proximate cause of the injury, or if in fact it were a joint tort-feasor with other defendants. Under such circumstances, the source of liability is placed in the law based upon public policy. See annotation 58 A. L. R. 2d, pp. 871, 872, and Restatement of the Law, Torts, §§ 392, 395, pp. 1064, 1073. Simio was properly joined as a multiple defendant. As tending to bear upon this point see Schroeder v. City & County Savings Bank, Albany, 293 N. Y. 370, 57 N. E. 2d 57; Meny v. Carlson, 6 N. J. 82, 77 A. 2d 245, 22 A. L. R. 2d 1160; Barb v. Farmers Insurance Exchange (Mo. 1955), 281 S. W. 2d 297, and Waterbury v. Riss & Company, 169 Kan. 271, 219 P. 2d 673. In reaching the foregoing conclusion we note that, in applying the doctrine in Nichols v. Nold, supra, there was no finding that the multiple defendants were joint tort-feasors, or that they were in joint control of the instrumentality.
It is not usual for a heavy truck hoist to unexpectedly fall. In the ordinary course of things it is not inherently a destructive machine. No injurious result is expected from its normal operation. If, however, it is defectively designed, or negligently prepared, or imperfectly constructed, it is a dangerous instrumentality capable of doing serious human injury.
It is obvious that the plaintiff was not injured through any fault of his own and if the injury was due to negligence on the part of either or all the defendants, the plaintiff should be entitled to redress. In the light of practical human knowledge and experience, the unexplained falling of the upper portion of the hoist from its ordinary position permits no reasonable conclusion other than that the injury would not have occurred without some negligent acts or omissions on the part of the defendants or one or more of them. It is both reasonable and logical to conclude that the injury could have been caused by some negligence on the part of Simio. The negligence could have been the preparation and supplying of a hoist which contained defective and weakened materials, or was improperly and dangerously designed, or improper and incorrect advice and instructions prepared and supplied for its assembly, or of failure to warn the purchaser of dangers inherent in its preparation and construction. It is also apparent and logical that the injury could have been caused by the negligence of the other defendants or any one of them, the details of which are unnecessary to here relate since Simio is the sole appellant. Manifestly, it would be entirely beyond the ability of the plaintiff to ascertain and establish which of these possibilities, or a combination of them, was in fact the cause of the injury. In such a situation, and where one or some or all of the interdependent defendants (the contractors and Simio) were in successive control and burdened with the performance of contractual duties to complete the hoist, it is incumbent upon them to explain their action and conduct when the completed hoist suddenly collapsed with resultant injury to another. We are of the opinion that the injury and the circumstances surrounding its occurrence are such as to entitle the plaintiff to the benefit of the doctrine of res ipsa loquitur establishing a prima facie case against Simio.
At the trial of the case, the plaintiff can testify to the manner in which the injury occurred and offer proof excluding extraneous causes. The burden would then rest upon Simio to show that it conducted its preparation, supply, advice and instructions with due care and in a workmanlike manner, Nightingale and Cowell would be in a position to explain the manner in which they constructed and erected the hoist, and the grain company would also be able to explain the manner of the use and operation of the hoist after it was installed on its premises. It would then be for the jury when all the evidence was in, under proper instructions of the court, to decide whether the preponderance was with the plaintiff, or whether the defendants’ explanations satisfactorily exculpate either or all of them from the charge of negligence.
No error was committed by the district court in overruling Simlo’s demurrer to the amended petition. The judgment is affirmed.
It is so ordered.
Parker, C. J., Price and Schroeder, JJ., dissent.
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The opinion of the court was delivered by
McFarland, J.:
This is a legal malpractice action brought by Jack R. Hunt against Grey Dresie, David J. Wood, and Dresie, Jorgensen and Wood, P.A. The case was resolved by the district court over a period of time by the entry of multiple summary judgments. Each party has appealed from the summary judgment or summary judgments adverse to him or it. The Court of Appeals affirmed the district court in part, reversed in part, and remanded the case for further proceedings in an unpublished opinion filed February 12, 1987. All parties filed petitions for review which were granted by this court.
The factual background giving rise to this action is extraordinarily complex involving a number of other legal actions spanning a period of many years. An excellent summary of the prior litigation is contained in Sampson v. Hunt, 233 Kan. 572, 655 P.2d 743 (1983), hereafter Sampson, which will be set forth in this opinion. Before proceeding thereto, however, a brief statement concerning the claims involved in the case before us should render the recitation from Sampson more meaningful. Sampson was a malicious prosecution action predicated upon the filing of two actions against Sampson (the so called Note and Bank cases). In Sampson, the plaintiff was awarded a judgment against Hunt for $20,000 actual damages and $600,000 punitive damages. In the action before us, Hunt claims the defendants: (1) were negligent in filing the Bank and Note cases; (2) were negligent in failing to assert the advice of counsel defense in Sampson; and (3) are liable to him for the $620,000 judgment entered against him in Sampson.
The factual statement contained in Sampson is set forth as follows:
“This lawsuit is the culmination of a long history of business association and litigation between the plaintiff and defendants. In 1960 or 1961 the plaintiff and defendant Hunt became business partners and formed Construction and Development, Inc. (C & D). They were also partners in several other business projects, including Bonanza, Inc., which owned the Sweetbriar Shopping Center in Wichita. In 1970 Hunt and Sampson agreed to separate their joint business interests. Hunt became the sole owner of C & D. Hunt also purchased Sampson’s interest in Bonanza, Inc., and the Sweetbriar Shopping Center.
“Prior to this time C & D had entered into a contract with Seneca Square, Inc., to construct an addition to the Seneca Square Shopping Center in Wichita, which was owned by Seneca Square, Inc. Seneca Square, Inc., was wholly owned by Western Land and Development, Inc. (Western). Due to problems encountered during construction, it became necessary for Seneca Square, Inc., to arrange additional financing so the project could be completed. The Fourth National Bank and Trust Company in Wichita was unwilling to advance additional financing unless the indebtedness could be personally guaranteed by financially responsible people. Frank Malone, a stockholder in Western and Seneca Square, Inc., asked Hunt to approach Sampson about the possibility of these three individuals personally guaranteeing the note for Seneca Square, Inc. Sampson agreed, and in exchange for their participation, Hunt and Sampson each received one-third of Malone’s stock in Western. In addition, Malone, Sampson and Hunt entered into an indemnity agreement wherein they each assumed equal liability (one-third) of any indebtedness owed by Seneca Square, Inc. For its work on the project C & D received a promissory note from Seneca Square, Inc., in the amount of $50,000. This note was personally guaranteed by Sampson, Malone and Hunt to enable C & D to pledge it as collateral for other loans.
“In 1971, Sampson, Malone and Seneca Square, Inc., in three separate lawsuits, sued Hunt and C & D for fraud, misrepresentation and breach of fiduciary duty arising out of the financing of the Seneca Square project. C & D filed a counterclaim against the plaintiff for collection of the $50,000 promissory note. These actions were consolidated for trial and eventually resulted in a stalemate, with judgment denied on all claims of the parties. In denying judgment to C & D on the promissory note the trial court ruled:
‘The note given to Construction and Development, Inc., by Seneca Square, Inc., for $50,000 is a valid, legal obligation of the plaintiff, Seneca Square, Inc.; endorsements and guarantees of the plaintiffs, Sampson and Malone, were made with consideration; and further, the note in question is covered by the terms of the so-called “Indemnity Agreement” of July, 1970.’
In addition the trial court made the following specific finding of fact:
‘The plaintiffs, Sampson and Malone, and the defendant, Hunt, jointly and severally, endorsed and guaranteed payment to the Fourth National Bank and Trust Company, Wichita, Kansas on behalf of Seneca Square, Inc., but the maximum amount that such endorsements and guarantees reached was $2,200,000.00. That at the present time there is still due and payable to the Fourth National Bank a sum of around $15,000.00. That all three of the above-named parties have paid their proportionate share of the amounts of such debts. The defendant, Hunt, is responsible for the $15,000.00.’ (Emphasis added.)
“During the course of discovery in the Seneca Square case, Sampson learned that Hunt had withheld information and made misrepresentations concerning the financial situation of Bonanza, Inc., when Hunt purchased Sampson’s interest in that enterprise. Sampson and other family members who had owned shares of Bonanza, Inc., commenced a second lawsuit against Hunt while the Seneca Square case was pending, alleging fraud and breach of fiduciary duty. Sampson and his family were awarded a judgment against Hunt in the amount of $93,000. This case was appealed by Hunt to the Supreme Court and affirmed in Sampson v. Hunt, 222 Kan. 268, 564 P.2d 489 (1977). Sampson ultimately collected approximately $120,000 from Hunt on the judgment and accumulated interest.
“In November 1973, while the Bonanza, Inc., lawsuit was pending, the Fourth National Bank and Trust Company of Wichita filed a lawsuit against Malone, Sampson and Hunt to collect the balance of $15,000 due on a promissory note guaranteed by them in connection with the Seneca Square project. This was the same $15,000 found by the court in the Seneca Square case to be owed by Hunt. Hunt filed a cross-claim against Sampson and Malone, as sole owner of C & D, to collect under the indemnity agreement on the $50,000 promissory note given by Seneca Square, Inc., to C & D. Hunt alleged in his cross-petition that the promissory note was pledged as security for a bank loan with People’s State Bank of McPherson which was used in furtherance of the Seneca Square project. Hunt subsequently was required to make payments of over $30,000 in principal and interest on the note. Hunt sought indemnification from Malone and Sampson as personal guarantors on the note, pursuant to the indemnification agreement. C & D was not a party in the Fourth National Bank case. Eventually Hunt paid the balance due on the Fourth National Bank note and all claims in the case were dismissed with prejudice on March 29, 1974, including Hunt’s cross-claim on the $50,000 promissory note.
“The present action is the result of two lawsuits filed on December 31, 1975. In the first lawsuit, entitled Construction and Development, Inc. v. Seneca Square, Inc., Frank A. Malone and Sherman H. Sampson, case No. C35451 (Note Case), C & D sought to collect on the $50,000 promissory note from the named defendant. Malone and Sampson were subsequently dismissed from the case on the ground that the claim on the promissory note had previously been filed against them and dismissed with prejudice in the Fourth National Bank case, constituting res judicata. The order of dismissal was appealed by defendant Hunt, but was subsequently dismissed.
“The second lawsuit, Jack R. Hunt v. Seneca Square, Inc., Western Land & Development, Inc., Frank A. Malone and Sherman H. Sampson, case No. C35452 (Bank Case), arose out of a dispute over a lease agreement entered into between Seneca Square, Inc., and one of the tenants of the Seneca Square Shopping Center on January 4, 1974. At that time Hunt, Sampson and Malone were stockholders and directors of Western and Seneca Square, Inc. The new lease agreement provided for an advance rental payment of approximately $111,000. This money was used to pay off outstanding notes owed by Seneca Square, Inc., totaling over $100,000. These notes were personally guaranteed by Sampson, Hunt and Malone. Hunt opposed ratification of the new lease agreement because he felt it would be in violation of the mortgage agreement with the first mortgage holder on the shopping center and would trigger a foreclosure on the property, the sole asset of Seneca Square, Inc.
“Due to financial difficulties encountered by Seneca Square, Inc., a majority of the directors voted in July 1974, not to make the mortgage payment on the property and instead to pay all other outstanding indebtedness owed by Seneca Square, Inc., including obligations personally guaranteed by stockholders of the company. Subsequently, in August 1974, the mortgage holder instituted foreclosure proceedings against the property. The shopping center property was ultimately assigned to the mortgagee in lieu of foreclosure.
“The defendant Hunt brought the lawsuit against Malone and Sampson, as majority stockholders of Western, alleging fraud and breach of fiduciary duty in executing the new lease agreement, resulting in foreclosure and the loss of his investment in the property in the amount of $111,000. Hunt subsequently repurchased the property for the mortgagee, and in October 1977, almost two years after the suit was filed, he dismissed the action against Malone and Sampson. Hunt testified he dismissed the action because he felt it was time to ‘extend the olive branch’ and bring the disputes between him and Sampson to an end.
“The case at bar was instituted by the plaintiff in July 1978, against defendants Hunt and C & D, alleging that defendant Hunt was the alter ego of C & D and that both the Note Case and Bank Case were brought maliciously and without probable cause. The plaintiff sought actual damages in the amount of $10,000 and punitive damages of $1,000,000 for each alleged maliciously prosecuted case. After hearing evidence by both sides the trial court granted directed verdicts in favor of the plaintiff on four issues, ruling as a matter of law: (1) defendant Hunt was the alter ego of defendant Construction and Development, Inc.; (2) defendants Hunt and C & D did not have probable cause to bring the lawsuit in the Note Case; (3) defendant Hunt did not have probable cause to bring the lawsuit in the Bank Case; and (4) both cases terminated in favor of the plaintiff. The jury was instructed accordingly and returned a verdict in favor of the plaintiff in the amount of $10,000 actual and $300,000 punitive damages for each maliciously prosecuted case.” 233 Kan. at 574-77.
We affirmed the judgment entered in Sampson. Subsequently, Hunt brought this legal malpractice action against the attorneys who represented him in the filing and prosecution of the Note and Bank cases, and in the defense of the Sampson case. In a melange of summary judgments, the district court held; (1) defendant attorneys lacked probable cause to file the Note and Bank cases and were negligent therein as a matter of law; (2) defendant attorneys were not negligent as a matter of law in failing to assert the advice of counsel defense in Sampson and any deficiency of performance was, at most, an “error of judgment”; and (3) Hunt could not recover any of the $620,000 judgment awarded in Sampson from the attorneys herein as such judgment was the result of Hunt’s malicious conduct. The Court of Appeals affirmed the district court on its holding number (1), and reversed the district court on its holdings in numbers (2) and (3). As previously stated, the case is before us on petitions for review filed by all parties. Additional facts will be stated where necessary to the discussion of particular issues.
At this point, the general rules relative to summary judgments should be stated. Summary judgment is proper if no genuine issue of fáct remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for sum mary judgment, should search the record to determine whether issues of material fact do exist. When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify refusing that party his day in court. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. Barnhart v. McKinney, 235 Kan. 511, Syl. ¶¶ 1, 2, 682 P.2d 112 (1984); McAlister v. Atlantic Richfield Co., 233 Kan. 252, Syl. ¶¶ 1, 2, 3, 4, 662 P.2d 1203 (1983); Ebert v. Mussett, 214 Kan. 62, 65, 519 P.2d 687 (1974); Lawrence v. Deemy, 204 Kan. 299, 301-02, 461 P.2d 770 (1969).
Before addressing the specific issues, it is also appropriate to state the elements of the tort of malicious prosecution and the defense thereto known as advice of counsel. In Sampson v. Hunt, 233 Kan. at 582, we held, quoting Nelson v. Miller, 227 Kan. 271, 607 P.2d 438 (1980), that a plaintiff must prove the following facts to recover in an action based upon malicious prosecution of a civil action:
“ ‘(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.
“ ‘(b) That the defendant in so doing acted without probable cause.
“ ‘(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
“ ‘(d) That the proceeding terminated in favor of plaintiff.
“ ‘(e) That the plaintiff sustained damages.’
‘Probable cause for instituting a proceeding exists when there is a reasonable ground for suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent man in the belief that the party committed the act of which he is complaining. [Citations omitted.] In cases of malicious prosecution, the inquiry as to want of probable cause is limited to the facts and circumstances as they appeared to defendant at the time the prosecution was commenced. [Citations omitted.] If the facts are undisputed, the question of probable cause is one for the court to decide as a matter of law. [Citations omitted.] If the facts tending to establish the existence or want of existence of probable cause are in dispute, it becomes the duty of the trial court to submit the question to the jury.’ ”
In the absence of probable cause, courts permit but do not direct juries to infer malice. Nelson v. Miller, 227 Kan. at 279. The plaintiff s attorney in the original action may also be held liable for malicious prosecution. 227 Kan. at 276.
In 52 Am. Jur. 2d, Malicious Prosecution § 174, the defense is explained as follows:
“A defendant . . . who claims protection because he acted on the advice of others, must show, in order to establish his defense, that he did not seek to procure an opinion in order to shelter himself, but acted in good faith, believing that he had good cause for his action; that he made a full and honest disclosure of all the material facts within his knowledge or belief; that he was himself doubtful of his legal rights, and had reason to presume that the person whose advice he sought or followed was learned in the law and of such training and experience that he might safely be presumed to be competent to give wise and prudent counsel in important matters and to act under a sense of responsibility; and that he honestly pursued the directions of his adviser.”
See 52 Am. Jur. 2d, Malicious Prosecution §§ 77, 78, 83, 84, 86, 87.
Since a party has probable cause for suit when he reasonably believes he has a proper complaint, he may rely on the advice of counsel to provide him with a reasonable belief. Nelson v. Miller, 227 Kan. at 279-80. To establish the defense, he must prove he disclosed all facts he knew and all he could have learned with diligent effort, and then he must have acted on the attorney’s advice in good faith. 227 Kan. at 279.
We turn now to the issues.
NEGLIGENCE IN THE FILING OF THE NOTE AND BANK CASES
The district court held that defendant attorneys lacked probable cause to file the Note and Bank cases and were negligent as a matter of law in so doing. The Court of Appeals affirmed this determination.
In affirming the trial court’s findings of lack of probable cause in Sampson for the filing of the Note and Bank cases, we said:
“Hunt, as sole owner of C & D, was in complete privity with C & D when he asserted its right to payment of the $50,000 note from Malone and Sampson in the Fourth National Bank case. This same claim was asserted by C & D in the Note Case. Under the circumstances presented here the appellants had no reasonable ground to believe a legitimate cause of action existed on behalf of C & D for payment of the $50,000 note at the time the Note Case was filed. The dismissal of the claim with prejudice in the Fourth National Bank case was res judicata and barred a subsequent action by C & D against Malone and Sampson for payment on the note. The trial court properly ruled as a matter of law the appellants did not have probable cause to bring the action in the Note Case.” 233 Kan. at 583.
and:
“[N]o evidence appeared in the record from which it could reasonably be concluded that Hunt had probable cause to bring an action against Sampson and others for breach of fiduciary duty owed Western’s minority stockholders. Hunt testified he participated in the negotiations with the tenant for the new lease. He was aware at all times that negotiations were underway for a new lease; however, he testified he did not participate in the ultimate lease agreement and did not ratify the new lease. He was not aware a new lease had been signed by the stockholders until some time after it was signed. At a meeting of the stockholders in April 1974, a majority of the directors ratified the lease over Hunt’s objections. The money from the advance rental payment under the new lease was used to eliminate two notes owed by Seneca Square, Inc., upon which Hunt, Sampson and Malone were guarantors. In July 1974, a meeting of the board of directors was called, and a majority of the board voted to pay off obligations of Seneca Square, Inc., which were personally guaranteed by stockholders, including Hunt and Sampson, rather than pay the mortgagee. This was again done over Hunt’s objection. At this time Seneca Square, Inc., was in serious financial straits and foreclosure was imminent. Hunt and Sampson benefited equally from the elimination of the obligations of Seneca Square, Inc. All directors of the corporation lost their investment in, and ownership of, the property.
“Hunt’s action for breach of fiduciary duty is founded solely upon actions taken by the board of directors over his objections. While Hunt was not aware of the actual lease agreement being entered into, he was, by his own admission, aware at all time that negotiations for a new lease were underway and actively participated in those negotiations. The actions of which Hunt complains, the new lease agreement and decision to pay off outstanding obligations of the corporation rather than the mortgagee, were management decisions of the board of directors and did not work to perpetrate a fraud on any stockholder. No unfair transactions were undertaken which resulted in unjust enrichment for Sampson or any other director. It appears from the record the board of directors was attempting a good faith effort to make what little they could out of a bad situation. They did what they thought was best for the good of the corporation and the stockholders involved. The trial court did not err in granting a directed verdict on this issue.” 233 Kan. at 585-86.
Wood contends he did not know about the dismissal of the Fourth National Bank case although his partner Dresie handled that matter for Hunt. Wood, apparently, never reviewed the numerous lawsuits involving Hunt and Sampson and the corporations involved in their business dealings to ascertain how such litigation related to the Note and Bank claims. Rather, the lawsuits were filed solely upon Hunt’s representations. In Nelson v. Miller, we stated:
“We further reject the statement in Maechtlen [v. Clapp, 121 Kan. 777, 250 Pac. 303 (1926),] that an attorney may act on the assumption that the facts related by his client are honestly given and are substantially correct and that it is not his duty to go elsewhere for information respecting the honesty of the claim or the good faith of his client.” 227 Kan. at 284.
We further stated:
“In most cases, the clients of attorneys are not knowledgeable in the law, nor do they know how or where further information about the case may be acquired. It is obvious that the client must rely upon his lawyer to make a reasonable investigation of his case. Likewise, the attorney must accept the obligation to conduct a reasonable investigation in an attempt to find what the true facts are before filing a civil action on behalf of his client.” 227 Kan. at 284.
Where an attorney has reason to believe personal animosity exists between his client and the proposed defendant, he should carefully investigate the facts and satisfy himself that the client is not attempting to use his services merely as an instrument of vengeance. One of the services an attorney provides his client is learned objectivity in evaluating claims and counselling on the course of action to be taken.
The difficulty herein lies in the fact that the finding of negligence was made in a motion for summary judgment. Had the finding been made following a bench trial, we would be in an entirely different situation on appellate review. Whether or not defendants were negligent in filing the suits depends upon the totality of the circumstances as determined by the trier of facts. Because district judges and appellate court judges are, themselves, attorneys, they naturally have opinions as to whether or not certain conduct constitutes legal malpractice. It is easy to slip into the trap of deciding such questions “as a matter of law.” Not having a like expertise in other professions such as medicine or architecture, the issues of professional negligence there are routinely submitted to juries. Nevertheless, claims of legal malpractice, like other forms of malpractice, are normally to be determined by the trier of fact rather than by summary judgment. We conclude that both the district court and the Court of Appeals erred in holding that defendant attorneys were negligent as a matter of law in filing the Note and Bank cases.
NEGLIGENCE IN THE FAILURE TO ASSERT THE ADVICE OF COUNSEL DEFENSE
In his deposition testimony, Wood testified he did not assert the advice of counsel defense in Sampson because he did not believe it “would work.” A co-counsel in Sampson twice suggested the defense to Wood, but the suggestion was summarily brushed away. Wood is in an unenviable position in defending the claims of negligence herein. In defending on the claims relative to the filing of the Note and Bank cases, he characterized Hunt as a businessman, a longtime client, and an individual upon whom he, in essence, could rely to give him all relevant facts without Wood having the duty to make an independent investigation. Yet the heart of his defense to the claim concerning his failure to assert the advice of counsel defense is that Hunt had been proven to be such a malicious and vindictive person that the jury would not have believed the advice of counsel defense and that the same could not have affected the verdict in Sampson. It is undisputed that the defendant attorneys never discussed this defense with Hunt. In Sampson, evidence was introduced that Hunt had threatened retaliation against Sampson after the latter won the Bonanza, Inc., case and that he could file lawsuits and otherwise “get even.”
The district court held that, as a matter of law, the failure to assert the defense did not constitute legal malpractice and, at most, it was an error in judgment that did not affect the outcome of the case. This rationale is hard to follow. A flood of evidence establishing malice by Hunt toward Sampson had come into the Sampson trial. With an advice of counsel defense, the jury might have found Hunt, notwithstanding his personal malice toward Sampson, had probable cause to file the Note and Bank cases. It is difficult to see how the assertions of the defense could have harmed Hunt.
The Court of Appeals in discussing the “error of judgment” concept stated in its opinion herein:
“ ‘An attorney not guilty of misconduct or fraud will be protected, when he acts to the best of his skill and knowledge, and of course is not answerable for every error or mistake. He is legally responsible to his client only for the want of ordinary care and ordinary skill; but he must conduct himself with honor and integrity.’ Haverty v. Haverty, 35 Kan. 438, 444-45, 11 Pac. 364 (1886).
In that case, the court ordered a new trial in a divorce case because the husband’s attorney had accepted $100.00 from the wife’s attorney in lieu of raising any defense for the absent husband. 35 Kan. at 445-47. We have found no further Kansas cases which discuss the error of judgment concept.
“In one legal malpractice treatise, the authors point out a problem with the concept. ‘Notwithstanding centuries of applying the error of judgment rule in attorney malpractice actions, the courts have not analyzed or defined the judgmental process being protected.’ Mallenand Levit, Legal Malpractice § 211, p. 299 (2d ed. 1981).
“Mallen and Levit propose the following analysis of errors of judgment:
“ ‘Nevertheless, a client is entitled to the benefit of an informed judgment. When the issue is one that is settled and can be identified through ordinary research and investigation techniques, an attorney should not be able to avoid liability by claiming the error was one of judgment. On the other hand, when the proposition is one on which reasonable lawyers could disagree or which involves a choice of strategy, an error of informed judgment should not be gauged by hindsight or second-guessed by an expert witness. [Emphasis in original.]’ Mallen and Levit, Legal Malpractice § 215, p. 311.”
The Court of Appeals then held the failure to assert the advice of counsel defense to be legal malpractice as a matter of law.
The advice of counsel defense is rather unique. If asserted in Sampson, it would have had the effect of Wood saying to the jury that if there were fault in the filing of the Note and Bank cases, then the fault was that of Wood rather than Hunt. Had it been asserted, then defendant attorneys would have been disqualified from further representation in the case as they would have become witnesses. By asserting this defense into the case, Wood could have opened up a question of his own liability to the plaintiff in Sampson and exposed himself to litigation by Hunt. Generally, outside independent counsel should be consulted on whether or not the defense should be asserted under such circumstances, and the client should be involved in the decision therein.
We conclude that whether or not the defendants’ failure to assert an advice of counsel defense in Sampson constitutes legal malpractice should be submitted to the trier of fact herein for determination. The trier of fáct can determine if there was a breach of a duty owed the -client and, if so, what effect, if any, said breach had on the verdict.
ADVICE OF COUNSEL AS A COMPLETE OR PARTIAL DEFENSE
The Court of Appeals analyzed this issue as follows:
“This defense [advice of counsel] itself asks the jury to decide whether Hunt was entitled to rely completely on his attorneys to determine probable cause to file the suits and thus supersedes the attorneys’ negligence in filing the suits as a possible proximate cause of Hunt’s damages.
“We believe the PIK Civil 2d instruction on the defense of advice of a prosecuting attorney provides a good starting point in considering the defense. PIK Civ. 2d 14.33. That instruction reads:
“ ‘The advice of a prosecuting attorney as to the institution of a criminal proceeding sought and acted upon in good faith, is a complete defense for malicious prosecution, but this is only so when all of the facts known to the defendant have been fully and truthfully given to such official.’
“In the notes on use of the instruction, the PIK Committee states that this instruction ‘should not be used in those instances where the defendant in defense claims reliance upon the advice of private counsel, since such reliance is only evidence of belief of probable cause and not a complete defense.’ PIK 2d Civil 14.33, Notes on Use.
“The rule that advice of private counsel is not a complete defense does seem to follow from the distinction between a prosecuting attorney and private counsel: at least generally speaking, the prosecuting attorney alone is responsible for deciding whether criminal charges should be filed while a private attorney has no such authority or discretion. Therefore, the prosecuting attorney’s responsibility completely supersedes that of the complainant in the ordinary case. On the other hand, especially when we shift from criminal to civil proceedings, the client retains final authority for the filing of the suit. Consequently, something more is required before the client may shift all responsibility for filing without probable cause to his attorney.
“We believe Hunt must show the following elements for the defense to succeed:
“1. He believed he had good cause for his suits and did not seek his attorneys’ advice to shelter himself;
2. he made a full and honest disclosure of all the material facts within his knowledge or belief;
3. he was uncertain of his legal rights;
4. he had reason to believe his attorneys were capable of giving competent advice about the cases; and
5. he honestly pursued their advice.
52 Am. Jur. 2d, Malicious Prosecution § 174.
“The PIK instruction on probable cause reads:
‘Probable cause for instituting a (civil) proceeding exists when there are reasonable grounds for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent man to believe that the party committed the act of which complaint is made. In determining the issue of probable cause, you should consider only the facts and circumstances that were apparent to the defendant in this action at the time the original proceeding was instituted.’ PIK Civ. 2d 14.31.
The elements of the defense, then, seem largely directed to the question of the fact and reasonableness of Hunt’s belief he had valid legal claims against Sampson. The jury should be asked to consider such things as whether Hunt relied on his attorneys to decide he had valid claims or did not care what they thought, and whether a person with his knowledge and experience should reasonably have believed the claims to be valid without regard to his attorneys’ views.
“As indicated by Mallen and Levit, to recover for his attorneys’ negligence, a client must show:
T. the duty of the professional to exercise ordinary skill and knowledge;
2. a breach of that duty;
3. the causal connection between the negligent conduct and the resulting injury; and
4. actual loss or damage.’ Mallen and Levit, Legal Malpractice § 654, p. 804 (2d ed. 1981).
“In such cases, ‘the client must prove that the omitted defense was legally meritorious, factually provable and would have produced a better result.’ Mallen and Levit, Legal Malpractice § 564, p. 702. This, in effect, requires a re-creation of the original trial but with the defense asserted. As Mallen and Levit note, this means the judge and jury must enter ‘a virtual fantasy world of hypothetical questions of fact and law and of assumed plaintiffs and defendants facing academic claims of liability and using evidence which is not quite what it seems.’ Mallen and Levit, Legal Malpractice § 650, pp. 796-97.
“In this case, then, we believe a . . . trial is required and the jury must be asked to decide what effect, if any, the assertion of the defense would have had on the original jury’s verdict, it should be free to decide that the defense would have had no effect, it would have been a complete defense, or anything between the two.”
We believe this rationale of the Court of Appeals is sound and adequately disposes of this issue.
WHETHER HUNT IS BARRED FROM RECOVERY AGAINST THE DEFENDANTS
The district court held that Hunt was barred from recovering any damages against the defendants. The Court of Appeals reversed this determination upon the following rationale:
“In its first decision, the trial court concluded Hunt’s malicious conduct toward Sampson barred his recovery of the punitive damages assessed against him in Sampson. The court began its discussion with an incorrect statement: ‘Should Hunt succeed in this attempt to gain indemnity for punitive damages, the result would be the same as though Sampson had sought and recovered those damages in Sampson from [the defendants]. That would have required proof of malice on the part of these defendants.’ While the second statement alone is true, Hunt’s recovery in this case would not accomplish the same result. Hunt would recover for the attorneys’ breach of a duty owed to him, not for malice toward Sampson. An example may clarify this distinction: if a crash victim sues an attorney’s client for injuries the client inflicted by negligent driving and the attorney negligently defends his client, resulting in the client’s liability, the client may recover those damages from the attorney, if at all, not because the attorney had anything to do with the wreck, but because the attorney’s negligence caused the loss of the lawsuit.
“The trial court cited two cases which discuss the propriety of assessing punitive damages in certain situations, see Iola State Bank v. Bolan, 235 Kan. 175, Syl. ¶ 9, 679 P.2d 720 (1984); Augusta Bank & Trust v. Broomfield, 231 Kan. 52, 64-65, 643 P.2d 100 (1982), but rested its conclusion Hunt could not recover the punitive damages on Bowman v. Doherty, 235 Kan. 870, 881-82, 686 P.2d 112 (1984). Under Bowman, the trial court noted, one defendant’s negligence cannot be used to offset any part of the punitive damages assessed against another defendant for his wanton conduct. In its final decision, the court expanded this reasoning to conclude Hunt’s intentional misconduct barred him from recovering either the punitive or actual damages assessed against him in Sampson. The court discussed cases holding intentional conduct may not be compared with negligence under our comparative fault statute, K.S.A. 60-258a, see, e.g., M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 687, 675 P.2d 864 (1984); Sieben v. Sieben, 231 Kan. 372, 378, 646 P.2d 1036 (1982), and cited 18 Am. Jur. 2d, Contribution § 41, p. 49 and 41 Am. Jur. 2d, Indemnity § 21, p. 710 for the proposition that contribution and indemnity are not available to intentional joint tortfeasors. It further noted, ‘Except where there is a common judgment against joint tortfeasors in Kansas (or where comparative negligence applies) any tortfeasor may be held for the total damages. If paid by one, he cannot look to any others.’
“The trial court has failed to see a crucial distinction between the cases and authorities it cited and Hunt’s suit against his former attorneys. The damages Hunt had to pay under the Sampson judgment included damages called punitive damages from the vantage point of that lawsuit. From the vantage point of this lawsuit, should Hunt be successful, all the damages are simply those which proximately resulted from his attorneys’ negligence; they are no longer properly called punitive damages. If they were called punitive damages and the trial court’s decision properly denied their recovery, then any attorney representing a client who might be assessed punitive damages in a lawsuit could rest easy, secure in the knowledge that any improper handling of the suit, even intentional actions, could not subject the attorney to any malpractice liability at all.”
We .believe the Court of Appeals reached the correct result on this issue. If an attorney is hired to represent a man sued for having committed an intentional tort and then fails to raise a valid statute of limitations defense with the result being a judgment for actual and punitive damages against the client, the failure to raise the defense is the entire cause of his damage. But for the legal malpractice, the client would have had no judgment against him. The statute of limitations defense is a complete defense — so the subsequent legal malpractice action would be an all or nothing proposition. The advice of counsel defense has been determined to be not necessarily a complete defense. A jury could find the defense, if asserted, would have reduced or eliminated the punitive or the actual damages awarded, but it should be free to consider the entire judgment as being Hunt’s damages.
Defendants’ next issue involves certain constitutional issues raised for the first time before this court. We have often held that where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. Murphy v. IBP, Inc., 240 Kan. 141, Syl. ¶ 3, 727 P.2d 468 (1986); Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 552 P.2d 885 (1976) (quoting State v. Estes, 216 Kan. 382, Syl. ¶ 3, 532 P.2d 1283 [1975]); Kansas State Board of Healing Arts v. Seasholtz, 210 Kan. 694, 698, 504 P.2d 576 (1972).
The judgment of the district court is reversed, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded to the district court for further proceedings.
Lockett, J., not participating.
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The opinion of the court was delivered by
Sgtiroeder, J.:
These actions were instituted by the insured plaintiff for the recovery of monthly benefits alleged to be payable under certain health and accident policies issued by the defendant companies. Benefits under these policies were payable in the event of total and continuous disability resulting from accidental injury. After commencement of the actions the defendants paid the plaintiff all accrued monthly payments, and the plaintiff stipulated that such payment was in full settlement and agreed to dismiss the actions with prejudice. The issue of whether the defendants were liable for attorneys’ fees under G. S. 1959 Supp., 40-256, was reserved for determination by the court. After a hearing on this issue the trial court held the defendants hable for attorneys’ fees, from which ruling appeals have been duly perfected by the defendants.
Four appeals have been docketed in this court, all of which have been consolidated by agreement of the parties. For further clarification, No. 42,267 is an appeal by Mutual Benefit Health and Accident Association from the initial adverse judgment of the trial court dated June 15, 1960, and No. 42,339 is Mutual’s appeal in the same action from subsequent rulings of the trial court. These separate appeals were taken to avoid the possible argument that a motion for a new trial was unnecessary and therefore would not extend the appeal time.
The same situation is presented concerning the action against United Benefit Life Insurance Company. This defendant took an appeal from the initial adverse judgment of the trial court dated June 15, 1960, (No. 42,268) and also from the trial court’s subsequent rulings (No. 42,338). The two actions in the trial court were consolidated for hearing because the identical issue of the plaintiff’s (appellee’s) total disability was involved in both cases.
The trial court ordered the defendants (appellants) in both cases to pay $7,500 for an attorneys’ fee, and after hearing arguments on the motion for a new trial, allocated $6,000 of the fee against Mutual Benefit Health and Accident Association (appellant in Nos. 42,267 and 42,339), and the remaining $1,500 against United Benefit Life Insurance Company (appellant in Nos. 42,268 and 42,338). Throughout the remainder of this opinion we shall treat these cases as one and refer to the fee allowance as $7,500.
Basically, only two questions are presented: (1) Whether or not the appellee is entitled to recover attorneys’ fees from the appellants under the provisions of G. S. 1959 Supp., 40-256; and (2) if the appellee is entitled to recover attorneys’ fees, was the allowance for attorneys’ fees made by the trial court reasonable? Within these questions others are embraced.
Except for the expert testimony concerning the amount of a reasonable attorney fee, the facts were stipulated by the parties. The appellee, Walter F. Wolf, held several health and accident policies of insurance with the appellants which provided for monthly benefits aggregating $400 per month (prior to reaching age 60 and $325 per month after age 60) in the event of accidental injury resulting in whole and continuous disability. On May 27, 1955, when he was 55 years old, he was severely injured when the tractor which he was driving fell some fifteen to twenty feet from a bridge on top of him, as a result of which he was hospitalized for several months and suffered a whole and continuous disability which all parties agree lasted until July 1, 1958. The appellee was paid $400 per month benefits until July 1, 1958. On June 27, 1958, the appellee was examined one time by Dr. Harold S. Bowman, an orthopedic surgeon at Wichita, Kansas, who gave a report which was admitted into evidence.
At this particular time the appellee was under the care of Dr. G. R. Hastings, a general practitioner from Garden City, Kansas, and Dr. H. O. Marsh, orthopedic surgeon of the Wichita Clinic at Wichita, Kansas, and had been under their care since the orig inal injury was inflicted. Both Dr. Hastings and Dr. Marsh were at that time, and are now (at the time of trial), of the opinion that the appellee was, and is, suffering from a whole and continuous disability. Both the reports of Dr. Marsh and Dr. Blastings were attached to the agreed statement of facts and admitted into evidence.
On the basis of the report of Dr. Bowman and in the face of the reports of Dr. Hastings and Dr. Marsh, the appellants terminated the payment of monthly benefits to the appellee. The appellee thereafter consulted an attorney in Garden City, Kansas, who for several months attempted to negotiate a settlement of the appellee’s claim with the appellants, but being unable to arrive at a satisfactory settlement forwarded the matter to Charles Fisher of Lillard, Eidson, Lewis & Porter of Topeka for handling. This firm accepted employment in accordance with a letter dated July 29, 1959, which reads in part:
“Relative to attorneys’ fees, we would be happy to handle this case for you on a basis of a contingent fee of thirty-three and one-third per cent of the gross amount of recovery, less a credit to you of any attorneys’ fees allowed by the Court. In other words, the statute allows the recovery of attorneys’ fees and if we are successful, these wquld be applied to the over-all thirty-three and one-third per cent arrangement. If this is satisfactory, please advise, and upon receipt of the information requested above, we will proceed to file suit.”
(Objection was made to this exhibit by the appellants on the ground of immateriality, and it was argued at length by counsel that a contingent fee contract was not properly a basis upon which to award attorneys’ fees, if owing. The trial court overruled the objection.)
After examining the policies of insurance, conferring with the appellee and reviewing the medical reports, two suits were commenced on November 2, 1959, in the district court of Shawnee County, Kansas. Issues were joined, and the parties, thereafter, agreed the two cases might be consolidated for trial in the fourth division. After a pre-trial conference on the 11th day of January, 1960, the appellants had the appellee examined by Dr. G. Bernard Joyce, an orthopedic surgeon in Topeka, Kansas, whose report was admitted into evidence, and the appellee at his own choice was also examined by Dr. M. E. Pusitz of Topeka, an orthopedic surgeon, whose report was also admitted into evidence.
In preparation for trial Mr. Fisher and Mr. Eidson, of counsel for the appellee, both traveled to Garden City, Kansas, on one occasion, and Mr. Fisher by himself on another occasion. An interview was had with Dr. Hastings of Garden City and arrangements made for him to come to Topeka for the trial. Various members of the firm of Lillard, Eidson, Lewis & Porter spent approximately fifty-eight hours in preparation of the case for trial. During this time a number of conferences were held with representatives of the appellants which resulted in offers of increasing amounts, the highest of which, for cancellation of all the policies, was $16,000 to settle the appellee’s claim under the health and accident policies. By letter, dated March 8, 1960, the appellee through counsel made a firm offer of settlement for a lump sum, which reads in part as follows:
“On the cases currently on file, as we compute it, up until March 1, 1960, we are entitled to recover (assuming we are correct) $7,618.19. Our client has a life expectancy of 13.88 years, and under the various policies he holds, and assuming he lives out his life expectancy, and further assuming that he remains wholly and continuously disabled as that term is defined in the policies, he can expect to recover over his lifetime, an additional $54,132.00. If we discount this amount at the rate of four and one-half per cent, to find out its current worth, i. e., the current value of $54,132.00 payable over a fourteen year period, we find that it has a current worth of $39,869.70. Accordingly, it would appear that if our facts or contentions are right and if Mr. Wolf lives his life expectancy — and no more — his claim has a current value of $47,487.89.
“In our telephone conversation, you requested that we make you a lump sum offer of settlement. This we will attempt to do.
“Our client will settle all claims, past and future, against your companies under the health and accident policies, for the total sum of $30,000.00. This would not mean a cancellation of the life policies, which, of course, we would expect to hold in force.
“It is our view that this proposition of settlement is, after giving you the benefit of every doubt, effecting your companies a net saving of $17,500.00 approximately, plus attorneys’ fees. This, we feel, is about the very best that can be done under all of the circumstances.”
(Objection was made to the admissibility of this exhibit in evidence on the ground of incompetency and immateriality. The trial court admitted the exhibit for the purpose of showing that negotiations were conducted between the parties, but not as proof of value of services rendered.)
The appellants were unwilling to accept the $30,000 offer of the appellee. After several more sessions of negotiations, it was agreed that the pending cases be dismissed upon payment in full to the appellee of all benefits claimed up to date, amounting to $7,513.88. The stipulation for partial settlement and release reads in part:
. . It is stipulated and agreed by and between the plaintiff and defendant that the payment herein made represents a full, final, and complete settlement of all payments due to said date of March 1, 1960, and that this cause should be dismissed with prejudice after the determination by the court of the amount of attorneys’ fees, if any, due and, owing counsel for plaintiff. It being understood and agreed that this is a full, final, and complete settlement of payments due plaintiff under and from the policy issued by the defendant to the date of March 1, 1960, 'but without prejudice to either plaintiff or defendant to claim or deny payments for any future disability as the same may become due or not due under the terms and provisions of the policy. It is further agreed by the parties that this stipulation and release shall be filed in this action and become a part of the record of the case and have the same force and effect as a stipulation made in open court.” (Emphasis added.)
(The stipulation in Nos. 42,267 and 42,339 acknowledged receipt in the amount of $5,785.61 in full, final and complete settlement of all benefits accrued and as a refund of premiums to March 1, 1960; while the stipulation in Nos. 42,268 and 42,338 acknowledged receipt in the amount of $1,728.27 in full, final and complete settlement of all benefits accrued to March 1, 1960, and as a refund of premiums to April 1, 1960.)
The parties agreed that since March 1, 1960, the appellee was paid an additional monthly indemnity or benefit to April 1, 1960, and had been furnished proofs of loss for his claim to May 1, 1960.
Ordinarily the term “costs” and “expenses” as used in a statute are not understood to include attorney fees. At common law the right did not exist to recover attorney fees from one’s opponent in litigation as a part of the costs. Therefore, the allowance of attorney fees as part of the costs of an action is dependent upon statutory authority expressly conferring the power to allow them. (Vonachen v. Pratt Glass Co., 172 Kan. 545, 241 P. 2d 775.)
G. S. 1959 Supp., 40-256, reads:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in section 40-201 of the General Statutes of 1949, and including in addition thereto any reciprocal or inter-insurance exchange on any policy or certificate of any type or kind of insurance, if it appear from the evidence that such company or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs: Provided, however, That when a tender is made by such insurance company or exchange before the commencement of die action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
We shall assume the foregoing provisions of the statute are applicable to the decision in the instant case, because the appellants first terminated the payment of monthly benefits to the appellee under tire policies on the 1st day of July, 1958. (See, G. S. 1949, 40-256, as it read prior to the laws of 1957.) The causes of action then accrued. The first clause of the statute indicates its application to “all actions hereafter commenced,” and these actions were not commenced until the 2nd day of November, 1959. (See, Light v. St. Paul Fire & Marine Ins. Co., 132 Kan. 486, 296 Pac. 701.)
The written stipulation of the parties for partial settlement and release, heretofore quoted in part, specifically reserved for the determination of the trial court a single issue — the amount of the attorneys’ fees, if any, the appellee’s attorneys should be allowed for their services in these cases. The words “if any” in this reservation suggest two defensive approaches for the appellants, both of which they attempt to pursue in this court. Their first position is that the provisions of 40-256, supra, have no application as a matter of law where the litigation has been settled on the merits before trial. Their second position is that if 40-256, supra, does have application to these cases, the appellants have not refused “without just cause or excuse” to continue full payments to the appellee under the policies.
On the first point the appellants contend the statute does not provide for the allowance of an attorneys’ fee in actions settled prior to trial and before judgment. It is argued the parties have reached a mutually satisfactory settlement on the merits of the case before the action was tried or any judgment rendered, and that attorneys’ fees may be imposed only in those cases, which are tried in court and which result in a judgment on the merits adversely to the insurance company. In support thereof they emphasize the words “in which judgment is rendered against any insurance company ... on any policy,” and the provision “if it appear from the evidence that such company '. . . has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment . . .” It is argued that only after a full trial on the merits will there be evidence from which the court could have a basis for determining whether or not the insurance company refused without, just cause or excuse to pay in accordance with the terms of the policy.
While the appellants concede this court has not directly passed upon the point, they rely on the dictum in Light v. St. Paul Fire & Marine Ins. Co., supra, and cite Gold Mine Co. v. Campbell, 13 Colo. App. 1, 56 Pac. 246; and Grant County Lumber Co. v. Marley et al., 100 Ind. App. 42, 192 N. E. 110.
The foreign cases cited by the appellants are not persuasive. In the Campbell case, before attorneys’ fees could be allowed under the Colorado foreclosure statute, it was necessary for the plaintiff not only to recover a judgment, but also a decree of foreclosure. The foreclosure decree did not include those claims that were settled before judgment. For other reasons the Colorado statute was held unconstitutional. In the Marley case the plaintiff compromised by making a concession on the claim, clearly not the situation here presented.
The appellee contends the word “judgment” as used in the statute includes a judgment for costs or a judgment of dismissal when the action is based on a policy of insurance.
It is a fundamental rule of statutory construction, to which all others are subordinate, that the purpose or intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases or clauses at some place in the statute must be omitted or inserted. This rule, stated in various forms, has been applied by this court throughout its history. (Hunziker v. School District, 153 Kan. 102, 109 P. 2d 115, and authorities cited therein.)
This court has held when the interpretation of a statute (not penal in nature) according to the exact and literal import of its words would defeat the manifest purpose of the legislature in its enactment, it should be construed according to its spirit and reason disregarding as far as may be necessary, the strict letter of the law. (Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042; and Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P. 2d 456.)
The appellants assert the statute in question is subject to a strict construction because it has been said the state may penalize insurance companies for not making prompt payment of claims which are adjudged to have been meritorious. (Light v. St. Paul Fire & Marine Ins. Co., supra.) From this language the appellants rely upon the rule that penal statutes must be strictly construed, citing Bagley Investment Co. v. Merrick, 122 Kan. 734, 253 Pac. 562; and Brown v. Meyer Sanitary Milk Co., 150 Kan. 931, 96 P. 2d 651. These cases, however, dealt with statutes which made the acts denounced a misdemeanor. Strictly and properly, penal statutes are those laws imposing punishment for an offense committed against the state, and the expression does not include statutes which give a private action against a wrongdoer. (Huntington v. Attrill, 146 U. S. 657, 36 L. Ed. 1123, 13 S. Ct. 224.) It must be conceded there is a diversity of opinion in other jurisdictions as to whether statutes, which impose attorneys’ fees against insurance companies under certain conditions, are subject to strict construction. As a legal proposition we think it more logical to say these statutes are compensatory and not penal. (See, Hagey v. Mass. Bonding & Ins. Co., 169 Or. 132, 126 P. 2d 836, 127 P. 2d 346.)
In Lattner v. Federal Union Ins. Co., 160 Kan. 472, 163 P. 2d 389, it was said:
“. . . The purpose of the statute allowing an attorney fee in insurance cases is ... to permit the allowance of a fair and reasonable compensation to the assured’s attorney in the event, after having been compelled to sue on his policy, he is successful in that effort. . . .” (pp. 480, 481.)
For a later approval of this statement see Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 656, 203 P. 2d 180.
The trial court in announcing its decision by letter on the 15th day of June, 1960, said:
“The statute in question specifically declares that in all actions in which judgment is rendered against any insurance company, if it appear from the evidence that such company has refused without just cause or excuse to pay the full amount of such loss, the Court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs. The statute contains a proviso to the effect that when a tender is made by such insurance company before commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed. It appears to the Court that under the express provisions of the statute in order for an insurance company to avoid the payment of a reasonable attorney fee as a part of the costs, it is necessary for the insurance carrier to make a tender before the commencement of the action. There is no evidence in this case nor is there any contention that the insurance company tendered the settlement figure prior to the time tire action was commenced.”
Actually, 40-256, supra, as punctuated is somewhat ambiguous. Did the legislature intend to say “In all actions hereafter commenced, in which judgment is rendered against an insurance company on a policy of insurance,” or did it intend to say “In all actions hereafter commenced on a policy of insurance, in which judgment is rendered against an insurance company? In either case the action must be on a policy of insurance, but if we look to the statute as it appeared before the change in 1957 (G. S. 1949, 40-256), it becomes apparent the former expression was intended. The emphasis placed on the last proviso by the trial court is unwarranted. In our opinion the proviso does not purport to enlarge the statute but is merely a limitation on the basic part of it.
The legislature was clearly aware of the various types of judgments because it has provided for: Judgment by the court after a full trial (G. S. 1949, 60-3117 to 60-3125); default judgment (G. S. 1949, 60-3109 and see 60-2501 and 60-3803); judgment by confession (G. S. 1949, 60-3110 to 60-3116); judgment on agreed facts (G. S. 1949, 60-2938 to 60-2940); declaratory judgment (G. S. 1949, 60-3127 to 60-3132); and others. Thus, a confession of judgment, among others, by an insurance company would be sufficient to come within the statute as a judgment rendered against an insurance company on a policy of insurance. (See, Brooks v. National Bank of Topeka, 153 Kan. 831, 113 P. 2d 1069.)
Contrary to the appellants’ contention, the statute (40-256, supra) does not say the judgment rendered against the insurance company must be after a trial on the merits. Nor does it seem to us the legislature intended by the expression “if it appear from the evidence,” that a judgment against an insurance company on a policy of insurance be after a trial on the merits. Whether an insurance company has refused without just cause or excuse to pay in accordance with the terms of a policy is an independent issue, and evidence produced to determine this issue need not be at a hearing on the merits of the controversy or coincide with evidence .produced at such hearing.
Here the written stipulation for partial settlement and release did not terminate the litigation between the parties. By this stipulation the appellants agreed in substance to pay all monthly installments that had accrued under the policies, without any compromise by the appellee whatever. Suit to recover future installments would have to be deferred until future installments became due. This stipulation, however, did not dispose of the litigation. It did not permit the entry of a judgment until after the determination by the court of the amount of attorneys’ fees, if any, due and owing counsel for the appellee. After the determination of the remaining issues the stipulation was embodied in the judgment.
Under these facts and circumstances, we hold the submission of the stipulation for partial settlement and release to the trial court on the trial of the remaining issues was equivalent to a confession of judgment (or a judgment by consent) on the policies of insurance, and, within the contemplation of the statute, a judgment entered against an insurance company on a policy of insurance. (See, Brooks v. National Bank of Topeka, supra.)
It was only after the actions were filed, at issue, a pre-trial conducted, and ready for trial, that the appellants in the face of all medical reports, recognized their liability on the policies of insurance, and it was only after the parties expressly reserved for trial the remaining issues, that anything was paid to the appellee.
The journal entry recites thé cases were called for trial on the 29th day of April, 1960, and after giving the appearance of the parties and their respective attorneys, it reads:
"Thereupon, the parties announced to the court that pursuant to the written stipulation of the parties on file herein, and the oral stipulation read into the record of the case, the only issue remaining in these cases is the amount of the attorney’s fees, if any, plaintiff’s attorneys should be allowed for their services in this case.
“Thereupon, plaintiff introduces evidence in his behalf and rests his case; and
“Thereupon, defendants introduce evidence in their behalf and rest their case; and
“Thereupon, the court requests the parties to submit written briefs and takes the case under advisement.
“Now on this 15th day of June, 1960, the court, after having carefully considered the pleadings, the stipulations of the parties, the evidence, including exhibits and testimony offered, and the briefs of the parties, finds:
“That the defendant insurance companies refused, without just cause or excuse, to pay tire benefits due the plaintiff under the insurance policies involved in these cases, and the plaintiff is entitled to recover a reasonable sum as attorney’s fee as part of the costs in these cases; . . .”
Judgment was thereupon entered dismissing the actions with prejudice and taxing the costs, including a total fee allowance to the appellee’s attorneys of $7,500, against the appellants.
The appellants contend they did not withhold payments of insurance to the appellee without just cause or excuse by reason of the medical report of Dr. Bowman. This was the issue pursuant to which the medical reports were submitted in evidence by agreement of the parties.
Under the provisions of 40-256, supra, only if the insurer refuses "without just cause or excuse” to pay in accordance with the terms of the policy, can it be assessed a reasonable fee for the insured’s attorney. On this point the trial court found against the appellants. Here the facts are stipulated and are not in dispute. In this situation the Supreme Court has as good an opportunity to examine and consider the evidence as the trial court to determine whether or not tire appellants had just cause to cease making payments. (Keeler Co. v. Atchison, T. & S. F. Rly. Co., 187 Kan. 125, 354 P. 2d 368.)
Generally speaking, where an insurance company’s refusal to pay is based on a reputable physician’s certificate and advice, its action in withholding payment is not unreasonable. Usually, this situation is presented where there is a conflict of opinion between the physicians of the insured and those of the insurer. (3 Appleman, Insurance Law and Practice, § 1616, p. 221; Pearson v. Prudential Ins. Co., 214 La. 220, 36 So. 2d 763; Turner v. Metropolitan Life Ins. Co., 189 La. 342, 179 So. 448; and Link v. New York Life Ins. Co., [La. Ct. App.] 194 So. 118.)
Whether there was any reasonable ground for contesting the claim is a matter which depends upon the circumstances existing when the payments are withheld or liability is declined, and not by the fact that payments were ultimately resumed. (Hanover Fire Insurance Company of N. Y. v. Argo [5th Cir.], 251 F. 2d 80.)
On the evidence in this case the serious injuries sustained by the appellee were recognized by the .appellants who paid substantial benefits for over three years without question. Then upon the report of Dr. Bowman, in which he expressed an opinion that the appellee was no longer totally disabled, further payments under the policies were stopped. Our decision on this point must be determined from the evidence, and it may be noted the written medical reports of Dr. Bowman, Dr. Joyce and Dr. Pusitz are all quite long and detailed, thus giving the basis in fact for their respective opinions or conclusions.
Under the policies in question the appellants were required to pay the monthly indemnity benefits to the appellee in the event of an accidental injury resulting in whole and continuous disability.
Total disability, within the meaning of insurance policies, does not necessarily mean utter helplessness, nor inability to perform any task, or even in some cases, usual tasks for a limited period. It has been said, to hold otherwise would be to penalize every effort of the insured person to rehabilitate himself. (Hodgson v. Mutual Benefit H. & A. Ass’n, 153 Kan. 511, 112 P. 2d 121.)
In Berry v. United States, 312 U. S. 450, 85 L. Ed. 945, 61 S. Ct. 637, cited with approval in the Hodgson case, the United States Supreme Court approved the following definition of total and permanent disability:
“ ‘A total disability is any physical or nervous injury which makes it impossible for a person to follow continuously a substantially gainful occupation at any kind of work for which he was competent or qualified, physically and mentally, or for which he could qualify himself by a reasonable amount of study and training. The word “total” as applied to “disability” does not necessarily mean incapacitated to do any work at all. The word “continuously” means with reasonable regularity. It does not preclude periods of disability which are ordinarily incident to activities of persons in generally sound health, for nearly all persons are at times temporarily incapacited by injuries, or poor health, from carrying on their occupations. If Berry was able to follow a gainful occupation only spasmodically, with frequent interruptions, due to his injuries, and his shock, he was totally disabled. A disability is permanent when it is of such a nature that it is reasonably certain it will continue throughout a person’s lifetime.’” (p. 455, footnote 7.)
In Maresh v. Peoria Life Ins. Co., 133 Kan. 191, 299 Pac. 934, an insured farmer brought an action against an insurance company under a policy providing for benefits in the event of total and permanent disability due to bodily injuries or disease which “must be such as to prevent the insured then and at all times thereafter from performing any work or conducting any business for compensation or profit.’” (p. 192.) The plaintiff was severely injured in a tractor accident at the age of twenty-six years. His common-school education ended with the first year in high school. After that he took a two and a half months’ course in business college. He had worked some for neighbors, had worked with a railroad construction company and had never made a living other than by manual labor. In the course of the opinion it was said:
“The subject of what plaintiff is and will be able to do was fully investigated at the trial. It was a fair inference that plaintiff’s capacity, so far as his doing work was concerned, was capacity to do manual labor. After he was injured he could do a little manual labor, under special conditions, for short times. There was no substantial evidence that he could perform work for compensation or profit in any department of labor or industry, as workmen are employed to perform work, and as workmen are remunerated for doing work. It was a fair inference that plaintiff’s capacity, so far as conducting business was concerned, was capacity to farm. After he was injured he could do a few things about the farm, under special conditions, and for short times. There was no substantial evidence that he could do what is involved in the conduct of farming operations, for profit to himself or to others, or for remunerative compensation.” (p. 196.)
Upon instructions described as proper the jury found the plaintiff totally disabled in his capacity as a farmer, and the judgment of the district court upon the verdict was affirmed on appeal. It was said under the provisions of the policy the evidence authorized the jury to say that, while this man could do a number of things, chiefly petty, he could not work or conduct business for compensation or profit, and would never be able to do so.
In the instant case the undisputed evidence is that the appellee is a one-armed grain farmer who operated a 640-acre grain and stock farm which is partially irrigated. All of the physicians whose reports are in evidence agree that the appellee cannot operate a tractor; that he cannot walk more than two blocks over smooth ground, or at all over rough ground; that he endures substantial pain by reason of his severe injuries, and that his condition is permanent and probably will get worse. Even Dr. Bowman states:
“The complaints which this man has are consistent with his findings on examination.”
The only alternative for the appellee to relieve the pain is an operation to “freeze the hip joint,” but this is not recommended even by Dr. Bowman because of the extensive arthritis in his spine which would be painfully aggravated if the hip joint were frozen. The following are excerpts from Dr. Bowman s report:
“The lateral view of the lumbar spine shows large spur formations on the 1st, 2nd, 3rd and 4th vertebra. . . .
“Review of the pelvis shows a severe deformity of the acetabulum on the right side with the medial wall of the acetabulum bulging medially and irregularly. There 'has also been a fracture extending from the roof of the acetabulum up towards tire wing of the ilium anteriorly. From this point of the fracture it is about one-half inch higher than on the opposite side, or perhaps slightly less. The protrusion of the 'head from the fracture of the acetabulum extends medially to the point that the medial portion of the greater trochanter is practically on a level with the acetabulum, and that the superior portion of the greater trochanter is only a half-inch, or slightly less, distal to the lateral border of the acetabulum. There is a considerable roughening of the head of the humerus. The fractures have healed.
“This man is not totally disabled. He has a farm of some 600 acres which at the present time he is leasing. He is 59 years of age and although he appears to be in excellent health there would of course be some things which he would not be able to do, in the way of hard manual labor. It is felt that this man could operate a grain farm. He would, of course, have difficulty with his tractor in view of the soreness about the hip, also the weakness which is manifested by some gluteal atrophy. He is able to walk several blocks. He no longer has any cows or hogs to take care of since these have been sold. He is completely able to get about the farm and manage his property.
“Mr. Wolf could also work at other occupations which would not require him to he on his feet for long periods of time.
“This man’s difficulty, of course, is permanent. It is to he expected that there might be some increase in the difficulty with the use of this hip over a period of time in view of the arthritic component but he might remain more or less as he is over a period of five to ten years. After that, he will undoubtedly be able to get about with the use of a cane which he does not use at the present time.
“Corrective surgery is not indicated and not advisable. If such surgery were performed he very likely could have a result not as good as he now has. In view of the fact that this man gets about as well as he does an arthrodesis, cup operations and prosthesis are not thought to be advisable. There is also the fact to consider that this man has a degenerative condition in his lower lumbar spine which would contraindicate an operation for arthrodesing this hip joint. By removal of motion in the hip joint he would be expected to be comfortable but on the other hand the presence of a degenerative arthritis in the lumbar spine might cause him more difficulty than he presently has.”
