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The opinion of the court was delivered by
Mason, J.:
Ella S. Burton sued the master of the Kansas State Grange of the Patrons of Husbandry, a voluntary association for mutual benefit, and the members of its executive committee (joining as a defendant another member of the grange), asking damages for injuries suffered from their conduct. Her petition was made up of seven causes of action: the first was based upon her wrongful suspension as an officer (worthy lecturer) of the state grange; the second upon her wrongful expulsion as a member of that body; and the others upon libel, consisting of the publication in various ways of a statement purporting to give in considerable detail the facts regarding such suspension and expulsion. A demurrer to the plaintiff’s evidence was sustained, and she appeals.
1. On January 3, 1916, the executive committee made an order suspending the plaintiff as worthy lecturer. A record of the order was made reciting that she was suspended “pending further investigation.” She testified that the quoted words were added to the record a few days later, but this does not appear to be material to the present inquiry. The authority of the committee was derived from a section of the constitution of the state grange reading:
“The Master and Executive Committee shall be empowered to suspend from office any officer of the State Grange who may prove inefficient or derelict in the discharge of his duty, subject to appeal to the next meet of the State Grange.”
The plaintiff" protested against the action of the committee in undertaking to suspend her without notice and an opportunity to be heard. On,January 17, 1916, the committee had another meeting, at which the plaintiff was present. They had then employed a lawyer. They presented no charges to her, but she “indirectly saw” some they had gotten up. Before any steps were taken for the consideration of these charges, the plaintiff gave notice of an appeal to the state grange. The members of the committee appear to have taken the position that the appeal stayed all further proceedings and transferred the whole matter of the suspension to the state grange, which met annually. At all events, they took no further action in that regard. At the meeting last referred to there was some discussion with reference to a possible settlement, but no agreement was reached.
At the next meeting of the state grange a motion was made that the plaintiff have a hearing in her defense. The presiding officer declared the motion out of order. An appeal was taken from the ruling, which was sustained by a vote of 129 to 25. This appears to have been the end of the matter so far as concerns the suspension.
The evidence shows that prior to the suspension differences of opinion in relation to grange matters had arisen between the plaintiff and the defendants and that considerable controversy and mutual criticism had taken place.
Inasmuch as the power granted to the executive committee to suspend an officer of the state grange was to be exercised only in the event that he had proved inefficient or derelict in the discharge of his duty, probably no order of suspension, even one intended to be effective only until a full investigation should be had, ought to have been made without notice and an opportunity to be heard, regardless of any express provision to that effect. Whether the members of the committee were right or wrong in assuming, that their jurisdiction in the matter was cut off by the appeal is immaterial. The appeal carried to the state grange the question of the irregularity, as well as the wisdom, of the- action of the committee. The court is of the opinion that the failure of the grange to grant relief to the plaintiff, and its vote in sustaining the ruling that the motion to hear her was out of order, amounted to an approval of the course of the committee, or to a decision that the appeal had not been properly taken; that its decision was conclusive upon her; that if in omitting to take more definite action on the appeal the state grange is to be regarded as having failed to perform its duty in the matter, the fault was that of the grange,. and is not to be imputed to the "defendants in this action; that if the plaintiff’s legal rights were invaded in this respect, her injury was at the hands of the grange itself; and that no action for damages on account thereof lies against these defendants.
2. On March 3, 1916, J. W. Robinson (the defendant herein who was not a member of the executive committee) signed charges against the plaintiff upon which he asked that she be tried according to the usages of the order. Notice was given her of a meeting of the executive committee to consider the matter, and she attended it. A committee of five was appointed to conduct the trial. The plaintiff made a written objection on the ground that the executive committee was the “aggrieved party” and therefore interested in the result. She testified that she “objected to "being tried by any committee they would select,” saying “I had no properly organized trial committee and refused to be tried >by a ‘Kangaroo Court.’ ” The plaintiff did not answer the charges, did not appear before the trial committee, and took no part in its proceedings. It took evidence and reported that the charges were sustained. The executive committee approved the report and made an order expelling the plaintiff as a member of the state grange. The plaintiff gave notice of an appeal to that body. There the proceedings were the same as already stated with respect to the suspension matter — that is to say, no action was taken directly upon the appeal, but a motion to allow the plaintiff to be heard in her defense was ruled out of order, and the grange sustained the ruling.
The plaintiff makes various objections to the regularity of the proceedings resulting in the order for her expulsion. The rules require that charges against a member shall be signed by the complainant, and indorsed by two other members of the order in good standing. Here the charges were signed by J. W. Robinson, and after his signature were those of two other persons, preceded by the words “witnessed by.” It is argued that the charges were defective, because witnessing the document was not equivalent to indorsing it, and because there was no .evidence that the additional signers were members of the order. Objections are also made that some of the members of the trial committee were prejudiced against the plaintiff, and that no copy of the charges was furnished to her. In view of the fact that she stood upon her objection that the executive committee had no right to appoint a trial committee, and refused to have anything to do with the further proceedings, we do not regard any of these objections as now available to her. The defects pointed out are all of such a character that had attention been called to them before the trial they might have been remedied.
It is suggested in behalf of the plaintiff that she was not a member of the state grange and therefore could not be tried by it, but only by the subordinate grange to which she belonged. Her petition, after alleging that the defendant Rear-don was the master of the state grange, and that the defendant Robinson was a member of it, adds: “That the plaintiff was, at all times hereinafter, mentioned, a member in good standing in said grange,” the reference apparently being to the state grange. However that may be, she testified to having received the degree of Flora in the state grange, which seems necessarily to imply membership, and she appears also to have been a member by virtue of her husband having been master of a Pomona (or district) grange.
The plaintiff strongly contends that the executive committee had no power to cause her to be placed on trial — that the state grange alone had jurisdiction to expel one of its members.' Elaborate provisions are made for trials of charges against its members under the supervision of the state grange. But the judiciary act of the order contains sections reading:
“The Executive Committee of a State Grange, at the request of the master, may hear cases of charges against a member of a State Grange, in the intervals between the meetings of the State Grange, .and their decision is binding until reversed by the State Grange.
“When the laws of a State Grange are in any respect deficient, and do not specifically provide for emergencies which may arise in the administration of its affairs, then, in the intervals between the meetings of the State Grange, the master and the executive committee are the highest executive and administrative officers, and are clothed with authority to do all acts necessary for the maintenance of law and order and for the good of the order in the state, and make such rules and create such tribunals as the exigencies of the case may demand: Provided, that in so doing they do not transgress the written laws of the order or the enactments or orders of the State Grange.”
These provisions seem to make the executive committee of the state grange the governing body during the intervals between the meetings of the grange, and clearly authorize it, if the grange is not in session, to take the steps with regard to a trial which would otherwise devolve upon that body. Most; although not all, of the acts of the plaintiff on which the charges against her were founded, related to matters which had taken place before the annual meeting of the state grange in December, 1915, and it is urged that if it had been the purpose to put her on trial on account of them, the proceedings should have been begun soon enough to admit of a hearing before the grange at that time, on the theory that the purpose of conferring power on the committee to conduct trials was only in order that it might act in an emergency arising between sessions. Such a limitation is not expressed, and we do not think it is fairly to be implied.
. A printed copy of the proceedings of the state grange at the annual meeting in 1916, which seems to have been deposited here as a part of the record, but which is not otherwise shown to have been introduced in evidence, recites the giving of an opinion by the national master, after consultation with his associates in the court of appeals of the order, in effect approving the course of the executive committee in regard to the expulsion of the plaintiff, and indicating that the appeal therefrom had not been taken to the proper tribunal. The judgment of this court, however, is not based in any degree upon this ruling.
The conditions under which a member of a voluntary .association may be expelled have been thus stated:
“Notwithstanding property rights may be involved, an association may sever relations with an offending member upon these conditions: That he is charged wi,th conduct for which expulsion is a proper penalty if he be guilty; that he has reasonable notice of the charge and opportunity to defend himself against it; that he is given a fair hearing; that a decision is rendered against him in good faith; and that he is not denied the benefit of any special rule that may exist relating to the matter.” (Harris v. Aiken, 76 Kan. 516, 520, 92 Pac. 537.)
We find that these conditions are met here. Evidence that the members of the executive committee believed that the charges against the plaintiff were well founded, and desired for that reason that she should be expelled, or even that they entertained actual ill will toward her, would not tend to show a want of good faith in the decision such as to vitiate its effect. The plaintiff’s expulsion having been the result of a trial conducted in accordance with the rules of the order, in which opportunity to be heard was given, is not open to attack in the courts. The question whether the conduct of the plaintiff had actually been as charged in the complaint against her, and, if so, whether it called for the severance of her relations with the grange, being matters of internal government and, discipline of the order, are for the final determination of its tribunals. (19 R. C. L. 1224,1225; 5 C. J. 1357.) .
If the plaintiff took the steps necessary to effect a proper appeal to the state grange, and that body wrongfully failed to act upon it, no liability attaches to the defendants on that account, because this misconduct was not theirs, and did not occur until after the acts complained of in the petition had been completed.
3. After the order of expulsion had been made, the executive committee caused two thousand copies of a circular to be printed, to be sent to the various granges for distribution, stating that the plaintiff had been suspended as worthy lecturer, and expelled from the state grange (involving expulsion from the order), and giving in detail the various steps that had been taken leading up to these orders. By direction of the committee, a large number of these circulars were mailed to officers find members of the subordinate granges. Several of them were left on the cigar counter in the state house, but it was not shown by whom this was done. Copies reached the hands of persons who were not members of the order. Several newspapers printed stories of the suspension and expulsion, in more or less detail, but there is nothing to indicate that this was by the procurement of the defendants, further than that the information for them was doubtless derived from the circular, and this would not be sufficient to impose a liability upon them in that respect. (Burt v. Advertiser Newspaper Co., 154 Mass. 238.)
The third cause of action is based upon the distribution of ■these circulars, and the fourth, fifth, sixth, and seventh upon the newspaper publications referred to.
The circular was qualifiedly privileged, so far as concerns its distribution among members of the order, and the fact that it was incidentally brought to the attention of others does not deprive it of that character. (Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050.) And the court is of the opinion that, however much mutual distrust may have existed between the plaintiff and the defendants, there was no substantial evidence of actual malice in connection with the preparation and sending out of the circulars. Thedanguage used did not suggest it. The document was a mere recital, the essential correctness of which does not appear to be challenged, of what had taken place. The plaintiff’s objection to it appears to be, not that the facts were not stated with accuracy, but that the statements that she had been suspended as an officer and expelled as a member were libelous because the orders made were not effective on account of the irregularity of the proceedings and of the want of power in the executive committee to make them. Assuming that the executive committee acted without due authority, and that the decision of the trial committee was wrong, the publication of the fact that the proceedings had taken place, and that the orders had actually been made, would have been true and would not have supported an action for damages. (Hanson v. Bristow, 87 Kan. 72, 123 Pac. 725.) If the circular, being a mere recital of what had actually taken place, could be capable of sustaining a charge of libel at all, irrespective of privilege or motive, this could only be on the rather technical ground that in the course of its narration of events it stated what the charges were that had been made against the plaintiff. The charges upon which the expulsion was based may be thus summarized: disobedience of orders of the executive committee; engagement in bitter controversy with officers and. members of the grange; wrongfully accusing a member of disloyalty to the order and of being the mouthpiece of trusts and corporations, and alleging that the master and executive committee were his tools (the plaintiff admitted making such accusation and saying that the member referred to, had great influence over the master); showing contempt for the master and his' decisions; disregarding the result of an arbitration; making public incorrect statements of grange proceedings; and promoting discord in the order. The real essence of the plaint-tiff’s grievance is the conduct of the defendants which resulted in her suspension and expulsion. While her case is presented in part as one of libel, any real injustice done her lay, rather in making the orders suspending her as an officer and expelling her as a member, than in advising the public that such orders had been made. There is in this decision no implication that she is regarded as having so conducted herself as to deserve the treatment she has received. The affirmance of the judgment results from the view that her redress for any injury done her lay with the organization of which she was a member, and that when it refused her relief, no remedy remained.
The judgment is affirmed.
(Filed May 10, 1919.)
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by plaintiff to recover from defendants $4,000, alleged to be due upon forty promissory notes executed by them, and also to foreclose a chattel mortgage given to secure the notes upon an ice plant which they had purchased from the plaintiff. The execution of the notes and mortgage was conceded, but the defendants alleged that the ice plant purchased by them of plaintiff did not conform to the representations made by the plaintiff in the sale and on which defendants relied; that it was defective and unfit for the purpose for which it was purchased, and that damages resulted from the false representations, also from the setting up of the defective plant, and from the attempt to operate it, for which a recovery was asked. The jury awarded the defendants damages in the sum of $1, and plaintiff appeals.
It appears that plaintiff presented and defendants signed a proposal to sell an ice plant, and plaintiff contends that it constituted a contract, and that parol evidence as to the agreement by the parties or representations made by plaintiff prior to the signing of the agreement was not admissible or of any force in determining the rights of the parties. The writing is a mere proposal, and apparently is only a skeleton of an agreement. It is so obviously incomplete that it cannot be regarded as embracing all the stipulations of the parties. In it plaintiff proposed to sell and furnish an ice or refrigerating plant, and as an example of the items of the proposal, the following may be mentioned:
“Compressor — One 7%x8 cylinder eompresspr, all complete with bypass connections, suction and discharge stop valves. All ready for connection to high and low side.
“Brine Tank — One steel brine tank size 10 x 24 x 48 or of sufficient size to hold 80 ice cans'300 pounds capacity, which we will also furnish to gether with sufficient standard black pipe and headers for expansion coils. All fittings and expansion for this tank and connections to the machine will be furnished. All insulation, if any required, will be furnished by the seller for tank and storage room.
“Hoist and Crane — One hand, hoist life. . . . One.
“Ice Dump — One.
“Power: To be furnished by seller which shall consist of the following : 25 H. P. motor.
“Line Shaft Pulleys and Belt: To be furnished by seller.
“Foundation and Carpenter Work: To be furnished by purchaser.
“Piping for Storage Room: All pipe and fittings for a room size 10 x 24 x 8.
“Water and Connections: The purchaser shall furnish ample desirable water and fuel to the machine condensor and tank at all times, and the capacity of this plant based on a 24 hour per day run.
“Brine Pump: One rotary brine circulating pump of ample capacity.
“Brine Cooler: One.
“Special: One Fisher Raw Water System, 1 pump and pump jack.
“Foundation Plans: We will, if necessary, furnish plans.
“Erecting Engineer — We will furnish our erecting engineer at 00 dollars per day, to install this plant. You are to furnish all additional labor, help and appliances required and R. R. fare.
“Guarantee — We will guarantee each and every part of the above to be the very best material and workmanship, and free from all defects of labor or material, and we hereby agree to replace any part that proves defective or faulty, free of charge our work within one year, unless caused by gross negligence on the part of the operator of machine and further guarantee said machine to do work satisfactorily.
“Price: We will furnish the above outfit as specified. All for the sum of $6,000.00.
“Terms: Shall be as follows: $1,500 cash when this contract is accepted, notes and $500 on bill of lading, subject to sight draft. The balance as follows: One hundred per month until paid for.
' “Said notes, if any, to be bankable and are to bear interest at 8 per cent per annum from date.”
There were statements to the effect that plaintiff was. to retain title in the plant until it was paid for in cash. It was also specified that the contract was contingent on strikes and delays, and that the company should not be held liable for any damages on account of delays while making any changes, and that no “verbal agreement recognized.” There was also an item that the purchaser would keep the machinery insured..
In the items so-briefly and blindly stated nothing is said about the size or quality of the appliances mentioned.. Provision is made that some are to be furnished by plaintiff, some by defendants,.and quite a number of others are described in an indefinite way without specifying by whom they are to be furnished. The sum to be paid the erecting engineer for installing the plant is not given, and the amount of the railroad fare to be paid is not stated. It does not contain a statement of the quantity of ice that can be made in a day or other period by the plant, nor the cost of production per ton or other measure. In an item that the company will not be liable for delays on account of strikes or causes beyond its control there is included the statement that “no verbal agreements recognized.” But altogether the proposal is so brief, fragmentary and indefinite that it cannot be regarded as a complete expression of the stipulations of the parties. It is only a brief memorandum, an incomplete agreement, and the rule invoked by plaintiff that it cannot be added to, varied, or contradicted, does not apply. As to a memorandum it has been said:
“Parol proof cannot be received to enlarge, vary or contradict a complete written contract, but this rule is not applicable to a brief memo-random which on its face is obviously incomplete. As to such a writing parol evidence may be received, not to contradict the writing, but to show the complete agreement of the parties of which the writing is only a part.” (Heskett v. Elevator Co., 81 Kan. 356, syl. ¶ 1, 105 Pac. 432.)
(See, also, Cattle Co. v. Guthrie, 56 Kan. 754, 44 Pac. 984; Bank v. Brigham, 61 Kan. 727, 60 Pac. 754.)
The entire agreement not being committed to writing, it was competent for defendants to show the complete transaction and the inducing causes to the making of the agreement, including the alleged false representations, and all shortcomings of the plaintiff under the agreement. The testimony tends to show that the defendants were unacquainted with a plant of the character sold; that plaintiff represented that the plant would have a capacity of six tons of ice each twenty-four hours, and at a cost not to exceed $1.10 per ton; that the representations were relied on; and that they were false, as the capacity of the plant was only four tons in twenty-four hours, and the cost of production was $2 per ton.
It is contended that the pleadings did not present an issue of fraud and that testimony on that subject was improperly re ceived. The answer expressly charges false representation, fraud, and deceit in the transaction, as well as that the plant was defective, improperly constructed, and that it was continually breaking down, and that a good quality of ice could not be made with it. The pleadings justified evidence of fraud, as well as defects in the plant and its unfitness for the production of ice.
Complaint is made of a ruling of the court permitting thé reopening of the case, and the introduction of evidence by defendants after the parties had announced that they had rested. The added testimony related mainly to the value of the plant. Plaintiff stated that their witnesses had departed from the court and that they would be unable to meet the added testimony. To overcome that objection, defendant offered to concede that the witnesses named by the plaintiff would, if present, place the value at $6,000, the amount named by plaintiff in the negotiations. Under these circumstances there was no abuse of discretion in the reopening of the case and in the admission of the added testimony.
Plaintiff criticises the instruction of the court relating to the damages, and mainly that they did not use the word “reasonable” when speaking of the losses which might be recovered by it under named conditions. The instruction carried the idea of actual financial losses and left no room for the inference that unreasonable losses might be assessed. The omission of the term “reasonable” could not have misled the jury.
Complaint is also made of the refusal of a requested instruction to the effect that a letter written by defendants about the time the plant was set up containing a statement that it was a fine plant, makes nice ice, and could be operated with little labor, and finally recommending it to any one contemplating the installation of an ice plant, constituted an acceptance. This appears to have been a boasting letter which plaintiff procured to be signed by defendants that it might be used for advertising purposes. It was evidently not intended as a binding acceptance precluding inquiry into any misrepresentations and fraud that may have entered into the transaction, and which defendants insist cover not only the original transaction,- but also fraud in obtaining their signature to the letter. No error was committed in refusing that request.
The argument of the plaintiff is directed mainly at the inconsistencies and contradictions, as well as insufficiency of the testimony, but it seems to have been sufficient to take the case to the jury, and its general verdict settled all conflicts and contradictions in the evidence in favor of the defendants.
No prejudicial error is found in the record, and therefore the judgment is affirmed.
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The opinion of the court was delivered by
West, J:
The state appeals from a judgment quashing two counts of an information for violation of the prohibitory law, and alleges that there was no motion to quash filed, and that had there been, the grounds were not well taken.
An examination of the counter abstract and the correspondence set forth in the record leaves no doubt that there was a motion to quash duly filed, and that on this motion the ruling was made.
The first count, in substance, charged that the defendant, on divers dates and times, did unlawfully deliver a large number of consignments of intoxicating liquors to persons other than the consignees thereof. The second count charged the defendant, on divers days and times, with unlawfully delivering a large number of consignments of intoxicating liquors to a certain mineral water! company.
It is perfectly plain that each one of these counts charges an unknown number of separate and distinct offenses and is bad as against a motion to quash. Section 104 of the criminal code reads: “The indictment or information must be direct and certain as it regards the party and the offense charged.” (Gen. Stat. 1915, § 8018.) In The State v. Lund, 49 Kan. 209, 30 Pac. 518, an information which charged in one count an unlawful sale and the unlawful keeping of a place where persons were permitted to resort for the purpose of drinking intoxicating liquors as a beverage was held subject to a motion requiring the state to set forth each offense charged, in a separate count. In The State v. Wester, 67 Kan. 810, 74 Pac. 239, the information charged the defendant with keeping two places where intoxicating liquors were unlawfully sold. The syllabus reads:
“An information that charges two separate and distinct offenses in one count is bad for duplicity, and a motion to quash for this reason should be sustained.”
This holding has never been modified by legislation or judicial decision and remains the law of the state.
To say that a person at a certain time and place unlawfully delivered a large number of consignments of intoxicating liquor to persons other than the consignees thereof, charges, in effect,, an undisclosed number of sales to divers unnamed persons.. Not only does the defendant have no means of knowing the nature and cause of the accusations against him, but should proof be permitted under such an allegation and twelve different deliveries to twelve different persons be shown, the defendant might be convicted although no two of the jurors agreed on the same transaction as constituting the offense. This will not do even in a civil case. (Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156; Smith v. Railway Co., 102 Kan. 150, 169 Pac. 217.)
“An indictment or information must not in the same count charge defendant with the commission of two or more distinct and substantive offenses, and in case it does so it is bad for duplicity, if the offenses are inherently repugnant, or so distinct that they cannot be construed as different stages in one transaction or involve different punishments.” (22 Cyc. 376.)
“It is a general rule that an indictment or information charging two or more distinct and separate offenses in one count is bad for duplicity . . . the true reason seems to be . . . because they are, in reality, distinct offenses, and that where offenses apparently, distinct, but arising under the same statute or out of the same transaction, and having the same punishments, are permitted to be embraced in the same count, it is because, in the circumstances of the case, they constitute, in effect, but one offense.” (14 R. G. L. 194, § 40.)
(See, also, 1 Chitty’s Criminal Law, 249; Wharton’s Criminal Pleading and Practice, 9th ed., § 243; 1 Wharton’s Criminal Procedure, 10th ed., § 292.)
The judgment is affirmed.
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The opinion of the court was delivered by
Mason, J.:
Some of the heirs of George C. Hayden brought an action to set aside deeds executed by him to three of his sons, the petition alleging that he was incapable of transacting business, and that his signature had been procured by fraud and undue influence. Judgment was rendered for the defendants, and the plaintiffs appeal.
1. A reversal.is asked on the ground that error was committed in permitting another son of the decedent, who drew the deeds in question, to testify in behalf of the defendants, over the objection that he was disqualified by the rule relating to evidence concerning transactions with a person since deceased. , (Civ. Code, § 320, Gen'. Stat. 1915, § 7222.) This wit ness was not a party to the action, but his testimony seems to indicate that a part of the land would have been deeded to him except for an arrangement between himself and his brothers by which they paid for having it conveyed to them, so that he may be said to have had a financial interest in the deeds being upheld. Prior to 1911 the statute provided that under certain circumstances “no party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person.” (Gen. Stat. 1909, § 5914.) In that year an amendment was made by which (among other changes) the word “person” was substituted for “party” where it first occurs in the'clause quoted, but not where it is used a second time, in the phrase “by such party.” Of this change it has been said: “While the wording of the amended act is somewhat confusing it is clear that a witness in a case between others can hardly be testifying in his own behalf so long as he is not a party to the action” (Hess v. Hartwig, 89 Kan. 599, 600, 132 Pac. 148); and also: “This change . . . suggests a purpose to extend the rule to witnesses who are not parties; but a contrary inference can be drawn from the fact that in defining the subject as to which the witness is disqualified, the statute still retains the phrase ‘to any transaction or communication had personally by such party with a deceased person.’ ” (Cadwalader v. Pyle, 95 Kan. 337, 341, 342, 148 Pac. 665.) In a doubtful case this court inclines to an interpretation of a statute that will admit, rather than reject, evidence. (Williams v. Campbell, 84 Kan. 46, 50, 51, 113 Pac. 800; Sarbach v. Sarbach, 86 Kan. 894, 896, 122 Pac. 1052.) In view of the ambiguity noted, we cannot attribute to the legislature a purpose to exclude the testimony of a witness in the class of cases referred to, whenever a decision in favor of the party calling him would inure to his own benefit. It follows that the evidence was rightly admitted.
2. If, however, the witness were held to have been incompetent, the result would be the same. The case having been tried without a jury, the admission of incompetent evidence is not á ground of reversal unless without it the judgment must necessarily have been different, or its reception is in some other ■ way affirmatively shown to have affected the result. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748.) The appellants argue that their evidence tended to show fraud and un due influence in procuring the execution of the deeds in question ; that this evidence was not contradicted otherwise than by the testimony of the witness whose competence is attacked; and that therefore judgment would have been rendered for the plaintiffs if this testimony had been rejected. The evidence is not set out in the abstract, but assuming its condition to be as the plaintiffs say, their conclusion does not follow. The burden rested on them to produce evidence sufficient to convince the trial court that the execution of the deeds was wrongfully procured. Notwithstanding their witnesses may have given evidence to that effect, which was not directly contradicted, we cannot presume that it contained no elements of improbability such as to suggest a doubt of its truthfulness, and in any event the question of veracity was, one of fact, to be finally determined by the tribunal charged with the solution of such problems. (The State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986.) No special findings were made or asked, and there is nothing to indicate that the decision of the trial court was influenced by the evidence of the witness in question, so that no prejudice would be affirmatively shown, if it had been decided that he was incompetent.
The judgment is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff brought this action in partition to recover her claimed portion of the land of her deceased husband. From an adverse judgment, she takes this appeal.
The plaintiff was reared on a farm in Illinois near which F. M. Watson lived for some time. Subsequently, the latter moved to Kansas and settled on a farm near which the plaintiff, then the wife of A. B. Washburn, lived, and they were neighbors for many years. Her husband died in 1907, leaving a will disposing of about $1,500 worth of personal property and about $12,000 worth of real estate, giving it all, except some small bequests, to his widow, but providing that upon her remarriage she was to receive only one-half the property for life, after which it should descend to the children, share and share alike. October 22, 1910, she married F. M. Watson, then a widower, who had previously been married four times, each having grown children. At the time of this marriage, Mr. Watson had property worth from $30,000 to $33,000. He died May 26, 1914. The widow, did not take out letters of administration, but declined in favor of Mr. Huff. When this action was begun, the defendants claimed that there was an antenuptial contract between the plaintiff and F. M. Watson, by the terms of which neither should make any claim to the property left by the other.
What was alleged to be a substantial copy of this instrument was set out and made a part of the answer and cross petition. The verified reply especially denied that the plaintiff had ever signed or entered into the alleged contract. The existence of this writing was the principal point on which the voluminous testimony centered, and the court found for the defendants.
It is very earnestly contended that the result was not supported by competent evidence and that much evidence which was admitted was incompetent, and that the entire testimony to prove that such a contract existed was nebulous and foggy, instead of being clear and convincing as required in such mat ters; but a careful going over of the entire literature of the case compels us to hold that there was evidence sufficient in kind and amount to support the conclusion reached.
The plaintiff offered the evidence of a very reputable attorney, to the effect that Mr. Watson told him he had no ante-nuptial agreement with his wife, but it was rejected on the ground that, being attorney for Mr. Watson, who had come to see him about drawing his will, the witness was incompetent under section 321 of the civil code. Very likely such incompetency might have been effectually urged had not the defendants already taken the attorney’s deposition and filed it, though they did not use it. In Golder v. Golder, 102 Kan. 486, 170 Pac. 803, it was said:
“When plaintiffs called Golder as their witness and examined him under oath, and filed his deposition in court, they thereby waived all proper objections as to Golder’s competency to give the evidence.” (p. 487.)
By the same token, the defendants here waived any incompetency to the attorney as a witness. (See, also, Fish v. Poorman, 85 Kan. 237, 242, 116 Pac. 898; Bruington v. Wagoner, 100 Kan. 10, 16, 164 Pac. 1057; 4 Wigmore on Evidence, § 2327.) But ten other witnesses testified to substantially the same statement having been made by Mr. Watson, and as the trial was by the court, and the evidence was received subject to objection and was finally excluded, and. would have been merely cumulative if not excluded, it cannot be deemed that it would have wrought any change in the result. Hence, while the excluded evidence should have been received; because of the defendants’ waiver its rejection cannot be regarded as material or substantial error. It was said in James v. Lane, 103 Kan. 540, 175 Pac. 387, that the admission of certain incompetent evidence in a trial before the court “would not necessarily constitute reversible error, unless it appeared from the record that it furnished some basis for the court’s finding.” (p. 544.) Unless it appears that the rejection of competent evidence, cumulative in character, furnished some basis for the result reached, it is not ground for reversal.
Both on argument and in briefs counsel for plaintiff have • laid great stress upon the proposition that there was no evidence introduced showing that she was informed or advised of the extent or value of Mr. Watson’s estate, or that she had any knowledge thereof. Numerous authorities, including Gordon v. Munn, 87 Kan. 264, 125 Pac. 1, are cited in support of the contention that without such a showing as indicated the plaintiff would not be bound by an antenuptial contract, even if one existed.
The defendants, with considerable vehemence, assert that this is a question raised in this court for the first time. In their brief answering the plaintiff’s reply brief and additional reply brief, they say, “In the case at bar the question was never before the court'in any manner.” They also say that the plaintiff, having committed herself to the trial of this case on the theory that no antenuptial contract existed, cannot now ask us to decide that she should have tried her case upon another theory, which “was not raised or suggested at the trial of the case.”
In the plaintiff’s additional reply brief she quotes from the brief of the defendants:
“There is no testimony that appellant at the time of the marriage knew of the amount of F. M. Watson’s estate, of what it consisted, and where it was situated, or that she married him by reason of that estate.”
In their brief in reply to this the defendants argue that the plaintiff “knew all about the property of F. M. Watson,” and this they say is presumable from the long residence of Mr. and Mrs. Watson in the same neighborhood and their long acquaintance.
Of course, except in original proceedings which the constitution permits to be brought in this court, we sit purely as an appellate tribunal and cannot review matters which have not been presented to the trial court. (Board of Education v. Jacobus, 83 Kan. 778, 112 Pac. 612.) Otherwise' we would be acting as a trial court. It remains to be seen, therefore, whether this question was really an issue in the court below.
The action was one for partition. The answer and cross petition set up the alleged antenuptial contract “made prior to said alleged marriage, with full knowledge of each party thereto of the facts therein contained,” alleged ownership of the land by reason of its inheritance from Mr. Watson, and a copy of the alleged contract was attached thereto. The reply denied the existence of the contract and the title of .the defendants and, by amendment, alleged that the land was the homestead of F. M. Watson, upon which he and the plaintiff were living at the time of his death, and that the property “is not governed in any manner by the terms and provisions of the said alleged antenuptial contract.”
At the close of defendants’ evidence plaintiff’s counsel demurred thereto on the ground, among others, that “no evidence was offered showing any antenuptial contract has ever been offered or introduced in evidence or made and executed by the plaintiff openly and knowingly or was ever explained to her or fairly made by the deceased husband of this plaintiff by-which the plaintiff would be barred from the widow’s right or dower in and to his real and personal property.” It is stated in the abstract that it “contains all the evidence in full proving or tending to prove that said alleged antenuptial contract was freely and fairly entered into by the plaintiff and F. M. Watson, deceased, or that the same was just and equitable between the said plaintiff and F. M. Watson, deceased.” In the journal entry- the court found that the plaintiff and her husband entered into the contract “which said contract the court finds was duly and legally made prior to the marriage of the said Lou Washburn and the said F. M. Watson and was just and equitable.” One assignment of error is the overruling of the plaintiff’s demurrer to the defendants’ evidence at the close thereof. Another is that “the court erred in holding that an antenuptial contract had been entered into by plaintiff and F. M. Watson, deceased, prior to their marriage, that was just, reasonable and equitable in its terms.” The motion for a new trial alleged that each and every finding, order, decree and judgment of the court was contrary to the evidence and contrary to law.
In the plaintiff’s brief it is said that it is not shown that she had any knowledge of the alleged contract until nearly ten months after the death of Mr. Watson, or “that she had any knowledge as to the amount of property of the deceased, and no evidence showing that such an antenuptial contract exisited on May 26,1914.”
In her original brief the plaintiff argues that the contract failed to show any consideration, but showed that as a privilege for making it she forfeited practically all the property acquired from her former husband, and simply took a life estate in an undivided one-half.
While a liberal construction of these motions, objections and assignments might justify holding that the point under consideration was fairly presented to the trial court, it is quite manifest from the entire record that the battle raged over the existence, and not over the inducement which-led to the signing, of the alleged contract.
But assuming for the moment that the fairness of the alleged contract had to be shown, on whom, if any one, rested the burden to show such fairness or the knowledge of the wife concerning her husband’s property? The answer alleged the making of the contract “with full knowledge of each party thereto of the facts therein contained,” but nothing was said in the pleadings touching its fairness or the knowledge of the wife touching the husband’s possessions. By her former husband’s will, Mrs. Watson would, if she remained single, receive the bulk of about $12,000 worth of property, which was to be reduced to one-half thereof for life in case of her remarriage. Even if she were to receive one-half in fee, she would be giving up the difference between one-half of $12,000 and one-half of from $30,000 to $33,000.
The rule seems to be well settled that if unreasonable inadequacy or disproportion appears, the presumption of concealment is raised, and the burden is upon the husband, or those claiming under him, to show full disclosure. The relation between those about to become husband and wife is deemed one of unbounded confidence, especially on the part of the woman. (13 R. C. L. 1034, § 54.)
“Good faith is the cardinal principle in such contracts. If the provision made for the wife is unreasonably disproportionate to the means of the husband, the presumption of designed concealment is raised, and the burden of disproving the same is upon him.” (21 Cyc. 1250.)-'
In Mann v. Mann, 270 Ill. 83, it was held that when the provisions of such a contract are disproportionate to the husband’s means, it will be presumed that the wife was not fully informed as to her husband’s property, and the contract will not be enforced against her unless the presumption is rebutted. There the contract was like the one alleged here, each releasing all right to the property of the other. It was said in the opinion that there was nothing to show what property the husband had, and as there was no proof that the parties were engaged when the contract was executed, the wife had the burden to show that she did not have full information as to her husband’s circumstances. In re Estate of Enyart, 100 Neb. 337, was a case involving an antenuptial contract by which the sum of $10,000 was all the wife was to receive from the husband’s estate. When the husband died he had paid but $7,500, and the widow sued to recover an allowance of $200 a month pending the settlement of the estate. On appeal by the other side it appeared that the husband was worth about $225,000, was a widower sixty-eight years old, and had no children. The plaintiff when married to him had been deserted by her former husband, was about thirty-four, and had a daughter about fifteen. She had procured a divorce and was working part of the time at the hotel' where the deceased stayed. It was said that the evidence was convincing that she knew before the marriage that Enyart was a wealthy man, had farms, banks, and other property, ■ but that it was doubtful if she was informed with any degree of definiteness as to his actual possessions arid their value. It was held that the contract was so disproportionate that the burden rested upon those claiming its validity to show that it was entered into with full knowledge on the part of the intended wife. On the other hand, the supreme court of Wisconsin, in Deller v. Deller, 141 Wis. 255, held that an ante-nuptial contract by which the wife was to have $5,000 in lieu of dower and statutory allowances out of the estate of her husband, who was worth about $85,000, would not be set aside for inadequacy. In Donaldson v. Donaldson, 249 Mo. 228, an action to set aside two marriage contracts for inadequacy and fraud, it was said in the opinion by Chief Justice Lamm, that the relation of the man to the woman he is about to marry is a confidential one, in ari exacting and stringent sense. “He carries the burden of showing that any antenuptial contract entered into under the glow and trust of that tender and trust relation was made fairly and understaridingly on full disclosures, and is just and adequate.” (p. 248.) In Pierce v. Pierce, 71 N. Y. 154, the contract provided that the wife should be paid $500 in full consideration of her dower, and that she would not claim any share in the husband’s estate, unless such should be given her by will. The husband died without having paid the $500. He had property worth over $25,000. The surrogate held the contract valid, credited the widow with $500, and allowed her no distributive share of the estate. The general term struck out the credit of $500 and allowed her one-third of the sum to be distributed. This was affirmed by the court of appeals. It was said that the evidence established that the contract was executed by the wife under the belief caused by the husband that it contained more beneficial provisions for her than it did.
“The surrender and release, of rights to be acquired by the intended wife by the marriage relation must, however, be regarded with the most rigid scrutiny; and courts will not enforce contracts of this nature against the wife where the circumstances establish that she has been over-reached and deceived, or been induced by false representations to enter into a contract which does not express or carry out the real intention of the parties.” (p. 157.)
It was said that the authorities go very far in holding that strict proof of fairness must be shown when the courts are called upon to enforce such a contract against the wife “and especially when it is apparent that the provision made for the wife is inequitable, unjust, and unreasonably disproportionate to the means of the husband.” (p. 158.)
“The rule undoubtedly is, that in such a case'every presumption is against the validity of the contract, and the burden of proof is cast upon the husband, or those who represent him, in order to uphold and enforce the same as a valid and subsisting agreement.” (p. 158.)
While some have questioned the propriety and validity of antenuptial contracts, it was laid down in Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537, that they are not only recognized by our statutes, but that parties contemplating marriage have a right to make them when, considering the circumstances of the parties, they are reasonable and just in their provisions. In that case a widower fifty-six years old, who had accumulated property worth about $14,000, with a family of seven children, all of age but one, in good faith entered into a contract with a woman twenty-six years of age, who was “possessed of two cows and $40.00,” by which it was agreed that each should enjoy and have the untrammeled control of his or her own property, as well as the increase and profits thereof, and that if she survived him she would receive from his estate a child’s part. It was held that this contract was just and, reasonable, and that she could not claim one-half of the estate of $19,000. In the opinion it was said:
“We search the record in vain, however, for any testimony that will sustain the finding- that there was any deceit practiced by Godfrey Hafer, or that his conversation and conduct in the transaction were other than open, honest, and fair. . . . The mere fact that he may not have disclosed his assets and liabilities in detail to her, will not, in the absence of anything showing fraud or deceit, invalidate the contract, nor will it raise a presumption of fraudulent concealment; ■ and especially is this so where the terms and provisions of the contract are so manifestly fair and reasonable as in this case.” (p. 462.)
In Casey v. Casey, 84 Kan. 380, 113 Pac. 1047, it was said:
“That the contract was equitable is not questioned by either party. Our only duty is to construe it. Agreements of this nature are generally regarded with favor and are liberally interpreted to carry into effect the intention of the parties.” (p. 382.)
Gordon v. Munn, 87 Kan. 624, 125 Pac. 1, is to, the effect that if the intended wife had a fair and adequate knowledge touching her future husband’s property, and the contract is free from deceit and fráud, it should not be set aside merely because of great disproportion.
In view of these authorities, the question as to the duty to prove knowledge on the part of the wife touching the husband’s property depends upon whether or not the alleged contract shows great inadequacy or disproportion. It is clear that the plaintiff and Mr. Watson were well acquainted, and they must have had somé knowledge of each other’s financial condition. She had been married once, and he, four times. She testified that she had known him thirty-six years. While the record does not give their ages, it is manifest that they were both somewhat along in years. There is in the entire record nothing to indicate fraud, deceit, or any attempt or intent to overreach the woman Mr. Watson had known so long and was about to make his wife, and while there is considerable disproportion, it cannof be said to be so unreasonable as to raise the presumption of fraud. Hence, had the failure fully to inform the plaintiff as to Mr. Watson’s property been pleaded, the court would have been justified in finding, as it did, that the contract (if there was one) “was just and equitable.”
Therefore, whether the question now so vigorously pressed was sufficiently called to the attention of the trial court or not, no materially prejudicial error appears, for, on the theory that it was, the evidence supported the finding, and if not, the result should have been the same. ' .
(Filed June 4, 1919.)
The judgment is therefore affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained by a shot-firer in a coal mine belonging to the defendant. The’ plaintiff recovered, and the defendant appeals.
The negligence charged was that the defendant failed to provide break-throughs between the rooms of its mine, for use as passageways by employees, according to a custom prevailing in the district in which the mine was located. An unperformed promise of the defendant’s pit boss to make break-throughs was also pleaded. Because there were no break-throughs, the plaintiff, after firing the shots in a room, was unable to pass directly into the next room; but was obliged to return to the entry. Some of the rooms were driven in as much as 150 feet from the entry. The distance the plaintiff was obliged to travel was thus increased to such an extent that he was unable to complete his work and reach a place of safety before his shots commenced to explode. The plaintiff fired shots in the face of the entry, and then consecutively in rooms 1, 2, 3, 4, and 5, numbered from the face of the entry. On returning to the entry from room 5, he was injured by the explosion of one of the shots in the face of the entry. The jury returned the following findings of fact:
• “1. If you find for the plaintiff herein, state how far from the entry to the face of room No. 1 at the time of the injury. Answer: About twenty-five or thirty feet.
“2. If you find for the plaintiff, state how far from the entry to the face of room No. 5 at the time of the injury. Answer: Thirty or thirty-five feet.
“3. Was there a break-through or crosscut between rooms No. 4 and 5 at the time of the injury? Answer: No.
“4. In the mining field at Mineral, if you find there was any custom or usage to have break-throughs between the rooms in the mine, state how far it was customary to drive a room from the entry before a breakthrough was required. Answer: Twenty-five to forty feet.
“5. If you find for the plaintiff, state upon what act or acts of negligence you base your verdict. Answer: Failure to provide break-throughs as asked for by plaintiff. v-
“6. If you find defendant guilty of negligence in failing to have a break-through at any point, state between what rooms you find there was no such break-through, which failure caused plaintiff’s injury. Answer: Between rooms 1 and 2, and 4 and 5.”
The plaintiff testified that in his conversation with the pit boss about break-throughs, he told the pit boss the breakthroughs should be made every forty feet. The state mine inspector was called as a witness for the plaintiff. He testified that break-throughs are made for ventilation, that it is customary for mine employees to use them as passageway’s, and that they should be made every forty feet. The defendant’s superintendent of mines and the defendant’s mine foreman testified that the law requires break-throughs every forty feet. There was no other evidence on the subject, the limitation of twenty-five feet inserted by the jury in finding 4 is without any support, and the defendant rested under no duty to provide break-throughs at intervals of less than forty feet.
The plaintiff testified that there was a break-through between rooms 4 and 5, and that he passed through it in going from room 4 to room 5. There was no evidence to the contrary, and finding 3 is without support.
There was no evidence of any special promise by the pit boss to make a break-through between rooms 1 and 2, and no evidence of any promise to make break-throughs anywhere at shorter intervals than forty feet, the distance which the plaintiff himself suggested. Therefore, the defendant was not negligent in failing to make a break-through between rooms 1 and 2, room 1 being turned in only twenty-five or thirty feet (finding 1).
The result is, there was no foundation for the general verdict. On the contrary, the plaintiff’s admissions and evidence, and the findings which were sustained by the evidence, required a judgment for the defendant.
The judgment of the district court is reversed, and the case is remanded. with direction to render judgment for thé defendant.
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The opinion of the court was delivered by
Porter, J.:
Plaintiff sued to recover the value of part of a stock of merchandise which, while in his possession as mortgagee, .defendant, as sheriff, levied upon and sold under an execution upon a judgment against the mortgagor. On the trial defendant prevailed, and plaintiff appeals.
The plaintiff is a retired railway engineer and for a number of years has been vice president of an organization- of engineers and firemen, his duties taking him away from home most of the time. For several years his business affairs have been managed by his son-in-law, D. B. Harrison, who is cashier of a bank at Downs. A. P. Cotton, another son-in-law, was in the mercantile business in the same town. On the 31st day of May, 1917, Cotton was indebted to the plaintiff for $500 which the plaintiff had loaned him in May, 1916, and also owed the bank on two promissory notes which had been indorsed to the plaintiff. On May 27,1917, Cotton was sued in a justice court on a small account which he owed to a wholesale company, and judgment was taken against him on May 29th. Mr. Dillon came home on the 21st of May, and Mr. Harrison called his attention to the fact that in order to protect him it was necessary to take a chattel mortgage on the stock of merchandise, and that he had procured one from Cotton with a note, due on demand, for the indebtedness, which amounted to about $1,700. The plaintiff testified that he did not know where the instrument was prepared, but that it was at the bank when he first saw it in the possession of Mr. Harrison; that while he had not instructed anyone to prepare it, he had a copy of it placed on record and at once took the original to the store, where hé made a demand of Cotton for the amount due, and when the demand was refused, he took possession of the stock. There is no conflict in the testimony showing a complete transfer of the possession of the stock to the plaintiff. On June 25th the sheriff levied an execution upon a portion of the stock, which was sold to satisfy the judgment in the justice court.
The defense to the present action was that the mortgage was fraudulent and made for the purpose of hindering and delaying creditors. In addition to the abstract of the evidence, we have examined carefully the entire transcript of the record, and we fail to find any evidence to sustain the charge of fraud. It was contended below and is argued here that the circumstances show that the mortgage was not taken in good faith. The principal circumstance upon which the defendant relies, however, is the relationship of the parties. In his brief it is repeatedly urged that plaintiff is the father-in-law of the judgment creditor, and also of the banker who assisted in the transaction, and at whose bank the plaintiff “transacted all his business.” It is said that after the judgment was obtained “the appellant, knowing of this judgment and of his (Cotton’s) indebtedness, together with his sons-in-law . . . concluded that something would have to be done in order to defeat this and other claims, and Mr. Harrison went to the train which came through the city of Downs in the morning and got Mr. Travers (the attorney for plaintiff) off the train and took-him to the bank, and afterwards and on the same day prepared the mortgage [under] which appellant claims to hold title to the goods. ' And on the same day appellant went to the store of his son-in-law, after the said note and mortgage was signed, which was made due on demand, and demanded possession of said stock of goods and declared said note to be due and turned the possession of said stock over to his son-in-law, A. P. Cotton, to proceed with running and managing said stock.” (Italics ours.) .
There are references to portions of the transcript in the foregoing excerpt, which have been examined, but which fail to disclose any basis in the testimony for the statement that the parties “concluded that something would have to be done in order to defeat” creditors, unless the mere fact of the relationship of the parties and that plaintiff, through his agent, procured the execution of the mortgage to secure his own claim, is evidence of an intent to defraud other creditors. The only other circumstance relied upon is that Cotton wrote the wholesale company as late as May 28th, and promised to see its attorney about its claim, and made statements excusing his failure to pay the debt and promises tending to defer action upon the part of the creditor. It is not claimed that the plaintiff had any knowledge of this correspondence. To render the transaction of the chattel mortgage fraudulent as to creditors it was necessary not only to show fraudulent purpose on the part of the debtor, but to offer some kind of evidence that the plaintiff participated in such fraudulent intent. If defendant’s contentions are sound, it would be necessary merely to show that the diligent creditor was a relative of the debtor and that the effect of the transaction was to give to the former a preference over general creditors. Such is not the law. The strongest statement of defendant’s position is thus set forth in his brief:
“The circumstances, it seems,' show fraud conclusively and the intent of fraud by Mr. Harrison stopping Mr. Travers on the train and having the note and mortgage prepared, taking possession without any existing indebtedness. And in order to show consideration for the mortgage undertook to show that part of the indebtedness was due the State Bank of Downs, of which the son-in-law of appellant was cashier and a part for insurance due the Harrison Brothers.”
The claim that there was no “existing indebtedness” when the mortgage was executed, is contrary to the undisputed evidence, which is that $500 of the money was paid to Cotton a year before, and the notes which had been indorsed to the plaintiff by the bank were executed, one of them in 1913 and the other in 1914. A debtor may in good faith prefer one creditor to another, and the diligent creditor is entitled to protection where he acts in good faith without intent to hinder and defraud the other creditors. The fact that the mortgage-was executed without the express direction or knowledge of the plaintiff, together with the relationship of the parties, is not sufficient on which to base a presumption of fraud. The business affairs of the plaintiff had been conducted and managed for years by Harrison, his son-in-law. It was not necessary that plaintiff should direct his agent to procure the mortgage. He ratified what the agent had done, immediately upon being informed of it. Mere relationship alone is not sufficient to show fraud, and in the absence of other circumstances which would justify the verdict and judgment, it follows that the judgment will be reversed and the cause remanded with directions to enter judgment for the plaintiff.
(Filed April 23, 1919.)
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The opinion of the court was delivered by
West, J.:
The defendants appeal from an order granting the plaintiff a new trial.
The plaintiff’s third amended petition alleged, in substance, that about noon one day, when her husband was more than a mile away at work, and the two youngest children were at school, ■ and she was sick with her invalid boy, who was the only person with her, the defendants maliciously, willfully, and forcibly, came upon the premises where she lived, and. maliciously, willfully, criminally, and forcibly battered down and broke open the door, entered the house, and removed therefrom all the household furniture and fixtures and carried them away. It was further alleged that she was sick; that she told the defendants that neither she nor her invalid boy was in condition to be forced from their home; that if they were forced out of the warm house the boy would, from his malady, become unconscious ; that in trying to prevent the defendants from entering the house one of the plaintiff’s fingers was bruised and mashed from being caught in a window which one of the defendants tried to raise in order to force his way into the house; that she and her sick boy were compelled to walk about a mile to where her husband was at work; and that in so doing she got her feet wet and was made sick and lame and suffered great physical and mental pain and was confined to her bed for about ten days. She asked judgment for $5,000.
The answer alleged consent by the husband for the defendants to vacate the house for another tenant, which they did with the assistance and acquiescence of plaintiff, and also alleged that they offered tq lend her a horse and buggy to go to the house procured for her, or wherever she desired, but that she chose to go afoot to where her husband was. There was also a general denial.
The court instructed that if the jury found that the plaintiff suffered mental pain, unaccompanied by any bodily injury, and that she suffered the wrong complained of, and. that such wrong was inflicted upon her by the defendants willfully and wantonly, and that it was committed by the defendants with malice and an intention to cause her mental pain, she was entitled to recover damages for injuries sustained by her; but if they found that she suffered mental pain without bodily injury, and that the wrong was not willful and wanton, and was not committed with malice and intent to cause mental distress,, then she could not recover.
Special findings were returned by the jury to the effect that the plaintiff suffered no physical injury; that the defendants did not compel her to go away on foot, but offered to take her in a buggy; that the weather was not such as to cause her any bodily injury by reason of her walk; that the defendants did not'act towards herewith a wicked and malicious purpose, and did not intend to cause her any mental distress or injure her feelings; and that it was not their purpose to cause her any mental anguish by the forcible moving of the goods,,but that such moving did cause her mental anguish, and they allowed her $50 exemplary damages.
The plaintiff filed a motion for a new trial, and the defendants moved for judgment on the findings. The latter motion was overruled, and the former was granted.
Complaints are made of the overruling of the demurrer to the petition and to the evidence thereunder, but they are of no substantial merit.
It is urged that the failure to make special allegation of damages was fatal; but telling the story of the alleged wrong and asking judgment were sufficient to authorize the trial to proceed. (1 Bates’ Pleading, Practice, Parties and Forms, p. 275, and cases cited.)
The overruling of the motion for judgment on the findings and the granting of a new trial are the two assignments requiring notice. There is nothing to indicate the grounds on which the rulings were made, but the defendants say in their brief the only reason for granting a new trial was that the verdict and the findings were contrary to the 'evidence. The verdict and findings taken together acquit the defendants of all blame, but punish them for hurting the plaintiff’s feelings by moving her goods. It has been decided that no one has the right to maintain an action for the mere purpose of inflicting punishment upon a wrongdoer, and if a party has no case independent of his claim for punitive damages, he has none at all. “If no real or substantial damages are suffered, no exemplary damages can be recovered.” (Sondegard v. Martin, 83 Kan. 275, 277, 111 Pac. 442.) It is therefore quite plain that the defendants were entitled to judgment on the findings, unless they were not justified by the evidence; but by setting them aside and granting a new trial, the court below indicated dissatisfaction and refusal to approve.
Under these circumstances, a discretion was exercised with which we cannot interfere. (Rowell v. Gas Co., 81 Kan. 392, 105 Pac. 691; Bourquin v. Railway Co., 88 Kan. 183, 127 Pac. 770; White v. Railway Co., 91 Kan. 526, 138 Pac. 589; Ingalls v. Smith, 93 Kan. 814, 145 Pac. 846; Ball v. Collins, 100 Kan. 448, 165 Pac. 273.) And as there is now no judgment against the defendants, they cannot complain. (Smart v. Mayer, 103 Kan. 366, 175 Pac. 159.)
The ruling is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiffs sued for specific performance of a real-estate contract or for the return of $450 which they had paid thereon. The answer alleged a forfeiture. The court refused specific performance, but rendered judgment for $450, which was declared a lien upon the property involved. The defendants appeal.