There is nothing whatever in the record to disclose whether the appellee could work at other occupations which would not require him to be on his feet for long periods of time.
Dr. Joyce said of the appellee’s farming ability:
“. . . realizing fully that a great deal of heavy labor is required in performing this type of work, it is felt that he cannot fulfill all of the activities required in farming. This would be due both to the disability in the back and in the hip which would eliminate heavy lifting, extensive stooping and bending activities. . . .”
Dr. Pusitz in his report summarized the appellee’s disability as follows:
“1. There is a complete and total disability from performing any and all kinds of laboring work, such as farming, or taking care of stock, or taking care of an irrigation system.
“2. In this age group, and with this disability, and with the background that the patient has had as a farmer, it would be a most difficult problem to have the department of vocational rehabilitation train him for any type of work which requires any standing, let alone stooping, bending, lifting and twisting. This brings a serious problem, because it would be the type of case turned down by the department of vocational rehabilitation to enable him to do any type of work.
“3. Even a supervisory position, which requires him to be on rough terrain is out of the question.”
On Dr. Bowman’s report the trial court concluded, after noting the reports of Dr. Hastings and Dr. Marsh which described the appellee as being totally disabled for farming, and pursuant to which payments had been made to the appellee by the appellants under the policies for over three years, that the appellants had “at least the obligation to have an examination by another orthopedic physician before determining a change in” the appellee’s status. He noted when the appellants did have the appellee examined by another doctor, Dr. Joyce, his inability to carry out farming operations was confirmed.
We think a study of Dr. Bowman’s report alone discloses the appellee to have been in such physical condition at the time of examination as to be, in fact, wholly and continuously disabled from farming operations within the meaning of the policies as that term is defined by our Kansas decisions. (Hodgson v. Mutual Benefit H. & A. Assn, supra; and Maresh v. Peoria Life Ins. Co., supra.) Actually, the specific findings on the appellee’s physical condition in the reports of Dr. Bowman, Dr. Joyce and Dr. Pusitz are not materially inconsistent. The only inconsistency is the ultimate conclusion drawn from such findings.
In this case, the fact that it was the appellee’s good fortune to own 640 acres of land and to have had years of experience in the operation of this partially irrigated grain and stock farm, which placed him in a position where he could, after selling his cows and hogs, by ingenuity and through the medium of tenant farmers keep the farm in operation and hobble about to collect the rent, is no criterion to determine whether the appellee is totally and continuously disabled within the meaning of the policies. An' insured need not be absolutely helpless before he is entitled to the benefits for total and continuous disability. It is only necessary that the disability render him unable to perform the substantial and material acts of his business or occupation in the usual and customary way. (Pearson v. Prudential Ins. Co., supra.)
Under these circumstances we think the trial court properly found the appellants’ refusal to pay in accordance with the terms of the policies was “without just cause or excuse.” (Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P. 2d 829.)
Was the statutory fee fixed by the trial court excessive and unreasonably high?
Following acceptance of the stipulated facts into evidence various qualified attorneys were called to testify as expert witnesses. Those testifying for the appellee, as to what a reasonable fee allowance would be for the appellee’s attorneys, gave amounts ranging from $6,500 to $10,000. Their opinions were based on the proposition that more had been accomplished than simply recovering $7,-513.88 in cash. They took into consideration all of the facts, including probable future benefits resulting from, the litigation. Those testifying for the appellants, on the other hand, gave amounts ranging from $1,500 to $1,800. They did not include benefits accruing to the appellee after the termination of the lawsuits, or consider probable future benefits resulting from the litigation.
The appellants argue that the only amounts directly involved in the suit were for benefits accrued to the time of settlement. They point out the issue involved was whether the appellee was partially or totally disabled, and a judgment rendered on that issue could not possibly be binding in regard to the appellee’s condition at a future time when the state of his health might improve or he might find employment to his liking. In any event, they argue, no judgment was rendered adjudicating the appellee to be totally disabled, and the settlement entered into in no way prevents the appellants from litigating the issue of the appellee’s total disability, whether his condition has changed or not.
In determining a reasonable fee allowance, under a statute giving authorization therefor, the amount involved must always be one of the controlling factors. (Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180.)
There is a conflict of authority over whether amounts not directly involved, but payable in the future, may be properly considered in determining a statutory fee. This jurisdiction has no precedent on the point. Some take the position that since there can be no recovery of installments not yet due, they should not be taken into consideration in measuring attorney fees. (Pennell v. United Ins. Co., [1951] 150 Tex. 541, 243 S. W. 2d 572, and authorities cited therein.) The other view is expressed in Pacific Mutual Life Ins. Co. v. Jordan, 190 Ark. 941, 82 S. W. 2d 250, where the court said:
“. • . Appellee recovered judgment for $1,550.40, which represented past-due installments, premiums erroneously paid and interest. The lawsuit also established Loial and permanent disability, which measures the future rights and liabilities of the parties under this contract or until conditions change. This may or may not aggregate a large sum of money, but at any rate it is a substantial right which should be considered by the court in fixing the attorney’s fees. See Pacific Mutual Life Ins. Co. v. McCombs, 188 Ark. 52, 64 S. W. (2d) 52; Old Colony Life Ins. Co. v. Julian, 175 Ark. 859, 299 S. W. 866. Moreover, testimony was heard by the trial court in reference to the services rendered and the sum of money considered reasonable for the services rendered, and the court’s award is fully sustained by this testimony. We are unwilling to disturb the trial court’s finding on the record made.” (pp. 947, 948.) (Emphasis added.)
Other cases applying a similar principle are American Nat. Ins. Co. v. Jones (Tex. Civ. App., 1935), 83 S. W. 2d 428; and Town of Bruce v. Dickey, 116 Ill. 527, 6 N. E. 435.
In Lumbermens Mutual Casualty Company v. Klotz (5th Cir.), 251 F. 2d 499, a Texas statute was involved containing a specific provision requiring the court to take into account “'all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy.’” (p. 507, footnote 13.) There it was said if the insurer prevailed it would have destroyed a contract having a potential value of many thousands of dollars, but the insured was successful in the action, and “this established a right to payment of substantial sums throughout the next ten years as long as Dr. Klotz remained totally disabled within the terms of the policy.” (p. 509.)
In the instant case the over-all effect of this litigation has been to establish the right of the insured to the payment of substantial sums of money throughout his lifetime, so long as he remains wholly and continuously disabled within the terms of the policy. This court is of the opinion, on the facts and circumstances presented by the record herein, that it was proper for the trial court to take into consideration probable future benefits to the appellee as a result of this litigation in fixing the attorneys’ fees.
This court has held that in making an allowance of a reasonable sum as an attorney fee in certain insurance cases, authorized by statute, the court in determining the amount thereof may consider labor, time and trouble involved, as well as the extent of services rendered and the nature and importance of the litigation. (Boberg v. Fitchburg Mutual Fire Ins. Co., 127 Kan. 787, 275 Pac. 211.)
The elements that properly enter into the determination of a reasonable attorney fee were quoted in Wollard v. Peterson, 145 Kan. 631, 66 P. 2d 375, as follows:
“ ‘The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered; the labor, time and trouble involved; the nature and importance of the litigation or business in which the services were rendered; the responsibility imposed; the amount of money or the value of the property affected by the controversy, or involved in the employment; the skill and experience called for in the performance. of the services; the professional character and standing of the attorney; the results secured; . . .’ (6 C. J. 750.) See, also, 5 Am. Jur. 379.)” (p. 636.)
The statute (40-256, supra) provides for the allowance of a reasonable sum as an attorney fee to be recovered and collected as a part of the costs. It does not contemplate an amount in the. nature of a speculative or contingent fee conditioned on winning the case, but only a reasonable fee for the appellee to pay his attorney for prosecuting the case, and the statute does not contemplate a fee for more than one attorney or firm of attorneys. (Southland Life Ins. Co. v. Norton, [Tex. Comm. App.] 5 S. W. 2d 767; Dumas v. King, [8th Cir.] 157 F. 2d 463; Business Men's Assur. Co. v. Campbell, [8th Cir.] 18 F. 2d 223; Metropolitan Life Ins. Co. v. Leach, 198 Ark. 531, 129 S. W. 2d 588; General Life Ins. Co. v. Potter, [Tex. Civ. App.] 124 S. W. 2d 409; and 6 Appleman, Insurance Law and Practice, § 4039, pp. 511, 512.) In 3 Appleman, Insurance Law and Practice, § 1646, pp. 241, 242, it is stated:
“It is essential, however, that such allowance be a reasonable one. It should never be based on a contingent contract, such as might exist between the claimant and his attorney, but would be a reasonable fee for the services actually performed. . . .”
The appellants contend the trial court’s determination of a reasonable fee allowance was influenced primarily by the contingency of compensation — that this factor was given an overriding effect in determining the fee. They rely on a preliminary statement of the trial court in its memorandum to counsel announcing its decision on the post-trial motions which states:
“. . . This letter is important because it shows that plaintiff’s counsel is handling the case on a 33% percent contingent basis which the Court considers of probative value in determining a reasonable fee in this case. . . .
At this point the trial court was discussing the appellants’ contention that it erred in admitting into evidence Exhibit “D,” which was the contract letter between Mr. Fisher and the appellee. Later in its memorandum the trial court indicated in determining the value of legal services that it relied upon the guides set forth in Epp v. Hinton, 102 Kan. 435, 170 Pac. 987, which it said were in substance the same factors recognized in Canon 12 of the Canons of Professional Ethics adopted by the American Bar Association. (164 Kan. xi, xiv.)
In Epp v. Hinton, supra, the court was confronted with an attorney’s statutory lien, and its obligation was to “determine the amount due on said attorney’s lien, if any.” (G. S. 1915, §485.) The evidence disclosed no agreement had been made as to the amount of the attorney fee, but there was agreement that no compensation was to be paid except on the contingency of the success of the litigation. Therefore, the court enumerated among the factors to be considered in making a reasonable fee allowance the contingency of the success achieved. Likewise, in general terms the Canons of Professional Ethics include the contingency or the certainty of compensation as one of the permissible factors to be considered by attorneys in determining the value of legal services.
The statute here in question (40-256, supra) has uniform operation and the same general considerations should govern in each case arising under it. The personal reasons why one insured may enter into a contingent fee contract should not lead a court into making an award of attorneys’ fees by taking such contract into consideration. It would be erroneous, therefore, for the trial court to consider the contingent fee contract for any reason other than to establish the employment of counsel and the purpose for which counsel were employed.
Offers of compromise settlement, made by one of the parties to an action, are not ordinarily admissible against him. (Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182; and Laidler v. Peterson, 150 Kan. 306, 92 P. 2d 18.) But here the negotiations were not conducted to settle the attorneys’ fee issue. The negotiations were conducted in an effort to settle the appellee’s claim under the policies. Under these circumstances the foregoing cases have no application. The evidence of negotiations was properly accepted by the trial court to show work and effort on the part of the appellee’s counsel in this litigation.
While the trial court should give due consideration to the opinions of the expert witnesses as to the value of legal services, it is not controlled by such evidence, as the trial court itself is an expert on this subject and may apply its own knowledge and professional experience in determining the value of the legal services rendered. (Epp v. Hinton, supra, Syl. ¶ 4.)
It has been said the reasonable value of attorney fees under legislative mandate rests largely in the discretion of the trial court, and such allowance will not be reversed on appellate review when supported by competent testimony. (Groff v. Automobile Owners Safety Ins. Co., 180 Kan. 518, 306 P. 2d 130.)
Even if it be assumed upon the record here presented that the trial court gave undue consideration to the contingency of compensation as a factor in determining a reasonable fee allowance, appellate courts, as trial courts, are themselves experts as to the reasonableness of attorneys’ fees, and may in the interest of justice fix the fees of counsel when in disagreement with the views of the trial court. (Lattner v. Federal Union Ins. Co., 160 Kan. 472, 480, 163 P. 2d 389; and Akins v. Illinois Bankers Life Assurance Co., supra.) Viewing the record here presented in such capacity, this court is of the opinion that a fee allowance to the appellee for the services of his attorneys in the sum of $7,500 is reasonable.
Finding no reversible error in the record presented, the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Luckert, J.:
This appeal requires us to determine the standard of review to be applied by a district court when considering an appeal from a determination of relocation benefits under the Kansas Relocation Assistance for Persons Displaced by Acquisition of Real Property Act, K.S.A. 58-3501 etseq. (Kansas Act). The district court rejected the displaced property owners’ argument that K.S.A. 58-3509(a), which provides an “appeal to the district court shall be a trial de novo,” entitled them to a new trial and determined the separation of powers doctrine required a limited scope of review that considered if the hearing examiner’s determination of benefits was supported by substantial competent evidence.
We conclude the district court erred in applying the narrow scope of review that is applicable if an agency makes a purely administrative decision. Here, the hearing examiner performed a judicial function which a court can review de novo. Nevertheless, in prior cases addressing similar statutory provisions which have allowed a trial de novo on appeal from an administrative decision, this court has held that the district court should make independent findings of fact and conclusions of law based on the record before the administrative agency. Applying this precedent, we reverse the district court’s decision and remand for application of this standard of review.
Facts and Procedural Background
The City of Salina undertook a public improvement project, generally referred to as the North Ohio Street Improvement Project (the Project), which involved the reconstruction of North Ohio Street, the construction of a bridge over the Union Pacific railway lines, and the redesign and reconstruction of appurtenant side roads. This Project required the City to acquire real property of Ben and Lavelle Frick, on which tire Fricks operated a large retail complex that housed numerous businesses. After unsuccessful negotiations for the purchase of the property, the City acquired the property through the power of eminent domain. Court-appointed appraisers awarded the Fricks just compensation for die property, after which the Fricks appealed. The appeal was later dismissed by mutual agreement of the parties.
Meanwhile, the City advised the Fricks of general eligibility requirements and procedures for obtaining relocation benefits for their displaced businesses. The City and the Kansas Department of Transportation (KDOT) had entered into an agreement which governed the Project and provided, in part, that the City and KDOT would share the costs, duties, and responsibilities associated with all aspects of the Project. The City agreed that “it will, in its own name, acquire by purchase, dedication or condemnation, the rights of way, easements and access rights” necessary to complete the Project. Although no federal funding was allocated to the Project, the City and KDOT mutally agreed that the Kansas Secretary of Transportation would provide relocation assistance for eligible persons as defined in the federal Uniform Relocation Assistance Act Amendments of 1987 (Federal Act), 42 U.S.C. § 4601 et seq. (2006), and in accordance with our state counterpart, the Kansas Act, K.S.A. 58-3501 et seq.
The Federal Act and its implementing federal regulations, which are designed to minimize the adverse impact of displacement, apply only in situations where the displacement is a direct result of programs or projects undertaken by a federal agency or with federal financial assistance. 42 U.S.C. § 4621(a)(1) (2006). The Kansas Act was established in order to comply with the F ederal Act. K.S.A. 58-3502 provides in part:
“Whenever any program or project is undertaken by the state of Kansas, any agency or political subdivision thereof, under which federal financial assistance will be available . . . and which program or project will result in the displace ment of any person by acquisition of real property . . . the state, agency, or political subdivision may:
“(1) Provide fair and reasonable relocation payments and assistance to or for displaced persons ....
“(4) pay or reimburse property owners for necessary expenses as specified in . . . the federal act.”
Attempting to meet these requirements in this case, the parties participated in extensive negotiations regarding relocation benefits. A team of relocation specialists examined the Fricks’ relocation process on behalf of the City to determine any benefits to which the Fricks were entitled. The Fricks’ requests for relocation benefits were eventually divided into two main categories — Category I consisted largely of move-out expenses and Category II consisted largely of reestablishment and reconnection expenses.
After working with the Fricks to obtain information on the relocation costs for their various businesses, the City paid the Fricks for the relocation of the personal property from the site, i.e., the Category I move-out expenses. The Fricks, dissatisfied with the amount of tire payment, appealed and requested an administrative hearing. As required by K.S.A. 58-3509, the City selected an independent hearing examiner to conduct a review of the City’s determination of eligible relocation benefits. After the hearing was conducted, the City paid the Category II benefits, the Fricks timely appealed that award, and a second hearing was conducted. Following each hearing, the administrative hearing examiner issued separate decisions that in large part upheld the awards made by the City.
The Fricks appealed both administrative decisions to the district court, and the cases were consolidated. From the start, the parties disagreed about the standard of review to be applied by the district court. The Fricks contended that because the plain language of K.S.A. 58-3509 states that an appeal to the district court “shall be a trial de novo” on the issue of relocation benefits, they were entitled to a trial anew on the merits of the issue. The City argued that the Kansas Act for Judicial Review and the Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., controls and, therefore, the district court’s review had to be limited to the- administrative record.
The district court issued an order on September 6,2006, finding that “under either statutory authority the scope of review remains essentially the same; i.e., the court should review the record before the hearing [examiner] to determine if the decision is lawful, supported by the evidence, and reasonable, [not] arbitrary and capricious.” The court ruled, however, that the Fricks would be permitted to present additional evidence relevant to the issue of “fair and reasonable relocation payments and assistance” as provided by K.S.A. 58-3502(1). The district court further determined that the KJRA does not apply to this case because the condemning agency and appointing authority is the City of Salina, and cities, by definition, as a political subdivision of tire state, are not included in the coverage of the KRJA. Nevertheless, relying on Kansas case precedent, the district court held that because the Fricks sought review of an administrative action, the court’s scope of review was limited in light of Rydd v. State Board of Health, 202 Kan. 721, Syl. ¶ 4, 451 P.2d 239 (1969). In Rydd, this court held that the separation of powers doctrine prohibits the legislature from imposing upon the judiciary “the function of a trial de novo of actions of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.” 202 Kan. at 729. The district court, therefore, interpreted the term “trial de novo” in K.S.A. 58-3509 to mean a limited review of the administrative record.
Before trial, the Fricks filed their witness and exhibit lists which identified 24 witnesses and numerous exhibits. They also served 37 interrogatories and a broad request for the production of 27 documents. The City responded by filing a motion asking the district court to clarify its September 6, 2006, order. After conducting a hearing at which the parties argued their positions regarding the scope of review and the scope of discovery, the district court granted the City’s motion to clarify and modified its previous order.
The district judge acknowledged that in the September 2006 order, “I was trying to have it both ways, make everybody happy, and very often you can’t do that. ... It was not strictly administrative review, because the Court did allow for such other evidence as might be necessary to hear. ... I think I was wrong on that.” On June 19,2007, the court entered its modified order which prohibited the Fricks from supplementing the agency record with “additional evidence relevant to the issue of fair and reasonable relocation benefits and assistance as provided by K.S.A. 58-3502(1).”
Subsequently, the district court reviewed the transcripts and exhibits of die administrative hearings and concluded that the hearing examiner’s findings and conclusions in both written decisions were supported by substantial evidence and the law, including the federal regulations applicable to relocation benefits for displaced businesses. Consequendy, the district court affirmed both decisions of the hearing examiner, denied additional relocation benefits to the Fricks, and incorporated by reference the examiner’s decisions into the court’s order.
The Fricks appealed and filed a motion to transfer their appeal to this court; the motion was granted.
Analysis
Before us the Fricks contend that when they appealed the administrative hearing examiner’s decisions regarding relocation benefits, they were entitled to receive a new trial on the merits, with the opportunity to conduct discovery, call new witnesses, and introduce evidence not included in the administrative record. They assert that the district court erred in refusing their requests and Mmiting the scope of its review.
A. Standard of Review
Determination of the issue of what standard of review should be applied by a district court in an appeal from an administrative hearing examiner’s decision regarding relocation benefits requires interpretation of the Kansas Act. Interpretation of statutes presents a question of law over which appellate courts exercise unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008); LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007).
When a court is called upon to interpret a statute, the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language it enacted. In re Adoption of G.L.V., 286 Kan. 1034, 1040-41, 190 P.3d 245 (2008). For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). If the face of a statute leaves its construction uncertain, however, a court attempting to discern legislative intent may employ rules of statutory construction and look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished, and the effects the statute may have under the various constructions suggested. In re Adoption of G.L.V., 286 Kan. at 1041; State ex rel. Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768-69, 69 P.3d 1087 (2003).
These rules must be applied to the statutes governing the procedures for determining relocation benefits in order to determine the legislature’s intent regarding the standard of review applicable to appeals of an administrative hearing examiner’s decision.
B. The Kansas Act
Under the Kansas Act, the condemning authority must determine the fair and reasonable relocation benefits that conform to guidelines in the Federal Act and provide notice of the benefits to the displaced person. K.S.A. 58-3508. Within 60 days of receiving notice of the determination of such benefits, any displaced person entitled to relocation benefits may appeal to the “state, agency or political subdivision.” K.S.A. 58-3509. The state, agency, or political subdivision must appoint an “independent hearing examiner” to render a decision on the appeal. K.S.A. 58-3509.
The statutes do not outline the procedure to be applied in the hearing, but administrative regulations fill the gap. See K.A.R. 36-16-1 et seq. Under the regulations, the hearing examiner must provide at least 10 days’ notice of a hearing. K.A.R. 36-16-6. The reg ulations also require that a record be made of the hearing, which is to be “conducted in such a manner as to give the appellant an opportunity to be heard upon relevant issues.” K.A.R. 36-16-7. The regulations, speaking in terms of KDOT’s rights, allow attorney representation, examination of witnesses, and the introduction of documentary evidence. Following the hearing, the hearing examiner is required to prepare a report, make findings and recommendations, and prepare a proposed order containing the findings of fact and conclusions of law for the approval of the Secretary of KDOT or the Secretary’s designee. K.A.R. 36-16-7.
As a final due process step, any displaced person may file an appeal in district court within 30 days of the written order. “Any such appeal to the district court shall be a trial de novo only on the issue of relocation benefits.” K.S.A. 58-3509(a).
These requirements also apply to all acquisitions of real property by a county, township, or city if federal or KDOT funds are used to acquire property for a highway, road, or street. See K.S.A. 58-3502; K.S.A. 58-3503; K.S.A. 58-3506; K.A.R. 36-16-21. K.A.R. 36-16-21(b) specifies that KDOT will administer the relocation funds “except as otherwise agreed between the department and the governmental entity involved.”
These procedures provide a displaced person the due process typically associated with a trial, including a record. See Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 776, 133 P.3d 104 (2006); Windholz v. Willis, 1 Kan. App. 2d 683, 685, 573 P.2d 1100 (1977); cf. K.S.A. 20-302b(c) (making necessary distinction between “civil cases where a record was made of the action or proceeding before the district magistrate judge, [in which] the appeal shall be tried and determined on the record by a district judge,” and appeals without a record which must have new trial). Had this process not be guaranteed, the nature of appellate review would change or even be impossible.
C. Appeal by Trial De Novo
Even though the Fricks had the opportunity to present evidence to the hearing examiner and a review of the administrative record was possible on appeal, they argue that K.S.A. 58-3509(a) entitles displaced properly owners to a new trial with additional witnesses and evidence. In making this argument, the Fricks focus on the phrase “trial de novo” and point to the definition of a “hearing” de novo, which is “[a] reviewing court’s decision of a matter anew, giving no deference to a lower court’s findings. A new hearing . . . [is] conducted as if the original hearing had not taken place.” Black’s Law Dictionary 725 (7th ed. 1999). In response, the City focuses on the word “appeal” and argues that a broad interpretation of tire de novo language conflicts with (1) provisions of the KJRA, (2) the Kansas Legislature’s intent to follow the Federal Act and its implementing regulations, (3) the separation of powers doctrine, and (4) this court’s strict construction of de novo administrative appeal statutes. Hence, we must consider whether any of these provisions or doctrines applies and, if so, how it influences our interpretation of the phrase in K.S.A. 58-3509(a) that states tire “appeal . . . shall be a trial de novo.”
1. KJRA
In the district court, the City argued that the KJRA controlled and limited the court’s standard of review. Although the district court agreed that its review of an administrative action should be limited, it found that the KJRA was not applicable under the definitions of K.S.A. 77-602(a) and K.S.A. 77-602(k) because the City of Salina was involved in the current action.
K.S.A. 77-602(a) provides that under the KJRA, the term “agency” means “a state agency.” K.S.A. 77-602(k) provides the definition of “state agency”:
“ ‘State agency means any officer, department, bureau, division, board, authority, agency, commission or institution of this state which is authorized by law to administer, enforce or interpret any law of this state but does not include any political or taxing subdivision of the state, or any agency thereof, or the judicial or legislative branch of state government.” (Emphasis added.)
This court has reiterated what is contained in this plain statutory language — the KJRA does not apply to the actions of cities, counties, or other political subdivisions of the state. See, e.g., Kaplan v. Board of Johnson County Comm’rs, 269 Kan. 122, 125, 3 P.3d 1270 (2000); Landau v. City Council of Overland Park, 244 Kan. 257, 273, 767 P.2d 1290 (1989); Coffman, Procedures Under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., 76 J.K.B.A. 21 (Feb. 2007).
Regardless, the City contends that the KJRA should apply to this case because the displacement of the Fricks’ businesses resulted from a joint improvement project between the City and KDOT, a state agency. KDOT is a “department” of the State of Kansas under K.S.A. 2008 Supp. 75-5001, which also makes it a state agency under the K.S.A. 77-602(k) definition. The City argues that the KJRA would otherwise apply to KDOT and it should also apply to the City, which as the principal on the improvement project, decided to “step into the shoes” of KDOT and administer relocation benefits.
What cannot be ignored, however, is that under the agreement between the City and KDOT, the City was the principal in the Project and all property rights were to be acquired in the City’s name. In compliance with this agreement, the City, not KDOT, was the condemning authority that actually acquired the Fricks’ property. Thus, it was the City’s action that caused the relocation expenses to be incurred, giving rise to the right to benefits, and in clear terms, the KJRA does not apply to city actions. The district court correctly concluded that the KJRA does not apply in this case.
2. Federal Act
Even if the KJRA does not apply, the City contends that a limited review should apply to the district court’s consideration of the administrative hearing examiner’s decisions regarding relocation benefits because of the Kansas Legislature’s intent to follow the Federal Act, 42 U.S.C. § 4601 et seq. While the Federal Act itself does not apply in this case because federal funding was not utilized, the parties agree that the Kansas Legislature enacted the Kansas Act, K.S.A. 58-3501 et seq., for the purpose of implementing the Federal Act by requiring Kansas agencies and departments to comply with its provisions when providing relocation payments and assistance. See K.S.A. 58-3501.
The City takes this concept another step and argues that although the Kansas Act does not specifically direct courts to do so, the “consistent, harmonious and sensible conclusion” is that the legislature intended to apply the principles of administrative review that have been applied under the Federal Act. According to the federal courts, a denial of relocation benefits under the Federal Act is an administrative agency action that may be judicially reviewed under the federal Administrative Procedure Act (APA), 5 U.S.C. § 702 et seq. (2006). See Starke v. Secretary, U.S. Dept. of Housing, 454 F. Supp. 477, 480 (W.D. Okla. 1976).
Under the APA, “ ‘de novo review is appropriate only where there are inadequate fact finding procedures in an adjudicatoiy proceeding, or where judicial proceedings are brought to enforce certain administrative actions.’ [Citation omitted.]” Kroger Co. v. Regional Airport Auth. of Louisville, 286 F.3d 382, 387 (6th Cir. 2002); see also K.S.A. 77-619 (Under KJRA a court may “receive evidence, in addition to that contained in the agency record for judicial review, only if it relates to the validity of the agency action at the time it was taken and is needed to decide disputed issues regarding: [1] Improper constitution as a decision-making body; or improper motive or grounds for disqualification, of those taking the agency action; or [2] unlawfulness of procedure or of decision-making process'”).
Usually, under the APA “ ‘[t]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court.’ ” Kroger Co., 286 F.3d at 387 (quoting Camp v. Pitts, 411 U.S. 138, 142, 36 L. Ed. 2d 106, 93 S. Ct. 1241 [1973]). The APA, like the KJRA, provides that a court will review an agency’s findings of fact under a substantial competent evidence standard. Compare 5 U.S.C. § 706(2)(E) (2006) with K.S.A. 77-621(c)(7). In this case, the district court applied this standard, although through operation of the separation of powers rather than the KJRA. Nevertheless, the district court noted that the end result was the same — i.e., under either chain of analysis the substantial competent evidence became tire standard of review.
The City suggests this commonality and the intent to implement the Federal Act require use of the substantial competent evidence standard and a recognition that de novo review is available only in the limited circumstances allowed under the APA. However, this argument is contrary to the plain language of K.S.A. 58-3509(a), which provides for a standard of review and states that standard as a “trial de novo.” In contrast, the Federal Act does not mention a right to appeal, an omission which initially caused some uncertainty and gave rise to arguments that the Federal Act committed the determination of relocation benefits to the agency’s discretion and the decision was not subject to judicial review. See, e.g., Starke, 454 F. Supp. 477. Federal courts have generally rejected this argument and concluded the APA applies. E.g., Kroger Co., 286 F.3d at 387; Starke, 454 F. Supp. at 480; see 5 U.S.C. § 702 (2006) (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”).
The same framework could have been established in Kansas, at least when KDOT was the agency providing benefits. Had the Kansas Legislature followed Congress’ lead, it could have said nothing about judicial review or about allowing an appeal to district court. Under that scenario, the standard of review specified in the KJRA would have applied to any determinations made by KDOT because by its express terms the KJRA “applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions.” K.S.A. 77-603(a). Furthermore, the legislature could have extended the substantial competent evidence scope of review to all projects covered by the Kansas Act, even if the displacement resulted from an action by a political subdivision of the state, by simply restating the standard found in K.S.A. 77-621(c)(7) and 5 U.S.C. § 706(2)(E) or incorporating one of those provisions. Yet, the Kansas Legislature adopted K.S.A. 58-3509(a), specifically allowing for an appeal rather than judicial review and stating that “[a]ny such appeal to district court shall be a trial de novo only on the issue of relocation benefits” rather than adopting the standard of review in the APA or KJRA.
Ry adopting this process, the Kansas Legislature clearly deviated from the Federal Act. Thus, even though there is clear expression of intent by the Kansas Legislature to implement the federal scheme for relocation benefits, there is an equally clear adoption of a different standard of review for an appeal of the decision allowing relocation benefits.
3. Separation of Powers Doctrine
Next, the City argues true de novo review via a new trial is constrained by the separation of powers doctrine. Under this doctrine, even if a statute provides for de novo review, this court “has almost universally applied this doctrine of separation of powers to various appeal statutes providing for appeals from purely administrative tribunals, ruling that the court may not substitute its judgment on questions of fact for that of an administrative tribunal.” (Emphasis added.) Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 174, 476 P.2d 966 (1970).
In such a circumstance — i.e., where tire review is of a purely administrative action — the doctrine of separation of powers restricts a reviewing court to a limited form of judicial review, even if a statute provides for de novo review. This narrow standard of review protects against a court’s intrusion into an agency’s legislative or executive powers. Under this limited review:
“ ‘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 tire scope of its authority.’ ” Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, 553, 539 P.2d 1 (1975) (quoting Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 [1968]).
The district court applied this limited standard of review.
The Fricks do not disagree that the district court could properly review whether the tribunal acted fraudulently, arbitrarily, or capriciously and some of their allegations regarding bias toward the City could arguably fall withing this standard. Nor do they argue that die district court could not determine if the tribunal acted within the scope of its authority. Rather, the focus of their argument is on the second prong — whether the administrative order is substantially supported by evidence. The Fricks argue that this standard does not apply if the subject of the de novo review is a judicial function of the agency, and the Fricks contend the City was performing a purely judicial function and that a trial anew should be allowed. For support, they advance Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975), where this court recognized that the legislature had the authority to impose a requirement on the district court to hear appeals from the Kansas Commission on Civil Rights (KCCR) by trial de novo. See K.S.A. 44-1011(b) (calling for a “trial de novo with or without a jury”). The district court in Stephens granted the parties unlimited discovery rights, “announced its intention to conduct a trial de novo, and directed the parties to file and exchange lists of witnesses.” 218 Kan. at 223. Neither party offered any new evidence, however, and the matter was ultimately submitted to the district court on the record from the hearing before the KCCR.
On appeal to this court, the school district alleged “the trial court erroneously conducted a trial de novo, making its own findings of fact, drawing its own inferences from the record, and substituting its judgment for that of the administrative agency.” 218 Kan. at 224. In finding that a review of the KCCR record could constitute a trial de novo under K.S.A. 44-1011, the Stephens court concluded that “when the legislature called for a trial de novo (‘with or without a jury in accordance with the provisions of K.S.A. 60-238’) it meant a trial where the issues of both fact and law would be determined anew.” 218 Kan. at 232.
The Stephens court next examined whether the legislature could constitutionally impose de novo review on courts. Recognizing there have been numerous cases in which it was held courts cannot apply the de novo review standard to administrative decisions, the Stephens court distinguished those cases, stating that in each of them “the function of the agency being reviewed was one which has traditionally been regarded, or was determined to be, either legislative, executive, or a blend of the two — in other words, a purely ‘administrative’ function.” 218 Kan. at 232; see, e.g., Neely v. Board of Trustees, Policemens & Firemen’s Retirement System, 205 Kan. 780, 473 P.2d 72 (1970) (board administering funds established for benefit of public employees and their dependents); Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239 (1969) (licensing of child care home); Foote, 200 Kan. 447 (licensing of healing arts practitioner). Likewise, other cases have acknowledged the same principle through an applicable statute or the constitutional separation of powers doctrine. Stephens, 218 Kan. at 233; see, e.g., Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P.2d 147 (1971) (tax assessment and valuation); Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 479 P.2d 860 (1971) (disability benefits); Goetz v. Board of Trustees, 203 Kan. 340, 454 P.2d 481 (1969) (pension benefits); Bodine v. City of Overland Park, 198 Kan. 371, 424 P.2d 513 (1967) (zoning); Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P.2d 515 (1963) (utility rate fixing).
In contrast, where an administrative agency performs a purely judicial function, the separation of powers doctrine does not prevent a court from conducting a de novo review. Stephens, 218 Kan. at 236. Consequently, in order to decide which standard of review applied, the court had to determine whether the KCCR had conducted an administrative or judicial function. The Stephens court turned to Gawith, 206 Kan. 169, for guidance regarding a test to be utilized in determining if the agency had performed a judicial function.
In Gawith, this court discussed several tests. One test is “whether the court could have been charged in the first instance with the responsibility of making the decisions the administrative agency must make.” 206 Kan. at 178. Another test is “whether the function performed by the administrative agency is one that courts historically have been accustomed to performing and had performed before the creation of the administrative body. [Citations omitted.]” 206 Kan. at 178. The court then identified the “classic test,” stating:
“ ‘A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.’ ” 206 Kan. at 178 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 53 L. Ed. 150, 29 S. Ct. 67 [1908]).
Applying these tests, the Gawith court concluded that the director of workers compensation performs an essentially judicial function which the district court has jurisdiction and power to modify “as justice may require.” 206 Kan. at 171. Therefore, it was held that K.S.A. 1967 Supp. 44-556, which authorized the district court to hear an appeal “de novo upon the record made,” did not unconstitutionally delegate legislative or administrative functions to the judiciary, and the separation of powers doctrine was not violated. 206 Kan. 169, Syl. ¶ 6.
Based on this discussion of Gawith, the Stephens court determined that the KCCR’s inquiry into the school district’s alleged violation of the Kansas Act Against Discrimination was of the type that courts had traditionally made and was essentially judicial. It involved the receiving and weighing of evidence, the finding of facts, and the application of existing law to those facts to determine whether specific conduct of the defendant was unlawful. The court held, consequently, that K.S.A. 44-1011(b) requiring a trial de novo did not violate the separation of powers doctrine and was to be applied as written. 218 Kan. at 236.
The Fricks make a persuasive argument that the same conclusions apply here. The determination of relocation benefits is essentially an evaluation of the damages incurred as a consequence of a property owner being displaced; in making the damages determination, the administrative hearing examiner receives and weighs evidence and is charged with making findings of facts and conclusions of law. These are functions that could have been given to a court and are functions that courts historically have performed. Moreover, applying the classic test, a hearing examiner investigates, declares, and enforces liabilities arising on present or past facts and under already existing laws. 218 Kan. at 233-35; see Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 763, 758 P.2d 226, rev. denied 243 Kan. 777 (1988). Thus, each of the tests is satisfied, leading us to conclude that an administrative hearing examiner who determines relocation benefits under the Kansas Act performs a judicial function.
4. Strict Construction of De Novo Administrative Review Statutes
This does not necessarily mean the Fricks can present new evidence, however, because, even when an administrative agency has performed a judicial function, this court has held that statutes providing for de novo review on appeal from an administrative action must be construed strictly. E.g., Nurge v. University of Kansas Med. Center, 234 Kan. 309, 316, 674 P.2d 459 (1983). In fact, although de novo actions have been recognized when the prior proceeding is a nonagency action (see, e.g., Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811, 207 P.3d 1055 (2009), tire Court of Appeals in addressing appeals from administrative agency decisions, has stated: “[T]he Supreme Court has not interpreted any statute to allow true de novo review in the sense of a new trial on facts and issues as though they had never been tried.” Angle, 12 Kan. App. 2d at 765.
These cases recognize that when a statute provides for trial de novo on appeal there is an ambiguity because, in natural and ordinary usage, an appeal does not signify a new, original action; it signifies a review of an existing decision. In light of this ambiguity and because de novo review statutes relating to administrative actions are construed strictly, unless there is an explicit legislative direction otherwise, generally a provision for de novo review does not alter the appellate nature of the district court’s authority on appeal, but rather it specifies the procedure to be employed. Nurge, 234 Kan. at 316; Wurtz v. Cedar Ridge Apts., 28 Kan. App. 2d 609, 614, 18 P.3d 299 (2001); see also United States v. First City Nat. Rank, 386 U.S. 361, 368, 18 L. Ed. 2d 151, 87 S. Ct. 1088 (1967) (“It is argued that the use of the word ‘review’ rather than ‘trial’ indicates a more limited scope to judicial action. The words ‘review’ and ‘trial’ might conceivably be used interchangeably. The critical words seem to us to be ‘de novo’ and ‘issues presented.’ They mean to us that the court should make an independent determination of the issues.”); 3 Koch, Admin. L. & Prac. § 10.2, pp. 21-22 (2d ed. 1997) (“As a practical matter, the term de novo review does not demand a judicial retrial or even extensive judicial record making. Rather tire agency record remains the focal point of the conflict as it does in true review.”).
Many of the cases following this strict construction rule were discussed in Nurge, in which this court further clarified the Stephens decision and considered the ambiguity of having an appeal be determined by a trial de novo. The Nurge court held in part that the trial court’s statutory power under K.S.A. 44-1011 to hear “additional evidence on any issue” did not include the power to disregard, in whole or in part, the KCCR record by requiring all witnesses to retestify live before the court. Instead, the court held it is the duty of the district court in an appeal under K.S.A. 44-1011 to conduct an independent and thorough examination of the record and make independent findings of fact and conclusions of law based on the record. 234 Kan. 309, Syl. ¶ 6.
In arriving at this holding, the Nurge court examined various Kansas cases in which the meaning of trial de novo had been discussed in the context of K.S.A. 44-1011. One case was Woods v. Midwest Conveyor Co., 231 Kan. 763, 775, 648 P.2d 234 (1982), where this court stated: “It seems apparent from the statutes that neither the proceedings before the KCCR nor the appeal proceedings before the district court contemplate a truly evidentiary jury trial. Review proceedings on the record supplemented with additional evidence would not appear to be an evidentiary jury trial under constitutional guidelines.”
The Nurge court also examined Flanigan v. City of Leavenworth, 232 Kan. 522, 657 P.2d 555 (1983), where the issue was the dismissal of an appeal from the KCCR based upon the statute of limitations and because of delay in bringing the matter to trial in the district court. The Flanigan court stated:
“Although the matter is, in theory, tried ‘anew/ the specter of the first trial looms in the background. Indeed, even though the statute labels the appeal a ‘trial de novo’ the proceedings are still in the nature of a ‘judicial review’ of the KCCR order. K.S.A. 44-1011. And, as the court stated in Stephens, the ‘trial de novo’ is ‘limited to those issues fairly raised in an application for rehearing before the commission.’ ” 232 Kan. at 528.
The Flanigan court also recognized that a de novo proceeding under K.S.A. 44-1011 “has elements of both an original action and an appeal” and that one of the elements of a valid de novo review, as previously identified in Stephens, is an independent examination of the record. Flanigan, 232 Kan. at 529; see Nurge, 234 Kan. at 315.
After examining these previous cases, the Nurge court concluded that the essence of an appeal under K.S.A. 44-1011 is a review of the KCCR proceedings, “a review in which an independent but thorough examination of the KCCR record is of primary importance.” 234 Kan. at 315-16. The court noted that tire idea that a reviewing court is materially bound to the record of a lower tribunal is fully supported by other decisions outside the field of civil rights. Moreover, the Nurge court noted that the general character of appellate procedure requires a court of error and review, with the power to affirm, reverse, or modify the judgment appealed from, “must decide the questions presented as they arise upon the record.” 234 Kan. at 316. “[A] full trial de novo would be an anomaly,” stated Nurge, “and can take place only by virtue of express authority.” 234 Kan. at 316.
The Nurge court then cited case law from Utah and observed that in the case of D. & R.G.W.R. Co., et al., v. Public Service Commission, et al., 98 Utah 431, 100 P.2d 552 (1940), the question concerned a statute authorizing plenary review and instructing the courts to proceed as a trial de novo. This court found the following excerpt from the Utah case particularly enlightening:
“ ‘To review an action is to study or examine it again. Thus, “trial de novo” as used here must have a meaning consistent with the continued existence of that which is to be again examined or studied. If, in these cases, the first meaning were applied to the use of the term “trial de novo” [(1) a complete retrial upon new evidence] then one could not consistently speak of it as a review, as the Commission’s action would no longer exist to be re-examined or re-studied. There would be no reason for malting the Commission a defendant to defend something that had been automatically wiped out by instituting the district court action.’ ” Nurge, 234 Kan. at 317 (quoting D. & G.W.R Co., 98 Utah at 437-38).
The Utah court concluded that use of the term “trial de novo” by the legislature was meant only to increase the scope of the court’s review of the agency’s record to include questions of fact as well as questions of law. 98 Utah at 438.
With these thoughts in mind, the Nurge court found that the appellate nature of a de novo action under K.S.A. 44-1011 is clearly predominant, as shown by the legislature’s retention of numerous statutory references to appeal and review even after the addition of the term “trial de novo” in 1965. 234 Kan. at 317. Therefore, the Nurge court held, the change intended to be made by the de novo phrase “was a widened scope of review, including issues of both law and fact to be determined anew, rather than any sweeping changes in the fundamental nature of the proceeding itself. [Citation omitted.]” 234 Kan. at 317.
After the decision in Nurge, this court has applied the holding and reaffirmed that the term “de novo trial,” when used in the context of an appeal from an administrative decision, does not mean new evidence can be introduced unless explicitly stated in the statute. For example, in Reeves v. Equipment Service Industries., Inc., 245 Kan. 165, 777 P.2d 765 (1989), the court reiterated the Gawith holding that the director of workers compensation performs a judicial function and stated:
“In spite of the term ‘trial de novo,’ this court has clearly and consistently held that the district court is bound by the record made in the administrative proceeding and cannot accept additional evidence. Casebeer v. Casebeer, 199 Kan. 806, 815, 433 P.2d 399 (1967). Although bound by the administrative record, the district court has the jurisdiction and duty to malee an independent adjudication of the facts and the law. Reichuber v. Cook Well Servicing, 220 Kan. 93, 95, 551 P.2d 810 (1976). The consistent holding that the record on review is that developed by the administrative agency while the scope of review allows a complete review of the record to make an independent adjudication on the facts and law malees use of the term ‘trial de novo’ unfortunate but harmless. A trial de novo on the record is a more accurate description.” 245 Kan. at 171.
Nevertheless, this court has recognized that there can be a departure from the Nurge standard of review — i.e., where a court makes independent findings of fact and conclusions of law based on the administrative record — if a statute clearly expresses a legislative intent to allow new evidence. See, e.g., K.S.A. 2008 Supp. 8-259(a) (A driver’s license suspension appeal “shall be by trial de novo to the court. The court shall take testimony and examine the facts.”). Even then, the review has been limited to the issues raised before the administrative agency. Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 774, 148 P.3d 538 (2006); Angle, 12 Kan. App. 2d at 764-65.
An example of a clear expression of a legislative intent to allow additional evidence on appeal is found in a statute relied upon by the Fricks — K.S.A. 2008 Supp. 26-508(a), which provides for a trial de novo on appeal from an appraisers’ award under the Eminent Domain Procedure Act, K.S.A. 26-501 et seq. This statute has been interpreted as allowing a new trial in the district court. The Fricks suggest that the trial de novo provision of K.S.A. 58-3509 should be interpreted in a manner consistent with the appeal provision of an eminent domain proceeding. They reason that both rights — the right to receive fair market value and the right to receive relocation benefits — stem from the same governmental action and, therefore, the same standard of review should apply. The Fricks do not acknowledge several distinctions, however.
First, the eminent domain proceeding before the appraisers is a judicial proceeding as evidenced by several provisions: (a) The proceeding is initiated by filing a petition in district court (K.S.A. 2008 Supp. 26-501); (b) condemnation cannot proceed until the district court makes findings, specifically finding that the condemning authority has the power of eminent domain and that the taking is necessary to fulfill a lawful corporate purpose of the condemning authority (K.S.A. 2008 Supp. 26-501); and (c) if these determinations are made, the court appoints three appraisers (K.S.A. 2008 Supp. 26-504), and instructs them, among other things, that “they are officers of the court and not representatives of the plaintiff or any other party.” (Emphasis added.) (K.S.A. 2008 Supp. 26-505[1].)
Second, the eminent domain procedures do not require that a record be made of the appraisers’ hearing, see K.S.A. 2008 Supp. 26-506; thus an appeal based on a review of the record is impossible.
Third, in contrast to the applicable statute in our case, K.S.A. 2008 Supp. 26-508(a) further provides: “The appeal shall be docketed as a new civil action, the docket fee of a new court action shall be collected and the appeal shall be tried as any other civil action.” (Emphasis added.) See Miller v. Glacier Development Co., 284 Kan. 476, 499-500, 161 P.3d 730 (2007) (discussing 26-508 in context of civil trial); see also Rural Water District No. 2 v. City of Louisburg, 288 Kan. 811 (allowing de novo trial under K.S.A. 12-527 after appraisers’ award where legislature allowed dissatisfied party to “institute an action”). We do not have this similar language in the statute at hand.
Further, if we were comparing two statutes allowing for appeals from an administrative proceeding — one worded like the eminent domain procedure stating the appeal shall be a new action and tried like any civil case and the other worded like K.S.A. 58-3509(a) stating that the appeal shall be by trial de novo — an interpretation that the former statute allows a new trial while the latter does not would be consistent with prior decisions that recognize that additional evidence can be admitted on appeal if the legislature explicitly allows. Nevertheless, under the holdings of these cases, if there is not an explicit indication that additional evidence should be allowed on appeal, the district court’s review is to be based on the administrative record and the court is to make independent findings of fact and conclusions of law.
These rules, which were fully discussed in the 1983 decision in Nurge, have been applied consistently for decades prior to the 2004 enactment of K.S.A. 58-3509. See L. 2004, ch. 110, sec. 9. Thus, these principles were well-established law in Kansas when the K.S.A. 58-3509 right of appeal was considered by the legislature, and courts presume the legislature acts with knowledge of existing statutory and case law when it enacts legislation. State ex rel. Board of Healing Arts v. Beyrle, 269 Kan. 616, 629, 7 P.3d 1194 (2000). Consequently, when the legislature chose to make repeated references to the terms “appeal” and “notice of appeal” and to use the phrase “trial de novo” in the K.S.A. 58-3509, as it had in tire statute construed in Nurge (K.S.A. 44-1011) and other similar statutes, we presume the legislature intended the scope of review to be as applied in Nurge and similar cases, as previously discussed. Because of this presumption, the precedential value of Nurge and similar cases cannot be set aside even though we recognize the sound points made in the concurring opinion. Consequently, we apply the Nurge holding to K.S.A. 58-3509(a).
This means that the district court was correct to impose limitations to its review rather than grant an entirely new procedure as requested by the Fricks, but the court was in error in applying the substantial competent evidence standard. Rather, in considering the appeal under K.S.A. 58-3509(a), the district court should have made independent findings of fact and conclusions of law regarding the question of relocation benefits based upon the record of proceedings before the administrative hearing examiner. This case must be remanded for a consideration of the record in light of the correct standard of review.
Because we reach this conclusion we need not discuss the Frick’s alternative argument that the district court erred in affirming the relocation benefits determinations of the City and the hearing examiner.
Reversed and remanded with directions.
McFarland, C.J., and Nuss, J., not participating.
Larson, S.J., and Hill, J., assigned.
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The opinion of the court was delivered by
Luckert, J.:
Harry O. White was sentenced to life imprisonment under the provisions of K.S.A. 2006 Supp. 21-4643, commonly known, as Jessica’s Law, after he entered a plea of no contest to one count of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21-3504(a)(3). On appeal, White contends the district court erred in denying his motion to withdraw the plea. White’s motion was based on a claim of ineffective assistance of counsel; he complained that his counsel failed to advise him of the maximum penalty he could receive, failed to explain that there was no “bargain benefit” from the plea agreement, and failed to negotiate a favorable plea agreement. The district court rejected the claim, finding that the written plea agreement and statements made during the plea hearing clearly advised White of the possible penalty and consequences of the plea and that counsel had obtained a favorable plea agreement.
On our review of the record, we conclude that the factual findings regarding whether White was advised of the possible penalty are not supported by substantial competent evidence. We, therefore, reverse the decision to deny the motion and remand for a hearing on the motion.
Factual and Procedural Background
White, who was 69 at the time he was charged, was alleged to have sexually victimized three young girls repeatedly over a span of several years. Some of his alleged criminal acts were committed before the effective date of Jessica’s Law, which increased the severity level for indecent liberties with a child under 14 to an off-grid crime and increased the penalty to a life sentence. Other counts related to acts alleged to have occurred after the effective date of Jessica’s Law. As a result, White was originally charged with four counts of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 21-3504(a)(3)(A) (Furse 1995), a level 3 person felony, occurring before the effective date of Jessica’s Law; three counts of aggravated indecent liberties with a child under the age of 14 in violation of K.S.A. 2006 Supp. 21-3504(a)(3)(A), an off-grid felony, occurring after the effective date; and one count of aggravated indecent solicitation of a child in violation of K.S.A. 2006 Supp. 21-3511(a), a severity level 5 person felony.
Pursuant to the written plea agreement, White agreed to plead no contest to one count of aggravated indecent liberties with a child under the age of 14, an off-grid felony. In exchange, the State agreed to dismiss the remaining seven felony charges. The written plea agreement listed the various rights White was waiving and the consequences of the plea. With regard to the potential sentence, the agreement stated: “My lawyer has informed me that the plea of ‘Guilty’ or ‘No Contest’ could subject me to a maximum punishment, which as provided by law is not less than 25 years.” In fact, under K.S.A. 2006 Supp. 21-4643, the maximum punishment was a life sentence.
At the plea hearing, White indicated he understood the nature of the plea agreement and that if he pled no contest he would be convicted by the district court based on the evidence that had been presented at his preliminary hearing. White also acknowledged that he would most likely not be permitted to withdraw the plea once it was entered by the court and expressed satisfaction with the legal representation he had received. The district court advised White of the rights he would be waiving by entering a no contest plea and informed White that he could “receive a sentence of up to life in custody of the Department of Corrections with a minimum 25 years eligibility for probation [sic].” There was no other discussion of the potential length of the prison sentence, and neither counsel nor the court noted the mistake in the written plea agreement’s statement that the maximum sentence was “not less than 25 years.” After determining the plea was knowing and voluntaiy, the district court accepted the plea. '
However, before sentencing, White moved to withdraw his plea for good cause. This motion was filed by an attorney whom White retained after White’s previously appointed counsel had been permitted to withdraw from the case. Shortly thereafter, White filed a motion for continuance and informed the district court that he had retained yet a different attorney to represent him. Through his new counsel, White filed a revised motion to withdraw his plea in which he argued that good cause was shown because (a) his plea was not knowing and voluntary in that prior defense counsel failed to fully inform him of the consequences of entering the plea, and (b) at White’s age of 69, he did not receive any “bargain benefit” in the State’s dismissal of the seven remaining charges because his controlling sentence would have been essentially the same (hard 25 life sentence) even if he had been convicted of all eight criminal charges, which would have resulted in White’s incarceration for the remainder of his natural life.
In denying White’s motion to withdraw, the district court observed that White had received the advice of several attorneys. The record on appeal reflects, by our count, that there were five different attorneys who entered an appearance on White’s behalf. The district court indicated that White had apparently been unhappy with some of the legal advice he had received. Regardless, according to the district court’s findings, White had a full opportunity to consult with counsel regarding his no contest plea.
In addition, the district court found that White was not pressured into making a decision based on time constraints. White’s counsel at the hearing on the motion to withdraw his plea confirmed that White admitted to having approximately 45 minutes to review and discuss the plea agreement with his attorney immediately preceding the plea hearing. In addition, the court pointed out that more than 10 months passed between the time criminal charges were brought against White and the entiy of his no contest plea. Further, the court noted that White had an opportunity to hear the evidence submitted at the preliminary hearing. One victim, according to the district court, was “as articulate and succinct and direct” as any child victim he had “ever heard.”
Speaking of paragraph 9 of the written plea agreement, which stated the maximum penalty White could receive was not less than 25 years, the district court observed: “I don’t know what could be clearer than that.” The district court continued: “[A]s part of any plea proceeding the Court engages in a detailed colloquy with the defendant . . . and I believe the record would bear out that I took extra care to make sure that Mr. White understood the serious consequences of what he was undertaking to propose to the Court.” The court concluded:
“[T]his decision was made, ... in the observation of the Court in accordance with the clear, concise and precise testimony given at the preliminaiy hearing and after a full and complete explanation by counsel, the signing of a detailed written plea agreement and a long colloquy with the Court to ascertain that Mr. White understood that written plea agreement and the consequences thereof ....
“The Court would find under the circumstances of this case that there is no good cause to allow the withdraw[al] of the plea. The motion to withdraw the plea would be overruled and denied. Pleawasfreelyandvoluntarily [made], . . . after advice from not one but at least three prior attorneys participating in the case. And upon a full and complete written Tender of Plea and full and complete colloquy on the record with the Court.”
After denying the motion to withdraw White’s plea, the district court sentenced White to life imprisonment without the possibility of parole for 25 years and postrelease supervision for life. White now appeals. This court’s jurisdiction is under K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).
Withdrawal of Plea
White originally made two arguments on appeal. In one, made as an alternative to his principal argument that he had established “good cause” to withdraw his plea, White argued his life sentence violates the right against cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights or, similarly, the Eighth Amendment to the United States Constitution. At oral argument, White withdrew this issue from consideration in light of this court’s decisions in State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199 P.3d 1265 (2009), and State v. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 1, 194 P.3d 1195 (2008).
Thus, the sole issue for our consideration is whether the district court erred in denying White’s motion to withdraw his plea.
K.S.A. 22-3210(d) addresses the withdrawal of a no contest or guilty plea. It establishes two standards for the district court. At any time before sentencing, a court may permit a plea to be withdrawn “for good cause shown and within the discretion of the court.” After a sentence has been adjudged, the court may permit a plea withdrawal only “[t]o correct manifest injustice.” K.S.A. 22-3210(d). This case presents a situation in which the lesser, “good cause” standard applies.
In considering if this standard has been met, White urges this court to apply an unlimited standard of review, contending that this issue involves statutory interpretation. It is well established, however, that in reviewing a presentence denial of a motion to withdraw plea, an appellate court utilizes an abuse of discretion standard of review, as suggested by the language of K.S.A. 22-3210(d). But, as this court has explained, in order for the district court’s decision to receive the full measure of that standard’s deference, it must have been based upon a correct understanding of the law. State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006); see State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008); State v. Earned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). The defend ant bears the burden of establishing the abuse of discretion. Schow, 287 Kan. at 541.
In determining whether the defendant has shown good cause to permit the withdrawal of a plea, the district court should consider whether: “(1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.” Schow, 278 Kan. at 546 (citing Edgar, 281 Kan. at 36); see State v. Adams, 284 Kan. 109, 114, 158 P.3d 977 (2007); State v. Sanchez-Cazares, 276 Kan. 451, 454, 78 P.3d 55 (2003).
White focused his arguments before the district court on whether his counsel had been effective in properly advising him of the possible penalties if he entered a plea. The standard for setting aside a plea based on ineffective assistance of counsel was discussed in State v. Shears, 260 Kan. 823, 830-31, 925 P.2d 1136 (1996), in which the defendant argued his counsel gave him wrong or misleading advice regarding the possible sentence. The court noted that the defendant must overcome the presumption that counsel’s assistance was reasonable and explained that a defendant must meet the two-prong test stated in Chamberlain v. State, 236 Kan. 650, 654, 694 P.2d 468 (1985), which adopted the standards for determining ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
The Shears court summarized the defendant’s burden in proving ineffective assistance of counsel by stating:
“ ‘To set aside a guilty [or no contest] plea because ineffective assistance of counsel has rendered the plea involuntary, a defendant must show that counsel's performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel’s errors the defendant would not have pleaded guilty and would have insisted on going to trial.’ State v. Wallace, 258 Kan. 639, Syl. ¶ 2, 908 P.2d 1267 (1995).” Shears, 260 Kan. at 830; see Sanchez-Cazares, 276 Kan. at 457.
Further, in defining the minimum standard for reasonable representation by an attorney representing a defendant considering whether to enter a guilty or no contest plea, the Shears court stated, in part, that “ ‘[djefense counsel has an obligation to advise a de fendant as to the range of permissible penalties and to discuss the possible choices available to the defendant.’ ” Shears, 260 Kan. at 830 (quoting State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 [1995]).
In this case, although the district court did not specifically state that it was finding that counsel’s representation had been reasonable, the court made the factual finding that White had been informed of the consequences of the plea. Because the district court made factual findings, another level of analysis is added to our standard of review: When a district court makes factual findings related to claims of ineffective assistance of counsel, an appellate court determines whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The court’s legal conclusions are reviewed de novo. State v. Overstreet, 288 Kan. 1, 24, 200 P.3d 427 (2009); see Sanchez-Cazares, 276 Kan. at 457.
In arguing that the district court’s findings and conclusions were erroneous, White points to paragraph 9 of the written plea agreement, which incorrectly stated the maximum penalty White could receive was not less than 25 years rather than accurately stating that the maximum penalty he could receive was life in prison. The district court, in making its factual findings, did not recognize the misstatement and instead, in referring to paragraph 9 of the written plea agreement, observed, "I don’t know what could be clearer than that.” The district court used this factual finding as a basis for concluding that White was adequately informed of the maximum possible penalty.
Because this finding is based on a written plea agreement, we do not have to accept the district court’s interpretation. An appellate court reviews a written plea agreement de novo and, therefore, is able to reach a conclusion independent of the district court’s findings. State v. Smith, 244 Kan. 283, 284-85, 767 P.2d 1302 (1989); see State v. Boley, 279 Kan. 989, 992-93, 113 P.3d 248 (2005). Here, we disagree with the district court’s finding that paragraph 9 clearly stated the maximum penalty and the court’s con elusion that the written plea agreement accurately informed White of the maximum sentence.
Contrary to the district court’s findings, the written tender of plea is evidence that defense counsel gave White incorrect information — in other words, that counsel’s advice was unreasonable and ineffective. There was no contrary evidence provided; the State did not offer defense counsel’s testimony to explain what was discussed orally. Consequently, White, at a minimum, rebutted the presumption of reasonable representation.
To establish ineffective assistance of counsel, however, White must establish that he was prejudiced by his counsel’s conduct. See Shears, 260 Kan. at 830. If defense counsel’s advice was countered and clarified by other sources so that White was fully informed of the consequence of his plea, he may not be able to meet this burden.
One method by which White could have been fully informed of the consequences of the plea would be through the plea colloquy conducted by the judge. To assure that a defendant who enters a plea receives due process, K.S.A. 22-3210(a)(2) requires a judge who accepts a felony guilty or no contest plea to inform the defendant of the “consequences” of the plea. Edgar, 281 Kan. at 37. This includes the maximum possible penalties for the crimes to which the defendant pleads. K.S.A. 22-3210(a)(2). If a court fails to meet this requirement, the error can be deemed harmless and the plea need not be set aside if, upon review of the entire record, the purpose of the statute is otherwise served — i.e., if a defendant is advised of the plea’s consequences in a written plea agreement, by defense counsel, or in some other way. State v. Beauclair, 281 Kan. 230, 237, 130 P.3d 40 (2006). Similarly, if the written plea agreement or defense counsel fails to advise the defendant of the consequences, a judge’s compliance with the requirements of K.S.A. 22-3210(a)(2) can remedy those failures.