On March 30, 1916, the parties signed an option agreement to the effect that in consideration of $400, cash, the plaintiffs were to have, until the 21st day of May, the option to purchase the property for $3,000, with the right to extend such option from month to month by the payment of $25 on or before the 21st day of May, 1916, and on or before the 21st day of each succeeding month thereafter until such amount had been paid in full. If the option were kept in force the plaintiffs were to have credit for the payments made, and they were to have possession on June 1, 1916,'and occupy the premises so long as the option was kept in force and so long as they kent the property insured, as required, and paid the taxes, special asessments and interest as set forth. Time was made essential and on default of the plaintiffs the money-paid was to be forfeited and the defendants were to have the right to reenter.
With the contract was a very vague memorandum concerning a house to be built by the defendants,-and it appears that when the action was begun the following fall the house was still far from being completed. The plaintiffs demanded numerous changes in the plans, which were made from time to time, and not being in possession they discontinued their payments.
The defendants assert that on receipt of their money they were ready to complete the house.
The court found that the- contract was so changed that specific performance could not be decreed; that the defendants had added to the price on account of the changes and had also mortgaged the property to get money with which to build. After vainly trying to get the defendants to give some definite statement or make some reliable figures, the court seems to have given it up as a bad job, and finally found that all parties had waived the conditions of the contract, and that the defendants had waived their right to a forfeiture, and the plaintiffs were entitled to a judgment for the money paid by them thereon, making it a lien on the property. The costs were divided between the parties.
An extended brief has been filed by the defendants in support of their numerous assignments of error. About all that plainly appears from the 'record is, that after months of the loosest kind of dealings the plaintiffs were out $450, and the defendants have a partially completed house into which this •money has gone. Neither party seems to have complied with the provisions of the contract and, instead of getting together, they appear to have been getting farther apart. No material trial error appears.
The plaintiffs have nothing to.show for their $450, but their experience and an equitable interest in the real estate. On the other hand, the defendánts, by the payment of the judgment, can have their title quieted to a piece of property which may be readily gotten in shape for a fair sale or rental income. Very likely this is as fair a conclusion as could be reached, and we feel that there is no reason for disturbing it.
The judgment is affirmed.
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Opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment rendered against him on a promissory note given to M. G. Slocum, an itinerant doctor who advertised his business by a dog, pony, and medicine show. The note was given for medical services which Slocum promised to render to the defendant’s wife. Slocum transferred the note to the plaintiff. The defense was that the note had been obtained by fraud and was without consideration, and that the plaintiff had purchased the note in bad faith with knowledge of the fraud.
1. The defendant’s first assignment of error is that the court erred in refusing to permit the defendant to introduce in evidence certain chattel mortgages on Slocum’s show outfit to secure the payment of certain debts then owing by Slocum to the plaintiff, and to secure any other indebtedness that might be incurred to the bank by Slocum. There were four of these mortgages. They were signed by Slocum and by his wife, who claimed to be the owner of the property. The chattel mortgages should have been received in evidehce to establish links in a chain of circumstances which would tend to show that Slocum had committed a fraud on the defendant, and that the bank had knowledge of that fraud and was not a holder of the note in good faith.
It may be argued by the plaintiff that the chattel mortgages were not produced on the hearing of the motion for a new trial. When the cour,t refused to admit the chattel mortgages in evidence, they must have been examined, and the conclusion must have been reached that they were inadmissible. The documents were before the court, and the necessity for their production on the hearing of the motion for a new trial comes within the rule declared in Treiber v. McCormack, 90 Kan. 675, 136 Pac. 268, where this court said:
“Section 307 of the civil code, providing that where the ground of a motion for a new trial is the exclusion of evidence, such evidence shall be produced at the hearing, is held not to apply where it appears from the testimony of the witnesses themselves given at the trial what the evidence would have been had it not been excluded.” (syl. ¶ 2.)
2. The defendant’s second assignment of error is that the ■court erred in rejecting the depositions of four doctors of Wichita. The testimony disclosed in those depositions concerned the' honesty and integrity of Slocum, and his reputation and ability as a physician. That evidence tended to establish another link in a chain of circumstances which might prove that Slocum was guilty of fraud in procuring the note, and should have been admitted for that purpose. What has been said concerning the necessity for producing the chattel mortgages on the hearing of the motion for a new trial applies to the depositions.
3. The trial court placed the burden of proof on the defendant, and, after his evidence had been introduced, sustained a demurrer thereto, and instructed the jury to return a verdict in favor of the plaintiff. Such a verdict was returned, and judgment was accordingly rendered for the amount of the note and interest. On the day on which the note was given, Slocum told the defendant that his wife had catarrh, and that a cancer was forming in her stomach; that, if the defendant did not do something for her within thirty days, she would be past doing anything with at all; that, if she was not treated in the right way, she would die within thirty days; and that she ought to go to a hospital. Slocum said that he had an institute and hospital at Wichita, but that he could treat the defendant’s wife at her home. He asked the defendant if he was little enough to let his wife lay and die for $120. He promised the defendant to keep the note for six months and told him that his wife would be well; that the medicine he would give would cure her; and that he could cure her in sixty days. Slocum, immediately after obtaining the note, tried to sell it in Neodesha, and soon thereafter transferred it to the plaintiff. Slocum had neither institute nor hospital in Wichita. The •evidence of what occurred when the note was given, together with the chattel mortgages and the testimony contained in the depositions, if the chattel mortgages and the depositions had been admitted, would have been sufficient to compel the trial court to submit the cause to the jury for the purpose of determining whether Slocum had been guilty of fraud in obtaining the note, and a finding of the existence of fraud would have been sufficient to place on the plaintiff the burden of showing that it acquired the note in due course. (Gen. Stat. 1915, § 6586; Ireland v. Shore, 91 Kan. 326, 137 Pac. 926.)
The judgment is reversed, and a new trial is directed.
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment recovered by the plaintiff for injuries caused by burns received in attempting to start a fire in the depot where the plaintiff was employed. The action was under the workmen’s compensation act.
At the station of Ray, in Pawnee county, the plaintiff began work as relief agent, and in trying to start a fire with what he supposed yas signal oil, but which was afterwards found to be kerosene, he was burned. The answer alleged that, if the plaintiff was injured, it was not by reason of any accident arising out of and in the course of his employment, but was due to the explosion of a can of kerosene which he himself poured upon the live coals, and that he was injured because of the new and added peril caused thereby, to which he carelessly exposed himself, and that the act was outside of his employment. It was further alleged that the injury occurred while the plaintiff was employed by the defendant in interstate commerce, and that his remedy, if any, was under the federal employers’ liability act.
The court instructed the jury that the injury was an accident that occurred in the course of plaintiff’s employment, but that it remained for them to determine whether it arose out of the employment, which they were told meant that the accident was in some sense due to the employment and resulted from an accident or risk reasonably incident to that employment, and a risk which might have been contemplated by a reasonable person entering the employment, as incidental to it; that if the injury was due to an act of the plaintiff’s'which added a new or additional risk to his employment he could not recover. The jury were also instructed that the question of whether the plaintiff and defendant were engaged in interstate commerce, as a defense, was not before them for their consideration.
They answered special questions to the effect that the plaintiff was not injured by pouring kerosene on the fire, or on live coals; that the explosion was caused by fire from a lighted match coming in contact with explosive matter; that the liquid in the can, which the plaintiff poured in the stove, was kerosene; that a former agent furnished the kerosene; that the defendant had a rule forbidding its use in starting fires in stations, which rule was in the statipn at Ray, but that the plaintiff did not know of its existence before his injury; and that the defendant checked to the plaintiff as agent the cans in the depot, the contents of one of which was afterwards used by him in attempting to light the fire.
The defendant argues that as Ray was a station on an interstate line of railroad, where the duty of the agent was to sell ticket^ to points in and out of the state and to, handle state and interstate freight, the agent was engaged in ■ interstate commerce; that his injury did not arise out of and in the course of his employment, but that it arose from the new and added peril caused by the method he himself chose to do his work; that when the defendant had provided kerosene for lights and had made a rule prohibiting its use in starting fires, and the agent, nevertheless, used it for that purpose, he thereby added a new peril to his work, which cannot be said to have arisen out of his employment.
In order for the plaintiff to come under the employers’ liability act it must appear that the injury was incurred while he himself was employed in interstate commerce; and that his work at the time had a real and substantial connection with interstate commerce. (Barker v. Railway Co., 88 Kan. 767, 129 Pac. 1151; Thornbro v. Railway Co., 91 Kan. 684, 139 Pac. 410; Thornbro v. Railway Co., 92 Kan. 681, 142 Pac. 250; Bumstead v. Railway Co., 99 Kan. 589, 162 Pac. 347, and cases cited.)
It has twice been said that the test is:
“Was the employee at the time of the injury engaged in interstate transportation or in work so closely related to it as to be'practically a part of it?” (Shanks v. Del. Lack. & West. R. R., 239 U. S. 556; Chi. Burlington & Q. R. R. v. Harrington, 241 U. S. 177.)
The plaintiff was checked in on November 16, 1916. The next morning he started to build a fire, and the accident occurred. He testified that he did not know whether he could sell a ticket to a point outside the state or not; that he did not know that he had such tickets to be filled out; and that if a person had come to buy an interstate ticket, he would have had to get information. The mere fact that the station was on an interstate road did not render plaintiff at the time a person engaged in interstate commerce. He had been working the evening before on some statements of state and interstate business comparative to the business of the year before, but the following morning, when starting the fire, he was not thus engaged. Erie R. R. Co. v. Winfield, 244 U. S. 170, is cited as authority for holding the plaintiff to have been engaged in interstate commerce. In that case Justice Vandevanter, speaking for the court, said:
“In leaving the carrier’s yard at the close of his day’s work the deceased was but discharging a duty of his employment. . . . Like his trip through the yard to his engine in the morning, it was a necessary incident of his day’s work and partook of the character of that work as a whole, for it was no more an incident of one part than of another. His day’s work was in both interstafe and intrastate commerce, and so when he was leaving the yard at the time of the injury his employment was in both.” (p. 173.)
There the employee had actually been doing state and interstate work, while here the only work the plaintiff had done on the day in question was state work. True, his employment or the scope of duty which he might be called upon to do included both, but he had not, on the day in question, done any interstate work, and he was doing none when injured, nor was he going to or returning from duties of both kinds.
In Chi. Burlington & Q. R. R. v. Harrington, 241 U. S. 177, the employee was removing coal from storage tracks to coal chutes, which coal had been previously brought from another state and had been on hand a week or more. It was said not to be important whether Harrington had been or contemplated being engaged in interstate work.. He was not so engaged at the time of the injury, and it was held that he could not recover. This decision was rendered in 1916. The Winfield case was decided in 1917.
Southern Ry. Co. v. Pitchford, 253 Fed. 736, was decided by the fourth circuit court of appeals in 1918. Pitchford was at work in the defendant’s yards, to which came cars, both state and interstate, which were there kept until needed. His duty was to clean and ice the cars and keep the yards free from paper and other refuse. Every morning a delivery of’ several thousand pounds of ice was made at the yards, whereupon the employee, with others, would load a push car and from it take the ice and put in the cars as needed. On the day of the injury he had finished cleaning a car and had begun cleaning the yard when he heard a call that the ice had come. He w'ent to the push car to aid in putting it on the track; and while waiting by the belt-line track for other employees to come, he turned to look at an engine approaching oh the main track, and was struck by a switch engine running rapidly on the belt-line track. The cars which he would in due course have iced first were interstate cars. It was held that at the time of the injury he was not engaged in interstate commerce or in work so closely connected therewith as to be practically a part of it. The case was said to be governed by the same rule as the Harrington case. This is the latest federal decision we have found,, and considering the analogy of the case before us, and the dissimilarity of the Winfield case, it is held that the plaintiff was not within the federál employers’ liability act.
The most natural thing for a station agent to do is to make a fire in the stove when the weather is cold, and, notwithstanding the dangers and prohibitions, everybody knows that people will start fires with coal oil. It appeared in this case that the agents in that locality generally used kerosene in starting fires. The plaintiff testified:
“It was the custom of the agents to do that. All that I have ever known. I have known a majority of them along that special division.”
The very fact that the defendant had a rule against using kerosene to start fires indicates a knowledge that such warning was needed, which is another way of saying that it indicated consciousness of the agents’ custom to use coal oil for kindling.
The trial court correctly instructed that the injury occurred in the course of the employment, and the jury were warranted in finding that it arose out of such employment.
In Stewart v. Kansas City, 102 Kan. 307, 171 Pac. 913, an employee was injured by having mortar playfully or wantonly thrown into his eye by a fellow workman, and this was held to be an injury arising out of and in-the course of his employment. (See, also, White v. Stock Yards Co., ante, p. 90.)
In Workman’s Compensation Acts, a Corpus Juris Treatise, by Donald J. Kiser, the rule is thus stated:
“A peril which -arises from the negligent or reckless manner in which an employee does the work which he is employed to do may, in many cases, he held to be a risk incidental to the employment; and the same is true where he performs' an authorized act in a forbidden manner, a distinction being taken in this regard from cases in which the act is altogether outside of, and unconnected with, the employment.” (p. 75.)
In support of the text that a new and added peril to which the employee has needlessly exposed himself is not within the act, the author cites the case of a messenger boy jumping on a moving street car; of a miner riding in an empty tub contrary to orders; and of a workman walking across a railway contrary to otders, instead of crossing by bridge.
The annotated case of Lancashire & Yorkshire Ry. v. Highley, 15 N. C. C. A. 210, decided by Lords Finlay, Haldane, Dunedin, Atkinson and Sumner in March, -1917, involved the question whether the death of a workman caused by attempting to go between the trucks of a “goods train” arose out of his employment. It was held that it did not so arise. Thé county court judge held the employer not liable. The court of appeal reversed this ruling. When the case reached the court of last resort and was argued, “Their Lordships took time to consider their judgment.”
Viscount Haldane in his opinion said that for the injury to be one arising out of and in the course of the employment it must be shown that two conditions had been satisfied:
“The injury by accident must have occurred as something which would not have occurred but for the circumstance of the employment and as having been something due to it — the employment — and it must further have occurred during its currency.” (p. 244.)
Lord Sumner gave as one test:
“Was it part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury? If yea, the accident arose out of his employment. If nay, it did not, because, what it was not part of the employment to hazard, to suffer, or to do, cannot well be the cause of an accident arising out of the employment.” (p. 287.)
The case was said to be—
“A case of an accident arising not out of, but outside of the employment, since at the time of his death the workmbn was in no sense doing that which was p'art of or fell within his employment, whether he was or was not acting with care therein, but was for his own purpose— namely, the convenience of the moment — thoughtlessly pursuing a course which fell outside of his employment.” (p. 292.)
It is quite clear from all the five opinions that the case was not regarded or treated as one of a merely negligent manner of doing some act clearly within the line of employment, but as one involving a voluntary and needless choice of a dangerous route of travel when safe ones were available, thereby momentarily taking the workman outside of the line of his employment.
Here the agent was rightfully and properly attempting to start a fire, but carelessly used the wrong kind of kindling. This was not a conscious, voluntary choice between a safe and a dangerous way to do his duty — but a careless use of a combustible, which careless use endangered his life and seriously injured him, but just such a careless use as was frequently made of kerosene by the station agents of the defendant and such a use as might be likely to result from the employment.
While the facts place the case before us very near the border line, there is sufficient in the record to justify the conclusions reached by the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Parker, C. J.:
This appeal springs from a petition for the allowance of a demand filed in the probate court of Rush County against the estate of Howard Morse, deceased. The petition was filed by the Springfield Monarch Insurance Company, a corporation, claiming to be subrogated to the rights of the owner of a dwelling, located in the City of La Crosse, on which it had paid fire damage to the owner. The intestate decedent was occupying the dwelling as a tenant at the time of the damage by fire. The claim was properly transferred to the district court for trial where that tribunal, after a hearing, sustained a demurrer to the claimant’s evidence, rendered judgment against it for costs, and ultimately overruled its motion for a new trial. Thereupon claimant perfected the instant appeal.
The amended petition, as filed in the district court, is short and fully reflects the facts on which claimant relies for recovery. Omitting formal averments of no consequence pertinent portions of that pleading read:
“That on or about the 8th day of November, 1961, the petitioner had in force a policy of insurance for fire . . . issued to Mrs. Elma Jecha of Timken, Kansas, which policy insured a dwelling . . ., in the . . ., This dwelling at the time above-mentioned at about 8:00 o’clock a. m., was occupied by Howard Morse, deceased, as a tenant and was at the time in his exclusive possession, care, custody and control; and more particularly, he was in the exclusive possession and control of the interior and the fixtures therein where the fire started. That the fire and resulting damage occurred solely and proximately through the negligence and carelessness of the decendent, Howard Morse, who lost his life as a result of the said fire.
“That as a result of said fire, the petitioner was required to pay its policy holder . . . ($3,000.00) . . .”
“That by reason of the said petitioner’s obligation to pay to Elma Jecha . . . ($3,000.00) under the provisions of its policy of insurance in force at the time the damage was sustained, it became subrogated to the rights, claims and interest of its insured, . . .
“That by reason of the contract between the petitioner’s insured and the decedent, placing in the decedent the exclusive control, the decedent undertook to use due care and to take due care of said property while in his possession and to redeliver file same to the petitioner’s insured upon the termination of the contract in the condition that said property was in at the time of placing it in his care.
“That said fire was solely and proximately caused by the carelessness and negligence of the said Howard Morse, deceased, and by reason thereof, caused damage to said property belonging to the petitioner’s insured in the sum and amount of. . . ($3,000.00) . . . That by reason of said fire, this peti tioner under its policy of insurance issued to Elma Jecha was required to and did expend the sum of ... ($3,000.00).”
The respondent administrator s answer to the foregoing amended petition was in the form of a general denial.
The evidence introduced by the claimant during the trial in district court, after joinder of issues, came from four witnesses and will now be noted without regard to the order in which they testified.
One witness, a local contractor, stated in substance that he had made an estimate of the fire loss and that it exceeded the insurance coverage. Another witness, an insurance adjuster, testified to the effect he had prepared the proof of loss and made payment of the loss to the insured under the terms of the policy after obtaining a subrogation receipt from her for the purpose of authorizing the company to proceed against the responsible party.
The insured testified in substance that she was the owner of the property, that it was rented to Howard Morse for $40.00 per month at the time it was destroyed by fire, that the company paid the full amount of the insurance policy and that a subrogation receipt was issued. Certain questions propounded to her and answers made thereto during the course of her examination read:
“Direct Examination.
“Q. When you rented this property to Mr. Morse you expected to get the property back in good condition except for normal wear and tear, is that correct?
“A. That thought didn’t enter my mind.
“Q. Normally, when you rent property out, that is what you expect, is that not correct?
“A. I suppose, yes but I don’t know. It never entered my mind. I wasn’t thinking on terms of that when I rented it.
“Q. Yes, Once more — I may have asked this, but I’ll ask it again — when you rented this property out to Mr. Morse you expected to get the property back in the same condition except for normal wear and tear, didn’t you?
“A. Well, if I had thought about it I suppose, yes, but as I say, the thought never entered my mind when he rented the property, nor, to anyone else we rented to. We expected he’d take care of it, sure, but, that’s why we have insurance, too.”
The only evidence as to the fire or its cause came from the lips of the fire chief, A. W. Carbaugh, who was in charge of a volunteer fire brigade. His testimony will be summarized in part and quoted in part.
On the evening of November 8,1961, he was called to the dwelling in question. The fire was concentrated in the southwest corner of the living room. He found the deceased lying dead on his back in the northeast corner of the bedroom. His hand, face and chest were burned. A television, davenport and the corner of the living room were badly burned.
The testimony of this witness continued in the form of questions and answers which read:
“Q. Mr. Carbaugh, taking into consideration your experience and training, do you have an opinion as to where the fire started?
“A. I would say it started on the lounge, from the looks of the bums and everything.
“Q. And again taking into consideration your knowledge and experience in fire as fire chief, do you have an opinion as to how this fire started?
“A. It would have to be a guess, but from the looks of things it would look as though possibly he had a cigarette in his hand and set the lounge on fire.
“Q. Now, Mr. Carbaugh, in your occupation or or position as chief, in your training and experience, do you have an opinion as to whether fires of this type normally occur in sofas without some human agency being involved?
“A. We have had several something like this and most generally it’s a cigarette and that’s all.
“Q. Your answer would be, then, that there usually is a human agency involved?
“A. That would be right, a cigarette, or, something to that effect.”
“Cros s-Examination
“Q. Mr. Carbaugh, you stated you are fire chief. Is this the volunteer fire department?
“A. It is.
“Q. How much time per week would you spend on fire chief work?
“Mr. Rohleder: Object as incompetent, irrelevant and immaterial.
“The Court: Overruled.
“A. Oh, we try to have a meeting about once a month, at least, and run fires whenever there is one, and see that the fire truck is kept up in shape and so forth. I couldn’t give you any estimate on time — I couldn’t do that.
“Q. Did you make a specific investigation in the case, or what?
“A. The general type of investigation. After the fire was over we looked it over to figure out, the best way we could, to see what happened.
“Q. In your investigation of the premises, after you put out the fire, did you discover any other possible causes of the fire?
“A. Oh, there could of been other things as far as that goes; there was a radio there and a television, and I remember an electric clock.
“Q. These are possibilities?
“A. Yes, they’re possibilities.”
This is a case where the issues on appellate review of the trial court’s order and judgment sustaining the demurrer to the evidence can be simplified by this court directing attention at the outset of its opinion to certain material matters about which there appears to be no real dispute between counsel for the contending parties. Such matters, some of them fortified by the court’s own citation of legal authorities supporting tihem, may be stated thus:
(1) On the date of the involved fire the decedent, Morse, was a tenant of appellant’s insured and had sole and exclusive use of the property in question.
(2) The record discloses no evidence as to the terms of the lease between the insured owner and the decedent.
(3) Under the conditions and circumstances disclosed in Nos. (1) and (2), supra, the universal rule in this jurisdiction, (see Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, Syl. ¶ 2, 237 P. 2d 218) and elsewhere (see 51 C. J. S., Landlord and Tenant, p. 1156 §408; 32 Am. Jur., Landlord and Tenant, p. 669 §783), is that independently of express convenant, the law imposes on a tenant the obligation to return the premises to the landlord at the end of the term unimpaired by the negligence of the tenant.
(4) Negligence is never presumed but must be proved and the burden of establishing negligence is upon the one asserting its existence (see cases cited in Hatcher’s Kansas Digest [Rev. Ed.], Negligence, § 56, and West’s Kansas Digest, Negligence, § 121 [1]).
(5) The right of appellant to maintain the action for purposes of enforcing subrogation rights, if any exist under the trems of the insurance policy and the evidence of record, is not contested (see Ellis Canning Co. v. International Harvester Co., 174 Kan. 357, Syl. ¶ 1, 255 P. 2d 658).
From what has been previously stated it appears the all decisive issue here involved is whether the appellant’s evidence was sufficient to establish negligence on the part of appellee’s intestate decedent in causing the fire which destroyed the dwelling. Having set forth the evidence at length and carefully reviewed it in the light of our established rule (see, e. g., Blankenship v. Fraker, 173 Kan. 438, 439, 249 P. 2d 683; and Worrell v. West, 179 Kan. 467, 471, 296 P. 2d 1092, and decisions there cited), that in ruling on a demurrer to the evidence an appellate court does not weigh or compare contradictory testimony but must accept all evidence as true, give it the benefit of all inferences that may be properly drawn therefrom and consider only such portions thereof as are favorable to the party adducing it, we see no sound reason for laboring that question. It suffices to say that having reviewed appellant’s evidence in the manner required by the rule we are convinced that the most that can be said for such evidence is that it rests on mere conjecture and speculation and is wholly devoid of any circumstantial evidence which might lead to a contrary conclusion. Witness the testimony of the only individual who testified on behalf of appellant as to the cause of the fire which, when given the benefit of all favorable inferences, is specifically and directly to the point that his opinion as to how the fire started “would have to be a guess.” We know of, and are cited to, no decisions recognizing that a pure guess, absent other corroborating circumstances, is sufficient to sustain a landlord’s burden of establishing negligence on the part of a tenant in the starting of a fire which destroyed a leased dwelling — and we refuse to so hold.
In an obvious attempt to forestall the conclusion just announced, appellant directs our attention to Strange v. Price Auto & Service Co., 169 Kan. 98, 218 P. 2d 208, which deals with the law of bailments; suggests the relationship existing between a landlord and tenant is not unlike that which exists between a bailor and bailee; asserts the law of bailments should be applied to a landlord-tenant or lessor-lessee relationship, and insists that the law as laid down in Syl. ¶ 2 of that case is applicable in the case at bar. Our decisions on this point do not support appellant’s position. See Wehkamp v. City of Garden City, 187 Kan. 310, 356 P. 2d 826, a landlord and tenant case, which holds that the facts there involved are distinguishable from those involved in the Strange case because it was a bailment case. See, also, Kimberlin v. Hicks, 150 Kan. 449, 94 P. 2d 335, where it is said:
“Usually the owner of an estate for years is the tenant of a landlord who owns the reversion and to whom a stipulated rent is payable. In such case the protection accorded to the landlord for injuries to the inheritance by the tenant is governed by the law of landlord and tenant. . . (p. 455.)
Finally appellant contends its evidence is sufficient to make the doctrine of res ipsa loquitur applicable. We do not agree. Its evidence, as heretofore quoted, wholly failed to do so for the basic reason, inherent in the application of such doctrine, that no instrumentality or thing was proved to have been employed by the deceased, or any one, as the cause of the fire. That courts are reluctant to infer negligence from the starting of fires and that the doctrine here sought to be applied requires a clear showing by evidence of the thing or instrumentality involved is fully demonstrated in Wehkamp v. City of Garden City, supra, to which we adhere. In that case, quoting extensively from Emigh v. Andrews, 164 Kan. 732, 191 P. 2d 901, we stated and held:
“In Emigh v. Andrews, ... it was held that the doctrine of res ipsa loquitur is a rule of evidence and not of substantive law; that a mere presumption is not a tiling that ‘speaks for itself.’ and that the established rule is that liability cannot result from an inference upon an inference or from presumption upon presumption. In the course of the opinion, speaking of the doctrine, it was said:
“ ‘. . . And that means the thing or instrumentality involved speaks for itself. It clearly does not mean the accident speaks for itself. It means that when the initial fact, namely what thing or instrumentality caused the accident has been shown then, and not before, an inference arises that the injury or damage occurred by reason of the negligence of the party who had it under his exclusive control. The inference of negligence arising from the initially established fact compels the defendant, in order to relieve himself of liability, to move forward with his proof to rebut the infererice of negligence. It therefore quite properly has been said the doctrine of res ipsa loquitur is a rule of evidence and not of substantive law,’ (p. 734.)
“It was further said:
“ ‘Apart from statute it appears courts are reluctant in drawing an inference of negligence from the starting of fires for the reason they are frequent occurrences and in many cases result without negligence on the part of anyone. (Citing.) . . . These cases are not essential to a. decision in this case and we cite them only for the purpose of indicating some of the dangers which might exist in drawing an inference of negligence prior to the establishment of the cause of the fire. In other words, according to these authorities, it would appear the rule prohibiting recovery by basing an inference on another inference or presumption has peculiar force in the case, of fire.’ (p. 736.) Emphasis supplied.)
“Measured by the foregoing rules relating to the application of the doctrine of res ipsa loquitur — and particularly with respect to fires — we have no difficulty in concluding that plaintiff’s evidence fell far short of making out a case sufficient to go to the jury. All of the evidence — as abstracted — has been set out. Nowhere do we find any evidence of ‘attendant circumstances’ from which it reasonably may be inferred that the loss occurred only because of negligence on the part of defendant city or its employees. In fact, the most that can be said of the evidence is that it merely establishes that on the night in question — fire of undetermined origin — destroyed' the hangar and the airplane which was stored therein. The cause of the fire is left entirely to conjecture — which, under the authorities — is insufficient to bring the case under res ipsa loquitur.” (pp. 315, 316.)
What has been heretofore stated and held compels a conclusion the trial court’s action in sustaining appellee’s demurrer to the appellant’s evidence was proper and must be upheld. Appellant’s claims of error in the overruling of its motion for a new trial are based on the same grounds as those relied on for reversal of ruling on the demurrer, hence such claims require no further consideration or discussion.
The judgment is affirmed.
Fontron, J., not participating.
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The opinion of the court was delivered by
Hatcher, C.:
These appeals are from judgments of the district court on the review of numerous orders of the State Corporation Commission establishing allowables for the Kansas-Hugoton Natural Gas Field. The review proceedings challenged the validity of monthly allowable orders and related orders pertaining to the gas field. The many appeals filed (thirty-nine) as Cases 41,515 and 41,516 are from identical judgments rendered in separate actions which were tried together on a single record and involve the orders from May, 1956, through September, 1958. Cases 41,555 and 41,556 are appeals (thirty) from similar judgments involving the Commission’s six-months allowable order for the period from October, 1958, through March, 1959, and the monthly allowable order for October, 1958, through January, 1959.
The lower court “reversed and set aside” all Gf the orders in part. Appeals were then taken to this court.
Before the above mentioned cases reached this court for determination, additional appeals had been filed challenging judgments of district courts in two separate forums which had reviewed the same orders of the Commission fixing the six-months allowables for the period covering October 1, 1959, through March 31, 1960, and also the monthly allowable orders covering each month for the same period. Although these appeals will be disposed of in a separate opinion, they are mentioned here because the general facts are applicable to all.
It will be noted that the various parties filed separate appeals, separate abstracts, and separate briefs. Fifty-two separate printed documents consisting of abstracts and briefs have been presented to this court, all covering substantially the same facts and questions of law.
The district court, which disapproved the orders of the Commission, refused to make findings of fact and conclusions of law. In an attempt to have the issues pinpointed, and to develop some semblance of order from the voluminous and chaotic record, this court appointed Mr. Harry Colmery, a member of the Bar of this state, to make findings of fact and conclusions of law on what he thought to be the issues involved in the numerous appeals and report thereon. The Commissioner has done so in a most efficient and commendable manner. Although the Commissioner s findings and conclusions can be advisory only, they have served the very useful purpose of forcing the parties to limit their controversy to clear-cut issues. The findings and conclusions of the Commissioner are challenged in some respects. Some errors occurred because of ambiguities and confusion in the record. The report of the Commissioner has resulted in clarification of such matters through supplemental briefs.
The Hugoton Gas Field was discovered near Hugoton, Kansas, in 1922, but it was not until about 1929 that its possibilities for domestic and industrial purposes had been fully realized. It is said to be the largest known reservoir of natural gas in the world, the gas being found at a depth of about 2,600 to 2,900 feet in porous limestone and dolomite formations about 50 feet thick. The thickness of the gas producing horizons varies considerably. Such horizons are not uniform as to their porosity or permeability. The field, as presently developed, is approximately 160 miles long and varies from 40 to 72 miles in width. It covers portions of the nine counties in the southwest corner of Kansas, extends across the entire width of the Oklahoma Panhandle, and into portions of several counties of northern Texas. The largest portion, about two-thirds, of the field is located in Kansas. This portion is commonly known as “Kansas-Hugoton.” The portion in Oklahoma is called “Guymon-Hugoton” and that part in Texas “Texas-Hugoton.”
The sole purchasers of gas produced in the Kansas Hugoton Field, as stated by the Commission, are Cities Service Gas Company, Colorado Interstate Gas Company, Hugoton Production Company, Kansas-Colorado Utilities, Inc., Kansas-Nebraska Natural Gas Company, Inc., Northern Natural Gas Company, Panhandle Eastern Pipeline Company, Quinqué Oil and Gas Producing Company, United Carbon Company, and Shallow Water Refining Company.
When the basic order for the field was promulgated in April, 1944, there were only 331 Kansas wells. When these proceedings were initiated in 1956 there were 3,555 Kansas wells producing from 2,262,748 acres. There are relatively few remaining undrilled locations.
Most of the gas from the Kansas-Hugoton Field is transported through large pipelines to points far removed from Kansas. A small portion is consumed in the Wichita, Topeka, and Kansas City areas. The rest is transported and consumed in Michigan, Minnesota, Ohio, Illinois, Indiana, Missouri, Colorado, and Nebraska. With one or two exceptions the gas produced from the Oklahoma and Texas portions of the field is similarly transported through the same large pipeline systems for the same or similar uses.
The integrated pipeline sytems which transport gas from the Kansas-Hugoton Field are also connected with other gas fields. Kansas gas is therein commingled with gas from various other fields, including the Guymon-Hugoton.
In 1956, five major pipelines, Cities Service Gas Company (Cities Service), Northern Natural Gas Company (Northern Natural), Panhandle Eastern Pipe Line Company (Panhandle), Kansas-Nebraska Natural Gas Company (Kansas-Nebraska), and Colorado Interstate Gas Company (Colorado Interstate), had acquired the exclusive right to purchase the gas produced from 90% of the Kansas-Hugoton wells. (These five pipeline companies, which are involved in this controversy, will hereinafter be identified as indicated in the parentheses.) Two companies, Cities Service and Northern Natural, controlled through purchase contracts approximately 56% of the field’s deliverability.
Except for a very limited phase of Panhandle and Kansas-Nebraska’s operations, these pipelines are not producers. They do not own the land, leases, or wells from which the gas is produced.
In 1935, the Kansas Legislature enacted a statute entitled “Production and Conservation of Natural Gas” (Laws of 1935, Ch. 213), which now appears, with some amendments, as G. S. 1949, 55-701, et seq.
G. S. 1949, 55-701, provides:
“That the production of natural gas in the state of Kansas in such manner and under such conditions and for such purposes as to constitute waste, is hereby prohibited.”
It will be noted that the first and main emphasis is placed on the prohibition against waste. The term waste is defined by G. S. 1949, 55-702.
G. S. 1949, 55-703, provides the conditions under which the Commission shall talce jurisdiction over production in a gas field by the following language:
“That whenever the available production of natural gas from any common source of supply is in excess of the market demands for such gas from such common source of supply, or whenever the market demands for natural gas from any common source of supply can be fulfilled only by the production of natural gas therefrom under conditions constituting waste as herein defined, or whenever the commission finds and determines that the orderly development of, and production of natural gas from, any common source of supply requires the exercise of its jurisdiction. . .
The section further provides for ratable taking:
“. . . The commission shall so regulate the taking of natural gas from any and all such common sources of supply within this state as to prevent the inequitable or unfair taking from such common source of supply by any person, firm or corporation and to prevent unreasonable discrimination in favor of or against any producer in any such common source of supply. . .
On the 21st day of March, 1944, the Commission promulgated what it designated “Basic Proration Order for the Hugoton Gas Field.” In this order the Commission first reviewed the history, development, and production in the field. It then stated that it was necessary for the Commission to take jurisdiction and to prescribe rules for the production of gas from the wells in the field and such other wells as may be later completed. The acreage for well spacing was fixed at 640. Pressure, open-flow, porosity, and thickness of pay, which determined deliverability against the pipeline pressure, was also to be taken into consideration in determining the wells’ allowable. The order further provided:
“At such time and place as the Commission shall fix, the Commission will, after notice, conduct a hearing to determine the market demand for natural gas from said field for the next six succeeding proration periods, or for such other period of time as the Commission shall prescribe, and at said hearing may determine any other questions which may properly and legally come before the Commission for consideration thereat, and a new schedule of production allowable for the wells in said field, based upon the determination made as a result of such hearing, shall be prepared and promulgated for the ensuing proration periods.”
Paragraph p of the order provided in part:
“. . . If, at the end of any proration period, there is an overage or underage in production for any well during such period, same shall be carried forward as a charge against or credit in favor of such well and subtracted from or added to, as the case may be, the allowable for such well for the next proration period. Any overage in production from any well during any pro-ration period which is not equalized by ratable overages from all other wells in the field or which is not compensated for in the allowables fixed for other wells in the field for the next succeeding proration period or not otherwise made up within one year after the proration period in which it occurred, shall constitute illegal overproduction from such well and such well shall be shut in until such overage is thereby fully made up. All wells with an overproduction of three times the amount of their current month’s allowable shall be shut in by the operator or producer and not permitted to produce any gas until such overproduction has been fully absorbed by deductions from such overproduction made by current allowables. When any connected well has accumulated an underage in excess of three times its allowable for the current month, such excess shall thereupon be canceled and the amount so canceled shall be spread among all the wells of the field. Any underage so canceled shall not he considered in the determining of the future production of any such well, unless, upon notice and hearing, the Commission shall otherwise determine: Provided, however, That in no event shall any underproduction of an unconnected well be canceled.”
The order further provided:
“That this order should constitute the Basic Order for the proration of production in said field on or after March 31, 1944, and until amended, changed, or modified by further order of the Commission.
“It Is Further Ordered: That the Commission hereby retains continuing jurisdiction of the subject matter hereof and of the parties hereto for the purpose of issuing from time to time such further order, amendments, additional orders, rules and regulations as may be necessary and proper in the premises.”
Under the basic order each well was allowed to produce a certain quantity of natural gas per month. This was called the well’s “allowable.” From the beginning of proration in the Kansas-Hugo-ton Field until May, 1956, the allowables were set twice a year (March and September). The Commission held market demand hearings where the pipelines presented their estimated takes (nomi nations) for the following six-month period. Each month the total nominations were taken to be the market demand for the field for that month. The market demand figure was adjusted by subtracting the field underage (allowables in excess of runs) for the prior month or by adding the field overage (runs in excess of allowables) for tire prior month, whichever had happened. This adjusted figure (called current allowable) was spread ratably to the wells in the field.
The “net allowable” is not the figure that is spread to the wells. Only the current allowable is spread ratably among the wells in the field. Net allowable reflects the cumulative status of a well or wells. Some wells would be in an overproduced status and some would be in an underproduced status at the end of the prior month’s runs. If a well were 500 MCF underproduced and its share of the field current allowable was 500 MCF, then its “net allowable” at the beginning of the month would be 1,000 MCF. The field net allowable reflected the cumulative status of the field at the beginning of the period for which the allowables were determined.
This method of calculating the allowables not only tended to hold the allowables to the requirements of the pipeline companies taking the least amount of gas from the field in proportion to which its connected reserves bore to the field as a whole, but prevented increased takes of gas by one company when it acquired new consumer markets unless the other pipelines also wanted to take more gas. If one pipeline company nominated to receive more gas, the extra allowable would be spread among all the wells in the field. If the other pipeline companies continued taking at the old rate, an underage would be created. The following month this underage would be deducted from the market demand to find the current allowable so they would be back where they started. Obviously one pipeline company could not effect any material change in the allowables unless the other pipeline companies went along with it. The pipeline companies did not expand at the same time, when one wanted more gas, the rest could exercise veto power.
It finally became apparent to the Commission that its method of fixing allowables was preventing the individual pipeline companies from obtaining their market demands, that the allowables which it was fixing had no relation to the actual market demand in the field, and that the field was being detrimentally affected by the allowables.
When the Commission issued its order for the regular market demand hearing on March 30, 1956, to determine the allowables for the period April 1, 1956, through September 30, 1956, it also issued an order to show cause, directed to the pipeline companies, for the purpose of obtaining information with which to solve the problem which its method of fixing allowables had created.
Under such order the various purchasers to whom it was directed were required to produce certain information set forth therein not less than five days prior to March 30, 1956. On Mach 30, 1956, the show cause docket was consolidated with the market demand hearing for the six months’ period from April 1, 1956, to September 30, 1956. Thereafter such matters were heard on a common record, although various docket numbers were assigned to such hearings for the separate six months’ market demand hearings.
The April, 1956, monthly allowable order used the “old method” but was entitled “Interim Order” as were the monthly orders to and including November, 1957. After April, 1956, the Commission started experimenting with its method of determining allowables. It merely increased the market demand figure for three months (May, June, and July, 1956). A questionable procedure as it was without factual support. Next the Commission returned to the “old method” of letting nominations control the market demand figure, but stopped adjusting the market demand figure, in arriving at the allowable, by deducting underages or adding overages for the prior month. The current allowable was the nomination plus any canceled underage, for the preceding month, to be respread to the field pursuant to the basic order. This current allowable was spread to all wells in the field. This procedure was followed from August, 1956, through February, 1958, with the exception that in February and March, 1957, the Commission disregarded a zero nomination filed by Colorado Interstate and used instead its runs for a prior comparable period.
After its Report and Order, effective February 1, 1958, closing the show-cause docket, the Commission started determining the market demand by considering nominations, the rate of increase in total consumer markets of the pipeline companies compared to the rate of increase in their takes from the Kansas-Hugoton, the takes from other sources of supply, and other factors. The Commission continued the practice of not adjusting the market demand figure in arriving at the allowable by deducting the underages or adding the overages for the prior month. This procedure was followed from March, 1958, through January, 1959, and has continued.
Colorado Interstate and Northern Natural filed separate petitions for review of the orders under consideration in the district court of Finney County. Panhandle and the Southwestern Kansas Royalty Owners Association (hereinafter referred to as Royalty Owners) intervened.
The cases were not consolidated but were tried on a common record. The lower court “reversed and set aside” all of the orders and further directed, as to the monthly allowable orders, that:
“. . . the allowables set forth therein are void insofar as they are in excess of the allowables which would have been established under the method of calculating allowables used by the State Corporation Commission prior to May of 1956.”
Following the overruling of motions for new trials, the Commission, Panhandle, and the Royalty Owners, appellants, filed separate appeals, abstracts, and briefs. Northern Natural and Colorado Interstate, appellees, filed separate counter-abstracts and briefs. The contentions of each of the three appellants are similar in nature and will not be separately considered. The same is true of the contention of the appellees.
Certain procedural questions have been raised which will first be given attention. Although the decision on the merits may render their determinations unnecessary, it is advisable that the proper procedure be outlined in order that the courts shall not again be faced with the chaotic situation that exists here.
The appellants contend that the allowable orders issued prior to November, 1957, are not subject to judicial review because no timely application for rehearing was filed with the Commission. We agree with appellants’ contention.
Proceedings for judicial review of orders of the Commission are authorized by G. S. 1949, 55-707. It provides that such actions “ . . . may be brought and proceedings respecting same shall be governed by and appeals may be taken as provided in section 55-606 of the General Statutes of Kansas of 1935, as amended [now G. S. 1949, 55-606], and that each and all of the provisions of said section, as so amended, shall apply to and govern such actions arising under this act.”
With respect to actions for judicial review of the orders of the Commission, G. S. 1949, 55-606, provides:
“. . . Before any such action may be brought by a person who was a party to the proceeding resulting in the making of a . . . order . . . of the commission, a petition for rehearing shall first he filed with the commission within ten days from the date of the making of the . . . order . . . in question. A rehearing shall be granted or denied by the commission within ten days from the date said petition is filed and if rehearing be not granted within ten days it shall be taken as denied. If rehearing be granted the matter shall be set for hearing as promptly as shall be convenient, and shall be determined by the commission within thirty days after the same shall be submitted. Such action may be brought by any person aggrieved, whether or not such person was the applicant for rehearing, within thirty days after the denial of the petition for rehearing, or, if rehearing is granted, then within thirty days after the final decision by the commission. . . (Emphasis ours.)
No petition for rehearing of any of the orders entered prior to November, 1957, were filed within the time prescribed by G. S. 1949, 55-606. The statute makes the filing of a timely petition for rehearing a prerequisite to the filing of a petition for judicial review.
The court had no authority to review the orders of the Commission except in the manner and to the extent the statute gave it such authority. (City of McPherson v. State Corporation Commission, 174 Kan. 407, 414, 257 P. 2d 123.)
In Continental Investment Corp. v. State Corporation Comm., 156 Kan. 858, 137 P. 2d 166 it is stated:
. . When a person has a grievance against an order or ruling of an official board, he must seek redress in conformity with the procedure prescribed by the pertinent statute. In this case, that procedure is laid down in G. S. 1941 Supp., 55-605, 55-606 . . .” (p. 868.)
In United States v. Tucker Truck Lines, 344 U. S. 33, 36, 37, 97 L. Ed. 54, 73 S. Ct. 67, the court stated the rule as follows:
“We have recognized in more than a few decisions, and Congress has recognized in more than a few statutes, that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts. . . .” (See also F. P. C. v. Colorado Interstate Gas Co., 348 U. S. 492, 99 L. Ed. 583, 75 S. Ct. 467.)
The appellees do not contend that they filed timely petitions for rehearing at the time the monthly allowable orders were issued. They contend that these orders were interim, and not appealable until finalized by the Commission’s general order, effective February 1,1958.
The orders were designated “Interim Orders.” The district court ruled that this designation indicated that the orders were not final.
We are concerned with the nature, character, and effect of the order and not with its name. (Hayward v. State Corporation Comm., 151 Kan. 1008, 1013, 101 P. 2d 1041.) G. S. 1949, 55-606, does not require that an order must be a “final” in order to be subject to review. It authorizes the review of “any” order by any person aggrieved by such order. It is not concerned with appeals, or appealable orders, nor with the definition of a final order in appellate procedure, or the jurisdiction of the courts with respect to such under the Code of Civil Procedure.
Whether or not a particular determination made by an administrative body is an “order” subject to review is determined by the substance of what that agency purports to do, or has done by the order, and not by the label placed upon it. Under the review procedure, an order is reviewable which determines rights or obligations or fixes some legal relationship as a consummation of the administrative process. (C. & S. Air Lines v. Waterman Corp., 333 U. S. 103, 92 L. Ed. 568, 377, 68 S. Ct. 431.)
The Supreme Court of the United States, in Pennsylvania R. Co. v. United States, 363 U. S. 202, 4 L. Ed. 2d 1165, 80 S. Ct. 1131, stated the applicable principle as follows:
“. . . We decided some years ago that while a mere ‘abstract declaration’ on some issue by the Commission may not be judicially reviewable, an order that determines a ‘right or obligation’ so that ‘legal consequences’ will flow from it is reviewable. . . .” (p. 205.)
Each of the monthly allowable orders contained the following statement:
“That an interim order should be entered herein determining a schedule of production allowable to wells in the Hugoton Gas Field for the month of [particular month specified] 1957, but determinative of no other issue in Docket 51,488-C (c-4916) now pending before the Commission.”
It is quite definite that the Commission intended the monthly allowable order to be final but not to determine or close the investigation under the show-cause docket. As timely petitions for rehearing were not filed covering the monthly allowable orders for May, 1956, through October, 1957, the orders were not subject to judicial review.
The district court reviewed the report and order of the Commission effective February 1, 1958, in which the Commission closed the show-cause docket, found the order void, and adjudged that it be set aside. The appellants contend that the order was not a proper subject for judicial review because it did not affect the rights of the parties but merely outlined the prospective action of the Commission. Appellants’ contention is correct. The report and order does not of itself adversely affect anyone. An adverse affect will follow only if some future action is taken by the Commission.
The report and order reviewed the proceedings which took place under the show-cause order issued March 16, 1956; stated the questions presented for determination; set out findings of fact and the evidence to support them; stated the market demand factors to be considered in the future; presented the method for calculation of allowables, and considered the balancing period for over and under production of wells.
Some additional action in the way of fixing definite allowables had to be taken before the order could have any actual effect. If the adverse effect will follow only if some future action is taken by the Commission, the order is not subject to judicial review. This issue was determined in Hayward v. State Corporation Comm., 151 Kan. 1008, 101 P. 2d 1041, where this court had under consideration the first basic order issued by the Commission in connection with the Kansas-Hugoton Gas Field. The court stated the Commission’s contention as follows:
“Appellant [Commission] contends the basic order was not self-executing, but was merely a standard, formula or guide pursuant to which the schedule of well allowables was to be determined and thereafter promulgated; that the commission had not completed its work, in that it had not yet determined and hence had not issued its schedule of well allowables. . . .” (p. 1014.)
The court held that the duties of the Commission were prematurely and improvidently stayed, stating:
“. . . The fundamental principle that courts have no right to interfere by injunction with administrative and legislative functions yet to be performed by the corporation commission, is well established. (State, ex rel., v. Flannelly, 96 Kan. 372, 386-387, 152 Pac. 22; Kansas City v. Utilities Commission, supra; State, ex rel., v. Capital Gas & Elec. Co., 139 Kan. 870, 888, 33 P. 2d 731; State Comm'n v. Wichita Gas Co., 290 U. S. 561, 78 L. Ed. 500, 504-505.) Cases involving completed administrative and legislative functions are not in point. . . (l. c. 1015.)
The decision appears to be in harmony with the decisions of the Supreme Court of the United States.
In Rochester Tel. Corp. v. U. S., 307 U. S. 125, 83 L. Ed. 1147, 59 S. Ct. 754, the court said:
. . the order sought to be reviewed does not of itself adversely affect complainant, but only affects his rights adversely on the contingency of future administrative action. In view of traditional conceptions of federal judicial power, resort to the courts on these situations is either premature or wholly beyond their province.” (p. 130.) (See also, C. & S. Air Lines v. Waterman Corp., 333 U. S. 103, 92 L. Ed. 568, 68 S. Ct. 431 and United States v. Los Angeles R. R., 273 U. S. 299, 71 L. Ed. 651, 47 S. Ct. 413.)
In the appeals Nos. 41,515 and 41,516, the monthly allowable orders for the months beginning May, 1956, and extending through November, 1957, and in appeals Nos. 41,555 and 41,556, the monthly allowable orders for the months October, November, and December, 1958, and January, 1959, were found by the district court to be void, and reversed and set them aside, stating:
“. . . that the allowables set forth therein are void insofar as they are in excess of the allowables which would have been established under the method of calculating allowables used by the Commission prior to May of 1956.” (Although the wording is not exactly the same in all the judgments, the result is the same in each.)
The administration of the law with respect to the production and conservation of natural gas is classified in that recognized area of regulation which necessitates the authority to exercise a considerable degree of discretion. The legislature delegated that authority to the Commission and with great latitude for the exercise of discretion through the promulgation of mies, regulations, orders, and decisions. In recognition of that authority, in providing for judicial review of the Commission’s actions, it specifically limited the authority of the reviewing court by providing that:
“. . . The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission. . . .” (G. S. 1949, 55-606.)
The record before us shows that prior to May, 1956, the Commission followed a pattern or formula in the setting of allowables and that after May, 1956, it adopted a different formula. The nature of the difference is not material at this point. It is sufficient to state, and it is agreed, that a change was made and that it produced different results.
The appellants contend that the district court, by its order, reduced the allowables to a determinable figure, made its own determination of what the allowables should be, and determined what formula should be used. We are forced to agree.
G. S. 1949, 55-606 gives the reviewing court authority to set aside any unlawful or arbitrary or unreasonable order, in whole or in part. But it does not give the court authority to substitute its judgment for that of the Commission by directing the Commission to enter a certain type of an allowable order, or by prescribing the formula which it must follow. The court has the authority to set aside only a part of the order. If, in this case, the court had set aside the entire allowable but let the remainder of the order stand, it would have been well within its jurisdiction. When the court determined the amount of the allowable by setting aside, not a part of the order but a part of the allowable, it is a clear invasion of the administrative function. This court considered the question in White Eagle Oil Co. v. State Corporation Comm., 168 Kan. 548, 214 P. 2d 337, where the district court set aside the orders of the Commission for the reason they denied the assignment of an allowable to a well on the basis of 640 acres as attributable thereto. The court said:
“. . . That portion of it [the order] which directed the commission after consideration to enter its order assigning to the gas well an allowable based on the attribution thereto of the north half of section ten and the south half of section 6 was incorrect. The order should have been simply that the action was remanded to the commission with directions that it further consider its order.” (p. 557.)
In City of McPherson v. State Corporation Commission, 174 Kan. 407, 257 P. 2d 123, in considering the authority of the reviewing court under a similar statute, this court said:
“. . . Its function was to consider what the Commission had considered, not to inject its own views into what should have been considered by the Commission. The court had no authority under the statute to review the work of the Commission except in the manner and to the extent the statute gave it such authority. . . .” (p. 414.)
The power of a court to replace the Commission s orders with its own, with respect to the establishment of allowables, has been ruled on specifically by courts in other oil and gas producing states having proration. In Marrs v. R. R. Commission, 142 Tex. 293, 177 S. W. 2d 941, the district court reversed the monthly allowable orders and also held that the Commisson could not set the allowables below 35,000 barrels daily. The Texas Supreme Court agreed that the allowable orders should be reversed, but as to the lower court’s attempt to prescribe the terms of the Commission’s allowable orders, it said:
“... A court has the right to review the action of the Railroad Com mission, and to strike its orders down if they are illegal; but it has no authority to write a proration order for the Commission, nor to prescribe the terms of a subsequent order to be entered by the Commission. . . .
“The responsibility rests with the Commission to devise some scheme of proration that will conserve the oil in the field in question, and at the same time will be fair and just and will not deprive petitioners of their property. There are many and varied methods that may be adopted by the Commission to accomplish this purpose. This necessarily involves the exercise of the discretion that has been committed by the Legislature to the Commission, and it would amount to a usurpation of the Commission’s power by the court, for the court to undertake to prescribe the terms of such an order.” (pp. 306, 307.) (See also, Brown et al. v. Humble Oil Co., 126 Tex. 296, 83 S. W. 2d 935, and Interstate Comm. Comm. v. Ill. Cent. R. R., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155.)
In connection with numerous cases pending before the court for judicial review, the appellant, Panhandle, filed motions requesting the court to make findings of fact and conclusions of law. The district court overruled the motions and entered its judgments setting aside the orders of the Commission. Panhandle claims error.