In this case, the district court determined that the plea colloquy was sufficient to fully inform White of the possible consequences. In denying the motion to withdraw the plea, the district court stated: “[A]s part of any plea proceeding the Court engages in a detailed colloquy with the defendant . . . and I believe the record would bear out that I took extra care to make sure Mr. White understood the serious consequences of what he was undertaking to propose to the Court.”
In making this statement, the district court did not have the benefit of the transcript of the plea hearing, which is in the record on appeal. That transcript reveals that rather than clarifying any previous misstatements, the district court misspoke and made confusing statements. Specifically, the record reveals that the district court informed White that he could “receive a sentence of up to life in custody of the Department of Corrections with a minimum 25 years eligibility for probation [sic].” Granted, the first part of this sentence, when read in isolation, indicates White could receive a life sentence. The difficulty is that the second part of the sentence, which is very confusing and misleading, could be interpreted to mean that White would not serve a life sentence but would be eligible for probation. Although there was a later statement by the court explaining that the court would have to find substantial and compelling reasons to grant a dispositional or durational departure, it was never stated that the departure would be from a presumed life sentence. Rather, the undoubtedly inadvertent use of the wrong term by the district court could have been understood by a reasonable person to have meant that White was presumptively eligible for probation. Moreover, the confusing nature of the statement belies the district judge’s assessment that “the record would bear out that I took extra care to make sure Mr. White understood the serious consequences of what he was undertaking to propose to the Court.” Like the district court’s other factual finding, this finding is not supported by the record.
Thus, there is not substantial competent evidence to support the district court’s factual findings that paragraph 9 clearly informed White of the possible penalties or that the colloquy clearly explained the consequences of the plea. Because substantial competent evidence does not support the district court’s findings, we reverse the denial of the motion to withdraw the plea.
White argues that if we find the district court erred, we should reverse his conviction and vacate his sentence. However, our conclusion that the district court’s findings are not supported by sub stantial competent evidence does not mean that we can conclude that White has established that his counsel was ineffective. The various prongs of the ineffective assistance of counsel test are inherently factual and, at this point, there are no factual findings relating to either prong of the ineffective assistance of counsel test.
As we have stated, the written plea agreement does rebut the presumption that defense counsel’s representation was reasonable. Yet, we cannot know whether the State was prepared to offer contrary evidence had the district court recognized the error in paragraph 9. On the other hand, we also recognize that White presented no evidence of confusion or prejudice; instead he only made the argument. While we could conclude that this means White failed to meet his burden, again it is not clear from the record what would have happened if the district court would have recognized tire confusing statements made during the plea hearing. In addition, it would not be appropriate to resolve these questions on appeal because appellate courts do not make factual findings; State v. Valladarez, 288 Kan. 671, 685, 206 P.3d 879 (2009).
It is necessary to have the factual questions related to ineffective assistance of counsel resolved because, as we have stated:
“Where a defendant has not had competent counsel, or where a defendant has been misled, coerced, mistreated, or unfairly taken advantage of, or where a defendant’s plea has not been fairly and understandingly made, one would have to characterize the resultant plea as ‘unintelligently made.’ In that event, there is indeed recourse for the unintelligently made plea; the district court can and ordinarily should grant the motion to withdraw plea pursuant to K.S.A. 22-3210(d). Cf. White v. State, 203 Kan. 687, 690, 455 P.2d 562 (1969) (‘If suchpleais induced by promises or threats which deprive it of its voluntary character, it is void, and a conviction based thereon is open to collateral attack.’).” Schow, 287 Kan. at 543.
These determinations are yet to be made. Consequently, we conclude the matter must be remanded for further proceedings on White’s motion to withdraw his plea.
Reversed and remanded.
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The opinion of the court was delivered by
Price, J.:
Because of the disposition being made of this case— only two questions require discussion.
The first concerns the sufficiency of the notice of appeal to confer jurisdiction upon this court to entertain the appeal.
The second concerns the right of an appellant — under the facts and circumstances hereafter related — to amend his notice of appeal.
The action was by the National Reserve Life Insurance Company (hereafter referred to as plaintiff) to foreclose a real-estate mortgage.. There were a number of defendants — among them being Regal Enterprises Inc. (hereafter referred to as Regal). A judgment in personam was rendered against Regal; judgments in rem against certain other defendants — and foreclosure of the mortgage was decreed.
On August 3, 1960, Flora B. Hanna, administratrix (hereafter referred to as appellant), filed and served her notice of appeal. This notice was directed to and served upon plaintiff and various other parties to the litigation, not here material. The notice made no mention of Regal, however, and neither was it served on Regal.
Nine months later — on May 3, 1961, and while the appeal was pending — appellant filed in this court a motion for leave to amend her notice of appeal by adding thereto the name of Regal, which “through error and inadvertance,” had been omitted previously.
On May 12, over the objection of plaintiff, the motion to amend was allowed, and on May 17 appellant filed and served her amended notice of appeal. The appeal was argued in this court on June 8.
In the meantime, plaintiff filed a motion to dismiss the appeal on the principal ground that Regal, being an “adverse party whose rights are sought to be affected by the appeal,” was not served with notice of appeal within the period provided by law — therefore the pretended appeal was a nullity and conferred no jurisdiction upon this court to entertain it.
The mere fact that on May 12 the motion to amend was allowed does not preclude plaintiff from asserting its motion to dismiss, and neither does it foreclose this court from deciding the ultimate question — was the appeal properly perfected? (Harshbarger v. Carson, 180 Kan. 241, 247, 303 P. 2d 143.)
Involved in this matter are the provisions of three statutes relating to appeals.
G. S. 1949, 60-3306, in pertinent part provides:
“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, ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . . Proof of such service shall be made by affidavit, . . .; and thereupon the appeal shall be deemed to be perfected.”
G. S. 1949, 60-3309, reads:
“The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken: . . .”
G. S. 1949, 60-3310, provides:
“Any notice of appeal may be amended at any time by bringing in additional parties or otherwise, before the hearing, as to the appellate court may seem fit, and in case such court shall deem it necessary that it have papers or entries that have not been transmitted to it, it may require their immediate certification and transmission.”
Without going into the merits of the case as disclosed by the evidence in the trial court, it may be stated as a fact that the interests of appellant and Regal were adverse to each other. Regal was a party to the litigation, and it was to its interest that the judgment of the trial court be upheld. It therefore was an “adverse party” within the meaning of 60-3306. (In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004; In re Estate of Johnson, 177 Kan. 368, 279 P. 2d 271.)
In support of its motion to dismiss plaintiff contends that under 60-3306 three distinct steps are to be taken in order to perfect an appeal — (1) filing of the notice; (2) service upon all adverse parties whose rights are sought to be affected, and (3) proof of service— that under 60-3309 all three steps must be taken within two months from the date of the judgment or order from which the appeal is taken, and, no service being had on Regal until long after the two months’ period, no valid appeal was perfected and therefore there was nothing to amend.
Appellant, on the other hand, contends that 60-3310 permits the amendment of a notice of appeal “by bringing in additional parties” at any time before the hearing of the appeal (Grant v. Reed, 163 Kan. 105, 179 P. 2d 945; Grant v. Reed, 163 Kan. 697, 186 P. 2d 239; Matthews v. Jackson, 176 Kan. 397, 271 P. 2d 798), and that the amendment here made cured any possible defect in the notice.
In the Grant case the appellant had sought to amend the notice of appeal by bringing in an additional party after the two months’ period (60-3309) had expired. A motion to dismiss the appeal was denied, and in the second appearance of the case, above, it was held:
“When an appeal has been taken from the district court to this court within the time provided by G. S. 1945 Supp. 60-3309, but the appeal is defective because of the lack of a necessary party to tire appeal, this court has authority under G. S. 1935, 60-3310, to permit an amendment with respect to the party upon motion, timely made therefor, at any time before the hearing of the appeal upon its merits.” (syl.)
and said:
“There has been no hearing upon the merits of this case in this court, hence the action taken and the amendment to the notice of appeal was taken in time. To sustain the movant’s contention now before us it would be necessary to delete from tire statute last quoted [60-3310] the words ‘before tire hearing’ and substitute therefor ‘before the time provided for appeal.’ We would not be justified in doing that.” (p. 698.)
In the Matthews case a motion to amend the notice of appeal by making a bank an additional party was filed. “Without deciding the interesting question of whether the bank was a necessary party to the appeal,” (p. 403) the amendment was allowed and the case was considered on the merits as though the notice of appeal had been served on the bank in the first place.
Concededly, the Grant cases are strong authority for appellant’s contention that under 60-3310 she had the right to amend her notice of appeal by including Regal therein at any time prior to the hearing of the appeal, and that such amendment cured the earlier defect.
On the other hand, examination of later decisions of this court discloses that a much more strict construction has been placed on the three mentioned statutes — when construed together — and that the rule of the Grant cases — inferentially, if not directly — has been altered.
In the case of Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, 298 P. 2d 333, dismissal of the appeal was sought on the ground that proper proof of service of the. notice as provided by 60-3306 was not made within the two months’ period provided by 60-3309 — therefore the appeal was a nullity. While the case involved no question as to necessary parties or the right to amend, nevertheless we believe that what was there said and held, and in the opinion on motion for rehearing and modification at 180 Kan. 178, 302 P. 2d 1003, bears directly on the question here presented.
At page 673 of the original opinion it was said that this court has only such appellate jurisdiction as is conferred by statute pursuant to the constitution, and that an appeal which is not perfected within the time prescribed by the statute is a nullity and may not be amended. At page 677 of the same opinion appears the following:
“The language of G. S. 1949, 60-3306 is clear and unambiguous. It provides three steps must be taken to perfect an appeal when the adverse parties or their attorneys of record reside in this state. They are: (1) ‘. . . 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. . . .’; (2) a copy of ‘such notice must be personally served on all adverse parties whose rights are sought to be affected ... or their attorneys of record . . .’ and (3) ‘proof of such service shall be made by affidavit . . . and thereupon the appeal shall be deemed to be perfected.’ Compliance with one or two of these requirements does not perfect an appeal; the party appealing must comply with all three of them and within the time prescribed by G. S. 1949, 60-3309, . . .”
In the second opinion the above-quoted statements were adhered to — the only modification of the original opinion being with respect to the manner of making proof of service.
The appeal was dismissed for noncompliance with the mentioned statutory requirements.
In Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341, a motion was filed to dismiss the appeal on the ground the appellants had failed to make proof of service within the two months’ period (60-3309) allowed for perfecting an appeal. After the expiration of the two months’ period the appellants filed a motion to amend the notice, pursuant to 60-3310, by adding a jurat to their proof of service. Leave to amend was denied and the appeal was dismissed. In discussing the question, what was said in the. Polzin cases widi respect to the three essentials in perfecting an appeal was followed and adhered to, and paragraph two of the syllabus reads:
“The provisions of G. S. 1949, 60-3310 relating to the amendment of notices of appeal have no application unless a valid appeal has been perfected within tlie time prescribed by G. S. 1949, 60-3309.”
In the course of the opinion it was said:
“At the outset it can be stated the inviolate rule, under all our decisions dealing with the subject, is that where the record discloses lack of jurisdiction by reason of noncompliance with the essential requirements of 60-3306 and 60-3309, supra, it is the duty of this court to dismiss an appeal.” (p. 619.)
“In reaching the conclusion just announced we.have not overlooked the fact that appellant Thompson and, we may add, appellant State Corporation Commission, have each filed motions that they be permitted to amend their notices of appeal, pursuant to G. S. 1949, 60-3310, by adding a jurat to their proof of service. We are not here disposed to write a thesis on the conditions and circumstances under which appeals, when once validly perfected, can be amended pursuant to the provisions of the foregoing statute. The trouble from appellants’ standpoint is that such statute has no application unless a valid appeal has been perfected.” (Citing cases.) (p. 621.)
In Nicolay v. Parker, 185 Kan. 481, 345 P. 2d 1013, the appeal was dismissed because no proof of service of the notice of appeal, as required by 60-3306, was timely filed (60-3309), even though it was admitted that the notice was in fact properly and timely served, and it was said “that unless the appeal be perfected in all particulars, as provided in section 60-3306, this court has no jurisdiction under the constitution and statutes of the state and is powerless to act in the matter.” (p. 482.) (Our emphasis.)
To the same effect is Krehbiel v. Juhnke, 186 Kan. 514, 351 P. 2d 206.
In In re Estate of Bergner, 173 Kan. 582, 250 P. 2d 781, it was held (syl. 2) that where necessary parties have not been joined on appeal the appellate court acquires no jurisdiction of the cause and the ap peal will be dismissed. (See also Martin v. Forestry, Fish and Game Commission, 185 Kan. 796, 347 P. 2d 276.)
It is clear that in the cases subsequent to the second appearance of the Grant v. Reed case, above, the court has placed a strict construction on the provisions of 60-3306, 60-3309 and 60-3310. 60-3306 sets out the three essentials of a valid notice of appeal and reads that “thereupon the appeal shall be deemed to be perfected.” Those essentials are summarized in the quotation from the Polzin case, above, where it also was said that compliance with all three, within the time provided by 60-3309, is necessary in order to perfect an appeal. In the Thompson case, above, it was specifically held that 60-3310, relating to the amendment of a notice of appeal, has no application unless a valid appeal has been perfected within the time prescribed by 60-3309, and appellants there were denied the right to amend their notices of appeal by adding a jurat to their proof of service.
The matters just discussed are not to be confused with a situation such as where a valid appeal has been perfected but an appellant later seeks permission to amend the notice so as to enlarge the scope of review (Deal Lumber Co. v. Vieux, 179 Kan. 760, syl. 1, 298 P. 2d 339; King v. King, 183 Kan. 406, 412, 413, 327 P. 2d 865). And neither are they to be confused with a situation such as where, prior to the expiration of the two months’ period, an appellant seeks permission to amend the notice of appeal with respect to any of the three essential requirements of a valid appeal — in which event he of course would have the right to do so.
In the case before us appellant argues that to deny her the right to amend her notice of appeal in effect nullifies the very language of 60-3310. One answer to this contention is that the mentioned section must be construed in conjunction with 60-3306 and 60-3309, and that inherent in its language is meant that only a valid appeal, which has been timely perfected, may be amended on the terms and under the circumstances therein set forth. (See the Thompson case, above.) To hold otherwise ignores the literal provisions of 60-3306 and 60-3309, and if there is any inconsistency in the language of the three sections we believe that orderly appellate procedure requires the construction which is being placed upon them, and that anything to the contrary said or held in Grant v. Reed, 163 Kan. 105, 179 P. 2d 945, and Grant v. Reed, 163 Kan. 697, 186 P. 2d 239, should be and is hereby disapproved.
In passing, it should be noted that a strict construction also has been given to the section of the probate code (G. S. 1949, 59-2405) relating to appeals from the probate court to the district court. (In re Estate of Demoret, 169 Kan. 171, 218 P. 2d 225; In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642; In re Estate of Allgire, 183 Kan. 527, 331 P. 2d 296.)
Summing up these matters, we therefore hold:
60-3306 contains three essentials for the perfection of a valid appeal: (1) filing of the notice; (2) service upon all adverse parties whose rights are sought to be affected by the appeal, and (3) proof of service. Compliance with all three requirements must, under 60-3309, be made within two months from the date of the judgment or order from which the appeal is taken, in order to perfect a valid appeal. With respect to matters — such as to enlarge the scope of review, for example — 60-3310 permits an amendment, if otherwise proper, of a valid notice of appeal, at any time before the hearing. The section is not construed, however, to permit an amendment with respect to any of the three essentials contained in 60-3306 after the two months’ period provided for by 60-3309 has expired. In other words, as was said in the Thompson case, above, the provisions of 60-3310 have no application unless a valid appeal has been perfected within the time prescribed by 60-3309.
Here the appellant failed to serve the notice of appeal upon all adverse parties within the time prescribed — that is, one of the three essentials was missing. No valid appeal, therefore, was perfected, and the attempted appeal was a nullity. No valid appeal being perfected, there was nothing to amend. The result is that the appeal must be dismissed.
It is so ordered.
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The opinion of the court was delivered by
Nuss, J.:
Jason Ballard directly appeals his sentence for committing aggravated indecent liberties with a child, an off-grid person felony under K.S.A. 2006 Supp. 21-3504(a)(3)(A) and (c). More specifically, he appeals the district court’s refusal to grant probation and its imposition of lifetime postrelease supervision without eligibility for good time credit. Our jurisdiction is pursuant to 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 district court abuse its discretion in denying a downward dispositional sentencing departure to probation? No.
2. Did the district court err in changing Ballard’s originally imposed postrelease supervision period from 36 months to lifetime supervision? No.
3. Did the district court err in finding Ballard ineligible for good time credit? Yes.
Accordingly, we affirm in part, reverse in part, and remand for resentencing with directions.
FACTS
Jason Ballard was charged with aggravated indecent liberties with a child pursuant to K.S.A. 2006 Supp. 21-3504(a)(3)(A), which is an off-grid person felony. See K.S.A. 2006 Supp. 21-3504(c); K.S.A. 21-4706(d). Under Jessica’s Law, this offense carries a sentence of imprisonment for life, with a “mandatory minimum term of imprisonment of not less than 25 years.” K.S.A. 21-4643(a)(l). Ballard pled no contest to the charge. He and the State jointly requested a downward durational sentencing departure, from off-grid to the grid block appropriate for a severity level 3 person felony. This severity level felony carries a sentence of between 55 and 247 months in prison. K.S.A. 2006 Supp. 21-4704. In exchange for Ballard’s plea, the State agreed not to file any additional charges.
The factual basis for the plea was straightforward. Early in the morning of January 1, 2007, Ballard and his wife returned home from a New Year’s Eve party. Ballard’s 11-year old niece, A.T., was watching television from the couch. When Ballard’s wife went to the basement, he went to the couch and “put his hand down her [A.T.’s] pants underneath her panties and began touching her vagina. Even though he was called away by his wife downstairs, he continued to fondle her vagina with his hand inside of her pants.” A.T. immediately told Ballard’s wife and the event was eventually reported to law enforcement.
On September 11, 2007, Ballard filed a motion for a downward durational and dispositional departure to probation. In support, he argued that he had no felony criminal history and would fall into criminal history category “I.” Ballard also argued that he was so intoxicated at the time of the offense that he had no recollection of it and that he mistook A.T. for his wife. Finally, he argued that A.T. and her family agreed that the underlying problem was alcohol addiction and they all wanted him to get probation and treatment. The State objected to Ballard’s request for a dispositional departure, arguing that the court could not grant probation as a matter of law and that, even if it could, probation was inappropriate in this case.
At the sentencing hearing 3 days later, the court found that there were substantial and compelling reasons for a durational departure. As a mitigating circumstance, the court found that Ballard’s capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired due to the use of alcohol. The court also noted that it was “taking into account the other arguments and evidence presented by your attorney and your family and your friends including all the letters and the information contained in that.” It then imposed a sentence of 55 months in prison.
The judge denied Ballard’s request for dispositional departure to probation, concluding, “I do not believe all the evidence under all the circumstances would warrant a further departure.”
The court also imposed 36 months of postrelease supervision and indicated that Ballard would be eligible for earning good time credit of up to 15 percent. The State objected, arguing that even when there is a downward departure from an off-grid, life sentence to the Kansas Sentencing Guidelines Act, a hfetime of postrelease supervision is still required. The judge stated, “I am going to stay with the finding I previously made which is 36 months.” However, he retained jurisdiction “to modify that order if it is in error and contrary to statute. Get with the court and counsel, and if I am in error, go ahead and file an appropriate motion, and I will take it up at that time.”
Two weeks later, the court conducted another hearing. The State argued that the postrelease issues were governed by K.S.A. 2006 Supp. 22-3717(d)(l)(G), which mandates lifetime postrelease supervision for sexually violent crimes, and that no good time credit was allowed pursuant to K.S.A. 2006 Supp. 22-3717(b)(2). Defense counsel responded that because the court had departed from the life sentence to the sentencing guidelines, the appropriate post-release term should be based on the sentence imposed pursuant to the guidelines, e.g., 36 months. The court then increased Ballard’s postrelease supervision period to life and held that he was not entitled to up to 15 percent good time credit:
“[Y]ou will be, pursuant to statute, specifically K.S.A. 22-3717, subject to lifetime post-release supervision unless otherwise is subsequently modified by statute. Furthermore, I am going to rule and find that I previously stated that you would be subject to potentially earn good time credit of up to 15 percent. The Court was in error in making that. The statute specifically provides otherwise, and so you will not be eligible for good time credit.”
Other facts will be added as necessary to the analysis.
ANALYSIS
Issue 1: The district court did not abuse its discretion in denying a downward dispositional departure to probation.
Ballard first claims the district court erred in denying his request for a downward dispositional departure to probation. He argues that he presented substantial and uncontested evidence in support of probation, and notes that the court found substantial and compelling reasons that justified a downward durational departure from a life sentence to 55 months. Ballard complains that the court “arbitrarily denied treatment for alcoholism problems that it acknowledged was at the core of this case.” Because his evidence was uncontested, he argues the court acted arbitrarily and abused its discretion in refusing to grant probation.
As a threshold matter, the State argues that this court does not have jurisdiction to review Ballard’s claims because he received a presumptive sentence. The State contends that because Ballard’s sentence was ultimately calculated through use of a grid block, he received a presumptive sentence for that block’s corresponding offense. It cites State v. Ortega-Cadelan, 287 Kan. 157, 163, 194 P.3d 1195 (2008) (a presumptive sentence is a sentence “issued pursuant to a number in a grid block”). Admittedly, his sentence of 55 months corresponds exactly with the low-number, presumptive sentence for a person with a criminal history of “I” committing a Level 3 person felony. Jurisdiction is a question of law over which we have unlimited review. State v. McCarley, 287 Kan. 167, Syl. ¶ 8, 195 P.3d 230 (2008).
We begin our analysis by observing that the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., governs when a defendant may appeal his or her sentence. The KSGA provides that departure sentences are “subject to appeal by the defendant or the state.” K.S.A. 21-4721(a). It defines a “departure” as “a sentence which is inconsistent with the presumptive sentence for an offender.” K.S.A. 21-4703(f). The KSGA further provides that appellate courts “shall not review: (I) Any sentence that is within the presumptive sentence for the crime.” (Emphasis added.) K.S.A. 21-4721(c)(l). It defines “presumptive sentence” as “the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender s criminal histoiy.” K.S.A. 21-4703(q).
We further observe that K.S.A. 2006 Supp. 21-4643, also known as Jessica’s Law, requires that a defendant 18 years of age or older who is convicted of certain sexually violent crimes, including aggravated indecent liberties with a child, committed on or after July 1, 2006, must be sentenced to a term of imprisonment for life, with a mandatory minimum term of imprisonment of not less than 25 years. K.S.A. 21-4643(a)(l)(C); see State v. Gracey, 288 Kan. 252, 255, 200 P.3d 1275 (2009). However, the statute’s subsection (d) allows a sentencing court to make a downward departure from this mandatory minimum term of imprisonment set out in (a)(1). Upon a finding of substantial and compelling reasons to depart, via subsection (d) the court may instead impose a sentence pursuant to the KSGA.
Subsection (d) of K.S.A. 2006 Supp. 21-4643 states in relevant part:
“On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(1), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq., and amendments thereto, and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.” (Emphasis added.)
Resolution of this jurisdiction issue also requires statutory interpretation. Interpretation of statutes is a question of law over which this court has unlimited review. State v. Storey, 286 Kan. 7, 9-10, 179 P.3d 1137 (2008). When the language of a statute is plain and unambiguous, we cannot read into the statute language not readily found there. Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007). Accordingly, we must reject the State’s jurisdiction argument because subsection (d) clearly provides that if the sentencing court finds substantial and compelling reasons to depart, “[t]he departure sentence shall be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq.” (Emphasis added.) As a result, what Ballard received was not a presumptive sentence — even if his is identical to a presumptive sentence for someone with his criminal history committing a level 3 person felony. Instead, he received a departure sentence: a downward durational departure of 55 months from the life sentence provided for in K.S.A. 2006 Supp. 21-4643(a)(l). And departure sentences clearly are subject to appeal by the defendant. K.S.A. 21-4721(a).
As for the State’s citation to Ortega-Cadelan, that decision actually cuts somewhat in favor of Ballard. There, defendant pled guilty to statutory rape as defined in K.S.A. 21-3502(a)(2). He was sentenced under Jessica’s law, K.S.A. 2006 Supp. 21-4643(a)(l), to a mandatory life sentence without the possibility of parole for 25 years. He appealed his sentence, arguing the district court wrongly denied his motion for a downward durational departure to the grid block sentence corresponding to the severity level of his crime and his criminal history score. Like the instant case, the State argued lack of appellate court jurisdiction. Specifically, it argued that the mandatory life sentence imposed under Jessica’s Law was presumptive and therefore could not be appealed.
We rejected that argument. As the State in the instant case points out, we stated that defendant’s sentence was not presumptive because presumptive sentences must be issued pursuant to a number in a grid block, citing K.S.A. 21-4703(q). What the State does not presently point out, however, is the additional basis for our holding: the sentence was not presumptive because the crime to which he pled guilty — statutory rape — was an off-grid crime. See, e.g., K.S.A. 2006 Supp. 21-4706(d) (statutory rape was an “off-grid crime for the purposes of sentencing”). Similarly, the crime to which Ballard pled no contest, aggravated indecent liberties with a child, is an off-grid crime. See K.S.A. 2006 Supp. 21-4643(a)(1)(C); K.S.A. 2006 Supp. 21-4706(d). In fact, we have rejected the identical Ortega-Cadelan jurisdiction argument made by the State where defendant was convicted and sentenced under Jessica’s Law for aggravated indecent liberties with a child. See State v. Thomas, 288 Kan. 157, 163, 199 P.3d 1265 (2009). We clearly have jurisdiction over off-grid crimes. See K.S.A. 22-3601(b)(1) (jurisdiction to review convictions of off-grid crimes committed on or after July 1, 1993).
Now that we have established appellate jurisdiction for this sentencing issue, we turn to Ballard’s argument that the district court abused its discretion in denying his motion for departure to probation. Ortega-Cadelan provides additional guidance. Its defendant, similar to Ballard, cited several mitigating circumstances, including his lack of prior felony convictions and the sex offender evaluator’s conclusion that he was a good candidate for sex offender treatment. Ortega-Cadelan, 287 Kan. at 162. The district court denied his request, finding, among other things, that his lack of criminal history was outweighed by “ ‘the extent of the crime and the impact of the crime upon a 5-year-old girl.’ ” 287 Kan. at 163. As in the instant case, the court also recognized that the defendant admitted responsibility, but did not find that to be a substantial and compelling reason to depart.
On review, we noted that “in considering other sentencing departure provisions, this court has reviewed a district court’s weigh ing of aggravating and mitigating circumstances for abuse of discretion,” and concluded that the same standard should apply in this context. 287 Kan. at 165. We concluded that the sentencing court had considered all of Ortega-Cadelan’s arguments, acknowledged the mitigating circumstances, and explained why it chose to reject his request for a downward departure. 287 Kan. at 165. We held that because “[rjeasonable people could agree with the district court’s assessment of whether tire mitigating circumstances were substantial and compelling,” the district court did not abuse its discretion in denying the departure. 287 Kan. at 165-66.
In Thomas, as in the instant case, the defendant pled no contest to aggravated indecent liberties with a child under the age of 14. After receiving a hard 25 sentence under Jessica’s Law, he challenged the court’s refusal to grant not only a downward durational departure, but also, as here, a dispositional departure to probation. While the district court did not specifically reference any mitigating factors, it found that “a departure sentence would be ‘insufficient’ in this case, despite the fact that Thomas had presented some grounds for departure.” Thomas, 288 Kan. at 163. Even though the district court did not outline its findings, this court held that “the court implicitly found that none of the reasons asserted by Thomas were substantial and compelling reasons to depart from the mandatory minimum sentence.” 288 Kan. at 163. We again stated that we would “apply a broad abuse of discretion standard because this issue involves the district court’s consideration and weighing of mitigating circumstances.” 288 Kan. at 164. We concluded that the district court did not abuse its discretion in denying Thomas’ motion for a downward durational departure or, like here, dispositional departure sentence under K.S.A. 2006 Supp. 21-4643(d). Thomas, 288 Kan. at 164.
One week later, in Gracey, 288 Kan. 252, this court elaborated on some of these sentencing principles in Jessica’s Law cases. We observed that K.S.A. 2006 Supp. 21-4643(d) provides that in the presence of substantial and compelling reasons, the district court may impose a sentence pursuant to the sentencing guidelines. And “[o]nce sentencing has shifted to the sentencing guidelines, nothing precludes the district court from granting a departure, either dispositional or durational. The decision whether to depart lies within the discretion of the sentencing court. See Ortega-Cadelan, 287 Kan. [157, 165, 194 P.3d 1195].” Gracey, 288 Kan. at 260. The magnitude of the departure is similarly within the court’s discretion. Cf. State v. Fadela, 259 Kan. 215, 244, 911 P.2d 792 (1996) (upholding durational and dispositional departure sentence for conviction of attempted second-degree murder because no abuse of discretion).
Here, the district court outlined the mitigating factors that Ballard presented, i.e., no felony criminal history; A.T. and her mother agreed they wanted him to get probation and treatment for his alcohol addiction, which they believed was the underlying problem; a psychologist testified that the “likelihood of his reoffending is at the lowest range” and also concluded that Ballard was not a pedophile or sexual predator. Plowever, exercising its discretion, the court refused to grant a downward dispositional departure.
We hold that when considering departures, sentencing courts do not simply add together the total number of mitigating circumstances and then contrast them with the total number of aggravating circumstances. Cf. State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009) (in reviewing confession for voluntariness, we do not “form our conclusion by simply listing this one factor as possibly favoring involuntariness and enumerating all those other factors possibly favoring voluntariness”); State v. Thompson, 284 Kan. 763, 804, 166 P.3d 1015 (2007) (in considering totality of circumstances to determine whether a consent to search is voluntary, “we do not expect courts to merely count the number of factors weighing on one side of the determination or the other.”).
We conclude that reasonable minds could agree with Ballard’s sentencing court’s determination that the mitigating circumstances were not substantial and compelling to justify a departure to probation. See Ortega-Cadelan, 287 Kan. at 165-66. More specifically, we conclude that a departure from a “term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years” (K.S.A. 21-4643[a][l]) to 55 months’ imprisonment — instead of a greater downward departure to probation — is reasonable. Therefore, the district court did not abuse its discretion in denying Ballard’s request.
It should also be noted that, in 2008, the legislature amended K.S.A. 21~4719(a), the statute on departure sentences, to prohibit a downward dispositional departure for any defendant convicted of a crime of extreme sexual violence, which includes aggravated indecent liberties. See K.S.A. 2008 Supp. 21-4719(a); Gracey, 288 Kan. at 260. However, this amendment became effective July 1, 2008, and does not apply to Ballard, who committed his crime in 2007.
Issue 2: The district court did not err in changing Ballard’s originally imposed postrelease supervision period from 36 months to lifetime supervision.
Ballard next argues that the district court erred in changing his originally imposed period of postrelease supervision from 36 months to lifetime supervision. He essentially claims that because tire court imposed a legal sentence at the initial proceeding, it did not have authority to increase that sentence 2 weeks later.
The State responds that the district court could amend the post-release term because the court continued the sentencing proceeding. In the alternative, it argues that the court properly corrected an earlier-imposed, illegal sentence.
This issue requires statutory interpretation, which is a question of law over which this court has unlimited review. Storey, 286 Kan. at 9-10.
We begin our analysis by observing that courts generally do not have jurisdiction to increase legally imposed sentences. See State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996) (when a lawful sentence has been imposed, “the sentencing court has no jurisdiction to modify that sentence except to correct ‘arithmetic or clerical errors’ ”). However, an illegal sentence can be corrected at any time. K.S.A. 22-3504; see State v. Breedlove, 285 Kan. 1006, 1009, 179 P.3d 1115 (2008). An illegal sentence under K.S.A. 22-3504(1) is a “ ‘sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.’ ” (Emphasis added.) Trotter v. State, 288 Kan. 112, 126, 200 P.3d 1236 (2009) (quoting State v. Edwards, 281 Kan. 1334, 1336, 135 P.3d 1251 [2006]).
Ballard argues that 36 months’ postrelease supervision was a legal sentence because it is the term expressly provided by the sentencing guidelines, and that he was given a guidelines sentence. He particularly points to K.S.A. 2006 Supp. 21-4643(d), which he contends governs sentences imposed when the district court makes downward departure findings in Jessica’s Law cases. It provides that the “departure sentence shall be the sentence pursuant to the [KSGA].” Ballard reasons that this language takes him to the KSGA, particularly K.S.A. 2006 Supp. 22-3717(d)(l), which provides in relevant part:
“Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1,1993, or persons subject to subparagraph (G), will not be eligible forparole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
“(A) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity level 1 through 4 crimes and drug severity levels 1 and 2 crimes must serve 36 months, plus the amount of good time earned and retained pursuant to K.S.A. 21-4722, and amendments thereto, on postrelease supervision.”
Ballard points to subsection (A), reasoning that his sentence of 55 months was a sentence for a nondrug severity level 3 crime, and concludes that per this subsection, he must serve 36 months of postrelease supervision. He readily concedes that K.S.A. 2006 Supp. 22-3717(d)(l)(G) mandates lifetime postrelease supervision for sexually violent crimes, and further concedes that his offense, aggravated indecent liberties with a child, is such a crime. See K.S.A. 2006 Supp. 22-3717(d)(2)(C). Subsection (d)(1)(G) provides:
“Except as provided in subsection (u), persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.”
Ballard argues that either 22-3717(d)(l)(A) or 22-3717(d)(l)(G) could apply. As a result, a postrelease term under either statute would be legal. He contends that because the 36 months of post-release supervision was part of the sentence initially imposed, and it was legal, that sentence cannot be changed to a later, also legal, sentence of lifetime supervision.
We reject Ballard’s analytical approach because he is caught by two exceptions to the general rule of 22-3717(d)(l)(A). First, he was not “sentenced for” a nondrug severity level 1 through 4 crime. Rather, he was sentenced for an off-grid crime. K.S.A. 21-3504(c); K.S.A. 2006 Supp. 21-4706(d) (when a defendant convicted under K.S.A. 21-3504 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”). The fact that Ballard was granted a departure and received a grid sentence does not change the nature of his offense from an off-grid to a grid crime. Indeed, his filing of his appeal directly with this court, and not the Court of Appeals, tacitly admits this point. See K.S.A. 22-3601(b)(l) (appeal shall be taken directly to Supreme Court when maximum sentence of life imprisonment has been imposed or where defendant has been convicted of an off-grid crime). Accordingly, 22-3717(d)(l)(A) simply does not apply to Ballard.
Second, by Ballard’s own admission, 22-3717(d)(l)(G) clearly does apply to him. Consistent with that statute, he was “convicted of a sexually violent crime committed on or about after July 1, 2006.” See K.S.A. 22-3209(2); State v. Holmes, 222 Kan. 212, Syl. ¶ 1, 563 P.2d 480 (1977) (when court accepts a tendered plea of nolo contendere and adjudges a finding of guilt thereon, the defendant at that point stands convicted of the offense). Therefore, pursuant to subsection (G), he is subject to mandatory lifetime postrelease supervision.
Because Ballard’s initial sentence of 36 months’ postrelease supervision was based on the wrong statute, 22-3717(d)(l)(A), the district court had jurisdiction to correct the illegal sentence and impose the legal one under 22-3717(d)(l)(G). See K.S.A. 21-4704(e)(2); State v. Gaudina, 284 Kan. 354, 358, 160 P.3d 854 (2007) (postrelease supervision is included as part of a complete sentence). As such, the district court did not err in imposing lifetime postrelease supervision.
As a result of our decision, we need not consider the State’s alternative argument regarding the continuance of the sentencing proceeding.
Issüe 3: The district court erred in finding Ballard ineligible for good time credit.
Ballard finally argues that the district court erred in finding him ineligible for good time credit. Specifically, he claims the court erred in applying K.S.A. 2006 Supp. 22-3717(b)(5) instead of applying the good time credit specified by the sentencing guidelines in K.S.A. 21-4722. Because this issue involves statutory interpretation, this court’s review is unlimited. Storey, 286 Kan. at 9-10.
The statute relied upon by the district court, 22-3717(b)(5), states: “An inmate sentenced to imprisonment pursuant to K.S.A. 2006 Supp. 21-4643, and amendments thereto, committed on or after July 1, 2006, shall be eligible for parole after serving the mandatory term of imprisonment without deduction of any good time credits.” (Emphasis added.) Ballard again argues that he was not sentenced pursuant to 21-4643; instead, he was sentenced pursuant to the KSGA. He bases this argument upon the language of 21-4643(d), which, as mentioned earlier, states in relevant part:
“If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act, K S.A. 21-4701 et seq., and amendments thereto, and no sentence of a mandatory minimum term of imprisonment shall be imposed hereunder.” (Emphasis added.)
Part of the KSGA, i.e., K.S.A. 2006 Supp. 21-4722(a), explains that a system of good time credit shall be developed allowing inmates to receive good time credit, limited to 15 percent of the prison part of the sentence. The statute further explains that good time credits are to be subtracted from the prison part of the sentence and added to the inmate’s postrelease supervision obligation. K.S.A. 2006 Supp. 21~4722(b). It also gives the Secretary of Corrections authority to adopt rules and regulations to calculate and implement good time credits. K.S.A. 2006 Supp. 21-4722(c).
We agree with Ballard that 22-3717(b)(5) is not applicable to him. The statutory language addresses parole eligibility for offenders who are sentenced to imprisonment pursuant to 21-4643. The term “parole” generally means “the release of a prisoner to the community by the Kansas parole board prior to the expiration of such prisoner’s term.” K.S.A. 21-4602(d). Thus, “parole” is a term of art that is limited to off-grid crimes, i.e., usually those receiving indeterminate sentences. Cf. Thomas, 288 Kan. at 159 (under K.S.A. 2006 Supp. 21-4643(a)(l)(C), district court ordered post-release supervision for life if Thomas would be paroled from his mandatory life sentence without possibility of parole for 25 years). By contrast, the term “postrelease supervision” generally means “release of a prisoner to the community after having served a period of imprisonment or equivalent time served in a facility where credit for time served is awarded as set forth by the court, subject to conditions imposed by the Kansas parole board and to the secretary of correction’s supervision.” K.S.A. 21-4703(p). This term has traditionally been applied to only grid crimes.
Accordingly, the legislature’s use of the term “parole” in 22-3717(b)(5) strongly suggests that the undeparted-from sentence of life imprisonment — pursuant to 21-4643(a) — is the sentence to which 22-3717(b)(5) refers. As a result, subsection (b)(5) does not apply when an offender receives a departure sentence from Jessica’s Law, i.e., a determinate sentence pursuant to 21-4643(d).
Here, Ballard received a departure sentence from Jessica’s Law: a determinate sentence pursuant to the guidelines of 55 months’ imprisonment. Consequently, when Ballard completes his prison sentence, he will be placed on postrelease supervision, not parole. Stated another way, he will not serve an indeterminate sentence and then be subject to parole, as he would have been if sentenced to life imprisonment pursuant to 21-4643(a). Because the provisions of 22-3717(b)(5) simply do not apply to Ballard, they cannot serve as the basis for denying him eligibility for good time credit.
The State does not point to any other authority which purports to specifically prohibit Ballard from receiving good time credit. It does argue, however, that he cannot, receive good time credit if he is given lifetime postrelease supervision. The State points out that 21-4722 directs that good time credit be subtracted from the prison part of the sentence and added to the inmate’s postrelease supervision obligation. It reasons that an inmate receiving lifetime post-release could not earn good time credit because one cannot add time to supervision which is already for life.
Nevertheless, there is no specific statutory provision prohibiting Ballard from receiving good time credit. Thus, the general rule in 21-4722 applies, and he is eligible to earn good time credits of up to 15 percent of his prison sentence. In any event, while adding earned good time credits to Ballard’s mandatory lifetime of post-release supervision does not realistically affect that supervisory period, it does potentially affect the amount of time actually spent in prison. Ballard will be able to earn good time credit and potentially be released before his 55-month prison sentence would have been fully served. Thus, we reject the State’s apparent position that Ballard is getting “something for nothing.”
Affirmed in part, reversed in part, and remanded for resentencing to include Ballard’s eligibility to earn good time credit.
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The opinion of the court was delivered by
Fatzer, J.:
This is an original proceeding in habeas corpus. Petitioner was convicted in the district court of Harvey County for the crime of burglary in the second degree and was sentenced on February 11, 1957, to confinement in the Kansas State Penitentiary for a term of fifteen years as an habitual criminal pursuant to G. S. 1949, 21-107a.
On January 10, 1957, an information was filed in the district court of Harvey County charging petitioner in two counts, burglary in the second degree, and larceny, respectively (G. S. 1949, 21-520, 21-523, 21-524). On that day petitioner appeared before the court without counsel. The court inquired whether he had counsel of his own choosing, and he indicated he desired the court to appoint counsel for him. Upon further inquiry, petitioner stated he had funds to employ counsel but did not know whether they were available to him. The court appointed Mr. Max Regier, a member of the Harvey County Bar, to represent him. On January 24, 1957, Mr. Regier reported to the court that petitioner had funds with which to employ counsel and asked that he be relieved of his duties as court appointed counsel. The record indicates the court considered and granted Mr. Regier’s request, and he was permitted to withdraw as counsel for petitioner.
The record further indicates that the journal entry of judgment recited that on February 11, 1957, when petitioner’s case was called for hearing, John W. Plummer, County Attorney of Harvey County, appeared for the state, and petitioner appeared in person and by and through his duly court appointed attorney, Mr. Rodney Stone. The record further indicates that Mr. Stone, after conferring with petitioner, obtained the county attorney’s agreement to dismiss the second, or larceny, count, and obtained his further agreement that, if the petitioner entered a plea of guilty to the burglary count, he would recommend to the district court the petitioner be given the minimum sentence, fifteen years of imprisonment, as an habitual criminal under G. S. 1949, 21-107a. The court then inquired of petitioner whether, after consulting with his attorney, Mr. Stone, he understood the charges against him and the penalty that was about to be imposed upon him as a result of his plea of guilty to the burglary count, and he replied “I think I do.” Thereupon the court accepted his plea of guilty, and imposed a sentence of fifteen years,’ which petitioner is presently serving.
Petitioner makes two contentions. First, that his conviction is void because the record does not show that a transcript was made of the appointment of Mr. Stone as his attorney pursuant to G. S. 1949, 62-1304, as amended, and second, that he was deprived of effective assistance of counsel, and was not fully advised of his rights, hence he was denied due process of law in violation of the Fourteenth Amendment to the Constitution of the United States.
The record affirmatively discloses the district court had jurisdiction of the offense and of the petitioner, and that he was represented by an able and competent attorney who performed valuable services for him. The petitioner'cites and relies upon Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225 (certiorari denied May 2, 1960, 362 U. S. 970, 4 L. ed. 2d 901, 80 S. Ct. 956); 187 Kan. 502, 357 P. 2d 810, and Tafarella v. Hand, 185 Kan. 613, 347 P. 2d 356 (certiorari denied May 31, 1960, 363 U. S. 807, 4 L. ed. 2d 1150, 80 S. Ct. 1243). Those decisions are not helpful to the petitioner. In the first place, a judgment record showing compliance with the jurisdictional requirements of G. S. 1959 Supp. 62-1304 of the appointment of counsel to represent the accused is prima facie evidence that his primary rights were safeguarded as provided in the statute, and his uncorroborated statements in a subsequent habeas corpus action are insufficient to overcome that evidence (Tafarella v. Hand, supra; Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349). In the second place, they deal only with situations where an accused waives in writing his right to be represented by counsel, and the district court finds that the appointment of counsel over his objection will not be to his advantage. That is not the case here. Able and competent counsel was appointed to represent petitioner and there is no merit in his contention that he was without the effective assistance of counsel. The record amply demonstrates otherwise. What was said and held in Lewis v. Hand, 188 Kan. 426, 362 P. 2d, 639, controls. No further reference to that decision is here made except to say it held that the petition did not authorize the granting of a writ of habeas corpus under almost parallel circumstances as here presented.
We have fully examined the record and find no basis for the issuance of a writ of habeas corpus for either of the reasons asserted by the petitioner. The writ is denied.
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The opinion of the court was delivered by
Parker, C. J.:
Galen E. Howell and Elizabeth L. Turner as plaintiffs brought this action, based upon a promissory note and the endorsement thereon, against the defendant F. J. Ablah. Following a jury trial judgment was rendered for plaintiffs in accord with the verdict, hence this appeal.
The pleadings are not in question and all that need be said regarding them is that they join issues on all questions respecting the defendant’s liability as surety and guarantor of the note in question under and by virtue of his endorsement of that instrument.
After a careful examination of a long and unusually confusing record we are convinced it would add nothing to our reports and only extend confusion to attempt to make a detailed statement of the evidence adduced by the parties in support of their respective positions in the court below. Moreover, although they may not suffice for purposes of depicting a complete factual picture, we are completely satisfied that certain salient facts of record are decisive of all but one of the appellate issues involved. Those facts, which we pause to note our examination of the record discloses must be regarded as established by uncontroverted evidence, about which there can be no dispute, may be stated thus:
The note involved, dated July 6, 1956, was executed by the Wichita Manufacturing Company, Inc., in favor of Ablah Manufacturing Company, the latter company being a family partnership headed by F. J. Ablah who, so far as matters here involved are concerned, individually transacted the business of the partnership affairs. Such company had sold certain equipment to the corporation above named, and the note represented the balance of the purchase price which was made payable in twenty-three monthly payments of $400 each commencing on the first day of October, 1956, and a final payment of $22,075.00. The note further provided for interest at the highest lawful rate and that upon nonpayment of any installment at its maturity all remaining installments should become immediately due and payable at the option of the holder. It also specified that the makers and guarantors thereof waived notice of nonpayment, protest, presentment and demand.
The equipment sold under the contract was also covered by a note and mortgage given by the corporation (Wichita Manufacturing Company, Inc.), to the Kansas State Bank of Wichita.
Immediately following the signature of the maker of the note in issue was an appendage, signed by F. J. Ablah personally, reciting in substance that the note was subordinated to payment in full of the loan of the bank and that such note would be financed for additional two years if desired by the purchaser (Wichita Manufacturing Company, Inc.).
The note and contract was transferred to the plaintiffs by the defendant on July 18, 1957. The note was endorsed by defendant as follows:
The undersigned hereby waive!s) presentment and demand for payment, protest and notice of protest and consent! s) that the holder hereof may, without notice to and without releasing the liability of the undersigned hereunder as unconditional endorser!s), compound or release any rights against, or grant extensions of time to the maker.
Ablah Mfg. Co.
By s/ F. J. Ablah.
Prior to the transfer of the note, and as consideration for its subsequent transfer, defendant had received from D. O. W. Framing Company, Inc., wholly owned by plaintiff Howell and Lee Turner, husband of plaintiff Elizabeth L. Turner, a deed to a manufacturing property in Great Bend, in which deed defendant was personally named as grantee. The title to such property has never been relinquished by the defendant.
The property so conveyed by the deed had originally been included, at an agreed valuation of approximately $60,000.00, as part of the consideration to be paid by plaintiff Howell and Lee Turner for stock in the Wichita Manufacturing Company, Inc., under a contract proposed between them and the Wichita Manufacturing Company, Inc. D. J. Bitinis and George Ablah, the defendant’s son, were then the sole stockholders of the Wichita Manufacturing Company, Inc., the maker of the involved note. Although Plaintiff Howell and Turner paid $30,000.00 in cash at the outset for stock in this corporation, they disaffirmed the contract and returned their stock after dissatisfaction with the represented financial condition of the corporation.
The maker of the note, Wichita Manufacturing Company, Inc., was subsequently placed in receivership and its creditors were enjoined from suit. The Kansas State Bank, under supervision of the court, sold the property securing its note and the note here involved. The sale price was insufficient to pay the bank’s note and a deficiency on the bank’s note still existed after the receiver had liquidated all the assets of the maker of the note. The remaining assets were not even sufficient to pay off tax claims.
During the course of the trial in the court below defendant demurred to the plaintiffs’ evidence. This demurrer was overruled. Defendant did not stand upon his demurrer but elected to introduce evidence in his own behalf. Following introduction of all the evidence defendant did not again raise the sufficiency of the evidence by a motion for a directed verdict. However, the record does disclose that the plaintiffs challenged the sufficiency of all the evidence to go to the jury by a motion for directed verdict, which motion was overruled.
Following action as above indicated the court gave the jury written instructions. To these the only serious objection interposed by defendant was to Instruction No. 3 which, so far as pertinent to tire issues raised on appeal, reads:
“You are instructed that your verdict in this case must be for the plaintiffs unless you find that the defendant, F. J. Ablah, was induced by fraud or misrepresentation to execute the endorsement of the note.”
In connection with the foregoing Instruction it is worthwhile to note a statement made by defendant in his abstract which reads:
“This matter was submitted to the jury for their consideration only of the endorsement of the note attached to plaintiffs’ Exhibit 1, and the delivery thereof by the defendant, Ablah, to plaintiffs. This left only one matter to be determined by the jury that was whether or not the endorsement of the note was secured by fraud and misrepresentations or false representations on the part of the plaintiffs, or H. Lee Turner, husband of the plaintiff, Elizabeth L. Turner.”
Also to point out, that with respect to the verdict submitted which was general in form, the same instrument contains the following unchallenged statement:
“It was agreed by the respective parties that the case was being submitted generally to the jury for a verdict in favor of the plaintiff or defendant, and then when the verdict is received and it is necessary, the court will determine the distinct amount for which judgment should be entered.”
Defendant’s attempt to have a review of the trial court’s order overruling his demurrer to the evidence is challenged at the outset by tibe plaintiffs’ who, citing Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295; Ogilvie v. Mangels, 183 Kan. 733, 332 P. 2d 581; Liberty Glass Co. v. Bath, 187 Kan. 54, 353 P. 2d 786, assert this court has made it clear that á party who claims that his opponent’s evidence is insufficient to support an adverse judgment must seek judgment from the trial court, not only by a demurrer, but by motion for directed verdict also, after all the evidence in the trial of the case has been presented. Conceding that is the rule, it has no application where — as here — the plaintiffs saw fit to move the trial court for a directed verdict at the close of all the evidence, thus challenging the attention of the trial court to the sufficiency of all such evidence. The applicable rule is well-stated in Anderson v. Thomas, 184 Kan. 240, 336 P. 2d 821, where it is held:
“Where a defendant’s demurrer to the plaintiff’s evidence is overruled and the defendant elects to introduce evidence on his own behalf, the rule stated in Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295, requiring the defendant to again raise the sufficiency of the evidence by a motion for a directed verdict at the close of all the evidence or be deemed to have waived the sufficiency of the plaintiff’s evidence as raised by his former demurrer, is overcome and the defect satisfied where the plaintiff at the close of all the evidence demurs to the defendant’s evidence and moves the trial court for a directed verdict, since it challenges the attention of the trial court to the sufficiency of all the evidence to go to a jury.” (Syl. ¶ 13.)
It follows the plaintiffs’ contention the order overruling defendant’s demurrer to the evidence is not reviewable lacks merit and cannot be upheld. However, it should be pointed out that, under another well-established rule, since defendant introduced evidence after his demurrer to the evidence was overruled, the question whether such order was proper does not depend upon the state of the plaintiffs’ evidence at the time defendant’s demurrer was lodged against it but on the state of the evidence at the close of the case (see Lechleitner v. Cummings, 159 Kan. 171, 152 P. 2d 843; Wilson v. Holm, 164 Kan. 229, 188 P. 2d 899; Tuggle v. Cathers, 174 Kan. 122, 127, 254 P. 2d 807; Ziegelasch v. Durr, 235, supra; In re Estate of Rogers, 184 Kan. 24, 234 P. 2d 830).
The paramount question raised by defendant, in support of his position the trial court erred in overruling his demurrer to the evidence and on which he spends much time in his brief, is to the effect the note involved in this case was nonnegotiable, hence his endorsement of such instrument merely transferred title to the instrument without guaranteeing its payment. In support of his position he cites Iron Works v. Paddock, 37 Kan. 510, 15 Pac. 574; Foley v. Hardy, 122 Kan. 616, 253 Pac. 238; Hayter v. Dinsmore, 125 Kan. 749, 265 Pac. 1112, and other decisions of like import, holding that the endorsement in blank of a name upon a nonnegotiable note simply transfers the title of a party, and does not make him liable as if such note were a negotiable instrument. We have no quarrel with the rule announced in such decisions but we do disagree with defendant’s conclusion they support his position the holder of a nonnegotiable note cannot become liable as a surety or guarantor for its payment by the terms of an endorsement. This conclusion, we may add, finds support in Iron Works v. Paddock, supra, one of the very cases on which defendant relies, wherein, in clear and concise language, it is said in substance that even though the endorsement in blank of a name upon a nonnegotiable note does not guarantee its payment, the endorser may guarantee its payment by a contract which is either expressed in the endorsement or by an independent contract between the parties. For other authorities supporting this conclusion see 10 C. J. S., Bills and Notes, §§ 28, 30, pp. 437, 439, 441; 38 C. J. S., Guaranty, §§ 38, 46, pp. 1177, 1194, 8 Am. Jur., Bills and Notes, §§ 556, 559, 560, pp. 261, 263; First Nat. Bank v. Falkenhan, 94 Cal. 141, 29 Pac. 866; Quinn v. Rike, 50 Cal. App. 243, 194 Pac. 761; Nuetzel v. Mackie, 80 Cal. App. 768, 253 Pac. 166. For a recent and interesting decision of this court defining a guaranty, outlining the nature of a guaranty contract, and discussing questions pertaining to the guarantor’s liability, see Bomud Co. v. Yockey Oil Co., 180 Kan. 109, 299 P. 2d 72.
Turning to the endorsement, which we have heretofore set forth at length in this opinion and need not be repeated, it can now be stated that after careful consideration of the construction to be given its terms we are convinced their clear and unequivocal language impose upon defendant, as a matter of law, the obligations of an unconditional surety and/or guarantor for all purposes of payment of the note in question. Indeed, keeping in mind that under the terms of the endorsement the defendant expressly waived presentment and demand for payment, protest and notice of protest, with respect to the note in question and then expressly recognized that his liability was that of an unconditional endorser of the note, we fail to see where it is possible to give the provisions of such endorsement any other construction.
In connection with his position the demurrer to the evidence was improperly overruled defendant contends that the evidence (1) fails to disclose any consideration for the unconditional guarantee en dorsed on the note; (2) discloses that the action was prematurely instituted; and (3) fails to disclose any demand was made upon the makers of the note prior to the commencement of the instant action. We are not disposed to labor these contentions. It suffices to say the first is wholly fallacious and devoid of merit for the reason the uncontradicted evidence establishes that defendant received and still retains the Great Bend property as consideration for such endorsement; the second lacks merit because the note provided that upon nonpayment of any installments — some of which it is to be noted are conceded to have been in default at the time the action was commenced — all remaining installments became payable immediately, and in both the note and. endorsement presentment, demand, protest and notice of protest were waived; and the third is equally lacking in merit because of our decisions (see e. g., Furst v. Buss, 104 Kan. 245, 248, 178 Pac. 411), holding that where a guaranty is unconditional, the default of the party, whose contracts are guaranteed, matures the liability of the guarantors, and they may be proceeded against without awaiting a fruitless execution against the defaulting principal.
Our disposition of the foregoing questions raised by defendant lead to the inescapable conclusion that the trial court’s order overruling the demurrer to his evidence was proper and must be upheld. Moreover, after a careful examination of the record, we are convinced that tribunal’s action with respect to such questions disposed of all but one of the justiciable issues raised by the pleadings, i. e., fraud and misrepresentation in procuring defendant’s execution of the heretofore quoted endorsement. It necessarily follows, and we therefore hold, that the trial court properly took all issues so disposed of from the jury and did not err in instructing that body that its verdict in the case must be for the plaintiffs unless it found that the defendant was induced by fraud or misrepresentation to execute the endorsement of the note.
By its general verdict in favor of the plaintiffs the jury resolved all questions relating to fraud and misrepresentation involved in the case against the defendant and in favor of the plaintiffs (Grigsby v. Jenkins, 183 Kan. 594, 331 P. 2d 284). Conceding the evidence as to fraud and misrepresentation was conflicting the record discloses ample substantial competent evidence to uphold the jury’s determination of all questions raised with respect thereto. Therefore under the rule of this court, so well-established that it needs no citation of the authorities supporting it, the verdict of the jury, the trial court’s approval thereof, and its judgment in accord therewith must be upheld.
One question, heretofore noted as reserved by agreement between the parties for the trial court’s determination, remains. It relates to the amount of the judgment and, as we understand it, in view of the issues heretofore decided adversely to defendant’s position, is limited to interest allowed by the trial court on the principal of the note.
In an opinion overruling the defendant’s motion to delete all interest from the judgment the trial court held:
“It is my opinion and ruling that interest on the note, which is the subject matter of this case, will be figured at the rate of 10% per annum on all delinquent payments from and after date of their delinquency. The first payment was due October 1, 1956, and when not paid became delinquent on that date. Such payment will draw interest at the rate of 10% per annum from October 1, 1956, until and including February 9, 1958.
“The second payment was due November 1, 1956, and when not paid on that date became delinquent. The second payment will draw interest at the rate of 10% per annum from and after November 1, 1956, until and including February 9, 1958. The interest on the payments due up to February 9, 1958, shall be figured as for the above first two payments.
“When the holder exercised his option and declared the note due and payable on February 10, 1958, by filing suit, tire entire principal amount of the note became due and payable and should draw interest at the rate of 10% per annum from that date.”
Resort to the note discloses that it provided for monthly installments which bore no interest until due but which carried interest at the highest legal rate (then 10% under what is now G. S. 1959 Supp., 16-202) after each installment matured. Such note also contained a provision that “Upon the non-payment of any installment at its maturity, all remaining installments shall at the option of the legal holder become immediately due and payable.” Plaintiffs exercised their option to malee payments under such note due and payable when they filed the instant action on February 10, 1958, and at that time several of the installments were due and unpaid. Under such circumstances, since the note expressly provided for an option accelerating the maturity of the note on default of any installment and plaintiffs exercised that option, we have no difficulty in concluding the trial court’s action in allowing interest in accord with the express provisions of such instrument was proper and must be upheld. Indeed defendant cites, and we know of, no decisions of this court warranting a contrary conclusion.
The judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
The underlying question in this case concerns the right of a plaintiff to dismiss an action.
On a date not shown, plaintiff, by his attorneys, John J. Alder, of Kansas City, and Richard D. Rogers, of Manhattan, filed an action to recover damages in the amount of $38,006.87, resulting from an automobile collision. Included in the damages alleged was an item for damage to plaintiff’s car in the amount of $1,742.30.
Defendant, through his attorney, Harold E. Doherty, of Topeka, filed an answer denying negligence, and alleging contributory negligence.
Plaintiff filed a reply denying affirmative defenses contained in the answer.
In the meantime, and while the action was pending, plaintiff and defendant reached an out-of-court settlement by the terms of which defendant paid to plaintiff the sum of $6,250 in “release in full of all claims” including “property damage” resulting from the collision. The written release was dated April 9, 1960, and was signed by plaintiff and witnessed by Mr. Alder, one of his attorneys.
On April 30, 1960, plaintiff and defendant appeared in court by their respective counsel. Upon plaintiff’s oral motion the court dismissed the action without prejudice.
Shortly thereafter, but on a date not shown, Mr. A. M. Johnston, an attorney of Manhattan, filed a motion to revive and reinstate the action. In this motion he stated that he was employed to pursue the action for and on behalf of The State Farm Insurance Company, which carried public liability, collision and property damage insurance on plaintiff’s automobile, and by virtue thereof had subrogation rights of recovery for damage to the car in the amount of $1,742.30, as set forth in plaintiff’s petition. The motion alleged that the employment of Mr. Johnston was for the purpose of representing the plaintiff in the action for the recovery of those damages; that on November 5, 1959, he advised plaintiff’s attorneys by letter of such employment, and that he expected to join with plaintiff’s attorneys in the trial of the action without filing additional pleadings. The motion further alleged that on November 9, 1959, one of plaintiff’s attorneys advised Mr. Doherty, attorney for defendant, of his (Mr. Johnston’s) employment, and that without notice to him (Mr. Johnston) he was later advised that settlement had been made on behalf of plaintiff, but that in making such settlement the above-mentioned item of property damage was intentionally left open for future determination. The prayer of the motion was that the action be reinstated and revived for the purpose of determining property damage.
On May 20, 1960, the motion of Mr. Johnston came on for hearing and he was present in court. There were no other appearances. The court found that in the settlement between plaintiff and defendant the matter of property damage was not taken into consideration and was excluded, and entered an order reinstating the action for the purpose of determining property damage as the same was pleaded in plaintiff’s petition.
Shortly thereafter, but on a date not shown, defendant, through his attorney, Mr. Doherty, filed a motion to set aside the order of May 20, 1960, reinstating the action.
On July 8, 1960, this motion was overruled, the effect of which was that the action stood reinstated for the determination of property damage.
Defendant has appealed from that order.
In his brief, which purports to be filed on behalf of plaintiff, Mr. Johnston sets out copies of correspondence between counsel, beginning in November, 1959, relating to the matters contained in his motion to reinstate. From these letters it would appear that he was justified in assuming that the subrogation rights of his client would be fully protected in the trial of the action.
On the other hand — we are compelled to take the record as we find it, and the letters in question are — strictly speaking — no part of the record. Furthermore — the insurance company was not a party to the action, had filed no pleadings, and had never appeared in the case until Mr. Johnston filed the motion to reinstate. Prior to the filing of that motion he was not an attorney of record. Further, as previously mentioned — the written release entered into between plaintiff and defendant specifically covered and included property damage resulting from the collision.
Notwithstanding there are certain aspects of this matter which tend to indicate that Mr. Johnston may be said to have been “taken advantage of,” the fact remains — and he so concedes — he should have entered his name as an attorney of record at the time of his employment in November, 1959. He contends that plaintiff’s attorneys of record were plaintiff’s attorneys only for the purpose of determining personal injuries, and that the dismissal was limited to that phase of the case. The trouble with this contention is that it simply is not borne out by the record. The order of dismissal of April 30, 1960, contained no reservation whatsoever, and recited:
. . that the above cause be and the same is hereby dismissed without prejudice.”
G. S. 1949, 60-3105, in pertinent part reads:
“An action may be dismissed without prejudice to a future action:
“First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”
It has uniformly been held that the statute means exactly what it says. (Henry v. Edde, 148 Kan. 70, 73, 79 P. 2d 888; Bavuso v. Angwin, 166 Kan. 469, 201 P. 2d 1057; Lindsay v. Keimig, 184 Kan. 89, 93, 334 P. 2d 326; State, ex rel., v. City of Kansas City, 186 Kan. 190, 197, 350 P. 2d 37, cert. denied 363 U. S. 831, 4 L. Ed. 2d 1525, 80 S. Ct. 1598; Buckley v. Buckley, 186 Kan. 365, 350 P. 2d 44.)
On the record before us plaintiff had an absolute right to dismiss his action. The court erred in setting aside the order of dismissal and in reinstating the case. The judgment is therefore reversed.
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The opinion of the court was delivered by
Burch, J.:
Ah information was filed m Rush county charging George Luft and Henry Luft with assulting James Neufeld with intent to kill. Separate trials were demanded, and George Luft was tried,, and convicted of the crime charged. A change of venue was granted to Henry Luft, and he was tried in Edwards county, xand convicted of assault with intent to commit manslaughter: Because both convictions grew out of the same transaction, the two appeals were argued and submitted together.
Neufeld was hired at Great Bend, and was taken by automobile from that place to George Luffs farm near La Crosse, to work as a threshing hand. -The threshing to be done was delayed from Friday until Monday. Meantime Neufeld was boarded at George -Luffs. On Sunday afternoon trouble occurred between Neufeld and the Lufts. Neufeld. claimed the trouble originated over a comparatively trivial matter, and he announced his intention of leaving, which enraged the defendants. There was, too, some question whether or not Neufeld’s physical condition was such that he would be -able to do- much work, after the Lufts had been to the expense and trouble of bringing him from Great Bend and boarding him. The defendants claim Neufeld was discovered in the act of commiting a bestial crime, and they undertook to apprehend him and deliver him to the authorities for prosecution. Whatever the occasion, Neufeld fled. The defendants pursued him for several miles, over hills, through fields, across ravines, along roads, and through fences, and finally overtook him. When overtaken he was in an exhausted condition, and the defendants proceeded, not to reduce him to custody to be prosecuted, but to beat him with savage brutality with a club, to kick and stamp him, and to drive a horse and buggy over him while he was prostrate on the ground. An automobile with several occupants arrived, and he was taken to La Crosse to a doctor. He was in a fainting condition when he arrived at the doctor’s office, and had to be restored before an examination could be made and the extent of his injuries ascertained.
Henry Luffs appeal will be considered first.
George Luft, at his own trial, related what occurred at the time of the felonious assault. He said that Neufeld fought him, and cut him in the abdomen with a knife. He was effectively impeached by evidence that the wound he claimed was made with a knife was produced by other means, at La Crosse, subsequently to the encounter. George was a witness at Henry’s trial. He said again that Neufeld fought him, but so framed his' testimony that no reference was made to Neufeld’s use of a knife. On cross-examination the occurrence was probed, and in response to the question, “What did he fight you with?” he answered, “with his fists, with one fist and with a knife.” In response to other questions he said Neufeld cut him, and described the wound. The state then impeached him, as it had done before. The contention is that the state was bound by the answers which it elicited on cross-examination, and that the impeaching evidence was improperly received. The cases of The State v. Alexander, 89 Kan. 422, 131 Pac. 139; The State v. Sexton, 91 Kan. 171, 136 Pac. 901; and The State v. McLemore, 99 Kan. 777, 164 Pac. 161, are cited in support of the contention.
The cases cited apply the rule that a foundation for impeachment cannot be laid by questions asked on cross-examination relating to matters collateral to the issue. In this instance the details elicited by cross-examination were not collateral at all. They were of the substance of the issue. The two Lufts were engaged in the execution of a common design —according to their story, the apprehension of Neufeld. They admitted the use of force, but claimed they were justified. By. way of justification, the witness said that Neufeld fought him. By the term “fought” the witness summarized Neufeld’s acts. The term was vague, and the cross-examination merely developed the witness’ explication. Cutting with a knife was one of the acts which the witness included, and the situation was precisely the same as though he had said on direct examination that Neufeld cut him with a knife, in the manner described.
Two veterinary surgeons gave identical opinions respecting a subject concerning which their professional training clearly qualified them to speak. They had also made experiments relating to the matter. A third witness, who possessed other qualifications, had made experiments respecting the same subject, and was allowed to give his opinion, which coincided with that of the veterinarians. It is said he was not qualified. Pro fessional or technical knowledge was not necessarily required to qualify the witness to speak, and the court is inclined to think he was qualified. If he were not, the court will not assume that the jury took his opinion rather than that of the veterinarians; and in any event, the verdict of the jury was not rested on the testimony of this witness. It is urged with much vigor that it was error to admit the experiments. The record shows the experiments were not admitted.
Complaint is made that in cross-examination • of witnesses produced by the defendant tó show his good character, questions included assumptions of derogatory facts not in evidence. It was not possible the facts should be in evidence. There is nothing to show that the questions were not propounded in good faith, the answers were all favorable to the defendant, and the court instructed the jury to consider nothing but the. answers. Consequently the complaint is groundless.
Misconduct of the jury is charged. It is said that one of the jurors, during the deliberations of the jury, made a statement of fact, based on'his personal knowledge and outside the evidence, concerning a material matter. The statement related, not to the vital subject of the guilt or innocence of the defendants, depending on what occurred in the field where Neufeld was overtaken, but to the guilt or innocence, of Neufeld, depending ofi what occurred at the Luft barn, some miles away. No matter what the motive which actuated the defendants in instituting their long chase of Neufeld, the ferocity of their violence when they overtook him was the product of criminal intent then and there manifestly entertained, and it is not very material just how the trouble at the barn originated. The knowledge which prompted the juror’s statement was not per culiar to him, but was knowledge common to farmers, and on investigation it was disclosed that the statement was not one of fact at all, but was merely the expression of an opinion. The result is that the juror was not guilty of misconduct (Hulett v. Hancock, 66 Kan. 519, 72 Pac. 224), and in any event, the defendant’s rights were not prejudicially affected. (The State v. Farrar, 103 Kan. 774, 176 Pac. 987.)
After the verdict of guilty had been returned, the court sustained a motion for a new trial, on account of the incident which has just been discussed. The state made application for a reconsideration of the motion for a new trial, and after a re consideration the order granting a new trial was set aside and the motion for a new trial was overruled. The defendant claims the court was without power to set aside the order granting the new trial.
The motion for a new trial was granted on July 6,1917. The cause was continued to the next term, and the defendant’s bond to appear at the next term was fixed. The bond was given on August 30. On September 4, the state filed its motion for reconsideration. Hearing of this motion was set for September 28. Notice of the motion and of the time of the hearing was duly served on the defendant. On September 28, the defendant appeared in person and by counsel, and hearing of the motion for reconsideration was continued until the first day of the next term. The term at which these proceedings occurred was kept open by adjournments subject to call. On November 19, the first day of the next term, the motion for reconsideration was allowed, and a second hearing of the mo-' tion for a new trial was appointed for December 10. On December 10, the hearing occurred, and the motion for a new trial was denied.
The plenary power of the court during the term over its orders and judgments is too well established to need buttressing by authority. The quality of finality is always conditioned by the possible exercise of this power, and the court may freely return to the proceedings, and correct, revise, amend, or annul them. In the case of The State v. Meyer, 86 Kan. 793, 122 Pac. 101, in which pertinent authorities are cited, the rendition of a second judgment, imposing a heavier penalty, would have been sustained but for the fact that the defendant had already served a portion of the first sentence. In the case of The State v. Langmade, 101 Kan. 814, 168 Pac. 847, action of the district court was approved setting aside a judgment of conviction, setting aside an order denying a new trial, and granting the defendants new trial, although the defendant had taken an appeal to this court. Exercise of the power does not depend on who invokes it, whether the plaintiff or the defendant, and does not depend on the character of the order, whether in its nature intermediate or final; and the order granting a new trial remained in the breast of the court, subject -to further consideration, for the prevention of error and the promotion of justice.
Taking cognizance of the motion to reconsider the ruling on the motion for a new trial reopened the case to that extent, and made the ultimate conclusiveness of the ruling to depend on the result of further proceedings. Having thus, during the term, laid its hand on the ruling and placed itself in a position to withdraw the ruling should it see fit, the court could then continue the proceeding to- the next term, as it did, without suffering loss of power.
Section 274 of the code of criminal procedure provides that the granting of a new trial places the parties in the same situation as if no'trial had occurred. .(Gen. Stat. 1915, §8190.) The purpose of the provision was, specifically, to forestall abatement of the second trial on a plea of former jeopardy, and, generally, to render inoperative for any purpose anything done or occurring at the first trial. The provision has no reference to the power of the court during the term over the work of the term, and contemplates those orders granting new trials which ultimately become final orders on the subject.
Authority to revise proceedings during the term at which they occurred includes authority to require the presence of the defendant whenever necessary. While no specific process is provided, a bench warrant would suffice if notice to appear should be disregarded.
There are other assignments of error, and other subdivisions of those assignments which have been noticed. They have all been considered, and none of them is of sufficient importance to require separate discussion, much less a reversal. i
George Luffs appeal furnishes little sound material for a judicial opinion, because so many of the multiplied assignments of error are made in the face of well-settléd rules of law and .practice, or else are too clearly inconsequential" to deserve formal discussion.
Perhaps one grain of wheat in the two bushels of chaff: was this: When Neufeld was hired he was not entirely sound physically. He was taking medicine for something. He denied that it was what the defense insinuated it to be, and he claimed he had suffered an accidental injury. In a little biographical introduction to his testimony he said he left his home in Oklahoma in March, for Kiowa, Kan., where he secured work. He worked in that county until after harvest, when he came north to Great Bend, where the Lufts found him and hired him. At the -close of his direct examination he said he was not stout enough to work when employed by the Lufts, because he had received an injury in harvest — three ribs were broken loose from the'sternum, which left him in pretty bad condition. On cross-examination he said he received his injury while driving a header, and gave the details. At the hearing on the motion for a new trial the defendants produced evidence indicating that the story of the header accident was a fabrication, and the defendant desires a new trial to prove it. The case of The State v. Mounkes, 91 Kan. 653, 138 Pac. 410, is relied on.
In the Mounkes case the newly discovered evidence bore directly on the subject of the truthfulness of the materially divergent accounts of the affray itself. In this instance the new facts are not even collateral to a material issue, because to be collateral a fact must be related to, although not strictly a part of, the main thing under investigation. The brutality displayed when the defendant beat Neufeld with the club, and when the horse driven by Henry Luft trod on Neufeld’s back,was not justified on the ground of Neufeld’s physical strength. It was justified on the ground he,used a knife, a fabrication of the Lufts. The header-accident injury bore no relation to the injuries inflicted on Neufeld by the Lufts. The physician who examined Neufeld immediately after the encounter testified that he had a freshly fractured rib beneath a bruise on his back, below the shoulder blade. The physician also found indications that other ribs had been broken, and another physisian, who was appointed by the court to examine Neufeld, testified that he found indications of former fracture of the ribs from the sternum; but there v/as no testimony attributing the old injuries to the Lufts. The Lufts themselves strongly contended that Neufeld suffered from physical disability, but they are not satisfied with his statement of the cause. Suppose Neufeld did falsify. The court has said on numerous occasions that a new trial will seldom be granted for the production of newly discovered impeaching evidence, and mqr.e rarely when the evidence relates to a wholly immaterial matte#. I,t is not of the slightest consequence what was responsible for Neufeld’s physical condition, and it would burlesqué justice to grant a new trial to wrangle about it. Besides this, a new trial is granted because of newly discovered evidence only when the evidence could not, with reasonable diligence, have been discovered and produced at the trial. Henry Luft, testifying for the defendant, and another witness for the defendant, said that Neufeld told them about the header accident before the trouble at George Luffs barn occurred. If the subject bore any substantial relation to the charge contained in the information; it ought to have been investigated before the trial. (The State, ex rel., v. Creager, 97 Kan. 334, 337, 155 Pac. 29.)
The limits of the court’s discretion were not transgressed in the cross-examination of the defendant concerning his marital status, and if anyone was worsted by what took place, it was the state.
■It developed on cross-examination that the defendant had been required to give bond to keep the peace. The testimony indicated that the proceeding to keep the peace was instituted because the defendant had assaulted and beaten one Philip Schwindt. The defendant desires a new trial to show by the-record that he merely threatened to assault and beat Schwindt. Comment is unnecessary.
Henry Luft, a witness for the defendant, was asked, as a preliminary question, whether or not he knew one Martha Quimby, or Martha Strait, a notorious prostitute generally known about Rush county as Battle Axe. It is said the question assumed that Battle Axe was a prostitute, and authorities are cited to the effect that questions must not take for granted uncomplimentary facts. Aside from the circumstance that the question was preliminary, it merely identified fully the person inquired about. It appears, too, that the identification was not too minute, because Henry said he did not know whether it was a horse or a woman inquired about. He did afterwards admit that the woman kept house for him, he being a single man. The question preceded an inquiry about Henry’s character as a fighting man, and he was asked if he and the woman were not arrested for assaulting, beating, and wounding one Chaddock, and if they did not plead guilty to the charge. He admitted that he pleaded guilty, but said the woman was not in the case, and. that the record of conviction was wrong, according to his figures, if it showed, that both pleaded guilty and were fined. It is said that all this was very prejudicial to the defendant. If it were, there was nothing erroneous about it.
The defendant admitted that he pleaded guilty to a charge of assault and battery on one Kennedy. He made offers to prove all the facts involved, in order to vindicate himself and Henry in the Kennedy and Schwindt cases, and he desires a new trial in order that he may do so. The court wisely concluded to stick to its business of trying the defendant for the assault on Neufeld. Besides this, these and other offers of evidence which'was rejected were forgotten at the hearing on the motion for a new' trial, and the evidence was not then produced. Certain evidence pertaining to the crime imputed to Neufeld was not newly discovered, was cumulative, and could, with due diligence, have been produced at the trial. The court was not compelled to appoint any number of physicians to examine Neufeld. It was not error to appoint only one. If the defendant did not like the testimony of that one, he need not have introduced it, and the court committed no error in telling the jury that the witness was a witness for the defendant, called out of regular order. The record discloses no application for a change of venue, and the showing made at the hearing on the motion for a new trial relating to the impossibility of a fair trial proved farcical. No error was committed in filling the panel of jurors, no disqualification of jurors was established, and the jurors were not guilty of misconduct. All other assignments of error are deemed to be without merit.
The judgment in each case is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiffs sued to compel, the defendants to issue to them certain certificates of stock in the State Bank of Esbon and to cancel outstanding certificates then held by Richard Beachy. The issues were so framed as to include a much wider controversy than indicated by what is called the application for the writ, and the trial resulted in a judgment for the plaintiffs, from which the defendants appeal.
„ H. B. Keim, R. S. Beachy and M. J. Beachy were in the banking business at Esbon and owned all the capital stock of the State Bank except' three shares, one of which was owned- by W. E. Mallory, one by A. S. Poulson.and one by J. C. Hershner, represented respectively by certificates No. 1, No. 2 and No. 3, each for $100, there being 153 shares in all.
Early in 1903 a contract was entered into by which H. B. Keim, R. S. Beachy and M. J. Beachy sold to Richard Beachy an interest in the bank, and in which it was agreed that the total capital should be $30,300, divided into shares of $100 each, of which $15,300 should be shown as capital stock and the remainder placed to the credit of Beachy, Keim & Co., and used by the bank as though it were capital stock. The $15,300 capital-stock was to be divided one share each to R. S. Beachy, Hershner, Mallory, and Poulson, 59 shares to H. B. Keim, 15 to M. J. Beachy and 75 to Richard Beachy. It was also agreed that should the three shares of stock not owned by the parties be purchased by the Bank of Esbon “or by any part of them,” then each party to the contract should be entitled to one-half of such stock as might be purchased from time to time, and when all such outstanding stock should be purchased by the bank each party to the contract should own one-half of the stock thereof. It was also agreed that neither party to the contract should join the stock not owned by either of them when it should come to a matter of voting on any issue that might arise in the bank, but that all matters should be decided wholly by both parties to the contract and by them only. The contract was signed by H. B. Keim, M. J. Beachy and R. S. Beachy, “Parties of the First Part,” and Richard Beachy, “Party of the Second Part.” In 1906 the stock was increased to $25,000, each faction holding 123% shares.
The plaintiffs alleged that the defendant Richard Beachy was cashier; that they had bought 125% shares of the bank stock; that the original shares were delivered to them properly signed and registered by the owners thereof; that after they delivered their certificates to the defendant Richard Beachy he caused to be executed and delivered to them 119% shares and refused to deliver the other 6 shares, for the purpose of keeping in himself and immediate members of his family the control of the bank; and that the 6 shares were represented by certificates No. 31 and No. 34.
The answer alleged that on the 14th day of October, 1916, when certificate No. 34 purported -to have been issued, the full 250 shares were outstanding and No. 34 was void as an overissue and because of not being properly executed. The same allegation was made regarding certificate No. 31. It was denied that Richard Beachy had ever refused to issue new certificates to the holder of any valid certificate; that when the contract was entered into certificates No. 1, No. 2, and No. 3 stood in the names of Mallory, Poulson, and Hershner..
The provision of the contract already referred to was pleaded, and it was further alleged that on of about December 3,1908, H. B. Keim bought the Mallory share, to the certificate of which there was attached a written assignment by Mallory to H. B. Keim, who, for the purpose of covering and concealing* the fact of his purchase,, inserted before his name in the assignment the letters “Mrs.,” but that no assignment was ever made to Mrs. Keim; that on or about January 7, 1914, H. B. Keim fraudulently attempted to assign this certificate to one Albert Jelinek, writing on the back thereof an assignment, and signing it “H. B. Keim”; that at this time Jelinek was an employee of the bank and had knowledge that Richard Beachy was the owner of one-half of this share of stock, and that the pretended assignment from H. B. Keim to Albert Jelinek was never entered on the books or records of the bank; that at the time of executing this assignment Jelinek promised to deliver on the following day certificate No. 30, but that it was not delivered until October 14, 1916, when it was marked canceled; that on or about October 14, 1916, H. B. Keim, who was then president, wrongfully- and in the nighttime, and not in the presence of Richard Beachy, the managing officer in control of the bank and in possession of the books and records, entered the bank and issued to himself a pretended certificate for five shares, numbering it 34; that on or about January 14, 1914, H. B. Keim fraudulently attempted to issue to L. G. Keim, his wife, certificate No. 31 for one-half a share, when the full amount of authorized' stock was already outstanding; and that these fraudulent certificates were the ones on which the plaintiffs based their claims, although when purchasing them “the plaintiffs had full knowledge of all matters and things herein alleged.” Then followed numerous averments of misconduct on the part of the Keim faction, and of H. B. Keim himself, which need not be set forth.
The record shows that Keim bought the Mallory share January 3, 1908, but let it stand in the name of Mallory until January 17,1914, the dividends being paid to Mallory during all that time. The assignment by Mallory was made to read “Mrs.” H. B. Keim. Six years thereafter H. B. Keim assigned the certificate to Albert Jelinek. After Richard Beachy learned that the Mallory share had been purchased, he bought the1 Poulson share for his son. This left the two crowds-equal, with,the Hershner share to be bought and divided to keep them equal, or to be acquired by one and thereby gain the controlling interest in the bank.
About August 6, 1913, Jelinek bought the Hershner share for $525. He testified that'when Richard Beachy wanted1 him to divide this share with him and said that half of it belonged to him according to the contract, he, Jelinek, refused, saying that before he did anything about it he wanted Mr. Keim to know about it, and having seen Keim he told Beachy that Keim said that whenever he was ready to dispose of his interest in the bank he, Keim, would give Jelinek the first chance on it. Also that later, when requested to come back into the bank, Jelinek replied that he would do so for the sake of the bank and Mr. Keim’s interests; and that after this he transferred the certificate to Mrs. Keim, Mr. Keim bringing the money.
On April 11, 1914, Albert Jelinek owned 5 shares, certificate No. 30, which stood in his name on the books of the bank. He executed a written assignment for one-half of one of these shares to Richard Beachy and agreed to bring in certificate No. 30 for cancellation and reissue, but it was not delivered until months afterwards.
The written assignment executed by Jelinek expressly authorized the proper officers of the bank to make the necessary transfer on the stock-certificate book. The method adopted by the bank and set forth in its by-laws was to surrender up for cancellation assigned stock, and issue new certificates in lieu thereof, so that when the cashier issued to himself a new certificate for one-half a share he was acting under this authority, as he was in marking the old certificate canceled when it was finally turned in. The statute requires transfers to be made in accordance with the by-laws; (Gen. Stat. 1915, § 570.) Jelinek testified that when he executed the assignment he knew that certificate No. 30 stood in his name on the books of the bank, and that he first decided not to bring it in after he saw his wife, who said she would turn it over to Keim, and that she never paid him anything when he turned it over to her. The old certificate offered in evidence showed an assignment by him to his wife in February preceding the April when he made the assignment of a one-half share to Beachy. When Beachy issued certificate No: 32 to himself for the one-half share he. placed to Jelinek’s credit $270. Jelinek testified that after scratching out this entry “in order to keep the ledger in balance” he made another account and gave credit to Albert C. Jelinek, but did not draw it out. It was still to his credit at the time of the trial. The dividends on the Hershner share were divided between the two parties after 1914. It is said in the defendants’ brief that “Mrs.” is in different ink and of a later date than the assignment by Mallory. At any rate, the certificate was not assigned by her, the apparent owner, but by her husband who on the face of the previous assignment had no interest in the certificate. Similarly, what appeared to be Mrs. Jelinek’s stock was assigned by Mr. Jelinek.
Corporate stock is not negotiable, and whoever takes it does so subject to the equities and burdens, even though ignorant thereof. (Hammond & Co. v. Hastings, 134 U. S. 401; Clark on Corporations, 3d ed., 330, 540.) The contract made between the two factions of the bank by which each, was to obtain one-half of the stock and neither was to have the controlling interest is clear, and its intention is not a matter of doubt. That- the Keim faction undertook to violate this agreement is plain. The attempted issue of the certificates involved herein was in violation of the contract, and, as between the two factions, wrongful and unjustifiable on the part of the Keim crowd. It is also clear that Jelinek was used by the Keims to manipulate purchases and transfers for their benefit.
Richard Beachy had all this time been cashier of the bank, in charge of all the books and records, and he is not responsible for--the overissue or for the violation of the contract by the Keims or fdr the purchase of the shares in controversy.
When the stock- of a bank is paid in, the cashier, must transmit to the bank commissioner the names and residence of the stockholders and the amount held by each.- (Gen. Stat. 1915, § 518.) It was said in Faulkner v. Bank, 77 Kan. 385, 94 Pac. 153:
“A bank must at all times have a register of its stockholders. It must know who is entitled to vote its stock, who is entitled to receive dividends, who may be called upon for assessments, and, generally, who should bear the burdens and receive the benefits of stock ownership. . . True, shares of stock are personal property, and as such are transferable; but upon a change of ownership the transfer must be made on the books of the bank, and must be certified immediately to the bank commissioner.” (p. 387.)
(See, also, Bank v. Price, 79 Kan. 283, 292, 98 Pac. 222, 100 Pac. 280.)
In Bank v. Strachan, 89 Kan. 577, 132 Pac. 200, it was held that a transfer is essential to a release from liability of a shareholder.
A few peculiar things about the case disclosed by the evidence are that Jelinek claims that he was intimidated by’ Beachy into assigning the one-half share of stock (which was denied in toto by Beachy) and afterwards he came back into the bank at Beachy’s request. Another is that Jelinek testified that he had destroyed all the correspondence with Keim about the Hershner share of stock; and Mr. Keim, said to be present in the court room, did not take the stand, but left whatever explanation was made of his and his wife’s connection with this share to be testified to by her. Jelinek testified that he first talked about transferring the half share to Beachy the latter part of August or the first part of September, 1913.
“I told Mr. Beachy I would divide the one share of stock, but on advice of Mr. Keim I refused to do so. I wrote Mr. Beachy to the effect that I intended to divide the stock until I saw Mr. Keim and he objected to me dividing the stock.”
The plaintiffs assert in their brief that the certificates issued for one-half share to Beachy and for 4% shares to Jelinek were void because. original certificate No. 30 was not surrendered to the bank at the time and because the by-laws required this to be done as a prerequisite to the transfer and issuance of new- stock. It is true that section 20 of the by-laws provided that the stock was transferable only on the books of the bank and that when the stock was- transferred the certificates should be returned and canceled and new certificates issued, but it is also true that the same section provided that the certificates of stock “signed by the president and cashier” (not the assistant cashier) “may be issued to shareholders,” and that both of the'certificates, No. 31 and No. 34, were signed by the president and Jelinek, assistant cashier, and not by the cashier. This defect must have been recognized and the attention of the court called thereto, because the order not only granted the mandamus but' directed the cashier to “correct any defect in form as to the issuance of certificate numbers thirty-one (31) and thirty-four (34) ; by attaching his signa ture as cashier to said certificates and to transfer the shares of stock represented by said certificates upon the books.”
The fact that the assignment from Jelinek to Beachy was not written on the back of the certificate did not preclude the passing of title. (Thompson on Corporations, 2d ed., § 4321, and cases cited.) “As between the corporation and the stockholder the stock book is primary and the certificate secondary evidence of their relation. And in case of dispute the transfer book controls.” (§4331.) It has been held that a statute making void a transfer not entered was satisfied by an entry on the books of a memorandum of an assignment showing the sale, though not on the certificates, and though the certificates themselves were not transferred. (§4333. Equitable Securities Co. v. Johnson, 36 Colo. 377, 85 Pac. 840.) A by-law providing that the stock should be transferred only on the books of the corporation was held not to prevent acquisition of title to stock by assignment from the owner without transfer on the books. (§ 4337; Crenshaw v. Mining Co., 110 Mo. App. 355.) In the case last cited it was said that neither statute nor by-laws were intended to prevent the alienation of corporation stock thereby, but to enable corporations to deal with intelligence with their stockholders, (p. 365. See, also, 7 R. C. L. 264, § 242.) According to Jelinek’s own testimony he owned the one-half share when he issued it to Beachy, because he does not claim that he gave it to his wife, and he received nothing from her for it. Being the owner and having by written assignment conveyed it to Beachy with express authority to make the necessary transfer on the books, he cannot by his own failure to return the certificate, as he agreed to do, avoid Beachy’s act in making the transfer.
As to overissue, see Kelly v. Insurance Co., 101 Kan. 91, 165 Pac. 806, and Thompson on Corporations, 2d ed., § 3545. No one holding a share of stock void for overissue can compel the real owner so to manipulate the stock books as to deprive him of his share, and by so much the more he cannot by mandamus compel the cashier of the corporation to recognize as valid a certificate void for overissue.
One having no title to stock cannot by a pretended or attempted sale thereof pass title thereto. Even if the plaintiffs purchased without knowledge or notice of the real condition of things they can claim no better title than their vendors had, and can demand no unlawful or ultra vires act of the defendants.
Certainly, viewed as a controversy of an equitable nature, as the case is said to have been treated by the trial court, the equities are not with plaintiffs. (Moore v. Crawford, 130 U. S. 122, 132.)
Whatever the proper claims of the plaintiffs may be against the Keim faction or those from whom they bought certificates No. 31 and No. 34, they are not entitled to the relief sought and obtained against the defendants in this action.
The judgment is reversed, and this cause is remanded with directions to deny the writ.
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The opinion of the court was delivered by
West, J.:
The plaintiff appealed from the award of commissioners appointed by the district court to condemn a certain ground for depot purposes, and recovered exactly the same amount awarded him by the commissioners. ■ The railroad company moved to retax the costs amounting to $125, and from an order overruling this motion, it appeals.
While the motion should have been granted, an appeal cannot be had on a mere matter of costs. (Civ. Code, § 566, Gen. Stat. 1915, §7470; Richmond v. Brummie, 52 Kan. 247; 34 Pac. 783; Hazelwood v. Mendenhall, 97 Kan. 635, 156 Pac. 696; Shannon v. Abrams, 98 Kan. 26, 157 Pac. 449.)
It is also our duty to decline the assumption of jurisdiction, although the point is not raised by the parties. (Skoin v. Limerick, 50 Kan. 645, 31 Pac. 1051.)
The appeal is dismissed.
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The opinion of the court was delivered by
Dawson, J.:
This is an action for damages for breach of an alleged contract for the sale of a herd of cattle.
Plaintiff’s petition alleged that the defendants, John T. Den-ton, C. H. Wood, and J. O.- West, were partners in a firm styled John T. Denton; that plaintiff made a contract with this partnership, through J. O. West, to purchase 240 head of steers at an agreed price; and that the defendant partners refused to deliver the cattle — all to the damage of plaintiff in a specified sum.
The defendants Denton and Wood denied under oath that they were partners of J. O. West; denied that West had authority to make a bargain for them or either of them; denied that West made a contract with plaintiff for the sale of cattle as alleged; and they each alleged, also, that West was a partner of the plaintiff, and that the contract was void.
A demurrer to plaintiff’s evidence was sustained by the trial court, and the correctness of that ruling is the question for our review.
Allowing plaintiff’s evidence that favorable consideration and generous credence to which it is entitled as against a demurrer, it was shown that defendant West had a conversation with defendant Wood, in which the latter told West that if he should find an opportunity to purchase cattle and doubted his own judgment, West might send for Wood, and if Wood and West should then decide to buy, they would ship them to mar ket and “go 50-50,” which probably meant that they would share the profits and losses equally. Some time afterwards, pursuant to this arrangement, West discovered in Meade county the herd of cattle involved in this lawsuit, and wired Wood to come and look them over. Both Wood and Denton arrived, and after some preliminary talk between Denton, Wood, and West, in which it was agreed that Denton should do the bargaining with the owner of the cattle and that they would “split it three ways,” the cattle were purchased. On the same day, West, with the sanction of Denton and Wood, and pursuant to their dictation, wrote and mailed a letter to plaintiff, which reads:
“2-26-17.'
“Mr. C. B. Coo-,, Eureka, Kans.
“Dear Sir: Do you want to buy 240 good 100 lb. [1000 lb.] cattle at 8.25 must be sold by Friday. Weighed in Meade Kans. on Rock Island, cattle to leave feed lot at sun rise drive 5 mi. & stand 2 hours, good boned cattle red and white face, good cattle for grass with plenty of flesh now. Phone me at Wichita Ks. c/o Acacia Hotel. Will be there 27-28-& to 9 on 1st. . J. O. West.”
Plaintiff received this letter on. the following day, February 27, and sent an oral message by a man named Stoner to West at Wichita that “he would take the cattle according to the letter.” Stoner went to Wichita and delivered the message. Next day, February 28, plaintiff went to Wichita and met West at a hotel, and inquired if Stoner had informed him that he would take the cattle. Plaintiff also said, “I came up to go down and receive those cattle.” West said, “All right.” In the course of the same conversation West told plaintiff that he had two partners in the cattle and that they were “not wanting to come across with the contract.” West had already received a letter from Wood saying:
“Mr. J. West, Wichita, Kan.
“Dear Friend here 1145 Mr. dentón went to kc I am going home if the market looks bad he will wire me and I will trye to arrange for feed in the meantime don’t close a deal on them cattel with out our nowing it first as I mite have feed bought for them call me at grenola Kans. 4PM at our expens tomorrow mr dentón will advise me as to market by that time.”
Less important features of the evidence developed on cross-examination of plaintiff’s witnesses, all of little consequence on a demurrer to the evidence, were that West had paid nothing for his interest in the cattle; that if the cattle were not sold they were to be shipped to Wood’s ranch and fed and indefinitely retained; and that West, did not know and could not define what interest he would have in the cattle if that were done.' It was also developed that plaintiff and West were dealing in cattle together and were jointly interested in certain cattle herds in Meade county and elsewhere.
The court is of the opinion that, tested by demurrer, Denton, Wood, and West were partners in-this particular cattle deal, each having an interest in the possible profits,'and each being subject to liability in the possible losses of the venture. But it seems clear that there was no lawful bargain between West and plaintiff which would bind Denton and Wood. West’s letter to plaintiff, authorized by Denton and Wood, was not an offer to sell subject to acceptance. It was a mere inquiry designed to lead to preliminary negotiations and in the expectation that a bargain might be consummated. Moreover, if it could be construed as an offer to sell, there was no compliance with the terms on which an acceptance was to be indicated. If so construed, the method of acceptance indicated by the offer was “Phone me at Wichita, Ks. c/o Acacia Hotel.” If Denton and Wood are to be bound by the letter which they dictated, they are to be bound by its terms, not otherwise — not by an oral message delivered at leisure by an unrecognized third person. But, in all justice and good conscience, it must be said that the letter of inquiry was not an offer; it was merely a common and practical inquiry to arouse the interest of one with whom preliminary negotiations and an eventual bargain might be made, (Schon-Klingestein Co. v. Snow, 43 Colo. 538, Patton v. Arney, 95 Iowa, 664; Tanning Co. v. Telegraph Co., 143 N. C. 376; Moulton v. Kershaw and another, 59 Wis. 316; Note, 110 Am. St. Rep. 754; 35 Cyc. 50; 6 R. C. L. 600.)
Did a lawful and binding bargain arise when plaintiff met West in Wichita ? We think not. In the same conversation in which plaintiff said, “I came up to go down and receive those cattle,” and in which West said, “All right,” West also said:
“I says I had another partner on these cattle, Mr. Denton and Mr. Wood, and they are not wanting to come across with the contract.”
While it is familiar law that ordinarily one partner may bifid his fellows on business matters within the scope of the partnership, in dealing with persons who have no notice of any limitation of the partner’s powers (Bank v. Jacobs, 97 Kan. 798, 156 Pac. 771), yet the rule is otherwise where the person dealing with a partner knows that the other partners are not assenting to the transaction. “The implied power of one partner to mortgage firm property is revoked by a dissent of his copartners,” as against a mortgagee who, at the time the mortgage was given, knew of the dissent. (Carr v. Hertz, 54 N. J. Eq. 127.)
‘.‘The partnership relation makes each partner the agent of the others when acting within the scope of his power; but when his agency is denied, and his act forbidden by his copartner with notice to the party assuming to deal with him as the agent of the firm, his act is not that of the firm, but his individual act only.” (Yeager v. Wallace, 57 Pa. St. 365, 368.)
“But these considerations touch rather the rights and interests of the partners. So far as the customer, the third party, is concerned — always supposing the transaction honest as to him — we should say that the question of the power of a majority would be put aside both in law and in equity by the general rule, that, if the transaction were within the business of the firm, it bound all the partners who gave no notice to the third party; and, on the other hand, that it did not bind recusant and protesting partners who gave sufficient notice of their dissent; and that, if it was without the business of the partnership, it bound nobody but those who authorized the act or ratified it.” (Parsons on Partnership, 3d ed., 242.)
(See, also, Staples v. Sprague, 75 Maine, 458, 460; Markle v. Wilbur, 200 Pa. St. 457; McCord Company v. Callaway & Company, 109 Ga. 796; Williams v. Barnett, 10 Kan. 455, 461.)
Under the facts established by plaintiff’s own evidence, he failed to make a case against Denton and Wood, and the demurrer to the evidence was properly sustained.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover damages from the defendant for the publication of a libelous article in a newspaper published at Washington, Kan. The defendant filed an answer and cross petition in which he sought to recover damages from the plaintiff for a libelous letter written by him to the general sales agent of the Iola Portland Cement Company of Kansas City, Mo. The jury found for the plaintiff, but found that he was not entitled to damages. The judgment recited “that plaintiff is entitled to no damages and that plaintiff and defendant shall each pay one-half of the costs.” The plaintiff appeals.
1. The first complaint is about the cross-examination of the. plaintiff concerning the letter he had written to the cement company. That letter was as follows:
“W. H. KOZEL,
Dealer in Lumber and All Kinds of Building Material.
Morrowville, Kansas, June 2, 1915.
“To General Sales Agent, Iola P. C. Co., K. C. Mo.
“Gentlemen: — Yours of 6-1 rec’d and noted. Will say Charles Kozel is my brother who was with me in the lumber business up to seven or eight years ago when through our dealings we decided for one or the other to sell his interests to the other. I bought his interest and good will out at that time, and he has since always tried to belittle me in my business. We are not on friendly terms because some three to four years ago he borrowed $3,000.00 from my brother-in-law and he was forced to try to collect same through court. He has judgment against him at the present" time but cannot collect same at this time. I knew this, money was loaned to him and was a witness in court against him, hence he is doing me all the dirt he can. Chas. Kozel is a farmer now. He feeds stock as any one else. He does not deal in grain for himself only, as he buys it as I do, to feed on farm. This cement, I understand, he sells out only to hurt my trade as well as he hurts surrounding towns, as he sold some here for 40 cts. net. Think you must have sold him one or two cars already, as the cement he got was the Iola. If you care of protecting legitimate dealers you will refuse to sell him or any one else here any more cement unless I buy from you which I may do later. If you want to quote him or sell him any more cement quote him 20 cts. per bbl. above the market and remit same to me which will be all right with me and my neighbors. He tried to do the same with lumber bu,t has not succeeded as yet. Would be pleased if you would advise your friendly cement competitors about Chas. Kozel’s ways in this deal. Please advise me whether I am right in this and oblige.
Yours truly, (signed) W. H. Kozel.
“P. S. — Think C. K. might have got a car of this through the Haddam dealer who I understand handles your cement. Am I right? See about this and oblige. W. H. K.”
It may be conceded that the cross-examination of the plaintiff about the letter was improper, although the evidence would have been competent if it had. been introduced by the defendant to prove his case. In De Lissa v. Coal Co., 59 Kan. 319, 52 Pac. 886, the defendant was permitted to improperly cross-examine the plaintiff concerning a number of letters that had been written by him, but the court-refused to reverse the judg ment for such improper cross-examination, because it was not prejudicial. To reverse the present judgment on account of the cross-examination would be to ignore section 581 of the code of civil procedure, which requires the appellate court to disregard all mere technical errors and irregularities which do not appear to have affected the substantial rights of the party complaining.
2. The plaintiff contends that the letter written by him to the cement company was a privileged communication, and that the question of its privileged character should not have been submitted to the jury. The letter was written in response to the following communication from the cement company:
“June 1, 1915.
“W. H. Kozel Lv/mber Co., Morrowville, Kansas.
“Gentlemen: — We have an inquiry from Charles Kozel, a dealer in grain and livestock, who also advises he is in the cement business in a retail way and asks for price on Iola.
“We find no mention of Mr. Kozel in the various books of the commercial agencies and are also wondering if he would be entitled to dealers’ prices on Portland Cement. Our policy is to confine our sales to the regular lumber and building material dealers and wish you would please advise us if you consider Mr. Kozel a dealer in cement, also that we may know how to quote him accordingly.
“We appreciate the fact that you are giving us none of your valued patronage but we are just as glad to give you protection nevertheless, as we realize some day we may be favored with part of your trade.
“Thanking you for a prompt reply, we are
“Very Truly Yours, “General Sales Agent.”
It may be conceded that the plaintiff is correct in his contention that it was for the court to determine, as a question of law, whether the letter was a privileged communication. An examination of the letter from the cement company reveals that it requested information on 'one subject only. The plaintiff’s letter indirectly gave that information, but it contained statements concerning other matters on which no inquiry had been made. The additional statements thus made were outside the privilege. The privilege did not extend further than to an answer to the inquiry. (Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281; Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533; Marney v. Joseph, 94 Kan. 18, 21, 145 Pac. 822; Note, 4 L. R. A., n. s., 1113; Note, 36 L. R. A., n. s., 146; Newell on Slander and Libel, 3d ed., § 566; 25 Cyc. 386; 17 R. C. L. 343, 344.)
3. The court instructed the jury that the letter written by the plaintiff was actionable per se. The defendant complains of that instruction. Newell on Slander and Libel, 3d ed., § 47, in part, reads:
“Any written words are libelous which impeach the credit of any merchant or trader by imputing to him bankruptcy, insolvency, or even embarrassment, either past, present or future, or which impute to him fraud, or dishonesty or any mean and dishonorable trickery in the conduct of his business, or which in any other manner are prejudicial to him in the way of his employment or trade.”
(See, also, Hetherington v. Sterry, 28 Kan. 426; Schreiber v. Gunby, 81 Kan. 459, 463, 106 Pac. 276; 25 Cyc. 339; 17 R. C. L. 288.)
The letter written by the plaintiff accused the defendant of dishonesty and insolvency, and from its language the jury could have reasonably concluded that the plaintiff desired to injure the defendant’s business. The letter was actionable per se, and it was not error for the court to so instruct the jury.
4. Complaint U made of an instruction in which the court substantially told the jury that each party was entitled to recover damages from the other, if he had proved his case, “but if the judgment of the plaintiff doés not exceed the judgment of the defendant then your verdict should be for the plaintiff and with no allowance for damages.” The instruction was not erroneous under the rule declared in Cooper v. Seaverns, 97 Kan. 159, 155 Pac. 11, where this court said:
“A cause of action for slander may be pleaded as a set-off in an action for slander.” (syl: ¶ 1.)
5. The court divided the costs between the plaintiff and the defendant. Complaint is made of that judgment. To support his contention, the plaintiff argues that the jury found for the plaintiff and that, therefore, he was entitled to recover the costs of the action. Sections 613 and 614 of the code of civil procedure read:
“Where it is not otherwise provided by this and other statutes, costs shall be allowed of course to the' plaintiff, upon a judgment in his favor in actions for the recovery of money only, or for the recovery of specific real or personal property.” (§.613.)
“Costs shall be allowed of course to any defendant upon a judgment in his favor in the actions mentioned in the last section.” (§ 614.)
Judgment was not rendered in favor of either the plaintiff or the defendant. Under the statute, neither was entitled to judgment against the other for all the costs. Each was liabté for the costs made by him, and it does hot appear that a division of the costs was not a proper adjustment thereof.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
J. W. Marshall and several others brought an action to enjoin the collection of an assessment levied upon their property to pay for the paving of streets on which it abuts in Osborne, a city of the second class. The petition was drawn in three counts, although really but one cause of action was attempted to be stated. A demurrer was filed to each count on three grounds — the failure to state sufficient facts, the misjoinder of parties plaintiff, and the misjoinder of causes of action. The demurrer was sustained, the ruling being based specifically upon the second ground, the others being in effect overruled. The plaintiffs appeal.
1. The misjoinder of parties is not a ground of demurrer. (Winfield Town Company v. Maris, 11 Kan. 128, 147; Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961; Blodgett v. Yocum, 80 Kan. 644, 649, 103 Pac. 128.) Doubtless the ruling should be interpreted as sustaining the demurrer on the theory that the facts alleged as to each plaintiff really constitute a separate and distinct cause of action not capable of being joined with that of the others. The property owned by the different plaintiffs was not all in the saíne block, and the defendants assert that some of the plaintiffs have no interest in the assessment made upon the property of some of the others. If each plaintiff were complaining of some defect in the proceedings which was peculiar to his own property there could be no joinder. (Gardner v. City of Leavenworth, 94 Kan. 509, 517, 146 Pac. 1000.) But the complaint made by all of the plaintiffs is that the total amount sought to be raised by charges against the property specially benefited by the improvement is too large so that when it is apportioned among the various tracts the burden placed upon each is excessive. Therefore all are alike ■ affected by the illegality alleged and may join in asking relief. (Hudson v. Comm’rs of Atchison Co., 12 Kan. 140, 147, 148.)
2. The question whether the petition states a cause of action is involved, because if it does not, the error in holding it bad for misjoinder would be immaterial. It alleges specifically that the total amount which was charged to the benefited property exceeded the contract price and cost of the improvement by reason of including expenses incurred in establishing grades and bringing the streets to grade and in making a survey of the City as a whole, and other matters characterized as overhead charges. It also alleges that an erroneous rule of apportionment was adopted. The allegation that the benefited property was charged with the cost of bringing the streets to grade is sufficient to make the petition good as against a general demurrer, for the statute specifically requires that expense to be met by a general city tax. (Gen. Stat. 1915, § 1705; Smith v. City of Courtland, 103 Kan. 142, 172 Pac. 1027.) It is not regarded as feasible or desirable to undertake at'.this time to pass upon the validity of each specific objection set out in the petition. The pleading as a whole is not subject to demurrer.
3. The defendants suggest that the petition is defective in not setting out a tender of, or a willingness to pay, the portion of the tax the validity of which is admitted. The allegation is made that bonds are to be issued to meet the cost of the paving. The statute contemplates the payment of such bonds by taxation, payable in instalments, and this consideration removes the occasion for a tender. (Railway Co. v. City of Cherryvale, 87 Kan. 57, 123 Pac. 874.)
4. A final contention is that there is a defect of parties, inasmuch as the contractors and the holder of the bonds are not made defendants. The petition contains nothing suggesting the necessity for such additional parties.
The judgment is reversed, and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a promissory note, and for the foreclosure of a mortgage on some town lots in Arkansas City.
Prior to April 7,1910, certain persons of the name of Scruton owned the town lots. On that date they entered into a contract with Susan C. Grimes to sell them to the latter for $1,250, upon small monthly payments. These payments were made with substantial regularity until November 15, 1914, when Susan C. Grimes and her- husband assigned an interest in the Scruton contract to Frank Smith. The latter was to make the payments as they matured until the Scruton contract was satisfied. The original Scruton contract contained provisions of forfeiture for default, and the Grinies-Smith contract of assignment' contained in effect a similar provision.
On February 1, 1915, for the purpose of extinguishing the Scrutons’ interest, Susan C. Grimes and her husband, E. W. Grimes, with, the knowledge and approval of Smith, borrowed $500 from the plaintiff, and paid the same to the Scrutons, taking their deed in the name of E. W. Grimes, he and Susan at the same time executing to plaintiff a mortgage on the town lots to secure the loan of $500;
Later, E. W. Grimes became a bankrupt, and one Pattison, at a trustee’s sale, acquired the interest of Grimes in these town lots. Pattison was made a party deféndant in this foreclosure action. He filed a cross petition against Grimes and wife and Smith and wife, alleging default and forfeiture of their interests, and to quiet title to the town lots in himself. To this last petition Smith and wife filed answer, and alleged that they had occupied the property as a homestead since November 15, 1914, and that they had expended about $500 thereon for taxes, repairs, and permanent improvements.
A jury was waived. The trial court found that the Grimes’ mortgage had been made in favor of plaintiff with the Smiths’ consent, and that Grimes had obtained an equity in the property (the equity of the Scrutons) subject to plaintiff’s mortgage ; that by the terms of the contract assigned to Smith, he was to pay the taxes and keep the property insured, and that in case of his default his monthly payments should be considered as liquidated damages and as rent for the use and occupancy of the premises; that Pattison was the owner of the Grimes’ equity by virtue of the trustee’s, sale, subject to the plaintiff’s mortgage; and that Pattison’s equity or lien was for $285.37. The court decreed foreclosure and sale of the property to satisfy (1) costs and taxes, (2) payment of plaintiff’s mortgage, (3) payment of Pattison’s claim, and (4) payment of the residue into court.
Pattison bought the property at sheriff’s sale. On confirmation, the court fixed the period of redemption under plaintiff’s judgment at the usual eighteen months, and at six months under Pattison’s judgment. At the expiration of six months Pattison, upon giving bond, was granted a writ of assistance, and the Smiths were ousted from possession. The Smiths appeal.
Appellants first contend that the court erred in rendering a money judgment in favor of Pattison. Pattison’s equitable claim or lien was founded on the interest of Grimes, which Pattison had acquired at the trustee’s sale in bankruptcy. The measure and extent of this interest could only be calculated in monetary terms. The court correctly determined this monetary measurement at the sum of $287.37. The court’s decree did, not fix a personal liability on the appellants further than to subject their interest in the property to the satisfaction of Pattison’s claim. It was only a judgment in rem.
But it is said that the judgment was not within the scope of the pleadings. The Scruton contract was in the pleadings; the subcontract between Grimes and appellants was in the pleadings; the facts were in evidence; and in such a situation the pleader’s notion of the proper redress due him is not of much importance. (Eagen v. Murray, 102 Kan. 193, 170 Pac. 389.) That Pattison asked that his title be quieted against the appellants, while the court only decreed foreclosure and gave appellants six months to redeem, might possibly give Pattison a basis for complaint, but certainly the appellants were not aggrieved thereby. (Courtney v. Woodworth, 9 Kan. 443; Stevens v. Chadwick, 10 Kan. 406; Curtis v. Buckley, 14 Kan. 450; Kuhn v. Freeman, 15 Kan. 423.)
Error is also assigned upon the fixing of appellants’ redemption period at six months. Appellants derived their interest in the property pursuant to the terms of the Scruton contract and the subcontract made thereunder. By the terms of those-contracts they were to pay the sum of $610 then due the Scrutons, and to pay Grimes $390, all in monthly installments of $10 plus 8% interest, a total of $1,000 and interest. This was the purchase price of the interest in the property acquired by the appellants. On that purchase price appellants made only seventeen payments of $10 each ($170) and the interest. This was less than one-third of the purchase price which,appellants bound themselves to pay, and in such a situation their redemption period was properly limited to six months. (Civ. Code,. § 503; Neef v. Harrell, 82 Kan. 554, 109 Pac. 188; Hines v. Kays, 93 Kan. 209, 144 Pac. 240; Marsh v. Votaw, 102 Kan. 747, 172 Pac. 30.)
It does not alter the situation that Grimes, with appellants’ consent, borrowed $500 from plaintiff and with that sum extinguished the interest of the Scrutons. Their interest merely passed to him, and in turn to Pattison. That did not lessen the purchase price which appellants agreed to pay.
There was no impropriety in determining all phases of this controversy in one judgment. All these rival interests were subordinate to plaintiff’s mortgage. To effect a favorable sale of the property to satisfy that mortgage, and to satisfy as far as possible the interests of the inferior claimants also, it was proper to settle the rights of the inferior claimants. It was to their interest that'this be done. They were permitted to join issues because their inferior but rival interests were dependent upon, and affected by, this lawsuit. When it is necessary for the holder of a superior mortgage .lien to foreclose that lien he may properly sue everybody concerned, including those who have inferior interests which conflict with each other, whether they conflict with his interest or not, and the latter may be permitted to join issues with each other, although the superior lien holder is not concerned therein, and the court may settle the priority and precedence of the claims of all the parties and dispose of all phases of the controversy in one decree.
The record discloses no error, and the judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
This action was brought to recover damages caused by the defendant’s car running into a horse belonging to the plaintiff. The cár was driven by the wife of the defendant’s tenant on his ranch. From a judgment for the plaintiff this appeal is taken.
The defendant was in California, and in charge of his ranch was Mr. C. O. Young, who testified, in substance, that he was general manager. Upon advising his landlord of the condition of the feed, the latter instructed him to sell the cattle on the place, and deposit the proceeds in a bank at La Crosse. Finding a buyer with whom he was not acquainted, Mr. Young thought it best to deposit the check promptly, and it being necessary for him to help the buyer drive the cattle some distance, he sent the check to La Crosse by his wife. The Youngs owned a car which was in a garage at Rush Center, and they intended to go with it on a trip to Missouri the next morning, so Mrs. Young took the defendant’s car, in which rode her father and mother and also a man who went along to bring back the Young car, and on the way from Rush Center to La Crosse she ran into the plaintiff’s horse, causing the injury sued for. She testified that she volunteered to take the check to La Crosse, because she wanted to be in shape to start the next morning for Missouri, and wanted to get the automobile to start in. Mrs. Young worked on. the ranch, doing general housework and cooking, having no specific contract with the defendant as to what she should receive, but she did receive her board and that of her children for her services, and she had a contract with the defendant to care for the poultry and receive therefor one-half of all the poultry raised.
“Q. 40. And if it had not been that you and your husband intended to start for Missouri next morning- you would not have made that trip that day at all? A. No, sir.
“Q. 43. Did you go for anything else on that trip other than to deposit the check? A. I went for the purpose to bring our own car out from Rush Center.
“Q. 34. Did you have any other purpose in making the trip to La Crosse, other than depositing the check your husband had received from the sale of the cattle? A. No, sir.”
The court found that
“The Youngs had been forbidden by the defendant to use his car, and Mrs. Young took the same that day without the knowledge of the defendant, knowing that he did not want her to use it. Neither Mr. nor Mrs. Young- had ever used defendant’s car since getting one of their own, until that day.”
Mrs. Young testified, although he was her cousin, “he would haul other people around” but never her. Notwithstanding the finding above quoted, the court concluded as a matter of law that the plaintiff was entitled to recover.
It is contended that the defendant, having expressly forbidden the use of his car by the Youngs, cannot be held liable for the unauthorized use of it on the occasion in question, although one purpose of the errand was to deposit the check.
The plaintiff insists that. Mrs. Young was in fact on an errand as agent for the defendant, and therefore her use of his cár was on his behalf, regardless of his prohibition upon her use thereof. Reliance is placed upon the case of A. T. & S. F. Rld. Co. v. Randall, 40 Kan. 421, 19 Pac. 783, holding the railroad liable for injury to a horse which was being used without the owner’s consent by a boy employed by the railroad to round up some cattle which had escaped from its train, and also upon the case of Martin v. Railway Co., 93 Kan. 681, 145 Pac. 849, holding the defendant liable for injuries to a brakeman who had been directed by the conductor to go forward and act as fireman while the latter took charge of the locomotive. In the Randall case, the railroad company’s agents employed the young man to help round up and drive back the cattle. In carrying out his employment he took his father’s horse, without the latter’s knowledge or consent, but of course he was still acting as agent for the railway company, and was using very natural, and apparently proper, means to fulfill his agency. He had not been refused the use of the horse, and did not take it over his father’s prohibition. In the Martin case, the conductor, who had charge of the train and was responsible for its management,- directed the brakeman to act, temporarily, as fireman, owing to circumstances which the conductor deemed sufficient to justify such direction, and it was held that the brakeman in obeying this order was acting in the line of his duty, so as to bind the defendant for an injury caused by a defective brake on one of the drivéwheels of the locomotive.
Generally, a man having dominion over his own property and affairs has the say as to what persons, and to what extent, he will delegate his power. Not being a public-service corporation, but a private citizen, the defendant rightly employed Mr. Young as agent and manager of his ranch, with the accompanying arrangement that the wife was to be the cook and share in the increase of the poultry for her care of the fowls on the place, but, either from his distrust of Mrs. Young’s skill as a driver, or for some other reason, one piece of his property, an automobile, he expressly withheld from the sphere of the Youngs’ operation.' This car he had positively withdrawn from all use by them, a fact which they both understood, and a thing which he had a right to do. When he directed Mr. Young to deposit the proceeds of the .cattle in the La Crosse bank, he by no implication authorized him or his wife to use this forbidden vehicle in carrying out that direction.
But aside from this, the evidence is unmistakable that in going to La Crosse Mrs. Young was acting chiefly for herself and her husband, carrying out their mutual desire to get their car so as to go to Missouri the next morning. The mere incident of her taking the check was insufficient to constitute her Mr. Sinnett’s agent so as to make him liable for her management of his car. (Note, 21 L. R. A., n. s., 93, 33 L. R. A., n. s., 79.)
In Fleischner v. Durgin, 207 Mass. 435, it was said:
“The master is liable for the aet-of a servant in charge of his vehicle when the latter is acting in the main with the master’s express or implied authority, upon his business, and in the course of his employment, for the purpose of doing the work for which he is engaged. The master is not liable if the servant has abandoned his obligations, and is doing something not in compliance with the express or implied authority given, and is not acting in pursuance of the general purpose of his occupation, or in connection with the' doing of the master’s work.” (p. 436.)
“The owner of an automobilé is riot liable to one who is injured by the negligence of his chauffeur while operating the machine without his knowledge or permission, and for a purpose other than that for which he was employed, as where the driver is on an errand personal to himself, or is. making a detour for his own purposes; and if a chauffeur takes out his master’s automobile in violation of instructions that it must not be taken out without the express orders of himself or his wife, the owner may be relieved from liability in the event of the occurrence of an accident.” (2 R. C. L. § 33, p. 1199.)
The judgment is reversed, and the cause is remanded with ^directions to enter, judgment for the defendant. ^
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The opinion of the court was delivered by
Porter, J.:
In an action brought by the state the appellant was enjoined from 'obstructing a public road laid out and opened for travel more than thirty years ago.
The question involves, so far as appellant’s rights are concerned, only that part of the road which crosses his land. Road No. 17 in Hodgeman county was laid out in 1885, leading in a southerly direction from the city of Jetmore to connect with a road in Ford county to Spearville on the Santa Fe railroad. Ever since it was laid out it has been used and traveled.
In a collateral attack on the original proceedings the appellant urges a number of technical obj ections to the sufficiency of the record, contending that these show a lack of jurisdiction in the commissioners. The affidavit of service of notice to landowners was sworn to before a deputy county surveyor, who it is insisted was not authorized to administer oaths, except to witnesses called before the viewers. The error was, at most, of trifling importance, and must be held cured by lapse of years.
Appellant’s land belonged to the Atchison, Topeka and Santa Fe Railroad Company when the road was' established. The record of the proceedings fails to show service of notice to the company except by publication, and there was no finding by the commissioners that the railroad company was a nonresident of the county. In Worden v. Cole, 74 Kan. 226, 86 Pac. 464, we took judicial notice of when and where the railway line of this same railroad was definitely located, and also that a certain odd-numbered section of land is within the congressional grant to the railroad company. (To the same general effect see Patterson v. Railway Co., 77 Kan. 236, 94 Pac. 138.) If the commissioners had solemnly found that the railroad company, which then owned the land, was not a resident of Hodgeman county, they would have found a fact which every one is presumed to have known, and of which courts will take judicial notice.
The road as established across appellant’s land conforms to the petition, and his objections that other portions of it were not laid out in conformity to the petition as respects the termini are of no consequence. The commissioners’- record shows the report of the viewers, the survey and plat; all these on their face appear regular, and show with reasonable certainty a substantial compliance with the requirements of the law, which is all that is necessary. As said in the opinion in Gehlenberg v. Saline County, 100 Kan. 487, 490, 165 Pac. 286, quoting from Lewis et al. v. Laylin et al., 46 Ohio St. 663, 666:
“ ‘In determining the sufficiency of the records of inferior tribunals and public boards, to express their purposes or to preserve a memorial of their transactions respecting matters within their jurisdiction, technical precision should not be required; on the contrary, they should be liberally construed.? ”
Besides, it was held in the Gehlenberg case that, since the statute (Laws 1874, ch. 108, § 6) requires that the commissioners shall order the viewers’ report, the survey, and the plat to be recorded, and declares that “from thenceforth said road shall be considered a public highway.”