G. S. 1949, 55-606, which is made applicable to the review of the Commission’s orders regulating the production of gas by G. S. 1949, 55-707, makes no specific provision for findings of fact and conclusions of law by the reviewing court. The statute provides its own procedure for judicial review and the provisions of the Code of Civil Procedure are not applicable where the procedure is covered by the statute. However, the statute further provides, “. . . All actions brought under this section shall have precedence in any court and on motion shall be advanced over any civil case of different nature pending in such court, and such action shall be tried and determined as other civil actions. . . .” (Emphasis ours.) The purpose of this provision appears to be clear. Such procedural matters as are not covered by the oil and gas review statute are to be governed by the Rules of Civil Procedure as “such actions shall be tried and determined as other civil actions.” Any other interpretation placed upon the provision would leave it without any force or effect.
G. S. 1949, 60-2921, provides:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally, for the plaintiff or defendant, unless one of the parties request it, in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law.”
This court considered the review statute in Wakefield v. State Corporation Comm., 151 Kan. 1003, 101 P. 2d 880, and stated at page 1007:
“. . . The twelfth sentence, in providing that the district court shall not be bound by any finding of fact made by the commission, clearly indicates it was intended the district court should review the record before the commission in order to make its own independent findings of fact. . . .’’
It was the failure of the trial court to make findings of fact and conclusions of law that has resulted in the voluminous record now before us. The result of the failure is well stated in Panhandle’s brief as follows:
“The cross petition of Panhandle Eastern in the Finney County Court attacked the Commission’s market demand determination and raised an issue of fact. We doubt very much if the court ever considered the evidence regarding market demand. As long as the trial court adhered to the view that the runs must control the allowables, any question about market demand would be academic and such review would serve no practical purpose. It is necessary, however, to preserve the issue because it is of paramount importance if the runs do not control. The attorneys for this appellant vainly endeavored to find out the basis of the decision. Because, of this failure, it has been necessary to abstract in detail a most voluminous record together with all various orders, pleadings and other papers, most of which may prove to be immaterial, but which could not safely be omitted. This is exactly the situation the statute is intended to prevent. . . .”
We must conclude that if the reviewing court does not adopt the findings of fact and conclusions of law of the Commission, it must make its own findings of fact and conclusions of law upon the request of any interested party.
Other important procedural questions pertaining to piecemeal review by various parties in multiple actions in separate district courts have been raised. They have not been ignored. However, the factual issues by which they are raised are not without dispute. The same questions are raised in the appeals in similar cases which were filed later and in which the facts are not in dispute. The remaining procedural question will be discussed in the opinion disposing of the appeals in the later cases. (Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 29, 386 P. 2d 288.)
We may now proceed to discuss the basic issues presented.
Certain monthly allowable orders (November, 1957, through January, 1958) issued by the Commission before its report and order, effective February 1, 1958, was entered, were before the district court for review, and are before this court on appeal. How ever, as the Commission followed the same formula in determining these monthly allowables as it did in determining the monthly allowables after it entered its report and order, it would serve no useful purpose to extend further this lengthy opinion by a separate discussion of them. We will consider the market demand determinations and the allowables made for the months beginning March, 1958, and extending through January, 1959.
The Commissions method of determining market demand and establishing allowables for the Kansas-Hugoton Field present the basic issues.
It may be stated as a general proposition of law that the determination of market demand and establishing allowables is a responsibility which the legislature has lodged in the Commission. The courts are without jurisdiction to determine the method the Commission should use or the factors which it should consider. The courts may examine the methods used for the purpose of determining whether the Commission has acted within the power and authority delegated to it by the legislature.
In considering the validity of the Commissions determination, the courts can consider only the statutes granting the Commission’s authority and the Commission’s basic order with such amendments as are properly made thereto. The determination is a question of fact. What facts are to be considered and the relative weight to be accorded them are matters left to the Commission’s discretion. Unless the determination is arbitrarily or capriciously made without supporting evidence, the courts cannot interfere and substitute their judgment for that of the Commission. The question for the reviewing court is the power of the Commission to make the order, not its wisdom, propriety or expediency in having made it. (Interstate Comm. Comm. v. Ill. Cent. R. R., 215 U. S. 452, 54 L. Ed. 280, 30 S. Ct. 155.) In City of McPherson v. State Corporation Commission, 174 Kan. 407, 257 P. 2d 123, in considering tire authority of the reviewing court under a similar statute, this court said:
“. . . Its function was to consider what the Commission had considered, not to inject its own views into what should have been considered by the Commission. The court had no authority under the statute to review the work of the Commission except in the manner and to the extent the statute gave it such authority. . . .” (p. 414.)
It will perhaps be less confusing if we first consider the Commission’s authoity, the manner in which it determined market demand, and the evidence which it considered.
It should be noted that G. S. 1949, 55-703, is the only section in the statute pertaining to production and conservation of gas which makes direct use of the phrase “market demand.” The determination of market demand is not the end result sought by the statute. It is rather the determination of the conditions under which the Commission shall take jurisdiction of production in a gas field.
The Commission shall regulate the taking of natural gas, “. . . [1] whenever the available production of natural gas from any common source of supply is in excess of the market demands for such gas from such common source of supply, or [2] whenever the market demands for natural gas from any common source of supply can be fulfilled only by the production of natural gas therefrom under conditions constituting waste as herein defined, or [3] whenever the commission finds and determines that the orderly development of, and production of natural gas from, any common source of supply requires the exercise of its jurisdiction, . . .” (G. S. 1949, 55-703.)
The Commissions basic order made use of the phrase “market demand” only in the following particular:
. . At such time and place as the Commission shall fix, the Commission will, after notice, conduct a hearing to determine the market demand for natural gas from said field for the next six succeeding proration periods, or for such other period of time as the Commission shall prescribe, . . .”
Neither the statute nor the basic order defined “market demand.” The term has rather a common understood meaning. Market demand is that amount of a commodity which the consuming public is able and willing to buy.
The word “demand” as used in a commercial sense is defined by Webster’s New Century Dictionary (Unabridged) Second Edition:
“. . . in economics, (a) the desire for a commodity together with ability to pay for it; (b) the amount people are ready and able to buy at a certain price. Opposed to supply. . . .”
The price and the availability of gas in the Kansas-Hugoton Field is not a deterring market factor. However, the consuming public cannot buy unless the gas is transported from the field to the market. Therefore the market demand for gas in the Kansas-Hugoton Field must be that amount which the consuming public is able and willing to purchase, restricted to the amount which the pipeline companies in the field are able to transport to the market.
Neither the statute nor the basic order state the formula or factors which the Commission shall use in determining market demand, nor the evidence which shall be considered. These matters are left to the discretion of the Commission.
The factors which the Commission used in determining market demand, in addition to those used prior to 1956, will next be considered.
Following the issuance of the show-cause order in March of 1956, the Commission held extensive hearings covering the situation in the Kansas-Hugoton Field in general and the market demand in particular. It issued its report and order, covering the matter, effective February 1,1958. The Commission, among other findings, found and concluded in connection with the determination of market demand:
“A review of the Commission’s past allowable orders and the evidence presented in these dockets discloses that heretofore the nominations by the purchasers from the Hugoton Field have been used and considered by the Commission as the market demand for the field. However, the evidence presented in these dockets discloses that in many instances the aforesaid nominations did not approximate the market demand. Therefore, the Commission finds that it is necessary, in determining the market demand for natural gas from the Hugoton Field, to consider, in addition to the nominations by the purchasers, the following factors:
“(1) Takes from other sources of supply to which the purchasers are connected.
“(2) The total markets for natural gas of all purchasers from the KansasHugoton Field; the rate of increase therein compared to the rate of increase in the takes from the Kansas portion of the Hugoton Field.
“(3) Takes from other sources of supply in Kansas.
“(4) Any other factors, conditions and/or circumstances that would aid the Commission in establishing the market demand.”
There is ample evidence to support tihe Commission s conclusion that in many instances the nominations did not approximate the market demand in the field. We will not review the evidence here as it will be discussed in considering allowables. The question presented at this point is whether the Commission erroneously considered the factors quoted above in addition to the nominations by the pipeline companies.
The appellees contend that the pipeline companies’ nominations are the only evidence of market demand that should be considered. We do not agree. The Commission endeavors to determine market demand for six months in the future. It must of necessity give some consideration to the entire market demand, the capacity of the pipelines in the field, possible addition of new consumers, increase in consumer demand, prospective weather conditions, and all factors that may affect the consumer, if its determination is to have veracity.
The Commission gave consideration to the new factors mentioned in its report and order, “in addition to the nomination of the purchasers.” The record does not disclose what weight the Commission gave the new factors. It is not necessary that the Commission state just what weight it gives each factor covered by the evidence. If the evidence is admissible, it is for the Commission to determine the weight it shall be given, not the courts.
It would appear that the Commission used the additional factors mentioned largely for the purpose of checking the accuracy of the nominations. We have checked the nominations against the Commission s finding of market demand for the first nine months of 1958, and find no startling difference. During the winter months, January, February, and March, while the demand was well in excess of 40,000,000 MCF, the nominations and the market demand found by the Commission were substantially the same. During the months of April through September, the monthly market demand found by the Commission exceeded the nominations by approximately 2,000,000 MCF. Panhandle, one of the major pipeline companies in the field, contends that the market demand, as determined by the Commission, is unreasonably low and that it cannot take enough gas to meet the demand of its market.
We find nothing in the record to indicate that the Commission acted arbitrarily and capriciously in determining the market demand for the field.
Appellees contend that the Commission unlawfully changed its method of determining allowables.
The only change the Commission made in determining allowables was that it ceased adding over production from wells for the preceding month to the current allowables and ceased deducting under production of wells for the preceding month from the current allowables.
It is clear that the method which the Commission used in determining market demand and calculating allowables prior to 1956, did not permit the producers to supply the market demand for gas in the Kansas-Hugoton Field and drove the pipeline companies to other fields to obtain a sufficient supply for their customers. It is clearly established by the record that from time to time during the period of 1944 to 1956, every pipeline in the field at one time or another required additional substantial amounts of gas to supply their added markets but that the gas could not be obtained from the Kansas-Hugoton Field because of the Commission’s method of determining market demand and calculating allowables and that they were therefore forced to go to other fields for their supply. Counsel for Northern Natural stated in oral argument before this court that the company had at times taken on additional territory requiring a substantial amount of additional gas but that because the market could not be supplied from the Kansas-Hugoton Field, under the Commission’s orders, they went to other sources of supply for their requirements.
Later, and in accordance with its Report and Order effective February 1, 1958, the Commission ceased deducting underages occurring from wells which had not produced the previous months allowable and by so doing arrived at an allowable which represented the true demand for gas in the field.
There is nothing in the Gas Conservation Statute nor in the Commission’s basic order which authorizes the Commission to deduct past underages from current allowables which were determined to be necessary to supply the market demand. Such a practice would permit, and did permit, one major pipeline company to reduce its takes and force the same reduction on every other pipeline company in the field regardless of the market demand requirements as a whole.
The Commission stated the fallacy in the old method of determining current allowables and set out the proper formula to be followed in its Report and Order effective February 1, 1958:
“The market demand figure, once obtained, heretofore was used to determine the current allowable to be assigned by the Commission to the field. Prior to May, 1956, the current allowable was determined by taking the market demand, first adding thereto the cancelled underages for the previous month and then subtracting therefrom the amount of underproduction or adding thereto the amount of overproduction for the previous month. The result of the use of this method was that in actuality the runs or takes from the field controlled the amount of the current allowable; the control of the market demand and current allowable was entirely exclusively in the hands of the purchaser pipeline companies, and not in the Commission.
“The Commission, in an effort to take control, deviated from this formula of determining current allowables and for August, 1956, and subsequent months has fixed current allowables by taking the market demand figures, still based exclusively on nominations of the purchasers, and adding thereto the cancelled underproduction for the previous month. Actually, except for the consideration of a small amount of cancelled underproduction, the market demand, based solely on the nominations of the purchasers, was the current allowable for the field. The current allowable for each well was calculated in accordance with the provisions of paragraph (1) of the Basic Order for the Hugoton Gas Field. Each well continued to carry in addition to its current allowable such underproduction or overproduction as may have accrued to it. The result was the net allowable for each well. The sum total of the net allowables of the wells therein represented the net allowable for the entire field.
“To restate this formula, allowables in the future will be determined as follows: Consider the factors as discussed in paragraph 16 above and arrive at the market demand figure; add to it the cancelled underages, and the result will be the current monthly allowable. (This is the amount that is ratably apportioned to the wells each month.) To ascertain the net allowable for the field as a whole, add the total net underage or subtract the total net overage. The resulting figure is the field total net allowable on that date.
“The field as a whole is never exactly in balance. It is to be expected that for some periods of time it will have a total net underage and for other periods of time it will have a total net overage.”
Much confusion has arisen because of misuse or misunderstanding of descriptive terms. The briefs of appellees in setting out comparative schedules for the court’s consideration confuse nominations with the Commission’s finding of market demand and confuse current allowables with net allowables.
The current allowable, which is spread to all of the wells in the field, consists of the market demand as found by the Commission plus cancelled underages for the previous month. The practice of adding cancelled underages is in accordance with the basic order and does not appear to be challenged.
The net allowable consists of the current allowable plus underages pertaining to specific wells which have not been cancelled. Such underages have been allocated in past months and was only available to the wells to which it was previously allocated. Such wells have an opportunity to produce the underage in addition to the current allowable if they can do so before the specified time for cancellation.
The Commission’s method of determining current allowables, as stated above, complies with the law and the basic order.
The appellees contend that the Commission was influenced in its determinations by the fact that gas from the Kansas-Hugoton Field was draining or would drain into the Guymon-Hugoton Field in Oklahoma, and be wasted or lost insofar as the Kansas well owners and royalty owners are concerned. This was a proper matter for the Commission to consider under the circumstances.
The Commission found, and there was ample evidence to support the findings, that because of its past methods of determining market demand and calculating allowables, the producers in the KansasHugoton Field had not been able to produce the market demand and the pipeline companies had been forced to go to other fields, including the Guymon-Hugoton Field, to supply their market. The gas in the Guymon-Hugoton Field was being depleted and the pressure was declining at a much faster rate than in the KansasHugoton Field. Drainage is bound to result.
This court would not place its approval on an order of the Commission which had as its purpose the drainage of gas from Oklahoma into Kansas. However, the Commission should not be criticized for correcting an improper method of establishing allowables which created a situation under which Kansas gas was caused to drain into Oklahoma.
There is no quarrel or conflict of jurisdiction between the two states. The Oklahoma authorities have done nothing to create the unfortunate situation which exists in the Kansas-Hugoton Field. The situation was created by the allowable orders of the Kansas Commission and should be corrected by it insofar as reasonably possible under the law.
The appellees contend that the change in the Commission’s method of calculating allowables will cause inequitable or unfair-taking among the producers in the field. The right of the pipeline companies to challenge matters which do not affect them but affect only the producers and royalty owners is somewhat questionable. The producers have not participated in the litigation, but the royalty owners have filed extensive briefs in support of the Commission’s orders. We will, however, discuss the contention.
The Commission has three responsibilities under the Gas Conservation Statute. It must first of all prevent waste of the natural resource. It must allow sufficient production to meet the market demand if such can be done without waste. It must protect correlative rights.
In a gas field such as the Kansas-Hugoton where five major companies are taking gas through separate pipelines not connected to the same wells, the responsibilities placed upon the Commission will clash. If the market demand cannot be supplied without waste, or if correlative rights cannot be protected without waste, or if correlative rights cannot be protected without unduly restricting production needed for the market demand, one of the three, waste, market demand, or correlative rights, must suffer. The dominate purpose of the Gas Conservation Statute is to prevent waste. (Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 222 P. 2d 704.)
The Commission cannot require or guarantee that each well owner will produce and sell his entire allowable. The Commission is required to afford each owner the “right or opportunity” to produce his share. As far as the Commission s duty under the basic order goes, it is fulfilled when each owner is legally “free to produce” and not denied the “right or opportunity” to produce his allowable.
The Commission could not be required to shut in an entire gas field to protect correlative rights where some of the producers desired to cease production and hold a gas field for a reserve. The Commission could not be required to unduly restrict production in a gas field because some producers desired to deplete the gas as a very low rate regardless of the reason.
When waste, market demand, and correlative rights are in conflict the Commission must determine which is to be given preference. If the decision of the Commission is supported by evidence, the courts cannot interfere.
The orders of the Commission, under consideration, are not subject to the objection that they do not properly protect correlative rights under the facts disclosed by the record.
The appellees contend that the orders of the Commission violate the commerce clause of the federal constitution and the Natural Gas Act.
Our attention is called to the fact that the subject of regulating interstate commerce is committed by the United States Constitution to the control of the federal government. (Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229, 55 L. Ed. 716, 31 S. Ct. 564; Penna. v. West Virginia, 262 U. S. 553, 67 L. Ed. 1117, 43 S. Ct. 658; and Penna. Gas Co. v. Pub. Service Comm., 252 U. S. 23, 64 L. Ed. 434, 40 S. Ct. 279.) Also, that the states have no authority, even in the absence of federal legislation, to regulate sales of gas for transportation and resale in interstate commerce. (Missouri v. Kansas Gas Co., 265 U. S. 298, 68 L. Ed. 1027, 44 S. Ct. 544; Pub. Util. Comm. v. Attleboro Co., 273 U. S. 83, 71 L. Ed. 549, 47 S. Ct. 294; and State Comm'n v. Wichita Gas Co., 290 U. S. 561, 78 L. Ed. 500, 54 S. Ct. 321.) We are further informed that the states cannot so regulate under its police power as to place an undue burden on interstate commerce. (Dahnke-Walker Co. v. Bondurant, 257 U. S. 282, 66 L. Ed. 239, 42 S. Ct. 106; and Lemke v. Farmers Grain Co., 258 U. S. 50, 66 L. Ed. 458, 42 S. Ct. 244.)
No one appears to question these general propositions of law. However, they are not applicable here. The Commission’s orders are not directed to the pipeline companies. The pipeline companies are not required to do anything, neither are they restricted in any way. None of the pipeline companies, except Panhandle, claim they are not able to take enough gas under the Commission’s order to meet their present market demands. Panhandle is before this court in support of the Commission’s action.
The facts in this case present a much different situation than those which existed in Northern Natural Gas Co. v. State Corp. Comm'n of Kansas, 372 U. S. 84, 9 L. Ed. 2d 601, 83 S. Ct. 646. In the Northern Natural Gas- case the Commission’s order was directed to the pipeline company in an attempt to force it to take gas ratably from the wells to which it was connected in the KansasHugoton Field.
The Commission’s orders now before us are addressed only to the producers. The producers are not complaining and the royalty owners are supporting the Commission’s action. The Commission’s orders in no way attempt to regulate the sale or transportation of gas. The Supreme Court of the United States clearly stated the applicable law in Champlin Rfg. Co. v. Commission, 286 U. S. 210, 76 L. Ed. 1062, 52 S. Ct. 559:
“Plaintiff contends that the Act and proration orders operate to burden interstate commerce in crude oil and its products in violation of the commerce clause. [U. S. Const. art. I, § 8.] It is clear that the regulations prescribed and authorized by the Act and the proration established by the commission apply only to production and not to sales or transportation of crude oil or its products. Such production is essentially a mining operation and therefore is not a part of interstate commerce even though the product obtained is intended to be and in fact is immediately shipped in such commerce. Oliver Iron Co. v. Lord, 262 U. S. 172, 178. Hope Gas Co. v. Hall, 274 U. S. 284, 288. Foster Packing Co. v. Haydel, 278 U. S. 1, 10. Utah Power & Light Co. v. Pfost, supra. No violation of the Commerce clause is shown.” (p. 235.)
Appellees contend:
“It is abundantly clear . . . that the jurisdiction over sales of natural gas for resale in interstate commerce pursuant to the Natural Gas Act is exclusively in the Federal Power Commission. The Natural Gas Act was passed pursuant to the Commerce Clause contained in the United States Constitution and obviously was intended to occupy the entire area — the area involved in the instant appeals.”
The Natural Gas Act and the decisions do not support the contention. Congress has not occupied the field in the area of state control of the production of natural gas. The Natural Gas Act specifically exempts from its coverage the production or gathering of natural gas. (15 U. S. C. A. § 717b.)
In Panhandle Pipe Line Co. v. Comm’n, 332 U. S. 507, 92 L. Ed. 128, 68 S. Ct. 190, the court reviewed the legislative history of the Natural Gas Act and said:
■ . Three things and three only Congress drew within its own regulatory power, delegated by the Act to its agent, the Federal Power Commission. These were: (1) the transportation of natural gas in interstate commerce; (2) its sale in interstate commerce for resale; and (3) natural gas companies engaged in such transportation or sale.” (p. 516.)
The court further said:
“Moreover, this unusual legislative precision was not employed with any view to relieving or exempting any segment of the industry from regulation. The Act, though extending federal regulation, had no purpose or effect to cut down state power. On the contrary, perhaps its primary purpose was to aid in making state regulation effective, by adding the weight of federal regulation to supplement and reinforce it in the gap created by the prior decisions.” (p. 517.)
The regulation of the production of gas was clearly left within the jurisdiction of the states.
The appellees last contend that the orders of the Commission violate the fourteenth amendment to the United States Constitution which provides, . . nor shall any State deprive any person of life, liberty, or property, without due process of law; . . .” and article 1, section 10 which provides, “No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . Appellee’s contention appears to be bottomed on the proposition that they have contracts to purchase the gas produced from certain leases in the field and they therefore have the right to determine the allowable production therefrom through their nominations, without interference by the Commission. Also, that their gas purchase contracts have various provisions which may be affected if their ability to determine the allowables is disturbed.
Individuals cannot by private contracts destroy the right of the state to exercise reasonable police power for the welfare of the public. It has been said, . . that an exercise of public policy cannot be resisted because of conduct or contracts done or made upon the faith of former exercises of it, upon the ground that its later exercises deprive of property or invalidate those contracts. Louisville & Nashville R. R. Co. v. Mottley, 219 U. S. 467, [55 L. Ed. 297, 31 S. Ct. 265, 34 L. R. A. (N. S.) 671.]" (Thornton v. Duffy, 254 U. S. 361, 369, 65 L. Ed. 304, 41 S. Ct. 137.) (See also, 16 C. J. S., §§ 180-182, 913 and 917, Constitutional Law; Phillips Petroleum Co. v. Jenkins, 297 U. S. 629, 80 L. Ed. 943, 56 S. Ct. 611; Bennett v. Corporation Commission, 157 Kan. 589, 142 P. 2d 810; Champlin Rfg. Co. v. Commission, 286 U. S. 210, 76 L. Ed. 1062, 52 S. Ct. 559, 86 A. L. R. 403.) The appellees do not complain that the production of gas is being over-regulated by undue restrictions. They rather complain that the field is being under-regulated. Private individuals cannot by private contracts obtain a vested right in a police or public walfare statute. The Kansas Legislature could repeal the Gas Conservation Statute if it thought such action advisable.
There are no purchase contracts shown in the record. The standard gas purchase contracts which have been before this court contain a provision making the contract subject to all present and future valid orders of regulatory bodies.
There is no statute or provision in the basic order providing that, regardless of the evidence presented at the market demand hearings, the Commission must allow past under production to control future allowables. The Gas Conservation Statute and basic order both require the Commission to determine the market demand and establish current allowables based on the evidence presented at the market demand hearings.
The Commission is, and of necessity must be, free to correct past errors. Orders may have been entered with full confidence that they would effectuate the legislative mandate, but twelve years of irrefutable experience demonstrated that something was wrong.
In Continental Investment Corp. v. State Corporation Comm., 156 Kan. 858, 137 P. 2d 166, this court said that:
“. . . Of necessity all administrative rules of official boards are experimental, and their wisdom and justice or lack of it may only be revealed by trial and error. That is the main reason the legislature conferred on such official boards the power to make rules having temporarily the force of law. Otherwise there would be no excuse for the legislature placing that responsibility on an official board when the power and duty to legislate is vested in the legislature itself. The legislative device of assigning to official boards or commissions the powers to make administrative rules governing matters of public concern, with authority to change those rules as experience may justify, is a settled policy in American jurisprudence. . . .” (p. 866.)
In reviewing another rule of the Commission, under the Gas Conservation Act, this court held that:
“. . . [The] rules and regulations of the commission are never res judicata. Should bad consequences follow from such an order being made the commission might change it to meet conditions as they exist.” (Aylward Production Corp. v. Corporation Commission, 162 Kan. 428, 440, 176 P. 2d 861.)
Furthermore, the orders before the Commission did not repeal or change its basic rules or regulations. There never was a rule containing the word “nominations,” much less saying that nominations had to be accepted as the market demand. There never was a rule implying that the Commission was required to reduce its finding of market demand by the amount of past under-production.
We find nothing in the record which would justify the district court’s judgment setting aside the orders of the Commission.
The judgment is therefore reversed with instructions to dismiss the petitions for review challenging the allowable orders of the Commission for gas production in the Kansas-Hugoton Field entered prior to and including October, 1957, and with directions to approve the allowable orders entered during the period November, 1957, through January, 1959, inclusive.
approved by the court.
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The opinion of the court was delivered by
Brewer, J.:
February 7, 1881, Mary Fowler, as and for her bill of particulars, filed with a justice of the peace an instrument in writing, of which the following is a copy:
‘.‘$90.
Macon Town, Kas., Aug. 2, 1880.
“Six months after date, I promise to pay to the order of Wilson, Parks & Co. ninety dollars, for value received, with interest at the rate of 10 per cent, per annum from date. The payee reserves the right to extend the time of payment, thereof if he desires.
William Ort.”
On'the back of said instrument was the following: “Wilson, Parks & Co.” A summons was issued by the justice and served upon the defendant. Defendant appeared, and before the trial filed with the justice his affidavit denying that there then was or ever had been any firm, partnership, or corporation, doing business under the name of Wilson, Parks & Co.; denying that he ever had any dealings with-any person or persons representing himself or themselves as suph partnership, or corporation ; denying that any persons doing business under the name of Wilson, Parks & Co. indorsed or authorized the indorsement of such partnership or coi'porate name upon the back of the instrument sued on; and also denying the execution by him of the instrument sued on. April 1, 1881, the cause was tried before the justice and judgment rendered for plaintiff for the amount then due by the terms of said instrument. The defendant appealed to the district court, where, on October 5, 1881, a trial was had before the court and a jury, and a verdict and judgment were rendered for the plaintiff. Defendant’s motion for a new trial being overruled, he bi’ings the case here for review.
On the trial the'se uncontradicted facts appeared from the testimony of the defendant: On or about the day of the date of the note, a stranger came to where he was working alone in the field about half a mile from his house. The man represented himself as the state agent of Wilson, Parks & Co. for the sale of iron posts and wire fences, and after some conversation persuaded defendant to accept an agency for his township. What followed is thus narrated by defendant in •his testimony:
“The man then filled up two contracts of agency. They were both of the same size and shape, and looked just alike. They were about half the size of an ordinary sheet of legal cap, with a border all around near the edge. I did not have my spectacle's with me. I did not ask him for a written contract; he said he would do it himself. He said that as I hadn’t my specs with me, he would read the contract. I held one in my hand and looked over his shoulder while he read. He did not read anything about a note, and I know they were not notes. We had no talk about signing notes. I could see a little better then than now, but I could not read without spelling out every word. I tried to follow him as he read. I expected him to read the contract right, as I could not spell it out good myself without my spectacles. He read it just as we had talked. I was to have a commission on all I sold, but I don’t remember how much it was. The man then signed them, and then I signed them one at a time qn the back of .his book. There were no other papers on the book at .the time. He then told me to take my choice, and I took one. •. There was nothing said about a promissory note in connection with the contract of agency. The contract does not say anything about a note, either. It did not read that way. I signed my name only twice, and that was to the two contracts. I did not intend to and did not sign anything but the contracts. We did not talk about signing anything else. I know the papers I signed were just the same, and they said ‘contract’ or ‘agreement’ at the top. I know they were not notes.”
It is very evident from this and the other testimony that the defendant has • been made the victim of an atrocious swindle. Obviously this stranger, under the pretense of obtaining defendant’s signature to two contracts, obtained his signature to this note, or else, having obtained his signature to the contracts, forged it to the note. Clearly the defendant had no thought of signing a note, and did not suppose he was doing it. The plaintiff claimed as a bona fide purchaser before maturity. Now the first question which we deem important to consider is that presented by these two instructions :
“2. The law is that where one of two innocent parties must suffer because of the fraud of another, that one must suffer who by his own negligence made it possible for the fraud to be committed. If therefore you believe from the evidence that defendant negligently signed the note in question under the belief that he was signing an ordinary contract for- the agency for the sale of certain wire-fence material in Halstead township, and delivered the same to the agent of Wilson, Parks & Co., and that said note was assigned to plaintiff for a valuable consideration and before it became due, and he knew nothing of the fraud practiced upon defendant at the time of the purchase of said note, then plaintiff- is entitled to recover the amount of the note and interest, and this regardless of the fact whether there ever was such a firm in existence as the firm of Wilson, Parks & Co., or not.
“ 3. If the note was procured from the defendant without any negligence on his part, by fraud and trickery and without any consideration, then plaintiff cannot recover; but the mere relying upon the reading and word of a stranger, if such was the fact, would be evidence of such negligence on the part of defendant as would make him liable for the amount of the note in the hands of an innocent holder for value.”
There is no serious question as to the general proposition that, when one of two innocent parties must suffer by reason of the fraud of a third, that one must suffer who by his own negligence made it possible for the fraud to be committed. But the point of objection is in the affirmation that the mere relying upon the reading and word of a stranger is such negligence as will make the party so relying liable for the amount of the note in the hands of a bona fide holder. This presents a serious and doubtful question, one upon which courts have differed. A party is betrayed into signing a bill or note by the assurance that it is an instrument of a different kind. Under what circumstances ought he to be liable thereon ? One view entertained is, that as he never intended to execute a bill or note, it cannot be considered his act, and he should not be held liable thereon any more than if his name had been forged to such an instrument. A second view is, that it is always a question of fact for the jury whether under the circumstances the party was guilty of negligence. A third is the view adopted by the trial court, that as matter of law, one must be adjudged guilty of such negligence as to render him liable who, possessed of all his faculties and able to read, signs a bill or note, relying upon the assurance or the reading of a stranger that it is a different instrument.
We approve of the latter doctrine. It presents a case, of course, of which one of two innocent parties must suffer; but the bona fide holder is not only innocent, but free from all negligence. He has done only that which a prudent, careful man might properly do, while on the other hand the maker of the note has omitted ordinary care and prudence. A party cannot guard against forgery; but if in possession of his faculties and able to read, he can know the character of every instrument to which he puts his signature; and it is a duty which he owes to any party who may be subsequently affected by his act, to know what it is which he signs. By his signature he invites the credence of the world to every statement and promise which is in the instrument he has subscribed; and he is guilty of negligence if he omits to use the ordinary means of ascertaining what those provisions and statements are. If he has eyes and can see, he ought to examine; if he can read, he ought to read; and he has no right to send his signature out into the world affixed to an instrument of whose contents he is ignorant.^ If he relies upon the word of a stranger, he makes that stranger his agent. He adopts his reading as his own knowledge. What his agent knows, he knows; and he cannot disaffirm the acts of that agent done within the scope of the authority he has intrusted to him.
In support of the views first suggested may be cited the cases of Walker v. Ebert, 29 Wis. 196; Kellogg v. Steiner, 29 id. 627; Taylor v. Atchison, 54 Ill. 196, though this case seems to have been rested on a statute, and to recognize the common law to be as held by us; Puffer v. Smith, 57 Ill. 527; Wait v. Pomeroy, 20 Mich. 425; Gibbs v. Linabury, 22 id. 479; Soper v. Peck, S. C. Mich., 17 N. W. Rep. 57; Briggs v. Ewart, 51 Mo. 245; Cluse v. Guthrie, 42 Ind. 227; Detwiler v. Bish, 44 id. 70.
In support of the view approved by us may be cited: 1 Daniel on Negotiable Insts., §850; Putnam v. Sullivan, 4 Mass. 45; Douglass v. Matting, 29 Iowa, 498; Chapman v. Rose, 56 N. Y. 137; Shirts v. Overjohn, 60 Mo. 305; Dinsmore v. Stimbert, S. C. Nebraska, 11 N. W. Rep. 872; Mackey v. Peterson, S. C. Minn., 13 N. W. Rep. 132; Hopkins v. Insurance Co., 57 Iowa, 206.
In 1 Daniel, supra, the author thus states the rule:
“The sixth class of cases are those in which the party possesses the ordinary faculties and knowledge, and is betrayed into signing a bill or note by the assurance that it is an instrument of a different kind. It is generally agreed that if the party is guilty of any negligence in signing the paper, he is bound; and the act itself, it seems to us, can hardly be committed without negligence. A man has no right to have eyes and see not, or ears and hear not; and while the law should protect those who suffer from the want of the senses in their proper development, or ordinary education, it should not permit those who have both capacity and education to throw the burden of their failure to use them upon innocent third parties. In such cases we should say the act of signing the paper without intending to do so, imported negligence per se, and rendered the party liable.”
In 60 Mo., the syllabus is as follows:
“ Where it appears that the party sought to be charged intended to bind himself by some obligation in writing, and voluntarily signed his name to what he supposed to be the obligation he intended to execute, having full and unrestricted means of ascertaining for himself the true character of such instrument before signing it, but neglecting to avail himself of such means, and relying upon the representations of another as to the contents of the instrument, signed and delivered a promissory note instead of the instrument he intended to sign, he cannot be héard to impeach its validity in the hands of a bona fide holder.”
The case from Minnesota is a strong case. In that it appeared that Peterson supposed he was signing a receipt for a plow — it was read to him by the agent, and read as such; Peterson could not read English, and there were no persons within a half-mile who could do so; the court excluded the evidence that it was obtained by fraud, on the grounds—
“That where a party, through neglect of precaution within his power, affixes his name to that kind of a paper without knowing its character, the consequent loss ought not to be shifted from him to a bona fide purchaser of the paper. Tested by this rule, the facts which defendant offered to prove would be no defense. He signed the paper voluntarily.”
In 56 N. Y., the court, by Johnson, Judge, well says:
“To insure irresponsibility, only the utmost carelessness, coupled with a little friendly fraud, will be essential. Paper in abundance will be found afloat, the makers of which will have had no idea they were signing notes, and will have trusted readily to the assurance of whoever procured it that it created no obligation. To avoid such evils, it is necessary at least to hold firmly to the doctrine that he who, by his carelessness or undue confidence, has enabled another to obtain the money of an innocent person, shall answer the loss. If it be objected that there must be a duty of care in order to found an allegation of negligence upon the neglect of it, it must be answered that every man is bound to know that he may be deceived in respect to the contents of a paper which he signs without reading. When he signs an obligation without ascertaining its character or extent, which he has the means to do, upon the representations of another, he puts confidence in that person; and if injury ensues to an innocent third person by reason of that confidence, his act is the means of the injury, and he ought to answer to it.”
fwe think therefore the ruling of the district court in this respect was correct, and must be sustained. ¡
The second question we shall notice is this: Plaintiff introduced the testimony of experts to prove by comparison of handwriting that the signature to the note was that of defendant. In respect to the genuineness of this signature six witnesses were introduced, two of whom testified that they were acquainted with the handwriting of defendant, while the others testified only from the comparison of this signature with certain other signatures admitted by defendant to be genuine. That this kind of testimony is competent, can no longer be considered an open question in this court. (Macomber v. Scott, 10 Kas. 335; Joseph v. Bank, 17 id. 256; Abbott v. Coleman, 22 id. 250.)
But the claim of counsel is, that these witnesses did not show themselves to be technically experts. Without attempting to notice the testimony of these witnesses, we may say in general that each of the four, with perhaps the exception of the county treasurer, H. W. Bunker, showed that he had been for a length of time engaged in a business which necessitated the comparisons of signatures, and that he had in fact been in the habit of making such comparisons. Whether in the case of the witness Bunker, the mere fact that he had been county treasurer was enough to show him familiar with the comparison of handwritings, and therefore competent as an expert, may be doubted; but as to the others, they were clearly within the rule. It is not necessary, in order to make a man an expert, and qualified to testify as to the comparison of handwritings, that he should have made such comparisons a single specialty. It is enough that he has been engaged in some business which calls for frequent comparisons, and that he has in fact been in the habit for a length of time of making such comparisons. Of course the value of such testimony will vary with different witnesses, and this is a matter to be determined by the jury, after hearing the witnesses state the extent to which they have been in the habit of making such comparisons. It is enough now to say, that each of these witnesses, with perhaps the exception of the witness Bunker, was competent.
The third question we shall consider is this: The first instruction given was as follows:
“If the jury believe from the evidence that defendant signed the note in question, and delivered it to a person representing himself to be an agent of Wilson, Parks & Co., and that said person assigned and delivered the note to the agent of the plaintiff for a good consideration, and the plaintiff is now the owner and holder of the note, then you will find for the plaintiff for the amount of the note and interest.”
In explanation of this instruction, it may be remarked that the party who obtained the note represented himself as the agent of Wilson, Parks & Co., a firm doing business in Quincy, Illinois, and that within a day or two after its execution plaintiff purchased the note from a party representing himself as the agent of such firm, who at the time indorsed the firm’s name. The defendant in his affidavit of denial alleged that there was no such firm as Wilson, Parks & Co. He introduced the deposition of certain witnesses from Quincy, Illinois, tending strongly to show that there was no such firm at that place. There was no counter testimony, and no contradiction by plaintiff of such claim and testimony of defendant. It left the case in such condition that the court was justified in assuming that there was no such firm, that the payee’s name therefore was fictitious. Under these circum stances the instruction was correct. (1 Daniel on Negotiable Insts., § 139 Rogers v. Ware, 2 Neb. 29; Farnsworth v. Drake, 11 Ind. 101; Forbes v. Espy, 21 Ohio St. 474; Blodgett v. Jackson, 40 N. H. 21; Lane v. Krukle, 22 Iowa, 399; Phillips v. Im Thurn, 114 English Com. Law, 694.)
In 1st Daniel, supra, the author thus expresses the rule:
“In the case of a note payable to a fictitious person, it appears to be well settled that any bona fide holder may recover on it against the maker as upon a note payable to bearer. It will be no defense against such bona fide holder for the maker to set up that he did not know the payee to be fictitious. By making it payable to such person he avers his existence, and he is estopped as against a holder ignorant of the contrary, to assert the fiction. . . . Where a note has as its payee a fictitious firm, and the holder indorses it, assuming the firm’s name, a bona fide indorsee may recover against the maker.”
These are all the substantial questions. There remain two or three minor matters, which perhaps we ought to notice. Plaintiff asked the defendant if he had not been in almost constant litigation for the last seven or eight years. Again, in deciding a question on the admissibility of testimony, the court stated the rule of law applicable to cases of this kind, and followed it by a statement of its own experience while engaged in the practice. As the court overruled the above question, and as the rule announced was in harmony with that given in the instructions, and which we have just now examined and approved, and as the experience stated was also in accord with that rule, we cannot think that the substantial rights of the defendant were in any way prejudiced.
Again, it is insisted that the court erred in requiring the defendant, at the instance of the plaintiff, to take two or three papers and read them in the hearing of the jury. As the principal fact of negligence charged against the defendant was the failure to read when he had the ability to read, proof of the latter was important, and an actual test in the court room before the jury, as permitted, was a very satisfactory and we think a proper test.
We see nothing else requiring notice. Upon, the main and pivotal questions, the ruling of the court was correct, and therefore the judgment must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Merritt A. Thompson against H. H. Warner, before a justice of the peace of McPherson county, Kansas, to recover $45, as damages for the alleged breach of an executory contract. The plaintiff’s bill of particulars reads as follows:
“Merritt A. Thompson, plaintiff herein, alleges that an agreement was made, on or about May 26, 1883, by and between H. H. Warner, the defendant herein, (through one H. W. Flahavan, who was agent of the said defendant,) and this plaintiff, whereby the said defendant agreed to sell to the plaintiff one certain iron fire-proof safe, then in the possession of Loomis Brothers, at McPherson, Kansas, (Loomis Brothers being a firm doing business at McPherson under said name and style.)
“And further alleges that the defendant agreed to deliver the said safe to the plaintiff, after the arrival of a new safe to be consigned and shipped by railroad to the said Loomis Brothers by the defendant; and appointed the said Loomis Brothers to make delivery to the plaintiff of said safe upon the happening of the aforesaid event.
“And further alleges that the price to be paid by him was thirty dollars — one-half cash on delivery, and one-half on a ■credit of three months.
“Plaintiff further alleges that the new safe to be consigned to Loomis Brothers, as stated aforesaid, arrived at the depot of the A. T. & S. F. Rld. Co. in the city of McPherson about the middle of July, 1883, and the said Loomis Brothers were fully informed of the same, and have had ample time and opportunity to have taken possession of the said new safe and to have delivered possession of the said old safe to this plaintiff; but instead of so doing they absolutely refused to deliver the said old safe to the plaintiff.
“Plaintiff alleges that after the arrival of the said new safe, and on or about July 25, 1883, he made demand of the said Loomis Brothers of the possession of the said secondhand safe, but was peremptorily and totally refused, they, the said Loomis Brothers, declaring that they should neither accept the new safe nor let go the old one.
“Plaintiff alleges that he has at all times stood ready to perform his part of the agreement with the defendant aforesaid, and has done all things necessary and proper to be done on his part in order to carry out the said agreement and to obtain possession of the said' safe, but that the defendant has wholly failed on his part to perform his said agreement.
“And further alleges that the fair value of the said second hand safe was seventy-five dollars ($75,) and that he has suffered damage by the defendant’s failure to fulfill his said agreement to the amount of forty-five dollars, and claims a judgment for that amount.”
The defendant demurred to this bill of particulars, upon the ground that it did not state facts sufficient to constitute a cause of action; and the justice of the peace sustained the demurrer. The plaintiff then took the case to the district court upon petition in error, where the judgment of the justice of the peace was affirmed; and the plaintiff, as plaintiff in error, now brings the case to this court and asks that both the judgment of the district court and the judgment of the justice of the peace be reversed.
Passing over the first and second points made by the plaintiff in error in his brief, which points we think are wholly untenable, we shall consider more at length the third point made by him in his brief. The third point is substantially that the plaintiff’s bill of particulars did state facts sufficient to constitute a cause of action, and therefore that both the justice of the peace and the district court erred in holding otherwise. Upon this point we think the plaintiff is correct. We think the plaintiff made a good contract for the purchase of the second-hand safe mentioned in the bill of particulars, and under such contract the defendant was bound to deliver the safe, or cause the same to be delivered to the plaintiff; and for the failure and refusal to so deliver the safe the defendant is liable.
The defendant, however, claims that the entire trouble was caused by the Loomis Brothers, and not by the defendant, and therefore that the defendant is not responsible. In this we think the defendant is mistaken. The defendant was to deliver to Loomis Brothers a new safe, and was to cause Loomis Brothers to deliver the old one to the plaintiff; and the defendant was responsible for any failure on the part of the Loomis Brothers to deliver the old safe to the plaintiff, whatever may have been the cause of such failure. Possibly, as between the defendant and the Loomis Brothers, the de fendant has no right to complain. Possibly the defendant did not fulfill his contract with them. Possibly, under the contract between him and them, they were not bound to accept the new safe which the defendant shipped to them, and were not bound to deliver the old safe to the plaintiff; but, under the contract between the plaintiff and the defendant, the defendant was evidently bound to see that the old safe was delivered to the plaintiff.
The defendant also claims that the plaintiff did not make any tender of the $15 which he was to pay on the delivery of the safe. Now it was not necessary, under the circumstances of this case, that any such tender should be made; for the safe was never delivered, and no offer was ever made to deliver the same, but on the contrary, the parties having the same in possession, and representing the defendant, utterly failed and refused to deliver the same. The plaintiff was not bound to do a foolish thing. He was not bound to tender the money for the safe when he knew that the safe would not be delivered. The defendant, however, claims that this payment was a condition precedent. Now for the purpose of the case we might treat it as a condition precedent, and still the plaintiff’s bill of particulars would be sufficient. Section 122 of the civil code reads as follows:
“Sec. 122. In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly performed all the conditions on his part; and if such allegations be controverted, the party pleading must establish on the trial the facts showing such performance.”
But we do not think that the payment of this money was a condition precedent. In fact, the delivery of the safe and the payment of the money were concurrent and dependent acts, to be performed by the parties contemporaneously, and one was no more a condition precedent than the other; or, if either was more a condition precedent than the other, then under the allegations of the pleadings it was the delivery of the safe, and not the payment of the $15, that was the condition precedent. We shall treat the two acts, however, as dependent and concurrent; and in such a case, where one of the parties is ready and willing to perform, and the other ¡S' unwilling and refuses, the one who is ready and willing may commence an action without making any formal tender of performance on his part.
We think the plaintiff’s bill of particulars states facts sufficient to constitute a cause of action, and therefore that both the justice of the peace and the district court erred.
The judgment of the district court will be reversed, and the cause remanded for further proceedings.
All the Justices concurring.
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The' opinion of the court was delivered by
Horton, C. J.:
On May 13, 1881, King brought his action against the Atchison, Topeka & Santa Eé railroad company for injuries sustained by him in consequence of the negligence of the company’s agents, and by the mismanagement of other employés of the company, while he was attending to his duties as an employé of the company with other section hands, in handling, removing and changing the location of iron rails used by the company in the construction of the track of its road. A general demurrer was filed to the petition, which, upon argument, was sustained at the October term of the court for the year 1881. King was granted leave to file an amended petition. This was filed November 17, 1881. A general demurrer was filed to this amended petition, which demurrer was sustained at the April term of the court for the year 1882. Thereupon King was given leave to file another amended petition. On July 29, 1882, the second amended petition was filed. To this petition another general demurrer was filed, which demurrer, at the October term of the court for 1882, was overruled. The company excepted. On December 20, 1882, the company filed an answer, alleging, among other things, that the injuries complained of by King in his petition did not occur to him within two years preceding the commencement of his action. Trial had at the April term for 1883. Judgment was rendered for King. The company objected to the introduction of any testimony under the petition, and also demurred to the evidence offered in support thereof, upon the ground that the cause of action therein stated was barred by the statute of limitations when it was commenced. Therefore the first question to be disposed of in the case is, whether the action was barred on the 13th day of May, 1881, the date the petition was filed. The second and third subdivisions of §18 of the code read as follows:
“Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.
“Third. Within- two years: An action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an action for injury to the rights of another, not arising on contract, and not hereinafter enumerated; an action, for relief on the ground of fraud — the cause of action in such case shall not be deemed to'have accrued until the discovery of the fraud.”
On the part of King it is contended that the action is founded on §1, ch. 93, Laws of 1874, (§29, ch. 84, Comp. Laws of 1879;) and as the action' is not maintainable at common law, it is based upon a liability created by statute, and therefore the three-years statute of limitations applies.
On the part of the railroad.company it is insisted that the action was barred by the third subdivision of said §18 of the code. In support of this view, counsel urge that the language, “injury to the rights of another, not arising on contract, and not hereinafter enumerated,” defines a class of injuries, and carves such class out of the general rule given in the second clause; that the injury complained of by King is clearly one to his rights, not arising on contract, and not contained in any of the enumerated exceptions to the third subdivision of the section under consideration; that the only exception made by the statute is of the cases “hereinafter enumerated; ” that if the legislature had intended the rule should be subject to any case provided for in any previous section or subdivision, it would have expressed such intention.
We think these latter views expressed by counsel are in the main correct. It is conceded that if King had been injured by a coemployé, and the company had failed to exercise due care and diligence in employing or retaining such coemployé, the two-years statute of limitations would apply.
Again, under §422 of the code, which provides for an action for damages by the personal representative of one killed by the negligence' of another, the time for bringing the action is limited to two years. The státuté should be construed, if possible, to harmonize its various provisions, and give reasonable effect to all; and in reconciling conflicting clauses, force should be given to those clauses which would make the statute in harmony with other legislation op the same subject. As was said in Piller v. Railroad Company, 52 Cal. 45, “It is hardly to be believed that it was intended that a longer time should be given when the person injured was not killed.”
The liability of the railroad company for the injury complained of accrued when the accident occurred; and by construing the words “an action for injury to the rights of another, not arising on contract,” as qualifying and limiting subdivision 2 of said §18, we give full force to the terms of subdivision 3, and leave the concluding clause of said subdivision to operate in other matters. We follow the true rule of construction, and make the various provisions of the statute of limitations harmonize for the commencement of a cause of action for a personal injury resulting from the negligence of the master, and for one resulting from the negligence of a coemployé in the service of a railroad company without the fault of the master, and also for a cause of action by the representative of the injured party, when the injury results fatally.
The trial court erred in overruling the demurrer to the petition; erred in admitting testimony against the objections presented; and erred in not sustaining the demurrer to the evidence.
The judgment of the court below must therefore be reversed, and the cause remanded with direction to sustain the demurrer to the petition, and enter judgment for the railroad company.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by Agnes Madren against Horatio Pritchard, in the district court of Greenwood county, Kansas, to recover the south half of the north half of the southwest quarter of section 12, in township 22, of range 11, in said county. The ease was tried before the court without a jury, and the court made certain findings and conclusions; and thereon rendered judgment in favor of the plaintiff and against the defendant for the recovery of the property, and for $300 damages, and for costs.
To reverse this judgment, the defendant brings the case to this court.
The plaintiff in error, defendant below, claims that the court below erred in several particulars. He claims: 1st, that the findings of fact are not sustained by sufficient evidence; 2d, that the conclusions of law and the judgment are not sustained by the findings of fact; 3d, that the court below erred in admitting in evidence the record of the case of Pritchard v. Madren; 4th, that the court below erred in admitting in evidence the sheriff’s deed to Greenwood county; 5th, that the court below erred in excluding certain parol evidence tending to show that the land conveyed by said sheriff’s deed, which is the land in controversy, had never in fact been appraised.
I. The findings of fact have all been preserved and brought to this court, but the evidence has not; hence the findings of fact, as made by the court below, must be considered as sufficiently sustained by the evidence.
II. It appears from the findings of fact, that the plaintiff, Pritchard, holds title to the property in controversy from the original patentee, down through intermediate owners to himself, and that he and his grantors have been in the possession of the property since 1872. Hence, unless his title is defeated or overthrown by the other facts of the case, it must be held that he is the owner of the property in controversy; that he holds the paramount title thereto; and that he is entitled to recover in this action. Among the other facts of the case as found by the court below, are the following: On October 3, 1877, the board of county commissioners of Greenwood county, Kansas, in pursuance of chapter 39, of the Laws of 1877, page 69, et seq., commenced an action in the district court of said county against the property in controversy, along with other property, to foreclose certain alleged tax liens thereon, and to sell the property for the taxes alleged to be due thereon. The property in controversy was described as belonging to Margaret Pritchard. Service of summons was made by publication. At the May term of the court in 1878, judgment was rendered against the property in controversy for the taxes, interest and penalties then due thereon, amounting in the aggregate to the sum of $66.47 and costs, and the property was ordered to be sold for the payment of such judgment and costs. Afterward, on November 11, 1878, in pursuance of such judgment and the law, the property was in fact sold at sheriff’s sale to the county of Greenwood, and the sale was afterward, on November 23,1878, confirmed by the court; and on January 1,1879, a sheriff’s deed was duly executed to the county, in pursuance of such sale. This deed was duly recorded on February 3, 1879. On February 28, 1879, the county, in consideration of $24, sold and conveyed by deed of general warranty the property in controversy, to Matthias Madren; and this deed was recorded March 3, 1879. On June 2, 1879, Madren, in consideration of $1,000, sold and conveyed by deed of general warranty, the property in controversy to Agnes Seward. Afterward, and on the same day, Madren and Agnes Seward were married, and became husband and wife. On July 19, 1879, Pritchard commenced an action against Madren to quiet his (Pritchard’s) title to the property in controversy; and at the. November term of the court in 1879, judgment was rendered in favor of Madren and against Pritchard for costs. - On January 15,1880, the deed from Madren to Agnes Seward was duly recorded. On May 13,1880, the case of Pritchard v. Madren was taken to the supreme court, where, at the July term of the supreme court in 1880, the judgment of the district court was affirmed. (Pritchard v. Madren, 24 Kas. 486.) On January 26, 1881, this present action of ejectment was commenced by Agnes Madren, formerly Agnes Seward, against Pritchard. . On May 10, 1881, Pritchard filed a motion under §77 of the civil code} to open up the judgment rendered in the case of the board of county commissioners of Greenwood county against the property in controversy, which motion was at first overruled; but finally, after the case had been taken to the supreme court, (Pritchard v. Comm’rs of Greenwood Co., 26 Kas. 585,) and the order of the district court overruling the motion reversed, the motion was conditionally allowed, and a new trial was had, which new trial resulted in modifying the former judgment in the case, by reducing the amount thereof from $66.47 to $26.22. In no other respect was the former judgment in the case disturbed. The judgment .as thus modified seems to be still in force, unpaid and unsatisfied. On May 19, 1882, the judgment in this present ejectment case was rendered as aforesaid in favor of Mrs. Madren and against Pritchard; and this is the judgment which Pritchard, as plaintiff in error, now seeks to have reversed.
Upon the facts of the case as found by the court below, we think the judgment is correct. From such facts, it appears that the court in the case of the board of county commissioners against the land in controversy, had ample jurisdiction of the subject-matter of the action, and sufficient jurisdiction of all the parties interested therein; and that all the proceedings had in such action from its commencement down to and including the final execution of the sheriff’s deed, were sufficiently regular and valid to render such proceedings invulnerable to any collateral attack in any collateral proceeding; and the property in controversy has gone into the hands of an innocent purchaser. Nearly all the questions arising upon the foregoing facts have already been adjudicated and settled by the decisions of this court, above cited. It appears that on the second .trial in the case of Pritchard against the commissioners of Greenwood county, or, rather the commissoners against Pritchard and the land in controversy, the judgment was reduced from $66.47 to $26.22; but this modification of the original judgment certainly cannot have the force or effect to destroy the title to the property already vested in Mrs. Madren. (See §§77 and 467 of the Civil Code; Howard v. Entreken, 24 Kas. 428; Rorer on Judicial Sales, § 132; Freeman on Executions, §345.) These sections of the .statute and this decision we think are conclusive upon the subject. Mrs. Madren purchased the property in controversy in good faith, paying therefor the sum of $1,000, upon the faith of a judgment of a court of competent jurisdiction; and this at a time when it does not appear that any question had ever been raised with regard to the validity or regularity of the judgment, or with respect to the title to property founded upon such judgment.
It is claimed, however, by the plaintiff in error, defendant below, that the findings of fact show that there were some irregularities in the original tax proceedings. Now even if there were any such irregularities in the original tax proceedings, still they were matters for consideration and adjudication in the ease of the board of county commissioners against the property in controversy, and should have been adjusted in that case. But whether they were adjusted in that case or not, they cannot now be brought forward for the purpose of being litigated in this case, or for the purpose of defeating or annulling the judgment rendered in that ease, or for the purpose of destroying the fruits of that judgment. The principal supposed irregularity mentioned by the plaintiff in error, defendant below, is with reference to the redemption of an undivided half of the north half of a piece of land which includes the land in controversy, when in fact the whole of such piece of land was taxed in gross and sold in gross. Upon this subject, see § 100 of the tax law of 1868, and § 127 of the present tax law, and the case of Corbin v. Inslee, 24 Kas. 160. Under these sections and this decision, we think the supposed irregularity hardly amounts to an irregularity; indeed, it does not amount to an irregularity at all. But even if there had been irregularities in the tax proceedings, still the plaintiff in error, defendant below, cannot litigate them in this action, for all these matters must be considered as having been settled in the action of the board of county commissioners against the land in controversy, and as having become res adjudieata.
III. No material error was committed in admitting in evidence the record of the case of Pritchard v. Madren. If it proved any material fact in the case, then it was rightfully admitted; for no question was then, or is now, raised with regard to the preliminary proof authorizing its admission; but if it did not prove anything in the case, then no harm was done. In this connection, defendant in error cites: Parrish v. Ferris, 67 U. S. (2 Black), 606; Stark v. Stark, 1 Sawyer (U. S. C. C.), 270, 275; and Freeman on Judgments, §309. These authorities were cited by the defendant in error upon the theory that the matters and things in issue in the present case were litigated in the case of Pritchard against Madren, and therefore that such matters and things had become res adjudieata prior to the commencement of this action. Upon this question we express no opinion.
IV. The plaintiff in error, defendant below, claims that the court below erred in admitting in evidence the said sheriff’s deed; and this he does for two reasons: (1) The judgment recited in the sheriff’s deed appears to be for a sum in gross, when it should have been, as the plaintiff in error claims, a separate judgment for the amount of the taxes, etc., upon each separate tract of land; (2) the sale itself was in gross and in the lump, when it should have been, as the plaintiff in error claims, a separate sale of each separate tract of land.
The sheriff’s deed recites, among other things, the following:
“The said plaintiff, the board of county commissioners of Greenwood county, by the consideration of said court, recovered a judgment against the above-described real estate and other property, and said other defendants and others unknown, for the sum of ten thousand and twenty-five and y2-^ dollars, being the amount of the taxes, interest and penalties assessed thereon and then due, and all costs in and about said action expended, taxed at one hundred and eighty-one and dollars.”
Now this seems to indicate that the above-mentioned judgment was in fact, as is claimed by the plaintiff in error, rendered for a sum in gross. Such, however, was not the case, and the foregoing quotation from the sheriff’s deed does not conclusively show that such was the case. The judgment was in fact rendered as a separate judgment against each separate ■tract of land for the taxes, etc., due on each of such separate tracts of land. But suppose the judgment was rendered as the plaintiff in error claims, it would still not be void, for the reason that the court rendering the same had ample jurisdiction of the subject-matter of the action in which such judgment was rendered. The judgment at most would be only irregular and voidable, and could be attacked only by some direct proceeding, and cannot be attacked in the manner in which the plaintiff in error now seeks to attack it. The judgment, however, was in fact regular, and was not rendered in the manner in which the above quotation from the sheriff’s deed would seem to indicate. This point, therefore, we think is not well taken.
The plaintiff in error, defendant below, also claims that the sale was void because it was a sale in the lump of several separate and distinct tracts of land. The sheriff’s deed upon this subject recites, among other things, the following:
“And whereas, on the said 11th day of November, 1878, at 10 o’clock A. M. of said day, at the court-house door aforesaid, the said sheriff did offer the said lands and tenements, to wit: [Here a great many pieces of land, including the land in controversy, are described,] for sale; and whereas no person did bid two-thirds of the appraised value of said lands and tenements, the said sheriff did sell the same to Green wood county for the sum of ten thousand eight hundred and sixty-one and dollars, said sum being not less than the amount of the taxes, penalties, interest and charges thereon, and no person having offered a higher price therefor.”
This would seem to indicate that the sale was made in the lump, although it is our understanding that the sale was in fact made of each particular tract of land. For the purposes, however, of this sheriff’s deed, we shall consider that the sale was in fact made in bulk: and then is the deed void ? The great weight of authority would seem to be that neither the deed nor the sale is void, but at most only voidable; and that in order to defeat either the sale or the deed, it must be attacked by some direct and appropriate proceeding. (See Johnson v. Hovey, 9 Kas. 65; Paine v. Spratley, 5 id. 525; Bunker v. Band, 19 Wis. 271; Raymond v. Pauli, 21 id. 531; Raymond v. Holborn, 23 id. 57; Tillman v. Jackson, 1 Minn. 183; San Francisco v. Pixley, 21 Cal. 56; Williams v. Allison, 33 Iowa, 279; Cunningham v. Cassidy, 17 N. Y. 276; Mohawk Bank v. Atwater, 2 Paige’s Ch. 54; Van Valkenburg v. Trustees, 66 Ill. 103; Evans v. Wilder, 5 Mo. 313; Rector v. Hartt, 8 id. 448; Winters v. Heirs, &c., 6 Coldw. 328.)
In Michigan and Indiana, the decisions are the other way under local statutes, though the following decisions in Indiana are in accordance with the general rule: West v. Cooper, 19 Ind. 1; Patten v. Stewart, 19 id. 233. See also upon this subject, Freeman on Executions, §296; Borer on Judicial Sales, §749, et seq.
The proper way to attack a sheriff’s sale for irregularities is by motion, in the same ease and before confirmation of the sale, to set aside the sale. There may be other proper modes of defeating irregular sheriffs’ sales and sheriffs’ deeds, bu,t we do not think it is necessary now to refer to them. We shall refer to this subject hereafter.
~V. The plaintiff in error, defendant below, also claims that the court below erred in excluding certain parol evidence tending to prove that the land in controversy was not appraised before it was sold at sheriff’s sale. On the trial, he first offered to prove that the land in controversy had not been appraised upon actual view.; and secondly, he offered to prove that the appraisers, through a mistake, appraised a tract of land immediately south of the land in controversy, and did not appraise the laud in controversy at all. The court refused to permit the plaintiff in error, defendant below, to introduce this kind of evidence, and this he claims was error. The record of the case in which the sheriff’s deed was executed, shows that the property was in fact appraised, and duly appraised, by the appraisers upon actual view. Now can the plaintiff in error, defendant below, in this collateral proceeding, and by parol evidence, show that this record was not true? Can he show it after the sale has been made and confirmed; after a sheriff’s deed has been executed; and after the property has gone into the hands of an innocent purchaser — and all this in a collateral proceeding? Under the authorities, we think this question must be answered in the negative. (Paine v. Spratley, 5 Kas. 525; Freeman on Executions, §§311 and 343; Rorer on Judicial Sales, § 1059.)
VI. We now wish to make some general remarks upon the questions involved in the present case, and also with reference to chapter 39 of the Laws of 1877. This is the chapter under which the case of the board of county commissioners of Greenwood county against the land in controversy was prosecuted, and the law in pursuance of which the judgment was rendered, the sheriff’s sale made, and the sheriff’s deed executed under which the defendant in error, Mrs. Madren, claims the property in controversy. The action under said chapter 39 is of course an action in rem, but it also partakes of the nature of an action in personam. A petition is to be filed in such action, which is to be a petition not only against the real estate upon which taxes are due, but also to some extent a petition against the owners of the property. Section 4 of said chapter provides, among other things, as follows:
“The owners and all persons interested in any such real estate shall be considered as personally parties defendant in the proceedings provided for in this act, whether named in such petition or not, and the words ‘and others unknown’ shall be inserted with the defendants named in such petition; and by those words all owners and- persons interested in any such real estate shall be deemed and held to be made defendants, the Same as though personally named in the petition, publication and other proceedings in this act provided for, and shall be bound accordingly by every judgment or order in the case.”
A judgment is rendered as in other eases, and an order of sale issued, and the sale is to “ be made and conducted in all respects as sales upon execution.” (Sec. 2 of the act.) The real estate may be sold to the county, just as it was sold in this case; and when sold to the county, “the sheriff shall execute a deed to the board of county commissioners of said county,” (sec. 5 of the act;) and the county may then “take possession of and sell, rent or dispose of such real estate the same in all respects as private individuals; and all deeds made in pursuance of any sale made by virtue of this act shall be made in the same form and shall have the same effect and the purchaser at such sale be entitled to the same remedies, relief and protection, as purchasers at sales on foreclosure of mortgage, or sales on execution.” (Sec. 6 of the act.) And Mr. Rorer, in his work on Judicial Sales, §1.059, uses the following language:
“A sheriff’s deed on execution sale to a bona fide purchaser, if regular in itself, cannot be impeached in a collateral proceeding for mere error or irregularity in the proceedings, judgment, execution or return, or for want of a return, if there be a valid judgment and execution, nor for the reason that the appraisers, where the sale is under the appraisement law, acted without seeing the land, nor by parol evidence that the execution on which the sale was made was withdrawn, or that the levy had been abandoned before the sale, nor because the execution issued out of season, or for any fault of the sheriff in not following the statute, if the court has jurisdiction of the case from which the execution' emanated, nor by any failure of the sheriff to advertise, if the purchaser be a bona fide one.” (See also Freeman on Executions, § 343.)
We have discussed all the material points presented by counsel, and have reached a conclusion that the judgment of the court below must be affirmed. And while probably under the facts of the case it is only justice to the defendant in error, yet it works great hardship to the plaintiff in error. By this decision the plaintiff in error loses property worth probably $1,000 for the taxes due upon it, amounting to only $26.22. This is partially due to the negligence of the plaintiff in error in not examining the records of the county carefully to see. whether all taxes due upon his land were paid or not, and if not, to pay the same; and partially to the fault of the statute, said, chapter 39. Under said chapter, the sheriff’s deed is not to be construed as a tax deed, but is to be construed as any other sheriff’s deed; and the owner of the property has no equity of redemption. If the legislature had given some reasonable time within which the owner of the property might redeem the land after the sheriff’s deed was executed, probably no such hardship as the present would have occurred or could occur. Tax deeds may be held void for irregularities that will not render sheriff’s deeds void; but when tax deeds are declared void, the party holding them usually recovers the taxes which he has paid. But if this present deed was held void, there is no provision of statute authorizing the holder thereof, or his grantee, to recover anything. There is no provision of the statute authorizing any equitable adjustment in such cases between the original owner of the land and the holder of the sheriff’s deed, or his grantee. If the sheriff’s deed is valid, it would seem that the holder thereof or his grantee must recover all, and the original owner of the property lose all; but if the sheriff’s deed is void, then the holder of the sheriff’s deed or his grantee must lose all, and the original owner of the property recover all. This would hardly seem just; but yet if it is the law, it must prevail.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This opinion is intended to apply to two different cases: The State of Kansas v. Michael Crimmins, and The State of Kansas v. Charles Hahn. In each of these cases the defendant was charged with selling intoxicating liquors without a permit, and was found guilty and fined $100, and adjudged to pay the costs of the suit. The information in each of these cases contained five counts; each of which counts charged the same kind of offense, and charged the same in the same form and substantially in the same language. As to the joinder of counts, see the case of The State v. Chandler, ante, p. 201. The county attorney elected to prosecute each defendant under the fifth count of the information in each case respectively. The count under which Crimmins was prosecuted reads as follows:
“And the said Henry L. Alden, as county attorney in and for the county of Wyandotte, in the state of Kansas, prosecuting for and in behalf of said state, within the county of Wyandotte, in the name and by the authority and on behalf of the said state of Kansas, now here in and to the district court of said county of Wyandotte and state of Kansas, further information gives, that Michael Crimmins, at said county of Wyandotte, state of Kansas, within the jurisdiction of this court, on or about the first day of March, 1883, at and in a certain one-story frame building, situate and being on lot number one hundred and seventy-five (175) on James street, in Kansas City, Kansas, according to the plat of said city on file and recorded in the office of the register of deeds for said county, without taking out and having a permit to sell intoxicating liquors, as provided by the statutes in such case made and provided, did unlawfully sell and barter certain spirituous, malt, vinous, fermented and other intoxicating liquors, contrary to the statute in such case made and provided.”
We think this count is sufficient. (The State v. Schweiter, 27 Kas. 499; The State v. Shackle, 29 id. 351; The State v. Hunt, 29 id. 762.)
The count under which Hahn was prosecuted is substantially in the same form as the count under which Crimmins was prosecuted. Each defendant was properly arraigned, each pleaded not guilty, each was tried separately before the court and a jury, in each case several witnesses testified with respect to several sales of different kinds of intoxicating liquors made by the defendant in each case respectively to different persons at different times, and each defendant was found guilty as aforesaid. In the Crimmins case, after all the evidence on the part of the state was introduced, the defendant moved the court to require that the state elect upon which transaction under the evidence it would rely for a conviction, and the court sustained the motion; and the state then elected in the following manner, to wit:
“The state, by its county attorney, elects to rely for a conviction in this action upon a sale of intoxicating liquor, to wit, whisky, or what is commonly known as whisky, by said defendant made to one George Durham, as shown by the evidence herein.
“The defendant then moved the court to require the state to make its election more definite and certain, in this, that the state be required to elect a specific sale among the alleged sales to George Durham, giving the day; month, etc., so as to make it a separate and single transaction; which motion the court overruled, and defendant then and there excepted. And thereupon defendant moved the court that he be discharged, for the reason that the state had made no such election of a single transaction of the sale of intoxicating liquors, as is provided by law to put the defendant on his defense; which motion the court overruled; to which ruling of the court the defendant then and there excepted, and declined to enter upon any defense.”
The said George Durham testified on the trial as follows:
“I live in Kansas City, Kansas; have known Michael Crimmins over a year, and have been acquainted with him over one year; his place of business is 175 James street, Kansas City, Kansas; have been acquainted with that place since it was a place; have been in that bar, but not lately— over four months ago; those are the premises I know to be his place of business; I saw bar-room furniture, consisting of counter, chairs; I saw bottles, glasses on and behind the counter; I bought whisky there; cannot state the time I bought whisky of Mr. Crimmins; paid him ten cents per drink for it; it was in November I bought whisky there — once or twice of Mr. Crimmins, the defendant; bought lager beer there; I bought" beer of the bar-keeper; I think when I bought whisky of Crimmins it was in November, when I paid him ten cents per drink.”
(Cross-examined.) “ I belonged to the temperance reform club about four months. Have not attended their meetings for two months. I thought I might be subpenaed. It was talked of; I think it was in November. Cannot be certain whether it was in November or December. Cannot state how many times I bought whisky at that house. Cannot state any particular time. I noticed the number. Think I bought whisky twice — in November I think it was. I will not say I drank liquor more than twice. Don’t know the time of day I took the first or second drink. It was before going to work. I don’t know the time. I think I got the beer of the man called Toots. I got beer there near the same time. Cannot say how many times I got beer there. I had not drank whisky but a few times. I never knew but the two carrying on business there. I don’t know; it would be difficult to tell who waited on me at all times. The time Crimmins waited on me was the last. I swear positively Crimmins gave me whisky there. The bar-keeper waited on me once. I had been indulging in beer a couple of days before I took the whisky. I think I cannot be mistaken. Have not examined the number for the purpose of testifying. I never told anybody I got beer and whisky at this place.”
In the Hahn case, the questions with respect to election are substantially the same as in the Crimmins case.
We suppose that upon a criminal trial, where the state has offered evidence tending to prove several distinct and substantive offenses, it is the duty of the court, upon the motion of the defendant, to require the prosecutor, before the defendant is put upon his defense, to elect upon which particular transaction the prosecutor will rely for a conviction. (The State v. Schweiter, 27 Kas. 500, 512.) Any other rule would often work injustice and hardship to the defendant. If any other rule were adopted, the defendant might be charged with the commission of one offense, tried for fifty, compelled to make defense to all, be found guilty of an offense for which he had made no preparation and had scarcely thought of, and found guilty of an offense which was really not intended to be charged against him; and in the end, when found guilty, he might not have the slightest idea as to which of the offenses he was found guilty. Also, if evidence was introduced tending to prove twelve or more different offenses, the jury might find him guilty without any two of the jurors agreeing that .he was guilty of any particular one of such offenses. One juror might believe that he was guilty of one offense, another juror of another, and so on with respect to all the jurors and all the offenses, each juror believing that the defendant was guilty of some one of the offenses which the evidence possibly' tended to prove, but no two jurors agreeing that he was guilty of the same identical offense. But while the prosecutor is required to elect in such eases, he is required to elect only in furtherance of justice; and the rule is never carried to the extent of working injustice. A court in such cases has some discretion; and it should exercise that discretion in the interest of justice.
In the present case, the court required the prosecutor to elect, and the prosecutor did elect; but he failed to make the election as definite and certain as the defendant desired. In each case, the election was to rely for a conviction upon a sale of whisky: in one case made by the defendant to George Durham, and in the other case made by the defendant to William Thornton. In each case, the only thing indefinite or uncertain was the date of the sale; but the prosecutor could not have made the election much more definite in this particular, for the evidence itself was not as definite as it ought to have been. The defendant in each case was informed by the information, the evidence and the election, taken together with respect to the person to whom the liquor was sold, the place where sold, the time when sold, though the time was not fixed very definitely, and that the liquor claimed to have been sold was whisky; and in both cases the defendants were undoubtedly guilty. In one case it appears that the sale was made in November or December, 1882, and in the other case in August, 1882.
We think the election of the county attorney, under the circumstances of the present case, was sufficient. The election was about as definite and certain as it could well have been made under the circumstances. The different sales were not well defined, or designated by the evidence, and could not well have been described more particularly than they were described by the county attorney when he made the election, and to have required the county attorney to make his election as definite and certain as the defendant in each case desired, would have resulted in the discharge of both the defendants, although they were each unquestionably guilty, and each guilty of several offenses, instead of merely one. Such a result should not be brought about if it could well be avoided. Besides, we do not think' that there was any room in the present case for the jury to find either of the defendants guilty unless all the jurors agreed that such defendant was guilty of the same identical offense, or the same identical offenses. And the verdict and sentence in each of the present cases will bar all further prosecution for all offenses covered by the election of the county attorney in each case respectively. That a court may exercise some discretion in requiring elections to be made in such eases as the present, see the following authorities: The State v. Smith, 22 Vt. 75; The State v. Croteau, 23 id. 14; The State v. Bell, 27 Md. 675; The Commonwealth v. O’Connor, 107 Mass. 219. (See also other cases cited in the brief of counsel for the state, as follows: Murphy v. The State, 9 Lea, 373; The State v. Sims, 3 Strobh. 137; The State v. Hood, 51 Me. 363; The Commonwealth v. Sullivan, 104 Mass. 552; George v. The State, 39 Miss. 570; The State v. Green, 66 Mo. 632; The State v. Tuller, 34 Conn. 280.)
We think no' material error was committed by the court in instructing the jury.
In the Crimmins case, the defendant claims that the verdict was not sustained by sufficient evidence; and the only ground upon which this claim is made is that the evidence did not show the year when the liquors were sold; and therefore that the evidence did not show that the offense was not barred by the statute of limitations. Under the statute of limitations, the period within which such actions must be commenced is two years. The present case was commenced March 24,1883, and the trial was had April 18,1883. The witness Durham testified that the liquors were sold in November or December, evidently meaning the next preceding November or December; or, in other words, November or December, 1882. But even if it had been in November or December, 1881, the action would not have been barred by any statute of limitations. Durham also testified that he had known the defendant over a year, and that he had been acquainted with him over a year. Now if Durham had in fact known the defendant over two years, he would not have used any such language as he did use; and if he had known him less than two years, then the action could not have been barred by the statute of limitations. Durham also testified that the liquors were purchased at the defendant’s place of business, 175 James street, Kansas City, Kansas; that he had been at the defendant’s place of business, “but not lately — over four months ago;” that he had belonged to a temperance organization for about four months; and that at the different times when he was at the defendant’s place of business, either the defendant or the barkeeper waited upon him; and that the time when the defendant waited on him was the last. All the testimony of the witness upon the subject tended to show that he purchased the liquors of the defendant in November or December, 1882 —probably in both months — and there was no evidence in this case tending to show that the defendant had been doing business at his then place of business for more than two years. Hence there is but very little room to suppose that the statute of limitations could have so operated as to bar the present action; and no such claim was urged by the defendant before the court or jury in the court below. We think the evidence was sufficient.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action by defendant in error, plaintiff below, to quiet his title. It appears that defendant claimed under a tax deed based upon a tax sale made in 1870 for the taxes of the year 1869. The district court found in favor of the plaintiff and quieted his title, adjudging defendant’s tax deed void and refusing him any relief on account of his payment of taxes. It is conceded that the tax deed was regular on its face; but it is claimed, and so the court found, that it was invalid by reason of a void assessment, an insufficient notice of sale, and a defective sale.
Two questions arise: First, Was the deed avoided by reason of any defects in the prior proceedings? Second, If defective, was the plaintiff entitled to all the relief awarded to him? In reference to the first question, it is enough to consider the notice of sale, and the sale, for upon them we think the ruling of the court against the validity of the deed must be sustained. The notice named as the place of sale the front door of the court house, at Paola, instead of the treasurer’s office, as the statute required. (Gen. Stat. 1868, p.1046, § 81.) At the time of sale the treasurer’s office was undergoing repairs, and the treasurer had temporarily removed to a room in another building. At this temporary office the sale was made. It nowhere appears from the record that the regular office of the treasurer was in the court house. We may not presume that it was, or was not, there. Section 172, p.292, Gen. Stat. 1868, required every county officer to keep his office at the county seat, and in the office provided by the county, or at such place as the county commissioners should direct. But it does not follow from this section that even in counties having a court house, the treasurer’s office is necessarily therein. Often the building is not large enough for all the county offices, and some are located in other buildings. Again, it does not appear that the sale was commenced at the front door of the court house, as advertised, and then adjourned to the room in which the treasurer temporarily had his office. So that the ease stands upon the simple'proposition that when the sale was advertised to be made at one place, it was in fact made at another. This is fatal. (See Cooley on Taxation, p. 338, and cases cited in note; Corbin v. Young, 24 Kas. 198.) Therefore the ruling of. the district court as to the invalidity of the tax deed was correct.
Upon this, as stated, the district court quieted plaintiff’s title absolutely and unconditionally, refusing defendant any relief on account of the taxes paid by him, and failing to find the amount of such taxes, or to adjudge the same a lien. In this the court erred. (Wilder v. Cockshutt, 25 Kas. 504; McKeen v. Haxtun, 25 id. 698, and cases cited in the opinion.)
The judgment will therefore be reversed, and the case remanded to the district court for further proceedings in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this ease are as follows: On July 10, 1883, the office of county attorney of Franklin county was vacant by reason of the death of C. R. Meigs, Esq., who was elected county attorney for that county at the November election for 1882. On that day the relator, Harlan P. Welsh, was appointed county attorney by Hon. N. T. Stephens, judge of the district court of Franklin county, and at once, executed his bond, took the oath of office, and entered upon the discharge of his duties as county attorney. The sheriff of Franklin county included in his proclamation for the election held November 6, 1883, the office of county attorney “to fill vacancy,” and at the election the defendant H. C. Mechem received 1,940 votes, and J. N. Brown 1,594. Upon a canvass of the vote, H. C. Mechem was declared elected, a certificate of .election was awarded to him, and thereupon he gave bond, qualified, and entered upon the discharge of the duties of the office.
On the part of the relator, it is claimed that after he had qualified and assumed the duties of the office of county attorney under the appointment of July 10, 1883, he became the regular county attorney to fill out the unexpired term of the former incumbent, and that the election of his successor could occur only at the time when such officer was to be elected for the ensuing regular term, commencing in January, 1885. We cannot concur in this view of the law. Sec. 146, ch. 25, Comp. Laws of 1879, provides:
“In case of vacancy in the office of county attorney, by death, resignation or otherwise, the judge of the district court shall appoint a county attorney, who shall give bonds, take the same oath, and perform the same duties as the regular county attorney, and" shall hold his office until a successor shall be duly elected and qualified.”
Section 57, ch. 36, Comp. Laws of 1879, reads:
“All vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the governor until the next general election after such vacancy occurs, when such vacancy shall be filled by election.”
Section 58 is as follows:
“The regular term of office of all state, district and county officers, and of the justices of the supreme court, shall commence on the second Monday of January next after the election, excepting as otherwise provided by law.”
Section 59 of the same chapter provides:
“Any of the said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and, when elected, they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified; but if appointed, they shall hold the same only until their successors are elected and qualified.”
By this last section it was the evident intent of the legislature to provide that where officers are elected to fill vacancies, they are to "hold during the unexpired term of the former incumbent; but if appointed, they are not to hold for the unexpired term, but only until their successors are elected and qualified. In Hagerty v. Arnold, 13 Kas. 367, Chief Justice Kingman, speaking for the court, said: “It is the general policy of the constitution that the people shall elect the officers, and this policy is the one adopted by the legislature.” In Rice v. Stevens, 25 Kas. 302, Mr. Justice Valentine said: “The theory of our law is that officers shall be elected whenever it can be conveniently done, and that appointments to office will be tolerated only in exceptional cases.” In that case it was decided that the appointee of the board of county commissioners, to fill a vacancy caused by the resignation of a county clerk, would hold his office under the appointment only until the next general election, and until his successor elected at such general election should qualify. The language of the section authorizing the appointment of a county clerk by the board of county commissioners, upon the death or resignation of the incumbent, as to the term of office, is substantially the same as that relating to the appointment of a county attorney in a case of vacancy, by a district judge. In the one section it reads that the appointee shall hold the office “ until a successor shall be elected according to law; ” in the other it is provided that the appointee “shall hold his office until a successor shall be duly elected and qualified.”
It is further claimed that the relator, notwithstanding all this, is entitled to hold the office of county attorney on the ground that there was no vacancy existing on November 6, 1883, and therefore the electors of Franklin county did not elect a successor to the relator in voting for the defendant as county attorney to fill a vacancy. This objection is more technical than substantial, and does not accord with the provisions of the statute. When a county officer dies, a vacancy occurs. The appointment to fill the vacancy merely continues until the next general election after the vacancy occurs, and until his successor, elected at such general election, qualifies. Thus § 57, ch. 36, heretofore quoted, provides that vacancies shall be filled by appointment “until the next general election, when such vacancy shall be filled by an election.” The electors, therefore, are not to be defeated in their purpose because in voting for a successor of the appointee to fill the unexpired term of the former incumbent, the ballots read “to fill vacancy.”
It is finally claimed that no general election occurred on November 6, 1883, and therefore that as yet no successor to the relator has been elected. The argument in support of this proposition is “that in 1875 the people of Kansas saw fit to amend the constitution, and so far as the constitutional definition of a general election is concerned, there is no general election in the state, since the adoption of that amendment, excepting at a time when members of the legislature are to be elected.” The general election is defined by § 2, art. 4, of the constitution, as the annual fall election, and this definition has been concurred in by frequent adjudications of this court. Merely changing the time for the election of members of the legislature does not abrogate the constitutional and statutory definition already given to that term. (The State v. Cobb, 2 Kas. 32; Bond v. White, 8 id. 33; The State v. Thoman, 10 id. 191; Hagerty v. Arnold, supra.)
Judgment must therefore be rendered for the defendant and against the relator, Harlan P. Welsh, for costs.
All the Justices concurring.
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Per Curiam:
This was an action brought by Mary Harvey against the Atchison, Topeka & Santa Fé railroad company, for injuries alleged to have been caused by the negligence and carelessness of the company.
The petition alleges that on August 3, 1882, the plaintiff was a passenger on the ears of the company, going from Osage City to Peterton, the latter being a station on the line of the road where trains regularly stop to take on and to let off passengers; that after the train had stopped at Peterton, and while the plaintiff was getting off, she was violently thrown from the train of ears upon the ground and greatly injured and bruised upon her face and arms; and that such injuries were caused by the company failing to stop its train at the proper place, and by starting and running its cars on its railroad track after the train had stopped and before the plaintiff had got off the cars, and before she had time or could get off from the cars, and by starting the train before she knew or had reason to know that the train was going to be moved or started. •
Within the authority of The Union Pacific Railway Company v. Fray, just decided, the judgment in this case must be reyersed. The general verdict of the jury is for $700. The jury returned in their special findings that the actual damages of the plaintiff by reason of her injuries were $300. It is not claimed that the plaintiff is entitled to exemplary damages. If it were intended to give the $400 for the pain and suffering of the plaintiff, as claimed by counsel, that sum should have been included in the actual damages specially found by the jury. It was not so included, and therefore we cannot say with any certainty what the $400 were given for. Further than this, some of the answers to the special questions are so evasive and unsatisfactory as to lead to the belief that the railroad company did not have a fair and impartial trial.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Horton, C. J.:
It is alleged that the conclusion of law reached by the court in this case is erroneous for two reasons, viz.: First, that the court found that said Head is chargeable in his representative capacity with $42.50, due from him to the estate before his appointment as administrator. Second, that the court found that the said Head is chargeable in his representative capacity with $116.85, which he collected from the rents and profits of the real estate of the intestate. There is no finding that Head prior to his appointment as administrator, had appropriated this $42.50 to his own use. On the other hand, the court specially finds that at the time of the appointment he actually had this money in his hands. His duty was to turn this money over to himself as administrator, and under the findings it is presumed he did so. He was required by the statute to make an inventory of everything belonging to the estate which had or might come into his hands, and to administer the same according to law. Therefore in his capacity as administrator he is chargeable with the amount received by him prior to his appointment as administrator.
It is said that if an executor de son tort obtains letters of administration, pendente lite, it legalizes his previous tortious acts. (1 Williams on Executors, 6th ed., pp. 304-310; Hill v. Curtis, L. R., 1 Eq. 90.) Generally the rule is, that letters of administration by operation of law make valid all acts of the administrator in settlement of the estate from the time of the death. They become by relation lawful acts of administration for which he must account. (Alvord v. Marsh, 12 Allen, 603; Hatch v. Proctor, 102 Mass. 351; Rattoon v. Overacker, 8 Johns. 126; Matter of Falkner, 7 Hill, 182. See Brown v. The State, 23 Kas. 235.)
The real estate of the intestate descended at once to his heirs, and the title thereof was vested in them subject only to the right of the administrator to sell the same for the payment of the debts in the manner prescribed by law. (Read ing v. Wier, 29 Kas. 429.) So the title to the real estate, which the heirs took by descent, entitled them to the possession of it, and they had the right to receive, as against the administrator, all the rents and profits thereof. The administrator was not authorized either to take possession of the real estate of the intestate, or to collect the rents and profits. It appears from the findings that “the administrator took possession of the real estate supposing, and the heirs supposing, it was his duty to do so, and as such administrator, received the rents and profits therefrom.” It does not appear from the findings, however1, that the administrator charged himself with the rents, in his representative capacity, or that he brought the rents into his account with the estate, or that he made them the subject of a decree of the probate court, or that the estate had the use thereof, or received any benefit therefrom. On the other hand, the express finding of the trial court is, “that on a full settlement of the accounts of Head for the rents and profits of the real estate, after allowing him a reasonable compensation for services, credits, etc., there remains in his hands, belonging to the heirs, the sum of $116.85.” As the administrator was not required by law to take possession of or account for the rents and profits as a part of the estate, and as in doing what he did concerning that matter he was, in law, not acting in a fiduciary or representative character, although he and the heirs seemed to think he was, he is not liable to account, as administrator, to the estate therefor. The law is thus stated by Schouler, in § 213 of his treatise on Executors and Administrators:
“It follows generally that if a representative takes possession of the real estate of the deceased he is accountable to the heirs as their agent, and not, strictly speaking, to the probate court in his official capacity, though for convenience he will often manage by consent of the heirs.”
(McCoy v. Scott, 2 Rawle, 222; Lucy v. Lucy, 55 N. H. 9; Rodman v. Rodman, 54 Ind. 444; Hankin v. Kimball, 57 id. 42; Newcomb v. Stebbins, 9 Met. 540.) See also the following authorities, to the effect that if an administrator receives the rents and profits of real estate the sureties on his bond are not liable therefor: Gregg v. Currier, 36 N. H. 200; Perkins v. Perkins, 46 id. 110; Hutcherson v. Pigg, 8 Gratt. 220.
We are cited to some cases where the administrator is held to be estopped from denying that the rents collected or property received were assets of the estate. In these cases however the administrator had not only received and receipted for the money or property as administrator, but had charged himself with it as administrator in his accounts, as in Wilson v. Wilson, 17 Ohio St. 150; or the administrator had appropriated the rents collected by him to the payment of the debts due from his estate, as in Conger v. Atwood, 28 Ohio St. 134; or the estate had received the benefit of the proceeds of the property wrongfully taken, as in Simpson v. Snider, 54 Iowa, 557.
In the case at bar the rents have not been applied to the payment of the debts of the estate, have not been used for the benefit of the estate, and the administrator has not charged himself with them in his final account.
Counsel for defendants in error suggest that there are omissions in the record, and therefore the judgment must stand. Not so. The conclusion of law is based upon the findings of fact of the trial court, and if the findings do not sustain the conclusion of law it is erroneous. (Shoup v. Rld. Co., 24 Kas. 547.)
We perceive no error prejudicial to the administrator in the taxation of costs. The appeal was properly taken by parties aggrieved, and the estate recovers judgment.
The judgment of the district court will be modified to the extent of deducting therefrom the sum of $116.85. In all Other respects it will be affirmed.
Brewer, J., concurring.
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The opinion of the court was delivered by
Valentine, J.:
The defendant was convicted and sentenced for arson in the fourth degree; and the principal ground now urged for a reversal of the judgment of the trial court is, that such court erred in sustaining a demurrer to the defendant’s plea of a former acquittal. It appears that on August 13, 1882, at about one o’clock in the morning, the grist mill of Bliss & Wood, with all its contents, including the books of account of the owners of the mill, was destroyed by fire. Some time afterward, the defendant was prosecuted criminally for setting fire to and burning the mill; and on this charge he was tried and acquitted. About five months afterward a new prosecution was instituted against him, for setting fire to and burning the books of account. To this charge he filed a plea of former acquittal, which plea was held insufficient on demurrer, on the ground that the acquittal in the first prosecution was no bar to the second prosecution. In the first prosecution it was charged that the defendant, William H. Colgate, “did unlawfully, willfully, maliciously and feloniously set fire to and burn, in the nighttime, a certain grist mill, situated in Cowley county, state of Kansas, and belonging to C. A. Bliss and B. P. Wood, partr ners under the firm-name and style of Bliss & Wood;” and in the second prosecution it was charged that the defendant—
“ Willfully, maliciously, unlawfully and feloniously did set fire to and burn in the night-time, of the goods, wares, merchandise and chattels of C. A. Bliss and B. P. Wood, partners, doing business under the firm-name and style of Bliss .& Wood, one ledger, one journal, one cash-book, one weigh-book, one grain and shipping book, and one petty account •book, the said books then and there being the books of account representing and setting forth the business then and for a long time prior thereto transacted and done by the said firm of Bliss & Wood in their business as private millers and shippers of grain, flour, and mill-stuffs.”
The defendant, in his plea of a former acquittal, set forth :and alleged that the grist mill and all its contents, including the said books of account, were destroyed at the same time, on the same night, by the same fire, and that the burning of the mill and the burning of the books of account were simply parts and portions of one single and entire transaction. And he further alleged that the prosecution in its attempt to prove the defendant’s guilt on the first charge, simply intro-educed evidence tending to prove that the defendant had admitted that he set fire to the books of account which were «then in the mill, and that the fire spread and not only con sumed the books, but also consumed the mill, with all its contents, including the books, machinery, grain, flour and all things else in the mill; and the prosecution did not attempt to prove the defendant’s guilt in any other manner. And upon this evidence the court instructed the jury as follows:
“ It is not necessary, however, in every case, that the accused should have entertained a specific intent to burn the building, for the burning of which he is charged with arson. For instance: if a book-keeper is employed by a firm which is engaged in operating a grist mill, for the purpose of destroying the books of account kept by him for his employers should willfully set fire to and burn such books of account in the mill, under such circumstances as that the firing and burning of such books would probably result in the burning of the mill, and such result should follow, he would be guilty of arson in so burning the mill.”
“There have been a number of witnesses in this case who have testified to hearing the defendant admit that he set fire to certain books in the mill alleged in the information to have been burned, each witness giving his recollection as to what the defendant said in that regard, and as to the circumstances and manner in which he said the books were set on fire.”
As the defendant’s plea of a former acquittal was heard and decided upon a demurrer, all the facts alleged therein must, for the purpose of considering the ruling on the demurrer, be considered as true; and, considering these facts in that manner, did the court below err in sustaining the demurrer?
Now it must be admitted that the offenses set forth in the two informations do not appear from the informations themselves to be one and the same offense, or to be parts and portions of one and the same offense; and one does not appear to be included in the other; and the facts set forth in one information would not of themselves prove the offense charged in the other. The offense charged in the first information was the setting fire to and burning a grist mill, which is arson in the third degree; while the offense charged in the second information was the setting fire to and burning books of account, which is arson in the fourth degree. But it is clear beyond all doubt, as appears from the real facts of the case as set forth in the defendant’s plea of a former acquittal, that the principal facts constituting the two alleged offenses are identically the same; and that one of such offenses could not be proved without proving the principal facts constituting the other of such offenses. Indeed, the offense charged in the first information could not be proved without proving all the facts constituting the offense charged in the second information. If the defendant was guilty under either information, he must have been 'guilty under both; and if he was innocent as to either of the offenses charged, he must have been innocent as to both. He could not possibly be guilty of one, and innocent of the other. This is all upon the assumption that the facts set forth in the defendant’s plea of a former acquittal are true. It is not claimed that the defendant committed more than one wrongful act, and that wrongful act was the setting fire to the books of account in the prosecuting witness’s mill; and all that afterward occurred were the mere consequences of that one wrongful act.
Under the statutes of Kansas, the offense of arson is divided into four degrees. The generic offense seems to be the willful setting fire to or burning property to the injury of another. This offense may, in some one or more of its different degrees, be committed at any time, and with respect to any tangible combustible property, except perhaps some kinds of real estate; and the offense may be aggravated, mitigated or modified by many circumstances, so as to place it in one or another of several of the four different degrees. And when the information or indictment charges the defendant with committing one of the higher degrees, he may be found guilty of that degree, or of any inferior degree, or of any offense included therein, or of an attempt to commit the offense. (Crim. Code, §§121, 122.) Of course, however, the defendant can be found guilty of the offense, or of any degree thereof, or of an attempt to commit the same, only where the facts of such offense, or the degree of which he is found guilty, are properly set forth or alleged in the information or indictment. Also, under the statutes of Kansas, if the defendant in a criminal action be convicted or acquitted, he cannot again be prosecuted for the same offense, or for any lower degree thereof, or for any offense necessarily included therein, or for any attempt to commit such offense. (Crim. Code, §233; Act Regulating Crimes and Punishments, §§296-298.)
And upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the prosecution for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a siugle wrongful act can furnish the subject-matter or the foundation of only one criminal prosecution. Thus in Iowa, it has been held that, where a person uttered at a bank several forged checks at one time and by the same act, he committed but one offense, and that a conviction for uttering one of the checks was a bar to a conviction upon the others. (The State v. Egglesht, 41 Iowa, 574; same case, 20 Am. Rep. 612.)
In Connecticut, it has been held that where a person has in his possession at the same time several forged bank notes of different banks, with the intent to pass them, and thereby defraud the person who might take them, and also to defraud the several banks, such facts constitute only one offense, and a conviction founded upon the possession of any part of such bank notes will bar a prosecution founded upon the possession of any other part of the same. (The State v. Benham, 7 Conn. 414.)
In New York, it has been held that where a defendant has been acquitted of the offense of forging and counterfeiting certain indorsements on a promissory note, he cannot be again tried for uttering and publishing as true such indorsements. (The People v. Allen, 1 Parker’s Crim. Rep. 445.)
In Vermont, it has been held that where a person by one blow wounds two men, a conviction for the assault and bat tery charged to have been committed on one of them is a bar to an indictment for the assault and battery as committed on the other. (The State v. Damon, 2 Tyler, 387.)
In Indiana and Alabama, it has been held that where a person kills two other persons by the same act, he has committed only one crime, and if convicted for the homicide of one of them, he cannot afterward be tried for the homicide of the other. (Clem v. The State, 42 Ind. 420; same case, 13 Am. Rep. 369; Ben v. The State, 22 Ala. 9.)
Upon the same subject, and substantially to the same effect, see Womack v. The State, 7 Coldwell, 509.
In Ohio, it has been held that where several articles of property are stolen at the same time, the transaction being the same, the larceny of the whole of the articles, although they belong to different owners, may be embraced in one count of the indictment, and the taking thereof charged as one offense. (The State v. Hennessy, 23 Ohio St. 339; same case, 13 Am. Rep. 253.)
In Texas, it has been held that the stealing at the same time and place of several articles belonging to different persons is but one offense, and a conviction for the larceny of one of such articles is a bar to an indictment for the larceny of another. (Wilson v. The State, 45 Tex. 76; same case, 23 Am. Rep. 602.) To the same effect, see Hudson v. The State, 9 Tex. Ct. App. 151; same case, 35 Am. Rep. 732; Rex v. Jones, 4 Car. & P. 217; Jackson v. The State, 14 Ind. 327; Lorton v. The State, 7 Mo. 55; The State v. Williams, 10 Humph. 101; Fisher v. The Commonwealth, 1 Bush, 211; The People v. McGowan, 17 Wend. 386.
In Kentucky; it has been held that although the setting up of a gaming table is one offense, and the keeping of a gaming table and inducing others to bet thereon is another offense, yet that when they are both committed by one person and at the same time, they are but one offense, and may be set forth in one count, and will authorize but one punishment. (Hinkle v. The Commonwealth, 4 Dana, 518.)
In Tennessee, it has been held that a conviction for run ning a horse race is a good defense to a prosecution for betting on the same race. (Fiddler v. The State, 7 Humph. 508.)
In Georgia, it has been held that a conviction for burglary will bar a prosecution for robbery, where the two prosecutions were admitted to be founded upon the same transaction, and the court laid down the broad doctrine that one prosecution will bar another “ whenever the proof shows the second case to be the same transaction with the first.” (Roberts v. The State, 14 Ga. 8.) And in the same state it. was held that a conviction for burglary will “bar a prosecution for robbery, if the circumstances of the robbery were put in proof in order to make out the case for which the prisoner was tried and convicted on the first indictment, because in such case the robbery constituted a part of the same transaction for which the prisoner was first tried.” (Copenhaven v. The State, 15 Ga. 264.)
In North Carolina, it has been held that a conviction for larceny, upon an indictment for burglary and larceny, will bar another prosecution for robbery where the robbery and the larceny were for the felonious taking of the same goods. (The State v. Lewis, 2 Hawks, 98.)
In New York, it has been held that an indictment, charging as a single act the burning of a number of designated dwelling houses, charges but one offense. (Woodford v. The People, 62 N. Y. 117; same case, 20 Am. Rep. 464.) Substantially to the same effect, see Commonwealth v. Squire, 42 Mass. (1 Metc.) 258.
In New Jersey, it has been held that where a person has been convicted of arson, he cannot afterward be tried on an indictment for the murder of a person whose death was alleged to have been caused by the arson. (The State v. Cooper, 1 Green, N. J. Law, 461; same case, 25 Am. Dec. 490.)
In almost every public offense, if not in- every one, several separate and distinct facts may enter in to constitute the offense. These facts may exist contemporaneously with the wrongful act or acts of the offender, or they may take place subsequently, and often in succession, as succeeding consequences of the wrongful act or acts. Where a person com mits a single larceny by stealing several articles, the facts are all contemporaneous-; but where a person commits an act that results in murder, the murder may not be completed, or indeed may not exist, for days or months or even a year afterward, when the injured person dies. This is also true to some extent with regard to arson:' the fire may be set to one article, and may then spread from article to article, not reaching all the articles for many hours afterward; and yet the defendant may be guilty, and generally is guilty, for the'burning of every article which is burned in consequence of the fire which he at first wrongfully kindles. In other words, a person who commits arson as to one thing, is generally guilty of arson as to every other thing which takes fire and burns as the natural and probable consequence of the defendant’s wrongful act. (1 Bishop’s Crim. Law, § 329, and cases there cited; see also the following cases, not cited by Bishop: Rex v. Cooper, 5 Car. & P. 535; The Commonwealth v. Wade, 34 Mass. 395; Hennessey v. The People, 21 How. Pr. 239.)
In the first of these three cases, the defendant set fire to a stack, and burned the barn; in the second, he set fire to a barn, and burned a dwelling house; and in the third, he set fire to his own store to defraud an insurance company, and burned a dwelling house.
As before stated, arson in this state may be committed with respect to every kind of personal property which may be burned. (Comp. Laws of 1879, ch. 31, §59.) And it may be committed with respect to almost every kind of combustible real estate. Hence, if the defendant did in fact set fire to the books of account and burn the same, he was guilty of arson, not only with respect to the books of account, but also with respect to the mill, and all the machinery, flour, tables, chairs, desks, safe and.all the other innumerable articles contained in the mill and consumed by that burning; and if he may be prosecuted for burning the mill, and then be prosecuted for burning the books of account, he may be prosecuted by separate prosecutions for each of the innumerable articles that were destroyed by that one single fire, a fire that was caused by one single wrongful act. And if two prosecutions may be founded upon one single wrongful act, the act of setting fire to the books of account, why may not a hundred or a thousand ? The proper limit for separate prosecutions in such cases would seem to be either the number of articles burned, or the number of criminal acts committed. It is difficult to think of any other limitations.
Mr. Bishop, in his work on Criminal Law, in speaking of that provision of the various constitutions which says that no person shall be twice put in jeopardy for the same offense, says that, “to give our constitutional provision the force evidently meant, and to render it effectual, ‘the same offense’ must be interpreted as equivalent to the same criminal act.” (1 Bishop Cr. Law, § 1060.) If this be true, then only one criminal prosecution can be founded upon one criminal act. Of course, the prosecutor may associate the criminal act with all its consequences, and then carve therefrom the highest crime that can be carved from such act and its consequences, and then prosecute the wrong-doer for such crime. If he chooses, however, he may carve out a smaller degree of crime, and prosecute for that only. But he should be allowed to carve but once. In the present case, the prosecutor probably might have stated the wrongful act of the defendant in setting fire to the books of account, together with all the consequences of such wrongful act, in one information and in a single count, and might then have convicted the defendant of as much of the same as he could have satisfactorily proved to the jury. Thus the prosecutor might have alleged in his information, in one single count, that the defendant willfully set fire to the books with the intent to burn the same, and also to burn the mill, machinery, tables, chairs, flour, wheat, etc., designating each article separately, and that the whole were burned in consequence of the defendant’s wrongful act, and then convicted the defendant of whatever might-have been proved. The offense of setting fire to and burning the books, as well as the offense offsetting fire to and burning the mill, would have been included in the aggregated offense of setting fire to and burning the mill with all its contents. But we do not think that the prosecutor should be allowed to multiply prosecutions indefinitely by dividing up the consequences of a single wrongful act and founding a separate prosecution upon each of such consequences.
Authorities may be found in opposition to these views; hence we do not desire to state them as universal rules, but only as general rules, with probably some exceptions. Just what the exceptions are, however, we cannot now state; nor is it necessary. We shall leave that to be settled in future cases. We hardly think, however, that either the case of The State v. Horneman, 16 Kas. 452, or the case of The City of Olathe v. Thomas, 26 id. 233, furnishes any such exception. In the first case, two different kinds of offenses, with entirely different natures of intent, were clearly stated. In the second case, the defendant clearly committed two criminal acts, and not merely one. It must be remembered that under the real facts of this case, the proof that would have been necessary to convict the defendant of setting fire to and burning the mill would have been sufficient to convict him of setting fire to and burning the books; while the proof that would have been necessary to convict the defendant of burning the books, with the additional proof that the mill was burned by the same fire, would have been sufficient to convict the defendant of burning the mill. Therefore we would think, after a careful consideration of the case, that the prosecution and acquittal of the defendant for setting fire to and burning the mill is a good defense to the prosecution for setting fire to and burning the books; and we think the following cases, taken together, are sufficient authority for all that we have decided in this case: Woodford v. The People, 62 N. Y. 117; same case, 20 Am. Rep. 464; Commonwealth v. Squire, 42 Mass. (Metc.) 258; Rex v. Cooper, 5 Car. & P. 535; Commonwealth v. Wade, 34 Mass. (17 Pick.) 395; Hennessey v. The People, 21 How. Pr. 239; cases cited in 1 Bishop Cr. Law, § 329, and notes; The State v. Cooper, 1 Green, N. J. Law, 361;. same case, 25 Am. Dec. 490. But also see other cases heretofore cited.
We think the court below erred in sustaining the demurrer to the defendant’s plea of former acquittal, and for such error its judgment will be reversed, and the cause remanded with the order that the demurrer be overruled, and for such other and further proceedings as may be proper in the case.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This proceeding in this court is founded upon a petition in error, entitled as follows: “Thomas L. Wilson, plaintiff in error, v. The Price-Raid Auditing Commission for the State of Kansas, defendant in error.” The object of the petition in error is to reverse a decision made by the defendant in error, on January 6,1883, refusing to reexamine a certain Price-raid claim belonging to the plaintiff in error, and in refusing to allow a greater amount on said claim than had been previously allowed. The claim had been twice before examined-^-once in 1865, and once in 1867, and a portion of the same had been previously allowed. It seems from this petition in error that the defendant in error is considered not only as a tribunal from which a petition in error will lie, but also as a party to the proceeding; and yet a portion of the language of the brief of counsel for plaintiff in error indicates that they do not consider the defendant in error as a court. Such language reads as follows:
“We submit that the action of the commission is that of an agent for the state of Kansas, and the citizens wh'o have suffered damage in 'consequence of the Price raid, to audit the claims of such citizens, and is purely ministerial, and their decision can in no sense be said to partake of a judicial character. . . . The commissions are merely examining boards. Their examinations are summary, and limited as to time, and their duty seems to be to report claims audited and allowed, not those rejected. Their deliberations partake not in any sense of a judicial determination, but rather the taking of information to be reported to the governor of the state. No provision for the appearance of counsel; but the scope of all the law upon the subject regards the commission purely and simply examining boards — not courts. . . . The commission acts in a ministerial capacity, as a financial agent of the state, and must obey the law as enacted. It has no judicial discretion.”
But if the defendant in error, “the Price-raid auditing commission,” is not a court, then how can an appeal be taken from its decision to the supreme court? (Auditor v. A. T. & S. F. Rld. Co., 6 Kas. 500.) Under the constitution of the state of Kansas, all the judicial power of the state is vested in courts. (Const., art. 3, §1.) Therefore, any seemingly judicial power which is not vested in some court, is not judicial power within the meaning of the constitution. Now the supreme court can exercise only judicial power, and such power as is incident thereto. (Const., art. 3, §§1, 3, 4, 13.) It can exercise original jurisdiction only in proceedings in quo warranto, mandamus, and habeas corpus; and can exercise appellate jurisdiction only in the exercise of judicial power, which must necessarily under the constitution have come to it from some other court. If the supreme court should attempt to exercise power which is not judicial in its character, or should attempt to exercise jurisdiction in cases other than quo warranto, mandamus, or habeas corpus, before such jurisdiction had been exercised by some other court, it would transcend the constitution. It would not be sufficient in order to give the supreme court jurisdiction that such power had previously been exercised by some person, officer, board, or commission, not a court. In order to give the supreme court jurisdiction, except in quo warranto, mandamus and habeas corpus, the power must first have been exercised by some other court. The jurisdiction of the supreme court is much more limited by the constitution than that of the district court; for under the constitution, the legislature can confer' upon the district court all the original and all the appellate jurisdiction which it may choose. (Const., art. 3, § 6.) It may confer upon the district court jurisdiction in any matters of a judicial character, without reference to where such matters may originate; for if the district court does not take jurisdiction of such matters under or by virtue of its appellate jurisdiction, it may take jurisdiction of the same under or by virtue of its original jurisdiction. Any matter judicial in its character can be taken from even a road overseer to the district court, provided the statutes authorize the same; for when the matter gets into the district court the district court can exercise jurisdiction over it as a court of .original jurisdiction. But, as before stated, the supreme court has no such extended powers.