“This is a legislative declaration, that upon the recording of the report, survey and plat, the road shall he regarded, prima facie, as legally established. The declaration is unqualified, binds landowners, public officials and the courts, and casts upon any person contesting the road proceedings the burden of establishing their invalidity.” (p. 491.)
The action here is not an appeal by the landowner from proceedings to establish a road; it is a collateral attack made more than thirty years after the proceedings to establish the road were instituted. The introduction .of the-record placed the burden upon appellant to show a lack of jurisdiction, all the presumptions being in favor of the regularity of the proceedings leading up to the making of the record.
The state contends that the evidence was sufficient to show the establishing of a road by prescription, aside from the sufficiency of the record, but we deem it unnecessary to consider that question, for the reason that the objections raised to the record itself are not sufficient to overturn the presumption of its validity.
The judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
This action concerns the priority of liens on an automobile. The plaintiff, the holder of a'conditional sale contract duly filed for record, commenced the action — one in replevin — to obtain possession of the automobile. The defendants claimed the right to the possession by virtue of a lien for • material furnished and labor performed in making repairs on the car. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
' The plaintiff sold the automobile to Sam Walden, who lived in Montgomery county, and took from him a conditional sale contract, under which the possession of the automobile was given to Walden, and by which the title, ownership, and right of possession remained in the plaintiff until the purchase price was fully paid, at which time the title should pass to Walden. The contract provided'that if Walden should sell or encumber the automobile, or attempt to sell or encumber it, the full amount unpaid should immediately become due and payable, and the plaintiff could take possession of the car and sell it. Nothing was said in the contract about repairs. Walden, on a trip from Montgomery county to Labette county, wrecked the car near Altamont. He then left it with' the defendants to be repaired. They purchased the necessary material and repaired the car. A few days after it had been left with them, the plaintiff and Charles Dennis, one of the defendants, had a conversation over the telephone. In that conversation, Dennis told the plaintiff that the car was badly damaged, and that the cost of repairing it would be from $75 to $90. The plaintiff claimed to have a mortgage on the car and requested Dennis not to let it go until he got his money for the repairs. Afterward, the plaintiff demanded the car, but the defendants refused to give possession until their bill for material and repairs was paid. This action was then commenced.
The plaintiff argues that his conditional sale contract was a lien prior to any that could be subsequently created by the act of Walden in getting the car repaired after it had been damaged. The response of the defendants is that the car was re'ceived by them from Walden, who was in the possession of it, and who had purchased it from the plaintiff, and that section 6082 of the General Statutes of 1915 gave them a lien on the car superior to that of the plaintiff.
The plaintiff cites Lumber Co. v. Schweiter, 45 Kan. 207, 25 Pac. 592, in support of his argument. In that case the owner had contracted to sell real property under certain conditions. The purchaser permitted a mechanic’s lien to be filed in violation of the terms of the contract. The court held the mechanic’s lien inferior to the liens provided for in the contract. In a number of subsequent cases, this court held that where the purchaser had acquired an equitable title to real property, his interest may be subjected to mechanics’ liens. (Getto v. Friend, 46 Kan. 24, 26 Pac. 473; Mortgage Trust Co. v. Sutton, 46 Kan. 166, 26 Pac. 406; Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019; Lumber Co. v. Fretz, 51 Kan. 134, 32 Pac. 908; Shearer v. Wilder, 56 Kan. 252, 43 Pac. 224.)
There are material differences between the mechanic’s lien statute and the statute under which the defendants claim. The mechanic’s lien statute, section 649 of the 'code of civil pro cedure (Gen. Stat. 1915, § 7557), provides that any person, who shall, under contract with the owner of real property, perform labor or furnish material for improvements, shall have a lien thereon, preferred to all other liens which may attach thereto subsequent to the commencement of such improvements. The statute under which the defendants claim a lien (Gen. Stat. 1915, § 6082) provides that whenever any.person shall intrust to any mechanic, artisan, or tradesman an article of value to be repaired, such mechanic, artisan, or tradesman shall have a lien on such article. Nothing is said in the statute about the owner of the property, nor about the priority of the lien. The succeeding section of the statute (Gen. Stat. 1915, § 6083) provides for an agister’s lien, and in that statute nothing is said about the owner of the property nor about the priority of the lien.
In Case, Adm’r, v. Allen, 21 Kan. 217, it was held that an agister’s lien on cattle was superior to a previously executed and recorded chattel mortgage. In that case, the cattle had been fed at the request of the mortgagor. Why should an agister’s lien be superior to a prior mortgage ? This coürt answered that question in Case v. Allen, where the following language was used:
“Now, the lien of the agister is not the mere creature of contract. It is created by statute from the fact of the keeping of the cattle. The possession of the agister was rightful; and, the possession being rightful, the keeping gave rise to the lien; and such keeping was as much for the interest of the mortgagee as the mortgagor. The cattle were kept alive thereby; and the principle seems to be that where the mortgagee does not take the possession, but leaves it with the mortgagor, he thereby assents to the creation of a statutory lien for any expenditure reasonably necessary for the preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures to his benefit. The entire value of his mortgage may rest upon the creation of such indebtedness and lien, as in the case at bar, where the thing mortgaged is livestock, and the lien for food. And while it seems essential that this should be the rule to protect the mechanic or other person given by statute a lien upon chattels for labor or material, the rule, on the other hand, will seldom work any substantial wrong to the mortgagee. - The amount due under such liens is generally small' — a mere trifle compared with the value of the thing upon which the lien is claimed. The work or material enhances or continues the value of that upon which the work is done, or to which the material is furnished; and the mortgagee can always protect himself against such liens, or, at least, any accumulation of debt thereon, by taking possession of the chattel mortgaged.” (p. 220.)
In Christie v. Scott, 77 Kan. 257, 260, 94 Pac. 214, it was held that contracts like the one under consideration should be regarded as chattel mortgages.
Why should the defendants’ lien, claimed under section 6082, be superior to the lien of the plaintiff? This question can be partly answered by the same reasoning as that used by the court in Case v. Allen. The defendants’ lien was not a mere creature of contract. It was created by statute from the fact that the repairs were made on the automobile. The possession by Walden was rightful and was with the consent of the plaintiff. The repairs on the automobile added to its value, at the time they were made, and preserved that value for the plaintiff’s security.
Before the repairs were completed, possibly before any of them were made, the plaintiff knew that the car was in the defendants’ possession for repairs. The plaintiff talked with defendant Charles Dennis about the repairs. The plaintiff did not tell Dennis not to make them, but did tell him to get his money before he let any one have possession of the car. There was sufficient in 4hat conversation to justify the court in finding, if such finding were necessary, that the plaintiff consented to the' repairs being made.
The trial was by the court without a jury, and a general finding was made in favor of the defendants — that they were entitled to the possession of the automobile.
The conclusion of the court is that the defendants’ lien was superior to that of the1 plaintiff. This conclusion is supported by Broom & Son v. Dale & Sons, 109 Miss. 52; 3 R. C. L. 134; 1 Jones on Liens, 3d ed., § 744; 1 Cobbey on Chattel Mortgages, §460.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
Appellant’s petition for a rehearing urges that its demurrer to plaintiff’s evidence and its motion for a directed verdict were not sufficiently discussed in our original opinion, (Schaefer v. Interurban Railway Co., ante, p. 394, 179 Pac. 323.)
Gn one side was the oral evidence, perhaps of dubious worth, that on the roadway near the crossing .a view of the railway and interurban car was obscured by trees; on the other side were photographic exhibits, whose accuracy was either conceded or scarcely disputed, and which tended to show, perhaps positively, that the trees did not shut off the view. Appellant says the facts portrayed by the photographs were admitted, and that the ordinary rule as to admissions should govern; but the plaintiff’s other evidence, the oral testimony, stood in the way of a demurrer. It was not in harmony with the facts portrayed by the photographs. A demurrer cannot be invoked to summarily dispose of an issue of fact under that state of the evidence. (Matassarin v. Street Railway Co., 100 Kan. 119, 121, 163 Pac. 796.) That situation does not .substantially differ from that presented in any case where the evidence adduced is partly false and partly true. The question on which side is the truth, or what part of the evidence is true, cannot be settled by demurrer; it is still an issue of fact, and if through prejudice and insincerity on the part of the jury that issue does miscarry, the only practical remedy is the one of appealing to the sound discretion of the trial court by a motion • for a new trial. If the judge believes that the verdict has been secured through perjury of witnesses, or through the insincerity or prejudice of the jury, he is bound to grant the motion for a new trial, and he has the power to set aside such a verdict on his own motion.
Touching defendant’s motion for a directed verdict, it scarcely needs to be observed that since this lawsuit involved issuable and contested facts, with evidence pro and con adduced thereon, that motion was properly overruled.
A criticism is made because no controlling significance is given in the opinion to the cases of Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, and Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261. Appellant contends that those cases should either be followed or overruled. Those decisions have often been cited in' crossing-accident cases, and still more often urged upon our attention in other cases where the facts were not quite similar. Not infrequently the court has had some trouble in distinguishing pending cases from the Bush and Bussey cases; but the court has at no time indicated a disposition either to ignore or overrule them. The.doctrine they announce was recognized in our opinion; but the law of the Bush and Bussey cases does not cover all the law on the subject involved in the present case. A rehearing would serve no purpose, and it is therefore denied.
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The opinion of the court was delivered by
West, J.:
The plaintiff bought of the defendants a stock of goods including “all book accounts now on books, and all notes, at one hundred cents on the dollar.” Upon coming into possession he found that several hundred dollars’ worth of the accounts were barred by the statute of limitations when purchased by him, and brought this action to recover the amount thereof. He alleged that as an inducement to sign the contract the defendants stated that $150 to $200 might be slow to collect, but all of them were good, and if not paid he could “come back on defendants for repayment of such uncollectible accounts.” It was alleged that accounts aggregating $595.15 were barred and were void, did not constitute enforceable claims and were of no value, and that the money paid for them ' was without consideration. There was no allegation that any attempt had been.made to collect, but it was averred that repayment had been demanded of the defendants and had been refused. The trial court sustained a demurrer to the petition, and the plaintiff appeals.
Of course, there was a legal defense, but is it to be presumed that the debtor would avail himself thereof? When accounts are sold as good, can they be treated as bad, and the seller held liable without any attempt to collect? The plaintiff in his brief says:
“The petition in substance alleges that plaintiff did not know the accounts . . . were barred . . . and the defendants did not reveal to plaintiff the fact that the accounts were barred. The petition in effect charges that defendants failed to deliver to plaintiff $595.15 of the accounts they promised to sell and for which accounts not delivered plaintiff paid $595.15.”
An account not barred is a legal obligation. A barred account is merely a moral obligation. (17 R. C. L’. 666, § 4.) When an -account is represented to be good, this should be held to mean a legal, rather than a mere moral, obligation — one collectible at least by legal process. (20 Cyc. 1256; Anderson’s Dictionary of Law, 489; Black’s Law Dictionary, 543; 14 A. & E. Encycl. of L., 2d ed., 1079; 1 Rapalje and Lawrence’s Law Dictionary, 571.)
While the petition might well be construed to charge a verbal warranty not shown in the contract and hence at variance therewith, it requires no wresting of words from their reasonable meaning to regard it as charging- representations fraudulently made to induce the plaintiff to sign a contract for the sale of the property including the accounts. One allegation is “That in fact said defendant . . . wrongfully and fraudulently deceived plaintiff as to the amount of valid accounts,” and another is that the money paid for them was paid by the plaintiff “because of said false and' fraudulent representations and deceptions so made and practiced upon him.”
The rule of pleading now quite well established is that in the absence of a motion to make definite and certain, a petition, as against a general demurrer, should be liberally construed. (Bowersox v. Hall, 73 Kan. 99, 84 Pac. 557; Upham v. Head, 74 Kan. 17, 85 Pac. 1017; The State v. Addison, 76 Kan. 699, 704, 92 Pac. 581; Bank v. Gann, 95 Kan. 237, 148 Pac. 249.).
The judgment is reversed and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Marshall, J.:
This abtion was one to quiet title to oil lands in Butler county. The plaintiff recovered judgment, from which three separate appeals were taken; one by Flora E. Middleton et al., heirs of John W. Middleton; one by J. C. Haines, as trustee for the creditors and stockholders of the Augusta Stone Company, a corporation; and one by J. C. Haines for himself. The court made findings of fact as follows :
“First. That the plaintiff, S. J. Safford, was at the time of the commencement of this action, in the possession of the real estate described as follows:
“Second. That the following described real estate, to wit:
was conveyed to the defendant, The Augusta Stone Company, a corporation, in 1883, and that said corporation never made any deed or conveyance of said land to any person thereafter.
“Third. That 121 shares of the capital stock of said company were issued.
“Fourth. That in 1887, plaintiff, S. J. Safford, was the owner of 45 shares of the capital stock of said company, and at all times since said date has been the owner of 45 shares of said stock.
“Fifth. That the intervener J. C. Haines, in the year 1887 was the owner of 46 shares of the capital stock of said corporation, and thereafter and about the - day of -, 1887, transferred and delivered said 46 shares of said capital stock of said corporation to the plaintiff, S. J. Safford, and later ratified said transfer of said stock by the execution of a quitclaim deed, dated August 12, 1889, to the following described real estate, to wit:
and at all times since said date, said S. J. Safford, has been the legal, and equitable owner of said 46 shares of said stock.
“Sixth, That one Isaac Haines, was at one time the owner of 30 shares of the capital stock of said corporation, and that thereafter he sold, transferred and delivered said 30 shares of capital stock to one John W. Middleton, and that thereafter said 30 shares of stock held by said John W. Middleton were duly sold by the sheriff of Butler county, Kansas, under an order of the district court of Butler county, Kansas, in an action then pending in the district court of Butler county, Kansas, in which C. P. Safford was plaintiff and John W. Middleton was defendant, and that said 30 shares of stock were purchased at said sale by C. P. Safford on the 4th day of September, 1890.
“Seventh. That thereafter the plaintiff, S. J. Safford, obtained all right, title and interest in and to said 30 shares of stock from the said C. P. Safford. i
“Eighth. That on the 5th day of June, 1912, the Augusta Stone Company, a corporation, was dissolved by act of the state charter board of the state of Kansas, in accordance with the provisions of chapter 129 •of the Laws of 1911.
“Ninth. That prior to the 5th day of June, 1912, the plaintiff S. J. Safford was and now is the legal and equitable owner of all of said 121 shares of the capital stock of the said The Augusta Stone Company, and that at the time of the dissolution of said corporation, the said plaintiff was the legal and equitable owner of all of the stock and property of said corporation.
“Tenth. That there are no creditors of said corporation or other parties interested in the affairs or property of said corporation, The Augusta Stone Company, and that there were no creditors or other-parties interested in the affairs or property of said corporation at the time of its dissolution, except the said plaintiff, S. J. Safford.”
On these findings of fact the court made the following conclusions of law:
“First. That plaintiff is now and was at the time of the commencement of this action, the owner in fee simple of all of the property described in his petition, to wit:
and that none of said defendants or of the interveners herein have any right, title, interest, equity, estate or claim in or to or lien upon said real estate or any part thereof.
“Second. That the defendants and each of them and the interveners Flora Middleton, Bird Middleton, Maude Gunn, Fannie Greer, Nellie Mcllvain, Myrtle Dudley, Joe Lewis, Flora Armstrong, John W. Middleton, Louise Middleton, and Adolphus E. Middleton, and the intervener J. C. Haines, should be barred from claiming or asserting any right, title, interest or estate in or to or lien upon said real estate or any part thereof.”
1. Before examining the propositions presented in the briefs, it will be well to look at a rule of law that is appar ently urged as a basis for argument in presenting the matters of which complaint is made. That rule is stated by the defendants as follows:
“This is an equity ease and this court has the right to consider and weigh the evidence, and has the right to consider the equities between these parties; and, if the court below has failed, as we think we have shown, to properly interpret the testimony and to apply the familiar rules of law to the pleadings and proofs in the casé, we feel that we may confidently ask this court to do equity and justice in the case.”
In other words, it is contended that the rule is that -this court, in equity cases, will weigh the evidence, not to determine if there was evidence to support the findings made, but to determine whether contrary findings should have been made. The contrary has been declared so many times that citation of authorities is useless. But for a declaration of the rule, in equity cases, see Railroad Commissioners v. Railway Co., 71 Kan. 193, 80 Pac. 53, and West v. Brugger, 103 Kan. 494, 499, 175 Pac. 673. No distinction in this respect has been made between suits in equity and actions at law. The only distinction that has been made has been between actions in which all the evidence has been documentary, and those in which the evidence has been wholly or partly oral. The findings made by the court are conclusive on all questions of fact on which evidence was introduced; even if the findings were contrary to what the reviewing court might regard as the weight of the evidence. The decision of this court, Seibert v. True, 8 Kan. 52, cited in support of the rule contended for, is against it. Because this argument of the defendants fails, much of their argument on the other questions presented in their briefs also fails.
2. It is argued that the plaintiff could not acquire title to the real property by possession adverse to the Augusta Stone Company, or to the appealing defendants. There is nothing in the findings of fact to indicate that the judgment was in any way based on the principles of adverse possession, although there was evidence from which such a finding might have been made. The plaintiff’s title did not depend on adverse possession alone. It is argued that ,because the plaintiff had been a director and officer of the Augusta Stone Company from the time of its organization to the time of the trial, he could not be permitted to create any relation between himself and the cor poration, or its property, which would cause his personal interests to be antagonistic to that of the corporation. At the time of the trial, the plaintiff was in effect the corporation, and the plaintiff’s interests and those of the corp'oration were the same. The appealing defendants had ceased to be stockholders in the corporation; they had no interest, in it. There was nothing to prevent the possession of the plaintiff from being adverse to them. If the findings of the court were not correct, and the defendants were stockholders in the corporation, a different rule would obtain.
3. It is argued that the proceedings by which the thirty shares of stock in the Augusta Stone Company pledged by John W. Middleton to C. P. Safford were sold to C. P. Safford, were insufficient to change the relatio'n of pledgor and pledgee. To support this argument it is urged “that the record must speak for itself, and that wherq the record is silent the presumption would be in favor of the pledgor.” .This is not a correct statement of the law. In Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462, this court stated the, rule of law as follows:
“Where a record of the proceeding's of a court of general jurisdiction shows upon its face that the court had jurisdiction of both the parties and the subject-matter of the action, and where the whole of the record is introduced in evidence, all presumptions from silence on the part of the record should be construed in favor of the regularity and validity of the proceedings of the court, and not against the regularity and validity of such proceedings.” (syl. ¶ 1.)
(See, also, Comm’rs of Leavenworth Co. v. Higginbotham, 17 Kan. 62, 72; Garden City v. Heller, 61 Kan. 767, 769, 60 Pac. 1060.)
In the present action, the effect of the correct rule is to establish ownership of the thirty shares of stock in the purchaser at the sheriff’s sale. But it is urged that to transfer the title, that stock should have been transferred on the stock books of the corporation. The presumption is that they were so transferred. If they were not so transferred, it was incumbent on the defendant to establish that fact:
This attack by the defendants is in effect a collateral attack on the judgment, and on the proceedings thereunder, and cannot be successfully maintained. (Paine v. Spratley, 5 Kan. 525; Bowman et al. v. Cockrill, 6 Kan. 311; Anthony v. Halder man, 7 Kan. 50; Norton v. Graham, 7 Kan. 166; Garner, County Clerk, v. The State et al., 28 Kan. 790; Pritchard v. Madren, 31 Kan. 38, 2 Pac. 691; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Davis v. Davis, 101 Kan. 395, 398, 166 Pac. 515, and cases there cited.)
C. P. Safford acquired the thirty shares of stock by the sheriff’s'sale, and the judgment and sale concluded John W. Middleton a'nd his heirs from thereafter questioning that sale, except by a direct proceeding in that action.
4. The heirs of John W. Middleton, in their intervening petition, alleged that the plaintiff and John W. Middleton, as partners under the' name of the Augusta Stone Company, owned all of the capital stock of that company; that the plaintiff owned an undivided forty-seven one-hundredths thereof; that John W. Middleton owned an undivided fifty-three one-hundredths thereof; and that the interveners, as heirs at law of John W. Middleton, had succeeded to his rights in the ownership of the undivided fifty-three one-hundredths of that capital stock. The intervening petition, in substance, alleged that the undivided fifty-three one-hundredths interest was made up of thirty shares purchased'by John W. Middleton from Isaac Haines and of one-half of the forty-six shares purchased from J. C. Haines. The plaintiff, in his answer to the intervening petition, denied the allegations of that petition, and alleged that all the stock owned by John W. Middleton had been sold at sheriff’s sale, and that the plaintiff had personally acquired from J. C. Haines all of the forty-six shares. The court’s findings were in complete accord with the plaintiff’s allegations, and were against the heirs of Middleton. This will be clearly disclosed by an examination of the findings of fact. I f those findings were sustained by evidence, they are now conclusive. Ample evidence to sustain them is disclosed by the several abstracts filed. No good purpose will be served by set ting out, stating, or summarizing {hat evidence. The findings must stand.
5. J. C. Haines, as trustee, and for himself, argues that the decision of the court was contrary to the evidence, and was contrary to law. This argument is based on the finding that the Augusta Stone Company, a corporation, never made any deed or conveyance of the land to any person. It is argued that the title to corporate property never passes to its stockholders by operation of law; that directors or managers are trustees in case of dissolution; and that the legal title rests in them as such. That trusteeship is for the benefit of the creditors and the stockholders of the corporation. The .court found that there were no creditors; that the plaintiff owned all of the stock; and that no one else was interested in the affairs or property of the corporation. Grant that the plaintiff was a trustee, for whom was he a trustee? The answer is, for S. J. Safford, the plaintiff, and for no one else. None of the defendants was interested in the corporation, and they had no right to question the manner in which its business was conducted. They were strangers, and could not question the manner in which the corporate property was disposed of.
The rights of the appealing defendants depended wholly on their ownership of stock in the corporation. They failed to establish that ownership. The court found against them on the question of that ownership, and that finding was sustained by the evidence and is conclusive.
6. Complaint is made of the order overruling the several motions for a new trial. Under this, various alleged errors concerning evidence are argued. Each one has been examined; nothing has been found that materially prejudiced any substantial right of any of the defendants.
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
A. B. Miller sued Walter F. McGinnis for the value of his services in aiding him in the purchase of the White building, in Eureka. The plaintiff recovered a judgment, from which the defendant appeals.
The defendant asserts that there was no evidence whatever, either of the employment of the plaintiff or of the performance of any services on his part, and' that there was likewise a failure of evidence as to the value of the services claimed to have been rendered.
The' plaintiff testified to these facts: He is a real-estate agent. In the course of a conversation on a train the defendant told him he was in the market to buy property in Eureka, and was interested in the White building; that he preferred to buy direct, and not through an agent — that he could probably get it cheaper that way. The plaintiff answered, saying, “I could not make any money that way.” The defendant replied: “Oh, yes, you could, I will pay you myself if you will assist me to buy the White building, I will pay you for helping me.” The plaintiff said “all right,” and promised to look the matter up as soon as he got home. This is sufficient evidence of an employment.
The plaintiff also testified to these subsequent occurrences: He had a talk with the local representative of the owner of the property as a result of which he reported to the defendant that it was not for sale. The defendant then told him he would like to have him go to the courthouse and ascertain who was the owner of the building — that he was going to take the matter up direct with the owner. The plaintiff examined the records, found that the title stood in the name of the First National Bank of Saratoga Springs, N. Y., and so reported to the defendant. Later the defendant told him that he had not given him the name exactly correct — that he got the party, but the name was not as the plaintiff had stated it, and that he was dealing with the owner. The defendant bought the property from the Saratoga National Bank of Saratoga Springs, N. Y. The plaintiff afterwards learned that a consolidation had taken place and that the name of the First National Bank had been changed.
The fact that the name of the bank owning the property was different from that shown by the record does not establish that the plaintiff’s efforts were of no benefit to the defendant. The fair inference seems to be that the defendant got into communication with the owner through the information procured for him by the plaintiff. It is true that the plaintiff did very little in the matter, but, according to his evidence, he did all that was asked of him, and his services were of some effect. He was not employed to negotiate a sale, but to assist the plaintiff in making a purchase. The finding that he had performed the services for which he was employed was therefore justified.
Several witnesses testified that the usual compensation for such services was a commission of 5 per cent on the first thousand dollars and 21/2 per cent on the remainder. On cross-examination they were not able to cite many instances, but it cannot be said as a matter of law that the effect of their evidence in chief was wholly destroyed. The verdict was for a less sum than the commission would figure on the basis stated, but, in the circumstances, the fact that the jury saw fit to reduce the amount is not a ground for disturbing the verdict.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover possession of cattle, and damages for their taking and detention. The plaintiff recovered, and the defendant appeals.
The defendant claimed the cattle were taken while trespassing on his land and crops, and counterclaimed damages. "Various assignments of error are made relating to pleading, burden of proof, and evidence respecting the herd law. None of the assignments of error can be considered. The instructions are not brought up. The plaintiff alleged, and his proof tended to show, that the cattle were taken from his inclosure, and it will be presumed, in support of the judgment, that the court instructed the jury the plaintiff was entitled to recover only on proof of the cause of action pleaded.
There is nothing else of importance in the case. The verdict was sustained by sufficient evidence, and there is nothing to indicate that the question of punitive damages was submitted to the jury, or that such damages were allowed.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff brought this action in Stafford county against Herman Steinecke, a resident of that county, and M. L. Arnold, and the Arnold Automobile Company, residents of Sedgwick county; service of summons was made on the latter defendants in the county of their residence. The action was brought to recover $1,000, which the plaintiff alleged he had paid for a car which he had not received. Plaintiff further alleged that he had made an oral contract with Steinecke for the purchase of a car and, at his request, had made a check and notes payable to the automobile company through which Steinecke expected to obtain the car; that the car was to be delivered at Hudson where Steinecke was located, but was not delivered at all; that Steinecke and Arnold refused to return the $1,000 paid on The car; '
“That . . . the defendant's, and each of them, failed, neglected and refused to furnish said Auburn car, and failed, neglected and refused to comply with the contract so made, and refused to return the money so paid, but retained the same and have since retained the money so paid, and violated the contract by not furnishing the Auburn car.”
The automobile company and Arnold, appearing specially and for the purpose of the motion only, moved to dismiss-the action as against them, for the reason that—
“The company is a Kansas corporation having its principal place of business at Wichita, Kansas, and that all o'f its officers reside at and live in Sedgwick county, Kansas, . . . that said defendants, or either of them, do not reside in Stafford county, Kansas, and that personal service of summons cannot be made upon said defendants in Stafford county, Kansas, and that it appears upon the face of the petition that the alleged cause of actión sued upon is transitory and an action based upon the same can only be brought in the county where the defendants reside or where service of summons can be made, and it appear's upon the face of said petition that said defendants . . . are improperly joined with the defendant, Herman Steinecke, in that the alleged cause of action does not state a joint liability of all the defendants or any of them, and upon the facts as herein stated, and upon the face of said petition, this court is without jurisdiction of the defendants, The Arnold Automobile Company and M. L. Arnold, or either of them, and for this reason each of them move the court to dismiss this action as against them and each of them.”
This motion was filed December 8, 1917. January 25, 1918, the plaintiff filed an amended petition alleging that he entered into a contract with the defendants for the purchase of a car; that he made a payment of $200 by check, and gave a note for $800, due in thirty days; that the check was duly cashed and paid, and the note was paid when due; that at the request of the defendants, the note and check were made payable to the company; that when they were given, Steinecke was acting for himself, and not for the other defendants, and was transacting business connected with the sale of the car; that about the time the note became due the plaintiff inquired of Steinecke and Arnold whether the car had come, and they informed him that it had not; that Arnold was at that time an officer of the company and was transacting the business thereof, and acting for and on defendants’ behalf; that afterwards the plaintiff called at the office of the company at Hudson and found that the car had not arrived—
“And plaintiff thereupon demanded of the defendants the return of his money so paid, or the Auburn car he had ordered, . . . that the defendants at said time refused to return the plaintiff $1,000 so paid on the Aubitrn car, . . . that the defendants had kept and retained the said sum of $1,000 plaintiff paid-and have never returned the same or any part thereof.”
February 5, 1918, the action came on for hearing—
“On the call of the docket on the motion to dismiss filed on December 8, 1917, . . . said motion having been formerly presented the judge of said court at chambers and having been briefed by both sides, and the court on consideration of the same doth deny the said motion to dismiss, and on the same day this matter came duly on for hearing on the motion filed by M. L. Arnold and The Arnold Automobile Company, to require plaintiff to make his amended petition more definite and certain, which motion is considered by the court and overruled.”
This motion was as follows:
“Comes now the defendants, . . . and move the court to require the plaintiff to make more definite and certain his amended petition in the following particulars:”
The motion then asked that the plaintiff be required to state whether the defendants were joint owners of the car or partners, or whether it was bought from Steinecke as agent of the company, and to state in what capacity he was acting for himself.
Thereafter, on March 25, the two defendants answered, setting up a plea to the jurisdiction and alleging that service had been obtained in Sedgwick county, denying that there was any joint sale of the car or any joint liability, and specially denying Steinecke’s agency.
It is to be observed that at no time was any motion made to quash the service; that while the motion to dismiss under the first petition for want of jurisdiction was pending, the amended petition was filed, to which a general appearance was made. The trial came on, a jury was impanelled, and testimony was taken without objection.
The company and Arnold demurred to the plaintiff’s evidence on the ground that it showed no liability, “and that under the files in this case service was made upon these defendants outside of Stafford county; and this court is without jurisdiction as to them on that account.”- In settling this matter, the trial court said that the only question for determination was whether or not the automobile company had by its conduct waived the question of jurisdiction and, after much consideration, concluded that it had. Thereupon, the trial proceeded, resulting in a verdict in favor of the plaintiff for the amount sued for. Answers to special questions were returned, to the effect that the company was to sell the car and that Steinecke acted only as its agent, and that none of its officers were residents of Stafford county. The company moved for judgment on the special findings, on the ground that they showed that the liability was not joint, and that the court was without jurisdiction over the company. It also filed a motion for a new trial. Arnold filed a motion for judgment and for a new trial. All were denied except Steinecke’s motion for a new trial, and the court ordered judgment against the automobile company only, which company on its own motion was granted a stay of execution for thirty days.
Counsel present the one question of jurisdiction. In their brief they say:
“After filing the original petition, plaintiff filed an amended petition. It was the appellant’s view that the amended petition on its face did disclose a joint liability, and after having filed a motion to make definite and certain, the amended petition, in order as it was considered to properly prepare the issues in the case, an answer was filed.’'
The controversy in this case was one over which the district court had general jurisdiction. The only question is whether it had jurisdiction over the persons of the two nonresident defendants.
It goes without saying that, whether rightfully or wrongfully sued in Stafford county, if they voluntarily appeared and contested the case there, the jurisdiction of the district court over them was as full and complete as if they lived there. Aside from the question as to what effect the motion to make definite and certain had, another point is' deemed sufficient to decide the controversy.
Counsel for plaintiff contend that the action of the company in moving for and procuring a stay of execution for thirty days, had the effect of a general submission to the jurisdiction of the court. In Woodhouse v. Land & Cattle Co., 91 Kan. 823, 139 Pac. 356, this exact question was determined. The defendant appeared specially to contest the jurisdiction of the court, alleging that the service was void. The service was held good. The attorney for the defendant refused to plead or participate in the trial, but remained in court. Judgment was rendered for the plaintiff, and by the suggestion of its attorney the defendant procured a stay of execution. This was held to be an abandonment of its attitude of protest, and an appeal to the general jurisdiction of the court for an order beneficial to it self, which constituted a general appearance. Here the motion for stay was made and granted May 27, 1918, and the notice of appeal was served July 10, following.
It is held that by the procurement of the stay the automobile company submitted itself to the jurisdiction of the co'urt, and for this reason the judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for compensation under the workmen’s compensation act. The plaintiff recovered, and the defendant appeals.
Death of the workman resulted from his injury. . He left a widow, who was wholly dependent, as his sole dependent. Before compensation was made, the dependent died. The action was prosecuted by the administrator of the estate of the workman. The statute provides that when death results from injury the action shall be prosecuted by the dependent or de pendents entitled t'o compensation, or by'the legal representative of the deceased for the benefit of dependents. (Gen. Stat. 1915, § 5930.) The defendant says the primary right of action is given dependents, and that the action should have been prosecuted by the administrator of the deceased dependent.
The statute does not, in terms, prefer dependents as plaintiffs. Either dependents or the legal representatives of the deceased may sue. When brought by either the action is well commenced as to the defendant, who cannot choose its adversary, and whose sole interest is that it shall not be compelled to pay twice. In this instance, death of the widow, the sole dependent, incapacitated her to sue, and if the statute be followed literally, no one but the administrator of the deceased workman could sue. However this may be, the action was prosecuted by a statutory agent expressly designated for the purpose, and the defendant may not complain.
The statute relating to the amount of compensation reads as follows:
. “The amount of compensation'under this act shall be: (á) Where death results from injury: (1) If the workman leaves any dependents wholly dependent upon his earnings, an amount equal to three times his earnings for the préceding year but not exceeding thirty-six hundred dollars and not less than twelve hundred dollars. . .' . (4) Marriage of any dependent shall terminate all compensation of such dependent, but shall not affect compensation allowed other dependents; when any minor dependent, not physically or mentally incapable of wage earning shall become eighteen years of age, such compensation shall cease.”' (Gen. Stat. 1915, § 5905.)
The defendant says the amount of compensation recoverable was whatever accrued between the death of the workman and the death of the dependent. The plaintiff says the entire amount accrued immediately on the death of the dependent.
The section quoted was originally section 11 of chapter 218 of the Laws of 1911, the first attempt at workmen’s compensation legislation. In 1913 a number of changes were made in the law. Except for a minor modification not now material, the only amendment of section 11 was by the insertion of subdivision 4, relating to marriage and arrival at the age of independency. (Laws 1913, ch. 216, § 5.) It is difficult to determine just what the legislature had in mind, and not seeing its way clear to an authentic general interpretation, the court, for present purposes, will treat the provision as discontinuing compensation on the happening of the events specified»
There cambe no doubt that under the act of 1911 the amount of compensation was a single sum, definitely ascertainable by a prescribed method, the right to which became fully vested in the widow on the death of her husband. (United Collieries Limited v. Simpson, Appeal Cases [1909], 383; Munding v. Industrial Comm., 92 O. St. 434.) The act of 1913 discontinued payment of compensation in just two instances — marriage of the dependent, and arrival at the age of independency. Death of the dependent after death of the workman was not added as a third disability, and consequently is not a bar to recovery of.' the full sum specified in subdivision 1.
The deceased workman was night watchman in a boiler factory, and was killed by burglars, while in the performance of.' his duties. It is said the hazard was not one which inhered ini or was peculiarly incident to operation of a boiler manufacturing plant, and consequently, that the injury did not arise out of the employment.
A fair statement of the rule under the rather limited statute of this state is that the injury must result from some danger peculiar to the hazardous character of the employment. This does not mean, however, that in a factory classified as extra hazardous because of the use of dangerous machinery, none but machine operators or employees working in proximity to machinery may have compensation. Regarding for the moment the operating of machinery as the acme of the employment, all that combines to make it such, everything integrated with it essential to effective functioning — other conditions being fulfilled — is included in the hazard. The. principle is well illustrated in the case of Matter of Larsen v. Paine Drug Co., 218 N. Y. 252. The drug company was engaged in the hazardous business of manufacturing drugs and chemicals. Larsen was porter, elevator man, and general handy man, who took in freight; packed goods, and did small repair work. He was injured while building a shelf near an elevator well. The court said:
“Appellants’ second proposition means that a person engaged generally in an employment which has been defined as hazardous cannot recover compensation for injuries received while performing some act not immediately connected with what might be deemed the hazardous and characteristic feature of the business, although such act was incident to the employment and necessary in prosecuting and carrying forward the business. . . .
“We think this is too narrow a view of the statute and would lead to limitations upon its application which were not intended or anticipated by the legislature. It is not necessary to attempt to lay down a final and universal rule on that subject. We feel perfectly secure, however, in holding that where, as in this case, an employee is injured while performing an act which is fairly incidental to the prosecution of a business and appropriate in carrying it forward and providing for its needs, he or his dependents are not to be barred from recovery because such act is not a step wholly embraced in the precise and characteristic process or operation which has been made the basis of the group in which employment is claimed.” (pp. 255, 256.)
It is stated that in the present case the watchman was killed in the factory. There is no contention that a night watchman was not necessary to the security of the plant, and so to the maintenance and prosecution of the defendant’s business.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from judgment in plaintiff’s favor for damages on account of the death of her husband, H. B. Allen.
Several years ago the four railroad companies jointly acquired the right of way and constructed a system of railroad yards, sidetracks, and switches in the northern part of Wichita, which were operated jointly by them under the name of the Wichita Terminal Association. The accident occurred on defendants’ right of way, just west of the building leased by the Wichita Alfalfa Stock Food Company, of which Mr. Allen was secretary. West of this building there were five parallel tracks running north and south, and mutually connected; the first was a sidetrack or service track 6 feet west of the stock food company’s building; the next was the terminal lead, which was an association track, and west of this were three Santa Fe tracks, one of them being the main-line track. The service or sidetrack where Allen met his death was about 1,500 feet long and served various industries located immediately east thereof; it was used generally in the business of the associated railroads, and was connected at each end with the terminal lead and through that with the various terminal tracks, the main-line track, and used in the state and interstate business of the defendants.
Thirteenth, Fourteenth, Fifteenth and Sixteenth streets are public streets running east and west; all of them except Fourteenth street extend across the five tracks at right angles., Fourteenth street extends east only to the west line of the right of way of the Atchison, Topeka & Santa Fe Railway Company and does not cross any of the five tracks. The south line of the building of the stock food company is 88 feet north of what would be the northern boundary of Fourteenth street, had that street been extended across the railroad tracks. The north line of the building is about 450 feet south of Fifteenth street.
On the morning of the accident, there stood on the sidetrack west of the stock food company’s building a box car which had been loaded the day before with products of that company and sealed and billed out. Sixteen feet south of the loaded car was an empty freight car, and directly east of the 16-foot opening between them was an open door into the building of the stock food company. Immediately north of the loaded, car stood a string of six cars, the south end of which was about 3 feet from the north end of the loaded car. The string of standing cars extended north to within 200 feet of fifteenth street. The switching crew of the terminal association had been operating in- these yards since early in the morning and were switching cars upon the sidetrack. They had just moved a string of cars from north of Fifteenth street south and coupled them on to the cars standing on the tract, which they moved two or three feet and which came in contact with the loaded car standing by the stock food company’s building. Immediately thereafter, Mr. Allen was found unconscious between the sidetrack and the terminal lead, his open umbrella lying near him. Apparently he had been caught while attempting to pass through the three- foot space between the north end of the loaded car and the south end of the string of cars; the physicians found an abrasion on his back which would indicate that he was struck by one of the cars, and his body was probably thrown to the ground so that it fell between the sidetrack and the terminal lead. The accident occurred at about 9 o’clock in the morning, before Mr. Allen had arrived at the building; but he had' been telephoned for at his residence, and word had been sent that he was on the way to the office. It was a cold, cloudy, misty morning; rain was falling and freezing as it fell. The plaintiff did not attempt to show how Mr. Allen approached the .place where he met with the accident, whether from the north or from the south, or from around the string of cars standing on the terminal lead, the south end of which was about opposite where the accident happened. It was shown that it was his custom to take the street car at his home and get off either at Fourteenth or Fifteenth street. When the weather was good and the ground not wet or muddy, he would get off the car at Fourteenth street, go east to where the street ended, cross over the Santa Fe tracks and go north until he was near one of the doors in the west part of the building, then cross over the sidetrack; in bad weather it was his custom to get off the car at Fifteenth' street, go east across the tracks, then south between the sidetrack and the terminal lead until he came opposite the building. The office of the stock food company was in the east end of the building, and Rock Island avenue runs north and south past the east end of the building; but the evidence showed that it had been the custom for a number of years for employees of the stock food' company to cross the track at different places and enter and leave the building through one of the west doo:rways. The facts and circumstances indicated that Mr. Allen probably came from the north on this occasion, because if he had come from Fourteenth street he would not have passed the 16-foot space between the cars just opposite the open door of the building.
The special findings are that Allen was familiar with the customary use of the tracks, and that the tracks had been used daily by railroad employees for the movement of cars and engines; that one of the railroad employees was riding on the south end of the string of cars; that the railroad employees looked south toward Fourteenth street; that the bell on the engine ceased ringing when the engine was about two blocks away, and when the south end of the string of cars was moving over Fifteenth street; that this was about one minute before the coupling was made on the string of standing cars.; that Allen was killed between the two cars which were about three feet apart before they were moved; and that possibly the mist and a string of cars standing on the lead track obstructed his view along the track north to Fifteenth street, if he had looked. They found that none of the employees of the defendants saw or knew of Allen’s presence until after his injury. In reply to the question, “If you find for the plaintiff, state upon what negligence of the defendants you base your verdict,” they made the following answer:
“Knowing the location of the mill and the custom of the officers and its employees using the west door as means of entrance and exit to and from the mill they should have used more precaution. Those cars' were shunted south on industrial track and the negligence was in not having a brakeman stationed at the brake when the cars were shunted instead of on side ladder or on the ground part-of the time. The brakeman on the string of cars could not have stopped the cars in the position he was in had he seen Mr. Allen.”
The negligence alleged in the petition was in leaving a space of three and a half feet between the car filled with the products of the milling company and the car next to the north, -knowing that the officers and employees of the stock food company and others wishing to go in or out of the building might enter or pass through the space; in not causing the brakes on the standing cars to be set and fastened so as to prevent the last car from moving; in causing the cars attached to the engine to move against the stationary ears with such force and violence as to push them against the standing cars, even if the brakes had been fastened; in not having a brakeman or other employee near the open space between the cars to warn persons intending to pass over and across the service track through the open space; and in not giving any signal or warning that the coupling was to be made.
It is the contention of the defendants that at the time Mr. Allen met his death he was a trespasser on the right of way, and that the defendants owed him no duty except not to wantonly injure him. The stock food company did not own the fee in the premises occupied by it, but leased the property after the service track had been constructed. The petition alleged that the service track was constructed in 1908 and was maintained and operated under a contract, a copy of which was attached to the petition. The contract which was introduced in evidence was executed in 1909, long after 265 feet of the service track had been constructed, and the parties to it were Mr. Mullen, who formerly owned the property, and the Wichita Union Stock Yards and Packing House Tracks Association, from which the defendants acquired their interest. By its terms the association agreed to maintain and operate the sidetrack already constructed to the warehouse, on condition that Mullen would ship 100 carloads of product annually. The association was to be at the expense and cost of the construction, and reserved the right to remove the sidetrack if Mullen failed to make the annual shipments stated. He agreed to furnish at his own cost and expense all necessary right of way for the sidetrack, outside of the right of way then owned by the association, the title to the right of way to be free and unencumbered, and of the width and quantity required by the engineer of the association. Under the contract, Mullen had the right to sell, lease, or convey the right to the use of the track without the consent of the association; and he agreed to indemnify the association from all liabilities and damages for any injuries to his employees or servants caused by the railway companies while operating cars on any of their sidetracks. The contract contained the following provision:
“It is further mutually agreed that -said sidetrack is to be used by the said party o-f the second part for the purpose of loading and shipping freight to and from said warehouse, with this reservation, to wit: That the said association Shall have the right to use said track for its own business, or for the business of any other person or shipper, provided that such business can in the judgment of the superintendent or other authorized agent of said association, be done on said sidetrack without serious detriment or inconvenience to the business of said party, of the second part.”
Mullen afterwards leased the warehouse to the stock food company, and assigned to it all his rights and privileges under the contract; the assignment was consented to in writing by the predecessors in interest of the defendants.
The court instructed the jury that, under the terms of the contract, if they found certain facts about which there was no dispute, that is, that the sidetrack was located on the south half of the property leased by the stock food company, of which Allen was secretary, and that Allen and his fellow officers and employees, and others having business with the stock food company, “made frequent use of the ground on which said track lay in passing to and from said building through the doors in the west side thereof, which were in close proximity to said sidetrack, and that this practice had continued for several years,” then the defendants and the stock food coxftpany “had a community of interest in said sidetrack, and they were in the joint occupancy of the ground on which said track was laid,” and the defendants were under an obligation to the officers and employees to exercise ordinary care to avoid injuring them; that under such circumstances H. B. Allen was not a trespasser, licensee, or invitee of the defendants at the place where he met his injury; and, under the facts stated, if the defendants failed in the manner and form alleged in the petition to exercise ordinary care to avoid injuring Allen, and in consequence thereof he was injured, it was their duty to return a verdict in favor of plaintiff.
There is no dispute in the fact that the 265 feet of the track referred to in the contract was in existence before the contract was executed, and that since then the track had grown to be 1,500 feet long, serving a number of other industries, and was devoted to state and interstate commerce;> that the service or sidetrack was a track uáed and operated in the business of the association, which had a right to use it for any purpose desired in its business. Under the contract, the right of way, “free and unencumbered,” was granted to the association; the track was to belong to the association, and it had the right to use it “for its own business, or for the business of any other person or shipper.” We fail to find in the contract anywhere a suggestion or intimation of any limitation on the use of the track by the associated railroads during the time it remained there.
Under the interstate commerce act, section 1, the jurisdiction of the interstate commerce commission over railroads includes “switches and spurs, tracks and terminal facilities . . . train yards, . . . railway trackage, whether' owned outright or operated under agreement.” (Beale and Wyman on Railroad Rate Regulation, 2d ed., 830.) The undisputed facts are, that the track in question was used and operated by the defendants as part of a system of trackage devoted to state and interstate commerce. It cannot be doubted that under the terms of the contract, as well as the manner in which the track was used since 1909, the defendants were entitled to the uninterrupted and exclusive possession and occupancy of the track and all of the right of way necessary for conducting their business. (K. C. Rly. Co. v. Allen, 22 Kan. 285; Mo. Pac. Rly. Co. v. Manson, 31 Kan. 337, 2 Pac. 800; Tennis v. Rapid Transit Rly. Co., 45 Kan. 503, 25 Pac. 876; Railway Co. v. Spaulding, 69 Kan. 431, 77 Pac. 106.)
In Dotson v. Railway Co., 81 Kan. 816, 106 Pac. 1045, the railroad company built a spur track on land owned by it, and thereafter sold the land without reserving the right of way, but continued to use and operate the track for a great many years, for its own convenience as well as the benefit of the public, with the knowledge and acquiescence of the owner. It was held that the owner could not maintain an action of ejectment to evict the company from the premises. It was said in the opinion:
“The testimony all shows that while only a few persons have done business on the spur all who desire to use it are served on equal terms. It has been used as an integral part of the system for the accommodation of the company and the public; it is subject to regulation by the state, and the company, upon refusal, could be required to serve all persons desiring service upon the road without discrimination.” (p. 822.)
In the syllabus it was said:
“Whether the use of a spur of a railroad is public is not determined by its length nor the number of industries it may serve; If it is a part of a railroad system which the public may use on equal terms as of right, and is subject to government regulation, -it is a public use, whether few or many are accommodated by its operation.” (syl. ¶ 3.)
The court was in error in the instruction which charged .that the stock food company and the associated railroads had a community of interest in the track,' and that they were in the joint occupancy of the ground on which the track was laid, and that the defendants were under any obligation to the officers and employees of the stock food company, other than' the obligation to the public generally. Moreover, there was error in that part of the instruction which charged that if Allen and his fellow officers and employees, and others having business with the stock food company, made frequent use of the ground on which the track lay in passing to and from the building through the doors, and this practice had continued for several years, the' deceased was not a trespasser, licensee, or invitee, and that the defendants were charged with the duty to exercise ordinary care as to him in moving its engines and cars, so as to avoid injuring him. In the late case of Malott v. Railroad Co., 99 Kan. 115, 160 Pac. 978, it was held':
“No public way is established across- a railway switch yard merely because pedestrians for many years had so frequently trespassed thereon that they had worn a beaten path across it.” (syl. ¶ 1.)
“One who undertakes to cross a railway switch yard of many railway tracks, where engines and cars are likely to be moving at any time in the regular course of the railway’s business, is a trespasser and does so at his- peril, and the only duty of the railway company and its employees towards such trespasser is not to willfully injure him.” (syl. ¶ 2.)
In that case, a path had been worn across the tracks by the travel of persons who frequently trespassed thereon, and it appeared that when freight cars were standing on the tracks, pedestrians “would zigzag to find the openings,” through which they would cross, avoiding if possible the danger of climbing on the cars, but climbing over the couplings, if neces-' sary, or over the cars. In the present case, one of the witnesses testified that he had seen Mr. Allen go through over the couplings between the cars, and that in the majority of instances cars were standing on the track there, and it was blocked. In the opinion in the Malott case, supra, it was said:
“The fact that many trespassers, like the plaintiff, had worn a path across the switch yard and had persisted in trespassing for many years, swarming around or over or under the cars when the path was blocked by freight cars, did not have the effect of establishing a lawful footway across the defendants’ switch- yard.” (p. 117.)
It was said, too, that that case “does not differ in principle from the precedents of this court except to make the non-liability of the railway company more than ordinarily clear” (p. 117), citing dozens of Kansas cases. y
Mr. Allen had been ah officer of the stock food company for a number of years, connected with the mill since the organization of the company, and was familiar with the way the cars were operated, according to the testimony of one of the plain tiff’s witnesses. Under the findings and the conceded facts, defendants were entitled to judgment.
The judgment is reversed, and the cause is remanded with directions to enter judgment against plaintiff.
Johnston, C. J., Mason, J., and West, J., dissent.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, a Nebraska corporation, brought this action before a justice of the peace, for the price of a small consignment of crockery which it had sold and delivered to the defendants, who were partners in a variety store in Mankato.
One of the defendants answered with a cross-claim for $2,633.45 as damages, alleging that, in a similar shipment received from plaintiff a few weeks earlier, she had been poisoned by the wrappings in which the crockery had been shipped, and had' sustained damages in loss of health, and for doctor’s bills, medicines, nurse hire, dressings and attendance.
The pleadings in the district court were those used in the justice court where the aption had originated.
The cause was tried without a jury; and the evidence tended to show that the straw, hay, excelsior and paper in which the crockery was packed was infected with some virulent yellow dust or substance which poisoned defendant’s hands, face, eyes, and her skin down to the top of her waist. The nature of the poison was not discovered, but it caused intense inflammation; her skin was red and swollen, her eyes nearly swollen shut, and a watery substance exuded from her skin. Othepersons who assisted her were likewise somewhat affected, and customers in the store noticed the peculiar odor which appeared to have come from the packing material. The stuff wa carried out of the store and burned. The defendant was partly incapacitated for several months, and she required some volunteer and some paid help to conduct her business during her indisposition.
The evidence for the plaintiff tended to show that the packing was all of clean and wholesome materials, and the work of packing was done in a clean and wholesome place of business. There was no evidence as to the condition of the shipment when it was received from the railway company.
At the trial, defendant waived all her claims for damages except for “wages” to herself at $60 per month for the timé she had lost through her incapacity.
The court gave judgment for defendant for $114.30, and plaintiff appeals.
Appellant urges many objections to this judgment, the chief of which are: (1) that tort is not an allowable cross-claim before a justice of the peace in an action on a verified account, and that the district court on appeal had no greater jurisdiction than the justice of the peace; (2) that a cross-claim for a tort by one defendant against a plaintiff’s claim against two defendants on an account is bad for want of mutuality; (3) that defendant’s bill of particulars was not verified; (4) that defendant and cross-claimant failed to prove plaintiff’s negligence, and failed to prove that plaintiff knew or might have known that the wrappings were poisonous; (5) that since plaintiff proved by unimpeached witnesses the wholesome and sanitary packing of the goods by plaintiff, the fact that the packing was poisonous when the goods were received did not establish a case of negligence against plaintiff, as alleged, in “carelessly and negligently” packing the shipment of goods “in wrappings which contained poison” and “that the wrapr pings of said goods were full of dust and poison”; and (6) that the evidence failed to prove the damages which were voluntarily narrowed by defendant at the trial to “wages,” and that a partner is not entitled to wages in the absence of a partnership agreement to that effect.
As the court has not been favored with a brief by appellee in answer to these contentions, we will only consider one of them —one which obviously disposes of the whole controversy. Plaintiff’s action was against two defendants, who, as partners, were liable on its verified account. In an action of that 'sort, one of the defendants could not set up a cross-claim founded on a tort personal to herself against the partnership liability; and the reason is that there is want of mutuality. The defendants have no community ox interest in such cross-demand. It was wholly unrelated to the transaction which is the basis of the verified account.
In 25 American and English Encyclopedia of Law, second edition, page 524, it is said:
“It is also a generally prevailing rule that where there are two or more defendants jointly sued by the plaintiff, one or more of such defendants less than all cannot set off a debt due from the plaintiff to him or them only. This rule will prevent the setting off of their several claims against the plaintiff by each defendant. And in an action against a partnership the indebtedness of the plaintiff to one of them cannot be set off.” (See, also, id., Note S, p. 524.)
In 34 Cyc., page 727, it is said:
“As a broad general rule a joint debt cannot be set off against a separate debt, nor counter-claimed, nor can a separate debt be set off against a joint debt, nor counter-claimed, nor pleaded in reconvention. . . . A debt due by plaintiff to only part of joint defendants cannot be set off against the joint debt due to plaintiff.”
In Roberts v. Donovan, 70 Cal. 108, it was said:
“In an action against two or more joint debtors to enforce their joint liability, the summons being served on all of them, one of the defendants cannot set up by way of counter-claim a cause of action existing in his favor alone against the plaintiff.” (syl. ¶ 2.)
(See, also, Rogers v. McMillen, 6 Colo. App. 14; Hunter v. Booth, 82 N. Y. Supp. 1000; Manufacturing Co. v. Cycle Co., 55 S. C. 528; Ritchie & Wales v. Moore, &c., 5 Munford [Va.], 388.)
Causes of action which the code permits to be united, other than to enforce liens, are those which affect all parties to such causes of action, and cross petitioners are plaintiffs in effect. (Civ. Code, §§ 88, 97-102, Gen. Stat. 1915, §§ 6979, 6989-6994; Hudson v. Comm’rs of Atchison Co., 12 Kan. 140; Swenson v. Plow Company, 14 Kan. 387; Palmer v. Waddell, 22 Kan. 352; Bobbs v. Stauffer, 24 Kan. 127; Jeffers v. Forbes, 28 Kan. 174; McGrath v. City of Newton, 29 Kan. 364; The State v. Shufford, 77 Kan. 263, 94 Pac. 137.)
In The State v. Addison, 76 Kan. 699, 704, 92 Pac. 581, it was said:
“The third ground of the demurrer seems to be well taken. The petition contains as many separate and distinct causes of .action as there are defendants, and each of these several causes of action depends upon its own peculiar facts. Neither defendant is necessarily interested in the defense or success of his codefendants. A separate and different judgment must be entered upon each cause of action. Under the code every cause of action in the petition must affect all the parties to the action; otherwise they cannot be joined. (Code, §83; Gen. Stat. 1901, § 4517; Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961; Rizer v. Comm’rs of Davis Co., 48 Kan. 389, 392, 29 Pac. 595; L. N. & S. Rly. Co. v. Wilkins, 45 Kan. 674, 677, 26 Pac. 16.)”
(See, also, Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961.)
To be of any validity, a cross-demand, set-off, or counterclaim must be sufficient in itself to form the basis of a cause of action (Civ. Code, §§.97-102, Gen. Stat. 1915, §§ 6989-6994), and the test of the mutuality of interest in such set-off or counterclaim must be thp same as that required to permit the joinder of causes of action under section 88 of the civil code .(Gen. Stat. 1915, § 6979).
It will thus be seen that while the grievance of one of these defendants, Mrs. Hodgson, may be the subject matter of a meritorious separate lawsuit against the plaintiff, the want of mutuality between her and her codefendant prevents consideration of her individual grievance in this action against her partner and herself on plaintiff’s verified account for goods sold and delivered to them.
This necessitates a reversal of the judgment, and the cause is remanded with instructions to enter judgment for plaintiff on its verified account.
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The opinion of the court was delivered by
Johnston, C. J.:
The action was brought by the Farmers and Merchants Bank to recover on a negotiable promissory note for $625, executed by the defendant, Alice Quasebarth, in favor of the Kansas Life Insurance Company, maturing October 1, 1916, and which was transferred to the plaintiff. The defendant claimed that the note was obtained by fraudulent representations of the insurance company, and that the plaintiff had knowledge of the fraud when it purchased the note. The issues were determined in favor of the plaintiff, and defendant appeals.
The note in suit was executed on February 19, 1916, and was, transferred to the plaintiff without recourse, on the same day,’ more than seven months before it became due. It appears that the insurance company had opened an account with the bank on February 15, 1916, a few days before *the purchase of the note, and when the note was received the purchase price was entered by the bank to the credit of the company.. At the time of the purchase the insurance company had a balance in the bank to the amount of $1,550, and it seems that before March 25, 1916, more than the amount of that deposit had been checked out by the insurance company.
■ The bank had no notice of any false representations or of any defenses to the note when it was purchased, nor until after •its maturity, the following October. Some days after it matured the defendant notified the bank that she had a defense and desired the bank to take the amount of the note out of the deposits of the insurance company then in the bank. The court rightly decided that the bank, having purchased the note without notice of any infirmities or knowledge of any defenses to it prior to its maturity, and1 having paid for it in February, 1916, should be regarded as a purchaser for value. It is con ceded by the defendant that if the plaintiff had actually paid for the note when it was purchased, it would have been entitled to be regarded as an innocent purchaser, but it is insisted that as it only credited the insurance company with the proceeds of the note it became a'mere debtor of the insurance company, and that as there were funds of the insurance company in its hands belonging to the company, on and after October 1, 1916, and after it had learned of the fraud, it cannot be regarded as an innocent purchaser.
It is true, as contended, that the entry of credit made when the note was purchased only made the bank a debtor to the insurance coihpany, and the deposit of the proceeds of the note only increased the indebtedness of the bank to the insurance compay to the extent of the credit entered. This credit did not amount to a payment of the note, nor make the bank a purchaser for value. However, when the amount credited to the company was checked out and the credit thus given became exhausted the note was paid for, and from that time the bank, if it had no previous notice of the infirmities of the paper or defenses to it, became a purchaser for value entitled to the protection accorded an innocent holder. (Fox v. Bank of Kansas City, 30 Kan. 441, 1 Pac. 789; Dreilling v. National Bank, 43 Kan. 197, 23 Pac. 94.)
When the note was purchased and added to the checking account which had been opened by the company with the bank a few days before, the balance was $1,550. On March 25, the Company had checked out $1,811.62, which was considerable more than the amount on deposit when the purchase was made. ■Under the rule of the cited cases, the avails of the purchased note having been drawn out, the indebtedness of the bank to the insurance company arising from the purchase of the note had been discharged. At that time, as we have seen, the bank had no knowledge of the defense to the note, nor for more than seven months afterward, and therefore it must be regarded as a bona fide purchaser for value. The fact that the insurance company subsequently added other deposits to its checking account, and that sometimes there was a balance in favor of the company (as there appears to have been about the time the note became due), does not affect the attitude of the bank as a bona fide holder, nor deprive it of the right and the protec tion acquired when payment of the deposit was made through the checking out of the deposit on March 25, 1916. (Fox v. Bank of Kansas City, supra.)
In Fredonia Nat. Bank v. Tonnei, 131 Mich. 674, it was said:
“A bank which discounts a promissory note, crediting the proceeds to the indorser’s account, which becomes exhausted before the maturity of the note, is a purchaser for value, notwithstanding the indorser subsequently has deposits equal to the amount of the note.” (syl. ¶ 2.)
(See, also, Mann v. National Bank, 34 Kan. 746, 10 Pac. 150; Northfield National Bank v. Arndt, 132 Wis. 383; 3 R. C. L., p. 1056.)
We see no reason to depart from the rule of the Fox and Dreilling cases, and applying it to the facts of this case it must be held that the plaintiff became entitled to the status of a purchaser for value, not when the note against defendant matured, but when the bank’s debt to the purchaser had been paid by checking out the fund arising from the entry of the credit. This was done so long before any knowledge of defense to the note came to the bank that there is no good reason for dispute as to when the bank became a purchaser. When the $1,550 balance was checked out, on February 25, the bank became purchaser for value as completely as it would have done had- it paid the money across the counter when the note was purchased.