Under the constitution and the statutes, is the Price-raid auditing commission a court ? This commission, by whatever name it may be called, is composed of the following state officers, to wit: the governor, the secretary of state, the auditor, the treasurer, and the attorney general; and the name of the board, under the statutes, is the “Price-Raid Auditing Commission.” (Laws of 1879, ch. 128, §1; Comp. Laws of 1879, ch. 79a, §1.) It is always mentioned in the statutes as a commission, and never as a court. Under the statutes, the claim of a party is presented to the commission under such regulations as the commission may prescribe; and the commission may also prescribe the kind of proof required, and the form for vouchers presented. (Sec. 3 of said ch.128, and as amended in 1881, Laws of 1881, ch. 125, § 2; and as amended in 1883, Laws of 1883, eh. 121, §1.) The com mission after hearing the claim may allow the same, or allow a portion thereof, or reject it. The commission is required to make out a statement of the amounts allowed on all claims, which statement is filed with the auditor of state. (See § 6 of said ch. 128, as it originally stood, and as amended in 1881.) All the records, books, papers, etc., of the commission are filed in the office of the secretary of state, and a copy of such portion of the samé as may be thought proper is placed in the hands of the governor to be transmitted by him to the legislature at its next session. (See. 8 of said ch. 128.) The claimant, we suppose, may be considered as.the plaintiff, and his presentation of his claim as his pleading; but there is nothing said in the statutes with regard to any other party or parties, or any other pleading or pleadings; nothing said with regard to any defendant, or any answer, or reply, or demurrer'; nothing said with reference to process, original, mesne, or final; no summons, subpenas, executions, or attachments; nothing said with reference to motions; nothing said with reference to the appearance of counsel; nothing said with reference to trial or judgment, except as above mentioned; nothing said with reference to exceptions, or bills of exceptions, or with reference to cases to be made for the supreme court; nothing said with reference to motions for new trials or motions in arrest of judgment, or, indeed, any other motions.
The statutes of 1881, however, provide “that, from the decision of the commission rejecting such claim or any part thereof, the plaintiff may, if he feel himself aggrieved thereby, have an appeal therefrom to the supreme court, where the same shall be tried and disposed of as other civil actions.” (Section 6 of said ch. 128, as amended by §4 of ch. 125 of the Laws of 1881.) This provision of the statute does not, however, sta’te how the appeal shall be taken from the commission to the supreme court; whether it shall be taken on petition in error, or in some other manner. The plaintiff in error, however, in this case, has brought his ease to the supreme court on petition in error. But in whatever manner the case should be taken from the commission to the supreme court, it must be “tried and disposed of as other civil actions;” that is, if it is taken to the supreme court on petition in error, it must be “tried and disposed of as other civil actions” are, on petition in error in the supreme court.
We shall now proceed to examine the petition in error and the record of the case as brought to this court. _ As before stated, “the Price-raid auditing commission” is made the defendant in error, and it and the plaintiff in error are the only parties in this court. Now what interest has the Price-raid auditing commission in this case? (See Browne's Appeal, 30 Kas. 331, and cases there cited.) There is in fact no real party in interest in this court except the plaintiff in error. Besides, the record brought to this court is defective in many particulars. It is not a case-made for the supreme court; but is a transcript of the proceedings of the commission, certified to by the secretary of state. None of the evidence is preserved by a bill of exceptions. (Dunlap v. McFarland, 25 Kas. 489.) Indeed there is no bill of exceptions in the case; and there is no affirmative showing that all theevidence that the commission heard or examined has been brought to this court. (Fillmore v. Campbell, 25 Kas. 107; Comm’rs of Brown Co. v. Roberts, 22 id. 762; Moody v. Arthur, 16 id. 419.) Besides, as the commission has the power, under the statute, to “prescribe the kind of proof required,” is not its decision upon the introduction, or the exclusion, or the sufficiency of evidence, conclusive? But suppose that its decision is not conclusive upon this subject; still the evidence, as it is disclosed by the record brought to this court, and the very evidence upon which the plaintiff relies, would surely be incompetent on the trial of an action in any court of justice; and possibly the commission for this reason did not give it any weight. It certainly does not appear that the plaintiff proved his case (above the amount which the commission allowed) by any sufficient legal evidence. And further, there is no motion for a new trial in the record; and indeed there is nothing in the record showing that any such motion was ever made. (Decker v. House, 30 Kas. 614, and cases there cited.)
We certainly have no authority to reverse the decision of the commission in this case. There are many reasons that would authorize a dismissal of the case from this court.’ There are other reasons that would authorize an affirmance of the decision of the commission. But, considering the entire case, the record thereof, the law with respect thereto, and the interests of the parties, we think the case should be dismissed. The record in this case is so fatally defective that if the case “ be tried and disposed of as other civil actions” are, (and this the statute requires,) the decision of the auditing committee cannot be reversed; and we suppose that the plaintiff in error would prefer a dismissal of the petition in error to an affirmance of the decision of the auditing commission.
—The legal questions involved in the case of Climenson v. The Price-Raid Auditing Commission are substantially the same as those involved in this case, and the same order will be made in both cases.
The case will be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action for the recovery of money, commenced by Charles H. Shultz and Isaac T. Hosea, ■copartners doing business under the firm-name of Shultz & Hosea, against N. S. Doty, Frank Doty, Charles Doty and William Doty, copartners doing business under the firm-name of Doty Brothers & Co. An order of attachment was issued-in the case, and was levied upon certain barbed wire and galvanized wire, as the property of the defendants. Afterward, •George H. Case, George S. Bishop and David Heron, co-. partners doing business under the firm-name of Case, Bishop -& Co., filed a petition in the case under chapter 137 of the Laws of 1877, (Comp. Laws of 1879, eh. 80, ¶¶ 3567 and 3568,) alleging that they had a lien upon and were entitled to the possession of the attached property by virtue of a chattel mortgage executed to them by Doty Bros. & Co. The plaintiffs, Shultz & Hosea, answered to this petition of Case, Bishop & Co., setting forth: (1) a general denial; (2) that the said chattel mortgage was fraudulent and void; (3) that 'after the said property was attached, Case, Bishop & Co. and the defendants Doty Bros. & Co. executed to the plaintiffs a forthcoming bond for the property under § 199 of the civil ■code, and in pursuance of such bond, the officer delivered the property back to the parties executing the bond. Case, Bishop & Co. replied to this answer by filing a general denial. This reply was not verified by any oath or affidavit.. A trial was had before the court without a jury, upon the pleadings of the said Case, Bishop & Co. and Shultz & Hosea, .and the court made special findings of fact and law, and upon ■such findings rendered judgment in favor of Shultz & Hosea and against Case, Bishop & Co. ’ Case, Bishop & Co., being dissatisfied with such judgment, bring the case to this court, and ask for a reversal thereof.
The judgment of the court below, upon the real facts of the case is in all probability correct; but upon the imperfect record brought to this court, it appears to be erroneous. The court itself finds against the first two defenses set forth in the plaintiffs’ answer, and finds in favor of the plaintiffs and against Case, Bishop & Co., only upon the third defense set forth in the plaintiffs’ answer. But this finding we think is not sufficient to sustain the judgment; for there is nothing in the finding or in the record that shows, of tends to show, that the attached property was ever delivered back to either Case, Bishop & Co., or to the defendants, Doty Brothers & Co.; and there is nothing in the record showing or tending to show that even a forthcoming bond was ever given, except the said finding of the court below, which was made solely upon the pleadings in the case, and was only to the effect that such forthcoming bond had been given. There was no evidence introduced in the hearing with respect to these matters. The forthcoming bond is not in the record brought to this court. Probably the foregoing finding of the court was correct upon the pleadings; and probably also the forthcoming bond was then on file among the papers of the case; and probably also the sheriff had made his return on the order of attachment showing what he had done with the attached property; and therefore the court might have taken judicial notice of all these matters; but from the record brought to this court, such does not appear to be the case. It does not appear from the record brought to this court that the sheriff has ever made any return of the order of attachment; and if he did make any such return, there is still nothing appearing in the record of the case as brought to this court, showing what such return was. Indeed, as before stated, there is no evidence in the record, and nothing in the findings of the court, or in anything else, showing or tending to show that the attached property was ever returned either to Case, Bishop & Co., or to Doty Bros. & Co.; and the court below made its findings with respect to the forthcoming bond, not upon the evidence introduced, not upon any judicial knowledge which it might take of the papers and proceedings in the case, but solely and entirely upon the answer of Shultz & Hosea, and the want of a verified reply by Case, Bishop & Co. Now if said property had been returned to the parties executing the bond, then Case, Bishop & Co. would be estopped from setting forth any claim to the property, paramount to the attachment lien. (Sponenbarger v. Lemert, 23 Kas. 55, 62; Haxtun v. Sizer, 23 id. 310; Wolf v. Hahn, 28 id. 588.) But as it does not appear that the property was so returned, it cannot be held that any such estoppel has arisen in the case. And if no such estoppel has arisen, it would seem from the other facts of the case that Doty Brothers & Co. are entitled to the property in controversy.
The judgment of the court below will be reversed, and the cause remanded for a new trial. .
All the Justices concurring.
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Per Curiam:
A careful examination of the record convinces us that the judgment ought not to be-set aside upon the ground that the verdict was not supported by sufficient evidence. It appears from the record that the deceased, Loraine M. Keiger, died May 23, 1882, from strychnine. The theory of the appellant is that Mrs. Keiger, being a comparative stranger in Emporia, in this state, where she died, without a home, money or relative, save a daughter, a young unmarried woman, then pregnant, but also without a home or money, and weary of life, voluntarily poisoned herself. '
On the part of the state, evidence was introduced upon the trial that the appellant obtained $5,000 policy of insurance on the life of Mrs. Keiger a short time before her death, in the Centennial Mutual Life Association; that the policy was payable to her son, E. D. Mosley (charged as accessory before the fact;) that shortly after the policy was issued, Mrs. Keiger went to live with the defendant, and remained there until her death; that the son Mosley had seduced her daughter; that to get Mrs. Keiger out of the way, and obtain the money on the policy issued on her life, the appellant first administered arsenic to her, but that not causing death, on account of her stomach throwing it off, she gave her the strychnine, from which she died.
There was sufficient testimony to overthrow the theory of suicide and establish the charge that the appellant was guilty of murdering the deceased by means of strychnine. Twelve jurymen heard the living voices of the witnesses, saw the parties who uttered them, and the trial judge approved their verdict; therefore, we have before us not only the verdict of the jury, but also the indorsement of that verdict by the trial judge, and this court cannot decide upon the record that the judge and jury ought to have believed and found that the deceased committed suicide by poisoning herself.
Even if the court erred, under the authority of Kelsey v. Layne, 28 Kas. 218, in permitting the witness Wasson, for the purpose of impeaching the defendant, to testify that she told him she was forty-three years of age, without sufficient foundation having been laid for the introduction of this evidence, it was not such an error, under the circumstances of the case, as would justify a reversal of the judgment.
The remarks.of one of the attorneys representing the prosecution, in his closing argument, were not so intemperate or prejudicial as to demand, in our opinion, a new trial. (Winter v. Sass, 19 Kas. 566; The State v. Comstock, 20 id. 650.)
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, commenced before a justice of the peace by Charles C. Wheeler and Charles A. Barber, partners as Wheeler & Barber, against John Griffiths, to recover the possession of certain neat cattle of the value of $100. After trial and judgment in the justice’s court, the case was appealed to the district court, where the case was tried by the court without a jury, and the court made certain findings of fact and conclusions of law, and upon such findings and conclusions rendered judgment in favor of the plaintiffs and against the defendant for a return of the property, and for $13.10 damages, and $24.50 costs; but in case a return of the property could not be had, then in lieu thereof the plaintiffs were adjudged to recover the sum of $100, the value of the property, and their damages and costs as aforesaid. The defendant complains of this judgment, and as plaintiff in error seeks to have the same reversed in this court.
It is admitted that the property in controversy once belonged to John Kauce, and both - parties claim the same under Kauce. The plaintiffs claim the same by virtue of a chattel mortgage, and the defendant claims the same by virtue of a purchase made after the execution of such chattel mortgage. And as we think, the only question involved in the case of any importance is whether this chattel mortgage is valid or not; and the validity of the mortgage, as both parties seem to concede, depends entirely upon whether the description of the property in controversy, as set forth in the chattel mortgage, is valid or not. If the description of the property as set forth in the mortgage is valid, then the plaintiffs are entitled to recover; but if such description is not sufficient, then the defendant is entitled to recover.
' It appears from the findings of fact as made by the court below, that at the time of the execution of the chattel mortgage, and prior thereto, and for a long time afterward, and up to and including the time when the defendant purchased the property, and afterward, John Kauce, the original owner of the property, resided in Marshall county, on a farm adjoining the county line, between the counties of Marshall and Nemaha; and during all this time the property in controversy, which as we have before stated was neat cattle, was a part of the time in Marshall county, and a part of the time in Nemaha county. The cattle grazed upon the open prairie in both counties; but whenever they were at home they were in Marshall county. The defendant knew Kauce; knew where he resided; and knew that he resided in Marshall county. The aforesaid chattel mortgage was executed by John Kauce, and it sufficiently showed upon it face that Kauce claimed to own the mortgaged property; that it was then in his possession, and was to remain in his possession until default; that the same was then within the boundaries of Marshall and Nemaha counties, and was not to be removed therefrom. The mortgage, after its execution, was forthwith deposited in the office of the register of deeds of Marshall county, which was the proper place for it to be deposited. Indeed it was the only place where it could have been deposited or placed for the purpose of giving notice to creditors of the mortgagor and to subsequent purchasers and mortgagees. (Comp. Laws of 1879, ch. 68, art. 2, § 9.) As the mortgage was so deposited, the defendant was bound to take notice of the same and its contents; and if it sufficiently described the property in controversy he was bound to know it. But if it did not sufficiently describe the property, and if he had no other notice that the property was mortgaged, then he might rightfully have purchased the same.
When this mortgage was executed, Kauce had no other neat cattle except those which were intended to be described and included in the mortgage; and he has never since had any neat cattle except those, and their increase; and he has never had any neat cattle, except those intended to be described and included in the mortgage, that would come anywhere near answering to the descriptions given in the chattel mortgage. The cattle involved in the present controversy are only a portion of those included in the chattel mortgage, and they do not include or comprehend any of the increase from those included in the mortgage. The description contained in the mortgage of each of the cattle is not as full and as correct as it might have been, but still it is generally correct; and from such description and such inquiries as the mortgage itself would have suggested we think that any person might have ascertained, and ought to have ascertained, that the property in controversy was a part of such mortgaged property. The only differences between the descriptions as given in the chattel mortgage and the real description of the cattle, are fully stated in the following findings of the court below:
“4. The animal described in said mortgage as ‘one spring bull calf, dark red/ had some small white spots on him; but except for these he was dark red. The animal described in said mortgage as ‘one light red three-year-old heifer/ had some white upon her belly, and a little upon her back, but her general color was light red. The one of said two animals described in the mortgage as ‘ two spring heifer calves/ which is in controversy in this action, was a roan heifer which had a broken and enlarged knee. In all other respects the descriptions of all of the animals in the mortgage were correct, and said John Kauce had no other animals of the description of those embraced in said mortgage from the time the same was given until the commencement of this action, and he had no cattle during said time other than those included in said mortgage, and their increase.”
Taking all that is contained in the mortgage, together with all the surrounding circumstances, and viewing the same in the light of the decisions of this court already made, we think the descriptions contained in the mortgage are sufficient, and the mortgage itself is valid. (Adams v. Hill, 10 Kas. 627; Brown v. Holmes, 13 id. 482; Shaffer v. Pickrell, 22 id. 619; King v. Aultman, 24 id. 246; Miller v. Kansas Lumber Co., 26 id. 574.)
■ The plaintiff in error, defendant below, also claims that the court below erred in rendering judgment; but we fail to perceive the error. The property was worth $100. Not only the replevin affidavit, but also the findings of the court below, show that the property was worth just that amount; and this is just the amount for which the court below rendered judgment, upon the condition that a return of the property could not be had. Now a justice of the peace has jurisdiction in all actions of replevin where the property in controversy does not exceed $ 100 in value. (Justices Code, §55.) And for the purpose of fixing the jurisdiction of the justice, the value placed upon the property in the replevin affidavit governs. (Justices Code, § 62.) And the justice may render judgment for the full value of the property “in case a return [of the property] cannot be had, and for damages for withholding said property, and the costs of suit.” (Justices Code, §65.) Now the district court, in rendering the judgment in this case, followed literally the foregoing sections of the justices code; and therefore no error was committed in rendering the judgment.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.r
This is a petition for a writ of habeas corpus, presented to this court by James Lewis, Mattie Lewis, Minnie Brooks, and Love Kenton. They claim that they are illegally restrained of their liberty by David Worst, the sheriff and jailer of Allen county. It appears from the petition and the exhibits thereto that on August 24, 1883, Gr. A. Amos, county attorney of Allen county, Kansas, filed a complaint before J. Bond, a justice of the peace of that county, charging the defendants with keeping and being inmates of a house of prostitution, and being vagrants. This complaint was sworn to by the county attorney “on information and belief,” and was not sworn to in any other manner. A trial was had before the justice, and the defendants in that proceeding, the petitioners in this, were found guilty and sentenced to imprisonment in the county jail of said county. Afterward the justice of the peace issued his warrant for the purpose of enforcing the sentence and judgment against the defendants, the present petitioners; and the said David Worst, as sheriff and jailer of said county, is now confining them in the county jail.
It seems that the only irregularity in the entire proceedings is, that the original complaint was not sworn to upon the knowledge of any person, but was sworn to simply upon the information and belief of the county attorney. Now we do not think that this irregularity is sufficient to invalidate the proceedings of the justice of the peace so that they may be attacked collaterally and held void on an application for a writ of habeas corpus. A justice of the peace, under the statutes, has jurisdiction of the kind of offenses of which the petitioners were charged in this case. (See act relating to Crimes and Punishments, Comp. Laws 1879, ch. 31, §280.) These offenses are misdemeanors, punishable by fine and imprisonment in the county jail. The justice of the peace in the present case also had jurisdiction of the persons of the petitioners; and, we also think, had jurisdiction to hear and determine all matters in controversy between the state of Kansas and the petitioners.
It may be true that the complaint was not sworn to in a proper manner, but, under the circumstances of this case, we do not think it is material whether it was or not. It was in fact sworn to; and this we think gave the justice of the peace sufficient jurisdiction to hear and determine the case. It does not appear that any objection was made; but an objection would not have had the effect to oust the justice of his jurisdiction. It would simply have given the justice an opportunity to dismiss the case if the complaint had not been amended by verifying it by a positive oath or affirmation. If the defendants, the present petitioners, did not wish to go to trial upon a complaint which was not properly sworn to, they should have made their objection to the justice of the peace and obtained his decision thereon. It does not seem that they made any such objection, but went to trial upon the complaint as it was — took their chances — and upon such trial were found guilty. Now by going to trial upon the complaint as it was, without making any such objection, we think they waived the irregularity in the oath attached to the complaint. (The State v. Otey, 7 Kas. 69; The State v. Ruth, 21 id. 583.) Evidently the defendants, the present petitioners, were found guilty upon competent and sufficient legal evidence, and such evidence amply supplied the informal oath attached to the original complaint.
Counsel for the petitioners has made an able and ingenious argument in this case to show that they are illegally impris oned and illegally and wrongfully restrained of their liberty; but we do not think that the argument is sufficient.
The petition will be denied.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment, to recover the possession of the south half of block 46, in the town of Shawnee, Johnson county. The plaintiffs claim to hold the ■original title from the government, and the defendants claim •under a tax deed. Notwithstanding the elaborate arguments made.on both sides, we think two very clear and simple propositions sustain the judgment of the district court. The case was tried by the court without a jury; special findings of fact were made, and judgment for possession rendered in favor of the plaintiffs, subject to the tax lien of defendants. ' It is undisputed that from 1858 or 1859 until 1880, the plaintiffs and their grantors held quiet and undisturbed possession under claim of title. In 1880, the defendants took forcible possession under title claimed by virtue of a tax deed for the taxes of 1874.
We remark, first, that in an ejectment action under our statutes, the question is, Who has the paramount right to the property? It is not essential that the plaintiff should have a title perfect beyond all question and paramount to the title of every other person. It is enough if he have a right to the property, and that that right is paramount to the right of the defendant. (Duffey v. Rafferty, 15 Kas. 9; Simpson v. Boring, 16 id. 248.)
We remark, second, that possession with claim of ownership is not only evidence of title, but it is of itself title in a. low degree; that proof of possession for more than fifteen years under a claim of title is sufficient evidence to sustain a judgment in ejectment against one laboring under no disability and claiming under no title derived from the plaintiffs or their grantors. In other words, as fifteen years’ possession under a claim of title is, generally speaking, by the statute of limitations a bar to an action brought by one under no disability, proof of such possession is sufficient evidence of title. Here the plaintiffs and their grantors, as is undisputed, were in quiet and peaceable possession under a claim of title for more than twenty years prior to the seizure of possession by defendants. Such evidence is sufficient to sustain a finding of title in their favor unless a better title is shown by defendants. (Mooney v. Olsen, 21 Kas. 691.)
We remark again, that the evidence shows a connected title of record from the government to plaintiffs, with this singlé exeption: In 1858 or 1859, a deed from the Shawnee town company to Mr. Holmes was duly executed. This deed was never recorded, and was, as Mr. Holmes testifies, probably de stroyed with other papers in the sacking of Shawnee town in 1862 by Quantrell. In other words, the' title to the Shawnee town company from the government is perfect of record, and regular conveyances are shown from Holmes to plaintiffs in error, and it is undisputed that in 1858 or 1859, Holmes took possession of and built a brick house on the property. The only break in the record title, therefore, is the lack of a deed from the Shawnee town company to Holmes'. As to this, Holmes testifies that the deed was executed and delivered to him; that he presumes it, with other papers, was destroyed in the sacking of Shawnee town in 1862 by Quantrell, and that he has made thorough search among his papers and been unable to find it. Now this is pretty fair evidence of loss and destruction upon which to base secondary evidence of its contents; and yet, even if it be insufficient, and the court erred in admitting secondary evidence of the contents, the error is immaterial, for the other deeds and possession show a possession for over twenty years under a claim of title, and that, as we have heretofore stated, is sufficient to sustain a judgment in an action of ejectment.
As to the defendants’ tax deed, one defect alone may be mentioned, for that is fatal. The sale was made on September 11, 1875; the notice of redemption stated that on and after September 9, 1878,-a deed would be issued to the purchaser. In other words, by the redemption notice, a deed was to issue within less than three years from the day of sale. This is insufficient, and a deed based upon such notice must fail. (Blackistone v. Sherwood, ante, p. 35.)
These being the only questions in the case, the judgment Qf the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a finding in a proceeding under K. S. A. 60-1507 determining the voluntariness of a confession.
The petitioner, John Edward Baker, was originally convicted of burglary in the second degree and grand larceny. On appeal to this court, the grand larceny conviction was affirmed and the burglary conviction was held void because of a defect in the information. (State v. Baker, 197 Kan. 660, 421 P. 2d 16.)
In 1968, the petitioner filed a proceeding under K. S. A. 60-1507 attacking the judgment and sentence for the crime of grand larceny. Seven grounds were asserted, one being the improper introduction in evidence of a coerced confession. The trial court denied relief and an appeal was taken to this court. (Baker v. State, 204 Kan. 607, 464 P. 2d 212.) We stated in the opinion:
“. . . Thus, foundation proof testing the admissibility of a confession must be heard outside the presence and hearing of the jury, even though no request for such hearing is made, unless, of course, there has been a knowing and intelligent waiver of that right by the accused — ‘an intentional relinquishment or abandonment of a known right or privilege.’ (See, Fay v. Noia, supra, [372 U. S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822] and Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461, 58 S. Ct. 1019, 146 A. L. R. 357.) The rule of Milow [State v. Milow, 199 Kan. 576, 433 P. 2d 438] is well stated in syllabus [¶] 3:
“ ‘It is the duty of a trial court, before admitting a purported confession into evidence, to conduct a proceeding separate and apart from the jury to determine from the evidence, as a preliminary matter, whether the confession was freely and voluntarily made by the accused. The range of inquiry in such collateral proceeding by the trial court is broad, and the inquiry must be based upon a consideration of the totality of the circumstances.’ ” (p. 616.)
We also found that there were facts in substantial dispute concerning the voluntariness of petitioner’s confession which had not been resolved and remanded the case to the sentencing court with instructions to determine whether the confession was freely and voluntarily made by the accused.
The sentencing court held a hearing and at the conclusion thereof made extensive findings of fact in which it concluded:
“That no promises were made by Detective Fred E. Smith to movant Baker in consideration of movant Baker giving a statement, nor were any threats made to movant Baker.
“Movant Baker, at the time of the interview herein involved, was not naive as far as police interrogation was concerned and that the mere presence of a police officer and being questioned by a police officer would not in and of itself have intimidated movant Baker.
“Detective Fred E. Smith’s treatment of movant Baker was courteous, considerate and fair, and movant Baker was not under duress, threat or coercion at any time during the interview.
“That the oral confession of movant Baker was a product of a rational intellect and of movant’s free will, and the Court after having examined all of the evidence, viewed the candor and demeanor of the witnesses and considering the totality of the circumstances, finds that said oral confession was freely and voluntarily made by movant Baker.”
Judgment was entered accordingly.
The petitioner has again appealed to this court.
We have examined the record made before the sentencing court and find ample competent evidence to support its findings and conclusions. This disposes of the matter. (State v. Pittman, 199 Kan. 591, 433 P. 2d 550.) An extensive review of the evidence would serve no useful purpose.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Joseph Brown, as administrator of the estate of William Haas, deceased, against the Atchison, Topeka & Santa Fé railroad company, to recover damages alleged to have resulted from the negligence of the defendant in wrongfully causing the death of the deceased. The action was brought under § 422 of the civil code, to recover damages for the benefit of the next of kin to the deceased.
This is the third time that the case has been to this court. [A. T. & S. F. Rld. Co. v. Brown, 26 Kas. 443; same case, 6 Am. & Eng. Rld. Cases, 228; Brown v. A. T. & S. F. Rld. Co., 29 Kas. 186; same ease, 10 Am. & Eng. Rid. Cases, 739.) After the last decision by this court, the case was again tried in the district court, before the court and a jury, with the following result: After the plaintiff introduced his evidence and rested, the defendant demurred to the evidence on the ground that no cause of action had been proved; and the district court sustained the demurrer, and rendered judgment in favor of the defendant and against the plaintiff for costs; and the plaintiff again brings the case to this court for review.
Among the admitted facts, are the following: On November 17, 1879, the defendant railroad company owned and operated a car-yard immediately east of the city of Emporia, and another immediately west of that city. Haas, the deceased, had been in the employ of the railroad company for some time prior to his death, which occurred on November 17, 1879. He was first employed at the yard east of the city, and afterward, and up to the time of his death, at the yard west of the city. The yard west of the city was new, not fully completed, and not in very good condition; and, on account of the rains which occurred just prior to November 17, 1879, it was in a still worse condition than it would have been if no rain had occurred. The railroad company was continuously making improvements and changes in this yard, for the purpose of bettering its condition. This yard contained several railroad tracks, all running in an easterly and westerly direction. The south, track had not yet been fully surfaced, though some dirt had been thrown on the track between the cross-ties. A flat car belonging to the Hannibal & St. Jo. railroad company was standing on this track. It was loaded with bridge timbers, which projected over the east end of the car. It was desired to couple a box car to this car. The box car belonged to the defendant. The engineer having control of the switch engine moved this box car upon the south track, and within about two hundred or three hundred feet east of the flat car, and then gave it a “kick” with the engine, propelling it westwardly toward the flat car, and it passed on, by reason of the momentum given it by the engine, toward the flat car, unaccompanied by the engine or by any brakeman or other person in charge. Haas was then in the employ of the railroad company, as yard switchman, at this new yard, and it was his duty, among other things, to couple cars. He was a young man, about twenty-five years of age, six feet high, in vigorous health, competent for the place, and had had considerable experience as brakeman and switchman on railroads and in coupling cars. Haas stood on the north side of this track, and about thirty or forty feet east of the flat car, and had a coupling-stick in his hand, about three feet long. When he saw the box car coming, he moved westwardly toward the flat car, and when the two cars were within four or five feet of each other, he stepped in between them for the purpose of coupling them. The box car moved on toward the flat car, struck the top of Haas’s head, which was then between the box car and the projecting timbers on the flat car, and so crushed his head that he imme diately died. This occurred about 3 o’clock in the afternoon of November 17,1879. The day was clear, and the sun was shining at the time.
The plaintiff claims that the following, among other facts, were also proved: Haas had been in the employ of the railroad company at these two yards only about seventeen days, and had been at the new yard only about three or four days prior to his death, and had but little knowledge of the situation or the condition of the yard. The south track was in a worse condition than any of the others. The previous rains had caused water to stand in the yard in places, and some three or four days prior to the accident a ditch was dug by the employés of the railroad company across this south track, to permit the water which had accumulated and was standing on the north side of the track to pass through to the south side of the track, so that it might run off. This ditch was about the same length as the cross-ties, was about fifteen inches deep and about the same width. The aforementioned flat car was so situated on the track that the east ends of the projecting timbers were immediately over the ditch. These timbers projected over the end of the flat car from eighteen inches to two feet. Although the ditch was not covered in any manner, and the sun was shining, yet the car stood in such a position that it cast a shadow upon the ditch, and so obscured it that it could not readily or easily be seen. Haas did not have any previous knowledge of the ditch, or of the flat car, or of the projecting timbers. The ditch had no water in it at that time, but it was muddy and slippery. It is usual, when railroad companies dig ditches in their car-yards, to put in drain-boxes, or to cover them in some other proper manner. The drawhead on the flat car was a single drawhead, while that on the box car was a double drawhead; and the drawhead on the flat car was lower than that on the box car. Because of the projecting timbers and the difference in the height and shape of the drawheads, it would have been difficult, if not impossible, for Haas to have coupled the ears except by going in between them; and probably he could not have coupled them in any other manner. Besides, it is not customary to couple cars in any other manner, and Haas went in between the cars in the manner in which he should have gone in to couple them. When Haas went in between the cars to couple them, he stooped down, but stepping into the ditch with his right foot he slipped, and then, stepping with his left foot upon a higher place, raised his head to such a height that it was caught between the projecting timbers on the flat car and the box car, and was so crushed that he immediately died. The plaintiff claims that except for the ditch, Haas would not have been injured. The plaintiff also claims that except for the projecting timbers, Haas would not have been injured. The box car, after it was set in motion by the switch engine, moved at the rate of six or seven miles per hour. At the time of the accident, the railroad company was so crowded with business that the yardmen in that yard had to perform their labors in making up trains and attending to their other duties in a great hurry.
The defendant claims that, besides- the admitted facts, the following facts were proved: Although Haas had been in the employ of the railroad company at the old yard for some time previous to his employment at the new yard, yet he had been in the company’s employment at the new yard for about seventeen days prior to the accident which caused his death; and he accepted the employment at the new yard because of an increase in his wages, well knowing the situation and condition of the new yard. He had on other days, and indeed every day for seventeen days immediately prior to the said accident, coupled other cars on said south track, and must have known the exact situation and condition of the ditch and all its surroundings. The ditch was at all times in plain sight, and no one could have gone near it without seeing it. Besides, it was not so deep as claimed by the plaintiff, and was not situated immediately under the east ends of the projecting timbers, as the plaintiff claims; nor was it situated where the accident occurred; nor did the deceased step into it; and it had nothing to do with the accident, or with causing the death of the deceased. The flat car and the projecting timbers were also in plain view, so that if anyone had even glanced toward them he must have seen them and known their condition. The deceased was expert in his business, capable of taking care of himself; and no person was in charge of the coupling of the cars except himself. The difference between the height of the drawheads on the two cars was scarcely appreciable, and Haas could have gone in between the cars and coupled the same without any danger to himself, if he had merely squatted down, with one foot inside of the rails and the other extending backward outside of the rails, instead of stooping over, as he did. He could also have coupled the cars with perfect safety to himself by remaining outside of the track, and using the coupling-stick which he at the time held in his hand. The box car did not move faster than a man could walk. Cars with projecting timbers, like the said flat car, were frequently received in that yard about that time, and were coupled and uncoupled with safety, and Haas had full knowledge of these facts. The defendant also claims that the reason why it commenced operations in the new yard before it was finished was because the old yard was overcrowded with business.
We think the preponderance of the evidence as introduced on the trial comes nearer proving the facts as claimed by the defendant than as claimed by the plaintiff; and if the court below had been trying the case upon the evidence, without the jury, its decision upon the evidence would be correct. Upon a preponderance of the evidence, we think the findings and judgment in the present case should be in favor of the defendant and against the plaintiff. But the case was not submitted to the court below upon a preponderance of the evidence. The question as presented to that court was simply whether the plaintiff had introduced some evidence to prove every material fact of his case, or had utterly failed to prove his case. Now while we think the preponderance of the evidence was in favor of the defendant and against the plaintiff, yet we cannot say that the plaintiff did not introduce sufficient evidence to prove his case, provided no conflicting or countervailing evidence had been introduced, tending to prove the other side of the case. We think there was some evidence introduced tending to prove all the material facts of the plaintiff's case, and some evidence to prove all of the facts as they are claimed to have been proved by the plaintiff; and when we say some evidence, we do not mean that there was merely a bare saintilla of evidence, but we mean that there was an amount of evidence worthy of consideration, and an amount of evidence that would have entitled the plaintiff to a verdict in his favor if all the contradictory and conflicting evidence should not be considered or should not be believed by the jury.
Ordinarily, a railroad company is bound to exercise reasonable care and diligence in furnishing its employés with a reasonably safe place at which to perform their labors, and with reasonably safe implements, tools or machinery with which to work; and if the railroad company fails in this, it is negligent, and for any injuries resulting from such negligence it is liable. It is probable in the present case, that with the amount of business which the railroad company had on hand, it was necessary to commence using the new yard before it was entirely completed or finished; and therefore that it would be excusable for any defects in the new yard, provided its employés had full knowledge of such defects and were warned against them. And under such circumstances the railroad company would not be negligent, and the employés continuing in the service of the company would, as in other cases, take all the risks and hazards connected with their employment; and then if they should go into danger with their eyes open and knowing the risks, it would be their own fault and not that of the railroad company if they received injuries. Under such circumstances they would themselves be guilty of negligence, and could not recover from the railroad company.
But in the present case, we cannot say as a matter of law that Haas, the deceased, had any previous knowledge of the existence of this ditch. There is no evidence that clearly and conclusively shows that he had. Under the evidence, he may not have had any such knowledge. It does not appear that he was ever near the ditch, or that he even looked toward the same, prior to the accident. It would seem from the evidence, or at least a part of it, that he had his eyes turned toward the moving car, and not toward the ditch, during the whole of the time while he was intending, expecting and preparing to couple the ears. Of course if he had known of the existence of the ditch, and of its condition, previous to the accident, and had then walked into it, as some of the evidence seems to show, he would have been guilty of such culpable negligence that his administrator, the present plaintiff, could not recover in this action. But, as we have before stated, the evidence does not show that he had-any previous knowledge of the existence of the ditch; and without knowledge he would have had the right to assume that no such dangerous place existed in the yard. As before intimated, all employés have a right to assume that their employers will furnish them with a reasonably safe place at which to exercise their employment.
With these views, it follows that the court below erred in sustaining the demurrer to the evidence. If the evidence had been submitted to the jury, the jury should have found just as the court did; but the jury would have made their finding upon the preponderance of the evidence. But the court, upon a demurrer to the evidence, does not decide the case upon a bare preponderance of the evidence. It must be able to say before it sustains the demurrer that, admitting all the evidence to be true which the plaintiff has introduced, and that none of the evidence conflicting therewith is true, the plaintiff has utterly failed to make out his case. If the court below had overruled the demurrer and allowed the jury to decide the case, and if the jury had then decided it in favor of the plaintiff and against the defendant, and the court had then granted a new trial upon the ground that the verdict was not sustained by sufficient evidence, such a de cisión would be right, and this court would undoubtedly sustain the decision. (Cunningham v. Chicago &c. Rld. Co., 17 Fed. Rep. 882.) But the decision of a case by the court upon a demurrer to the evidence is entirely unlike either the decision of the case by a jury upon the evidence, or the decision of the case by the court upon a motion for a new trial; for where the court sustains a demurrer to the evidence the court must be able to say that, admitting every fact that is proved which is favorable to the plaintiff, and admitting every fact that the jury might fairly and legally infer from the evidence favorable to the plaintiff, still the plaintiff has utterly failed to make out some one or more of the material facts of his case; while all that is necessary for a jury to say in order to find a verdict against a plaintiff is, that although the plaintiff may have introduced an abundance of evidence to prove every material fact of his case, yet that it does not outweigh or does not preponderate over that which tends to prove the defendant’s side of the case. And all that is necessary for the court to say in order to sustain a motion for a new trial upon the ground that the verdict is against the evidence is, that although there is plenty of evidence to sustain the verdict, yet that the evidence is conflicting and the weight or preponderance of the evidence is clearly against the verdict. A new trial may be granted upon evidence that would not authorize the sustaining of a demurrer to the evidence. And this is right, for a new trial gives the parties another opportunity to make out a good case; but a decision sustaining a demurrer to the evidence is final.
We think the demurrer to the evidence was erroneously sustained in the present case. The present case, however, is a close one, and different minds might fairly come to different conclusions; yet we think there was sufficient evidence introduced on the trial by the plaintiff from which, if it had been wholly uncontradicted, the jury might have inferred negligence on the part of the defendant, and no contributory negligence on the part of the plaintiff, and might therefore have inferred that the plaintiff' was entitled to recover.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
On May 20,1882, defendant in error brought an action in the district court of Wyandotte county, to foreclose a certain mortgage. In his petition he alleged, in addition to the mortgage debt, certain tax liens existing in favor of the county. A demurrer to the petition having been overruled, and no answer being filed, on January 3, 1883, a judgment of foreclosure was entered. In the journal entry, it appears that the court found the amount of taxes due upon the mortgaged premises, and declared the same a first lien; found the amount due to the plaintiff upon his note; then rendered judgment in favor of the plaintiff for the amount due on the note; ordered a sale of the property if the amount due the plaintiff should not be paid within six months, and directed that out of the proceeds the costs be first paid, then the taxes, and then the plaintiff’s judgment. The amount of taxes was largely in excess of the amount due the plaintiff on his mortgage. The sale for the first of such taxes had been made to the county more than three years prior to the date of the judgment, and of course the tax lien was liable to pass into a tax deed at any moment. The judgment failed to order a sale on the non-payment of the taxes, but' directed one only on the,- non-payment of the amount found due the plaintiff. The. former order was spoken of in conversation between the plaintiff’s attorney and the clerk of the court, but forgotten by the latter in making the entry. At the time of obtaining the judgment, plaintiff, by his coun sel, agreed to go before the county commissioners and obtain if possible a compromise of the taxes. He did do so, obtained such compromise, and paid the taxes. After this, and before the expiration of the six months, the defendant paid into the hands of the clerk of the court the amount adjudged due the plaintiff on his mortgage, together with the costs of the case. Thereafter, the plaintiff having paid the taxes, amounting to several hundred dollars as heretofore stated, and finding that the judgment did not direct a sale upon the failure to pay the taxes, filed a motion to have the judgment entry corrected by adding such an order. Such proceedings were had thereon, that the court directed the return to the defendant of the amount of money deposited with the clerk in payment of the mortgage, and also directed an amendment of the journal entry of the judgment, so as to make the order of sale read as follows: “It is further considered and adjudged, that in case the said defendant fail for six months from this date to pay the said plaintiff the said sum of $339.40, as aforesaid found due, with interest from December 4,1882, at 12 per cent, per annum, with costs of suit, or fail for six months from January 3, 1883, to pay the plaintiff what he may hereafter pay to discharge said taxes, with interest at 12 per cent, per annum from date of payment, a special execution issue to the sheriff,” etc.
Of this amendment defendants now complain. The principal ground of complaint is, that the judgment as amended does not purport to be a final determination of the rights of the parties, as under our code a judgment must be, but rather in the nature of an interlocutory order, leaving to the clerk or sheriff the power of determining thereafter for what amount an order of sale shall issue. Technically, we think the defendants’ claim is Correct, and that the judgment is not in form that which it should be. But under the facts as developed it is apparent that-substantial justice has been done, and therefore we ought not on a mere matter of form to disturb the judgment. The plaintiff has compromised and paid all the taxes, and the amount he paid was disclosed on the motion to amend; hence for that he is entitled to an order of sale as well as for his mortgage debt. The truth is, the statute contemplates the foreclosure of tax liens at the •same time that the mortgage is foreclosed. The state is assumed to be a party; for, without being made a nominal party, and though no reference is made in the pleadings to the matter of taxes, the court is required to direct on every judicial sale the payment of the taxes out of the proceeds. (Comp. Laws 1879, p. 948, §56.)
Hence, in all foreclosure actions tax liens may be determined the same as the claims of any mortgagee. The court in this judgment as originally entered found the amount of taxes due and declared them a first lien. It was proper, then, to enter an order that if the taxes and the mortgage debt were not paid within six months an order of sale should issue; and if thereafter the plaintiff paid those taxes it was the same as though he had purchased a prior mortgage lien included in the foreclosure. Failing to enter such order in the first instance, and under the circumstances of this case, it was simply equitable to correct the judgment entry by inserting it. While the form of the judgment entry as finally made is doubtless open to the criticism of counsel, substantial justice is done by it, and we ought not to interfere.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Chautauqua county by the plaintiff in error to recover the sum of fifteen dollars, which he claims he paid into the city treasury of the city of Sedan, a city of the third class, under compulsion, the same being an illegal tax, assessed against him as a druggist under a city ordinance. The ordinance under which the tax was levied was passed and published May 12,1882, and was entitled “Ordinance providing for the levy and collection of a license tax upon merchants and others.”
, Section one of the ordinance reads as follows:
“Section 1. There is hereby levied, to be collected in the manner hereinafter provided, on each person carrying on one of the several occupations, or keeping one of the several houses or places hereinafter named, within the limits of said city, an annual license tax as follows: Auctioneers, five dollarsj druggists having permit from probate judge for sale of intoxicating liquors, eighty dollars; druggists not having such permit, five dollars,” etc.
The ordinance provides that the license fee of eighty dollars may be paid into the city treasury in quarterly installments, on or before the fifteenth of February, May, August and November, and declares that any person who shall engage in business without obtaining a license, upon conviction shall pay a fine not less than five dollars nor more than one hundred dollars, and stand committed until the fine and costs are paid; and that each day such business is carried on without a license shall be deemed a separate offense. No other means is provided by the ordinance to enforce payment of the tax, except by criminal prosecution.
The plaintiff has for several years kept a drug store in Sedan, and had a permit to sell intoxicating liquors for medical, scientific and mechanical purposes, issued to him under the prohibitory liquor law of this state. For fear of being prosecuted under the ordinance, the plaintiff on May 15th, 1882, paid into the city treasury the sum of twenty dollars, and obtained a license as a druggist “having a permit to sell intoxicating liquors.” No demand, directly or indirectly, formal or informal, other than the passage of the ordinance, was ever made upon him for the money, but at the time of the payment he delivered to the city treasurer a written notice, as follows:
“Sedan, Kansas, May 15,1882. — I, the subscriber, James K. Tulloss, hereby notify the city council of Sedan, Chautauqua county, Kansas, that I pay said council the sum demanded by them of me as a license tax, for the privilege of selling drugs within the corporate limits of said city, in accordance with an ordinance by said council enacted, and published May 12, 1882, under protest; and I further protest and declare that said license tax is unjust, exorbitant, illegal, and void; and said city council is hereby notified that the said James K. Tulloss will immediately begin an action against said city to recover back the amount so unjustly and exorbitantly demanded of me by them as aforesaid.
James K. Tulloss.”
The plaintiff then brought his action, claiming fifteen dollars as the excess over the sum which he was legally bound to pay for a druggists’ license. The district court gave judgment in favor of the city, and the plaintiff brings the case to this court for review.
Two questions are presented by the record: First, Is the city ordinance in question valid? Second, Under the circumstances of this case, was the payment of the tax compulsory?
It is not claimed that the ordinance is void in its entirety, or in all its provisions; for cities of the third class have the power, under the statutes, by ordinance to levy license taxes upon various kinds of business and occupations. (Third-class-city Act, §48; Comp. Laws of 1879, p. 194, ¶ 910.) The ordinance was legally passed and published; and it taxes nearly all the kinds of business and occupations authorized to be taxed by the statutes; but it is claimed that the ordinance is void only “so far as it levies a greater tax upon druggists having a permit to sell intoxicating liquors, than upon druggists not having such permit.”
It is admitted that the ordinance is valid as to all druggists so far as it taxes them at the rate of $5 per annum; but it is claimed that the distinction made between druggists who have permits to sell intoxicating liquors and druggists who do not have any such permits, is not founded upon any tangible or substantial difference between these two classes of druggists, and therefore that the ordinance, so far as it attempts to impose a license tax of more than $5 upon druggists who have permits to sell intoxicating liquors, is unconstitutional, illegal, and void.
Now we think there is a material difference between the two classes of druggists above mentioned. We must suppose that druggists who have permits to sell intoxicating liquors will sell the same for all lawful purposes, while the druggists who do not have any such permits will not sell intoxicating liquors for any purpose. We suppose that the one class will sell intoxicating liquors, because they have obtained permits therefor, while the other class will not sell intoxicating liquors at all, because it would be a violation of law for them to do so; and the druggist who sells intoxicating liquors may do a business vastly greater than the druggist who does not sell any such liquors. Hence there is a substantial difference between the two classes, and some reason for taxing the former at a greater rate than the latter. But as to the wisdom or the policy or the justice of such an ordinance, we do not wish to say anything. Indeed, it does not come within our province to determine any such questions; or at least it does not come within our province to determine any such questions aside from the legal questions in which they may be involved. The only question really for us to determine is, whether the ordinance is valid, or not; and if we consider it valid, we must uphold it, although it may not correspond with our notions of what is wise, or just, or expedient.
We have just decided the case of City of Newton v. Atchison, which involves many of the questions involved in this case; and under that decision we think it necessarily follows that the ordinance which we are now considering must, be held to be valid. Also, see the following cases: City of St. Louis v. Bircher, 7 Mo. App. 169; Ould v. City of Richmond, 23 Gratt. (Va.) 464; City of Sacramento v. Crocker, 16 Cal. 119; Mayes v. Irwin, 8 Humph. (Tenn.) 290; City of Burlington v. Putnam Ins. Co., 31 Iowa, 102; Am. Ex. Co. v. City of St. Joseph, 66 Mo. 675; Van Baalen v. The People, 40 Mich. 258; Fretwell v. City of Troy, 18 Kas. 271.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by James P. Wilson against John C. Douglass and others, to recover the southwest quarter of section 15, township 9, range 17, in Jefferson county, Kansas. The plaintiff’s title was founded upon two tax deeds executed by the county clerk of Jefferson county, Kansas, to Isabel Insley, and a quitclaim deed executed by her to the plaintiff, James P. Wilson. What the defendants’ title was, or whether they had any title or not, is not shown. The case was tried before the court without a jury, and the court made the following findings and conclusions of fact and of law, to wit:
“conclusions of fact.-
“1. On March 11,1880, the county clerk of Jefferson county, Kansas, executed and delivered to Isabel Insley a tax deed for the premises in controversy, in pursuance of a sale of said premises made by the treasurer of said county on September 8, 1875, for the taxes of 1874, amounting to $22.07, to which were added the taxes for 1875,1876, and 1878, amounting to $82.02, the whole consideration mentioned in said deed being $78.07, paid by F. M. Johnson to the treasurer of said county on September 6,1879, the said F. M. Johnson on January 6, 1880, for a valuable consideration, having duly assigned to said Isabel Insley all his interest in the certificate of sale of said premises made by the treasurer of said county September 8, 1875, and the said certificate having been issued by the treasurer of said county to said county, and on the same day assigned by the clerk of said county to said F. M. Johnson. The said deed upon its face purports to have been made by the clerk of said county to said Isabel Insley, for the consideration of $88.68, while the amount properly chargeable to said lands for taxes, penalties, costs and interest was $104.09; and there is no recital in said deed that no person offered to pay the whole amount properly chargeable to said land for taxes, etc., or that the board of county commissioners of said county authorized the treasurer of said county to receive a less amount than all that was due thereon and issue a certificate of sale therefor.
“2. On August 17, 1880, the clerk of said county issued and delivered to said Isabel Insley, the assignee of said F. M. Johnson, another deed, of date August 17, 1880, for the same lands and upon the same sale above mentioned, which deed was in due form, containing all the recitals necessary to a good and sufficient deed for the premises in controversy, and in every way regular and formal as a tax deed upon the sale above mentioned.
“3. The plaintiff is the grantee of the said Isabel Insley, by deed in due form, and is the owner of the premises in controversy.
“4. The deed above mentioned, of March 11, 1880, was duly recorded in the proper office upon the 11th day of March, 1880, and the deed of August 17,1880, above mentioned, was duly recorded in the proper office on August 17, 1880. This suit was commenced March 27, 1882.”
“conclusions op law.
“1. The deed of March 11,1880, is void upon its face, and did not start to running the two-years statute of limitations, because it did not state all the facts necessary to a valid deed under the general tax law taken in connection with chapter 43 of the Laws of 1879.
“2. The deed of August 17, 1880, is valid, because it recites all the requirements of the general tax law and of the act of 1879, and evidences a complete title in the plaintiff’s grantor.
“3. Judgment should be rendered for the plaintiff for the possession of the lands in controversy, and for the costs of this suit.”
Judgment was rendered in accordance with these findings and conclusions; and the defendants, John C. Douglass and J. A. Goodman, as plaintiffs in error, now bring the case to this court, and ask for a reversal of such judgment. The plaintiffs in error make several points in their brief, and in their oral argument; but as we seldom notice points made in the oral argument which are not also made in the brief, we shall confine ourselves principally to the brief. That the first tax deed was void, we suppose there can be but little doubt. It purports to have been executed under chapter 43 of the Laws of 1879, in connection with the general tax laws. Now in order that a tax deed executed under said chapter 43 shall be valid, it is necessary that the following facts among others, shall exist: the land must not only remain in the hands of the county unredeemed for at least three years after the date of the sale before any authority can be given by the county commissioners to the county treasurer to execute, or to the county clerk to assign a tax-sale certificate, for a sum less than the legal taxes and interest due thereon, but (1) the land must so remain in the hands of the county without any person offering to purchase the same for the full amount of the taxes, penalties and costs due thereon; and (2) such authority must be given by the county commissioners to the county treasurer to execute, as well as to the county clerk to assign, the tax-sale certificate; and (3) the county treasurer must in fact execute the tax-sale certificate in pursuance of such authority. None of these things is sufficiently shown or stated in the tax deed. Hence we think the first tax deed is void upon its face.
We perceive no good reason why the second tax deed should not be held to be valid. It appears to be valid upon its facé, and no evidence was introduced tending to show that it is not valid. It was executed for the taxes of 1874,1875, 1876, and 1878, upon a tax sale made to Jefferson county in 1875, and appears to be in due form. The consideration for the deed seems to have been $78.07, while the taxes, penalties, interest and costs due upon the land seem to have been over $100; but just such a thing as this is authorized by said chapter 43 of the Laws of 1879. It appears that the county commissioners of Jefferson county, on July 8, 1879, authorized the county treasurer to execute and the county clerk to assign a tax-sale certificate for the land in controversy; that on September 6, 1879, the county treasurer did execute and the county clerk did assign such a tax-sale certificate; and that such tax-sale certificate is the one upon which the present tax deed was executed. The plaintiffs in error now claim that the tax deed is void, for the reason that the county commissioners did not order the tax-sale certificate to be executed and assigned immediately and to some particular individual, but authorized the tax-sale certificate to be executed and assigned at some future and indefinite time, and to any individual who might choose to obtain such a tax-sale certificate». Now we do not think that this indefiniteness on the part of the county commissioners in making their order renders any of thes.e proceedings void in this particular case. It would seem that the county commissioners fixed definitely the amount for which the tax-sale certificate was to be executed and assigned, and left only the time when, and the person to whom, the same should be executed and assigned indefinite; and these things were made definite and certain by the county treasurer and county clerk within less than two months, and prior to the next regular meeting of the board of county commissioners. We think the proceedings were sufficiently definite and certain and sufficiently regular, and that although nearly two months elapsed after the county commissioners made their order before the tax-sale certificate was in fact executed and assigned, yet we think the execution and assignment thereof were valid. And it can make no difference, as we think, whether the taxes of 1878 were ever entered on the book of tax sales, or not. They had been due and delinquent for a long time when the county commissioners made their order, and even when said chapter 43 of the Laws of 1879 was passed, and were evidently intended to be included in the county commissioners5 order authorizing the execution and assignment of said tax-sale certificate.