Judgment affirmed.
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The opinion of the court was delivered by
Johnston, C. J.:
Has an informant the right to appeal from an order of the probate court approving the verdict of a jury finding that a subject of inquiry is not feeble-minded? A negative answer was given in the district court, and the informant complains of the ruling.
The inquest was initiated by J. E. Erickson, who alleged in his affidavit that Erick Erickson was feeble-minded, incapable of managing his affairs, and he asked that a guardian of the person and estate of Erick Erickson be appointed. He did not state his relationship fio or interest in Erick Erickson, but in one of the papers in the attempted appeal it is incidentally mentioned that he is a son of the respondent. The statute provides for an appeal from a decision of the probate court by or on behalf of the respondent, when the finding and decision is against him. (Gen. Stat. 1915, § 6101; Ald v. Appling, 89 Kan. 340, 131 Pac. 569.) It also provides for an appeal from a final order or decision in any matter arising under the act, upon the terms and conditions that appeals áre allowed in the act respecting executors and administrators. (Gen. Stat. 1915, §§ 4675, 6131; Ald v. Appling, supra.)
It is contended that the finding that the respondent was not feeble-minded was not a final order, and that therefore no appeal is authorized. It is argued that the proceeding is not an action between adverse parties, but a mere inquest as to the mental state of the respondent and is made for his benefit; that the probate judge is not bound to call a jury upon the filing of an information alleging mental incompetency, but only in case he is satisfied that there is good cause for making an inquiry. (Laws 1917, ch. 165.) As showing a lack of finality, attention is called to the provision that the finding of a jury in such an inquiry may be set aside by the court for just cause, and another jury impaneled, until two juries concur, in which event the last may not be set aside (Gen. Stat. 1915, § 6102), and that even where a finding of incompetency is made, the judge is not required to appoint a guardian of the person or estate unless he is convinced that it is necessary, and further, that a new proceeding may be started and a new complaint alleging incompetency may be filed by any person at any time after the first inquiry. It is further argued that the things enumerated and the fact that the informant herein might have asked for a finding by another jury, or have instituted a new inquiry, all argue that there is no finality in the order made, and therefore no appeal lies. Assuming that a finding against incompetency may in some cases have the element of finality, as, for instance, when costs are adjudged against the informant, it is clear that the appellant was not entitled to prosecute an appeal from the finding and order made herein. What is his grievance? What interest of his was prejudiced by the finding that his father was of sound mind? No costs were assessed against 'him, and he had no pecuniary or other substantial interest in the inquest any more than if it had been instituted by a stranger. The general rule is that the only party who may appeal from an order or judgment of a court is one whose substantial rights have been prejudiced by the decision, and since the appellant has not lost anything nor suffered a substantial injury by the ruling, he has no right of appeal. (Studabaker et al. v. Markley, 7 Ind. App. 368.) He is not a party to the proceeding in the ordinary sense and cannot control the inquiry, and hence it has been held that such a proceeding cannot be dismissed at his will or caprice, nor unless the probate court, acting in its discretion for the interest of the public and the person whose sanity is questioned, consents. (Galbreath v. Black, 89 Ind. 300; Ruhlman v. Ruhlman, 110 Ind. 314; State, ex rel., v. Guinotte, 257 Mo. 1.) The fact that the appellant is a son of and may possibly inherit from the respondent is no ground for allowing him an appeal. He has no present interest in the estate of his father, but at most only an expectancy, and it has been decided:
“That the expectancy of an heir or the apprehension of being ultimately compelled to maintain a lineal ancestor or descendant is no present vested interest which the law .can recognize.” (Nimblet v. Chaffee, 24 Vt. 628, 630.)
(See, also, In re Varnum, 70 Vt. 147; Gannon v. Doyle, 16 R. I. 726; In re Brooks, 104 N. Y. Supp. 670; Merrill v. Merrill, 134 Wis. 395.)
Although the filial relation between parent and child prompts, or should prompt, a child who is able, to maintain and care for an indigent and helpless parent, it is a well-recognized doctrine of the common law that there is no obligation that he should do so, however old or needy the parent may be. (29 Cyc. 1619; Note, 4 L. R. A., n. s., 1159; Note, 9 Ann. Cas. 1019.) Many of the states place such an obligation on children of a needy parent, but no such statute has been enacted in this state. We have a statute which provides that in cases where persons are adjudged to be insane and have been kept at public expense, the county or the state bearing the expense may recover the same from the estate of the insane person, or from the husband, wife, parent, or child of the insane person. (Laws 1907, ch. 247, §§ 31-33, Gen. Stat. 1915, §§ 6128-6130.)
This provision for reimbursement applies only to the case of those adjudged insane, and has no application where persons charged with insanity are found to be of sound mind, nor in any other cases than those specifically mentioned in the statute. A statutory liability of this kind is not extended beyond the cases mentioned, nor in any other mode than those prescribed by the statute. (29 Cyc. 1620.)
Our conclusion is that the appellant was not entitled to maintain his appeal, and hence the judgment of the district court is affirmed.
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The opinion of the court was delivered by
"Mason,- J.:
W. D. ‘Greason published in his newspaper an article criticising the conduct of B. J. Carver as county attorney. Carver brought an action against him for libel. A demurrer to the petition was sustained. Upon appeal the ruling was reversed on the ground that the article was not absolutely privileged, inasmuch as it was not confined wholly to a narrative of what had taken place in court, and that conditional privilege would not render the petition demurrable, because malice and a specific intent to injure were charged. (Carver v. Greason, 101 Kan. 639, 168 Pac. 869.) Upon a remand the plaintiff introduced his evidence, a demurrer to which was sustained, and the case is now here on an appeal from that ruling.
1. The matter charged to have been libelous had relation wholly to the conduct of the plaintiff as a public officer. It did not reflect upon his private character, nor assail the integrity of his motives. Therefore, it was conditionally privileged. (17 R. C. L. 353, and notes there cited.) The plaintiff’s manner of performing his official duties was a fair matter for newspaper comment, and his status, so far as this case is concerned, is substantially the same as that of a candidate for election.
2. In order to prevail it was incumbent on the plaintiff to show express malice. (Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281; Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533.) Malice is not presumed from the falsity and injurious character of a qualifiedly privileged publication, although it may be inferred from the language used, if it is of a disproportionate, exaggerated, and sensational character.- (17 R. C. L. 419; Note, 12 L. R. A., n. s., 91.) Otherwise it must be made to appear by extrinsic evidence.
3. Whether the language used in a particular case is in itself of such a nature as on its face to constitute evidence tending to show actual malice is a question of law for the determination of the court. (Townshend, Slander and Libel, § 288.)
“It is a matter of law for the court to determine whether the occasion of writing or 'speaking criminatory language, which would otherwise be actionable, repels the inference of malice, constituting what is called a privileged communication; and if there is no intrinsic or extrinsic evidence of malice, it is the duty of the court to direct a nonsuit or verdict for the defendant.” (Neeb v. Hope, 111 Pa. St. 145, 154.)
4.. The article under consideration may be thus summarized: One Shearer pleaded guilty to a felony. He and his attorneys asked the court for a parole. It had been learned that he had passed several worthless checks on different people, but they had been reimbursed and joined in the request that he be paroled. The plaintiff, as county attorney, recommended this course, saying that he thought it was Shearer’s first offense. The judge asked Shearer if he had ever been in trouble before, and on receiving a negative answer produced proof, which had been gathered by the sheriff, that he had served a term in the penitentiary of another state. The application for a parole was denied, and Shearer received his sentence.
The petition alleged that the entire article was false. On the cross-examination of the plaintiff, however, he was asked to point out the different statements that he claimed to be untrue, and aside from a clause in which it was said that the county attorney’s advice to the court with reference to Shearer’s parole had been given “in stentorian tones that could be heard at the Frisco depot,” he indicated only the concluding portion of the article, reading as follows:
“The- result demonstrates that vigilant investigation ,by the county attorney Would have revealed the facts as ascertained by the sheriff. But the recommendation that Carver made to the court was at the solicitation of the attorneys for Shearer and the price he was paying for his subserviency to them. Were it not for the action of Sheriff Chandler, the combined efforts of Shearer’s counsel and the county attorney would have worked an injustice to the people of Kansas and would have sent a man scot free who in fact should, be in the penitentiary.
“Less politics, less juggling, less collusion between the county attorney, and certain lawyers in Paola is necessary. This circumstance démonstrates that Miami county is in need of a bigger man in the office of county attorney than its present incumbent.”
Notwithstanding the use of the words “subserviency,” “juggling,” and “collusion,” this court does not think that the article, taken as a whole, can fairly be regarded as asserting that the plaintiff was actuated by any corrupt motive. The substantial charge against him — the only misfeasance or nonfeasance alleged — was that he did not make a vigilant investigation of Shearer’s record — the form of the statement being that if he had done so he would have discovered the facts. The implication was obvious that he was not accused of concealing or suppressing any fact, or of any conscious wrongdoing. The offensive words quoted were used to characterize the conduct described — the failure to use proper diligence in prosecuting an inquiry — and must be interpreted in the light of that fact. Whether or not a vigilant investigation by the county attorney would have revealed the past history of Shearer was largely a matter of opinion, and while the defendant’s criticism was expressed in somewhat severe terms, this court agrees with the trial court that it does not tend to show actual malice.
“The mere fact that language used is somewhat strong, or not altogether temperate, would not, in the absence of any indication that it was not' used bona fide, be evidence of malice.” (Edmondson v. Birch & Co., Limited, and Harner [1907], 1 K. B. 371, 381, 7 Ann. Cas. 192.)
“While the motives and private characters of public officials cannot be assailed in periodicals without subjecting their proprietors to actions for libel, in which they must assume the burden of establishing the truth of their defamatory assertions, criticism of all official acts may be safely indulged, and the language employed may be caustic and irritable in the extreme.” (Note, 15 Am. St. Kep. 350.)
5. Nothing was shown in the circumstances surrounding the affair to change the prima facie aspect of the article. Practically all the evidence was directed to the question of its truth or falsity. The only item having a possible bearing upon the question of express malice was proof that some six months after the publication complained of, and while this litigation was pending, the defendant’s paper had printed a statement that the plaintiff had been so overcome by his efforts and the verdict in a murder trial that he had been unable to appear for the county in several other cases, but had hired another attorney to represent it, whereas in fact the plaintiff had tried the cases referred to, being assisted by the other attorney because a client of the latter had an interest in them. The plaintiff also made an offer, which was refused, to prove that he did not remember a single instance during his four years' service as county attorney where the defendant had given him a word of recommendation or commendation. We cannot regard evidence of this negative fact as having any tendency to show ill will or actual malice on the part of the defendant.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a ruling sustaining a demurrer to the plaintiff’s evidence. The action was for specific performance of an oral contract under which plaintiff claims the right to one-half of all the property owned by the husband of Mrs. Bower at the time of his death.
The plaintiff’s real name before her marriage was Stella Ertz. When she was two years old she was taken into the family of defendant and raised and treated by Mrs. Bower and her husband as their own child. She went by the name of Stella Bower; believed until she was about fifteen that Mr. and Mrs. Bower were her parents, and only learned the truth when she received a letter from a sister which caused her to make inquiries of Mrs. Bower.
Mr. Bower was a farmer, and the plaintiff worked on the farm doing not only the ordinary work about the house, but assisting him in plowing, harrowing, cultivating in the fields, and in feeding and attending live stock. The last few years she was there she performed generally the work of a hired man. She received no compensation for her services, other than her board and clothing. In January, 1917, when the plaintiff was about twenty years old, Mr. Bower died intestate, leaving no heirs at law except his wife. He owned real estate and personal property valued at about $10,000. Mrs. Bower • at once asserted ownership of all the property and sold the personalty. She gave plaintiff 100 bushels of corn, which plaintiff claims she understood was to.be only a partial payment for her work after she arrived at the age of eighteen. In February, 1917, Stella married, and she and her husband offered to continue on the farm with Mrs. Bower and to help with the work; Mrs. Bower declined the offer, stating that she didn’t need plaintiff any longer.
The petition alleges an oral agreement between the plainti'ff’3 mother and Mrs. Bower, when the plaintiff was two years old, by the terms of which Mrs. Bower agreed that she and her husband would take plaintiff into their home, give her the same love, care and education as though she were their child, and “upon their death she would inherit from them or either of them, the same share of their property in the same manner as though she were their own and only child and they should die intestate.”
The petition alleged full performance of the agreement .on plaintiff’s part, and that after Mr. Bower’s death, Mrs. Bower had taken possession of the property and exercised control over it. Plaintiff asked for a decree impressing a trust in her favor upon one-half of the real estate until the death of Mrs. Bower. Plaintiff also alleged in the petition that her services for the last ten years she resided in the family were worth $200 a year, and asked judgment for $2,000. On the motion of defendant, the court compelled her to elect whether she would proceed upon the théory that she was entitled to a share of the property, or for the value of her services; she elected to rely upon the contract for a child’s portion of the property. The petition contains allegations to the effect that at different times while plaintiff lived with Mr. and Mrs. Bower, both before and after her discovery that she was not their natural child, they ratified and confirmed the agreement made with her mother for her use and benefit, and further agreed with plaintiff that upon the death of either of them she would inherit the portion of the estate of the deceased foster parent in the same manner and to the same extent as provided by law in the case of a child whose parents die intestate.
The answer was a general denial, with the admission that since plaintiff was two years old she had lived in the family of the defendant and her deceased husband, during all of which time they had treated her kindly and indulgently as though she were their own child, but that she had never been legally adopted.
The only evidence offered by plaintiff tending to show what the arrangement was between her mother and Mrs. Bower consisted of the testimony of an elder sister of plaintiff, who said she heard the conversation between her mother and Mrs. Bower, in which the plaintiff’s mother stated she would surrender the custody and possession of the plaintiff to Mrs. Bower upon the condition that “they would educate, rear, treat and bestow upon her the affection of an own natural child,” and that defendant stated she would accept the custody of plaintiff on those conditions, and that plaintiff “would thereafter inherit from them the same share of the property and estate which they owned, and in the same manner as though she were their own natural-born child.” Several neighbors of the defendant gave testimony, the substance of which is fairly illustrated by that of Mrs. Carmean, whose testimony as to conversations with Mr. Bower was, “He said they had taken the little girl when she was but two years old and . . . raised her as their own, and that when he was gone she should have his share of the property.” The plaintiff testified that after she first learned who her parents were, “Mrs. Bower said if I would stay with them and consider them my own parents and help them to do the work, that I was to have what was left when they were gone”; that at another time Mrs. Bower said: “If you will stay with us and save the necessity of hiring a man, there will be that much more left . . . when we are gone, for you. I said, ‘all right’ ”; that' once when she and Mrs. Bower had been out sawing wood and had come into the house to warm their fingers at the stove, Mrs. Bower said: “I know it is hard work, but if we can do it ourselves there will be that much more left for us when Mr. Bower is through ... is gone.”
Referring to' her acceptance of the 100 bushels of com, plaintiff testified that Mrs. Bower asked how much she wanted for her work, “and I told her I didn’t know, and after a while she told me she would give me 100 bushels of com. I told her she didn’t need to mind, she could pay me when she was all through, and when she was gone I could get what was left, as they had promised me. She said I had better take what I could get then, because I didn’t know what would be left when they were gone.” Plaintiff also testified that her understanding was that the com she received was to pay for her services from the time she was eighteen. This settlement was after the death of Mr. Bower.
■ When plaintiff was a child, her foster father gave her a pony which she was allowed to call her own. After his death, the defendant sold it for $90, and at the trial she testified that, although the plaintiff had always claimed the pony, she had frequently told her it was not hers. A third cause of action for the value of the pony was submitted to the jury, and a verdict returned in plaintiff’s favor.
The testimony of the neighbors concerning statements made by Mr. Bower in casual conversations with them, show mere statements of his intention that when he was gone Stella should have his share of the property. They did not show the existence of the contract relied upon by the plaintiff, and are not of themselves sufficient to raise an implication that any contract of that character existed. (James v. Lane, 103 Kan. 540, 175 Pac. 387.) The testimony of plaintiff’s sister tended to support the claim in the petition that plaintiff was taken into the family of the defendant with the understanding that she would be treated as the natural child of Mr. and Mrs. Bower, and that at their death she should inherit as a natural child. But a parent may disinherit his own child; and evidence tending to show that the child has rendered valuable services to the parent is not sufficient to raise an implication of a contract no't to disinherit. If Mr. Bower had desired to carry into effect the intention expressed in his lifetime, that plaintiff should receive his share of the property, there tvere two very easy methods by which to accomplish such intention — he could have made a will in her favor, or he could have taken the necessary steps for the legal adoption of the plaintiff as his own child; and then upon his death intestate she would have acquired a child’s portion of his estate.
The rule adhered to in cases of this general charactér is, that there must be-facts and circumstances sufficient to raise a convincing implication that the contract was made, and to satisfy the court.of its terms; and there must be no inequity in its enforcement. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; James v. Lane, supra.) Until plaintiff was more than fourteen years of age she believed that the defendant and Mr. Bower were her natural parents. It qannot be said she failed to show equitable considerations in her favor. She was given less than four years of" schooling; when she should have been in school she was plowing corn, and from that time until she was past twenty years of age she performed the labor of a hired man in the fields. Her years of faithful service and arduous labor doubtless assisted largely in the accumulation óf the property possessed by the defendant; but under the authorities cited there must be more than mere equitable considerations shown.
The plaintiff fails because the most that can be said is that her evidence tended to show an agreement that she should be treated as the natural child of Mr. and Mrs. Bower. The demurrer was rightly sustained.
There remains the question whether the court erred in compelling plaintiff to elect between the two remedies — the one upon the oral contract, the other upon an implied contract for the value of her services. If the two remedies are inconsistent, she ought not to be permitted to speculate upon the evidence, and make her election after the evidence had been introduced. Her cause of action on the alleged oral contract is based upon the theory that upon the death of Mr. Bower the title to one- half of his property passed to her, subject to a life estate in the defendant. Her claim that she is entitled to recover on an implied contract for the reasonable value of her services, is based upon the theory that no interest whatever in the property passed to her upon the death of Mr. Bower; that the title to all of it vested immediately in the defendant, subject to the plaintiff’s claim, as a debt against the estate, for the val,ue of her services. The two remedies are inconsistent. (James v. Lane, supra.)
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
S. D. Campbell sued W. A. Herrick and C. A. Moore upon a promissory note executed by them, obtaining judgment against both. Moore appeals on the ground that the statute of limitations had run as to him.
The note was given for the debt of a partnership composed of the two defendants, doing business under the style of “Herrick-Moore Music Co.,” being signed in that name by Her rick, and by Moore individually. It was dated January 25, 1911, and due in thirty days. On March 11; 1911, the partnership was dissolved, Moore selling out his interest to Herrick, who assumed the payment of the firm’s indebtedness, and continued to run the business, apparently' without any change in the name under which it was conducted. Herrick paid $50 on the note on May 7, 1912, $25 on October 18, 1915, $25 on August 10, 1916, and $150 on November 8, 1916. The action was brought on July 11, 1917. The question presented is whether the payment made by Herrick on October 18, 1915, operated to start the running of the statute anew as to Moore, as well as to himself.
There was no direct evidence that Campbell had any notice of the dissolution of the partnership. A suggestion is made in behalf of Moore, that such notice was inferable from the circumstances. The trial was had without a jury, and no special findings were made. All debatable questions of fact must be regarded as resolved in the plaintiff’s favor. It must therefore be assumed that the plaintiff had no notice of Moore’s withdrawal from the firm at the time of the payment in question.
A part payment by one of several joint (or joint and several) debtors does not affect the running of the statute as to the others. This is the rule in this state (Steele v. Souder, 20 Kan. 39) and in this country generally, although not universally. (25 Cyc. 1385.) There is still more difference of opinion as to the effect where the debt is that of a partnership which had been dissolved at the time of the payment. The weight of authority, however, favors the view that where the creditor has not had notice of the dissolution, the part payment by one partner affords a new starting point for .the statute as to all. (25 Cyc. 1389, Note 7; 19 A. & E. Encycl. of L., 2d ed., 307; 17 R. C. L. 915, Note 4.) The contrary view seems to have been taken in cases where this phase of the matter was directly involved, only in Florida (Tate v. Clements, 16 Fla. 339) and in Maine (True v. Andrews, 35 Me. 183.) The Florida case was approved in Green v. Baird, 53 Ill. App. 211, but there the transaction relied upon to toll the statute as to a partner who had withdrawn from the firm was the giving of a new note by the remaining partners in their own names for the accrued interest on the note in suit, and this circumstance was treated as of considerable, if not controlling, importance. A partner who has withdrawn from a firm may even be liable for its indebtedness thereafter incurred, where no notice of his withdrawal has been given. (30 Cyc. 608; 20 R. C. L. 982.) There would seem to be at least equal reason for holding that an acknowledgment or part payment of an old debt by a member of the firm who continues in the business would have the same effect upon the rights of the retiring member as though made by himself or by his procurement. Here, there were but two members of the partnership, and upon the retirement of Moore, Herrick became the sole owner of the business; but, inasmuch as he continued to carry it on presumably under the same name, the omission of Moore to give notice of his retirement justified the plaintiff in proceeding upon the understanding that there had been no change, and that the part payment was the act of both debtors. We conclude that the trial court rightly held that the statute of limitations had not barred the action against Moore.
2. It is contended that the defendants were not sued as partners, and that the petition did not plead the partnership. In the title as set out in the petition the defendants were described as partners doing business under the firm name of Herrick-Moore Music Company; and in an amendment to the petition it was alleged that the money for which the note was given was borrowed and used for the benefit of the partnership. We think the fact of the partnership and its relation to the note sufficiently appeared to enable the plaintiff to raise the, question discussed.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff appeals from a judgment which preferred the lien of a repair bill to the plaintiff’s chattel mortgage on an automobile sold by it. John Elloit bought an Overland car of the plaintiff, giving therefor seven notes for $37.50 each, one to become due August 15, 1917, and one on the 15th of each succeeding month until all were paid. He executed a chattel mortgage on the car, which, was filed for record in the office of the recorder of deeds of Jacks°on county, Missouri. Elloit lived at Kansas City, Mo. Six of the notes remained unpaid at the time of the trial, and the plaintiff had at no time consented that the car be taken out of Jackson county. In August, 1917,' one S. M. Roach, without the knowledge or consent of the plaintiff, brought the car in a damaged condition to the defendant’s garage in Leavenworth and requested that it be repaired; this was done, and the bill therefor was $215.68. The defendant did not file for record any lien or claim for lien within sixty days thereafter, nor at any time before the beginning of the action. He kept possession of the car until taken from him by replevin, at all times claiming a lien for the amount of his bill. Considerable correspondence passed back and forth, but no settlement was reached by the parties.
The Missouri statute provides that no such instrument as the chattel mortgage shall be valid against any other person than the parties thereto, unless possession be given or unless the instrument be acknowledged or proved and recorded in the county. where the mortgagor or grantor resides. Another statute of that state provides that every person who shall keep or store any vehicle shall for the amount due therefor have a lien, and every person who furnishes labor or material on any vehicle who shall obtain a written memorandum of the labor and material furnished, signed by the owner, shall have a lien for the amount thereof, but that such lien shall not take precedence over or be superior to any prior lien created by any chattel mortgage duly filed or recorded, without the written consent of the legal holder.
The court held that the defendant had an artisan’s lien for $215.68 and, the car having been disposed of, he was given judgment for such sum.
Our statute provides that a first and prior lien is treated in favor of any blacksmith, horseshoer, wagonmaker, keeper of garage or any other person upon any' automobile which shall have come into his possession for the purpose of having work done on it or repairs made, “and said lien shall amount to the full amount and reasonable value of the services performed. And shall extend to and include the reasonable value of all material used in the performance of such services.” (Gen. Stat. 1915, § 6092, as amended by Laws 1917, ch. 232.) The following section is that such lien shall be filed for record in the county where the services were rendered within sixty days thereafter. (Gen. Stat. 1915, § 6093.) The next and last section provides that this lien may be enforced and foreclosed as a chattel mortgage. (§ 6094.)
Doubtless, in order to enforce the lien as a chattel mortgage it is necessary for the artisan to record his claim as directed by the statute, but his right to retain possession until his bill is paid is not destroyed by failing to file the lien. The language does not so prescribe, and we cannot add a provision which the lawmakers have not made. It does not seem to have been the fault of either of the parties that the car came into the possession of Roach. After being damaged, it was brought to the defendant for repairs, but when it was so left, the law of the place immediately came into effect, and the lien of the artisan for repairs made was, by virtue of the statute, prior and superior to the lien of the plaintiff’s mortgage.
One consoling feature of the case is that the car is doubtless worth some $200 more than the wreck which was brought to the garage, and hence so much better a basis for security under the mortgage.
The situation is not like that in Handley v. Harris, 48 Kan. 606, 29 Pac. 1145, in which the mortgaged personalty was taken to another state and sold without notice of the lien, to one who was held bound by the constructive notice of the recording in the former.state; or like the similar situation presented in National Bank v. Massey, 48 Kan. 762, 30 Pac. 124. In Bank v. Brecheisen, 65 Kan. 807, 70 Pac. 895, an agister’s lien was claimed, not by virtue of the statute, but by reason of a contract, and this was held insufficient to supersede the lien of the chattel mortgage. (See, also, Olson v. Orr, 94 Kan. 38, 145 Pac. 900.) The case of Automobile Co. v. Dennis, ante, p. 241, 178 Pac. 408, is in some features analogous, and the cases therein cited are referred to. (See, also, Minor on Conflict of Laws, 309; 6 C. J. 1183, § 80.)
It does not appear whether Roach left the car as owner or as agent for the owner, but, in the absence of any showing, it must be presumed that he had the right to leave it and order the repairs. - (6 C. J. 1105, § 28; Andrews v. Keith, 168 Mass. 558, 560.)
While comity recognizes the lien of the chattel mortgage, the Kansas statute gives the garage man a prior lien.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of conviction for violation of the prohibitory law and related statutes, particularly the “bone-dry” law.
The defendant was bound over by a justice of the peace to answer for five offenses against the laws relating to intoxicants. In tiie district court, three counts against him were dismissed; and he was found guilty on the first count, and not guilty on the third count. Hi-, application for a new trial on the first count was granted, .''hereupon, the county attorney caused him to be haled again before a justice of the peace for other and similar offenses, and he' was again bound over to appear in the district court; and a new information was filed against him in five counts, the first of these being the same as the one upon which he had been found guilty, and upon which he had been awarded a new trial. Of the five counts in the second information, the third was dismissed; he was acquitted on the first, second and fifth, and convicted on.the fourth. This fourth count charged defendant with the offense of unlawfully and feloniously permitting another person to have and keep a quantity of intoxicating liquors upon the premises controlled by him.
It appears that the defendant conducted a boarding house. To justify the prosecution of defendant for a felony, the proper' allegations were pleaded and proved' to show that defendant had formerly been convicted of an offense under the prohibitory law; and the evidence in this case tended to show that, with the knowledge of defendant, some of his boarders 'had brought upon his premises and kept thereon three sacks of bottles of beer.
Defendant’s assignment of error is chiefly directed to the overruling of his motion to quash the information.
It is first contended that the information did not state a public offense, but the court discerns no infirmity in it. It plainly charged a violation of section 1 of chapter 215 of the Session Laws of 1917, after setting out, in appropriate recitals, the defendant’s previous criminal record to justify his classification as a persistent violator of the prohibitory acts.
The next contention is that the information failed to properly describe the premises where the offense was committed. The information described the premises thus: “Lot No. 46 in the original town of Ringo, Crawford county, Kansas.” Such description'was sufficient. (The State v Rabinowitz, 85 Kan. 841, 852, 853, 118 Pac. 1040.)
It is'next urged that the alleged offence charged in the second information (fourth count), upon which defendant was convicted herein, was one 'upon which defendant had been acquitted in the former trial. We see no ground for this contention. The count in the first information upon which he was acquitted charged that on the 11th day of August, 1917, the defendant did unlawfully and feloniously keep and have in his possession intoxicating liquors. The present conviction is based upon a different offense, and charged (fourth count) that defendant did “unlawfully and feloniously permit another to have and keep intoxicating liquors on premises controlled by him,” etc. The statute forbids such conduct The “bone-dry” act reads:
“It shall be unlawful for any person to keep or have in his possession, for personal use or otherwise, any intoxicating liquors, or permit another to have or keep or use intoxicating liquors on any premises owned- or controlled by him, or to give away or furnish intoxicating liquors to another, except druggists or registered pharmacists as hereinafter provided.” (Laws 1917, eh. 215, § 1.)
The court holds that the fourth count of this information stated a different offense from the one charged in the third count of the first information, and so far as concerns the fourth count, the motion to quash the information was properly overruled. The prosecution on the fourth count cannot be construed as placing him in jeopardy a second time for the offense of which he was acquitted, and since the defendant was acquitted on the first, second and fifth counts, and the third count of this information was dismissed, no further comparison between the counts charged in' the two informations would serve any purpose.
Another point, which contains no merit, is suggested in the contention that, after the justice of the peace had inquired into certain offenses with which the defendant was charged and had bound him over to the district court to answer therefor, the justice had no authority to inquire into the other offenses with which the defendant was charged later. Every time the county attorney learned of a new offense committed by the defendant, the latter might lawfully be arrested and taken before a justice and, upon proper inquiry, or upon waiver of examination, defendant might lawfully and repeatedly be bound over.
No prejudice to defendant occurred in filing in the 'district court the transcript of the proceedings ten days before those proceedings were duly certified. Criminals,, in this enlightened age, need not expect to escape the consequences of their offenses on such trivialities. (Crim. Code, § 293, Gen. Stat. 1915, § 8215.)
It is also contended that the court erred in rendering judgment on the verdict, because the verdict was not filed. The basis for the assertion that it was not filed is a certificate of the clerk of the court incorporating true copies of the information, verdict of the jury, etc., as the same now appears of record in his office, and certain memoranda from his appearance record — “Verdict of the jury filed-”, no date being given. It seems clear that the verdict was filed; the court ordered it recorded; the judgment shows it; the clerk makes a certified copy of it; the appearance docket shows it to be filed; and the only thing lacking is the date of the filing. This seems to be another triviality.
We come, then, to the last and only serious question in this lawsuit — the constitutionality of the “bone-dry” law. Appellant says that it is unconstitutional and void, and cites many a respectable authority and precedent from Blackstone’s time down to yesterday to that effect. But they all stop yesterday! The times change. Men change, and their opinions change; their notions of right and wrong change. The United States, its government and people, have come a long, long way since the Washingtonian society was organized in 1840 to combat intemperance. A whole generation of Americans has been born and educated, and has grown to maturity and taken its dominant place in the electorate and in official life, since instruction in the evil effects of intoxicants upon the human system became compulsory in our public schools. (Laws 1885, ch. 169; Gen. Stat. 1915, § 9034.) That is the leaven which has leavened the whole lump. “Learn young, learn fair,” is an old adage whose efficacy was never better proved than in the practical annihilation of the liquor traffic by the unnoticed, but persistent, work of the public schools for the last thirty years. While we of an earlier generation continued to argue the pros and cons of the liquor traffic, and. the wisdom, or folly, or impossibility, of suppressing the sale and use of intoxicants, a generation arrived which will have none of it; that generation has said so as clearly and emphatically as the American people ever voiced their determiation on any subject since 1776.' (XVIII amendment to U. S. Const.) And because of the ease with which the law prohibiting sales, etc., of liquor may be violated, and the' difficulty of procuring evidence of such violation, the legislature in 1917 (Laws 1917, ch. 215) decreed that the mere possession of intoxicants, or knowingly to permit them to be kept on one’s premises, should be unlawful. Any legislature sincerely determined to suppress the sale of liquor and to suppress the keeping of tippling nuisances, would be strongly persuaded to go the final step of forbidding the mere possession of intoxicants; otherwise its laws forbidding liquor sales and the existence of drinking dens would be bound to be somewhat ineffective. The whole matter is- one of public policy. And the public policy of a state must largely be shaped by legislation. No federal or state constitutional inhibition was violated in the enactment of the “bone-dry” law, all of yesterday’s juristic dissertations and precedents to the contrary notwithstanding. The supreme court of the United States has already said that this sort of legislation violates no fundamental privilege of a citizen of the United States which" a state may not abridge. In Crane v. Campbell, 245 U. S. 304, the present question was raised concerning the Idaho “bone-dry”. law. Mr. Justice McReynolds, speaking for the court, said:
“The question presented for our determination is whether the Idaho statute, in so far as it undertakes to render criminal the mere possession of whiskey for personal use, conflicts with that portion of the Fourteenth Amendment which declares: ‘No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law.’ Its validity under the state Constitution is not open for our consideration; with its wisdom this court is not directly concerned. It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a state has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of 'intoxicating liquors within its borders without violating the guarantees of the Fourteenth Amendment. . . . As the state has the power above indicated to prohibit, it may adopt such measures as are reasonably appropriate or needful to render exercise of that power effective. . . . And, considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors we are unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose.” (p. 307.)
(See, also, Note, L. R. A. 1918A, 942.)
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
On February 25, 1914, the tvife of A. B. Saffell died, holding a life insurance policy for $1,000 in which their four minor children — three sons and one daughter — were named as beneficiaries. Saffell was appointed guardian of the children. On March 26, 1914, he collected the insurance, amounting to $985.18. On September 3, 1915, Saffell died testate. An administrator was appointed, and claims against his estate amounting to some $2,800 were presented. An order was made by'the probate court for the sale of a quarter section of farm land, the title to which stood in the name of Saffell at the time of his death, for the payment of debts. On December 8, 1916, Reese V. Hicks, the surety on the guardian’s bond given by Saffell, brought an action against the administrator, making Saffell’s children defendants, asking an injunction against the sale of the land on the ground that Saffell had purchased it while guardian, and had used the insurance money referred to in part payment of the purchase price. A restraining order or temporary injunction was allowed at the commencement of the action. An answer was filed in behalf of the children by a guardian for the suit, likewise asking an injunction against the sale of the land for the same reason, and also because it was exempt as a homestead. Upon a trial on the merits, the court found that the insurance money had been used in the purchase of the land, which thereby became impressed with a trust in favor of the children, and that the land had been the family homestead at the time of Saffell’s death, and had not been abandoned as such by the children. Judgment was rendered discharging the plaintiff from liability on the guardian’s bond, and enjoining the sale of the land, without prejudice, however, to the rights of creditors whenever it should cease to be occupied as the homestead of the children. The administrator appeals.
1. The appellant contends that in allowing the restraining order and overruling a demurrer to the- petition error was committed for various reasons, one of them being that the plaintiff had no standing to ask the injunction. The children were proper parties to attack the sale; and did so, thus giving an additional basis for the final judgment. In such a case as this, if the permanent injunction was properly granted, any error or irregularity in the making of the preliminary order is not important. (Freeland v. Stillman, 49 Kan. 197, 206, 30 Pac. 235; Kerz v. Galena Water Co., 139 Ill. App. 598; Rothenburg v. Vierath, 87 Md. 634.)
2. Upon the merits of the case the appellant asserts that testimony given by the plaintiff and two of Saffell’s sons, regarding the use of the insurance money in buying the land, was incompetent under the rule regarding communications with persons since deceased, and that the other evidence had no tendency to prove that the money went into the land. The admission of the incompetent evidence is not a ground of reversal if there was competent evidence to support the decision. It was shown that Saffell bought the land on March 13, 1914, for $4,000, assuming a mortgage for $1,700, and interest, and paying the remainder of the price at once. On June 4, 1914, he paid off the mortgage, amounting to $1,746.75, with a check on the Berryton bank, in which he had deposited the insurance money on March 26, this payment reducing his account to $730.80. At his death he had only about $124 in money or on deposit. The guardian never made any accounting to the children in regard to the receipt of the $985.18. The agent who negotiated the sale testified that Saffell told him he was buying the land with money belonging to his wife, and that it was at her request that he was investing it for the benefit of the children. He was asked whether Saffell was, at the time of the purchase of the land, expecting to be appointed guardian for the children in a few days that he might collect some insurance on a policy his wife held, and answered: “I think there was something said about that, that there was some money coming from somewhere.” The plaintiff’s wife testified that Saffell told her he was going to use the insurance money for the farm he was buying — that he saw no reason why he should not invest the money and provide a home for the children. Disregarding entirely the testimony of the plaintiff and the sons of Saffell, we think the evidence sufficient to support the finding that the insurance money was used in paying off the mortgage on the land as a part of the purchase price, thus warranting the declaration of a trust in favor of the children.
3. The will of Saffell gave to his four children all his “household furniture, farm implements, tools, live stock and crops,” and “any money which may be left after paying all just debts and expenses,” and also “the use, improvement and income” of his “dwelling house, land and its appurtenances”— consisting of the farm already referred to. The residue of his estate was directed to be divided among his children, the daughter to receive two-fifths and each of the three sons one-fifth.
The farm was occupied until his death by Saffell and his children. If he had died intestate it would have been exempt from sale in payment of his debts so long as it continued to be occupied by any of the family. (Kohler v. Gray, 102 Kan. 878, 172 Pac. 25.) The fact that the title passed according to the direction of the will, instead of according to the direction of the statute of descents and distributions, does not change the rule. It has been decided that a will is not a conveyance in such sense that a homestead thereby devised is free from the claims of the testator’s creditors regardless of its occupancy. (Postlethwaite v. Edson, 102 Kan. 619, 171 Pac. 769.) That decision is based on the view that by the making of a will the testator does not part with the control of the property, but that at his death the title passes by reason of his death, and essentially by operation of law, whether it goes to the devisee named in the will or tu heirs indicated by the statute concerning intestacy. It accords with this view to hold that when the ownership vests in u, member of the family in virtue of the provisions of a will, the homestead exemption survives to the same extent as though title had passed to the same person by inheritance. The exemption of a homestead with respect to the debts of a husband is not affected by the fact that his widow elects to take under his will. (Cross v. Benson, 68 Kan. 495, 506, 75 Pac. 558.) The circumstance that in this case by the terms of the will the fee to the farm vested in the children in unequal shares does not in our judgment affect the matter. We conclude that the land cannot be sold to pay the father’s debts, so long as any member of his family continues to live upon it.
4. The appellant urges, however, that a different rule should obtain here because of a provision of the will reading: “My will is that all of my just debts and funeral expenses shall, by my executors hereinafter named, be paid out of my estate, as soon after my decease as shall by them be found convenient.” The argument is that the testator thereby indicated that he wished the farm to b • held subject to the payment of his debts. We do not rega d that inference as at all reasonable. A mere general direction for the payment of debts is not construed as a waiver of exemption. To have that effect, the language employed must be “unequivocal and imperative.” (Cross v. Benson, supra.) The words quoted fall far short of that requirement. If the matter were otherwise doubtful, it might well be inferred that the testator had specifically in mind the continued occupancy of the farm as a homestead, from the fact that he gave its use and income to his children without apportionment, while devising his daughter a double share in the fee. The clause by which he disposed of his personalty showed, too, that he assumed that his debts could be met from that class of property, if not from such money as would be on hand at his death.
5. The daughter was thirteen years old at the time of the trial. Shortly after her mother’s death she was taken to the home, in New Jersey, of her uncle, the plaintiff, who kept her until about six months before the trial, since which time she has been with another uncle, in Ohio. The record is entirely silent concerning any plans for the. future that have been made for her, or that 'she has made for herself. The fair inference is that her stay with her uncles was in pursuance of a mere temporary arrangement. It is clear that at one time she was a resident upon the farm in question. There is no evidence having any" reasonable tendency to show that she has ever acquired a permanent domicile elsewhere, and until that is done, her legal residence remains where it was once established. An intention to abandon her homestead right, to her manifest disadvantage, is not lightly to be imputed to her —certainly not without some substantial evidence. (Shirack v. Shirack, 44 Kan. 653, 24 Pac. 1107.) The three sons were living on the farm with their father at the time of his death. The youngest, then about fourteen years old, left after four or five months and went to live with his grandfather in Virginia, where he joined the army. There is likewise no substantial evidence of a purpose on his part to effect a permanent change of residence. The two older brothers, aged 21 and 20 at the time of the trial, remained on the farm for some eight months after their father’s death, when the administrator took possession of it. They left, as one of them expressed it, “because they run us off . . . we had to get out, they told us they wanted the farm, the administrator.” This witness added: “We expected to farm the next summer, we couldn’t farm without any personal property, the personal property being sold, what was we going to do, we had to leave.” One of the older brothers has since married. It is not necessary to consider the effect of that circumstance on his homestead interest. The evidence justified the finding that none of the other three children had lost their residence on the farm. Their mere temporary absence did not constitute an abandonment, nor affect their right to hold the property exempt from their father’s debts. (Koehler v. Gray, 102 Kan. 878, 172 Pac. 25.)
In the brief of the appellees, a theory is advanced that the children are the owners of the farm fully discharged of all claims of creditors.. The judgment, however, which we approve, charges the land with a trust in favor of the children to the extent of the $985.18 of their money, which formed a part of the purchase price, and otherwise leaves it "subject to the claims of creditors whenever it shall cease to be occupied as a homestead by at least one of the children.
The judgment-is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The, defendant appeals from a judgment against him for slander. The petition set out three causes of action; each charged that the defendant had spoken slanderous words of the plaintiff. In the first and second causes of action, the language used by the defendant accused the plaintiff of stealing chickens, and in the third, of stealing other personal property. Each charged the use of language that was actionable per se.
1. Complaint is made of the introduction of evidence on behalf of the plaintiff, tending to show the defendant’s wealth, or his reputation for wealth. The evidence was unsatisfactory, because the witness did not know what property the defendant owned or What he controlled, but the witness finally testified that the defendant was running a farm of 280 acres. Because of its unsatisfactory nature, the evidence was not prejudicial, even if it had been inadmissible; but it was admissible under White v. White, 76 Kan. 82, 90 Pac. 1087, where this court said:
“In actions involving malice, and where exemplary damages may be properly awarded, the financial condition of the defendant may be shown.” (syl. ¶ V.) ■■
This rule obtains in civil actions for slander. (Conrad v. Roberts, 95 Kan. 180, 184, 147 Pac. 795; 25 Cyc. 508; Newell on Slander and Libel, 3d ed., § 1035.)
2. In some of the slanderous statements made by the defendant, he did not refer to the plaintiff by name. Several of the witnesses who heard these statements were permitted to testify that they understood that the defendant was speaking of the plaintiff. The defendant complains of the admission of that evidence. The weight of authority is that it was competent. (17 R. C. L. 406; 25 Cyc. 493; Note, 48 L. R. A., n. s., 364-369.) Eckert v. VanPelt, 69 Kan. 357, 359, 76 Pac. 909, gives support to the rule that the evidence was admissible.
3. Complaint is made of the admission of evidence tending to prove that, at times other than those named in the petition, the defendant stated that the plaintiff had committed the larcenies that have been described: That evidence was properly admitted to establish that the defendant referred to the plaintiff in the conversations testified to by witnesses where the defendant did not specifically name the plaintiff (25 Cyc. 493), and was admissible for the purpose of showing actual or express malice on the part of the defendant toward the plaintiff. (25 Cyc. 497; Newell on Slander and Libel, 3d ed., § 432.) In criminal prosecutions, evidence of other similar acts may be introduced for the purpose of showing intent or motive. (The State v. Harris, 103 Kan. 347, 175 Pac. 153; The State v. Shumaker, 103 Kan. 741, 175 Pac. 978.)
4. Three separate questions were submitted to the jury, and were answered by it as follows:
“1. Did the defendant make other similar statements of and concerning the plaintiff, to those charged in the petition? Answer. Yes.
“2. How much do you allow for actual damages? Answer. $300.00.
“3. How much do you allow for punitive or exemplary damages? Answer. $500.00.”
The defendant argues that the first question should not have been submitted, for the reason that there was no evidence to prove actual damages, and that, therefore, punitive damages could not be awarded. The defendant is evidently trying to draw a distinction between actual damages and general damages, and make actual damages synonymous with special damages. Actual damages include both general and special damages. (1 Words and Phrases, 155, 156; 1 Words and Phrases, 2d series, 91, 92.)
"The common law recognizes two classes of damages in libel cases— general and special. General damages are those which the law pre sumes must naturally, proximately and necessarily result from the publication of the libelous matter. They arise by inference of law and are not required to be proved by evidence.” (Hanson v. Krehbiel, 68 Kan. 670, 672, 75 Pac. 1041.)
The jury found that the plaintiff sustained actual damages in the sum of $300. The language used by the defendant accused the plaintiff of having committed crimes. The language was actionable per se, and the law presumes that damages necessarily resulted from, the defendant’s statements. (Miles v. Harrington, 8 Kan. 425; Roniger v. McIntosh, 91 Kan. 368, 370, 137 Pac. 792; Hatfield v. Printing Co., 103 Kan. 513, 175 Pac. 382.) Such damages are actual damages. (Hanson v. Krehbiel, 68 Kan. 670, 672, 75 Pac. 1041.) The finding of the jury, that actual damages were sustained, was sufficient to support an allowance for punitive damages, if the words were spoken maliciously. (Hess v. Sparks, 44 Kan. 465, 25 Pac. 580.)
5. The defendant argues that the question numbered one was not in proper form to support a finding of malice. Malice was found by the general verdict. The answer to the question does not overthrow that finding, but supports it. In order to sustain the defendant’s argument, the answer should have been contradictory to the general verdict. (Burzio v. Railway Co., 102 Kan. 287, 292, 171 Pac. 351, and cases there cited.)
The form of questions numbered two and three is also criticized, but the criticism is without foundation. The questions merely separated the actual or general damages from the punitive or exemplary damages, and did not in any way conflict with the general verdict.
The judgment is affirmed.
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The opinion o’f the court was delivered by
Mason, 'J.:
Belva Coughlin was injured while crossing a street, by being run into by an automobile driven by Fred Layton. She brought an action against him, and appeals from a judgment upon a verdict in his favor.
The defendant was driving west on the north side of the street. He turned out to avoid a car which was parked at the curb just ahead of him, passing about four feet south of it. ■ The plaintiff started to cross the street from north to south a little west of the standing car. The jury found that the defendant’s car was running at the rate of five miles an hour.
1. The petition charged negligence in running at too high a speed, without looking ahead and without giving a warning of his approach. Complaint is made of the refusal of an instruction asked by the plaintiff, to the effect that, even if the speed of the car was lawful and reasonable, the defendant might be held liable on the ground that the injury was due to his negligence in failing to keep a sufficient lookout. The correctness of the instruction is conceded, but the defendant asserts that the same proposition was included- in the general charge. In one instruction, the purpose of which was to inform the jury that negligence in general consists of the failure to . conform to the standard of reasonably prudent persons under like circumstances, negligence on the part of the defendant was twice referred to as “in driving his automobile.” This perhaps had some tendency to suggest to the jury that the only negligence charged against him was in driving too rapidly. But in other paragraphs it was stated specifically that it was the duty of a driver of an automobile “to keep a lookout to avoid injury to others using a street”; that though it should be found that the defendant was driving at a low rate of speed, “still he was bound to use due and ordinary care to avoid collisions or to avoid injuring others,” failure to do which would render him liable in the absence of contributory negligence; that if the defendant ought to have realized that the plaintiff was getting into a dangerous position in front of his machine, then he was required to exercise increased exertion to avoid collision with her; and that a person using a street, either on foot or driving a car, is required to look ahead, and is presumed to have seen whatever would be perceived through a proper lookout. We régard these instructions as sufficiently covering the ground of that requested. It is argued that the jury, in considering the charge as a whole, would naturally think the instruction that it is the duty of a driver of an automobile to keep a lookout, meant that such obligation arose only when he was driving fast. We think the likelihood of that interpretation having ■been adopted is too remote to afford a basis for setting aside the verdict.
Complaint is made also of the refusal to give an instruction reading: “Independently of any statute it is negligence as a matter of law to drive an automobile at such speed that it cannot be stopped within the distance that objects can be seen ahead of it.” Such an instruction is appropriate where the range of vision is limited by darkness or fog. (Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317.) The plaintiff contends that it was applicable here, because the standing car prevented the defendant from seeing a person west of it, who might have started to cross the street from the north side, until such person had passed the car, or the defendant was nearly abreast of it. We do not regard the rule invoked as pertinent to the situation presented.
The plaintiff asked an instruction that (1) “a traveler on foot is not necessarily negligent because he starts to cross a street without first looking or listening to ascertain whether an automobile is approaching,” and (2) “such a traveler has a right to assume that other persons using the street with him will exercise a proper degree of care.” The court gave an instruction which omitted the second sentence quoted, and added to the first, the words — “Whether he should do so or not depends upon the'circumstances and conditions of the particular act' in question, and is to be determined by the jury in this case from the evidence before them.” In this we .find no error. The instruction as given correctly indicates that the failure to look for approaching vehicles before attempting to cross a street may sometimes be negligent and sometimes not, according to the circumstances, and that in the present case whether the exercise of due care called for such a precaution was a question of fact for the jury. It was not, necessary for the court to say that the plaintiff had a right to assume that any one driving an automobile on the street would use proper care, and to have done so might possibly have tended to induce the belief that the failure of the plaintiff to look out for an ap* proaching vehicle could' not in any view of the facts be regarded as negligence. This court has used the language which was omitted from the requested instruction (Williams v. Benson, 87 Kan. 421, 424, 124 Pac. 531), just as it has said that “motorists may ordinarily assume that pedestrians or others using the street will exercise ordinary care” (Ratcliffe v. Speith, 95 Kan. 823, 825, 149 Pac. 740), but in each case the context shows that nothing was. intended at variance with the instruction as given by the trial court.
The court, at the request of the plaintiff, told the jury that “it is not negligence of itself for a pedestrian to cross a street in front of an approaching automobile which he plainly sees,” adding however — “but as to whether it is negligent or not is a question for the jury to. determine from the facts and circumstances surrounding the case in question.” The instruction as originally drawn was correct, provided the phrase “of itself” is regarded as the equivalent of “as a matter of law,” but the addition was warranted as a precaution against its being misunderstood.
The court was asked to giye the following instruction, taken from the syllabus in McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468:
“It is the duty of one in charge of an automobile driving upon a public street or highway to look ahead and see all persons and horses in his line of vision, and in case of accident he will be conclusively presumed to have seen what he should and could have seen in the proper performance of such duty.”
In lieu thereof, the following was given:
“You are instructed that it is the duty of any one using a public street, either as a foot passenger or in driving aii automobile thereon, to look ahead and see whatever there may be in the line of his or her vision which should affect the use of said street, and such person is in law presumed to have seen what they could or should have seen had they kept a proper lookout.”
The contention is made that to impose upon the pedestrian the same obligation to look ahead which is enjoined upon the driver of a car is to depart from the doctrine that a foot traveler is not negligent as a matter of law because he starts across a street without looking or listening to discover the approach of an automobile. One about to cross a highway is not always required to look to the right and left, as must be done before crossing a railroad track, but he would not be exercising due diligence if he failed to look ahead and see whatever was in his line of vision that might affect his safety.
Complaint is made of instructions given, upon the grounds already stated, and also because, assuming that they correctly stated the law, so much stress was laid upbn the theories of unavoidable accident.and contributory negligence that the jury were thereby encouraged to find for the defendant. We do not discover such repetition in the instructions covering these matters as in our judgment to warrant the belief that the jury were misled.
2. A reversal is asked because of inconsistency in the special findings. The jury found, in effect, that the collision took place about 18 feet west of the east end of the parked car. To the question, “Where was defendant’s car at the time he could have first seen plaintiff crossing the street?” the answer-was returned : “At east end of parked car.” If this means that the defendant could have seen the plaintiff when the front of his car (rather than the middle or rear of his car, or the defendant himself) was opposite the east end of the parked car, then he could have seen her while she was eighteen feet ahead of his car. He testified that he did not in fact see her until his car was within two or three feet of her. As his car was going only five miles an hour, the plaintiff justly contends that he must have been negligent in failing to keep a lookout, or he would have seen her sooner. That being true, the verdict could only be upheld on the theory that she was guilty of contributory negligence. But the jury also returned a negative answer to the question: “Was the defendant driving his car in a negligent manner at the time of the accident?” If this means that the defendant was guilty of no negligence in any respect, it is in conflict with the findings that show his failure to keep a proper lookout. But considerable liberality of interpretation must be indulged, in order, if reasonably possible, to harmonize the findings with each other and uphold the judgment. It seems quite probable that what the jury meant by saying that the defendant was not driving his car in a negligent manner was merely that there was nothing wrong with its mechanical operation — as to speed, direction, or control — his failure to look ahead and see the plaintiff not being regarded as a part of the actual driving of the car. Such an interpretation may be somewhat liberal, but we do not think it one we have a right to ignore. We therefore hold that the findings may, and. consequently should, be reconciled upon the theory that they amount to this: that the defendant handled the car. properly, but was negligent in failing to see the plaintiff as soon as he should have done, and that her recovery is prevented by her own failure to exercise due care for her safety.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendants for damages sustained through defendants’ wrongful registration of a mortgage upon his land and their failure and refusal to release the same of record upon his demand.
The trouble arose in this wise: Plaintiff applied to defendants’ agent for a loan upon his farm. The agent prepared a note and mortgage and sent it to plaintiff for execution. Plaintiff signed and returned these without-notarial acknowledgment. The instruments were again sent to plaintiff for completion. They were corrected and forwarded to defendants, but in such unsatisfactory shape that defendants did not accept them. Instead, they prepared new instruments for plaintiff to execute, but they retained the first instruments. Meantime, plaintiff applied elsewhere for a loan and procured one from the Warren Mortgage Company. Then the defend ants, without authority, consideration, or lawful excuse, filed and recorded the mortgage instrument which plaintiff had first presented to them, and which they had retained in their possession, although they had not accepted it nor loaned him any money upon it.
Sometime afterwards plaintiff entered into an oral contract with a party in Oklahoma to exchange his farm for a building and hardware stock. The bargain was profitable to plaintiff. But when the Oklahoma man looked into the title to plaintiff’s farm, he discovered defendants’ mortgage, and this fact prevented the consummation of the trade. This trade had been negotiated for plaintiff by Fuller & Fry, a firm of real-estate dealers, and upon the failure of the deal they sued plaintiff for their commission. Plaintiff employed attorneys to defend him in that suit. As an incident to that proceeding, Fuller & Fry, garnished $1,000 of the money which plaintiff had borrowed from the Warren Mortgage Company. That money was “tied up” about six months. Plaintiff’s demands that defendants cancel and discharge their pretended mortgage on plaintiff’s farm were ignored.
The jury allowed plaintiff $1,000 as damages for loss of profits on the Oklahoma deal; $100 for attorneys’ fees expended, by him in the case brought against him by Fuller & Fry; and $80 as interest on his money sequestered by their garnishment. The trial court rendered judgment accordingly.
Defendants assign certain errors, which will be considered in their order. Their principal contention is, that since plaintiff’s contract with the Oklahoma man involved conveyance of real estate and was not in writing, it was unenforceable under the statute of frauds, and therefore furnished no basis for this action for damages. That matter would be important if one of the parties to that contract had failed or refused to perform; but that weakness of the contract was not subject to collateral attack by defendants or by any third party. (Couch v. Meeker, 2 Conn. 302; Michels v. West, 109 Ill. App. 418; Grisham v. Lutric & Chandler, 76 Miss. 444; 20 Cyc. 279, 306, 307.)
The contract was valid for all purposes except as a basis for an action to enforce it (Weld v. Weld, 71 Kan. 622, 624, 81 Pac. 183), and the evidence and finding of the jury established the fact that the contract failed, not through the invocation of the statute of frauds by one of the parties to the contract, but solely by reason of defendants’ wrongful registration of the unaccepted mortgage and the consequent cloud on plaintiff’s title.
A third party cannot make the statute of frauds available as an excuse for his wrongful condúct which interferes with and prevents the consummation of a transaction between other persons. The statute cannot be raised by those who were neither parties nor privies to the agreement. When the vendor admits the truth of the oral agreement to sell his land and is willing to perform it, and where the purchaser is also willing, the purpose which requires such agreement to be in writing is served, and the want of the writing is no concern of others. Nor can third parties escape the consequences of their wrongful inter-meddling which prevents the consummation of the transaction. (Mewburn’s Heirs v. Bass, 82 Ala. 622, 628; Ryan v. Tomlinson, 39 Cal. 639; Daum v. Conley, 27 Colo. 56; King v. Bushnell et al., 121 Ill. 656; Burrow v. The Terre Haute and Logansport Railroad Company, 107 Ind. 432; Crawford v. John T. Woods, etc., Crawford v. Hardin, 69 Ky. 200; The St. L., K. & N. W. R’y Co. v. Clark, 121 Mo. 169; Davis v. Inscoe, 84 N. C. 396; Christy et al. v. Brien et al., 14 Pa. St. 248; Thomas J. Sneed et al. v. Walter M. Bradley et al., 36 Tenn. 301; Bell v. Beasley, 18 Tex. Civ. App. 639; Murray Hill Mng. & Mill Co. v. Havenor et al., 24 Utah 73. See, also, Jackson et al. v. Stanfield et al., 137 Ind. 592; Rice et al. v. Manley, 66 N. Y. [21 Sickels] 82; Benton v. Pratt, 2 Wend. [N. Y.] 385.)
Appellants’ next complaint relates to the admission of testimony touching the value of the land at the time of plaintiff’s deal with the Oklahoma man. This was competent and necessary as one of the elements of proof to show plaintiff’s loss of an assured profit on his bargain for the Oklahoma property. (Railway Co. v. Thomas, 70 Kan. 409, syl. ¶ 3, 78 Pac. 861.) Appellants say the proper measure of plaintiff’s damage should have been based upon the cost of the farm. That is a fallacy; the farm may have cost him nothing; it might have cost him three times or ten times its value.
Another error is urged in the trial court’s rejection of evi dence to show a conversation between appellants and the attorney for plaintiff touching the release of the mortgage wrongfully recorded. It. cannot be discerned how that evidence would be material; and as it has not been brought on the record no error can be predicated thereon. (Scott v. King, 96 Kan. 561, 567, 152 Pac. 653.)
Appellants’ final contention is that plaintiff might have paid the commission demanded by defendants’ agent for his services in negotiating the loan which gave rise to the execution of the mortgage which was recorded by defendants although not accepted by them, and thus have secured a release of that mortgage, and thereby he would have cleared his title and could have consummated his trade for the Oklahoma property. This argument leads us to infer that the wrongful recording of the mortgage was designed to extort a loan broker’s commission from plaintiff. The record does not show how much money it' would have required to pay such commission. But the court is not impressed with the argument, that plaintiff should have prevented the wrong done him by submitting to some lesser wrong. The case does not fall within the rule that one must use reasonable diligence to lessen or minimize the damages which he has sustained at the hands of a wrongdoer.
There is nothing further of substantial merit in this case which requires discussion. The record discloses no error; and the judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendants upon a written contract for the price of a “Spalding Deep Tilling Machine” — some new contrivance for cultivating corn. The defense was fraudulent representations as to contents of the contract and want of opportunity to read it, and consequent reliance upon plaintiff’s false representations as to its contents.
That such a defense may be maintained, if supported by clear, decided, and satisfactory evidence (Fritts v. Reidel, 101 Kan. 68, 71, 165 Pac. 671), is settled law in this state. (Insurance Co. v. Johnson, 73 Kan. 567, 85 Pac. 597; Tanton v. Martin, 80 Kan. 22, and citations at p. 24, 101 Pac. 461; see, also, Greisa v. Thomas, 99 Kan. 335, 161 Pac. 670.)
The evidence for defendants met these requirements; the record discloses no error; and the judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This case involves the right of an employee to the allowance of an award under the existing provisions of the Workmens Compensation Act.
The facts necessary for determination of the present appeal, all of which are supported by the record, are well stated in the memorandum decision of the district court which reads in part:
"This is an appeal in a Workmen’s Compensation Case wherein the examiner for the Workmen’s Compensation Director found that claimant sustained personal injury and accidental injury on September 17, 1958, and October 10, 1958. The respondent and carrier paid claimant six weeks of temporary total disability and his medical expenses, the last payment being December 9, 1958. In addition the examiner found that compensation should be paid to claimant for a thirty percent loss of use of the left leg (200 weeks X 30 percent = 60 weeks less 6 weeks temporary total, or 54 remaining weeks) and that fifty-four weeks are presently due and owing and should be paid in one lump sum, or $2,052.00 without discount.
"The matter was heard, by the examiner at Manhattan, Kansas on September 26, 1962, and his award was filed April 9, 1963. The respondent and insurance carrier appealed to the District Court on April 15, 1963. Both sides filed an application for review by the director, the claimant on April .17, 1963, and the respondent and carrier on April 18, 1963. The director, on April 19, 1963, notified the parties that since an appeal has been filed in the District Court, he was divested of further jurisdiction in the case until the appeal was fully litigated and denied the applications for review.”
The district court proceeded to review the award of the examiner and set it aside for the reason that the claimant had not commenced his action for compensation before the director within a reasonable time, the time being over three years after the last compensation was paid. In reaching its conclusion the court cited Cruse v. Chicago, R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471; Clark v. Tucker Electric Co., 185 Kan. 580, 345 P. 2d 620.
The claimant has appealed to this court from the judgment of the district court setting aside the examiner’s award.
At the outset we are required to consider a jurisdictional question which has not been raised by the parties. In doing so we pause to note, without lengthy discussion, a few general principles pertaining to jurisdiction.
If the district court has no jurisdiction over the subject matter, this court has no jurisdiction on appeal. A court has an original and continuing duty to determine whether it has jurisdiction of the subject matter of an action. It is the duty of this court on its own motion to raise the question of jurisdiction. For just a few of our many decisions, where the foregoing principles are considered, discussed and applied, see Martin v. Forestry, Fish and Game Commission, 185 Kan. 796, 798, 347 P. 2d 276; Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233; and Willey v. Gas Service Co., 177 Kan. 615, 281 P. 2d 1092. See, also, Hatcher’s Kansas Digest [Rev. Ed.], Courts, § 12, and West’s Kansas Digest, Appeal and Error, § 23.
For reasons to be presently stated we are forced to conclude that since the appeal was taken from the award recommended by the examiner, and not from the final award of the Workmen’s Compensation Director, the appeal to the district court was immature.
The right to appeal to the district court from an adverse ruling in a workmen’s compensation proceeding is governed by G. S. 1961 Supp., 44-556 which, in part, provides:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the director to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the director. . . . Such appeal shall be taken and perfected by the filing of a written notice of appeal with the director within twenty (20) days after the decision, finding, award or ruling appealed from shall have been made and filed by the director, . .
The statutory language just quoted makes it clearly appear that the appeal to the district court is from a decision, finding, award or ruling made and filed by the director, not from the findings or award of the examiner.
The findings and award of the examiner are nothing more than recommendations to the director. They have no effect in and of themselves and are subject to approval, amendment or rejection by the director.
The powers and duties of an examiner and the review by the director are covered by G. S. 1961 Supp., 44-551 which, so far as here pertinent, reads:
“. . . under the direction of the director any such examiner may conduct an investigation, inquiry, or hearing in the same manner and with like effect as if done by the director and all acts, findings, awards, decisions, rulings or modifications of findings or awards made by such examiner, shall be subject to review and approval by the director upon written request of any interested party within ten (10) days and if no such request is made, then the director shall approve such actions, findings, awards, decisions, rulings or modifications of findings or awards of the examiner and the filing of such a request for review shall not be a prerequisite to an appeal as provided for in section 44-556 of the General Statutes Supplement of 1959 . . .”
It should be noted that the findings and award of the examiner are subject to review by the director on the written request of any interested party within ten days. If no such request is made, the director shall approve the findings and award of the examiner as a matter of course. After the findings and award are approved by the director an appeal may be taken, even though there has been no request for review, but if a request for review is made within the ten day period there is no final award from which an appeal can be taken until the director has completed the review proceedings. A premature appeal, taken before the director has approved an award, does not divest the director of jurisdiction to review the findings and award of the examiner.
In the case now before this court the examiner s award was filed on April 9, 1963. The respondent and the insurance carrier appealed to the district court on April 15, 1963. The claimant filed an application for review of the examiner’s findings and award on April 17, 1963. The respondent and insurance carrier filed an application for review on April 18, 1963. Both applications for review were filed within ten days from the date of the filing of the examiner’s award as provided by G. S. 1961 Supp., 44-551. Under these circumstances the abortive and premature appeal from the findings and recommended award of the examiner did not divest the director of jurisdiction to consider the applications for review. Neither did it give the district court jurisdiction to review the award made by the examiner.
In the recent case of Harper v. Coffey Grain Co., 192 Kan. 462, 388 P. 2d 607, we held:
“An appeal from the examiner’s award in a workmen’s compensation case, where review proceedings are pending before the director pursuant to G. S. 1961 Supp., 44-551, is ineffectual to confer jurisdiction upon the district court, because it is not an appeal from the final award of the director as contemplated by the provisions of G. S. 1961 Supp., 44-556.
"Provisions of G. S. 1961 Supp., 44-551 set forth in the opinion are construed to mean that an award of the examiner in a workmen’s compensation case does not become the final award of the director until the expiration of ten days after it is filed, or until a request for review, filed within the ten day period by an interested party, is determined by the director.
“The provisions of G. S. 1961 Supp., 44-551 reading ‘and the fifing of such a request for review shall not be prerequisite to an appeal as provided for in section 44-556 of the General Statutes Supplement of 1959’ is construed to mean that an appeal may be taken from the final award of the director, if no request for review is filed by an interested party within the ten-day period provided in such statute; but if an interested party file a request for review pursuant thereto within the ten-day period, no appeal can be taken to the district court until such review is ultimately determined by the director, or until such review is otherwise terminated by the party making the request.” (Syl. ¶| 1, 3 & 4.)
It would serve no useful purpose to extend this opinion by repeating what is said in the opinion in Harper v. Coffey Grain Co., supra. It suffices to say that what is there stated and held not only sustains but compels our conclusion the judgment in this case must be reversed with instructions to the district court to dismiss the appeal and remand the case to the Workmen’s Compensation Director for review as provided by law.
It is so ordered.
Fontron, J., not participating.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals.from a judgment in favor of the defendant in an action brought to recover the price agreed to be paid by the defendant for the exclusive right to use, in Wakeeney, an advertising scheme furnished by the plaintiff and described by it as the “Jocko ‘Ad’ ” service. The answer denied the allegations of the petition and alleged that the offer to' purchase the scheme had been withdrawn before it was accepted by the plaintiff. D. B. Kraus is the defendant. He did business under the trade name of “The Wa- ' Keeney Hardware Co.”
1. The principal proposition argued revolves around the question:- Was there a contract? The material parts of what the plaintiff contends was the contract, which was in writing, were as follows:
“To Outcault Advertising Co.
508 S. Dearborn St., Chicago, Ill. Order No. 70.
Date 4/21 1916
“Ship us, at our expense, as per samples shown, your Jocko “Ad” Service to cover a period of one year beginning May 8th, 1916. This service to consist of: . . . We (or I) agree to pay you net cash monthly, at the rate of $2.10 per week, for one year, we (or I) to have exclusive right to use the above Jocko “Ad” service in our city only, and to hold type and cuts subject to your order when this contract expires. . . . This contract cannot be cancelled. Ship all at one time if possible.” |
The writing was signed by the defendant as “Wakeeney Hdw. Co.” and by “E. H. Block, Salesman.”
The plaintiff argues that it constituted a complete contract when it was signed by the defendant, and that no further acceptance on the part of the plaintiff was required. The writing did not contain any promise of any kind on the part of the plaintiff, who did not treat the contract as complete until after it had been received by the plaintiff at its Chicago office, and until a letter, dated April 25, 1916, had been written to the defendant, in which the plaintiff said:
“We acknowledge with thanks receipt of your contract for our Jocko advertising service, covering a period of one year, at the rate of $2.10 per week, amounting to $109.20 which we have accepted and of which prompt shipment will be made.”
The writing dated April 21, 19Í6, and the letter dated April 25, 1916, constituted the contract, if there was one. The evidence of the defendant tended to show that on April 21, 1916, the day the order was signed by him, he wrote the plaintiff as follows:
“You are herewith notified not to ship the order that we gave to your salesman for your advertising scheme, if you do you will do so at your own risk.”
The defendant’s evidence also tended to show that the letter was deposited in the United States mail on the same day. It is contended that there was no evidence to show that the letter was received by the plaintiff. The letter should have reached Chica'go on April 23, two days before the plaintiff accepted the defendant’s offer. The presumption of law is that the plaintiff received the letter in due course of mail. (Vancil v. Hagler, 27 Kan. 407; Note, 49 L. R. A., n. s., 458; 16 Cyc. 1065.)
There was sufficient evidence to warrant the jury in concluding that the defendant withdrew his offer before the plaintiff accepted it. If that was done, there was no contract. (Thrasher Co. v. Lesueur, 75 Kan. 150, 88 Pac. 541.)
2. Another proposition argued by the plaintiff is that the defendant could not rescind the contract without returning, or offering to return, what he had received. The difficulty with this'argument is that, if the defendant’s letter was received by the plaintiff before it accepted the defendant’s offer, there was no contract. The defendant had a perfect right to withdraw his offer before it was accepted by the plaintiff, and, the plaintiff would then have no right of recovery against the defendant. The letter was not a rescission of a contract that had been entered into. It was the withdrawal of an offer that had not been accepted.
3. The plaintiff complains of the third instruction given by the court. That instruction, was as follows:
“If you find that the defendant wrote to cancel this order, and that such cancellation reached the plaintiff after it had accepted defendant’s original order, then you should find for the plaintiff for the difference between $109.20 set in the order, and the reasonable value of the service which the plaintiff agreed to perform so far as the same had been performed when- it received the letter of cancellation if it did receive such letter, or nominal damages, if there be no proof of reasonable value.”
The instruction was inapplicable to the pleadings and evidence. The plaintiff, if it had fully performed its part of the contract, had the right to stand thereon and to seek to recover thereunder. The defendant could not then compel the plaintiff to resort to an action for damages for violation of the contract. If the jury found the facts as set out in that instruction, a verdict should have been returned for the plaintiff. The verdict was for the defendant. That verdict was warranted under either one of two situations: one, that there was no contract, because the offer to purchase had been withdrawn before it was accepted; the other, that the plaintiff did not comply with its contract. The latter finding would have been within the issues under the general denial of the allegations of the petition. Both questions were submitted by the instructions. From the verdict, the court concludes that the jury must have followed one or the other of these theories. In either situation the instruction complained of became immaterial and was not prejudicial.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action is one to require the mayor and commissioners of the city of Anthony to proceed according to a petition to pave certain streets of the city. The petition, sufficient in other respects and duly presented and considered, was signed by a majority of the resident property owners fronting on the streets to be improved. Reluctance of the mayor and commissioners to proceed resulted from a doubt as to whether or not the signers should also represent a majority of the property affected. The statute reads as follows:
“When the mayor and commissioners of cities of the second class . . . shall deem it necessary to pave, ... or otherwise improve any street, . . . said council shall by resolution declare such work or improvement to be necessary to be done, . . . and if the resident owners of more than one-half of the property liable to taxation therefor, shall not, within twenty days . . . file with the clerk of said city their protest against such improvements. . . . Then such council shall have power to cause such work to be done or such improvements to be made, and to contract therefor, and to levy taxes as herein provided: Provided, That whenever a majority of the resident property owners fronting on a street in two or more adjacent blocks shall petition the council to grade, pave, ... or otherwise improve the same, the council shall cause such work to be done, or such improvements to be made, and shall contract therefor, and shall levy taxes for all such improvements, as herein provided, upon the abutting property.” (Gen. Stat. 1915, § 1764.)
Two methods are provided for instituting improvement proceedings : one by resolution of the mayor and commissioners, and the other by petition of property owners. If the proceeding be instituted by resolution of the mayor and commissioners, property owners have the right to protest. If the protest be signed by the resident owners of more than one-half the property to be taxed, the resolution fails. Formerly it was sufficient if the protest be signed by a majority of the resident owners in the taxing district. As the court said in the case of Clarke v. Lawrence, 75 Kan. 26, 88 Pac. 735 (decided under a similar statute), in considering the protest, noses were counted and not feet. The law was changed to its present form in 1913. (See Osborne County v. City of Osborne, ante, p. 671, 180 Pac. 233.) The quantity of property involved is taken into account, however, only in connection with a protest against a resolution to improve. If the proceeding be instituted by petition of property owners, a majority of the resident owners fronting on the street is all that is required, regardless of the proportion of the taxable area which they own.
The peremptory writ of mandamus is allowed.
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The opinion of the court was delivered by
Mason, J.:
B. F. Hall brought an action under the forcible entry and detainer statute (Gen. Stat. 1915, §§ 7863-7876) against J. D. Briggs. An appeal was taken to the district court, where judgment was rendered for the defendant. The plaintiff appeals.
The plaintiff claimed under a lease executed to him by the owner of the land on November 28, 1917, expiring March 1, 1919. The defendant claimed that correspondence between himself and the owner before that time had resulted in giving him the rights of a tenant until January 1, 1919. The defendant has filed in this court an affidavit stating that on the date last named he had quit and surrendered possession of the tract in dispute. He moves that the present appeal be dismissed on the authority of Geinger v. Krein, 103 Kan. 176, 173 Pac. 298, and cases there cited, for the reason that there is no longer any actual controversy between the parties respecting possession of the land, and that no practical result could be accomplished by a reversal of the judgment. The case falls within the principle of the decision referred to, and the facts are quite similar to those of Blocker v. Howell, 45 Okla. 610, which is there cited. Not only has the period for which the defendant claimed the right of possession already expired, but if a hearing on the merits were to be had, a reversal ordered, and a petition for a rehearing filed and overruled, the plaintiff’s own lease would expire before in the ordinary course of procedure a mandate to carry the decision into effect would be issued.
The appeal is dismissed.
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The opinion of the court was delivered by
Dawson, J.:
This action for damages records another railway-crossing accident.
The plaintiff was traveling eastward on a public highway. He drove a Ford automobile, and his wife rode by his side. Defendant’s interurban railway crossed this highway diagonally southeast and northwest. As plaintiff and his wife were crossing this railway track, his automobile was struck by defendant’s northbound interurban car, and his wife was killed.
Because of plaintiff’s contributory negligence he was non-suited as to his own claim for damages for the death of his wife; but the trial court permitted a recovery of $1,000 in behalf of his minor children for their loss in the death of their mother, on the theory that she herself had been free from negligence.
No motion for a new trial was filed, appellant preferring that its appeal should be limited to a review of such errors of law as may inhere in the record and judgment.
Certain special questions were answered by the jury:
“1. Did not the deceased, Roxy Ann Schaefer, being seated on the front seat of the automobile and on the side from which the interurban car approached the crossing and not being engaged with the operation of the automobile, have a better opportunity of seeing the approaching interurban car than the plaintiff? Answer: The same opportunity.
- “2. Did the deceased, Roxy Ann Schaefer, look for the approaching interurban car after passing the point 25 feet west of the interurban track Answer: Yes.
“3. Did the deceased, Roxy Ann Schaefer, warn the plaintiff of the approach of the interurban car before the automobile went upon the interurban tracks? Answer: No. . . .
“4. State the distance the interurban car approaching from the southeast could have been seen by a person looking for the same seated in the front seat of a Ford automobile in the public highway — (a) 25 feet west of the center of the interurban track? Answer: Can’t say.
“(6) 30 feet west of the center of the interurban track? Answer: Can’t say.
“(c) 82 feet west of the center of the interurban track? Answer: 590 feet to 1,250 feet.
“(d) 132 feet west of the center of the interurban track? ' Answer: % to mile.
“5. Could the interurban car approaching from the southeast be seen by a person seated in the front seat of a Ford automobile upon the public highway—
“(a) 11 feet west of the center of the interurban track? Answer: In our judgment it could.'
“(b) 15 feet west of the center of the interurban track? Answer: Doubtful.
“(c) 20 feet west of the center of the interurban track? Answer: No.
“6. In what distance could a Ford automobile containing two people on the front seat approaching the crossing in question at a speed of not more than six miles per hour on the public highway from the west be stopped after reaching a point twenty-five feet west of the center of the interurban track? Answer: 4 feet.
“7. Could a person seated in the front seat of a Ford automobile in the public highway 120 to 125 feet west of the center of the interurban track see the interurban car approaching from the southeast? Answer: Can’t say. ...
“8. If you find the defendant guilty of any act or acts of'negligence which approximately caused the accident in question state what such act or acts of negligence were. Answer: Allowing trees and shrubbery to grow upon right of way and apprQaching a dangerous public crossing at a high rate of speed.
“9. What was the purpose of the plaintiff and the deceased in traveling in the automobile on the day of the accident? Answer: Going home.
“10. Was it the habit or custom of the deceased, Roxy Ann Schaefer, in driving with her husband in the Ford automobile, to keep a lookout for approaching cars at railroad crossings? Answer: Yes.
“11. Who in the Ford automobile first saw the interurban car approaching the crossing prior to the accident, the plaintiff or his wife? Answer: Wife. ...
“13. Was the deceased, Roxy Ann Schaefer, familiar with the crossing in question and the approach to the same? Answer: Yes. . .
“15. If you answer question 2 in the affirmative, state how many feet west of the center of the interurban track deceased, Roxy Ann Schaefer, looked for the car approaching? Answer: No evidence.”
1. Defendant contends that the acts of negligence found by the jury were not the direct and proximate cause of the accident. The negligence found by the jury was “allowing trees and shrubbery to grow upon right of way and. approaching a dangerous public crossing at a high rate of speed.” Of course, the operation of a railway train or interurban car at a high rate of speed in the open country is ordinarily not negligence at all. The track and equipment and the exclusive right of way are all constructed for the purpose of transporting passengers and property with high speed and safety, and ordinarily the railway company is not required to slacken speed at every country crossroads (Railway Co. v. Judah, 65 Kan. 474, 70 Pac. 346; Bunton v. Railway Co., 100 Kan. 165, 169, 163 Pac. 801); but there are recognized qualifications of that rule. For example, if a railway engineer or motorman should see a person in difficulty at a country road crossing with a balky or frightened horse, or with a stalled automobile, in time to stop his train to avoid injury to such person, such engineer or motorman would be liable civilly and criminally if he willfully or negligently failed to do so, and ordinarily his employer would be liable in damages therefor.
The trial court gave this instruction:
“21. If the defendant discharged its duty of keeping its right-of-way adjacent to a public road that crosses its right of way free from obstruction such as trees and shrubs and discharges all the other duties imposed upon it, then as far as a traveler on a public road about to cross its track is concerned, it can run its cars at as high rate of speed as it desired, and the rate of speed, no matter how high it may be, is not an act of negligence so far as such traveler is concerned and cannot be the basis of an action'for negligence by such traveler; but if the defendant negligently permits trees and shrubbery to stand upon its right of way adjacent to a public road that crosses its track, so that the view of a traveler as he approaches the track is obstructed thereby, then it is the duty of the defendant to use due care in the operation of its cars having in mind such obstruction, and to run them at such a rate of speed in approaching such highway crossing as to avoid doing unnecessary damage to those lawfully and properly using the same or about to use the same.”
While high speed alone is not negligence, it may be and should.be considered in connection with other circumstances, such as the physical condition of the crossing and the topography of the immediate vicinity, in determining whether the railway company was exercising due care in operating its interurban car, and due care or the want of it in this case depended to some extent upon the speed at which the defendants approached this dangerous crossing.
In C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993, the pertinent rule was stated:
“Where the railway company permits needless obstructions to the view on its depot grounds, it is its duty to operate its trains with reference to such obstructions, and in such manner that travelers crossing the track on the highway, from which the view is so obstructed, may, by the exercise of ordinary care, avoid injury from such trains.” (syl. ¶ 2.)
(See, also, Railroad Co. v. Willey, 57 Kan. 764, 48 Pac. 25; Corley v. Railway Co., 90 Kan. 70, 71, 72, and syl. ¶ 1, 133 Pac. 555; Artz v. The C. R. I. & P. R. R. Co., 44 Iowa 284; The Terre Haute and Indianapolis R. R. Co. v. Clark, Administrator, 73 Ind. 168; and Note in 22 L. R. A., n. s., 232.)
But persons in complete and independent control of their own movements, who are about to cross a railway track, like pedestrians and drivers of horse vehicles and automobiles, will hot be permitted to recover against a negligent railway company unless they themselves are free from negligence. (A. T. & S. F. Rld. Co. v. Priest, 50 Kan. 16, 23, 31 Pac. 674; Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531; Wehe v. Railway Co., 97 Kan. 794, 56 Pac. 742; Williams v. Electric Railroad Co., 102 Kan. 268, 170 Pac. 397.)
There is a somewhat different- rule which applies to persons riding in a buggy or automobile who have no control of the vehicle. While such persons are charged with the duty of looking out for their own safety as far as practicable (Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624; Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261; Bressler v. Railway Co., 74 Kan. 256, 86 Pac. 472; Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; and Note in 54 L. R. A., n. s., 1915 B, 955 et seq.), yet they are not necessarily negligent merely because their driver is negligent. (Williams v. Withington, 88 Kan. 809, 129 Pac. 1148; Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558; Denton v. Railway Co., 97 Kan. 498, 155 Pac. 812; Corley v. Railway Co., 90 Kan. 70, 133 Pac. 555; Burzio v. Railway Co., 102 Kan. 287, 171 Pac. 351.)
Here one of the elements of negligence was that of allowing trees and shrubbery to grow on the right of way near the crossing. The trees and shrubbery served no useful purpose of the railway company, and therefore their -existence required a higher degree of care in the operation of a train or trolley car than would be imposed if the obstructions to the view were necessary .to the business of the company (C. R. I. & P. Rly. Co. v. Williams, 56 Kan. 333, 43 Pac. 246). It is also true that a railway company is not ordinarily chargeable with negligence where the obscurations of the view are outside its right of way and beyond its control. (Railroad Co. v. Kistler, 66 Ohio St. 326.) The court holds that the evidence was sufficient to justify the jury’s findings that the obstructions to the view which rendered the crossing dangerous and the high speed at which the defendant’s interurban car approached the crossing together constituted negligence and were the cause of the accident.
Fo'ur photographic exhibits of the surroundings, showing the trees, the crossing, and the defendant’s railway track for varying distances up to half a mile or further, which were admitted in evidence and their authenticity scarcely disputed, are incorporated in defendant’s abstract. These photographs tend strongly to prove that if the deceased had been looking out for her own safety she could not have failed to see the approaching trolley car; and they tend strongly to prove that the evidence for plaintiff was not true. But there is no rule which permits appellate courts to disturb a .jury’s findings because highly convincing photographic evidence may seem to overbalance the parol or other evidence to the contrary. Photographs are simply evidence and can receive no peculiar consideration on appeal; and this is particularly true where, as in this case, the defendant chose not to ask for a new trial on the ground of the verdict being contrary to the evidence. The court cannot avail itself of this photographic evidence to disturb the jury’s findings as to the proximate cause of the accident. (Corley v. Railway Co., 95 Kan. 124, 147 Pac. 842. See, also, Pittman v. Hayes, 98 Kan. 273, 276, 277, 157 Pac. 1193; Kirsch v. Telegraph Co., 100 Kan. 250, 254, 255, 164 Pac. 267.)
. 2. Was the deceased guilty of contributory negligence? Ordinarily that, too, is a jury question. The court cannot say as a matter of law that because the deceased could have seen the trolley car while she was 132 feet from the crossing, and while she was 82 feet from the crossing, and failed to warn the driver, that she was guilty of contributory negligence. Nor does the fact that she could have seen the trolley car at 11 feet from the track and that the Ford car could have been stopped in 4 feet make out a case of contributory negligence against the woman. It would take some slight interval of time, after getting within 11 feet of the track, to see the car, to recognize the danger, to determine what to do,' to warn the driver, for the driver to realize the urgency of immediate action, and for him to stop the car. A jury could fairly conclude that there was insufficient time for such quick sequence of perception, thought, speech, and action.
Since the burden was on the defendant to prove the contributory negligence of the deceased, and to prove that the deceased could have seen the car within a reasonable distance of the crossing, in time to warn the driver of the approaching danger, the jury’s findings, “Can’t say” and “Doubtful,” in response to questions touching her range of vision at 15 feet, 25 feet, and 30 feet, must be construed as a failure on the part of defendant to prove that she could see the car at those distances. The court cannot say that the legal effect of the jury’s special findings makes a case of contributory negligence against the deceased, and this conclusion requires an affirmance of the judgment.
Judgment affirmed.
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The opinion of the court was delivered by
West, J.:
The defendants issued to the plaintiff two insurance policies on a frame feed barn. They each contained a clause that the insured as often as required should exhibit to any person designated by the company all that remained of any property therein described, and submit to an examination under oath by any person named by the company and subscribe the same. They also provided that they should be void if the insured then had, or there should be kept or allowed upon the premises gasoline of petroleum or any of its products of greater inflammability than kerosene oil. Each policy provided that it should be payable in sixty days after receiving proof of loss. The barn was burned June 2, 1917. On July 23 proofs of loss were served and on September 27 the action was brought. November 5 the defendants moved to require the petition to be made more definite and certain by setting out the proof of loss. This was overruled.
January 24 answers consisting of general denials were filed, and in February, following, amended answers were filed consisting of a general denial and the allegation that on the 4th of that month notice had been served on the plaintiff to appear for examination, which he refused to do, thereby avoiding the policies. On the 28th of February the plaintiff notified the defendants’ attorney that he would on the 7th of March appear for- examination. No examination was made.- On March 12 this fact was set up by supplemental reply. It was shown on the trial that proofs of loss were made and delivered to the defendants more than sixty days before the action was brought and that no objection had been raised thereto and no objection made to the payment of the policies until the-suit had been brought. The plaintiff recovered, and the defendants appeal and assign as error the refusal of the court to find for them at the conclusion of the plaintiff’s evidence and the refusal to grant a new trial.
They argue that the plaintiff failed to prove his allegation that the building was destroyed without his fault, and that the policies were made void by his having kept his Ford car in the barn with some gasoline in it, and also that the failure to submit to the examination when called upon was fatal to his case.
Assuming, without deciding, that the burden was on the plaintiff to prove his allegation that the building was burned without his fault, it suffices to say that the general verdict in his favor must be construed as likewise settling this question.
The provision that the insured should submit to an examination when required was not made a condition precedent to recovery and hence his refusal did not, under the circumstances shown, avoid the policies. Counsel cite four cases to sustain their contention that this provision, together with the refusal, avoided the policies. (Pearlstein v. Insurance Co., 70 S. C. 75; Firemen’s Fund Ins. Co. v. Sims, 115 Ga. 939; Sims v. Assur. Soc. 129 Fed. 804; Harris v. Phoenix Ins. Co., 35 Conn. 310.) In the Pearlstein case a nonsuit was asked because a similar provision, with others, had been violated, and it was held properly refused because waiver might have been shown. As to the examination clause it was merely, held that the insured could not avail himself of the excuse for noncompliance that he had fled to avoid arrest for homicide. In the Firemen’s Fund case the policy provided that no suit could be maintained until after a compliance with this provision. The same thing was true of the Sims case and the Harris case. In cases involving the iron safe clause we have held that it’s violation avoided the policy when so stated therein. (Grandon v. Insurance Co., 99 Kan. 785, 163 Pac. 458.)
The plaintiff testified that he had kept his Ford car in the barn most of the time for two or three months, and that it held ten gallons of gasoline and was from one-third to entirely full while in the barn. While he testified that it was not in the barn the night of the fire, the defendants contend that the provision was so violated as to preclude recovery. Insurance Co. v. Comm’rs of Shawnee Co., 54 Kan. 732, 39 Pac. 697, is cited. There, however, the policy forbade the keeping or use of gasoline upon the insured premises, and it was expressly agreed that the violation of this condition should avoid the policy. It was said in the opinion that gasoline stoves and lamps were used without hinderance or restraint, and that the facts showe'd clearly that the fire which destroyed the property was occasioned by such use, a situation quite unlike that now presented for consideration.
• In Insurance Co. v. Johnson, 69 Kan. 146, 76 Pac. 419, the vacancy clause in the policy was to the effect that the latter became void if the premises • became vacant for thirty days. More than thirty days after the house became vacant the other building was destroyed by a wind storm. It was decided that this building was also vacant and that the vacancy voided the policy. In Insurance Co. v. Russell, 65 Kan. 373, 69 Pac. 345, the policy provided that it should be void if the buildings, became vacant without consent. They became vacant and so remained for twelve days, but were reoccupied before any loss was sustained. It was held that the vacancy forfeited the insurance and that, the reoccupancy did not revive it. It was held in London & L. Fire Ins. Co. v. Fischer, 92 Fed. 500, that a . clause similar to the one before us was not violated by merely permitting gasoline to be carried through the.building. In Norwaysz v. Thuringia Ins. Co., 204 Ill. 334, it was held thát a violation of such a clause avoided the policy and that it was not incumbent on the insurer to show that such violation. contributed to the loss. The opinion in Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, contains this language:
“The condition which was violated did not, in any way, depend upon the fact that it increased ‘the risk, but by the express terms of the contract was made to avoid the policy if the condition was not observed.” (p.. 465.) ■
The policy considered in Harper v. The Albany Mutual Insurance Company, 17 N. Y. 194, provided that if the building should be Used for purposes extra hazardous the policy should be of no force so long as such use continued. Camphene, spirit gas or burning fluid were forbidden to be used unless by permission indorsed on the policy. The plaintiffs conducted a bookbinding business and used camphene for cleaning rollers, wood cuts and electrotype plates, as was usual among printers, and necessary and indispensable. The policy gave the privilege of carrying on the printing business, and the insurer was held liable. The fire was caused by the act of a plumber throwing a lighted match into a pan containing a small quantity of camphene. The same ruling was made in Harper v. New York City Insurance Company, 22 N. Y. 441, three of the judges vigorously dissenting. These decisions were followed in Hall et al. v. Ins. Co. of North America, 58 N. Y. 292. The storage and use of enough kerosene to light a paper mill was held not to violate a clause prohibiting the storage or use of petroleum, rock and earth oil, in Buchanan v. Exchange Fire Ins. Co., 61 N. Y. 26. In Shader v. Railway Passenger Assurance Co., 66 N. Y. 441, it was held that the death of the insured occurred while he was drunk, and that this avoided the policy, although he was killed by a pistol shot, the policy providing that no claim should be made if the death happened while or as a result of intoxication. The Missouri court of appeals in La Force v. The Williams City Ins. Co., 43 Mo. App. 518, held that a provision that the policy should become void if gasoline was kept, used or stored on the premises was not breached by the “occasional introduction of small quantities of gasoline into the house, for the purpose of destroying vermin and cleaning clothes. . . .” (syl. ¶ 3.) The rule was announced to be that to forfeit a policy requires the use of the prohibited article for the ordinary purposes to which it is usually put, and that an occasional use for a temporary and extraordinary purpose connected with the occupation of the premises is not fatal.
The supreme court of Missouri held in State ex rel., v. Ellison, 269 Mo. 410, that a clause against incumbering the insured property was no less binding because it’s violation did not' increase the hazard, the doctrine being plainly and forcibly declared that the courts cannot make contracts for parties qualified to make their own.
Courts and text-writers differ as to what constitutes a breach of such a provision as we are considering. But we believe and hold that the amount of gasoline kept in the car in the barn for two or three months was a breach thereof, and not a permissible and negligible deviation therefrom.
The parties, fully competent, fairly contracted that “this, entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has, or ... if (any usage or custom of the trade or manufacture to the contrary notwithstanding) there be kept, used or allowed upon the above described premises, gasoline or petroleum, or any of its products of greater inflammability than kerosene oil.” Thus the contract was not to insure a feed barn in which a car with a tank of gasoline should be kept or stored, but one free from such inflammable stuff. The plaintiff should have kept his contract or should have had indorsed thereon consent to keep his cah in the building.
The judgment is reversed, with directions to enter judgment for the defendant.
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The opinion of the court was delivered by
DAWSON, J.:
This was an action for damages. The plaintiff was a workman in the defendant’s railway machine shops at Newton. While plaintiff was engaged in detaching some mechanical contrivance from an engine, it became necessary to cut the nuts from certain bolts connecting it with the engine, and while he was kneeling by the side of the engine and holding a long chisel against one of the bolts, another workman, who was assisting him, swung a ten-pound sledge hammer, aiming it at the head of the chisel, but which missed the mark and hit the plaintiff a severe blow on the jaw, from which he received serious and lasting injuries.
Defendant admitted its liability, but questioned and disputed the extent of plaintiff’s injuries; and it now appeals from the judgment for $8,500 in plaintiff’s behalf, assigning errors in the admission of answers to hypothetical questions, in the ex-cessiveness of the verdict, and in denying a new trial based upon newly discovered evidence.
1. To a witness, who was a physician, plaintiff propounded a long hypothetical question which covered the various phases of plaintiff’s antecedent evidence, and which was designed to elicit the witness’s expert opinion as to the ailments of the plaintiff and the likelihood of their continuance. In the text of this hypothetical question, one element of fact was—
“[Suppose] that he [plaintiff] was practically unconscious for some minutes?”
To another expert witness, the same general question in-, eluded the criticised element of fact thus—
“[Suppose] that he was unconscious or partially unconscious for some minutes?”
And to still another witness, it was stated—
“[Suppose] he was knocked practically unconscious for some time?”
Defendant contends that this element of fact was not in evidence. Plaintiff testified that when he was hit by the sledge hammer and his head jammed against the engine wheel by the force of the blow—
“Everything turned dark for a little bit, and then I was lying on the floor. I knew what was going on, but I couldn’t get up. . . After while some of the fellows came and picked me up.
“Q. Now at the time that you received this injury you say you did not become unconscious? A. It was a very short time, if any.”
Another witness testified:
“I saw this man swing on the bar and miss it and hit Mr. White in the jaw, and Mr. White went down momentarily, and then tried to get up.”
In view of the testimony just quoted, it cannot be said that this criticised element of fact involved in the hypothetical question was not within the general scope of the evidence. Moreover, if this element of fact did contain some slight departure from the testimony adduced, the court cannot discern hów it prejudiced the defendant in any degree. Whether the plaintiff was totally unconscious or only partly unconscious “when everything turned black for a little bit,” and whether his practical unconsciousness endured “for' a little bit,” or “momentarily,” or “for a very short time,” or “for a few minutes,” the slight^ distinctions of this detail could not have had any substantial effect upon the opinions of the experts as to the character or gravity' of plaintiff’s injuries, nor upon their opinions as to the likelihood of their permanence, nor on the amount of damages awarded.
2. Touching the complaint that the verdict was excessive, the evidence fairly disclosed that before his injuries the plaintiff, an able-bodied man of 38 years, was earning $101.50 per month, besides occasional extra pay as “bonus” and for overtime work; he was painfully injured; he was confined to a hospital for many weeks with his head and jaw in a plaster cast; his jaw was broken and permanently knocked out of alignment; his injuries are such that he cannot eat food which requires mastication; there is an unceasing “buzz” in his head; he ^cannot do hard work or sustained laborand his earning capacity has been reduced to $45 per month in the menial service of a bottle washer in a dairy, etc.
In view of this evidence, the court can see no way to unsettle the verdict and judgment; it does not present a situation where the amount is so clearly disproportionate to the injuries sustained as to call for judicial interference with the jury’s determination — at least not by an appellate tribunal. It cannot be said that the jury’s verdict indicates passion or prejudice, and the amount of the judgment will have to stand.
3. In support of the motion for a new trial, the defendant produced certain affidavits. One of defendant’s attorneys testified that plaintiff’s testimony that he could not eat and could only walk a short distance was a surprise which defendant was unable to contradict at the trial. After the trial, defendant put two of its special intelligence officers in touch with plaintiff, and one of them made affidavit that at an elaborate supper he had seen the plaintiff eat heartily of everything — except steak and cold ham; the other testified to the same effect, and also that on several occasions he had seen plaintiff walk as far as seventeen and eighteen city blocks without apparent fatigue. But plaintiff’s evidence was not that he could not eat. It was that he could not eat food which required chewing, such as meat, apples, and the like. The petition alleged injuries to the plaintiff’s,teeth, fracture and dislocation of the jaw, and the crushing and injuring of the muscles, tendons, and nerves of his face and head. It does not occur to the court that, pursuant to those allegations, it should cause surprise that evidence would be adduced that plaintiff had difficulty in eating. Touching the affidavits that about a month after the trial plaintiff had walked a distance of eighteen blocks in forty minutes without stopping and without apparent fatigue, that fact, considered in connection with all the evidence on the trial, might have warranted the district court in granting a new trial, if that court thought that the verdict was wrong or that the new matter was of sufficient consequence to have probably compelled a different .verdict or a verdict for a substantially less amount (Civ. Code, § 307) ; but as this court has no serious misgiving as to the justice of the net result, we cannot say that the district court erred in refusing a new trial. (Lewis v. Shows Co., 98 Kan. 145, 150, 157 Pac. 397.)
As nothing approaching the gravity of reversible error appears, the judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit was brought to recover on a policy of accident insurance.
The defendant issued a policy of insurance to the late William F. Jaques, a commercial traveler, which provided that if Jaques should die of violent, external, and accidental means the defendant would pay the plaintiff, wife of Jaques, the sum of $6,300.
Plaintiff’s petition alleged that her husband died of injuries sustained by falling downstairs in his home in Kansas City. Defendant denied liability, alleging that Jaques died of disease, and not from accidental injuries; that the terms of the policy provided that if Jaques should change his occupation without notifying defendant the rights conferred by the policy should be forfeited, and that Jaques did, without notifying the defendant, change hi's occupation to that of a janitor in the schools of Kansas City; and that the policy also provided that if Jaques should change his occupation to that of a janitor, (and notify the defendant of the fact,) the defendant’s liability in the event of his accidental death would be limited to half the sum for which a traveling salesman’s life was insured under similar conditions. The application of Jaques for insurance, the policy, the by-laws of the defendant, and other pertinent and related matters were fully pleaded.
Upon a verdict of the jury in plaintiff’s favor, the trial court entered judgment.
Defendant assigns various errors, one of which is involved in the question whether the insured changed his occupation. On this subject, the evidence disclosed that, except for brief intervals, Jaques had followed the occupation of a commercial traveler for nearly thirty years; that in 1903, when he was a traveling .salesman of harvesting machinery, and aged 48 years, the policy sued on was issued to him; that he usually followed such occupation; that for short intervals, when business was dull or when he desired to enjoy the society of his family for a short time, he was accustomed to take any sort of employment that he could get at or near home; that once, for a short time, he had served as secretary of the Kansas City Mercantile Club; that in the summer of 1916, when Jaques was 61 years old, he called on a member of the Kansas City board of education and asked him for a place in the employment of the school' board for a little while, saying that he would like to work around home for a while; and that pursuant to such request Jaques was placed on the pay roll of the board of education as a “janitor” or “extra janitor,” and as such employee of the board did janitor work when some regular janitor was off duty, and worked in the school board’s storeroom, checked incoming and outgoing school supplies, did clerical work, and delivered school supplies at the various schoolhouses of the city. He did this sort of work for almost two months, from September 1 until October 28, when he met with the accident, in his own home, in the early morning, while coming downstairs. His appointment as janitor would ordinarily endure for a school year of nine months; but no contract was made between the school board and the deceased, and he was privileged to quit working for the school board when he might choose to do so; and in a conversation with a fellow employee— a shop foreman — of the school board, Jaques stated:
“I do not intend to stay here, just a chance to stay home and get acquainted with my family life; you know that sixty dollars a month is not very much. I make more than that on the road; I am going to stay a while and get acquainted with my family.”
In view of such evidence as above recited, can it be said that there was error in submitting to the jury the question whether the deceased had changed his occupation? Under our own precedents, arid well-considered decisions from other juris dictions, it seems not. Ordinarily a person does not change his occupation within the meaning of an ordinary policy of accident insurance without both acts and intention showing a purpose so to do. In Evans v. Accident Association, 102 Kan. 556, 171 Pac. 643, it was held that an insured, who was a schoolteacher and superintendent of schools and listed as such in his accident policy, could not be held to have definitely and permanently changed his occupation, merely because, after his school term had expired in the month of May, he had worked on a farm during the summer, and during the autumn had made an unsuccessful electioneering campaign for the office of county treasurer, and was accidentally killed on his farm while chopping down a tree during the following December, some seven months after the termination of his last employment at his regular occupation. It will be observed that in that case, the work which the insured was doing at the time of his. death —cutting down a tree — was much more hazardous than that of his regular occupation as a schoolmaster.
The amount of insurance paid for accidents is logically and reasonably based upon the relation of the employment to the hazards involved in that employment. Surely the rates exacted and the insurance to be paid are not based upon mere caprice. In the case at bar, the employment of the deceased, whether at his regular occupation as drummer or at his temporary work as janitor, had not the slightest relation to his accident. The accident did not flow from his employment. He fell while descending the stairway in his own home, which adventure involved the same identical hazard whatever occupation he might be pursuing to earn his bread outside that home.
Looking into some of the many cases cited in the L. R. A. note referred to in the Evans case (24 L. R. A., n. s., 1174), we find that the supreme court of Nebraska held that the change of occupation referred to in the policy meant the substitution of one business or vocation for the other as the usual business of vocation of the assured, and did not refer to a casual or incidental resort to other activities for thirty days, where the vocation described in the policy was not abandoned, and it was undisputed that the assured expected within a few days to continue his usual vocation. (Taylor v. Illinois Commercial Men’s Ass’n, 84 Neb. 799.)
It has been held that a traveling salesman who was out of employment for two years and residing meanwhile on his father’s farm had not changed his occupation (Simmons v. Western Travelers Accident Ass’n, 79 Neb. 20). A teacher out of employment who was injured while building houses was held not to have changed his occupation (Stone’s Adm’rs v. United States Casualty Co., 34 N. J. L. 371). Where an auctioneer had gone on a ^distant journey to buy horses, it was held no change in occupation (Star Accident Co. v. Sibley, 57 Ill. App. 315).
Under the facts of this case, and the foregoing precedents, the court holds that it was for the jury to determine whether the deceased had definitely - changed his occupation, or had merely taken up temporary work near his home to enjoy and cultivate the society of his family for a short time, but with no intention of abandoning his life work as a commercial traveler, and the jury’s verdict on that question cannot be disturbed.
It was stoutly contended in the trial court, and is still insisted on here, that the evidence disclosed that William F. Jaques died of disease, and not of injuries sustained through violent, external, and accidental causes. The man fell headlong down a flight of stairs. He was 61 years old. He was badly hurt about the head, and elsewhere. He complained particularly about the numbness of the right side of his head. A corresponding paralysis soon afterwards attacked the left side of his body. His death occurred in a month after his fall. In view of these facts, it is not a startling conclusion that the jury should determine that the violent, external, accidental fall down the stairway of his home caused the death of this old man. Of course, there was an autopsy, and the surgical experts, or most of them, swore that he died because the central cerebral artery had hardened and thrombosis had set in; that the lumen of that artery had clogged; that consequently that portion of the brain fed by that artery had deteriorated and had ceased to function; and that this disease or sequence of diseases, and not the headlong fall downstairs, had caused his death. Not all the expert evidence was to that effect, however. One expert was of opinion that the fall might have partly caused the maladies of the central cerebral artery and brain tissues. Be that as it may, although expert opinion evidence coming from deservedly reputable and disinterested anatomists and physicians must be conscientiously considered and weighed by the jury, such evidence cannot be judicially held to annihilate the simple, concrete evidence of other facts and circumstances which tended so strongly to show that Jaques’ death was caused by his falling down the stairway. The credence and weight to be given to expert and opinion evidence was for the jury’s determination (Baird v. Shaffer, 101 Kan. 585, 590, 168 Pac. 836), and the finding of the jury on this controverted issue of fact must stand. (Wideman v. Faivre, 100 Kan. 102, 106, 163 Pac. 619; Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
It is also contended that the court erred in excluding from the evidence defendant’s proffer of a certified copy of the death certificate of Jaques. Defendant cites section 10167 of the General Statutes of 1915 to justify its admission. The court’s ruling was based on the fact that the physician who prepared that certificate was a local resident of Kansas City, who could be subpoenaed if his testimony was desired; and it cannot be said that the ruling of the court was prejudicial. While the death certificate was competent under the statute, its legal sanction goes no further than to assure its evidential status where it may be inconvenient or impossible to procure the best evidence, that is, the certifying physician’s oral testimony. Moreover, the certificate, aside from its narrative of facts not in dispute, recited that the cause of Jaques’ death was “Cerebral Edema,” duration, “4 days”; secondary contributory cause, “Atheromatous arteries,” duration, “-days.” This evidence, even considered most favorably for defendant, would only have been cumulative, and but indifferently at that, to other expert testimony orally given and dogmatically maintained by defendant’s witnesses.
Complaint is made of an instruction which dealt with the amount of recovery — one-half the face of the policy if Jaques had changed his occupation to that of a janitor; — but this instruction needs no consideration, since if he so changed his occupation in this case there could be no recovery of any amount, because Jaques failed to notify the defendant. In this case, the recovery must be all or nothing.
The court refused defendant’s request for an instruction touching the nonliability of defendant if an autopsy was held without defendant’s request, and without notice to it. Such an issue was raised by the pleadings, but there was no proof of irregularity in this respect in the holding of the autopsy. Defendant’s witnesses were present at the autopsy, and the defense was chiefly maintained on what was disclosed in the autopsical investigation. Plaintiff made no use of the facts discovered by the autopsy, in her evidence in chief. No error is discerned in the court’s refusal to give the instruction requested.
A final contention is urged against the admissibility of the evidence touching statements made by Jaques when he solicited employment by a member of the board of education, and concerning what he said to his fellow workman touching his purpose in seeking and accepting temporary work so that he could be at home with his family for a little while. Jaques’ acts and conduct — what he said and did — were compentent to prove the critical and controlling fact of this case — whether or not he had changed his occupation. It would offend justice to determine this matter without giving proper consideration to his intention^ also. Indeed, his statements were a pertinent part of his conduct through which the controlling fact was to be determined. Without the aid of Jaques’ verbal acts, his other conduct would be so equivocal that a jury could not say with certainty whether Jaques had determined to change his occupation or not. The simpler aspects of the verbal-conduct rule are more familiar in criminal cases, perhaps, than in civil actions, but the principle justifying their admissibility is the same. (See 3'Wigmore on Evidence, §§ 1772, 1774, and in same volume, “Verbal Acts,” etc., p. 2274 et seq.)
No prejudicial error which would justify the interference of an appellate court is disclosed in this record, and the judgment is therefore affirmed.
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The opinion of the court was delivered by
DAWSON, J.:
This appeal relates to questions arising in a divorce action, where the divorce is denied, but a division of property is granted.
The plaintiff, Ida M. Putnam, and the defendant, C. E. Putnam, were married in Anderson county, Kansas, in 1882. All their married life of thirty-five years or more was spent in this state, mostly in Franklin county. The defendant husband had about $700 worth of property at the time of the marriage. They have reared a family of six children, all grown to maturity except the youngest, a lad of fifteen years. They were successful in the accumulation of property. Their farming lands, city property, and miscellaneous chattels were valued by the trial court at $176,000. The title to this property stood mostly in the name of the defendant, but when domestic discord had become chronic in this family the defendant instituted a practice of taking title to real property in the name of his sister, and also taking deeds to other realty with the name of the grantee omitted. ' ■
The domestic troubles of plaintiff and defendant were of long standing. The evidence tends to show that these were occasioned in part by the husband’s restraint upon the wife’s household and family expenses, and by his curious and antiquated notions about the husband’s “mastery of his own household,” which prompted him to withhold from his wife all information about his business affairs, and by his incessant hectoring of his wife about her religious opinions. Although he was ostensibly an orthodox churchman, his children testified that for many .years their home on Sunday was a bedlam of religious controversy, usually precipitated by defendant, and terminated by plaintiff in a woman’s last refuge — her tears. The trial court found that this religious controversy wrecked this home.
Without' the knowledge of his wife, defendant made one donation of $20,000 to a church board, and a later donation of $6,500. These gifts were made at times when defendant was imposing upon his wife such a rigid and unnecessary economy of domestic expenditures that it amounted to “inexcusable and intolerable stinginess,” according to her somewhat justified viewpoint.
Shortly before this action was begun, and immediately after defendant was informed by his son, a college professor in' a St. Louis university, that unless some adequate provision was made for his mother, their domestic difficulties would inevitably provoke litigation, the defendant went to Chicago and called upon a religious organization, a Bible institute, in that city; and, although'that institute had no previous ácquaintance or dealings with defendant, he executed to it a promissory judgment note for $100,000 and made arrangements for the disposition of all, or nearly all, of his property for the purpose of satisfying that note. When this action was tried, some substantial payment had been made on this note, and the name of the institute or its chief officer had been inserted in some of the deeds to properties where the name of the grantee had been left blank when acquired by defendant, and thereafter such deeds were recorded. One aggravated instance of this sort related to the title and deed to the family homestead.
The trial court’s findings of fact are too elaborate for reproduction in full. Some of them read:
“During all the years of their married life, the defendant has been a careful, shrewd, honest, energetic business man, highly respected by all with whom he came in contact, and has, with the cooperation and assistance of his wife, accumulated a large amount of property, , . .
• “During all the years of their married life, the plaintiff has been a true, upright, dutiful wife and faithful mother. She has had little or no opportunity to mingle, with the outside world, or give attention to matters outside her home. These two people have reared a family .df six children, as above stated, all of whom are upright, honorable, intelligent and highly respected.
“I do not find' that the conduct of the plaintiff during the years •of her married life is open to criticism. She commenced this action in :good faith, firmly believing, as I take it from the testimony, that she ‘had a right to a divorce, and with some grounds, at least, upon which 'to base that belief.
“While the defendant is by no means free from fault in his conduct toward his wife, especially for the last eighteen or twenty years, I do not find from the evidence that he has been guilty of extreme cruelty toward her in the legal sense of that term. That is, such extreme -cruelty as would warrant the' granting of a divorce.
“In making these transfers [of real estate] and executing this note [for $100,000 to the Bible institute], one, at least, of the defendant’s purposes was to prevent his wife from getting the possession and control of any portion of the property lest it might be wasted by her or expended, at least in part, in the support of the Christian Science doctrine. I do not find that he intended to deprive his wife of support, but I do find that he desired to control that support; keep the matter of his property within his own hands and prevent his wife from handling any substantial amount of money.”
The trial court denied the divorce, but divided the property in two parts of approximately equal value, $81,050 to plaintiff, and $81,200 to defendant.
Defendant appeals, his chief point being one of constitutional law. This, and the other matters urged, will be noted in order.
Section 643 of chapter 80 of the General Statutes, of 1868, article XXVIII, subject “Divorce and alimony,” reads:
“When the parties appear to be in equal wrong, the court may, in its discretion, refuse to grant a divorce; but in any such case, or in any other case where a divorce is refused, the court may, for good cause shown, make such order as may be proper for the custody, maintenance and education of the children, or the control and disposition of the property of the parties as may be proper.”
Under the revised civil code, section 668 (Gen. Stat. 1915, §7576), this provision, as amended, reads:
“When the parties appear to be in eqital wrong, the court may in it» discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said’ parties, and in such case‘the order of the court shall vest in the parties a fee-simple title to the property so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other.”
It was pursuant to these provisions of law that the trial court divided the property between plaintiff and defendant. Defendant contends that so much of the statute as authorizes a division of the property where a divorce is refused, is a taking of defendant’s property and conferring it upon plaintiff without due process of law, in violation of the fourteenth amendment to the federal constitution, and in violation of section 18 of the Kansas, bill of rights. Defendant grounds his argument on the theory that all this accumulation of lands and houses and barns and horses and cattle and farming machinery, etc., which he has acquired in thirty-five years with the cooperation and assistance of his wife is his exclusively, not hers in any sense, and therefore that the statute quoted above, as applied to this case, violates his constitutional right to take, hold and dispose of his property unrestrained and according to his own pleasure, so long as he has not been found guilty of wrong justifying an absolute divorce from the plaintiff. In other words, defendant’s idea is that the case is to be viewed as if it were based upon a statute which authorized a judicial decree transferring John Doe’s property to Richard Roe, without debt, obligation, or any consideration whatsoever.
Let us see if this theory is in accord with the genius of Kansas law. Prior to and at the time of the adoption of the Kansas constitution, the general principles of the common law were in force in this state, so far as they were suitable to the wants and conditions of this commonwealth. (Stat. Kan. Ter., 1855, ch. 96; Kan. Stat., 1859, ch. 121; Sattig v. Small, 1 Kan. 170; The State, ex rel., v. Akers, 92 Kan. 169, 189, 140 Pac. 637; Clark v. Allaman, 71 Kan. 206, 215-222, syl. ¶¶ 1, 3, 80 Pac. 571.) .
At that time, divorces of two principal kinds were known to the common law, although they had formerly been controlled by ecclesiastical courts or were granted by the legislature. These kinds of divorce were either absolute or limited— divorce a vinculo matrimonii, and divorce"a mensa et thoro. (1 Cooley’s Blackstone, 440-442; 3 Cooley’s Blackstone, 94; 14 Cyc. 574, 576, 578; 9 R. C. L. 244, 245.)
The constitution recognized the existence of these general principles of divorce, when it provided—
“All power to grant divorces is vested in the district court, subject to regulation by law.” (Const, art. 2, § 18.)
Pursuant to this constitutional provision, and to the statute of 1868 above quoted, the plaintiff and defendant contracted their marriage relationship. While marriage is hallowed by moral and religious concepts which go back to the beginning of Christian civilization, yet when modern courts are compelled to consider the marriage relationship with reference to the rights, duties and obligations of married persons towards each other, it is a civil contract. (Gen. Stat.. ,1868. ch', 61, § 1; Gen. Stat. 1915, § 6134.) Nothing remains in Kansas jurisprudence of the old notion that a married woman is subordinate to her husband; the term “coverture” is hardly known in the Kansas language; the wife is not under legal disabilities of any sort. She is the equal of her husband in the marriage relation, and may hold, own, and control property, and engage in business as freely as her husband.
(Const, art. 15, § 6; Gen. Stat. 1868, ch. 62; Gen. Stat. 1915, ch. 72.),
But a wife has certain rights and interests in property acquired by the husband during the existence of the marriage relation which, with the aid of the statute, the courts upon proper occasion will recognize and protect. Without such statute, these rights of the wife would be imperfect and unenforceable, but they would morally exist nevertheless, and they only need such statute to give them legal vitality. It is not easy, and perhaps unnecessary, to delimit all these rights. Where the marriage relationship is harmonious, it is scarcely necessary to consider them. Ordinarily it requires either death or discord to mature them. The recognition of these rights and interests, however, runs through our whole body of law. The family homestead may not be alienated without the joint consent of husband and wife, and. it is immaterial whether the title to the homestead is in the husband or in the wife. (Const, art. 15; § 9; Gen. Stat. 1868, ch. 38, § 1; Gen. Stat. 1915, § 4697.) The wife’s signature and voluntary assent are necessary when the husband undertakes to sell or bargain and convey other realty than the homestead, because if he conveys it without her signature and assent, she becomes absolute owner of one-half of the property, a tenant in common with the husband’s grantee, if she survives her husband. (Gen. Stat. 1915, § 3831; Flanigan v. Waters, 57 Kan. 18, 45 Pac. 56.) The husband cannot effectually dispose of more than half of his property, even by will, without the consent of his wife given either before or after his death. (Gen.' Stat. 1915, § 11790.) Even the husband’s personal property, if it be limited in amount — and this was characteristic of early-day Kansans, when our public policy was being shaped — cannot be mortgaged without the wife’s consent. (Gen. Stat. 1915, §§ 6506, 4700.) .
From these instances, by no means complete, it will be seen that in Kansas, from the adoption of the constitution until now, the whole tendency of our legislation has been to recognize that the wife has a clearly existent legal and equitable right in the property of her husband, which is based upon the marriage relation and the spirit of mutual cooperation, which is presumed to arise therefrom and to find its fruition in the joint accumulation of property to serve their mutual needs and to avert or minimize the adverse contingencies of life. Judicial recognition of these principles is well justified by the social and economic history of the state. In pioneer times, the family usually commenced life with little or no property. Land was cheap and easily acquired. The combined efforts and economies of the husband and wife for a long stretch of years usually resulted in prosperity — in the accumulation of the familiar forms of Kansas property. During the years of mutual industry, self-denial and domestic harmony of the married couple, it would not ordinarily be important whether each succeeding tract of land or other property acquired by their joint efforts was taken in the name of the husband or wife. If they lived together happily, both would enjoy the property, and upon the death of one of them, the other’s half interest would completely mature, and the statutes of wills and of descents and distributions would protect it. If their marital partnership — for the joint accumulations of property by a husband and wife are slightly analogous to that of a partnership — is wrecked by marital discord, and their troubles become the concern of a divorce court, the court may equitably divide the property accumulated during the marriage relation. It is not only right and just and constitutional that the court should have power to do so, but it would outrage the Kansas sense of justice if the law or the court’s decree were otherwise. And not only may the court do so when an absolute divorce is denied, but—
“In any other [divorce] case where a divorce is refused, the court may for good cause shown make such order as may be proper . . . for the control and equitable division and disposition of the property of the parties, or of eithér of them, as may be proper, equitable and just, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.” (Gen. Stat. 1915, § 7576.)
What would have been the predicament of this plaintiff if this statute and the decision of the court based thereon did not protect her? Had not this judgment been entered, this woman would have been condemned to parsimonious indigence in her old age, while her husband, who was sworn and bound by the laws of God and man to protect and comfort her to the best of his ability, squandered their accumulations of thirty-five years of industry and economy, because of a fatuous notion that all this wealth of lands and goods was his exclusively and not his wife’s nor any concern of hers; he would give it to strangers rather than see it inure to her benefit; he would “rather throw a five-dollar bill in the river” than see it invested in a hat to adorn his wife’s head—rather than intrust her with any sum of money, because of the possibility that she would contribute to the support of her church; and all the while he was bestowing thousands of dollars on the church of his preference.
The Kansas constitution and the Kansas statutes which protect the just rights of the wife, and upon which the court’s judgment was based, antedate the defendant’s marriage with this plaintiff, and they were and are a part of defendant’s marriage obligation. For good cause shown—his long years of tyranny over his wife, his oppressive denial of her right to a fair share in the family purse, his deliberate attempts to reduce her to poverty by conveying their properties to other persons without consideration and without her consent, surreptitiously conveying to strangers the house that sheltered her as a home— the record discloses all this and much more—the trial court was justified in its judgment under the statute, and the statute itself offends neither state nor federal constitution.
This case differs in no fundamental way from our prior decisions: (Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245; Green v. Green, 34 Kan. 740, 10 Pac. 156; Snodgrass v. Snodgrass, 40 Kan. 494, 20 Pac. 203; Van Brunt v. Van Brunt, 52 Kan. 380, 34 Pac. 1117; In re Johnston, 54 Kan. 726, 39 Pac. 725; Small v. Small, 56 Kan. 1, 14-15, 42 Pac. 323; Johnson v. Johnson, 57 Kan. 343, 46 Pac. 700; Raper v. Raper, 58 Kan. 590, 50 Pac. 502; Bowers v. Bowers, 70 Kan. 164, 78 Pac. 430; McKelvey v. McKelvey, 75 Kan. 325, 89 Pac. 663; Rullman v. Rullman, 80 Kan. 691, 102 Pac. 1102; Danielson v. Danielson, 99 Kan. 222, 161 Pac. 623; McCormick v. McCormick, 100 Kan. 585, 165 Pac. 285.)
These decisions, which are practically all founded upon the statute relating to divorce and separation, are not at variance with Hamblin v. Marchant, 103 Kan. 508, 175 Pac. 678, which, under another valid statute, barred a spouse who had murdered her husband from taking his property under the law of descents and distributions.
Passing to other questions raised by appellant, it is contended that this is not a divorce case, since divorce was refused. The divorce statute covers other matters than absolute divorce a vinculo matrimonii, and has features like the division of property which may be decreed, as in divorce a mensa et thoro, to which our statutory provisions and this judgment are analogous. In a divorce action, all matters which relate to or grow out of the marriage relation may be adjudicated. (Civ. Code, §§ 663-674, Gen. Stat. 1915, §§ 7571-7582; 14 Cyc. 579.) The trial court’s judgment, in substance, was, that while an absolute divorce should not be granted, a certain amount of freedom for each of the parties touching property matters should be awarded, and to that end the division of property was made. This is sanctioned by the statute, and by the many precedents above cited. The statute says:
“And in such case the order of the court shall vest in the parties a fee-simple title to the property, so set apart or decreed to them, and each party shall have the right to convey, devise and dispose of the same without the consent of the other.” (Gen. Stat. 1915, § 7576.)
Touching the sufficiency of the evidence, there is no difficulty. Had the trial court gone the full length of granting an absolute divorce, such conclusion, in view of the evidence, could not have been disturbed.