We think the second tax deed is valid, and the judgment of the court below will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error, plaintiff below, brought an action against the two defendants in error and one J. M. Mclndoo, on a promissory note. The defendants in error answered, alleging that they were only sureties on the note; that Mclndoo was principal, to the knowledge of the plaintiff, and that plaintiff, after the maturity of the note, and without the knowledge or consent of these defendants, gave for a valuable consideration an extension to Mclndoo, thereby releasing the defendants as sureties from further liability. Judgment was rendered by default against Mclndoo, and the case went to trial on the issues between the plaintiff and the two sureties. It was tried before a jury, which returned a general verdict in favor of defendants, and also in answer to special questions found that Mclndoo was principal and defendants sureties; that plaintiff knew the fact, and that after the maturity of the note, plaintiff gave to Mclndoo three extensions of thirty days each; that these extensions were upon considerations paid by Mclndoo, and made without the knowledge or consent of these defendants. Judgment was rendered upon the verdict, and plaintiff alleges error.
The testimony was not preserved, the record simply stating that evidence was offered tending to prove such-and-such facts. The instructions were preserved, and as to them alone is any complaint made. The first instruction given at the instance of the defendants, reads as follows:
“Any supposed liability that may have existed in the minds of Allen and Dyson against them, or want of knowledge of their legal rights by reason of extension, will not bind them, unless they agreed to the extensions given to Mclndoo by Head, or afterward ratified such extensions.”
, Of this plaintiff complains, claiming that it was both erroneous and incomplete; that, although the sureties never ratified the extensions, yet, if after knowledge of the fact they promised to pay the note, they would be bound thereby; and also that their ignorance of their legal rights in no manner affected the validity of their promise to pay. "We do not understand the instruction exactly as counsel seems to'. While the language is not the most apt, all that we think was intended or understood by this instruction was that the defendants’ belief as to their liability, or their ignorance of their legal rights, did not affect the question of their liability; that that was to be determined by their agreements or assent. But even if it be defective or erroneous, the defect will not avail the plaintiff. For the instruction is not one as to the effect of testimony, but one as to the law applicable to certain supposed facts. But the jury in answer to specific questions, found as to all the facts embraced or which should have been embraced in this instruction. Upon these facts the trial court in the first instance, and this court on review, can determine what law is applicable, and this without reference to the instruction. In other words, the finding of these particular facts does away with the need of any further consideration of the instruction. (Luke v. Johnnycake, 9 Kas. 511; Rld. Co. v. Chase, 11 id. 47.)
Again, it is objected that the court erred in giving the third instruction, and this upon the ground that it does not state all the matters which are necessary to make a valid agreement for extension. It is enough to say that instructions are to be made applicable to the facts, and it may be that, upon the testimony, the particular matter noticed in this instruction was the only matter of controversy.
Again, it is objected that the court refused to give instruction No. 6, asked by plaintiff. This was a special and separate instruction, as to a single and collateral fact disclosed by the plaintiff’s testimony. It is often unwise for a trial court to select a single circumstance from the evidence, and found upon it a separate instruction. Sometimes such action is sufficiently erroneous to compel a reversal, inasmuch as it lifts a special circumstance into undue prominence. (Rld. Co. v. Retford, 18 Kas. 245.) Generally speaking, before error can be adjudged in the refusal of the trial court to dignify a single and collateral fact with the attention of a special and separate instruction, it should appear, from a presentation of the entire testimony, that this single fact was of such importance as to require special notice.
Finally, it is objected that the court erred in giving §200, from 1 Greenleaf on Evidence, as an instruction to the jury; and this, not on the ground that such section does not state the law correctly, but on the ground that its language is not so simple and plain as to be easily comprehended by the average juror, and very likely misled the jury in this case. There are at least two sufficient answers: the testimony not being preserved, it cannot be affirmed that even if misled, they were misled in any material matter; and again, that if misled, they were misled to the prejudice of the plaintiff in error. If misled at all, it may have been as to some comparatively unimportant matter, or against the interests of the defendants. (Burton v. Boyd, 7 Kas. 17.)
These being the only errors alleged, and in them appearing nothing to justify any interference with the judgment, it will be affirmed.
All the Justices concurring.
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Per Chiriam:
This case has been to this court once before, and the decision is reported in 27 Kansas, 257. At that time a judgment in favor of plaintiff was reversed, on the ground of error in the ruling of the court in rejecting testimony offered by defendant. On the second trial the error was corrected and the testimony admitted, and a judgment was rendered in favor of plaintiff for the possession of a part of the lands claimed, and costs of suit. Of this judgment plaintiff complains, and insists that there was error in the ruling of the court. We think the propositions of law laid down at the former hearing of this case are correct, and should not be disturbed. While there was some testimony offered in this second trial tending to show the presence of stakes and monuments, yet we think the judgment should be affirmed, and for two reasons: First, there was a general finding in favor of the plaintiff for a portion of the land, and no finding as to the existence of stakes and monuments. And we are not satisfied that there was sufficient testimony as to such stakes and monuments to compel an ignoring of the manifest fact of the shortage in the whole tract partitioned, and the easting of the entire loss of this shortage on the defendant in error. Second, the allegations in the petition in error are hardly broad enough' to compel an inquiry into the testimony as to the stakes and monuments.
We cannot see now, any more than when the case was here before, that the result reached involves any correction or setting aside of the original decree in partition. It simply applies the principles and facts of that decree to the amount of ground as now shown to exist. We think, therefore, the judgment should be affirmed so far as the petition in error is concerned.
We think also that so far as the errors alleged in the cross-petition in error are concerned, the same ruling must follow, on the authority of § 589 of the code. The plaintiff recovered judgment for part of the property claimed, and under that section was entitled to his costs. We may remark that the whole case is so bunglingly prepared, the amendments not being properly incorporated into it, that we have had great difficulty in determining exactly what was, and what was not, done.' We do not feel called upon to make any extraordinary effort to disentangle the confusion in which the record now appears. It is enough for us to say in conclusion, that upon the allegations in the petition in error we see nothing which places the present case outside of the ruling heretofore made, and we cannot say that the point made in the cross-petition in error is clearly sustained.
We think, therefore, that substantial justice is done by simply affirming the judgment of the district court; and it is so ordered.
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The opinion of the court was delivered by
Horton, C. J.:
It is contended on the part of the railroad company, that judgment should have been rendered in its favor upon the special findings of the jury. This is not so. The findings are contradictory and conflicting. It is evident from the special findings, that the jury founded their verdict upon a misconception of the law applicable to the case; thus, they found that if the engineer had blown the whistle or rung the bell at a point eighty rods east of the crossing where the cattle were injured and killed, neither such blowing of the whistle nor the ringing of the bell would have stopped the cattle from going upon the railroad track at the crossing; yet they found that the only negligence of which the defendant or any of its employés was guilty, was in not having up a whistling-post, and in not sounding the whistle attached to the engine three times, at least eighty rods from the place where the railroad crossed the highway. The statute does not require a railroad company to put up whistling-posts. The omission to sound the whistle of an engine in accordance with the provisions of §60, page 226, Comp. Laws of 1879, is negligence. (Railroad Co. v. Rice, 10 Kas. 426; Railroad Co. v. Phillipi, 20 id. 12; Railroad, Co. v. Wilson, 28 id. 639.) Although this is so, a railroad company is not liable for damages unless the injury complained of is attributable to or caused by such omission. The words of the statute are, “and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.” (Railroad Co. v. McDaniel, 63 Ill. 122; Railroad Co. v. Blackburn, 63 id. 167; Stoneman v. Railroad Co., 58 Mo. 503; Holman v. Railroad Co., 62 id. 562; Karle v. Railroad Co., 55 id. 483.) The finding of the jury shows that the injuries to the stock were not caused by the neglect to sound the whistle.
Among the instructions to the jury complained of, is the following:
“If you should find that the negligence of the plaintiff or his agents or servants was the immediate cause of the injuries complained of, and that of the defendant only the remote cause, you will find for the defendant; but if you should find that the negligence of the plaintiff was only slight compared with that of the defendant, if there was negligence on the part of both, your verdict should be for the plaintiff.”
This instruction adopts the doctrine of comparative negligence, and is therefore erroneous. Under this instruction, if the plaintiff and the railroad company were both guilty of negligence contributing to injuring and killing the stock, the plaintiff would be entitled to recover damages if his negligence was less than that of the company. The law has not been thus announced by this court. We do not indorse the doctrine of comparative negligence. The rule is properly laid down in Sawyer v. Sauer, 10 Kas. 466. If the trial court had instructed the jury that if the negligence of the plaintiff was only slight, or the remote cause of the injury, he might still recover, notwithstanding such slight or remote cause, the instruction would be within the rule; but when the jury were instructed to compare the negligence of the plaintiff with that of the defendant, the direction passed beyond the authoritative line, and became misdirection. This court has recognized degrees of negligence in many cases, but has never sanctioned any instruction permitting a jury to simply compare the negligence of the parties. (Railway Co. v. Peavey, 29 Kas. 169; Railway Co. v. Young, 19 id. 488; Railway Co. v. Pointer, 14 id. 37; Sawyer v. Sauer, supra.) It is possible that the trial court did not intend to instruct the jury to compare the negligence of the plaintiff and that of the railroad company, but the direction bears this interpretation.
The judgment of the district court will be reversed, and the ■cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
Various objections are presented' to the bonds set forth in the petition. Some of these objections are to the effect that they are absolutely void because the town ship had no authority to issue them, and that their infirmities appear upon their face; others, that if not void, they are at least voidable. An examination of the record convinces us, however, that the plaintiff below is in no condition to claim equitable relief. It appears, among other things, from the findings of the trial court, that the bonds of the township, to the amount of $15,000, were issued March 1st, 1873; that they were sold in the city of New York for ninety cents on the dollar; that the proceeds thereof were used exclusively in the construction of a court house for Morris, county on the court-house site in the city of Council Grove, in accordance with the petition presented to the trustee of the township for the submission of the proposition to vote said bonds; that on September 25, 1876, an action was brought in the United States circuit court for the district of Kansas by the Bank of Lima against Council Grove township, upon the coupons of eleven of the fifteen bonds; that on October 18, 1876, a demurrer was interposed by the township to the petition; that this demurrer was overruled by the court on June 12, 1877, and the township failing to answer, judgment was rendered against it upon the coupons; that no appeal was taken therefrom; that the judgment was afterward paid; that the plaintiff moved into Morris county in 1873; that he voted at the general election in 1873 in the township; that he regularly paid taxes every year subsequent to 1873 on his real'estate described in the petition, including the taxes levied to meet the interest on these bonds, until he brought this action to enjoin the collection of the tax of 1881.
After the judgment of the Bank of Lima was rendered against the township, the plaintiff paid his portion of the taxes to liquidate the same, and he continued to pay his taxes for interest and to provide a sinking fund upon all the bonds, up to 1881. It is a well-established rule in equity that if a party is guilty of laches or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief. Under this rule it was decided that an injunction will not be granted to.restrain the payment of money illegally voted by a town, if the petitioners have been guilty of gross laches and knowingly have permitted others to incur liability in good faith, relying upon such appropriation for reimbursement. (Tash v. Adams, 64 Mass. 252.)
Again, where aid is given to railroads under enabling acts, and bonds are issued in exchange for stock, or the bonds are sold and stock purchased which is retained by the municipality; or even where there is a donation of the bonds, and interest is paid for a number of years, the municipalities are concluded as to any irregularities in the issue. (Johnson v. Stark County, 24 Ill. 690; Keithsburg v. Frick, 34 id. 421; Commonwealth v. Pittsburgh, 43 Pa. St. 391; Steines v. Franklin County, 48 Mo. 167; Bradley v. Franklin County, 65 id. 638; Burr v. City of Carbondale, 76 Ill. 455.)
Further, it is held that if a judgment is obtained against a county or its legal representatives in a matter of general interest, as the assessment or collection of a tax, it is binding upon all the citizens individually as well as upon the county or its officers named as parties on the record. (Clark v. Wolf, 29 Iowa, 197.) If this is so, then by the action of the federal court against Council Grove township, all the citizens of that township are concluded. This includes all citizens within the township and those upon the territory of which the township was composed at the voting and issuance of the bonds. (Ch. 142, Laws of 1873.) Therefore the plaintiff below is estopped from now contesting the validity of the bonds. Clearly, the township cannot relitigate the validity of the coupons or bonds set forth in the action lately pending in the federal court. If the prior judgment renders the township liable'for the bonds, that judgment can have no validity or force unless the citizens are bound thereby, because the township has no power to provide moneys for the payment of the bonds outside of the collection of taxes upon the property of the township embraced therein at the time the bonds were issued. If any tax-payer may restrain the collection of the taxes levied to pay the bonds, by an action against the township or its officers, the township is without power to pay the interest on the bonds, or provide a sinking fund to pay the bonds. .
Counsel insist that even if the bonds are valid as against Council Grove township and all of its citizens, that the detached territory — Valley township — is not liable; that ch. 142, Laws of 1873, applies only to bonds “legally authorized and issued.” Plaintiff moved into Council Grove township in November, 1873, and that township must be treated as the plaintiff’s agent or representative so far as these bonds are concerned. Valley township, as an organization, had never anything to do with the issuance of the bonds. If Council Grove township cannot question the validity of the bonds, the plaintiff cannot question their validity. Therefore neither Council Grove township nor the plaintiff can be heard at this time to say the bonds were not “legally authorized and issued.” As to Council Grove township and the plaintiff the bonds have been “legally authorized and issued,” and their validity cannot now be contested.
It is also insisted that a portion of Valley township — a. two-mile strip — was never in Council Grove township, and that so much of the real estate of plaintiff below as is situated in sections 11 and 35, lies in the two-mile strip, and therefore that this part of the real estate described in the petition was not in Council Grove township at the time the bonds were voted or issued. (Chandler v. Reynolds, 19 Kas. 249.) From 1864 to the time that Valley township was organize"!!, in 1874, the two-mile strip was not only a part of Morris county, but was everywhere recognized and acknowledged as a part of Council Grove township. It was not only so recognized and acknowledged by its own residents, but it was so recognized and acknowledged by the citizens and officers of Council Grove township, and also by the officials of Morris county, including the board of commissioners of that county. This was never questioned until this action was commenced. Therefore, although the county commissioners of Morris county never actually made a formal order changing the east boundary line of Council Grove township, so as to embrace said two-mile strip, it was to all intents and purposes a part of.the township at the time the bonds were voted and issued. (School District v. The State, 29 Kas. 57.)
The judgment of the district court must be reversed, and the case remanded with direction to the district court to enter judgment upon the findings of fact dissolving the temporary injunction heretofore granted in the case.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
On June 21, 1882, plaintiff obtained judgment against the defendant, before a justice of the peace, for $17.50. On July 1, defendant duly filed an appeal bond, which bond was approved by the justice. Thereafter a transcript was filed by the justice in the district court. Subsequently plaintiff filed a motion in the district court to dismiss the appeal, on the sole ground that the judgment was rendered upon confession. The record of the district court in respect to the hearing on this motion is as follows:
“Upon the hearing of the motion to dismiss the appeal herein, filed on September 5, 1882, the defendant Mrs. Stuttle, wife of Henry Stuttle, offers to prove by H. J. Williams, the justice of the peace by whom the judgment appealed from was rendered, and other competent witnesses, that the record of the case, as shown by the transcript from the justice’s docket filed herein, is not the record of the case as it was at the time the appeal bond was filed with said justice and the appeal herein perfected, in this, to wit: The words ‘ The defendant confessed a judgment,’ now contained in said transcript from the justice’s docket, were no part of the record, and were not in the said docket of the justice of the peace at the time the appeal was taken in said case; but that said words were added to the record of said ease, and written in said docket by said justice, two days after said appeal bond was filed and approved and the appeal perfected, but before the said justice filed the said transcript in the district court on July 11, 1882, and while the said docket was in the possession and custody and under the control of said justice of the peace, and by Mrs. Stuttle; that said defendant, Mrs. Stuttle, did not in fact confess judgment in the case; which said offer of proof was objected to by plaintiff as incompetent, irrelevant, and immaterial, and which said objection was by the court sustained and the evidence and offer of proof rejected; to which ruling of the court the defendant, Mrs. Stuttle, then and there excepted, and the court refused to receive any oral evidence in the case, and upon the inspection of the record alone decided the motion.”
The defendant now brings the case to this court on error.
The single question is, whether the district court erred in accepting the transcript as filed as conclusive evidence of what was done in the justice’s court. The counsel for defendant in error claims that it did not, and cites in support thereof, Allen v. Corlew, 10 Kas. 70; Smith v. Burkhalter, 14 id. 352; In re Watson, Petitioner, 30 Kas. 753; Steinbarger’s Adm’r v. Steinbarger, 19 Ohio, 106; Davis v. Messenger, 17 Ohio St. 231; Wood v. Newkirk, 15 id. 295.
We think the district court erred. This is not a case in which the proceedings in the trial court were sought to be taken up for review on petition in error, as in the case from 15 Ohio St., supra. By the filing and' approval of the appeal bond, the appeal was perfected. (Comp. Laws 1879, ch. 81, § 122.) Thereafter the justice had no power to make any further order, or to alter the record in the ease. His duty was to make out a transcript of the record as it stood, and to transmit it to the district court. Now the offer which was made was not simply to show what was in fact done on the trial, or what entry in respect thereto the justice made while the case was within his jurisdiction, but it was to show that after the justice had lost jurisdiction by the perfecting of the appeal,, be attempted to alter the record of the case. The appellant was entitled to have filed in the district court a transcript of the record as it stood at the time of perfecting his appeal.
The judgment of the district court will be reversed, and the case remanded with instructions that if upon the hearing of the motion it appears that the record of this case has been changed since the filing of the appeal bond, the motion to dismiss the appeal be overruled, and an order made upon the justice to send up a certified transcript of the record as it stood at the time of filing the appeal bond.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On the 25th day of February, 1881, the defendants in error commenced this action before a justice of the peace in Montgomery county by filing with the justice a bill of particulars. Judgment was rendered by the justice in their favor. The railway company took the case to the district court of Montgomery county on appeal. ‘ Trial had at the September term of the court for 1882. The jury returned a verdict for the defendants in error for the sum of $178. Judgment was rendered thereon. The railway company has attempted to bring the proceedings here in a case-made, and the sufficiency of this case-made is challenged by the defendants in error. The judgment was'entered September 21,1882, and forty days from that date were given .to the -company in which to make and serve a case for this court. The defendants in error were allowed twenty days after the service of the case to suggest amendments. On the 26th day of October, 1882, the time for making and serving the case was extended by the judge at chambers to November 25, 1882, and the defendants in error were allowed twenty days after the service of the case to suggest their amendments. On November 25,1882, the time for making and serving the case was extended to December 5, 1882. In the last order, no time for suggesting amendments was mentioned.' The case was served on November 30, 1882, but defendants in error did not suggest or serve any amendments until sometime in February, 1883. The term of the district judge who tried the case expired on January 8, 1883. The case was signed and settled on the 19th day of. February, 1883, after the trial judge was out of office.
It is urged, among other reasons, that it is only when the term of the trial judge expires before the time fixed for making or settling and signing a case, that such trial judge is authorized to settle and sign the same. The provisions of the section applicable read: “ In all cases heretofore or hereafter tried, when the term of office of the trial judge shall have expired or may hereafter expire during the time fixed for making or settling and signing a case, it shall be his duty to certify, sign and settle the case in all respects as if his term had not expired.” (Code, § 449.) In this case the term qf office of the trial judge did not expire until after the time fixed for making a case. Even if the defendants below had twenty days after December 5 in which to suggest amendments— which is doubtful — the term of the trial judge did not .expire until some time after that. The jurisdiction of the judge to settle the case is a special and limited jurisdiction, which only arises at times and under circumstances specified by law. (Weeks v. Medler, 18 Kas. 425.) The statute has made special provision for the signing and settling of cases by the trial judge after the expiration of his term of office, when his term of office shall expire during the time fixed for making or settling and signing a case, and he cannot act in any other way, or under any other circumstances, than those named in the statute. As the term of office of the trial judge' expired after the time fixed for making the case, his authority to act in the matter ended with the expiration of his term of office. The statute was not complied with, therefore the challenge to the ease-made is well taken. (Taylor v. Mason, 28 Kas. 381.)
Counsel suggest that as no time had been fixed for settling and signing the case, therefore the statute was not disobeyed in the settling and signing of the case now before us. The statute gives authority only for the person who tried the case to certify, sign and settle the same after he is out of office, when his term of office shall have expired or expires during the time fixed for making or settling and signing a case; and if no time is fixed by the order of the court for settling and signing the case, the time fixed for making the case must control. Under such circumstances, there is no time fixed for settling and signing the case, and therefore the term of office of the trial judge cannot be said to have expired, or to expire during the time fixed for settling; and signing the case.
This conclusion does not conflict with the case of Thurber v. Ryan, 12 Kas. 453, or any of the authorities therein cited. In the latter case, judgment was rendered on March 4,1873, and thirty days were given to make a case. On March 13, 1873, the judge who tried the case ceased to be judge of the district court of Greenwood county. Notwithstanding this, thereafter and on April 1, 1873, he signed and certified the case-made; but as such act was during the time fixed for making the case, his authority was valid under § 549.
Counsel for the railway'company have filed with us an affidavit that the attorney of defendants in error did not return the case-made or suggest amendments until sometime in February, 1883, and therefore they contend that the defendants in error cannot be heard to say that the ex-judge acted without jurisdiction. Nothing is shown in the. record that prior to the expiration of the term of office of Judge Perkins, any attempt was made by the railroad company or its attorneys to have the case returned to the judge for set tlement. , -We have already held that a ease cannot be properly made a-fter the time fixed by the statute has passed, merely upon the stipulation of the parties, nor can the parties to the record extend the time for making a case in the absence of any order of the court or judge. (Insurance Co. v. Koons, 26 Kas. 214.)
The ease must be dismissed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
On July 15, 1882, G. Y. Fulkerson and fifty-five others petitioned the board of county commissioners oí Harper county, Kansas, “to set off and organize a new township” in that county. July 17, 1882, the board refused to grant the prayer of this petition. Afterward, G. Y. Fulkerson took an appeal to the district court, provided he could take an appeal in such a case. He founded his right to take the appeal upon § 30 of the act relating to counties and county officers, and upon the claim that he was “a signer of said petition, and a resident, householder, tax-payer, and voter, within the boundaries of said proposed new township.” April 3, 1883, the county attorney of Harper county moved to dismiss the appeal, on the grounds that Fulkerson could not properly take an appeal, and that no appeal lies from the •board of county commissioners to the district court in such a case. The district court sustained this motion, dismissed the appeal, and rendered judgment for costs in favor of the board of county commissioners and against Fulkerson; and Fulkerson now brings the case to this court, and asks for a reversal of said judgment.
Section 16, chapter 25, of the act relating to counties and county officers, provides, among other things, as follows:
“Sec. 16. The board of county commissioners of each county shall have power, at any meeting, . . . Sixth, to set off, organize, and change the boundaries of townships in their respective counties; to designate and give names therefor, and to fix the time and place of holding the first election therein.”
Section 24, of said chapter, reads as follows:
“Sec. 24. The board of county commissioners shall not set off or organize any new township, unless it shall contain territory equal to at least thirty square miles, and at least two hundred inhabitants within the limits thereof, except when an incorporated city or town is included in the limits of said township; nor shall any township be set off' and organized, unless a petition be first presented to the board, signed by at least fifty electors resident therein.”
Sections 28 and 29, of said chapter, provide for the allowing of accounts against the county and the issuing of orders therefor.
Section 30, of said chapter, reads as follows:
“Sec. 30. Any person who shall be aggrieved by any decision of the board of commissioners, may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board, within thirty days after the making of such decision, and executing a bond to such county with sufficient security, to be approved by the clerk of said board, conditioned for the faithful prosecution of such appeal and the payment of all costs that shall be adjudged against the appellant.”
Under the constitution and statutes of the state of Kansas the board of county commissioners has. various powers — legislative, administrative, executive, discretionary, and quasi judicial. Many of their powers are of a purely political character, but some of them, as before stated, are of a quasi judicial character. Some of the statutes conferring power upon the county commissioners are mandatory, while other statutes conferring power upon them are purely directory, and the powers conferred are often entirely discretionary. The constitution provides, among other things, that “the legislature may confer upon tribunals transacting the county business of the several counties such powers of local legislation and administration as it shall deem expedient.” (Const., art. 2, § 21.) The legislature has conferred upon the board of county commissioners many of such powers. Now will an appeal lie from the board of county commissioners to the district court upon every “decision” made by the board in the exercise of any of its various powers ? The plaintiff in error claims that it will; and he makes this claim solely and entirely upon the broad language of § 30 of the act relating-to counties and county officers. He says that “ any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court.” And he claims that a decision may be made by the board in the exercise of one power as well as in the exercise of any other power. This is true. The board must make decisions in the exercise of its legislative powers as well as in the exercise of its quasi judicial powers. And even in the exercise of its discretionary powers, or any of its political powers, it must also make decisions. And in any single matter that may come before the board it may make-decisions. Many of such decisions may be preliminary or intermediate; and will the plaintiff in error claim that an appeal lies from each and every one of such decisions ? Suppose that the board in the present case, instead of refusing to' grant the petition of the plaintiff in error, and the fifty-five others who signed the same, had simply decided to postpone the-matter until the next meeting of the board; and suppose the-plaintiff in error had felt aggrieved at such decision: could he-have taken an appeal to the district court? And could he have continued to take appeals from every decision made by the board with reference to the matter? In the present case,. Fulkerson alone appeals. Now has each one of the other fifty-five signers of the petition a like appeal? In the establishment of a county road, the board may make one hundred,. or even a much greater number of decisions preliminary, intermediate and final; and will an appeal lie from each of such decisions? It seems to us there must be a limit somewhere; that the legislature never intended that an appeal should lie from every decision made by the board of county commissioners. Then what are the limitations upon the privilege of persons to take appeals from the decisions of the board of county commissioners ? The district court is simply a court, and exercises only judicial power; hence we would suppose that appeals from the board of county commissioners to the district court must be limited to such cases as require the exercise of purely judicial powers; and therefore that when the board of county commissioners exercises political power, or legislative power, or administrative power, or discretionary power, or purely ministerial power, no appeal will lie. We do not think that the refusal to grant a petition to set off and organize a new township can be said to be the exercise of judicial power; and it can hardly be said that the granting of such a petition would be the exercise of judicial power. There is no provision in the statutes or in the constitution designating who shall be plaintiffs or who shall be defendants in the case, or whether there shall be any plaintiffs or defendants; no provision authorizing pleadings, or evidence, or trials, or judgments; nothing even squinting towards the idea that any action of the board upon a petition to set off and organize a new township is the exercise of judicial power.
This is a new question in this court; and therefore we shall refrain from giving definitions further than is necessary for the decision of the case. We shall simply decide in this case that where the board of county commissioners refuses to grant a petition to set off and organize a new township, one of the petitioners has no right to appeal from such refusal to the district court.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Per Curiam:
The judgment in this case must be reversed, and the case remanded for a new trial, for these reasons: The judgment was rendered in vacation. (Earls v. Earls, 27 Kas. 538.) In overruling the motion for a new trial, the court held that “The verdict and special findings of fact are contrary to and unsupported by the preponderance of the evidence.” (The State v. Bridges, 29 Kas. 138; Williams v. Townsend, 15 id. 563; K. P. Rly. Co. v. Kunhel, 17 id. 145.) The testimony as to the time of the definite location of plaintiff’s road does not differ substantially from that given in the case of the same plaintiff against Mecklim, 23 Kas. 167, and the decision then made must control this question.
A new trial being necessary, we forbear any discussion of the question as to whether the land was within the ten-mile limit, or not.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on an attachment undertaking. The facts are these: On November 28, 1879, Tyler, one of the present plaintiffs in error, commenced an action of attachment in the district court of Butler county against the present defendant in error, and caused certain property to be attached. Shotwell, the other plaintiff in error, was surety on the undertaking in the attachment. Thereafter, on motion, the attachment was dissolved by the district judge, and on error to this court his ruling was sustained. (24 Kas. 580.) For further statements of the facts in that case, see the opinion then filed. ' Thereafter this defendant in error commenced an action in the district court of Lyon county against the plaintiffs in error on such undertaking, to recover damages for a wrongful attachment. The case was tried before a court and jury; verdict and judgment were in favor of the plaintiff for $285.73, and the defendants allege error.
The first question we shall consider is this: Safford, the defendant in the attachment suit and plaintiff in this, resided, in Augusta, Butler county. The attachment was commenced in the district court of that county. He, instead of employing lawyers in that county, came up to Emporia, Lyon county, and employed Messrs. Buck and Kellogg, of that city, to look after the case. On the trial he was permitted to prove the amount charged by Messrs. Buck and Kellogg for their services in obtaining a dissolution of the attachment, his expenses in going to and returning from Emporia, his and their expenses paid by him in attending before the judge of the district court on the motion for the dissolution of the attachment, their expenses paid by him in attendance on this court when the case in error was argued before us. Now the contention is, that while defendant was of course at liberty to go outside of Butler county, in which the suit was commenced, and in which at the time resided many practicing attorneys, and bring counsel from another county, yet if he did so, he should pay all the extra expenses caused thereby, and has no right to charge them up against the plaintiff in the attachment'suit. It should be remarked that defendant had only been a short time a resident of Butler county; that he had been prior to that time a resident of Lyon county, and was acquainted with Buck and Kellogg, they having previously done some business for him. Upon this question the court charged as follows:
“The plaintiff has a right to recover for reasonable costs and expenses necessarily incurred by him, including attorney-fee and compensation for time spent in and about obtaining the order of dissolution, and a return of the attached property. The plaintiff would not have the right to go an unreasonable distance to employ counsel and recover the extra expenses incurred thereby. He would, however, be entitled to employ counsel of good reputable ability and character, and recover fair and reasonable compensation for their necessary services, and he would have the right to receive this amount without regard to where his counsel resided. In determining whether this plaintiff acted reasonably or not, you will consider his knowledge, acquaintance, and all the circumstances of the case. The plaintiff cannot in any event recover more than a reimbursement for his reasonable expenses and loss occasioned by such attachment as shown by the evidence in the case.”
No special instruction on the question was asked by the defendants. We think the rulings of the district court are correct. The plaintiff had a perfect right to show what he did in fact pay out, and why he went outside of Butler county to employ counsel, and it is for the jury to say whether his action in that respect was reasonable and fair, and if it was, his expenses incurred thereby were properly charged to the plaintiff as caused by his wrongful attachment. This is all that we think necessary to say in reference to plaintiffs’ claim. .The reasonableness of counsel’s charges was not attacked, no serious question made as to the amount paid by the plaintiff, or the time occupied by him; and we think the finding of the jury as to the reasonableness and propriety of his conduct is abundantly justified by the testimony.
We pass now to the questions raised by the answer and the reply. In order to obtain a full understanding of these questions, we must premise the following facts, which appear in this case as well as in the attachment action heretofore referred to: That Safford and one T. J. George, under the firm-name of S. J. Safford & Co., were doing a lumber business at Augusta, Butler county, under the personal management of Safford, who had actual possession of the partnership property; that T. J. George was giving his personal attention to the carpenter and building business, carried on, upon his own account, at Emporia; that George became indebted to Tyler for building material in the-sum of $1,992; and that as an additional security to the liens which he, Tyler, was entitled to claim under the statute for this material, George executed to him on November 7, 1879, a contract in the nature of a chattel mortgage on his interest in the business of S. J. Safford & Co., estimated by the parties to the contract to be of the value of $739.94. The contract specially provided that the'acceptance of the interest of George in the business of S. J. Safford & Co. was not to operate as a discharge or release of Tyler’s liens for his claims, and said George was to have six months from the date of the contract to pay the debt. Afterward Tyler went to Augusta, and upon the supposition that the chattel mortgage was an absolute conveyance to him of the interest of George in the firm of S. J. Safford & Co., he represented to Safford that he had bought out George’s entire interest in the business, and proposed to sell it to him. He produced the chattel mortgage, calling it a bill of sale, and read a portion only of it to him. Safford then told Tyler he would purchase from him the interest of George in the firm, and pay him $715, upon the condition that upon investigation it should turn out that Tyler had in fact such entire right and interest of George in the partnership, and that George had not in any manner lessened or impaired his interest. Now in his answer, Tyler sets up the same mortgage interest, and further alleges that plaintiff, through a fraudulent conspiracy with his partner George and other parties unknown, converted to his use Tyler’s said mortgage interest. In reply, plaintiff alleged that George’s mortgage to Tyler was without consideration and void; and further, that one N. E. Weaver, without notice of Tyler’s mortgage, and in good faith, on November 24, 1879, bought of George his said interest, and that the plaintiff on the next day purchased the same from said Weaver, and has ever since been the owner thereof. As stated by counsel for plaintiffs in error—
“The principal controversy on these facts is, first, what was the consideration for said mortgage? second, was N. E. Weaver a bona fide purchaser without notice? and third, if he was such a purchaser, did the plaintiff, Safford, and his partner, George, conspire together to cheat and defraud Tyler out of his mortgage interest by means of the intervention of N. E. Weaver as a bona fide- purchaser?”
These three questions of fact, the jury, both by their general verdict and at least as to the first two by answers to particular questions, found squarely against the defendants. This by the settled practice of this court is conclusive, providing there was testimony fairly warranting such findings. Counsel for defendants earnestly insist that they were plainly against the evidence, and this compels a brief reference to some of the testimony. We shall not attempt to notice it in detail, for it is very voluminous, covering several hundred pages of record. The veracity of witnesses is challenged, and after a careful comparison of the statements of the witnesses pro and con, we think it is a fair conclusion that on the one side or the other, there was developed a rare facility for forgetfulness. The conclusions of the jury compel the conviction that this unfortunate manifestation of human weakness was mainly on the side of the defendants; and whatever doubts we may have (and we confess that they are weighty) of the correctness of this conclusion, there is not enough to justify us in disregarding it. It is very evident that neither side during these difficulties was taking any extra pains to practically illustrate the beauties of the golden rule. Each was evidently striving to gain and hold whatever advantages the law would permit. We think this fact must have im pressed itself upon the jury, and that in the contradiction and conflict of the evidence they found the facts to be such as seemed probably to be correct, and such as would most likely do justice between the parties; and their conclusion, we are inclined to think, was substantially correct.
Turning now to the second question, which is the pivotal one, and this appears from the testimony: The chattel mortgage from George to Tyler was executed November 7, 1879. It was not filed in the register’s office until March 11, 1880. Until such time it was by the statute, (Comp. Laws 1879, p. 557, § 9,) absolutely void as against subsequent purchasers in good faith. On November 21, 1879, Tyler went to Augusta, and there attempted to sell to Safford. On November 22, 1879, Safford and Tyler came to Emporia, and on the evening of that day the negotiations between the parties were apparently broken off and the attempted sale fell through. The value of George’s interest in the partnership of Safford & Co. on January 1, 1879, was $739, and the price talked of, if not agreed upon between Safford and Tyler, on the 21st of November, was $715. On the 24th of November, Weaver purchased this interest of George, paying therefor $700 — $300 in cash, and $400 in judgments which he held against George. On the same day, a few hours thereafter, he sold the same interest to Safford at the same price, receiving $500 in cash and $200 in a note. Both of these transfers' were evidenced by bills of sale, both dated November 24. The first executed on that day, but the second not executed until the 25th; Weaver, according to the testimony, declining to sign on account of a warranty contained in it until he had seen and consulted his attorney, whom he could not find until the 25th. That this purchase was made by Weaver on the 24th, seems to be abundantly established by the testimony. There is no attempt to contradict the statement that Weaver held and receipted these judgments against George for $400. He produced the check for $300 on which, as he testifies, he drew the money from the bank which he paid to George. And indeed, the testimony which the defendants offered, to impeach the bona fides of Weaver in the matter tended to show that some such transfer in fact took place. So that the jury could not well have found other than it did, that Weaver made this purchase. Also, that he sold to Safford is abundantly established.
Now as to the knowldege of Weaver and his good faith in the matter, his own testimony is clear, emphatic, and positive. It is suspicious, it is true, that he bought and sold the same day at the same price, and to a party who was evidently anxious to wipe out any claim which Tyler might have acquired by his alleged purchase; but in explanation of this it may be stated that' George, who was a contractor and had been engaged in building several'houses, one of them belonging to N. E. Weaver, had evidently broken up in endeavoring to fill his contracts, so that the judgments against him were of comparatively little value, and Weaver by this purchase and sale was securing payment of a bad debt.
On the other hand, it must be noticed that a witness, apparently disinterested, testified to conversations at the time of this alleged purchase, and at the time of a settlement a few days before between Tyler and Weaver, which indicated knowledge on the part of Weaver of Tyler’s mortgage; so that it is doubtful, to say the least, whether the testimony does not preponderate in favor of Weaver’s having knowledge. But ás has been often said, we do not sit as triers of fact, and we may not ignore the positive testimony of Weaver sustained by the verdict of the jury, as well as the approval of the trial judge.
It should also be noticed here, that the court instructed the jury that the knowledge of facts sufficient to put a reasonable person upon inquiry, was notice of all facts which such inquiry would have developed. The question was fairly, fully, and distinctly presented by the court in its instructions, and the verdict of the jury must be accepted as conclusive.
We have thus glanced at some of the facts bearing upon this question, for the reason that we think it is pivotal, and its determination avoids the necessity of inquiry into many of the questions presented by counsel. If Weaver was a bona fide purchaser without notice and for value, he acquired a good title to the property, and could transfer such good title to any third party even though such third party had actual knowledge of Tyler’s mortgage. Therefore, whether Tyler’s mortgage was good or bad, whether inquiry into its consideration was proper, is immaterial. Grant that that mortgage was valid, that the jury should have been so instructed, and that no inquiry should have been made as to its consideration, and still if Weaver was a bona fide purchaser the verdict should have been what it was. If the only inquiries therefore remaining would be, whether the court erred in admitting testimony bearing upon the question of the bona fides of this transfer, or erred in its instruction respecting such transfer, or whether the testimony in respect to the consideration of the mortgage, (which for the present we shall assume was improperly admitted,) was of a character to unduly influence the jury in determining the question of the bona fides of this transfer, these questions must, we think, all be answered in the negative.
We have heretofore referred as fully as we deem necessary to the instructions of the court respecting the bona fides of the transfer. We see no ruling as to the admission and rejection of testimony concerning such transfer, which is sufficient to justify a reversal of the judgment. We do not mean to affirm that technically every ruling of the court in respect to the admission and rejection of testimony bearing upon this question is beyond criticism, but we do think that no testimony of a substantial nature proffered by either party was improperly rejected, or that any like testimony was unduly admitted. Hence the errors, if errors they were, were of a trivial nature, and ought not to disturb the judgment.
' With respect to the testimony impeaching the consideration of the mortgage, we remark that so far as the testimony bore directly upon that question, it could not in any manner affect that of the bona fides of the subsequent transfer. The most that can be said against it is, that the apparent hesitancy and forgetfulness of the Witness Tyler as to the conversations between himself and George prior to the execution of such mortgage, may have prejudiced the jury and made them slow of credence as to his other testimony. If'this be the fact, as possibly it may be, he has only himself to blame. If his forgetfulness was real, the jury may well have doubted his memory of other matters. If it was feigned, they had a right to look with suspicion on the value of his testimony. Of course in this way, the inquiry into the consideration of the mortgage may have wrought prejudice to the defendants, but we cannot think that under the circumstances- it is sufficient to justify us in setting aside the verdict. We cannot believe that the jury were unduly influenced by it as respects the bonafides of the transfer.
Our conclusion on the whole record is, that the finding of the jury in respect to the transfer is unimpeachable, and that there is no error in the record of sufficient moment to justify us in disturbing the verdict.
The judgment will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought in the district court of Chautauqua county to restrain a collection of the taxes for the year 1881 upon certain personal property belonging to plaintiff. The case was tried by the court without a jury, and resulted in a judgment in favor of the defendants. The plaintiff brings the case here for review. No special findings of fact were made, but only a general finding in favor of defendants; so that upon the few matters in which there is a conflict in the testimony, we must assume the facts to be as claimed by the defendants. The plaintiff was a resident of Montgomery county. The property taxed was 190 head of steers and 52 head of cows. With respect to the latter, the facts are these: In July or August, 1880, they were in Sedan township, in Chautauqua county, and belonged to the plaintiff. Where they were situated and to whom they belonged prior to that time, does not appear. They were kept in Sedan township until October or November, 1880, when they were driven into Belleville township, where they remained until May 26, 1881. They were then driven back into Sedan township and herded there until November. What became of them after that, and to whom they subsequently belonged, is not shown. They were listed for. taxation on April 29, in Belleville township by one George Edwards, who had been in charge of them, but who had prior to such listing turned them over to one Russell. The plaintiff did not know of such listing until about the first of June, 1881. The valuation placed upon them was fair and just. The law in respect to the taxation of these animals provided that they should be listed and taxed where they were usually kept. (Laws 1881, cli. 34.) Plaintiff testified that they were usually kept in Sedan township, while as heretofore stated they were listed in Belleville township. It does not appear that there was any attempt to list them for taxation in Sedan township.
Did the court err in refusing to enjoin the collection of these taxes ? We think not. While the plaintiff, it is true, claimed that the property was usually kept in Sedan township, yet according to the dates and times given by himself, it is apparent that there was very little difference between the number of months in which they were kept in the two townships respectively. They were at the time of listing in Belleville township, had been there from the first of the year, and there was nothing to indicate any intention to remove them from that township. The assessor of the township, finding them there, listed them for taxation. The plaintiff never listed them in Sedan township, never informed the assessor of Belleville township that the property was only temporarily there and was to be removed to Sedan township. Under those circumstances, the assessor simply did his duty, and the plaintiff has failed to make it appear that the property was improperly listed in that township. Where the owner is a non-resident of the county, the assessor is under no obligation to call upon him personally. It is enough that he applies to the parties in actual possession of the property within the limits of the county. It is time in this case the party that listed was not at the time in such possession, but he had been; and it does not appear that the assessor was informed of any change of possession, and the property was listed at its fair value. Hence the failure to have the property listed by the party in actual possession was simply an irregularity, which did not absolutely vitiate the assessment.
As to the steers, the facts are these: They were purchased by the plaintiff in May, 1880. They were then in the Indian territory, and there remained in the possession of Sears and Edwards, with whom plaintiff made a contract for their keeping. Sometime in November, 1880, without the knowledge of plaintiff, Sears drove some eighty-five head up to his corral in Chautauqua county, and there kept them ten days for the purpose of branding them. They were then returned to the territory, and all the cattle there remained till March 4,1881. At that time thirty-five head were driven up to Sears’s corral, and on the 23d of April the remainder were also driven to the same place. This was in Belleville township. They were kept in this township for about forty days, then driven into Sedan township, and there herded till October, 1881, when they were again driven to the Indian territory. On the 25th of April, and while they were in Belleville township, at the instance of the assessor, Sears, in whose possession they were, without the knowledge or consent of plaintiff listed them for taxation. The plaintiff did not know of such listing until about the first of June. Plaintiff testified that he paid a pasturage tax upon them of $1.20 per head, in the Indian territory; that they were not kept out of the state of Kansas for the purpose of avoiding taxation, but because they could be kept cheaper in the territory, and have better pasturage; and that he did not drive them into the state for the purpose of pasturage, or for the purpose of grazing; that he understood that the Texas-cattle law forbade the bringing of such cattle into the state at certain seasons, and he wanted to bring them into the state for the purpose of selling them, thinking he could get a better chance to sell in the state than in the territory; that he could not get what he wanted for them, and so drove them back to the territory.
The statute under which this listing was made is found in §1 of ch.34, Laws of 1881, and so much as is applicable reads as follows:
“Animals and farming implements shall be listed and taxed where usually kept: Provided, That if the owner of such animals lives outside of the limits of a city, such property shall be taxed in the township where the owner resides. But in case such animals and farming implements are temporarily outside the limits of the state, or in any unorganized county of this state, then said animals and implements shall be listed and taxed in the county, township and school district where the owner resided on the first day of March. When any stock shall be driven into any county of this state from any unorganized county or from beyond the boundaries of this state, for the purpose of grazing therein, at any time prior to the first day of December of any year, such stock shall be liable to be assessed for all taxes levyable in that county for that year, the same as if the owner thereof re sided and held said stock in such county on the first day of March of that year. And it shall be the duty of the proper officer, at any time during such year, to require such stock to be listed for taxation, and such list returned to the county clerk in the same manner as is required by law for the listing and valuation of other personal property for taxation in such county.”
It is obvious that this listing cannot be sustained on the ground that the animals were temporarily outside the limits of the state, for then they must have been listed in Montgomery county, where the owner resided. It can be sustained only under the latter part of the statute quoted, and on the ground that the cattle were, after the first of March and prior to the first of December, driven into Chautauqua county for the purpose of grazing; and here we are met by the objection that such portion of the statute departs from the constitutional rule of uniformity in matters of taxation, and is therefore invalid-.. The statute provides for a property tax, and, unlike that considered in the case of The City of Newton v. Atchison, ante, p. 151, is subject to the control of § 1 of art. 11 of the state constitution. The argument, briefly stated, is this: All personal property in the state on the first of March is, with the constitutional exemptions, listed for taxation. This therefore enforces the constitutional rule of uniformity. There is no general provision for taxing property brought into the state after the first of March, but by this statute an attempt is made to tax certain kinds of property when brought into the state for certain purposes. But if this is done, the rate of assessment and taxation is not uniform and equal. It was said in the case of Hines v. City of Leavenworth, 3 Kas. 200, that “ the whole property of the state must be listed and valued for taxation.” If this be true, must not all the property brought into the state after the first of March be listed for taxation in order to support the listing of part? Certainly a statute cannot be sustained which attempts to cast thé entire burden of taxation on one class of personal property, leaving all others exempt. If this be true in respect to the entire year, must it not be equally true in respect to a portion?
We think this argument is sound, and that if in addition to the listing of all property present in the state on the first of March, an attempt is made to list property brought in after the first of March, it must apply to all property so brought in. No distinction can be madé as to property after the first of March, any more than it can as to property on that day. This case differs from that of Francis v. Rld. Co., 19 Kas. 303, for in that the failure to reach all property was due to.a lack of county organization and thus there was a failure of the tax machinery, while here it is the direct result of legislation distinguishing between different kinds of property.
We conclude therefore that the statute, so far as it attempts to provide for the listing of cattle brought into the state after the first of March for the purpose of grazing therein, is a departure from the constitutional rule of uniformity in matters of taxation, and cannot be upheld. Hence, as respects the taxation of the 190 head of steers, the district court should have granted an injunction.
The case will be remanded, with instructions to grant a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The appellant was convicted in the district court of Butler county of the crime of murder in the first degree, in the homicide of one William H. Reeder, and from the conviction brings his appeal to this court. The case has been elaborately briefed and argued by counsel on both sides. A great many rulings of the district court have been pointed out, in which, as is claimed by appellant, are errors prejudicial to his substantial rights. We have examined the case with care, giving that consideration to every question which the importance of the case demands.
We shall proceed now to notice the various questions, premising that as to some of them, they are fully covered by prior rulings of this court. Of course, as to such matters, it will be generally sufficient to refer to the prior rulings.
I. It appears an indictment was found against the defendant,and thatwhile that indictment was pending the state caused a preliminary examination to be had, and thereafter an information to be filed. On the first day of the ensuing term the county attorney nollied the indictment, with leave of the court. On the arraignment of the defendant he plead in abatement that at the time of the preliminary examination and of filing this information, there was pending against him an indictment for the same offense. This plea was overruled, and properly' so. (The State v. Curtis, 29 Kas. 384.) It was there held, upon full examination, that the pendency of one indictment or information was no bar to the filing of another. Counsel, distinguishing that case, say that the statute provides that offenses may be prosecuted either by indictment or information; that the disjunctive word “or” being used, the state is lim ited from the inception to the close to one form of procedure; that while during the pendency of one indictment it may cause another to be filed, and the same with respect to an information, yet that while a proceeding by indictment is pending it cannot change the procedure by filing an information, and thus prosecute by both indictment and information. This attempted distinction is not well taken. Of course a party cannot be put upon trial upon an indictment and an information for the same offense at the same time; and in this sense the state cannot prosecute by indictment and information. But the indictment and information are simply the pleadings on the part of the state. Each one constitutes a separate action, and it is not bound to dismiss one action before it commences another. Here, before the defendant was called to plead to the information, the indictment had been nottied, and there was pending no action by indictment against him.
II. Defendant claims that the court erred in overruling his challenge to the array. The facts are, that at the time the jurors were drawn and summoned, Butler county was a part of the thirteenth judicial district, and its term of court for 1883 would have commenced on the third Tuesday of February. For that term the jurors were drawn and summoned. By chapter 102, Laws of 1883, which took effect February 6,1883, the eighteenth judicial district was created, Butler county placed in that district, and the next ensuing term fixed for the first Tuesday in May. There was therefore no February term of the district court in Butler county. Without any new drawing the jurors summoned appeared at the May term. It is contended that there should have been a new drawing and summoning of jurors. We think not. Section three of said chapter is broad enough to cover the drawing and summoning of the jury. It reads as follows:
“All proceedings of every kind and character, and all bonds, recognizances, subpenas, and all the processes of every kind and character pending in any of the courts of said counties, or either of them, at the date of the passage of this act, shall stand, be returnable and triable at the first term of the court for said counties as specified in this act, the same as if the change herein contemplated had not been made.”
While it may be as counsel say, that the drawing and summoning of jurors is not process issued out of the district court, yet the list of persons so drawn, required by chapter 54, Comp. Laws 1879, §14, ¶8, is equivalent to a venire, which by section 15 the sheriff is required to serve and return to the district court, and the jurors are summoned to appear and serve in that court; so that it comes within the broad language, “all proceedings and processes of every kind and character pending in any of the courts.”
IIT. Appellant insists that the court erred in sustaining the challenge of the state to the juror Henderson. The facts are these: After the regular venire had been exhausted, the following agreement was made as to a special venire: “The court, by agreement of counsel for the state and the defendant, named certain persons to be summoned to attend as jurors in said cause, it being agreed that no person should be named from Augusta, El Dorado, Spring, Little Walnut, or Douglass townships.” In pursuance of this agreement the court named a list of jurors, among them Henderson, who were summoned by the sheriff. It appeared upon the examination of the juror Henderson that he was a resident of Spring township, the home of the defendant; and while from such examination it appears probable that he was a qualified juror, yet the court excused him on the ground of his residence. In this wé see no error. The fact that a court excuses a juror is not generally sufficient ground for a reversal, providing the jury finally obtained is unimpeachable. (Stout v. Hyatt, 13 Kas. 232; Rld. Co. v. Franklin, 23 id. 74; The State v. Miller, 29 id. 43.) And in this case the juror was excused by virtue of an agreement between counsel, an agreement entered into in the interests of justice, and for the purpose of facilitating the selection of a jury. Counsel say that a defendant in a capital case cannot waive any of his legal rights, and that he has such right to the retention on the jury of any juror who shows himself not personally disqualified. We do not think the proposition of counsel is correct, at least as broadly as it is stated; and we see no real substantial waiver of any rights. The court was called upon to name the jurors who should be summoned; and when upon the agreement or suggestion of counsel it determined to select jurors from outside those townships in which the inhabitants were most likely to be familiar with the facts, or influenced by their acquaintance and friendship, it was simply exercising a wise discretion; and if thereafter it appeared that by mistake a juror from one of these townships'had been named, there was no impropriety in setting him aside.
IV. It is insisted that the court erred in permitting the county attorney to indorse the names of two witnesses on the information. It has been repeatedly held in this court that such action is within the discretion of the trial court. (The State v. Dickson, 6 Kas. 209; The State v. Medlicott, 9 id. 257; The State v. Cook, 30 id. 82.)
There is nothing in the rule of the court quoted in the record, which substantially abridges this discretion, or which renders the action of the court in this, case subject to just exceptions.
V. We now pass to a series of exceptions taken to the ruling of the court on the rejection and admission of testimony. Among these may be noticed the, following: The witness Gallager was permitted, over the objection of defendant, to testify to the place where he was told that the body of Reeder had been found, and from that information located upon a map the position, direction and distance of certain other points. We see nothing in this objectionable. The map had been introduced in evidence long before this witness was called, the place where the body was found identified by other witnesses, and the only object of this witness’s testimony was the location of other points with respect to the spot where the body was found.
VI. Again, a series of objections runs to testimony of this nature. Witnesses were permitted. to testify as to seeing a pistol in the pocket of defendant several days before the horn ieide, as to expressions of ill-feeling and threats on the part of the defendant toward the deceased a month or two before; also, to the fact of a quarrel between the parties about ten' months before the homicide, and that defendant was beaten in that quarrel; also, to the fact that a pistol was brought to one witness, a gunsmith, about a month before the homicide, which he thought was the one found after the homicide in the house of defendant; and in respect to the probability of the ball found in the body of the deceased having béen fired out of such pistol. Now in respect to all this testimony, we remark that it was legitimate for the state to prove in the possession of defendant the means of committing the homicide in the manner in which it was committed, and also the fact of prior difficulty and continued ill feeling as furnishing the motive therefor. It may be conceded that the identification of the pistol was not absolute and perfect; that the quarrel was one of many months’ standing, and therefore the presumption of continued ill-feeling and present motive was not as strong as though the quarrel had been of recent date, and yet such testimony was not incompetent. It was for the jury to determine its weight. It was enough for the court to say that the testimony was proper. In The People v. Bemis, 16 N. W. Rep., p. 794, (a Michigan case,) Cooley, J., in delivering the opinion, says:
“The prosecution was permitted to show ill-feeling on the part of the respondent towards Henderson, extending back two years before his death. This was objected to as too remote; it was certainly going back a good ways, but we cannot say the trial judge exceeded the limits of a just discretion in receiving the evidence.”
VIL The testimony on the part of the state did not disclose any personal observation on the part of any witness ,of the homicide. It showed the fact that just prior thereto the defendant was seen riding toward the place where the body of deceased was found, and that immediately thereafter he was seen riding rapidly therefrom. The trial took place more than a year after the homicide, ánd on that trial the defendant introduced two witnesses living in the immediate vicinity, whose testimony was that at or about the time of the homicide they saw riding away therefrom at a rapid gait, a man on a different colored horse from that ridden by defendant, and two parties in an open buggy. Of course such testimony raised a question as to whether the homicide was not committed by one of these three parties, instead of by defendant. Evidently this testimony was a surprise to the counsel for the state, and on cross-examination they asked the witnesses if they were not aware of the excitement which prevailed in the vicinity at the time of the occurrence of the homicide, which question they answered in the affirmative, and then if they had told any one of what they had seen. This question one of the witnesses answered in the affirmative, saying that she had told a neighbor shortly after the occurrence. In rebuttal this neighbor was introduced, and asked if anything of the kind was said to her. Over the objection of the defendant she was permitted to answer, and testified that nothing of the kind was intimated to her. We think it was within the discretion of the court to permit the impeachment of the witness in the manner in which it was done. Of course it was material to know whether such parties were really seen in the vicinity of the homicide at the time of its occurrence. It is always competent to impeach a witness by proof of statements outside the court room, contradictory of those made on the witness stand, and we think within the same principle it is competent to prove that a witness claiming to be possessed of information most important, and aware of the occurrence and the excitement caused thereby, did not, as she claimed, disclose the information to anyone. It is against human nature that a witness possessed of such important information and aware of the occurrence and the feeling pervading in the community in consequence thereof, should not disclose it to anyone, and when such witness claims that she did in fact disclose the information to certain parties, it was competent to show by such parties that she did not. It certainly was strong impeaching testimony, and as such we think it was legitimate. (Powers v. Leach, 26 Vt. 270; Cady v. Owen, 34 id. 598; Howe v. Thayer, 17 Pick. 91.)
VIII. Two witnesses testified that they went to arrest defendant on the day of the homicide; that at the time of arrest they said nothing to him except that Reeder was killed, and that he was charged with the homicide; that thereupon he said to his wife and hired hand that Reeder had been found in the road shot and killed, and that he had to go to Augusta to stand a preliminary examination therefor. Impeaching these witnesses, the defense offered two witnesses present at the preliminary examination, who testified that they heard the two prior witnesses on the preliminary examination, and that they had no recollection of these witnesses giving any statement as to such language on the part of defendant, at the time of the arrest. In rebuttal, and as corroborative of the first two witnesses, the state introduced a witness who was present at the preliminary examination, and who testified that these witnesses did give the same testimony then as to the language of defendant.
We think this evidence was competent. Of course the testimony of the two witnesses offered by the defense was in the nature of impeachment, as tending to show that the matter referred to by the plaintiff’s witnesses was an afterthought', and it was perfectly legitimate to attack this impeachment by testimony that at the very time named and immediately after the arrest they told the same story.
These are all the matters in respect to the rulings of the court in the rejection and admission of testimony which it will be necessary to notice. Many other matters of a similar nature are referred to by counsel in their elaborate brief, but after a careful examination of them all, we are constrained to say that nothing appears of sufficient moment to justify any interference with the verdict. We think that it may fairly be said that there is no error in the rulings of the 'court in respect’to the testimony, open to just criticism. No testimony of an improper nature was admitted, and everything which would have a legitimate bearing upon any question of fact in the case was admitted. We think, therefore, this entire series of objections is without just foundation, and must be overruled.
IX. We pass now to an objection of a different nature. It is insisted that the court failed to give proper admonitions to the jury at the time of the several adjournments. It is not pretended that an admonition was not given, but the claim is that it was not sufficiently full and specific. The section of the statute bearing thereon reads as follows:
“ When jurors are permitted to separate, after being impaneled, and at each adjournment, they must be admonished by the court that it is their duty not to converse among themselves, nor suffer others to converse with them, on any subject connected with the trial, or to form or to express any opinion thereon, until the cause is finally submitted to them.”
Upon the occasion of the first adjournment after the jury had been impaneled, the court admonished them as follows:
“You, gentlemen of the jury, will remember the charge I have given you, not to talk to each other, or allow any person to talk to you, or form any opinion in regard to this case until it shall be finally submitted to you; not to talk about or express any opinions, and be here promptly at eight o’clock in the morning.”
The subsequent admonitions were equally full and specific, and generally referred to the admonition previously given. Now the specific objection is, that while the statute prescribes that it is their duty not to converse “on any subject connected with the trial,” the language of the admonition was simply “in regard to this case,” and it is claimed that there is a substantial and important difference between these two expressions. We do not think there is any such difference as will vitiate the proceedings. The language of the admouition is broad, “in. regard to this case” and embraces in it everything involved in the trial. We do not understand that the statute imperatively requires that the court shall use its very language, but it is at liberty to use other words and expressions, providing in so doing it gives an equally full and specific caution and admonition; and this, we think, it clearly did.
Further, it may be noticed that no objection was made by defendant at the time to any admonition, or any suggestion that it lacked fullness, or was in any respect deficient. See in respect to this matter of admonition the case of The State v. Stackhouse, 24 Kas. 445.
X. It is objected that the court erred in permitting the jury to separate after having been charged, and in support of this the cases of Madden v. The State, 1 Kas. 340, and Lewis v. The State, 4 id. 296, are cited. It does not appear from the record that the jury were permitted to separate after the case had finally been submitted to them for decision. It does appear that after they had been charged, and after two arguments, one on either side, the trial was adjourned until the next morning, and the jury after due admonition permitted to separate; and also by the affidavits of counsel, that after the arguments were all finished, the court took a short recess before sending the jury out for deliberation, and that during the recess there was a separation. Now in the case of Madden v. The State, the jury had actually retired for the purpose of deliberation, and the separation of the jurors was not by authority of the court, but simply at the instance or through the connivance of the bailiff in charge. The distinction between the two cases is marked. While in the Madden case the argument preceded the charge, and after the charge there was nothing for the jury to do but to retire and delibérate, yet under the present statute the charge precedes the argument, so that, especially in an important case, many hours may intervene between the charge and the retirement for final deliberation. And while the arguments of counsel are being made, and up to their retiring for final deliberation, we think, notwithstanding the first sentence in § 237 of the code of criminal procedure, that the court may under proper admonitions permit the jury to separate. We therefore see no error in the ruling of the court in this respect.
XI. It is claimed that the court erred in several of its in structions. Some half-dozen are briefly criticised. We have examined the charge as a whole, and the several instructions particularly criticised, and we think both as a whole and in its several parts it presented the law clearly and correctly. Some of the questions raised by counsel have been already passed upon by this court, and need not be referred to. The fourth instruction is objected to on the ground that it assumes that the defendant committed the assault that caused the death of Reeder. It does use the expression “said assault,” but that of course refers to what is said in prior instructions, and in them the question as to who committed the assault is distinctly left as a fact to the consideration of the jury. If what is meant by the phrase “reasonable doubt” can be made more intelligible in any other way than by the use of the expression itself, we think the seventh instruction was calculated to accomplish this result. Its language is, “ not mere conjectures or fanciful speculations, but such real and substantial doubts as would prompt your action in any important event in which you might be interested.” Certainly of that, defendant has no right to complain. We see nothing in the twelfth instruction deserving of the criticism placed upon it by counsel. It simply states what is claimed on the one side, and the other; and appeals to the jury, giving the defendant the benefit of a reasonable doubt, to return a true verdict, uninfluenced by improper considerations. Obviously some such instructions as that are often called for by circumstances surrounding the trial, and we cannot say that such did not exist in this case, or that the court erred in its admonitions in respect to such matters. It seems to us that the instructions are correct, and must be sustained.
XII. It is insisted that the court erred in not granting a new trial on the ground of the misconduct of the jury and the county attorney. In reference to the former, putting all the affidavits of the jurors together, we think the facts deducible therefrom are these: After the jury had agreed upon their verdict, and it had been reduced to writing, signed by the foreman, placed in a sealed envelope, and while the jury were waiting for the bailiff to bring them into the court room, one of their number referred to the fact that defendant’s wife had not been called as a witness, using language like this: “If the defendant McKinney is not guilty, why did he not produce his hired hand, the young man on his place, and his wife, to show his whereabouts and where he was during the time which he told the boy to say that he had not been away from home. If he was not away, his wife must have known it.” This, it is claimed,is in direct violation of § 215 of the code of criminal procedure, which authorizes the defendant-in a criminal action and his wife to testify on his behalf, which section contains this proviso:
“That the neglect or refusal of the person on trial to testify, or of a wife to testify in behalf of her husband, shall not raise any presumption of guilt, nor shall the circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.”
Upon these facts we remark that the verdict was agreed upon and prepared before any reference was made to the failure of defendant’s wife to testify, and that there is nothing to show that such failure was in any manner considered by any of the jury in coming to their conclusion. We lay out of consideration so much of the affidavits of the jurors as states that they were not influenced by and did not consider that fact in coming to their conclusion; for probably that is a matter which inheres in the verdict, and so one upon which jurors may not testify. But if it is competent for the defendant to show by the jurors that such a conversation took place, it is equally competent for the state in like manner to show when and under what circumstances it took place; and as stated, it did not take place until the verdict was agreed upon, signed, and ready for delivery to the court.
If it be said that until it was delivered to the court it could be changed, and was therefore not technically the verdict of the jury, we reply that it was not changed, and that it was agreed upon and prepared before any of this conversation. If it be said that it is evident from what occurred that at least some of the jury knew that she was a competent witness and most likely must have thought of that in coming to their conclusions, we reply that that law has been so long in the statute book that almost every intelligent man in the state is aware of its existence, and knows that both a defendant and his wife may testify in his behalf; so that if ignorance of that, fact is one of the qualifications of a juror, it will be exceedingly difficult to secure an intelligent jury. Further, we are not to presume that they disregarded the law, or reached their verdict upon other than the testimony which was before them. We cannot presume that it was based upon matters outside the case.
Kill. The final matter of alleged error is in receiving the verdict at the time it was received. The facts are these: Between seven and eight o’clock in the evening, the case was committed to the jury, and they retired for deliberation. The court then adjourned until the next morning. At eleven o’clock that night, the jury announced that they had agreed upon their verdict, and were called into the court room. The judge was present, and the officers of the court, also the defendant and counsel on both sides. The verdict was received, opened, and read, and, at the instance of defendant’s counsel, the jury were polled. Thereupon the jury were discharged. After this, and without any previous objection or suggestion, defendant by his counsel objected to the verdict, on the ground that it was not received in open court. The statute, § 238, code of criminal procedure, provides that a verdict must be rendered in open court. Clearly there was a technical departure from this rule. But § 275, which prescribes the grounds for a new trial, contains nothing which wóuld reach a question like this; and §293 provides that “On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” Under these two provisions, we think, the error is not one which will justify a reversal of the judgment. Every substantial right of the defendant was secured. He was present, his counsel were there, the verdict was opened and read in his hearing, the jury were polled at his instance, and each one declared that it was his verdict. There was nothing but a technical departure from a statutory requirement.
Again, the receiving of a verdict is a ministerial, or at least only a quasi-judicial act. It may be received on Sunday, though that is dies non; and no judicial act can be performed on it. (Stone v. Bird, 16 Kas. 488.) In 1 Bishop on Criminal Procedure, § 1001, the author observes as follows:
“The receiving of a verdict is by some judges spoken of as a judicial act, by others as a ministerial act. Practically it is by all or nearly all treated as ministerial, or at most, as only quasi judicial. It may be done when no strictly judicial act can be; as, on Sunday. Though Sunday is dies non juridieus, wherein no judicial act is valid, but ministerial acts are. A verdict received on Sunday is good, yet not a judgment on the verdict. And on Sunday the court may find the fact that the jury cannot agree, and discharge them. Again, though after a jury has gone out for deliberation, the court adjourns to a future day in the term, the judge with his proper officers may receive their verdict in the open court room, a proposition to which, while sound in reason, the authorities appear not to be quite uniform.”
See also Railroad Co. v. Hand, 7 Kas. 389; Davis v. The State, 14 Ind. 358, and other authorities cited by Bishop in his notes to the section quoted. We shall not attempt to review the many authorities contrary to this view which are cited by counsel. Many of them rest on the fact that the defendant was not himself present, or being present lost his right of polling the jury in consequence of the absence of his counsel. Of course such authorities are not in point, because here the defendant was present, as well as his counsel, and the jury were in fact polled. It may also be questionable whether the conduct of the defendant and his counsel was not a waiver of any objection, and this, even if the error were of a more serious nature. (Blake v. Bailey, 16 Gray, 531.) Though, as we think the error was not in itself fatal under the circumstances of the case, it is .unnecessary to rest anything upon a supposed waiver by counsel.
These are all the questions in the case which we think deserving of notice. We have examined every question presented by counsel, carefully read the voluminous record, and are of the opinion that the defendant has no just cause of complaint; that he received a fair and impartial trial; and that the verdict of the jury is, upon the testimony, the right one.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
On September 17, 1883, an information was filed against the defendant, Martin Rust, charging that on the 7th day of August, 1883, he unlawfully, feloniously, wilfully and intentionally took, stole and carried away one sorrel gelding of the value of $65, the property of one S. Ricksecker. Upon this information he was convicted and sentenced to hard labor in the penitentiary of the state, for the term of eighteen months from September-24, 1883. From this conviction and sentence he appeals.
To the information, he pleaded in bar that, at the July term of the court for 1883, he was tried and convicted of the same identical offense, on another information charging the felonious taking, stealing and carrying away of one sorrel horse of the value of $75, one gray pony of the value of $60, and one brown filly, two years of age; that on August 23, 1883, he moved to set aside the verdict and for a new trial, which motion was granted, and the verdict was set aside; that on September 15, 1883, the court, over his objections, allowed the county attorney to nol. pros, the information and dismiss the case. To this plea the attorney for the state filed a general demurrer, which was sustained by the court. To this ruling the defendant excepted.
In The State v. McCord, 8 Kas. 232, this court in commenting upon § 274 of the criminal code, decided that a new trial granted on the motion of the defendant in a criminal case places the party accused in the same position as if no trial had been had. After the new trial had been granted to the defendant on August 23, the case was precisely in the condition it was at the time he was arraigned and pleaded thereto “Not guilty.” In this condition the attorney for the state, with the consent of the court, had the authority to enter a nolle prosequi without prejudice to any fresh prosecution. After the first information had been discontinued and the second information filed, the defendant was rightfully put upon his trial upon the new information, and he cannot claim a discharge or acquittal because a jury had returned a verdict of guilty against him under the prior information, as that verdict was set aside at his instance, and a new trial granted at his request. (See The State v. Ingram, 16 Kas. 14; The State v. Redman, 17 Iowa, 329; Clark v. The State, 23 Miss. 261; Commonwealth v. Tack, 20 Pick. 356; 1 Bishop on Criminal Law, §1014.)
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Fatzer, J.:
These four consolidated actions were filed pursuant to K. S. A. 79-2005 to recover real and personal property taxes paid under protest. The actions also sought to enjoin the defendants, and each of them, from the assessment and collection of such taxes in the future.
The actions were consolidated for trial, and tried to the district court. There is no error alleged as to rulings on motions pertaining to the pleadings; no error is alleged as to the admission or exclusion of evidence, and since there were no post-trial motions, no error is alleged in that respect. The only evidence introduced at the trial was by the plaintiffs, hence, there is no dispute as to the evidence.
The parties make no claim of error with respect to the findings of fact made by the district court, and concede the findings correctly recite all of the facts necessary for decision. The error claimed revolves around the issue whether there was substantial evidence to support the findings of the district court that the real and personal property owned by the plaintiff corporations did not constitute property used exclusively for educational purposes within the purview of the Kansas Constitution and statutes. (Art. 11, Sec. 1 of the Constitution, and K. S. A. 79-101 and 201 Third.)
The district court made findings of fact and conclusions of law based upon the stipulation contained in the pretrial order and the evidence offered and received at the trial. Since all the issues are concisely stated and discussed in the district court’s memorandum opinion, we quote its findings and conclusions in full:
“1. That the questions of fact and of law in cases numbered 24907 and 24925 now pending in this Court are the same as the questions of fact and of law which are involved in each of the above captioned cases which have been consolidated for trial.
“2. That the real and personal property taxes which were assessed against the respective properties of each of the plaintiffs in the above captioned cases for 1968 (the real estate assessments being as shown on Exhibits 21 through 29 and the personal property assessments being as shown in Exhibits 31 and 32) and which taxes became due on December 20, 1968 and June 20, 1969, were paid under protest by each of said plaintiffs on or before said due dates, and within 30 days thereafter the above captioned cases were filed to recover the taxes so paid, the amounts involved in each case being as follows:
Case No, Amount paid under protest
25146 $1985.38
25147 2619.94
25260 2619.92
25261 1985.34
The personal property shown on Exhibits 30 and 31 consists of such items as refrigerators, deep freezes, vacuum cleaners, dishwashers, radio and record players, television sets, silverware, pianos and organs, furniture in the dining room, living room, bedrooms, basement, rugs, carpets, drapes, the filing cabinets, dishes, airconditioners, pictures, mirrors, and the food mixers.
“3. The two fraternities involved in this litigation are local chapters of member fraternities of the National Interfraternity Conference. Each chapter is organized and conducts its affairs through two basic units: the active chapter, and the alumni corporation. Each corporation is organized as a nonprofit unit, each is exempted from payment of income tax, and each so conducts its operation that neither it nor one of its members realizes or receives a profit therefrom. The function of the corporation is to acquire and hold title to the chapter house and its furnishings in order that members of the active chapter will have a home in which to live and take part in the activities of the fraternity while attending the University of Kansas as students. The active chapter is an unincorporated association, the membership of which is composed of students of the University of Kansas who have become affiliated with the chapter through the process known as ‘rush.’ All male K. U. students are eligible to become members of such organizations, but only those who are asked and accept become members. Such members are first pledges, and following initiation, become actives. All initiated members of the active chapter become members of the corporation after they cease being students and thereby become alumni.
“4. The two fraternities involved herein are Alpha Kappa Lambda which shall hereinafter be referred to as AKL, and Sigma Alpha Epsilon which shall hereinafter be referred to as SAE.
“5. The building site and chapter house owned by the AKL corporation has a book value of approximately $315,000. Prior to a remodeling program estimated to cost from $275,000 to $300,000 and to have been completed by the fall of 1969, the building site and chapter house owned by the SAE corporation had a book value in excess of $230,000. The capacity of the AKL house is 82, and upon completion of the remodeling SAE will have rooms for 93 men. The chapter houses of AKL and SAE are so constructed that from 80 to 90 per cent of each is designed for or readily adaptable to study by members of each chapter.
“6. The major source of the income required to operate the AKL and SAE chapter houses is the house bill which is charged to and paid by each of the active members of such fraternities. The house bill of each fraternity is made up of three items: board, room, and dues. The amount of this house bill is so calculated that the amount budgeted for each item will be met. In this connection each member of each chapter is required to sign an individual leasing agreement approved by his parent in which he agrees to make house payments for board, room and duties in the amounts stated in such agreement. Although these leasing agreements are made with the corporation of each chapter, the house bills are collected and accounted for by the treasurer of each active chapter. From the house bills so collected each active chapter pays the accruing grocery bills, utility bills, wages, repairs, national chapter obligations and other chapter expenses incurred, and also pays its alumni corporation the amount budgeted as rent. This rent which the corporation receives from the active chapter is budgeted and used for the retirement of debt, for taxes, for repairs, for replacement or enlargement of chapter house or furnishings, and other miscellaneous expenses. Plaintiffs in these cases are the respective alumni corporations of AKL and SAE which have paid the taxes in question under protest.
“7. The SAE house bill for the school year ending June, 1969, was $108 per month of which $12 to $16 was for dues. The SAE house bill for the school year beginning September, 1969 was figured at $115 per month of which $20 is for dues, $40 is for board and $55 is for rent. In recent years the AKL house bill has been $105 per month of which $12 to $14 is for dues. The amount received for dues is used by each chapter for payment of national chapter assessments and local chapter activities. Except for the amount charged for dues by fraternities the cost of living in a fraternity is about the same as the cost of living in a University Dormitory. For the year ending June 30, 1968, out of total expenses of $72,854.52 SAE paid the following amounts for the activities indicated:
Activity Amount
Yearbook $182.50
Campus activities 304.63
Intramurals 190.09
Homecoming 168.57
Rushing (to 9-30-67) 2750.00
Newspapers 234.75
Newsletters — Alumni Relations 571.07
Convention 381.23
Flowers & Gifts 198.14
Social 2739.94
Total $7720.92
For the eleven months ended May 31, 1968, out of total expenses of $75,280 AKL had activities expenses as follows:
Activity Amount
Campus activities $350.00
Intramurals 217.00
Rushing 4269.00
Subscriptions 242.00
Convention Work Shop 48.00
Flowers & Gifts 149.00
Social 1421.00
Homecoming 143.00
Yearbook 145.00
Total $6984.00
“8. In order that they may operate in connection with K. U., AKL and SAE must, and have been recognized as duly constituted fraternities by the University and as such are subject to certain University controls, which controls are carried into effect for the most part through the Office of the Dean of Men and through the Interfratemity Council to which all fraternities must belong and contribute. Included among the controls just mentioned are: no alcoholic beverage may be had or served on fraternity premises; fraternity kitchens are inspected at least once a year; each fraternity must have either a resident director or housemother approved by the Dean of Men; in selecting its members fraternities are prohibited from discriminating on account of race, creed or national origin; and during rush week rushees must register with the Dean of Men’s office and a list of pledges must be filed with designated offices shortly after pledging has been accomplished.
"9. In selecting pledges AKL and SAE are interested in young men with good high school records, with scholarship ability, with character and personality, with outside interests, and who will be compatible with the members of their respective fraternities. The initiation ritual is secret in SAE but not in AKL. The grade average of fraternities is better than that of non-fraternity men by about one-tenth of a point. In SAE a pledge must have a 1.2 average in order to be initiated and after initiation all actives must maintain a 1.0 average to remain in good standing. AKL requires a 1.3 average prior to initiation. Both AKL and SAE recognize that belonging to a fraternity affords the male student the opportunity to select those with whom he will live and work, and spend some of his leisure time while attending the University. Both AKL and SAE require that a member must be a student in K. U. in order to live in the chapter house. If a member of either chapter is dropped as a student he is also dropped as an occupant of the house.
“10. Through the Interfraternity Council fraternities plan to cooperate with the University in providing some meeting space for small study groups in connection with the College within a College program. AKL and SAE also take part in Greek Week, have three to five major parties a year, send a representative to the annual convention of the national organization of each, participate in the Rock Chalk Review, write alumni news letters, provide cultural opportunities for its members, take part in a charitable project in the community, and engage in intramural sports.
“The issues to be resolved are as stated in the pre-trial order, as follows:
“1. Is the real and personal property owned by the plaintiff corporations, property used exclusively for educational and benevolent purposes within the scope of Article XI, Sec. 1 of the Kansas Constitution and K. S. A. 79-101 and 201?
“2. Are the furnishings in the house of the plaintiffs exempt from taxation as household goods not used for profit as contemplated by Article XI, Sec. 1 of the Kansas Constitution and K. S. A. 79-201?
“From the facts as found it is concluded that:
“1. The Court has jurisdiction of the subject matter and of the parties in each of the actions involved herein.
“2. That both of the issues above stated should be resolved against the plaintiffs. As to issue No. 1, see: Alpha Tau Omega v. Douglas County Commissioners, 136 Kan. 675; and annotation in 66 ALR. 2d 904. As to issue No. 2, see this Court’s Memorandum of Decision in case number 24060, Association of Sigma of Gamma Phi Beta, Inc., et al. v. Brookover, et al., in which the identical issue was resolved against the plaintiff fraternities and sororities therein, included among which was SAE.
“3. That the respective claims of the plaintiffs herein to a refund of the taxes paid under protest and for an Order enjoining the assessment of real and personal property taxes against them in the future should be denied and the taxes so paid under protest should be released to the County general fund.”
In harmony with its findings and conclusions, the district court entered judgment in favor of the defendants, and each of them, and against the plaintiffs.
The plaintiffs contend the district court erred in finding the evidence failed to show their real and personal property to be so used as to be exempt from taxation under the Constitution and statutes heretofore referred to. We are of the opinion, the findings of the district court are amply supported by the evidence, and we conclude that, as did the district court, this case is controlled by Alpha Tau Omega v. Douglas County Comm’rs, 136 Kan. 675, 18 P. 2d 573, where it was held:
“A house which is used by members of a college fraternity as a home while attending college is not used exclusively for literary, educational or scientific purposes so as to cause it to be exempt from taxation under section 1 of article 11 of the constitution.
“Where it is sought to establish that property is exempt from taxation on account of a constitutional or statutory ground, the one claiming the exemption must bring himself clearly within the terms of the provision.” (Syl. ¶¶ 1 and 2.)
It is abundantly clear from the evidence and the findings of the district court, that in addition to the educational use stressed by the plaintiffs, the property is used for fraternal purposes including initiations, for alumni reunions, homecoming activities, parties, rest, recreation, entertainment of guests, rush activities, and other social activities, and that the members of the active chapter of each fraternity participate in those activities as a fraternal group. In addition, the members send representatives to the conventions and meetings of the national fraternity and publish newsletters for its members and alumni. Over ten percent of the Sigma Alpha Epsilon income is budgeted for activities as is nearly nine percent of the Alpha Kappa Lambda income.
Under the many decisions of this court, including Washburn College v. County of Shawnee, 8 Kan. * 334; St. Mary’s College v. Crowl, 10 Kan. * 44; Sunday School Board of the Southern Baptist Convention v. McCue, 179 Kan. 1-5, 293 P. 2d 234, and Kansas State Teachers Ass’n v. Cushman, 186 Kan. 489, 500, 501, 351 P. 2d 19, the plaintiffs’ claim that whether the property in question is “used exclusively” for educational purposes, means whether the property is “used primarily” for that purpose, cannot be sustained. The two terms are not synonymous, and our decisions so hold. The case of Kansas Wesleyan Univ. v. Salina County Comm’rs, 120 Kan. 496, 243 Pac. 1055, upon which the plaintiffs rely, was discussed at length and distinguished in Alpha Tau Omega v. Douglas County Comm’rs, supra, as being inapplicable to support their claim. The Wesleyan case was likewise discussed and distinguished as being inapplicable to support the claim of exclusive educational use of property claimed to be exempt from taxation in Kansas Teachers Ass’n v. Cushman, supra. It was held the total use of the property must be measured, and that since the headquarters building owned by the association was used in part for the individual benefit of the teacher members, the property was not used directly, immediately, solely and exclusively for educational purposes as those terms are defined by the decisions of this court. And so here.
We next turn to the district court’s conclusion the furnishings of the plaintiffs’ chapter houses were not exempt from taxation as household goods not used for the production of income as contemplated by Article 11, Section 1 of the Constitution.
The identical issue here presented, was involved in the case of Association of Sigma of Gamma Phi Beta, Inc., et al. v. Brookover, et al., No. 24060, in Douglas district court. In rendering judgment in that case, the district court filed a memorandum decision which states succinctly the grounds upon which the court’s decision was based denying the plaintiffs’ claimed exemption of “household goods.” Because the issues and contentions are thoroughly discussed in the court’s memorandum opinion, the pertinent portions are quoted:
“6. The sole issue in this case is: Are the furnishings in the houses of plaintiffs, which furnishings consist of such items as are listed in finding No. 4, exempt from taxation? The contentions of the parties on this issue are in substance as follows: Plaintiffs contend that the furnishings in their respective chapter houses are household goods as contemplated by Article 11, Sec. 1 of the Kansas Constitution and that such household goods are not used for the production of income. Defendants, on the other hand, contend that such furnishings are not household goods as contemplated by said constitutional provision, but that even if they are household goods, such household goods are used by plaintiffs for the production of income.
“The constitutional provision under which plaintiffs claim exemption was adopted November 3, 1964, is Article 11, Sec. 1, and reads as follows:
“ ‘The legislature shall provide for a uniform and equal rate of assessment and taxation, except that mineral products, money, mortgages, notes and other evidence of debt may be classified and taxed uniformly as to class as the legislature shall provide. All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and all household goods and personal effects not used for the production of income, shall be exempted for taxation.’
“Prior to its amendment in 1964, that portion of said Article 11, Section 1, which follows the words ‘charitable purposes’ read as follows: ‘and personal property to the amount of at least two hundred dollars for each family, shall be exempted from taxation.’ (Emphasis supplied.)
“As will be noted the exemption of personal property to the amount of $200 for each family was dropped from the constitution and in its place the provision exempting all household goods and personal effects not used for the production of income was adopted.
“In 1965 the legislature amended the tax exemption statute in order to make provision for the change in Article 11, Sec. 1 of the Constitution. Such amendment is found in K. S. A. 1967 Supp., 79-201 and reads as follows:
“ ‘That the property described in this section, to the extent herein limited, shall be exempt from taxation: . . .
“ ‘Thirteenth. All household goods and personal effects not used for the production of income: Provided, That the terms household goods and personal effects when used in this act, except as otherwise specifically provided, shall include all items of furniture, cooking utensils, refrigerators, deep freezers, washing and drying machines, dishwashers, stoves, ranges, ironers, vacuum cleaners, sewing machines, radio and record players, television sets, shop and hobby equipment used in or about the home, fishing equipment (not including boats), bicycles, yard and garden equipment, firearms, golf clubs, photographic equipment, jewelry, luggage, musical instruments, and air conditioners if not a part of the central heating and air conditioning system.’ ” (Emphasis supplied.)
“Applying the constitutional and statutory provisions just mentioned to the facts as above found, it is concluded that the furnishings of plaintiffs as assessed by Douglas County, Kansas are not exempt from taxation.
“The conclusion reached is based upon an interpretation of the constitutional provision in question in light of the $200 exemption which it re-placed and in light of the legislative definition of ‘household goods and personal effects’ in the 1965 amendment to the tax exemption statute. In this connection it is to be noted that the $200 exemption was for each family. When this exemption was replaced by exempting household goods and, personal effects not used for the production of income it is clear that the word ‘household’ was intended to be descriptive not only of the kind of goods which were to be exempt but also of the place where such goods were to be located and used at the time an exemption was claimed — and in both instances the intention was that goods in the household or family home and the personal effects of the members of such household or family not used for the production of income were to be exempt. The relationship between the corporate plaintiffs and the members of their respective active chapters in the operation of their several chapter houses cannot be classified as a family or a household nor can their respective house furnishings be classified as ‘household goods’ as those words are used in Article 11, Sec. 1 of the constitution. Beyond this there is no question but that plaintiffs do use their household furnishings for the production of income, which income plaintiffs use for the purposes hereinbefore found. The fact that plaintiffs are non-profit corporations which are exempt from income taxes does not in itself establish that plaintiffs are not using the furnishings in their respective chapter houses for the production of income.
“In their brief plaintiffs rely in part for relief in this action upon the fact that fraternities and sororities make a significant contribution to the University in the areas of housing, social and campus activities and in attracting better than average students to K. U. by rushing them. Commendable as this contribution is it has no probative value in respect to the issue in this case. An alumni corporation of a fraternity or sorority just is not a householder nor is it possessed of ‘household goods and personal effects’ as those words are used in the constitutional provision in question.
“A party claiming an exemption from taxes has the burden of proof to bring himself clearly within the exemption and in this connection the provision creating the exemption is to be strictly construed. (Stahl v. Educational Ass’n, 54 Kansas 542; Taggart v. Holcomb, 81 Kan. 879; and Topeka Presbyterian Manor v. Board of County Comm’rs., 195 K. 90; see also 51 Am. Jur. 530, Sec. 527, et seq.). Plaintiffs’ evidence does not sustain the burden placed upon them by the law and their respective claims for return of taxes paid under protest on the theory that the taxes were illegally assessed are denied.”
This court is of the opinion the district court correctly interpreted and construed Section 1, Article 11 of the Constitution, and the provisions of Section 79-201 here in question. It is apparent the exemption afforded by Section 1, Article 11 for “household goods not used in the production of income” was intended to replace the former constitutional exemption of “$200 for each family.” Likewise, the legislature, in amending 79-201 and describing the property to the extent therein limited, provided that household goods and personal effects not used in the production of income, shall include “all items of furniture, cooking utensils, refrigerators . . . used in or about the home . . .” (Emphasis supplied.)
The legislative intent to not exempt the personal property of the plaintiff corporations is clear. The word “household” has been defined as substantially synonymous with the word family, and means those dwelling under the same roof with a domestic head. (2 Black’s Law Dictionary, p. 1462.) If doubt persists as to the meaning intended, one need look only to K. S. A. 77-201 which defines household as follows:
“Twenty-fifth. The term “householder’ shall be construed to mean a person of full age, and owning or occupying a house as a place of residence, and not as a boarder or lodger.”
Members of each of the fraternities here involved do not legally comprise a family, and the corporate owners of each of the chapter houses and the personal property therein situated, may not be said to be householders.
The plaintiffs lastly argue the assessed personal properties are not used in the production of income, and attempt to show that the monthly house bills of the fraternity members are calculated to break even for the year’s operation. The point is not well taken. The evidence clearly showed the plaintiffs are corporate owners which rent the houses and furnishings for cash, the proceeds of which are used to retire debts and acquire assets. The plaintiffs receive in excess of $140,000 income each year which they could not do without the property they claim is exempt from taxation.
The plaintiffs have not established any fact which tends to distinguish the operation of their fraternity houses from that of any other private person or corporate owner engaged in the sale of board and room to college students, and they are not entitled to the exemptions claimed. (Alpha Tau Omega v. Douglas County Comm’rs, Supra.) In the latter case, this court quoted with approval a portion of Mr. Justice Brewer’s opinion for the court in Washburn College v. County of Shawnee, supra, as follows:
“ ‘All property receives protection from the state. Every man is secured in the enjoyments of his own, no matter to what use he devotes it. This security and protection carry with them the corresponding obligation to support. It is an obligation which rests equally upon all. It may require military service in time of war or civil service in time of peace. It always requires pecuniary support. This is taxation. The obligation to pay taxes is coextensive with the protection received. An exemption from taxation is a release from this obligation. It is the receiving of protection without contributing to the support of the authority which protects. It is an exception to a rule and is justified and upheld upon the theory of peculiar benefits received by the state from the property exempted. Nevertheless, it is an exception, and they who claim under an exception must show themselves within its terms.’ ” (l. c. 680.)
The district court properly concluded the plaintiffs failed to show themselves to be within the terms of any constitutional or statutory exemption from taxation, and it did not err in entering judgment in favor of the defendants.
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The opinion of the court was delivered by
Kaul, J.:
Defendant Jack R. Farris, appeals from a conviction by a jury of the possession of a pistol in violation of K. S. A. 21-2611 [now 1970 Supp. 21-4204.].
On December 1, 1969, defendant was convicted of burglary in the third degree and larceny in connection therewith. He was released on probation on the same day. Two days thereafter, on December 3, 1969, defendant was arrested. An information was filed charging him with four offenses — two counts of robbery in the first degree, possession of a pistol after conviction of a felony, and possession of non-narcotic drug.
The jury was unable to agree on the two robbery counts. The defendant was acquitted of possession of a non-narcotic drug and convicted of possession of a pistol. The state did not retry the robbery charges. Thereafter defendant perfected this appeal from his conviction of possession of a pistol under 21-2611.
As a result of information concerning the armed robbery of a liquor store, defendant was arrested by the Wichita Police the afternoon of December 3, 1969. Defendant and his automobile had been under surveillance by the police for about an hour after the report of the robbery. At about 3:50 p. m. defendant was driving his 1965 Chevrolet when he was stopped by three Wichita Detectives. Carl Wenke was with defendant at the time. Defendant was advised of his rights and then stated he would talk with the detectives. Detective Harold Norman related the conversation as follows:
“ ‘We asked him where he had just been. He stated that he had been trying to sell his pistol because he had just been convicted of a burglary and could not possess a pistol and that he had sold it. I asked him where he had sold it. He stated he did not wish to tell us . . . No, he wouldn’t tell us the location either.’;”
Later the detectives learned from Wenke that defendant had left the pistol at the home of his mother-in-law.
Robert Paxton, the husband of defendant’s mother-in-law, was called as a witness for the state. He testified that about 5:30 the afternoon of December 3, 1969, two detectives came to his home to pick up a pistol. On cross-examination, Paxton testified that he overheard a conversation between defendant and his wife, which he related as follows:
“ ‘. . . Well, he [defendant] asked if she’d keep the pistol and she said if it wasn’t hot, and he said it is not hot, said I am not supposed to have a gun, I want to keep it over here until I can get rid of it — just get rid of it.’ ”
Imogene M. Mitchell, a clerk at the liquor store which had been robbed early in the afternoon of December 3, identified defendant as one of the robbers and stated “that he pulled his pocket back revealing a gun stuck in his belt.”
Wenke testified that he had accompanied defendant downtown to several pawnshops where he had attempted to sell the pistol.
Defendant testified in his own behalf, giving a different version of his conversation with the detectives at the time of his arrest. His testimony is narrated:
“. . . [H]e had advised the officers that he had tried to sell the gun at several pawn shops and that he couldn’t get enough for it there so that he had sold it to a friend, but that he had not delivered it and he had taken it to his mother-in-law until the transaction could be completed.”
Lena Paxton, defendant’s mother-in-law, testified that defendant brought the pistol to her house to hold for him; that it was in a brown paper sack; and that “at the time she did not see it was a gun.”
At the conclusion of all the evidence defendant moved for discharge on the count in question on the ground the evidence was insufficient. On appeal, defendant claims the trial court’s adverse ruling was erroneous. Defendant argues that all of the evidence showed that he was attempting to comply with the law. He says that the willfulness of possession, the keeping and the control of the pistol in question were not shown.
We cannot agree with defendant’s position. The evidence of both the state and defense, which we have summarized, left for the jury’s determination a clearly defined question of fact whether defendant had deprived himself of his right to the possession and control of the pistol.
The testimony of both Mr. and Mrs. Paxton was to the effect that defendant gave Mrs. Paxton the gun to hold for him. Mrs. Mitchell testified defendant had a pistol on him at the time of the robbery. Even though the jury could not agree on the robbery count, her testimony was evidence of defendant’s possession. The credibility of defendant’s testimony was put in doubt by reason of the sharp variance between his version of his conversation with the arresting officers and the testimony of Detective Norman.
We believe there is ample evidence to support an inference that defendant had willfully retained the ownership and the right to possession and control of the pistol.
K. S. A. 21-2611, under which the information herein was drawn, provides in substance that it shall be unlawful for any person who has been convicted of any of the enumerated offenses, including burglary, “to own a pistol, or to have or keep a pistol in his possession, or under his control.”
The elements necessary to establish an offense under 21-2611 have been considered by this court on many occasions. In State v. Wheeler, 195 Kan. 184, 403 P. 2d 1015, the requirements of the statute were set out in these words:
“. . . However, the statute in question (K. S. A. 21-2611) does not require intent as a prerequisite for its application. It merely requires that the accused have a previous conviction for certain specified offenses among which is grand larceny and ownership, possession or control of a pistol having a barrel less than twelve inches long. . . .” (p. 186.)
In State v. Phinis, 199 Kan. 472, 430 P. 2d 251, this court had occasion to consider the quality of the possession or control of a pistol contemplated by the statute, we said:
“Webster’s unabridged dictionary (third) defines possession as the act or condition of having in or taking into one’s control or holding at one’s disposal. Control is defined as the act or fact of controlling, the power or authority to guide or manage.” (p. 481.)
The nature of the possession contemplated by the statute was again considered in State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den. 393 U. S. 1108, 21 L. Ed. 2d 805, 89 S. Ct. 919, wherein we held:
“The possession and control of a pistol contemplated by K. S. A. 21-2611 is the exercise of dominion thereover, or the right and authority to possess, control and manage its use and disposition.” (Syl. ¶ 3.)
Viewed in the light of this court’s interpretations of the statute in question, we believe the record discloses adequate substantial evidence to justify submission to the jury for determination the controlling question whether defendant had surrendered possession of the pistol.
Defendant claims error in the trial court’s refusal to submit a requested instruction. Defendant has only abstracted his requested instruction and the trial court’s instruction No. 10; thus the question is not properly presented for our review. (State v. Kowalec, 205 Kan. 57, 468 P. 2d 221; and State v. McCorvey, 199 Kan. 194, 428 P. 2d 762.) Nevertheless we have examined defendant’s contention.
As we have noted, the trial court in instruction No. 10 gave the jury the elements of the offense under the terms of the statute. After the case was submitted, in response to a question by the jury, the court further instructed on the meaning of possession as follows:
“Possession may mean to have personal charge of or exercising the right of ownership, management or control over. A person knowingly has an article on his person may be said to have possession.
“Control may mean to govern, have under command, and authority. To exercise directing, guiding and restraint over.
“The Court’s interpretation of Instruction 10 is that the law as stated therein means just what it says.”
Defendant claims the court should have submitted his requested instruction which reads:
“You are instructed that the possession of a pistol after a felony conviction as set forth in Count Three of the Information means wilful possession with bad faith and an evil motive. Wilfulness implies bad faith and an evil motive. An act is done knowingly if it is done voluntarily and purposely and not due to mistake, inadvertence or some other innocent reason. Therefore, if you find that the defendant possessed a pistol without bad faith or evil motive, but for some other innocent reason you must find him not guilty of Count Three.”
In effect, defendant’s requested instruction would require the state to prove beyond a reasonable doubt that defendant not only willfully possessed the pistol but that he did so in “bad faith” or with an “evil motive.” Defendant cites no authority in support of his position and we know of none.
Willful possession or control of a pistol, as distinguished from the innocent handling thereof, is all that is required by the statute in this regard. (State v. Runnels, 203 Kan. 513, 456 P. 2d 16; State v. Phinis, supra; and State v. Wheeler, supra.) In the instant case, certainly defendant had willful possession of the pistol in the first instance; the question framed by the evidence was whether defendant had surrendered control of it. We believe the court’s instruction No. 2 and the answer to the jury’s inquiry fully and fairly presented the question to the jury.
Finding no reversible error the judgment is affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
The defendant in error (plaintiff below) filed his petition in the district court of Crawford county, alleging, inter alia, that on the 24th of January, 1883, he was the owner of and in exclusive possession of a brick store building of the value of $5,000, and of the rental value of $80 per month, situate in Girard, Crawford county, in this state; that he owned and had therein a general stock of merchandise of the value of $12,000, and also a safe of the value of $225; that on said 24th day of January, the defendants (plaintiffs in error) without right or authority and against his will and consent, entered the store-room in his brick building and took forcible possession of the premises, and then and there wholly deprived him of the same, and then and there converted all of said merchandise, together with the said safe, to their own use and benefit.
The answer to the petition contained a general denial, and also set forth that the property taken was not the property of the plaintiff below, but the property of one Curtis, against whom Adler & Sons, of Milwaukee, Wisconsin, had a large claim for goods; that the transfer of the goods from Curtis to plaintiff below was fraudulent, and made with the intent to cheat, defraud and delay the creditors of Curtis; that Adler & Sons, learning these facts, brought their action in the United States circuit court for the district of Kansas, to recover judgment on their claim against Curtis; that in that action they obtained an attachment against the property of Curtis; that the order of attachment was delivered to one of the defendants, who was United States marshal, and by him delivered to the other, his deputy, and that by virtue of the order of attachment they took possession of the stock of merchandise.
To this, the plaintiff below filed a reply containing a general denial. Subsequent to the filing of the reply, the circuit court discharged the order of attachment issued against Curtis, upon the ground that the alleged causes therefor were untrue. Thereafter, with the leave of the court, the defendant below filed a supplemental or amended reply setting up the dissolution of the attachment proceedings. A demurrer was filed to this reply, which was overruled. Then the defendants, with leave of the court, amended their answer, and also filed a supplemental answer to the plaintiff’s amended reply, denying generally the averments thereof, and alleging that the case of Adler & Sons against Curtis was still pending in the United States circuit court and undetermined.
I. It is alleged that the court erred in allowing the amended or supplemental reply to be filed, and in not sustaining the demurrer thereto. We think otherwise. The answer to the petition set up the attachment proceedings which were issued out of the United States circuit court as a justification of the trespasses charged against the defendants below, and alleged that all the acts done by them were done under color of law and official authority. Section 144 of the code expressly authorizes that either party to the action may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition or reply alleging facts material to the case occurring after the former petition, answer, or reply. The supplemental reply was properly filed, as it alleged facts material to the case- occurring after the former reply. Supplemental pleadings, like amended pleadings, are largely within the control and discretion of the court, and error will lie only when an abuse of that discretion is shown; but supplemental pleadings, embracing subsequent facts, are generally permitted by the courts. (Clark v. Spencer, 14 Kas. 398.) The discharge of the attachment related back to the issuance of the order of attachment, and swept away the defense that by virtue of the attachment proceedings the defendants below officially took possession of the property claimed. After the attachment was dissolved, they could not justify thereunder.
II. It is next asserted that the trial court erred in refusing to permit the defendants in the court below to question the bona fides of plaintiff’s title to the property seized under the order of attachment. Officers holding possession of property finder writs of attachment have the right to defend the possession of the property, and in such a proceeding the bona fides of the debtor’s acts in transferring the property to a plaintiff may be inquired into; but in this case the order of attachment was wrongfully obtained. Before the trial the attachment was discharged. This discharge vacated all the attachment proceedings ab initio. Thereafter the officers had no special title in or to the property seized by them; they had no judgment, or execution, or any valid process under which they could justify their possession. Therefore they were not in any position to question the bona fides of plaintiff’s title. Even a creditor cannot attack an assignment or transfer as fraudulent unless he has first placed himself in such a position that the assignment or transfer interferes with the assertion of his right to the particular property in question. (Hastings v. Belknap, 1 Denio, 190; Andrews v. Durant, 18 N. Y. 496; Bump on Fraudulent Conveyances, 2d ed., 515, 516. See also Tennent v. Battey, 18 Kas. 324.)
III. It is finally contended that the court erred in holding the defendants below liable for the value of a safe. This safe was in the store-room where the merchandise was seized. The officers took possession of the store-room and its contents, and excluded the owner therefrom. A day or two subsequent to the time that the said officers took possession of the store-room and its contents, another officer entered the room, levied on the safe under some legal process against Curtis, and carried it away. This state of facts rendered the defendants below liable for the value of the safe, even though they did not actually levy upon it. They deprived the owner of the possession of his store-room; they took possession of all its contents, including the safe; and such a wrong was committed thereby that the plaintiff below was entitled to recover damages for the property in the store, of the possession of which he was deprived. It was no defense as against him to establish that some other officer or person, without any right whatever, and seemingly with the consent of the defendants below, carried away the safe after the defendants had taken possession thereof, and prevented the owner from having any care or control of it. It will not do, under these circumstances, to say that because the defendants were unable to return the property on account of the action of others, that they are to be released from liability. (Blaker v. Sands, 29 Kas. 551.)
Several other questions are discussed in the briefs filed, but in view of the suggestion of counsel for plaintiffs in error that it would be manifestly futile to retry the case unless they have the right to impeach the bona fides of the sale from Curtis, we think it unnecessary to make other comments.
The judgment of the district court must be affirmed.
All the Justices concurring.
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Per Curiam:
Upon the authority of the case In re Lewis, ante, p. 71, the writ in this case will be denied. See also Clark v. Spicer, 6 Kas. 440.
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The opinion of the court was delivered by
Brewer, J.;
This was an action brought by defendant in error, plaintiff below, to recover the value of a colt killed by being struck by a passing train on defendant’s railroad. The action was commenced before a justice of the peace, and after judgment, appealed to the district court, where the case was tried before a jury. The case was tried on the bill of particulars filed before the justice, and without any new or additional pleadings. The verdict and the judgment were in favor of the plaintiff, and defendant brings the case to this court. The bill of particulars alleged that the colt was killed through the negligence of defendant, and also that the road was not fenced at the place of killing. The latter charge was not supported by the testimony and was disregarded by the jury. The case was therefore disposed of upon the theory that the defendant was guilty of actual negligence in killing the colt.
Among the undisputed facts, are these: The colt was kept in the fair grounds just west of Emporia, in Lyon county. Between the fair grounds and the railroad track was a fence, in which about midway was a gate used principally during fair time by persons passing backward and forward from trains to the fair grounds. At times when the fair was not being held, the gate was occasionally left open by tramps passing up and down the railroad track, and other persons. During the night prior to the injury complained of, in some undiscovered way, the gate was opened, and left open. Early in the morning, the colt with three or four others which were running loose in the fair grounds passed through this open gate, and upon the defendant’s right-of-way. While on the right-of-way, an emigrant train came from the west. The other colts kept off the track, but this one went upon it and ran eastward toward the city of Emporia, followed by the train until near the east line of the fair grounds, when its course being stopped by an open bridge it was struck by the train and killed. No negligence can be imputed to the defendant in the manner in which the colt escaped from the fair grounds and went upon the right-of-way. The question therefore was, whether there was negligence in the management of the train.
The jury answered this question in the affirmative, and while the testimony was not absolutely conclusive, there was ample to warrant the answer. It seems probable that a little effort and care on the part of the persons in charge of the train might have avoided the accident, so that really the only substantial question arises on the rulings of the court in respect to the instructions. The court refused an instruction to the effect that the defendant was not liable unless it killed the colt willfully, wantonly or through gross negligence, and instructed the jury substantially that it was liable for ordinary negligence. While some other criticisms are placed upon the instruction, this is the pivotal question. If the ruling was right in this respect, the other matters referred to must be regarded as immaterial, and the judgment must stand; if not, the judgment must be reversed.
Counsel for the company rely largely on the case of Railroad Co. v. Rollins, 5 Kas. 167, in which the company was held liable only for gross negligence. They insist that the principles there laid down have been since frequently affirmed by this court, and are controlling and decisive in the case at bar. 'We think not. Without intending any departure from those principles, we think that case is not in point. There the plaintiff, living in the vicinity of the railroad track, turned his cattle loose on uninclosed fields, from which they strayed upon the railroad track and were killed by a passing train. In so doing, he was chargeable with some blame. He knew the unfenced condition of the road, knew of the passing trains, and knew that his cattle turned loose might very naturally wander in the direction of the track. Hence, it could, not be said that he was entirely without fault. But in the case at bar, the plaintiff was without any fault. He took all reasonable precautions to confine his colt, placed it in a field inclosed by a secure and safe fence. Without any fault on his part, and through the misconduct or negligence of some unknown person, in the night-time, the gate was left open and through it the animal wandered upon defendant’s track. While technically the animal was a trespasser, yet it was so trespassing after reasonable precautions had been taken by the plaintiff, and without any fault on his part. Under those circumstances, the .company was bound to use ordinary care to prevent injury.
The case of Railroad Co. v. Brown, 14 Kas. 469, is in its facts very much in point. There the plaintiff’s stock had been by him shut up in his barn, and without any fault on his part, in the night-time, got out therefrom and strayed upon the railroad track, and were killed. In that case the company was held liable. It is true this particular question was not then discussed or specially considered, so that the case is not a direct authority. (See also Railroad Co. v. Wilson, 28 Kas. 637; Railroad Co. v. Riggs, ante, p. 622.)