So far as the equitable nature of the division of the properties is concerned, this court can discern no injustice. That defendant may have seriously impaired his title and right to some or many of the properties decreed to him separately, is no one’s fault but his own. It was by his own' acts that he became obligated to the Bible institute, if such obligation is enforceable. . Moreover, this court could not interfere with the trial court’s division of the property, unless we were prepared to say that such division was manifestly unjust. (Danielson v. Danielson, 99 Kan. 222, 226, 161 Pac. 623.)
Complaint is made of the trial court’s finding that the plaintiff’s conduct during her married life was not subject to criticism, and that this finding was against the weight of the1 evidence. There was ample evidence to support the finding, and an appellate court has little concern with the evidence to the contrary. (Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137.) Furthermore, if the trial court had found that the wife was partly in the wrong, or in equal wrong with her husband, such finding would not have compelled a different judgment from the one decreed. Such in terms is the language of the statute on which the judgment was founded.
A final contention is urged against the allowance of $2,500 to the wife in computing the division of property allowed her, and in ordering the payment of that sum in installments. The manifest purpose of the trial court was to effect a division of the property in approximately equal parts. It cannot be discerned how that matter harmed the plaintiff. The court could have awarded plaintiff a sum of money and impressed a lien on the property separately decreed to defendant to secure its payment, and could have ordered such property sold in order to satisfy such award, but presumably the court’s order was prompted by its familiarity with defendant’s financial condition and perhaps by leniency toward him.
There is no error in the record, and the judgment is affirmed.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered a judgment against the defendant for the wrongful delivery of a number of cars of hay shipped by the plaintiff to himself at Kansas City, Mo., under an order bill of lading. The defendant appeals.
The action was tried on an agreed statement of facts, which, among other things, stated:
“That the transactions between the plaintiff and the Southwestern Hay and Grain Company were under and by virtue of an agreement at all of said times. existing between said plaintiff and said company, the terms of which were that the plaintiff should purchase the hay in question at and near the vicinity of Americus, Kansas, and pay for the same'out of his own funds; that said hay should be shipped to Kansas City, Missouri, consigned to the plaintiff, with the original bill of lading and arrival draft for the purchase price of said hay attached thereto to be sent to some bank in Kansas Ciy; Missouri, and paid for by the Southwestern Hay and Grain Company out of its own funds; and that said hay should then be sold by said company and out of the proceeds the freight and demurrage and any other shipping charges should be deducted, and the new proceeds showing a profit, if there was a profit, to be divided equally between the plaintiff and the Southwestern Hay and Grain Company, or .the losses, if any, sustained equally by them; that out of the proceeds of the sale of said hay, after the payment of freight and other shipping charges, said company was first to deduct the amount of the sight draft paid by it, the same being the original purchase price of the hay paid by' plaintiff, and the balance divided equally, if there was á profit, or the losses borne equally, if there were losses.
“That the Suthwestern Hay and Grain Company was, at all of the times mentioned in said petition, engaged in the business of handling hay for shippers on commission, or on joint account, as in this case, or upon any other arrangements as might have been made from time to time between the Southwestern Hay and Grain Company and hay shippers with whom it was doing business.
“Plaintiff has never been paid for said hay.”
The defendant’s contention is that the plaintiff and the Southwestern Hay and Grain Company (hereinafter named the company) were partners in the purchase, shipment, and sale of the hay; that the hay, having been delivered to the company, was delivered to the partnership; and that, therefore, the plaintiff cannot recover. The partnership, if any existed, depended on the contract between the plaintiff and the company. The terms of that contract, so far as they are material for the consideration of the question presented, have been set out.
The defendant argues that, because there was a division of the profits and losses arising out of these transactions, the plaintiff and the company were partners. Community of interest in, or a division of, profits and losses is one of the principal tests by which to determine whether parties are partners, but it is not a conclusive test. Community of interest in the property devoted to the business, and community off control over that property, are other and important tests. (20 R. C. L. 825, 826, 829, 830; 30 Cyc. 366, 379; 22 A. & E. Encycl. of L. 23, 27, 41; Note in 115 Am. St. Rep. 420, 431.)
The defendant cites Railway Co. v. Hucklebridge, 62 Kan. 506, 64 Pac. 58. There this court used the following language :
“An agreement between two persons, one to furnish money to purchase and ship cattle, the other to perform the labor of buying and shipping them, upon sale the profits to be shared and the losses to be borne equally, constitutes them partners as to one who has inflicted loss upon them by injuring the cattle, and a suit for damages for the injury must be brought in the name of both.” (syl. ¶ 1.)
In that case, there was community of interest at the inception of the business; one had contributed money and the other labor in purchasing the cattle, and each then had an interest therein. There was more than the sharing of profits and losses. The sharing of profits and losses and, community of interest in the property have appeared in the following cases, in which this court has held that there was a partnership. (Tenney v. Simpson, 37 Kan. 353, 15 Pac. 187; Simpson v. Tenney, 41 Kan. 561, 21 Pac. 634; Jones v. Davies, 60 Kan. 309, 56 Pac. 484.)
In the case last cited this court said :
“If there be a joint purchase with a view to a joint sale o.n joint account and a communion of profit and loss, it will ordinarily constitute a partnership transaction.” (p. 314.)
The defendant cites Stettauer v. Carney & Stevens, 20 Kan. 474. There the parties were held liable to each other, hot because they were partners, but because the business was a joint venture.
In Shepard v. Pratt, 16 Kan. 209; Beard v. Rowland, 71 Kan. 873, 81 Pac. 188; Weiland v. Sell, 83 Kan. 229, 109 Pac. 771; Wade v. Hornaday, 92 Kan. 293, 140 Pac. 870; and Tate v. Crooks, post, p. 286, 68 Pac. 74, this court held that partner ships did not exist. In Weiland v. Sell, profits and losses were shared. In the others of these cases there was a division of profits, but there was no community of interest in the property in any of them.
Another and important test is the intention of the parties to the contract. In Wade v. Hornaday, supra, it was held that partnership is a matter of contract, and courts will not create such a contract against the will of a party. (20 R. C. L. 831; Note in 115 Am. St. Rep. 412; 30 Cyc. 360.)
Again, in Rider v. Hammell, 63 Kan. 733, 66 Pac. 1026, this court said:
“Whether a written agreement between two or more persons, which is plain and unambiguous, creates a partnership inter se, is a question of law.” ' s
Another declaration by this court is contained in Grantham v. Conner, 97 Kan. 150, 154 Pac. 246, as follows:
“Persons may enter a partnership relation by uniting to place their money, effects, labor or skill, or some of them, in a business enterprise, but it is essential that each member shall subject himself to partnership duties and liabilities and that there shall be a community of interests in the profits and losses.” (p. 152.)
Could the plaintiff create any liability binding on the company, or could that company create any liability binding on the plaintiff? There was nothing in the contract on which to base such a liability. Could the plaintiff have disposed of the hay before it reached the company, and the company be compelled to deliver the hay under that disposition? Could the company have contracted for the sale of the hay before its shipment, and the plaintiff be bound thereby? Was the plaintiff the agent of the company in the purchase of the hay, and was the company the agent of the plaintiff in its sale? Each of these questions must be answered in the negative, because there was no community of interest in the property, or control over it; the contract did not give either.
It might be argued that what has been said applies to the plaintiff and the company as between themselves, but does not • apply to third parties. The defendant was not a creditor of either party to the hay transaction. No principle of estoppel applies in favor of the defendant. He stands, not in the position of a third party, but in the place of the company. The defendant argues that the company had the right to demand the delivery of the property and to compel that delivery. To prevail, the defendant must make that argument good. That cannot be done. The company, as between it and the plaintiff, had no right to the possession of the hay until it was paid for; therefore, the defendant could not have been compelled to deliver the hay to the company without the proper presentation of the bill of lading.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in ejectment^ and for damages.
The plaintiff and defendant both held warranty deeds from a common grantor — the plaintiff directly, and the defendant through an intermediate grantee. Plaintiff’s deed was of later date than the one through which defendant claimed; but plaintiff claimed to have been in lawful possession when defend ant’s grantor obtained his deed from the common grantor, and that all parties concerned had notice of her possession.
The court directed a verdict in favor of defendant; and the main question in this appeal is whether there was sufficient evidence to require the cause to be .submitted to a jury’s determination.
The evidence disclosed that in October, 1913, G. L. Baker, the patentee and owner of the property (a quarter section of .land) made a written lease of it for one year from November 1, 1913, with the privilege of renewal for a like term, to W. A. Custer, agent. The instrument did not disclose the party for whom W. A. Custer was agent, but the evidence, or part of it, tends to show that he was the agent of the plaintiff. The evidence also partly tends to show that plaintiff took and held possession of the land pursuant to this lease, and that she put a man by the name of Kephart on the land to farm it, and that Kephart occupied the premises with his family until he was ejected by the sheriff pursuant to a default judgment by a justice of the peace, in an action for forcible detention wherein this appellee was plaintiff and Kephart and another, not this plaintiff, were defendants. About the time of that, ejectment, May 28, 1916, and to satisfy .costs in that action, the sheriff seized and sold two or three hundred dollars’ worth of plaintiff’s grain and feed which she had stored and stacked on this land.
During the year 1915, while plaintiff’s alleged lease was in -force, on May 1, Baker gave W. A. Custer a three months’ option, in writing, to purchase the land at a price of $1,800. There was a consideration of one dollar paid for this option. Plaintiff says she paid the dollar. This option bound the owner, G. L. Baker, upon satisfaction of specified terms, to deliver a general warranty deed and an abstract showing good title, and provided “that the deed shall be made to any party • ... as directed” by W. A. Custer. On June 19, while the Custer option still had about forty days to run, plaintiff bought the property from W. A. Custer and the latter notified Baker. Shortly thereafter, on July 5, Baker executed a deed conveying the land to E. O. Luther.
On July 26, Baker and Luther executed a written agreement whereby the latter was to have immediate possession of the land—
“And receive one-fourth 0,4) of the growing crop, but the present tenant is to have the right to enter land to cultivate, harvest and a reasonable time in which to remove his share of the crop.”
Other matters of evidence partly tended to show that Luther bought with notice of plaintiff’s rights, and that Baker had advised him more or less accurately and more or less fully concerning the same, and that Baker deeded the property to Luther partly by persuasion of the latter that the option he had given was worthless.
“Question: Did you tell him that you had given Custer a contract for the — -agreeing to deed that land to him, or to any person whom he might request you to? Answer: I did.
“Question: What did he say when you — before that — did you offer to show Luther the contract? Answer: I did.
“Question: What did he say when you made the offer? Answer: He said it was n’t worth the paper it was written on; he did n’t want to see it.”
Two days later, July 28, and while the three months’ option was still in force — unless it was merged into plaintiff’s contract of purchase — Luther conveyed the property to the defendant, B. R. Royse. Royse purchased without any inquiry, and, of course, was in no better situation than Luther.
It seems needless to rehearse the evidence at greater length. Tested by the generous credence which must be accorded to every bit of favorable evidence, and disregarding the evidence to the contrary, and disregarding all seeming inconsistencies in the favorable evidence, if any there be — and this is the invariable rule in determining the correctness of demurrers to evidence and instructed verdicts — it seems to this court that plaintiff established a case for submission to a jury.
In Mentze v. Rice, 102 Kan. 855, 172 Pac. 516, it was said:
“The rule is that a demurrer to the defendant’s evidence should not be sustained unless there is an entire absence of proof tending to show a right to recover. (Brown v. Cruse, 90 Kan. 306, 133 Pac. 865.) Such demurrer admits every fact and conclusion which the evidence most favorable to the other party tends to prove. (Christie v. Barnes, 33 Kan. 317, 6 Pac. 599.) And it admits, not only the truth of the facts directly proven, but also all that may properly be inferred from those facts. (City of Syracuse v. Reed, 46 Kan. 520, 26 Pac. 1040.) The court mi¿st view the evidence in the light most favorable to the plaintiff and allow all reasonable inferences in his favor, (Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; Buoy v. Milling Co., 68 Kan. 436, 75 Pac. 466; Hoffmeier v. Kansas City - Leavenworth Rld. Co., 68 Kan. 831, 75 Pac. 1117.)” (p. 856.)
(See, also, Hyland v. Railway Co., 96 Kan. 432, 151 Pac. 1107; The State, ex rel., v. Gerhards, 99 Kan. 462, 464, 162 Pac. 1149; Russell v. Considine, 101 Kan. 631, 634, 635, 168 Pac. 1095; Bushey v. Coffman, 103 Kan. 209, 214, 173 Pac. 341.)
The evidence, favorably considered, showed that plaintiff had a lease of the property which did not expire until November 1, 1915; that she had possession of it thereunder; that she had purchased the property in June, 1915, while still in possession; that W. A. Custer, acting for her, had made a lease of the premises to her hired man Kephart, and that Kephart’s possession was likewise her possession;, that she also held joint possession with Kephart and exercised rights of possession and dominion over the- property by stacking and storing feed and grain raised elsewhere upon the premises close to the Kephart residence, so that he, her tenant, or subtenant, could care for and protect it against roaming cattle. A jury might fairly conclude that Luther knew, or could know, and with reasonable diligence was bound to know, these facts; and the fact that the lease from W. A. Custer to Kephart does not disclose that Custer was acting for plaintiff merely furnishes a peg on which to hang an argument that plaintiff and her witnesses may not be telling the truth. If an entire stranger, without shadow of right, had given Kephart a lease of the property, Kephart would still be plaintiff’s tenant, or hired man, and his possession would continue to be that with which plaintiff had clothed him, until he vacated the premises, or until she consented to a change in his relationship to her. Either W. A. Custer was plaintiff’s agent in executing the lease to Kephart or the lease made by him was worthless.'
Touching other matters presented by the record, there was evidence concerning the damages for dispossession and for the use of the premises. These were proper items for the jury’s consideration. The trial court also permitted counsel for plaintiff, and without objection from defendant, to outline plaintiff’s claim for damages for the conversion of her grain and feed, and, apparently without objection, plaintiff was permitted to give evidence at length on that subject. Perhaps this phase of the case was not sufficiently pleaded under the merely general allegations as to damages, but in view of coun-. sel’s opening statement and the extended presentation of evidence thereon, without timely objection by defendant, the pleadings should have been construed, either as being broad enough to include these damages, or as having been informally .amended to conform to the evidence relating to these elements of damage. -It is sometimes said, in such a situation, that the issues have been enlarged by consent of parties. (Walker v. Armstrong, 2 Kan. 198, 222; Fitzpatrick v. Gebhart, 7 Kan. 35; Conaway v. Gore, 24 Kan. 389; Organ Co. v. Lasley, 40 Kan. 521, 20 Pac. 228; Feidler v. Motz, 42 Kan. 519, 22 Pac. 561; Smelting Co. v. Osborne, 66 Kan. 393, 395, 71 Pac. 838; Baden v. Bertenshaw, 68 Kan. 32, 74 Pac. 639.)
In Hartwell v. Manufacturing Co., 78 Kan. 259, 97 Pac. 432, it was said:
“Although no facts were pleaded in the petition or reply to justify so doing, the plaintiffs introduced evidence tending to show that the defendant Was estopped from denying ^he authority of the agent or the validity of the contract. To the introduction of this evidence no objection appears .to have been offered. Under the authority of McCreary v. Parsons, Executrix, 31 Kan. 447, 2 Pac. 570, and Feidler v. Motz, 42 Kan. 519, 22 Pac. 561, the issues will be considered as enlarged by consent of parties.” (p. 263.)
There is a suggestion that there are no equities in favor of plaintiff. Perhaps there are none on the other side. Both have deeds; presumably both have paid or agreed to pay what their common grantor saw fit to exact in his overgenerous issuing of conveyances.. It seems to be a case where only the legal features of the controversy control, and it might lead us far- afield to determine the equities — if any there be. Moreover, the existence of persuasive equities would not justify the taking of a case depending upon disputed facts from a jury’s consideration.
The judgment is reversed, and the cause is remanded with instructions to grant a new trial.
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The opinion of the court was delivered by
Dawson, J.:
This is an original proceeding in which the plaintiffs ask for a writ of mandamus directing the defendants to give official attention to a matter concerning school-district boundaries appealed to them from a decision of the county superintendent.
A statement of facts will develop the legal question involved: A rural high-school district was organized in a con-' siderable extent of territory adjoining Topeka on the west and southwest. This territory comprised common-school district No. 53 and some ten other school districts. For some years past the inhabitants and electors of school district No. 53, which immediately adjoins Topeka on the west, have sent their children of suitable age and qualifications to the Topeka high school, pursuant to certain arrangements with the Topeka board of education. This arrangement was so generally satisfactory to the electors of district No. 53 that upon the organization of the new rural high school over their opposition they petitioned the county superintendent to detach their territory from the new rural high-school district in order that it might be attached to the Topeka city district for school purposes. Shortly thereafter, and under another statute, the board of education annexed the territory to Topeka for school purposes. The county superintendent declined to act on the petition for detachment on the assumption that she had no jurisdiction. On the same ground — and on no other — the defendant board of county commissioners likewise has declined to act.
The plaintiffs are interested patrons and taxpayers of the affected territory. They cite the statute:
“The county superintendent of public instruction shall have authority to transfer territory from any rural high-school district to any adjoining rural high-school district or to any school district in which a four-year accredited high school is maintained, . . . and an appeal from the action of the county superintendent to the county commissioners ma^ be taken in the manner provided by law for an appeal in the alteration of school-district boundaries.” (Laws 1917, eh. 284, § 6.)
The sole question is whether the school territory governed by the board of education of the city of Topeka is “any school district in which a four-year accredited high school is maintained” within the purview of the act of 1917. This board of education does maintain a high school of the requisite dignity —that is not the dispute. It is contended that the act does not intend that territory may be detached from a rural high-school district for the purpose of attaching it to the school territory of a city governed by a board of education; that it only means that it may be thus detached in order that it may be attached to some common-school district (maintaining the prescribed sort of high school) over which the county superintendent has general jurisdiction. This contention is accepted by the court as correct. The court holds that the county superintendent has no general j urisdiction over school territories ■ governed by boards of education, and the statute does not fairly indicate a legislative intention to extend or enlarge the jurisdiction of the county superintendent over school territories of the latter sort. This being true, the defendants properly declined to act, and the wfit must be denied.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiffs from the judgment and orders of the trial court overruling plaintiffs’ motions for new trial and for judgment notwithstanding the findings or for their enlargement, and from all other orders of the court.
While the action was based on a certain writing, to be discussed later, for clarity we shall state briefly the salient facts.
The defendant corporation is a contractor for highway work and submitted bids for road construction at the intersection of interstate highway 235 with U. S. highway 54 in Sedgwick county. Sometime in 1959, while defendant was working on the segment of the construction south of U. S. highway 54, a conversation had taken place between plaintiff, Tom C. Cain, and representatives of defendant with regard to the purchase from plaintiffs of dirt, sand, and earth, commonly called “borrow”, to be used in the construction of the highway. At the first conversation both Mr. Petersen, president of the corporation, and Mr. Reicke, its superintendent, were present. It is admitted Mr. Reicke, as superintendent, had full power to select, purchase, and otherwise obtain borrow for the corporation’s road-building projects. The work on the segment north of U. S. highway 54 had not yet been let for bids. It is undisputed that conversations had taken place between Reicke and plaintiffs in regard to the purchase of approximately sixteen acres of plaintiffs’ land and in anticipation thereof, plaintiffs had ob tained from the Metropolitan Area Planning Commission and the Roard of County Commissioners of Sedgwick county the required permit to use such land as a borrow pit.
In one of the conversations when Mr. Petersen was present, he and Mr. Reicke told Mr. Cain to have his attorneys make up a contract covering the sale of the land, which was done. The pertinent portions thereof are:
First, the date and description of the parties to the contract were set out including reference to the plaintiffs as the sellers and to the corporation as the buyer. That a payment of $500 provided for therein was subject to the payment of further sums whereby the sellers agreed to sell, and the buyer agreed to buy, the described land to be used as a borrow pit by the buyer for use on interstate highway 235. The date of the contract letting was to be on Friday, February 5,1960, and was to cover an area south and north of U. S. highway 54 where it intersected interstate highway 235. Reference was made to the permit approved by the planning commission on July 2, 1959, and by the county commissioners on July 8, 1959. The buyer agreed to indemnify the sellers for any damages resulting by reason of any breach of the conditions and terms of the contract. If the buyer was not the successful bidder the contract would be null and void, or the buyer would have a thirty day option to assign the contract to the successful bidder, and receive payment therefor from such assignee in which event the contact would remain in full force. If the defendant was the successful bidder and was awarded the contract, it was to pay plaintiffs $2,000 per acre. Upon the contract becoming effective by the defendant being the successful bidder or by reason of the above assignment, payment would be made forty-five days from the time the work was begun. The intention of the parties was that the contract was a firm agreement for the selling and purchase of the land if the buyer s bid was accepted but if not, the contact would give the buyer an option for thirty days to provide for the above assignment. The $500 was paid to the sellers in consideration for and execution of the contract and would not be refunded and was not to be considered in the determination of final amount to be paid.
On February 5,1960, the date the bids on the construction project were submitted, plaintiffs delivered their contract for borrow to defendant. The contract was never returned to plaintiffs but later in the day, Mr. Reicke delivered defendant’s check for $500 to plaintiffs at their home.
Defendant was the successful bidder. The above-mentioned contract was delivered to defendant’s attorney on February 8, 1960, some changes were made and the contract embodying those changes was returned to Mr. Petersen between February 16 and February 29, 1960. On February 16, 1960, the attorney was notified of the acceptance of defendant’s bid which was within ten days rather than the usual twelve days’ notice of acceptance.
Defendant entered into the construction of the project, which was in due time completed, but none of the materials from the borrow pit on plaintiffs’ land was ever used. The evidence is uncontradicted that at the time of the letting of the construction contract, the contract between plaintiffs and defendant was the only borrow of which defendant was definitely assured. It is recognized that definite assurance of borrow is always an important part of the bid on such road construction projects. The record shows the borrow that was actually used in the construction was merely prospective at the time the bid was let. Upon defendant’s breach of the terms of their contract, plaintiffs commenced this action.
At the beginning of the trial a jury was waived and the cause submitted to the court. The following colloquy took place between defense counsel and the court:
“Mr. Hill: Your Honor, on behalf of the defendant in this matter, comes now the defendant and moves the Court orally to make findings of fact and conclusions of law.
“The Court: They will be made at the conclusion of the evidence.
“Mr. Hill: At the conclusion of the evidence?
“The Court: So if you have any suggested findings, have them prepared and ready at the conclusion of the evidence.
“Mr. Hill: Thank you.”
When all the testimony was completed, however, the trial court immediately announced it was ready to rule. Plaintiffs’ counsel asked if the court cared to hear argument and the court stated “No.” It then made this final statement:
“The Court finds that there was never any meeting of the minds between the plaintiffs and defendant herein with reference to the contract to purchase the land owned by the plaintiffs; therefore, the Court will render judgment for the defendant for costs.”
The formal journal entry of judgment referred to the defense counsel’s request for and the granting of his motion for findings of fact and conclusions of law with the addition that any suggested findings and conclusions were to be submitted to the court at the conclusion of the evidence. Later it was stated that no suggested findings of fact or conclusions of law having been submitted to the court for consideration, the cause was submitted and the court found there had never been any meeting of the minds of the parties with reference to the contract, and entered judgment in favor of defendant for costs. Whereupon plaintiffs filed their timely notice of appeal to this court assigning seven grounds of error committed by the trial court, but No. 6 will determine this appeal. It reads:
“The Court erred in finding that there was never any meeting of minds between the plaintiffs and the defendant herein with reference to the Contract to purchase the land owned by the plaintiffs.”
In addition to the undisputed facts already stated, defendant’s testimony showed that not only was it necessary to have as firm a price as possible on borrow but also that other factors such as the distance the borrow had to be transported became an important and integral part of the bid. Defendant’s evidence further showed that considering the cost of transportation, the borrow actually used in the construction was cheaper than that of plaintiffs although theirs was the only borrow assured defendant at the time the construction contract was let.
In a preliminary way we may ask the question whether, in view of this record, the trial court made the findings or conclusions of fact separately from the conclusions of law required by G. S. 1949, 60-2921 as it had been requested to do at the outset of the trial. The authorities are replete under the statute (G. S. 1949, 60-3317) that failure to make such findings or conclusions of fact separately from the conclusions of law is not sufficient for a reversal unless the substantial rights of the party complaining are affected thereby. In support of its argument that the trial court made a finding of fact as well as a conclusion of law on all issues, defendant cites Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409, and In re Estate of Julian, 184 Kan. 94, 334 P. 2d 432, where the rule was stated thus:
“A general finding made by a trial court determines every controverted fact in support of which evidence was introduced, and a general finding raises a presumption that the trial court found all facts necessary to sustain and support the judgment.” ( Syl. ft 1.)
However, if certain evidence is uncontradicted and undisputed the trial court cannot ignore such uncontradicted evidence. The writing here involved is before this court for examination the same as it was before the trial court and we are of the opinion no ambiguity is revealed therein. This uncontradicted evidence makes clear that the intent of the parties was that plaintiffs were to furnish defendant with borrow, thus enabling it to have the required assurance of borrow in submitting its bid, and a definite description of the borrow, its location, and the price to be paid therefor were all set out. Plaintiffs proceeded to act in accordance with this intention and delivered the writing to defendant at the time defendant was required to have assurance of borrow. Defendant urged throughout the trial and also urges on appeal that this writing was solely an option contract. We cannot agree although the second part of the writing was stated to be an option and had the elements of an option in that if the defendant did not succeed in obtaining the construction contract, it would have thirty days in which to assign the contract for borrow to the successful bidder.
Defendant further urges that since the writing was not signed by defendant, it was void under the statute of frauds (G. S. 1949, 33-106) because of the impossibility of performance within one year. We do not consider the statute of frauds to be available to defendant under the circumstances. See Somerset Acres v. Daniels, 191 Kan. 583, 585, 383 P. 2d 952. The undisputed facts are that plaintiffs delivered the requested writing to Reicke, who then took it to the defendant’s office. Later that day he went to plaintiffs’ residence without the writing, but with the $500 check which he gave to plaintiffs, and told them that the writing was “All right.” Thus the final elements of acceptance and consideration fell into place. As we stated in Palmer v. The Land & Power Co., 180 Kan. 492, 306 P. 2d 152, we are not violating our well-known rule that we will not weigh evidence when a cause is here on appeal. We are merely following our equally well-recognized rule that “. . . when all the undisputed evidence is to a certain effect, then the question is one of law and not of fact.” (pp. 499, 500.)
The result of the foreging is that we are compelled to hold the trial court erred in its conclusion there was no meeting of the minds in the writing under consideration. The judgment must be reversed and the case remanded for new trial on the question of the amount of damages only. It is so ordered.
Jackson and Fontron, JJ., not participating.
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The opinion of the court was delivered by
Mason, J.:
Arthur Peyton brought ejectment against Dave Waters for a strip of land lying between the north line of a government forty (fractional, described officially as a lot) and a line 18 feet south of it at one end, and 156 feet south of it at the other. The case was tried without a jury. Judgment was rendered for the defendant, and the plaintiff appeals.
1. The parties have good paper titles, the defendant to the quarter-quarter referred to and the plaintiff to the forty-acre tract lying north of it. In 1878 the owner of the north forty inclosed therewith the strip in dispute, by building a fence which was maintained until 1915, and during that period the plaintiff and those through whom he claims were in the possession of the land in controversy and thereby acquired title to it, provided their occupancy was adverse — which is the question at issue. In 1915 the defendant moved the fence and took possession of the strip.
The court found substantially these facts, among others: In 1878 the then owner of the south tract (one O’Bryne) permitted the owner of the north tract (one Mahaney) to build the fence referred to and to occupy the strip thus inclosed, for his convenience in making use of a spring situated thereon. This arrangement continued until- the death of' Mahaney in 1887. His widow and children succeeded to his title and continued in possession until 1901, when they conveyed it to the plaintiff. Mrs. Mahaney did not know of the arrangement between her husband and O’Bryne, but supposed the fence stood upon the line between the two forties.
These findings require judgment for the defendant. The possession of Mahaney, being permissive, was not adverse (2 C. J. 131), and whether or not after his death the permission given to him affected in any way the rights of his widow, who was ignoraht of it, her occupancy was not adverse, because, although she claimed ownership up to the fence, this was upon the supposition that it marked the true line, she having no purpose to assert title to any part of the south forty. (2 C. J. 139.) Whatever may have been the character of the plaintiff’s own possession, it was not continued long enough to create a title.
2. The court also found that the permission given by O’Bryne to Mahaney to occupy the strip was not terminated during the life of either of them, and that Mrs. Mahaney and her family continued to enjoy its privileges after her husband’s death. Another finding was to the effect that no change in the character of the occupancy of the tract was made during the life of Mahaney or during the occupancy of his wife or of the plaintiff. The plaintiff regards these findings as indicating that the judgment was based'upon the theory that his possession and that of his immediate grantor would have been adverse except for the survival of the license. We do not so interpret them. But in any event, inasmuch as the other findings are sufficient to negative an adverse possession for fifteen years, the effect after the death of Mahaney of the license granted in his lifetime becomes' immaterial.
Complaint is made of the refusal of the court to'make certain additional findings suggested by the plaintiff. We regard those that were made as determinative of the case, and as covering those requested, so far as they were vital.
3. It is argued that the evidence does not support the finding that Mrs. Mahaney never claimed to own any land in the south forty. She testified in effect that all she claimed was the north forty — “what we called a fractional quarter;” that she knew it was a short forty; that she had not been claiming anything but a forty-acre tract; and that- she had understood the fence was built on the line between O’Bryne’s land and hers. We think this sufficient to sustain the finding.
4. The plaintiff complains of the admission of evidence of declaration made by O’Bryne regarding the permissive use of the strip, but as there was other competent evidence to the same point, and the case was tried without a jury, there is a presumption against prejudice. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.)
5, The plaintiff offered to testify that in 1910 he had a conversation with Charlie Houcke, who was acting as agent for his brother, the then owner of the south tract, in which he (the plaintiff) told him he was going to rebuild the fence and if there was any objection or was going to be any controversy over the line he should state it then, and that a reply was made for him to build the new fence on the line of the boundary. Both the offer and the affidavit as to what the testimony would have been were deficient, in that they failed to include any facts showing that the agent was authorized to bind the landowner by any agreement concerning the boundary. It is true the evidence was objected to merely as being “incompetent, irrelevant, immaterial and hearsay,” but a showing of agency was required in order to make it competent.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff, on the 23d day of April, 1913, entered into a written contract with the Western Straw Products Company, by which he was made its "purchasing agent for the purpose of purchasing waste paper and other materials fit for use in its plant, for which he was to be paid at the plant $8 a ton. The contract contained this clause:
“This agreement may be terminated by either party to it, by giving 60 days’ notice in writing, of their desire to do so.” Two days .later another contract was made, witnessing that the company appointed the plaintiff its “sole agent for the purchase and delivery of old papers, paper boxes, etc., . . . for the city of Hutchinson, Kansas, for a period of five years.” The price was to be $8 a ton delivered, and the contract contained the following:
“This contract is supplemental to one certain contract made by the parties hereto, it being the 'only contract now existing between them, otherwise than this contract, and being made on the 23d day of April, 1913.”
In the first .cause of action, the plaintiff sought to recover $426.22 for merchandise delivered, but this item was eliminated by the former decision in this case (101 Kan. 274).
The second cause of action was for damages occasioned by the defendant’s terminating the first contract under the sixty-day clause, and it is conceded that, at most, recovery can be had only for the time between its execution and termination.
The third cause of action was for damages for breach of the second contract, and for loss of profits which it is alleged the plaintiff would have made during the remainder of the five-year period.
The court instructed that the two contracts were to be construed as one, that they were ambiguous, and that it was for the jury to say wheth'er the sixty-day termination clause apr plied to both, or only to the former.
It was sought to be shown by the oral testimony of one of its officers that the defendant took over the former corporation and stepped into its shoes, but objections to such showing were sustained, partly because the arrangements between the two concerns were said to have been in writing, and partly because the court decided that by the former decision the question was not in the case. The jury were also instructed that the plaintiff was not bound by the contracts, unless it ratified them, and that such ratification was a question to be determined by them. The defendant recovered, and the plaintiff appeals.
Complaint is made of these instructions, of excluding certain evidence, and of the denial of the motion for a new trial.
The two contracts taken together are free from ambiguity; the one which covered pracically the entire state, except Topeka and vicinity, being terminable on sixty days’ notice, the other, relating to Hutchinson only, being expressly made for the term of five years. It was error, therefore, to submit their construction to the jury, and it was doubtless prejudicial to the plaintiff, for the jury seem to have taken the view that the sixty-day clause applied to both contracts.
There was no error in leaving the question of ratification to the jury, and, as suggested when the case was here before, the letters and notices sent out by Mr. Carey, president of the new company, contained some evidence that the contracts with the old company were in force with the new one.
While it was not error to reject oral testimony of written agreements between the old and the new companies, it was competent for the witness, Eastman, who was a director of the new company and had been president of the old, to say whether or not the old company took stock in the new in .payment of its stock in the old, whether any cash was paid by the new to the old, and the value of the property taken over by the new company. The trial court, upon examining our former decision, thought that the question of successorship had been eliminated, and was not an issue. It was said therein:
“Those interested in the company, desiring that its business be continued, reorganized it by forming a new corporation, the Hutchinson Box Board and Paper Company, defendant herein. The plan of the reorganization was that creditors and those interested in the Western Straw Products Company should take stock in the new corporation in settlement of their claims and interests.” (Smith v. Paper Co., 101 Kan. 274, 275, 166 Pac. 484.)
The trial court was correct in construing this as holding the new company to be a reorganization of the old, but not as deciding the effect of such reorganization on the contracts under consideration.
The mere fact of reorganization, regardless of its terms,would not, of itself, render the new company liable on the plaintiff’s contracts, without a showing of ratification or recognition. (10 Cyc. 287.) Unless the arrangements touching the reorganization were such, in fact and in law, as to bring the case within the rule making the defendant liable, the new company could not, in the absence of ratification or recognition, be held liable on the plaintiff’s contracts. This disposes of the complaint that instruction No. 8 placed on the plaintiff the bur den to show ratification, and that the fact of corporate succession made the defendant liable, regardless of ratification.
The excluded evidence was not produced in support of the motion for a new trial, and, therefore, cannot be availed of now. (Civ. Code, § 307; McAdow v. Railway Co., 100 Kan. 309, 164 Pac. 177.)
For error in the charge respecting the construction of the contracts, the judgment is reversed, and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Burch, J.:
This is a second appeal. The nature of the controversy is sufficiently indicated in the former opinion, Bank v. Potter, 100 Kan. 407, 164 Pac. 149. At the second trial the defendant’s case was materially strengthened, and the jury properly returned special findings of fact in his favor covering all the issues, with the general verdict.
The plaintiff had financial relations with the Russell Springs bank which were jeopardized by the recklessness with which it was managed. Besides this, officers and stockholders of the plaintiff owned stock in the Russell Springs institution. As far back as February, 1911, the plaintiff, in correspondence with the bank commissioner, stated that it had remonstrated with Harwi, the cashier of the Russell Springs bank, concerning the unwisdom of his methods and policies, and stated that it desired to cooperate with the bank commissioner in remedying the conditions. In February, 1912, a deputy bank commissioner reported violations both of law and of sound banking. On June 4 the bank was in an embarrassed condition, and the bank commissioner threatened to assume its management. At that time the Russell Springs bank owed the plaintiff between forty and fifty thousand dollars. On June 20 the bank commissioner forbade the making of further loans and the creation of further overdrafts. On the same day the bank commissioner communicated with the plaintiff’s president, and on June 24 the plaintiff wrote the following letter to the bank commissioner:
“Atchison, Kan., June 24, 1912.
“Hon. J. N. Dolley, State Bank Commissioner, Topeka, Kan.:
“Dear Sir — This will introduce the bearer, Mr. Rollin Buell, who we wish to represent us in the Russell Springs matter.
“Yours respectfully, T. M. Walker, President.”
On June 24 the bank commissioner ordered the Russell Springs bank to remove Harwi as cashier. What ensued is indicated by the following extracts from the report of the assistant bank commissioner:
“June 27, 1912.
“Hon. J. N. Holley, Bank Commissioner, Office:
“Dear Sir — In connection with Mr. Buell, representing the Atchison Savings Bank of Atchison, Kan., on Tuesday, the 25th inst., I left Topeka for Bussell Springs. Arriving at Bussell Springs, I demanded and received the resignation of H. J. Harwi, as cashier of that bank, and later called a special meeting of the board of directors, at which Mr. Buell was elected acting cashier, all of which is duly recorded in the minute book of that bank.
“I then proceeded to make an investigation of the affairs of that bank, and after posting up four days’ work, which was undone, reached the following conclusion as to their resources and liabilities:
“First, you will note that their legal reserve is approximately 2% per cent. This necessitated quick action, and acting on the understanding that Mr. Walker would protect the bank, I caused to be forwarded to him for sale sundry real-estate notes, amounting to $4,100. At the same time, Mr. Buell wired the Atchison Savings Bank to ship $1,500 ip currency, in order to meet the demands of customers, who will in all probability wish to withdraw their balances, immediately the change in officers becomes known.
“Owing to the above and foregoing statement of conditions existing in that bank, I believe it would be well to offer the following suggestions to Mr. Walker, although in view of his expressed willingness and intention to assume the liability to depositors of that bank, he is at liberty to’ disregard same:
“Third, that stock transfers be' discontinued pending final determination of the value of assets of that bank, except that sufficient stock be transferred to Mr. Buell to qualify him as cashier.
“Very truly yours, (Signed) , S. A. Wardell,
Ass’t Bank Commissioner."
On June 27 the bank commissioner advised the plaintiff’s president of the action taken at Russell Springs, and inclosed a summary of the assistant bank commissioner’s report. On July 9 the bank commissioner wrote the plaintiff as follows:
• “July 9, 1912.
“Mr. T. M. Walker, President, The Atchison Savings Bank, Atchison,
Kan.:
“Dear Sir — I am handing you herewith letter received from Mr. Buell, of Bussell Springs. . . . Somehow, there appears to me to be altogether too hopeful a vein running through this letter, as it indicates in a measure that he is being somewhat influenced by. the optimistic views of Mr. Harwi. In case you can find it convenient to do 90, I would suggest that you take this matter up with him, and attempt to overcome the influence under which he is working.
“Yours very truly, (Signed) J. N. Dolley,
Bank Commissioner.”
.This letter was answered by the plaintiff’s cashier as follows:
“July 11, 1912.
“Hon. J. N. Dolley, State Bank Commissioner, Topeka, Kan.:
Dear Sir — Yours of the 9th enclosing Rollin Buell’s letter regarding the conditions at Russell Springs.
“We realize how you feel concerning that point, as we were of about the same opinion as I imagine you are, until our Mr. P. G. Walker [the plaintiff’s vice-president] went out there for the express purpose of sizing up the situation.
“Buell is a man who forms his own opinions regardless of his surroundings, and we are forced to admit, and glad to do so, that Mr. Walker found the conditions exactly as set forth by Mr. Buell. . . .
“We return herewith Mr. Buell’s letter.
“Yours respectfully,
(Signed) F. M. Woodford, Cashier.”
On July 3 Buell went with Harwi, the deposed cashier, and Bowie, the president of the Russell Springs bank, to the defendant’s farm. A conversation took place, which resulted in the defendant buying the stock in the Russell Springs bank which belonged to T. M. Walker, the plaintiff’s president. The. sale was induced by false and fraudulent representations made by Bowie, who did the talking while Buell stood by, and the defendant paid for the stock by giving directly to the plaintiff the note sued on. The bank was then insolvent, the stock was of no value, and the transfer was not immediately reported to the bank commissioner, as the law requires. On September 7, more than sixty days later, the bank commissioner was notified, at which time the sales of 130 shares were reported, including those owned by the plaintiff’s stockholders.
The plaintiff was virtually in charge of the Russell Springs bank, through its agent, Buell. Buell was introduced to the bank commissioner, and was made cashier by the bank commissioner, as the plaintiff’s representative. Buell’s function was to protect the plaintiff’s interests. He knew all about the bank’s condition and prospects. The institution was already on the rocks, and the furtive shifting of stockholders was a matter which directly concerned the subject of his agency. The statute forbidding'transíer of shares of stock of a failing bank was enacted for the benefit of his principal as a creditor of the Russell Springs bank. (See former opinion, syl., ¶ 4.) He was a member of the party which made the predatory incursion against the defendant. He stood by while the note to his principal was obtained from the defendant by fraudulent representations, in exchange for shares of stock, and his principal is not permitted to deny knowledge of the fraud. The plaintiff was not a holder without notice of the infirmity in the paper.
There is nothing else of importance in the case. Evidence of other frauds in the sale of other stock for notes to the plaintiff was relevant. It is sufficient to say, without discussing the evidence, that the defendant did not waive his right to insist on the defense of fraud. -The evidence" quoted and the findings of fact render discussion of the instructions given and refused unnecessary.
The judgment of the district court is affirmed.
Dawson, J., did not participate in the decision.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of ejectment in which the plaintiff prevailed, and from the judgment defendants appeal.
The plaintiff’s claim was based on a purchase under an order of sale issued in pursuance of a judgment of foreclosure. The claim of the defendants was that the court which rendered that judgment was without jurisdiction because the matter involved was or might have been adjudicated in the former action. It appears that Martha J. Rogers, the defendant, became indebted to J. C. Hopper on five notes and certain advances of money to the amount of $7,314.10. To secure payment of the indebtedness, defendant executed deeds for several tracts of land in Ness and Trego counties. Hopper went through the form of leasing the land to defendant, Martha J. Rogers, for a rental which appeared to be the equivalent of interest, and she was given the option to purchase the land for $7,200, and there was a further stipulation that she had the right to sell any part of it to others. A provision in the agreement was that if she failed to make any of the payments her rights in'the land should be forfeited, and the possession which she held should be surrendered. Payments were not made in accordance with the agreement, and C. F. Edwards, to whom the interest of Hopper had been transferred, began an action of ejectment against Mrs. Rogers. She answered that the deeds were not actual conveyances, but were in fact mortgages to secure her indebtedness to Hopper. She also asked that an accounting of her indebtedness be made, her interest in the land determined, and that plaintiff’s claim be declared to be a lien only, with a right of redemption in her. The court found that the deeds were in fact mortgages made to secure an indebtedness to Hopper, in an amount conceded by the parties to be substantially correct. The court thereupon adjudged that the plaintiff was not entitled to recover possession of the land, and costs were awarded in favor of Mrs. Rogers. After-wards Edwards brought an action of foreclosure against Mrs. Rogers, setting out the indebtedness and alleging that the deeds were intended to be, and had been, adjudged to be mortgages in a former action; that default had been made in the payment of the debt and the interest; and, further, that she had failed to repay taxes which Edwards had advanced. Although personal service was made on Mrs. Rogers, she did not contest the action nor make any appearance in the case, and a judgment of foreclosure was rendered in favor of Edwards, who later became a purchaser at the foreclosure sale, and the certificate of purchase which was then issued was assigned to the plaintiff herein, W. E. Traylor. As Mrs. Rogers did not yield possession of the land, the present action of ejectment was begun. Mrs. Rogers filed a general denial in this action, and on the trial plaintiff recovered judgment. The files in the two preceding actions, as well as other evidence, were produced, but the record evidence is all that the plaintiff has brought to the attention of the court.
The judgment in the first action cannot be regarded as a bar to the second, nor can it be used as a ground to defeat a recovery in the present action. As we have seen, the first was a suit in ejectment, brought upon the theory that plaintiff was the absolute owner of the land. The defense was that the instruments of .conveyance upon which Edwards relied, although in the form of deeds, were in fact mortgages. Whether tKfe land had actually been conveyed by the deeds was the issue tried in the court, and it was determined that they were mere liens, and that the plaintiff was not entitled to the possession of the mortgaged land. The court stopped with .this determination, and there was then no occasion to go further. Plaintiff did not ask for judgment on the notes or for a foreclosure, and the pleadings as they were framed did not warrant the court in adjudging a foreclosure. As has been decided, the notes and mortgage were not a basis for a cause of action in ejectment, and that determination was not an adjudication upon the right of Edwards to a foreclosure. (Reasoner v. Markley, 25 Kan. 635.) In her answer in the first action, defendant did ask for an accounting with Hopper as to her indebtedness to him, but according to the findings of the trial court in that case there was no dispute as to the amount of the indebtedness. ' In giving its judgment on the issue actually submitted to the court, it incidentally mentioned the fact that the amount of the indebtedness of Mrs. Rogers to Hopper was conceded. No finding of indebtedness was made, and the defendant did not insist that one should be made. The matter of foreclosure was not in fact included in the issues, and evidently that subject was not regarded by anyone as part of the merits of the’ case or necessary to its decision. Neither of the parties to the action suggested the recasting of the pleadings nor the framing of new issues, and it may have been that the case was not at that time ripe for foreclosure. Whether the notes had then been transferred from Hopper to Edwards does not appear, and -whether Edwards had a cause of action upon the notes at that time is not shown, and, at any rate, it is clear that the question of a recovery on the notes and the foreclosure of the lien was not adjudicated. To defeat a subsequent action by a judgment in a former litigation, the subject matter of the second suit must have been included in the issues or brought into contest between the same parties. (A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354; Bank v. Kingman, 62 Kan. 571, 64 Pac. 65; Routh v. Finney County, 84 Kan. 25, 113 Pac. 397.) The judgment in the second suit was in fact a determination that the decision of the first was not a bar to the action of foreclosure. So far as the extrinsic facts were concerned, from which adjudication might be inferred, they must be deemed to have been settled in the second suit in favor of the plaintiff. The present action is a collateral attack upon that judgment. In that action there was jurisdiction of the person and of the subject matter, no defense was interposed, and the determination therein that the merits of the case had not been already adjudicated is not open to collateral attack, but is conclusive upon the parties until vacated or reversed in a proper proceeding. (Bowman et al. v. Cockrill, 6 Kan. 311; Snow v. Mitchell, 37 Kan. 636, 15 Pac. 224; Power v. Snow, 75 Kan. 182, 88 Pac. 1083; In re Wallace, 75 Kan. 432, 89 Pac. 687.)
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
This case involves the question whether chapter 68 of the Laws of 1911 authorized any levy for the year 1915 in excess of the limitation in section 9397 of the General Statutes of 1909, which in Cloud county was 1.31 mills for general county purposes. The trial court held the levy valid, and the plaintiffs appeal.
Chapter 76 of the Laws of 187i9 provided, among other things, that whenever the board of county commissioners of any county having a population of more thap twenty thousand should determine that any bridge was nécessary to be built, purchased, or repaired, at a cost of over two thousand dollars, it should, before making any, appropriation therefor, submit the question to the qualified voters at any general election, and that when the sum appropriated should exceed five thousand dollars, the commissioners might provide for its payment in orders on the county treasury, payable in such sums and at such times, not exceeding three years from the completion of the building, purchase or repair of such bridge or bridges as they might agree upon in the contract, ahd they were required to levy a tax sufficient to pay such orders as they should become due. It was provided:
“That not more than two mills on the dollar of the taxable property raised for general county revenue shall be expended for repairs of bridges, unless authorized by a vote at some special or general election.”
Chapter 63 of the Laws of 1909 amended and repealed this statute, and provided that whenever, the board of county Commissioners of any county should determine that any bridges should be built or repaired, it might, “in accordance with the statutes of this state, make an appropriation therefor, not to exceed the sum of four thousand dollars for each of said bridges; provided, however, that not more than twenty percent of the tax levy for general purposes in any year shall be used for the building or repairing of bridges.” When the cost exceeded five thousand dollars, the board might provide for orders on the county treasury, not to run longer than three years from the completion of the building or repair of such bridge or-bridges, and the board was required to levy a sufficient tax to pay them as they should become due.
Chapter 68 of the Laws of 1911 amended and repealed this act of 1909, and provided that whenever the board of county commissioners of any county should determine that any bridge or bridges were necessary to be built or repaired, it might, in accordance with the statutes of this state, make an appropriation therefor, not to exceed the sum of five thousand dollars for each of such bridges. If it exceeded such sum, the board, before making any appropriation therefor, was required to submit the question to the qualified voters; provided, that in counties of certain assessed valuation, certain amounts could be .appropriated without submitting the matter to a "vote, provided notice of the resolution making such appropriation, setting out the full text thereof, should ibe published once in the official county paper; and provided further, that if within thirty days thereafter a petition signed by ten per cent of the legal voters should be presented to the board requesting that the question be submitted to the people, an election should be ordered. When the sum to be appropriated should exceed five thousand dollars, the board could provide for its payment by orders on the county treasurer, not to run longer than three years from the completion of the building or repairing of such bridge or bridges, and the board was required to levy a sufficient tax to pay such orders as they should become due.
It is agreed that the board made the contract and appropriation in excess of five thousand dollars, for bridge purposes, and made provision for payment by a one-half mill levy, in addition to the 1.31 mills levy allowed for general county revenue purposes, and that the only question for determination is whether chapter 68 of the Laws of 1911 authorizes any levy in excess of the limit provided in section 9397 of the General Statutes of 1909, which is section 11354 of the General Statutes of 1915. The act of 1911, which was repealed by chapter 80 of the Laws of 1917, makes no mention of the general revenue fund, differing in this respect from both of the former statutes.
It is argued that in a number of cited cases it has been held that authority to make special levies does not warrant exceeding the general statutory limit. In Comm’rs of Osborne v. Blake, 25 Kan. 356, a judgment rendered on county warrants issued to pay current expenses was held to be in that category, and it was held that an excess tax could not be levied to pay such judgment. The case of Bartlett, Treas., v. A. T. & S. F. Rld. Co., 32 Kan. 134, 4 Pac. 178, had nothing to do with bridges. Taxes for support of the poor were held to be current expenses in A. T. & S. F. Rld. Co. v. Wilhelm, Treas., 33 Kan. 206, 6 Pac. 273, no reference being made to bridges. In A. T. & S. F. Rld. Co. v. Comm’rs of Atchison Co., 47 Kan. 722, 28 Pac. 999, the statute under which the levy was made required payment from the current expense fund, if less than two thousand dollars, and it was said that the cost of the bridge was not stated. Stewart v. Town Co., 50 Kan. 553, 32 Pac. 121, involved water, electric light and supplies for a city, but no bridges. Railway Co. v. City of Humboldt, 87 Kan. 1, 123 Pac. 727, concerned only a city’s floating indebtedness. The other case, Railway Co. v. City of Topeka, 95 Kan. 747, 149 Pac. 697, had to do only with a certain city “reserve fund.”
It was held in The State, ex rel., v. Comm’rs of Marion Co., 21 Kan. 419, that a tax to build county buildings does not come under the phrase “current expenses.”
Without reference to the general revenue fund, the defendant board was commanded to make a levy sufficient to pay for the work contracted for, as the installments should come due. It was agreed that the assessed valuation was $36,059,144. The full amount permitted for general revenue, at 1.31 mills, would be $47,237.47. A half mill additional levy would bring $18,-029.57. These figures of. theipselves demonstrate that the legislature did not intend to require so great a paradox and absurdity as the payment of $65,267.05 with $47,237.47. Neither can it fairly be said that, in the situation presented, the expenditure contracted and intended was part of the current expense of the county: rather, it was .a special and extraordinary obligation, for which direct and plain authority was given to levy a sufficient tax. True, the words “appropriate” and “appropriation” were inaptly used, but even so, the duty to levy was made clear. In the three successive statutes covering the question of building and repairing county bridges, the first two made mention of the general revenue fund in ways which made the silence of the last very significant, as indicating the legislative intention. The first of these forbade the use of more than two mills on the dollar of that fund for repairing bridges, unless authorized by vote. The second prohibited the use of more than twenty per cent, for building or repairing bridges. The last made no restrictions as to that-fund, but directed the tax to be levied without naming the fund. The language used in the first two plainly implies that, save for the restriction, the expense would come out of the general revenue fund.
The last enactment clearly requires a levy sufficient to pay the installments as they should become due, and it is held' to supersede the general limit of levy for current expenses.
The judgment is affirmed.
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The opinion of the court was delivered by
Porter, J.:
In 1890 Stanton county erroneously placed certain government land upon its tax rolls, and in 1895 issued a tax deed purporting to convey the land to the grantee named therein. Plaintiff, who succeeded to the grantee’s' rights, presented her claim against the county, asking the reimbursement for the amount of the taxes paid and interest, the claim aggregating $126.54. The claim was rejected, and she brought this action against the county. . The court sustained a demurrer to the petition, and the only question involved is whether the allowance of such a claim is a matter of discretion with the board of county commissioners. Prior to 1879, the statute read:
“If, after the conveyance of land sold for taxes, it shall be discovered or adjudged that the sale was invalid, the county commissioners shall cause the money paid therefor on the sale; and all subsequent taxes and charges paid thereon by the purchaser or his assigns, to be refunded, with interest on the whole amount at the rate of ten per cent per'annum, upon the delivery of a quitclaim deed from the party claiming under the tax deed, executed to such person or persons as the commissioners may direct. In all such cases, no interest shall be allowed after the person claiming under the tax deed shall have received notice that such deed has been discovered or adjudged invalid.” (Laws 1876, ch. 34, § 146.)
In 1879 the statute was amended so as to read—
“The board of county commissioners may, by proper order, cause the money paid therefor on the sale, together with such subsequent taxes and charges paid thereon by the purchaser or his assigns as'they may judge proper, to be refunded,” etc. (Laws 1879, ch. 40, § 3, Gen. Stat. 1915, § 11461.)
Recoveries on similar petitions have been sustained in Flint v. Comm’rs of Jackson Co., 43 Kan. 656, 23 Pac. 1048, and Security Co. v. Harper County, 63 Kan. 351, 65 Pac. 660, but as noted in Investment Co. v. Wyandotte County, 86 Kan. 708, 709, 121 Pac. 1097, the question now under discussion was not considered. In the case last cited, it was said in the opinion:
“The statute provides that in such circumstances the commissioners may by proper order cause the money paid for the deed to be refunded. (Gen. Stát. 1909, § 9488), but otherwise there seems to. be no liability upon the county.” (p. 708.)
The question, however, was not directly involved because the decision turned upon another matter.
A case growing out of the same erroneous tax had been before the court in Wyandotte County v. Investment Co., 80 Kan. 492, 103 Pac. 996, and, referring to the contention of the county that.the statute as amended “leaves no doubt that the law makes it a matter of discretion in the board of county commissioners whether they will cause the refund to be made or not” (p. 494), it was said in the opinion:
“We are not prepared to say that this is not a correct interpretation of the law, but, if so, it does not follow that the judgment is void.” (,p. 494.)
These expressions of the' court, while not controlling, are persuasive. It is hardly conceivable that the legislature changed the wording of the statute with any other .intention than to make the matter of an allowance of a claim of this character entirely discretionary with the board. If there is any way possible, the plaintiff ought to be allowed to recover' money paid through a. mistake of this kind and unjustly retained by the county. But the legislature has not always proceeded upon the theory that the state and its various subdivisions should do justice. Frequently, legislatures are impressed with the advisability of preventing, rather than encouraging the allowance of claims against the state, however meritorious.
Stanton county has in its hands funds belonging to the plaintiff, paid under a mistake of the county, and which the county has no right to retain. -The statute, as amended, no longer requires the board of county commissioners, in passing upon such a claim, to do what is right and fair; it merely declares that the county may refund the money it unjustly holds, as the commissioners “may judge proper.” Until the legislature sees fit to require the county boards in such cases to do what is right and equitable, the plaintiff is without remedy.
The court concludes that the judgment must be affirmed.
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The opinion of the court was delivered by
Mason J.:
William Dixon, a blind man, was injured by a fall caused by a defective sidewalk in the city of Kiowa. He brought an action against the Missouri Pacific Railway Company and recovered a judgment. The defendant appeals.
/The railway company has a main line and sidetrack running north and south along Twelfth street where it crosses Campbell street. It owns the west half of the block lying east of Twelfth street and north of Campbell street, and the sidewalk in question is on Campbell street south of this half block. The walk is built of brick laid flat in sand. The accident took place about midway of its length, where the bricks had been disarranged by heavily loaded wagons having been hauled across it. The plaintiff sought to hold the defendant liable on two principal theories: (1) that the walk was'in effect a part of the approach to the railroad crossing and that in suffering it to get out of repair the company had violated its statutory obligation to restore Campbell street to a fit condition for travel (Gen. Stat. 1915, § 2328, subdiv. 4), and (2) that the company was under a responsibility for the bad condition of the walk growing out of its ownership of the abutting lots.
1. It is argued in behalf of the plaintiff that the lay of the ground made it necessary to maintain this particular piece of walk as a connection between the cross walk over Twelfth ' street and the ordinary sidewalk on the north side of Campbell street. The only evidence we discover that might be thought to have a tendency to support this, claim is testimony to the effect that at the place of the accident the walk was about a foot above the level of the ground, requiring a fill of that amount. We do not regard this as sufficient to sustain a finding that the walk had anything to do with correcting the hindrance to travel on Campbell street caused by the maintenance of the tracks along Twelfth street.
2. Persons injured through defects in a sidewalk have no ground of actio'n against the abutting owner merely by reason of his ownership. (Jansen v. City of Atchison, 16 Kan. 358, 385; 13 R. C. L. 321.) Here the plaintiff relies upon thd terms of a city ordinance reading as follows:
“That when any sidewalk heretofore built in this city, or hereafter to be built, whether in pursuance of an ordinance of the city or not, shall become sufficiently out of repair to be dangerous to pedestrians, the same shall be immediately repaired by the owner of the adjacent and abutting property or by the agent of such owner, if the owner does not reside in the city, and it shall be the duty of the city marshal and of the street commissioner to report to the mayor and council, at their meetings, the condition and location of any sidewalk so permitted to be out of repair, and the mayor and council shall have the right to determine the necessity for the repair of any such sidewalk, and upon such determination, to be made of record in the minutes of the council proceedings, a notice shall be issued by the city clerk to the owner or agent of such property, which notice shall describe the sidewalk'and the extent and nature of repairs, as determined by the mayor and council, and such notice shall be served upon the owner of such property, if -he resides in the city, and otherwise upon the agent, if known, or by posting a copy of such notice on the abutting property and if such repairs are not made within ten days after the delivery or posting of such notice, the repairs shall be made by the street commissioner, or other person under the direction of the mayor and coun&il, ^nd upon aeertainment of the cost and expense thereof, the same shall be assessed against such abutting property and collected as other city taxes therefrom.”
While the ordinance declares that the abutting owner shall “immediately” repair a dangerous defect in the sidewalk, no penalty is provided excepting that in case of his failure to act within ten days after receiving a notice the city may make the repairs and charge the' expense to the property. Whether or not an absolute obligation of- the owner to repair the walk arises before he receives an official notice, his duty in the matter is one owing to the city, and not to individuals. The prevailing view is that under such a law a person injured in consequence of a defective walk cannot maintain an action against the owner of the abutting property. The, weight of authority to that effect is so great that it may be regarded as definitely establishing the rule. (28 Cyc. 1437-1438; 15 A. & E. Encycl. of L. 437; 2 Elliot’s Roads and Streets, 3d ed., § 898; 13 R. C. L. 323.) In Delaware, L. & W. R. Co. v. Madden, 241 Fed. 808, where a judgment against the lot owner was upheld because of a provision of the city charter expressly making abutting owners liable for any injury or damages occasioned by their failure to maintain or repair a walk, the general principle of nonliability was recognized, and the decisions bearing thereon were fully collected, classified and discussed in the opinion written by Judge Rogers, (pp. 812-816.)
The authorities to which reference has been made declare a liability under the common law on the part of the abutting owner where the defect in the walk by which an injury is caused is due to his own act, on the ground, that he has created an obstruction or nuisance in the street. (See also 13 R. C. L. 322, especially note; 115 Am. St. Rep. 994, and City of Rochester v. Campbell et al., 123 N. Y. 405, 416; also City of Topeka v. Central Sash & Door Co., 97 Kan. 49, 154 Pac. 232.) In the present case there was no allegation or proof that the teams which were driven across the walk belonged to or were controlled by the defendant. They appear to have been principally those of the Kanotex Refining Company, which occupied the abutting property. It was shown that the defendant had twice repaired the walk and had once, to stop the practice of driving across it,- erected a barrier, which was shortly removed by a driver for the refining company. -
3. A contention is made by the plaintiff that regardless of the railway company’s duty under the statute and the ordinance, it was liable on the ground that it built the sidewalk and invited the public to use it, and was therefore bound to keep it in repair. We do not observe anything in the evidence that appears to create any obligation with respect to this walk different from those obligations arising generally from the ownership of property abutting on a sidewalk.
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendant.
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