It is true that authorities in other states are conflicting on this question. See the various authorities cited in briefs of opposing counsel. We think in' principle, however, it is more just and fair that where the owner of stock is without fault, and has taken every reasonable precaution to keep his animals confined, and through some unexpected casualty, or misconduct or negligence of a third party, the animals escape from such confinement upon the grounds of another, the latter should use ordinary care to prevent their being injured. See in support of these views the following authorities from other states: Pearson v. Milwaukee &c. Rly. Co., 45 Iowa, 497; Rockford &c. Rld. Co. v. Rafferty, 73 Ill. 58; Baltimore &c. Rld. Co. v. Mulligan, 45 Md. 486; Bemis v. Conn. &c. Rld. Co., 42 Vt. 375; Cinn. & Zanesville Rld. Co. v. Smith, 22 Ohio St. 244; Ill. Cent. Rld. Co. v. Baker, 47 Ill. 295; Little Rock & Ft. S. Rld. Co. v. Finley, 37 Ark. 562; Richmond v. Sacramento &c. Rld. Co., 18 Cal. 351.
Again, it is insisted that plaintiff’s bill of particulars charged the defendant with liability on account of the lack of a fence, and that therefore evidence of negligence was improperly overruled. It is true the bill of particulars alleged the lack of a fence, but it also counted on the negligence of defendant, and while plaintiff failed to prove the former he did the latter. This he might do. (Stewart v. Rld. Co., 27 Kas. 631.) If there was any lack of definiteness in the allegation of negligence, it should have been corrected by motion. We see nothing else requiring notice, and the judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
The facts of this case, stated briefly, are substantially as follows: On December 4,1882, A. J. Connelly brought an action before G. C. Hunter, a justice of the peace of Aubrey township, Johnson county, Kansas, against G. W. Woods, on a promissory note for $100, with interest, dated September 1,1882, and payable six months after date. Connelly filed this promissory note with the justice of the peace as his bill of particulars. On the same day, to wit, December 4, 1882, Connelly filed an affidavit with the justice of the peace for an order of attachment, in which affidavit he stated, among other things, that said note was due; and at the same time an attachment bond or undertaking was given, with A. M. Young as surety; and at the same time a summons and an order of attachment were issued by the justice, and placed in the hands of Charles Chrisman, a constable of Aubrey township, in said county, who duly served the same on the same day. The summons was served by leaving a copy thereof at the usual place of residence of Woods, and service of summons was also made at a subsequent time by publication. The order of attachment was also duly served on December 4, 1882, by attaching a horse belonging to Woods. At the time this action was commenced, Woods was temporarily absent from the state of Kansas, and was in Texas, but he returned home in a few days afterward, and before anything further was done in the action. The return day of the foregoing writs, and the day set for the trial of the case, was the 9th day of December, 1882, but on that day the case was continued to January 13, 1883. On December 11, 1882, an order was made by the justice of the peace directing the constable to dispose of said property as upon execution, and on December 23, 1882, the constable sold the same to one T. W. Todd, for $290, and Todd immediately took the horse into the state of Missouri, where he has ever since been. On January 13, 1883, the justice of the peace rendered judgment by default in favor of Connelly, and against Woods, for the sum of $103.65, and costs, taxed at $50.90.
Woods never made any appearance in the case, although he had knowledge of the same prior to the rendition of the judgment therein. The proceeds of the sale of the horse were applied in payment of this judgment, and also in payment of two other judgments which had also been rendered by the same justice of the peace against Woods and in favor of other parties about that time. On January 17, 1883, Woods brought this present action in the district court of Johnson county against Connelly, the plaintiff in said attachment action, and A. M. Young, the surety on the attachment bond, and Gr. C. Hunter, the justice of the peace, and Charles Chrisman, the constable, charging them, among other things, with having taken the said horse to the state of Missouri and selling him and applying the proceeds thereof to their own use. All the defendants answered to the plaintiff’s petition by filing general denials, and Chrisman also set up a justifi cation under the order of attachment. The plaintiff replied, setting up new facts. A trial was had before the court and a jury, and the jury found a general verdict in favor of Woods and against the defendants Connelly and Hunter, and assessed the plaintiff’s damages at $96. The jury also found specially that there was no debt due from Woods to Connelly at the time the suit was commenced by Connelly against Woods in the justice’s court, and also found specially that it was not within the power of Chrisman at any time after he-sold the horse to Todd to deliver the same to Woods. Upon these findings the court below rendered judgment in favor of Woods and against Connelly and Hunter for the sum of $96 and costs of suit, and the case was dismissed as to Chris-man- and Young. Connelly and Hunter, as plaintiffs in error, now bring the case to this court, and ask that said judgment of the district court be reversed.
From the foregoing facts, we think it will appear that one of the main questions involved in this case, if not the main question, is whether the justice of the peace, Hunter, had any jurisdiction to issue the said order of attachment; for if the justice had such jurisdiction, then the plaintiff below, Woods, has no right to recover as against the justice, and possibly not as against any other person; but if the justice did not have any such jurisdiction, then we think that Woods certainly has a right to maintain this action, and to recover the full amount which he did recover. It would seem that the horse was worth about $400, and that the jury, under the evidence and the instructions of the court below, deducted from that amount an amount equal to the three judgments which had been previously rendered by the justice of the peace against Woods and in favor of Connelly and others, and rendered their verdict for the excess of the value of the horse over and above the amount of the said three judgments.
That the promissory note sued on in the justice’s court was not due when the action in the justice’s court was commenced, there can be no doubt. It was not due when the action in the justice’s court was commenced; it was not due on the return day of the summons and order of attachment; it was not due when the justice of the peace ordered the horse to be sold; it was not due when the horse was in fact sold; it was not due when the justice rendered judgment in favor of Connelly and against Woods; it was not due when the proceeds of the sale of the horse were paid on said three judgments; and it was not due when this present action was commenced. The promissory note itself shows that it was not due, and there was nothing presented in either the justice’s court or in the district court showing that it was due, except the said affidavit of Connelly for the order of attachment; and that affidavit states that it was due, in the following words, to wit: “That said claim is just, is due, and is wholly unpaid; and that said affiant believes that said plaintiff [Connelly] ought to recover of said defendant [Woods] the said sum,” etc.
The main question in the district court, as in this court, was whether the order of attachment was valid, or not; and this question, as it was thought by the district court, depended upon this other question, whether the said promissory note was due, or not, when the order of attachment was issued.
Now there is nothing in the entire litigation from beginning to end, except Connelly’s affidavit, tending to show that the note was due when the order of- attachment was issued; but on the contrary, everything except the said affidavit tended to show that the note was not then due, and the jury made a special finding, stating that the note was not then due. The case must therefore be decided upon the theory that the note was not due when the said order of attachment was issued; and upon this theory, was the order of attachment void, or valid? There is no provision in the justices code authorizing an order of attachment to be issued upon a claim before it is due, and there is no provision in the code of civil procedure, or elsewhere, authorizing an order of attachment to be issued upon a claim before it is due, upon the grounds upon which the order of attachment was issued in the present case; In the present ease, the grounds for the order of attachment, as set forth in Connelly’s affidavit, are stated in the following language, to wit: “That said defendant [Woods] has absconded with intent to defraud his creditors, and so conceals himself that a summons cannot be served upon him.” Section 230 of the civil code authorizes an order of attachment to be issued in certain cases upon a claim before it is due, but it does not authorize an order of attachment to be issued in any such case as this, or upon any such grounds as those upon which the order of attachment was issued in the present case; and whether said §230 of the civil code has any application to cases brought before a justice of the peace, is also at least doubtful. (See reasoning in the case of Kerner v. Petigo, 25 Kas. 652, 657.)
The judgment in the present case was rendered against both the justice of the peace and the plaintiff in the attachment proceedings. Was the justice liable? The jurisdictional facts upon which a justice of the peace may issue an order of attachment are the following: (1) An action must be commenced at the time or before the order of attachment is issued; (2) an affidavit for the attachment must be filed; (3) an attachment bond or undertaking must be given. (Sections 28 and 29 of the Justices Code.) Now all these things were done in the present case, but it is claimed on the part of Woods that the action was wrongfully commenced on a claim before it was due, and that the affidavit for the attachment, although sufficient upon its face, was not true, for the reason that it stated that the claim was due, when in truth and in fact it was not due. These are the only grounds upon which it is claimed that the justice of the peace did not have jurisdiction to issue the order of attachment, or that he wrongfully issued the same. Are these grounds sufficient to render the justice liable? We would hardly think they are. The affidavit for the order of attachment was sufficient on its face; and the affidavit is the principal thing upon which a justice of the peace issues the order of attachment, although of course, before issuing the same he should see that an action has been commenced in which an order of attachment is allowable, and also see that an attachment undertaking has been executed and filed. The justice of the peace is not bound, however, to scrutinize closely the bill of particulars filed by the plaintiff in the action to see that it unquestionably states a cause of action; for in many cases where the plaintiff’s pleading is defective, the pleading may be amended and the attachment sustained; and generally the justice of the peace has a right to suppose that the affidavit is true, if it is possible in the nature of things and under the circumstances of the case to believe it to be true.
Now, notwithstanding the fact that the note upon which Connelly commenced his action was dated September 1,1882, and purported to be payable six months after date, yet the justice might have supposed from the affidavit, either that the date of the note was wrong, or that the word “six” should have been “one” or “two,” or that the word “months” should have been “days” or “weeks,” or that some subsequent or collateral contract was entered into between the partiés whereby, and under the circumstances of the case, the note had become due prior to the commencement of the action. In other words, we think the justice of the peace had a right to rely upon the truthfulness of the affidavit, and was not bound to know, at his peril, that the affidavit was not true, and that the note was not in fact due when he issued the order of attachment. In other words, so far as the justice of the peace is concerned, he had jurisdiction to issue the order of attachment. But this jurisdiction, we think, was merely the jurisdiction of a ministerial officer, and not that of a judicial officer, and therefore, that while such jurisdiction will protect the justice, it will not protect any other person than the justice. It will not protect or exculpate Connelly. He must have known that the note was not due when he filed the affidavit for the order of attachment; and therefore we think he must be held to be liable for all that resulted from the wrongful procurement of the order of attachment. As to him, the justice of the peace was without jurisdiction. Besides, no person should be allowed to commit such a wrong with impunity.
We have not been referred to any authority directly in point; but some of the authorities referred to have some analogy to this case. (See Drake on Attachment, ch. 5, and cases cited; Spice v. Steinbuck, 14 Ohio St. 213; Gillett v. Thiebold, 9 Kas. 427; Hannum v. Norris, 21 id. 114; Hauss v. Kohlar, 25 id. 640; Ivy v. Barnhartt, 10 Mo. 151.) This last case is cited by counsel for plaintiffs in error, but we do not think that it has much application to the present case, for the reason that the case was decided upon the technical rules of the common law, and not under the more liberal rules of the code practice. The decision was that “an action of trespass will dot lie against a party for suing out an attachment, although the debt on which the suit was founded was n.ot due at the commencement of the suit;” and the court, in its opinion, uses the following among other language :
“ It is difficult to imagine the principle upon which an attempt is made to support an action of trespass on the facts of this case. The rule is stated in Chitty, 136, whenever an injury to a person is effected by regular process of a court of competent jurisdiction, case is the proper remedy; trespass is not sustainable.”
In this state, and under the more reasonable and liberal rules of the civil code, a party may simply state the facts of his case, and if he has a right to recover on such facts, he may recover in the action, whether the action is such as would at common law be denominated an action of trespass, or an action on the case, or some other kind of action. There, has been no question raised in this court with regard to the sufficiency of the pleadings in the court below, and hence the decision of this court will be made upon the facts of the case, and not upon any technical or arbitrary rules of pleading. The plaintiff, Woods, did not set forth the facts of his case very fully in his petition, though he did in his reply; and the defendants, Connelly and Hunter, did not set forth the facts of their defenses at all, but simply filed general denials. The case, however, was tried by the court below as though the pleadings were entirely sufficient, and we shall decide the case in the same way. We shall decide the case upon the real facts of the case, as shown by the evidence and the findings of the jury; and, deciding the case in this manner, we think the justice of the peace should be held to be not liable, and the plaintiff in the action before the justice of the peace should be held to be liable. Therefore, as to the justice of the peace, the judgment of the court below will be reversed; and as to Connelly, it will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
O’Connor, J.:
This is an action to recover damages for breach of an “Option Contract” entered into by die plaintiffs, who are former stockholders of the William Kelly Milling Company located in Hutchinson, and the defendant, C. E. Eagle. The district court rendered judgment in favor of plaintiffs, and defendant has appealed.
The factual background of the present controversy began May 7, 1968, when the parties entered into a written contract entitled “Option to Purchase.” Under the terms of that instrument defendant was granted the exclusive right to purchase plant “A” of the milling company for the sum of $93,000, the option to exist until December 1, 1968. The recited consideration was “One Dollar,” payment of which was acknowledged.
On September 7, 1968, defendant, by letter to plaintiffs requested an “Addenda” to the original option whereby plaintiffs would agree to accept the sum of $70,000 as the purchase price; that not later than September 27, defendant would deposit $5,000 in a bank as evidence of his good faith; and if the money was not deposited, the agreement would be null and void and the original option would continue in effect. After receiving the letter, plaintiffs discussed the matter with their management committee, and finally had their attorney, Mr. Lane Cronhardt, prepare the “Option Contract” which is the subject of this litigation.
The contract dated September 13, 1968, granted defendant the exclusive right to purchase the property for $70,000 until October 30, 1968. Other pertinent provisions of the agreement were as follows:
“Party of the first part [defendant] agrees that he will place in a bank located in Hutchinson, Reno County, Kansas, the sum of five-thousand dollars ($5,000.00) to be held in escrow with instructions to the escrow agent for disbursement in accordance with the terms of this option. Said five-thousand dollars ($5,000.00) to be evidence of good faith on the part of the party of the first part and to be deposited in said bank no later than 12:00 o’clock A. M. October 11, 1968.
“Party of the first part further agrees that in the event that he does not exercise his rights under this option to purchase the property herein described that the above mentioned five-thousand dollars ($5,000.00) shall be forfeited and the escrow agent shall be instructed to pay the sum held in escrow to the party of the second part.
“It is further agreed by and between the parties that in the event party of the first part elects to purchase the said property for the purchase price above indicated that the five-thousand dollars held in escrow shall be applied to the purchase price leaving a balance due in the amount of sixty-five thousand dollars ($65,000.00).
“It is further agreed by and between the parties that in the event that party of the first part fails to exercise his right to purchase the property under the terms of this option that in addition to the forfeiture previously mentioned in this option, this option along with an option entered into by and between the parties dated May 7, 1968, shall terminte [sic] at 5:00 o’clock P. M. October 30, 1968, and party of the first part shall have no further rights or interest in the property above described.”
The defendant did not deposit the $5,000, and, in fact, notified plaintiffs he was withdrawing from the program on October 11, 1968. This action was instituted May 23, 1969.
The district court, after hearing the evidence, issued a short Memorandum Opinion, part of which we quote:
“7. The court concludes that the option contract dated September 13, 1968, is not ambiguous.
“8. By the express terms of the contract the defendant is obliged to put the sum of $5000.00 in escrow to be disposed of by the terms of the agreement.
“9. That the plaintiffs are entitled to the benefit of their bargain and judgment should be given plaintiffs in the sum of $5000.00 for breach of said contract.”
Defendant’s principal point on appeal centers on his assertion that the contract in question was ambiguous in that it was not clear whether he had an option to purchase until the $5,000 was actually placed in escrow, and therefore, his letter of proposed changes in the original option should be considered in determining the intention of the parties. The argument is also made that under the rule that doubtful language in a contract is to be construed most strongly against the party preparing it (the plaintiffs in this case), an option was not contemplated unless the escrow money was paid.
An examination of the “Option Contract” discloses there were at least two material changes from those proposed by defendant in his letter of September 7, 1968 — (1) there was no provision that if $5,000 was not deposited the contract would be null and void, and (2) express provision was made that if defendant failed to exercise his option to purchase by October 30, not only would he forfeit the $5,000, but also the original option granted May 7 would terminate. According to testimony of two of the plaintiffs, there were good reasons for requiring defendant to pay $5,000 as consideration for the option. The purchase price was substantially reduced, and all during the time of the option plaintiffs were precluded from selling the property, and yet were incurring taxes, insurance, and utility expenses. One of the plaintiffs testified: “We figured what it would cost referring to taxes and the great amount of time that had expired and we figured we had a contract in operation and this would be just a matter of interest, is about all it amounted to.”
The rule is well established that where parties carry on negotiations and subsequently enter into an agreement in writing with respect to the subject matter, all prior and contemporaneous negotiations are deemed to be merged into the written agreement which constitutes the contract between the parties. Where the agreement is complete, unambiguous, and free from uncertainty, parol or extrinsic evidence tending to vary or substitute a new and different agreement from the one evidenced by the writing is inadmissible. (Weiner v. Wilshire Oil Co., 192 Kan. 490, 389 P. 2d 803; Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132; Brown v. Beckerdite, 174 Kan. 153, 254 P. 2d 308; Cherry v. Joyce, 168 Kan. 475, 213 P. 2d 1010.)
Ambiguity in a written instrument does not arise until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper one. (Fast v. Kahan, 206 Kan. 682, 481 P. 2d 958.) Applying this principle to the “Option Contract” in question, we have no difficulty in concluding that its terms are clear and unambiguous. Hence, there is no occasion for applying rules of construction. (Shunga Plaza, Inc. v. American Employers’ Ins. Co., 204 Kan. 790, 465 P. 2d 987.) The contract must be enforced according to its terms so as to give effect to the intention of the parties at the time they entered into the contract, and this must be determined from the four corners of the instrument itself. (Wiles v. Wiles, 202 Kan. 613, 452 P. 2d 271; Anderson v. Rexroad, 175 Kan. 676, 266 P. 2d 320.)
In our opinion we have here a true option contract whereby defendant had the choice of buying the property at the agreed price during the period September 13-October 30, while plaintiffs had no choice but to sell if the option were exercised. The right of choice is the thing for which a party receiving the option pays, or promises to pay, while the consideration furnished by the party giving the option is his lack of choice in the matter. (Connell v. Kanwa Oil, Inc., 165 Kan. 241, 194 P. 2d 950; Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803; 12 L. R. A. [n. s.] 745.) An option, when supported by consideration, is a contract to keep an offer open for a specified period of time. In 17 C. J. S., Contracts, § 100 (4), P. 805 it is stated:
“An option founded on a consideration is a unilateral agreement binding, from the date of its execution, on the party who executes it; and it becomes a contract inter partes when exercised according to its terms. In such a transaction two elements exist, the offer on the one side which does not become a contract until accepted on the other, and the completed contract to leave the offer open for a specified time.”
The express terms of the contract in this case squarely refute defendant’s argument that plaintiffs were under no obligation to perform until he had placed $5,000 in escrow. Plaintiffs were bound by the terms of the agreement to keep their offer open from the date the contract was executed. At the same time, defendant acquired certain rights and obligations in that he was granted the exclusive right to purchase the property during the entire period of the option, in return for which he promised to place $5,000 in escrow by October 11. His obligation to make the escrow payment could hardly be stated in more positive language: “Party of the first part agrees that he will place in a bank . . . the sum of five-thousand dollars ($5,000) to be held in escrow. . . .” (Emphasis supplied.) There was a promise for a promise, constituting adequate consideration to form a contract to keep the offer open for the specified period.
The district court properly concluded that the “Option Contract” was unambiguous and under its terms defendant was obligated to place the sum of $5,000 in escrow to be disposed of by the terms of the contract.
Defendant further complains that even if he were required by the terms of the contract to pay $5,000, plaintiffs were only entitled to nominal damages.
The terms of the contract clearly provided that the $5,000 agreed to be placed in escrow would be forfeited in the event the option was not exercised. This, along with the testimony to which reference has already been made, would indicate that said sum, if not paid by defendant, might reasonably be supposed to have been within the contemplation of the parties as constituting the measure of damages. (See, Hess v. Jarboe, 201 Kan. 705, 443 P. 2d 294 and cases cited therein.)
In this action plaintiffs predicated their right to recover damages on the contract itself. Ordinarily, a party who is injured by a breach of a contract is entitled to compensation for the injury sustained, and is to be placed, so far as it can be done by a money award, in the same position he would have occupied if the contract had been performed. Thus, where a defaulting party fails to pay a sum of money as agreed under the terms of a contract, and he has received the consideration for which his promise was made, the measure of damages is, in the absence of special circumstances, the principal sum agreed to be paid with interest thereon from the time it was due. In such a situation the amount stipulated in the contract is prima facie the measure of recovery. (Krehbiel v. Goering, 179 Kan. 55, 293 P. 2d 255; Millikan v. Shoe Co., 95 Kan. 327, 148 Pac. 660; 22 Am. Jur. 2d, Damages, § 47, § 64; 25 C. J. S., Damages, § 79e; 11 Williston on Contracts [3rd ed.], § 1410.) No contention is made that plaintiffs did not fully perform their part of the bargain; therefore, they are entitled to recover the $5,000 defendant had agreed to pay under the terms of the contract.
The judgment is affirmed.
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The opinion of the court was delivered by
Fromme, J.:
Donald Eugene Cipolla, also known as Donald Eugene Cippola, was convicted and sentenced as an habitual criminal for grand larceny of phonograph records from the Parkview G. E. M. Drugstore in the Mission Shopping Center, Johnson County, Kansas. The conviction was affirmed by this court on direct appeal in State v. Cippola, 202 Kan. 624, 451 P. 2d 199, cert. den. 396 U. S. 967, 24 L. Ed. 2d 432, 90 S. Ct. 446.
The present appeal arises from proceedings initiated by Cipolla pursuant to K. S. A. 60-1507. A plenary hearing was conducted on petitioner s motion. Petitioner was returned to the sentencing court and he testified at length concerning the errors complained of in this appeal. Based upon petitioners testimony and other evidence, the trial court made findings of fact and conclusions of law adverse to the petitioner. The court found the petitioner was entitled to no relief. The petitioner was represented by court appointed counsel at this hearing.
Petitioner’s first point of error is that his retained attorneys at the trial and on the direct appeal were incompetent, ineffective and inadequate, and that as a consequence he was denied the effective assistance of counsel. It would serve no useful purpose to detail these charges. They relate to lack of success in obtaining an acquittal. His attorneys were retained and of his own choosing. No complaint was made by him until after the trial was completed and his conviction was affirmed on appeal.
Effective assistance of counsel cannot be equated to assistance of counsel which is considered successful by a defendant. (Johnson v. State, 203 Kan. 947, 457 P. 2d 181.) The burden of showing denial of effective assistance of counsel to the extent necessary to overcome the presumption of regularity of a conviction is upon the appellant. (State v. Brown, 204 Kan. 430, Syl. ¶ 3, 464 P. 2d 161.) The adequacy of an attorney’s services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells. (State v. Brown, supra.) Bald statements of one convicted of crime that he was inadequately represented by counsel do not raise a substantial issue of fact and will not support a finding to that effect. (Davis v. State, 197 Kan. 576, 419 P. 2d 832; Shores v. State, 195 Kan. 705, 408 P. 2d 608.)
We find no merit to petitioner’s first point of error.
Petitioner’s second point of error attacks the validity of the prior felony convictions used to enhance his sentence under the Habitual Criminal Act. At the plenary hearing petitioner testified he was not concerned with the correct spelling of his last name (Cippola during his trial and Cipolla in these 1507 proceedings). He acknowledged that Exhibits 11, 12 and 15 were records of his prior felony convictions. This second point was raised and disposed of in his direct appeal. (State v. Cippola, supra.) The post-conviction remedy (K. S. A. 60-1507) cannot be used as a second appeal to re-examine questions raised and determined adversely to the defendant in a direct appeal. (Hacker v. State, 207 Kan. 195, 483 P. 2d 484.)
The third and final point raised by petitioner relates to the severity of the sentence (from 40 to 60 years). It is contended that such a sentence, although permitted by K. S. A. 21-534 as enhanced by K. S. A. 21-107a, is unconstitutionally severe and constitutes cruel and unusual punishment.
The nature of this complaint, phrased in petitioner’s own words, is as follows:
. . Now, I would agree with Mr. Wheeler in that I am not an ice cream and candy store type of individual. I am not a totally innocuous person. I have been in the institution before. I have been in prison but I cannot conceive of one getting that much time for a crime such as this. . . .
"... I have been incarcerated in one orphan’s home and a couple of institutions ending in excess of 16 years. I am 37 years of age. That is too much time.”
The Bill of Rights of the Constitution of the State of Kansas § 9 contains a prohibition against inflicting cruel and unusual punishment. In our earlier cases cruel and unusual punishment was generally considered to relate to the kind of punishment to be inflicted and not to its duration. (State v. White, 44 Kan. 514, 25 Pac. 33; In re Tutt, Petitioner, 55 Kan. 705, 41 Pac. 957.)
In State v. Coutcher, 198 Kan. 282, 424 P. 2d 865, it was said:
“While the prohibition of the Eighth Amendment to the United States Constitution has generally been considered to be directed against physical cruelty and torture, there is authority to the effect that it also may be invoked against excessively and disproportionately long prison sentences.” (p. 287.)
It has long been settled that habitual criminal statutes themselves do not inflict cruel and unusual punishment by providing for increased terms of imprisonment for defendants previously convicted of crime. (McDonald v. Massachusetts, (1901) 180 U. S. 311, 45 L. Ed. 542, 21 S. Ct. 389; see also Anno. 33 A. L. R. 3d 335.)
Petitioner’s claim is not based upon the kind of punishment to be inflicted. It is based upon the length thereof. We need not iterate what has been said in our cases which have applied the enhanced penalty. (See Gladen v. State, 196 Kan. 586, 413 P. 2d 124; State v. Shaw, 201 Kan. 248, 440 P. 2d 570; Scoggins v. State, 203 Kan. 489, 454 P. 2d 550.)
It is the function of the legislature to fix and prescribe the maximum penalties. See State v. Shaw, supra. In the present case the court under K. S. A. 21-107a was authorized by the legislature to impose a penalty of life imprisonment. The court chose not to do so and a lesser penalty was imposed within the permissible range (15 years to a maximum of life).
A penalty similar to the present one has been imposed and upheld. See State v. Sanders, 202 Kan. 551, 451 P. 2d 148.
The severity of punishment, if within the statutory limits set by the legislature, is within the discretionary power of the trial court. The petitioner is an habitual criminal with a long history of criminal acts. Upon the record here presented, it cannot be said the trial court imposed a sentence so disproportionate to the offense and to petitioner’s past history of crime as to constitute cruel and unusual punishment.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff, Tommy L. Gowing, seeks to recover attorney fees he incurred in defending an action brought against him for damages resulting from personal injury. Summary judgment was entered in favor of the defendant, Great Plains Mutual Insurance Company, Inc., and Gowing has appealed. The plaintiff will sometimes be referred to as Gowing, or insured, while the defendant will often be designated as Great Plains, or insurer. The facts are not complicated. On December 14, 1965, an altercation took place between Gowing and a party by the name of Cawby on the latter’s farm. Subsequently Cawby filed suit against Gowing for personal injuries allegedly sustained in the affray. In his petition, Mr. Cawby charged Mr. Gowing with an unprovoked, willful, malicious, vicious and violent assault and battery which was renewed after he, Cawby, had left his own land and was on his way to obtain medical attention. In response to Cawby’s charges, Gowing pleaded self defense, and judgment in the assault and battery action was eventually entered in Gowing’s favor.
Prior to the affray, Gowing had procured a policy of insurance with Great Plains, wherein that company agreed, in Section II thereof, “To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy, even if any of the allegations of the suit are groundless, false or fraudulent . . (Emphasis supplied.) Gowing has maintained throughout the course of this litigation that under this provision of the policy Great Plains was obligated to provide for his defense against the Cawby lawsuit.
On the other hand, Great Plains contends it had no duty to defend Gowing in the damage action because of an exclusionary provision reading as follows: “Section II of this Policy Does Not Apply: ... to bodily injury or property damage caused intentionally by or at the direction of the Insured . . .” (Emphasis supplied.) The insurer has taken the position that Cawby’s lawsuit charged Gowing with an intentional injury which was expressly excepted from the policy’s coverage.
Three points are made by the plaintiff. We shall discuss but one of them, since in our view, it will control the disposition of this appeal. Slightly paraphrased, the decisive point raised by Gowing is this: The language of the policy with respect to the insurer’s duty to defend is ambiguous; hence the policy should be strictly construed against the insurer; when so construed, the policy imposed an obligation on Great Plains to defend the personal injury action against Gowing.
In recent years, the so-called adhension contract has been the subject of much learned dissertation on the part of jurists and legal savants. Typical of the adhesion contract, and one of its most prominent examples, is the insurance contract or policy, which possesses the distinctive characteristic of unequal bargaining strength or bargaining status between seller and purchaser, or the insurer and the insured. (See Stewart v. Preferred Fire Ins. Co., 206 Kan. 247, 249, 477 P. 2d 966.)
The terms of today’s standard insurance policy are predetermined by the insurance carrier itself and, long in advance of the individual insurance sale, those terms have been incorporated into the insurance package presented to the prospective buyer. The free give and take of the open market place does not prevail in the insurance industry. The buyer’s freedom of choice in selecting a policy is severely limited; if he desires casualty insurance he must normally accept the printed policy with the usual printed provisions — else he can leave it.
Under such circumstances, concerning which we are not inclined to be critical, the law, in its concern for even-handed fairness, has attempted to minimize the imbalance between insurer and insured, so far as that is possible, by means of a rule that in the event of ambiguity or conflict in the policy provisions a policy of insurance is to be construed strictly against the insurer and in favor of the insured. The rule has been consistently applied in this jurisdiction for many years. (See cases compiled in 3 Hatcher’s Kansas Digest [Rev. Ed.] Insurance, § 42.)
The premise on which this rule is based was given expression in Gray v. Zurich Insurance Co., 65 C. 2d 263; 54 Cal. Rptr. 104, 419 P. 2d 168, where the facts were identical to those in this case, with the single exception that the action filed there against the insured had resulted in a judgment against him:
“Although courts have long followed the basic precept that they would look to the words of the contract to find the meaning which the parties expected from them, they have also applied the doctrine of tire adhesion contract to insurance policies, holding that in view of the disparate bargaining status of the parties we must ascertain that meaning of the contract which the insured would reasonably expect.” (pp. 269, 270.)
This salutary principle pertains to the exclusionary provisions as well as to the other terms of the insurance contract. In Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, 443 P. 2d 681, this court held that inasmuch as the insurer prepares the policy, the burden is upon him to establish facts which bring the case within the exceptions set forth in the policy. (See, also, Southards v. Central Plains Ins. Co., 201 Kan. 499, 441 P. 2d 808.)
In similar vein the federal court in Prickett v. Hawkeye-Security Insurance Company, 282 F. 2d 294, stated that if an insurer intends to restrict its coverage it must use language clearly stating its purpose and that this rule of construction applies with particular force to provisions which attempt to exclude liability coverage under certain conditions.
This court, also, has said that where an insurance company desires to limit its liability under a policy, it should employ such language as will clearly and distinctly reveal its stated purpose. (Miller v. Farmers Mutual Automobile Ins. Co., 179 Kan. 50, 55, 292 P. 2d 711; Chicago, R. I. & Pac. Rld. Co. v. Aetna Ins. Co., 180 Kan. 730, 737, 308 P. 2d 119.) Unclear and obscure clauses in a policy of insurance should not be permitted to defeat the coverage which is reasonably to be expected by the insured. (Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 793, 457 P. 2d 34.)
Viewing the instant policy in the light of these time-tested principles, we cannot say that the extent of the obligation resting on Great Plains to defend its insured is wholly clear or free from doubt. The policy issued to Gowing is a “Farmowners Policy.” It consists of two pages and is in substance what we assume might be termed a comprehensive policy, insuring Gowing’s property against certain perils and Gowing himself against liability. The coverage with which we are here concerned is contained on page two, which is captioned Farmers Comprehensive Personal Liability Form. Under this caption there is the heading “Insuring Agreements” and immediately following is “Section I, Coverage G — Farmers Comprehensive Personal Liability”, in black but smaller capital letters. Under this particular coverage the insurer makes two proposals : (1) To pay on behalf of the insured such sums as the insured shall legally become obligated to pay as damages for bodily injury or property damage and (2) to defend any lawsuit against the insured alleging such bodily injury or property damage and seeking damages payable under the terms of the policy, even if the allegations are groundless, false or fraudulent.
We believe the average man, in reading the foregoing provisions in their entirety, would conclude, and be fully justified in so doing, that he was buying a defense to whatever lawsuit might be filed against him seeking damages to person or to property. The language positioned at the top of the page is broad and sweeping in its scope. It would tend to lead a reasonably naive insurance customer to expect that a defense would be provided against personal injury actions filed against him, whether the alleged injury be calculated or unintentional.
This court follows the general rule that in determining the intention of the parties to a contract of insurance, the test is not what the insurer intends the printed words of the policy to mean, but rather what a reasonable person placed in the position of the insured would have understood the words to mean. (Casey v. Aetna Casualty & Surety Co., 205 Kan. 495, 499, 470 P. 2d 821; Kansas Farm Bureau Ins. Co. v. Cool, 205 Kan. 567, 572, 471 P. 2d 352, and cases cited therein.)
In contrast to the prominence accorded the insuring agreement found under Coverage G at the top of page two, the exclusionary clause on which the insurer relies is placed inconspicuously in a long paragraph near the bottom of the same page. Although the lengthy paragraph covers a number of exclusions as to coverage— both casualty and liability — they are strung together in continuous sequence without break, subparagraph or indentation. The exclusion is, in fact, not as readily apparent or as prominently placed as the insuring agreement. Hence we are not disposed to say that the insurer’s grandly stated promise to defend is clearly and expressly limited to lawsuits based on unintentional torts.
Furthermore, it has been held that the exclusionary clause, itself, lacks clarity. In Gray v. Zurich Insurance Co., supra, on which the plaintiff places great reliance, and whose rationale he urges us to adopt, the California court had this to say:
“A further uncertainty lurks in the exclusionary clause itself. It alludes to damage caused ‘intentionally by or at the direction of the insured.’ Yet an act of the insured may carry out his ‘intention’ and also cause unintended harm. When set next to the words ‘at the direction of the insured’ the word ‘intentionally’ might mean to the layman collusive, wilful or planned action beyond the classical notion of intentional tort. This built-in ambiguity has caused debate and refined definition in many courts; in any event, the word surely cannot be ‘plain and clear’ to the layman.” (p. 273.)
In line with what the court points out in Gray, the distinction between an intentional injury and an unintended injury resulting from an intentional act has been recognized by various authorities. (See Walters v. American Ins. Co., 185 C. A. 2d 776, 8 Cal. Rptr. 665; Smith v. Moran, 61 Ill. App. 2d 157, 209 N. E. 2d 18; Baldinger v. Consolidated Mut. Ins. Co., 11 N. Y. 2d 1026, 183 N. E. 2d 908; Putman v. Zeluff, 372 Mich. 553, 127 N. W. 2d 374.)
We conclude that the instant policy does not meet the tests of clarity and precision laid down by many of our precedents. Ambiguity exists with respect to the duty owed by the insurer to defend personal injury actions instituted against its insured. The policy, being ambiguous in this respect, is to be construed most favorably to the insured and against the insurer. Such being the required construction, we hold that Great Plains was obligated under the insuring agreement found in Coverage G of the policy to defend Cawby’s lawsuit against its insured, despite the exclusionary clause in question.
The judgment of the lower court is reversed with directions to set aside the summary judgment entered in the defendant’s favor and to proceed in accordance with the views expressed in this opinion. In this connection we observe that, by stipulation of the parties, the question of whether notice was given the insurer as provided by the policy was not before the court when it acted on defendant’s motion for summary judgment. Hence, that question remains before the trial court for determination.
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The opinion of the court was delivered by
O’Connor, J.:
This is an injunction action directed against violations of certain restrictive covenants pertaining to Highland Acres Addition in Sedgwick county.
Although the petition named fourteen defendant property owners in the subdivision, service was obtained on only ten of them. After a trial on the issues, the district court granted injunctive relief effective November 21, 1969, and this appeal by defendants Kennedy, Carroll and Scotts followed.
The primary question submitted to and determined by the lower court was whether appellants’ use of mobile homes as residences on their properties violated the restrictive covenants applicable to the subdivision. The court found such use was prohibited. With respect to appellant Kennedy, the court ordered that the unoccupied trailer house, car body, and junk located on his property be removed within thirty days, and within such time he should comply with all other restrictions. Appellants Carroll and Scotts were ordered to remove the “temporary structures” (erected with mobile homes as the basic unit) located on their properties on or before April 1, 1970. The court also directed that other conditions on properties owned by Carroll and Scotts which were not in compliance with the restrictions were to be rectified on or before the April 1 date.
After filing the notice of appeal, appellants requested a stay of any proceedings to enforce the judgment. On April 2, 1970, a stay order was granted by this court and appellants filed their supersedeas bond in the amount of $1,000.
At the outset, we are confronted with appellees’ motion to dismiss the appeal, which, if sustained, will render discussion of the merits of the case unnecessary. The motion, with supporting affidavits, filed February 18, 1971, states the house trailers which had been located on appellants’ lots have been removed and replaced with houses that conform with the restrictions, and appellants are no longer in violation of the district court’s injunction. At oral argument, appellees’ counsel reaffirmed the allegations of the motion and further stated that appellants have fully complied with the judgment of the district court; that appellees are satisfied with conditions as they now exist; and that the appeal should be dismissed. Appellants do not deny they have removed the house trailers as ordered by the lower court.
We have concluded that appellees’ point is well taken and the appeal must be dismissed. It has long been the rule in this jurisdiction that anything which savors of acquiescence in a judgment cuts off the right of appeal. (See, e. g., Curry v. Perney, 194 Kan. 722, 402 P. 2d 316; Rose v. Helstrom, 177 Kan. 209, 277 P. 2d 633; Hawkins v. Wilson, 174 Kan. 602, 257 P. 2d 1110; Newsome v. Anderson, 164 Kan. 132, 187 P. 2d 495; Sisk v. Edmonston, 163 Kan. 394, 182 P. 2d 891; Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259.) Stated another way, a judgment which is acquiesced in, in whole or in part, is not open to appellate review. (Warner v. City of Independence, 121 Kan. 551, 247 Pac. 871; Bank v. Bracey, 112 Kan. 677, 212 Pac. 675.) The question of acquiescence in an injunction action was considered by this court in Warner, where the district court had enjoined the defendant city from proceeding under a contract to pave a street. A succinct statement of the holding is found in Syllabus 1 of the opinion:
“In an action brought under authority of section 265 of the civil code (R. S. 60-1121) by taxpayers claiming to be peculiarly affected by an alleged unlawful letting of a contract to pave a street and public road, where the work was enjoined, and the defendant public officials concerned therewith so far acquiesced in the judgment as to rescind and set aside so much of their proceedings as were held to be invalid and proceeded to let another contract for the improvement of the street and road, all questions touching the correctness of the judgment thus acquiesced in are moot and the appeal must be dismissed” (p. 551.)
In the instant case, appellants sought and obtained a stay of proceedings pending appeal. (K. S. A. 60-262 [c], [d], [f], and 60-2103 [d].) Pursuant to this court’s order, they filed a supersedeas bond conditioned upon their abiding the judgment, if affirmed, and paying the costs. The stay order gave them full protection from enforcement of the judgment until the matter could be determined on appeal. Notwithstanding that their ostensible purpose was to maintain the status quo, appellants took affirmative action whereby they recognized the validity of the injunction order against them and substantially complied with its terms. Under the authorities cited they have effectively waived their right to have the propriety of the district court’s judgment reviewed by an appellant court.
The appeal is dismissed.
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The opinion of the court was delivered by
Fontron, J.:
The plaintiff seeks to recover damages for personal injuries received when she fell down some steps leading from the Sears, Roebuck department store in Wichita. The trial court sustained the defendant’s motion for dismissal made at the conclusion of plaintiff’s evidence, and she has appealed.
The parties will be referred to as plaintiff and defendant, the status they occupied in the court below.
Mrs. Noland, the injured plaintiff, had purchased a power saw on a layaway plan as a Christmas gift for her husband. On December 8, 1967, accompanied by her two young sons and a friend, Katherine Blair, the plaintiff went into the Sears store to pick up her purchase, which was packaged in a large box approximately 8K x 11/2 x 14 inches and weighed some fifteen pounds. Upon leaving the store the plaintiff was followed by Mrs. Blair and the two boys. She proceeded to walk west along a concrete walkway running along the south side of the store, carrying the box in front of her, and headed toward her car which was parked southwest of the building in the customer pickup area.
As Mrs. Noland approached the steps at the west end of the walkway she turned around toward Mrs. Blair, and told her to be sure to take the boys’ hands. Turning back, the plaintiff stopped a second and shifted the box toward one side to glance at the steps, after which she put the box back in front of her and started down the steps. As she took the first step she lost her balance and fell, injuring her knee. Further facts will be developed as the need arises.
The grounds of negligence on which Mrs. Noland relies, as shown by the pretrial order, were the defendant’s failure to provide handrails, plus inadequate width of the treads and uneven height of the risers. The plaintiff alleges these defects violated provisions of the city building code adopted by ordinance and in effect on the date of her accident.
Three points are raised on appeal. The first two relate to the admissibility of certain evidence, while the third is whether there was sufficient evidence to require its submission to the jury. We will first take a look at the third point, since we deem it to be the most significant.
The rule to be applied in testing the sufficiency of evidence to withstand a motion for dismissal or for directed verdict, entered at the conclusion of the plaintiff’s case, has been stated by this court many times. In Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P. 2d 369, it was held:
“In ruling on a motion for a directed verdict all disputed factual questions and all inferences reasonably to be drawn from the evidence must be resolved in favor of the party against whom the motion is directed, and where reasonable minds might reach different conclusions thereon, the motion should be overruled and the case submitted to the jury.” (Syl. ¶ 1.)
Along this same line, we further said, in Springfield Tent & Awning Co. v. Rice, 202 Kan. 234, 237, 447 P. 2d 833, that the trial court is not to weigh evidence on a motion for directed verdict but must accept as true all facts which the evidence tends to prove, together with all inferences which are reasonably to be deduced therefrom in favor of the party against whom the motion is directed.
In the present case, the evidence is undisputed that the Wichita building code, effective at the time of the plaintiff’s fall, required that stairways be equipped with handrails on each side and, where the steps exceeded 88 inches in width, that intermediate handrails be installed dividing the stairway into portions not more than 88 inches wide. The code also limited the permissible variance both in the height of the risers and the slope of the treads from heel to toe. However, since plaintiff testified that she stumbled as she took her first step, and since the slope of the treads is not set out in the pretrial order as one of the grounds of negligence, we need no longer consider either of the latter code provisions or the alleged violations thereof. Accordingly, we shall limit our discussion to the contention that Sears was negligent in failing to provide handrails as required by the ordinance.
The stairway involved in this lawsuit was only two risers in height and varied somewhat in width because of an oblique retaining wall abutting one end. At the step-off point the width was seven feet, the second step going down measured seven feet, eleven inches, or ninety-five inches in width, while the stairway was more than nine feet wide at the bottom. Although there was some dispute as to which measurement was controlling, the code clearly required handrails on each side of this stairway and, as we view the figures, one in the center as well. The trial judge must have entertained the same view for, in granting defendant’s motion to dismiss, he announced “There was no handrail, as called for under the city ordinance, at the time in question.”
It is the unquestioned rule of this jurisdiction that the breach of a duty imposed by law or ordinance constitutes negligence per se, providing a basis for the recoveiy of damages proximately resulting therefrom. (Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 320 P. 2d 1061, and cases cited therein.) That rule we deem to be applicable here, so far as the establishment of negligence on the defendant’s part is concerned.
But proof of negligence is only one half of the equation leading to legal liability; proof of proximate cause is the other half. A connection must be established between the negligence proved and the damage or injury occasioned, and herein lies the main dispute between these parties so far as the merits of this appeal are concerned.
Was there sufficient evidence before the trial court to require submission of the case to the jury? A majority of this court believes there was.
We first must take note of the stipulation shown of record that Mrs. Noland was a business invitee of Sears. That relationship defines the duty owed her, it being the defendant’s obligation to exercise due care to keep the premises reasonably safe for her use as a business visitor and to warn of any dangerous conditions which might exist and the risks involved therefrom. (Little v. Butner, 186 Kan. 75, 348 P. 2d 1022.)
Turning to the evidence, Mrs. Noland testified it was her usual practice when she walked down steps where there was a handrail, to walk right beside it or at least to put her hand on top of it; that when she lost her balance on the Sears’ steps, there was nothing she could do to regain her balance or steady her balance without falling; that she lost her balance and had nothing to hang onto; there was no way for her to regain her balance.
When Mrs. Noland was asked if, in her opinion, she would have lost her balance or, having lost her balance, would have fallen had there been a handrail, or whether she would have used the handrail, if there, objections were interposed which the trial court sustained on the ground that the questions called for conclusions. In so ruling, we believe the court was incorrect. K. S. A. 60-456 (d) provides in substance that testimony in the form of opinions otherwise admissible under the statute, by a witness not testifying as an expert, is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of facts. However, irrespective of the fact that plaintiff was not permitted to express her opinion, we believe there was sufficient evidence from which an inference of causation could be made.
A Wichita architect Mr. Kenneth Vern Brown, testifying for the plaintiff as an expert in the field of architectural design and structure, stated that handrails were designed for the safety and protection of persons using a stairway; that a handrail helps one to keep his balance as he goes down the stairs; it would be something a person could grab and hang on to steady himself if he should tend to fall. In response to a hypothetical question put to him, Mr. Brown stated that without a handrail, “you don’t have the assurance walking down a stairs that you would with a handrail” and followed this up by saying “If there was a handrail, you would have a chance to grab something to steady yourself, but without a handrail you don’t even have that last chance.”
We believe the evidence in its entirety, even though it may not have been robust, would have been sufficient under the surrounding circumstances to justify the jury in drawing an inference of causation, had the case been submitted to it. Jurors have the right to apply their own common sense and to use the general knowledge they have in common with the rest of mankind. (Smith v. Railroad Co., 95 Kan. 451, 148 Pac. 759; Isle v. Kaw Transport Co., 159 Kan. 110, 152 P. 2d 827.) In Rickel v. Railway Co., 104 Kan. 453, 179 Pac. 550, this court held that:
“A jury may draw upon their own information, without proof, touching simple matters of common knowledge and experience . . . (Syl. ¶ 3.)
In a later case we said that even a jury may take cognizance of facts within the common knowledge and experience of people generally. (Garvey v. Lamp Co., 113 Kan. 70, 73, 213 Pac. 823.) Jurors should not be required to leave their common sense behind when entering the jury room. Viewed from this perspective we consider the evidence adequate to sustain a permissible inference of proximate cause.
We have been unable to find any case from this jurisdiction which is factually in point with the present action. However, we believe the case of Randall v. Nasbarg, Colo. App., 470 P. 2d 893, bears some analogy.
One further matter should be noted before closing this opinion. The plaintiff complains that Mr. Brown, the Wichita architect, was not permitted to answer certain hypothetical questions asked of him. However, in view of his answer to a subsequent hypothetical question put to him, no prejudicial error is perceived in this respect.
Although the question presented in this case may be a close one, we believe the trial court erred in removing the matter from the jury. The judgment is reversed with directions to overrule the defendant’s motion for dismissal, to set aside the judgment entered in favor of the defendant and to reinstate this action for further proceedings in line with the views herein expressed.
It is so ordered.
Price, C. J., and Schroeder, J., dissent from paragraph 6 of the syllabus and the corresponding portion of the opinion.
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Leonard Kincade, has appealed from the judgment and sentence of the district court of Sedgwick county for the offense of attempted burglary in the second degree (K. S. A. 21-101; 21-520).
The information charged defendant in two counts: attempted second degree burglary, and possession of a pistol after having been convicted of a felony (K. S. A. 21-2611). Prior to trial, defendant’s motion for a separate trial on each count was overruled. As part of the state’s case, evidence was introduced showing defendant had previously been convicted of burglary in the second degree and grand larceny in Sedgwick county on June 17, 1966. At the conclusion of the prosecution’s evidence, defendant’s motion for discharge on count two (unlawful possession of a pistol) was sustained.
As his first point on appeal, defendant contends the trial court erred in failing to grant his motion for separate trials and in admitting into evidence his prior felony conviction. Defendant concedes that whether an accused who is charged with separate and distinct felonies may be tried upon all of the counts of the information at one and the same time rests within the sound judicial discretion of the trial court. (State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Millhaubt, 144 Kan. 574, 61 P. 2d 1356.) The contention is made that a single trial on both counts was prejudicial because the state was permitted to introduce the previous conviction as a necessary element of count two when it “knew it could not prove knowledge, possession or any other elements necessary to sustain its burden of proof on Count Two.”
The facts giving rise to the charges are not disclosed in the record. We are informed in appellee’s brief, however, that at approximately 4:25 a. m. on March 1, 1969, police officers saw two men run from the vicinity of the attempted burglary and get into a white Thunderbird automobile. Defendant was identified as the driver of the car. A short time later the Thunderbird, with defendant driving, was stopped, and the arresting officers found an automatic pistol in the console between the driver and passenger seats. Obviously, the two offenses occurred at or about the same time, both grew out of the same transaction, and some of the same evidence was needed to prove both offenses. Under the circumstances, the state was confronted with the possibility that a prosecution for a second offense would be barred under K. S. A. 62-1449 were the offenses not tried at the same time. (State v. Collins, 204 Kan. 55, 460 P. 2d 573; State v. Browning, 182 Kan. 244, 320 P. 2d 844; State v. Momb, 154 Kan. 435, 119 P. 2d 544.)
In State v. Anderson, 202 Kan. 52, 446 P. 2d 844, we held:
“Where separate and distinct felonies are charged in separate counts of one and the same information and all of the offenses charged are of the same general character, requiring the same mode of trial, the same kind of evidence, and the same kind of punishment, the defendant may be tried upon all of the several counts of the information at one and the same time, and in one trial. The fact that one of the counts with which the defendant is charged consists of the possession of a pistol after conviction of a felony, contrary to K. S. A. 21-2611, does not alter the foregoing rule.” (Syl. 3, p. 52.)
Defendant’s assertion of bad faith on the part of the state in prosecuting him for both offenses in one trial in order to get his prior record before the jury is not supported by the record. The state, in attempting to prove the firearms charge, was required to show defendant’s prior conviction of one of the enumerated felonies as an essential element of the offense (K. S. A. 21-2611). (State v. Duke, 205 Kan. 37, 468 P. 2d 132.) For that matter, defendant’s prior conviction for burglary and larceny was relevant and admissible under K. S. A. 60-455 with respect to the charge of attempted second degree burglary. (State v. Omo, 199 Kan. 167, 438 P. 2d 768.) Such evidence must be offered in the state’s case in chief (State v. Roth, 200 Kan. 677, 428 P. 2d 58), and contrary to defendant’s contention its admission is not dependent upon K. S. A. 60-447, where the accused is first required to open the door by introducing evidence of his good character (State v. Anderson, supra). A limiting instruction approximating the law as stated in the statute (60-455) was given without objection. (See, State v. Jenkins, 203 Kan. 354, 454 P. 2d 496.) We hold that defendant was not prejudiced by joinder of the offenses in one trial and that there was no error in the admission of his prior felony conviction.
Defendant’s remaining points center on the fact that, although count one of the information charged only the offense of attempted burglary in the second degree, the court instructed the jury, substantially, in the words of K. S. A. 21-524 (larceny in connection with burglary), and the jury returned a verdict finding defendant guilty of “attempted second degree burglary and larceny as charged.” This matter was first brought to the attention of the trial court immediately prior to sentencing, and defendant was sentenced solely for the crime of attempted burglary in the second degree.
The argument is now made that the entire verdict was a nullity for the reason the court lacked jurisdiction. Defendant relies on State v. Minor, 197 Kan. 296, 416 P. 2d 724, where we held a judgment of conviction for manslaughter in the first degree based upon an information which did not charge such offense was void for lack of jurisdiction of the subject matter. Here, unlike Minor, the information sufficiently charged the crime of attempted second degree burglary which was the only offense for which sentence was imposed.
The assertion that prejudicial error resulted from the court’s instruction under 21-524 and the jury’s verdict which erroneously included the offense of larceny is completely untenable. No objection to the instruction or verdict form was interposed at the time of trial. Actually, there is nothing in the record indicating the point was ever stressed at any time in the court below, including at the argument on the motion for new trial. It is axiomatic that instructions should be confined to the charges contained in the information. (See, State v. Booker, 197 Kan. 13, 415 P. 2d 411.) Instructions given in violation of the rule, however, have been excused in cases such as here, where the defendant’s substantial rights have not been prejudiced. (State v. Barbour, 142 Kan. 200, 46 P. 2d 841.) Under all the circumstances, there was no infringement of defendant’s due process rights. The instruction and verdict pertaining to larceny may be regarded as harmless error, neither justifying nor requiring a reversal of the conviction (K. S. A. 62-1718).
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This is a quiet title action to set aside a restrictive covenant prohibiting more than two residences on a tract of land located in Indian Hills subdivision, an exclusive residential area in Johnson county.
Plaintiffs (appellants), who are owners of a parcel of the original tract, seek to be relieved from the burden of the covenant on the basis that dedication of a new street at the rear of the tract 29 years after the restriction was imposed created a condition not contemplated by the developer and removal thereof would not be detrimental to other properties in the subdivision. Arrayed against plaintiffs in this case are the J. C. Nichols Co., Indian Hills Homes Association, and landowners within the subdivision who, with but one exception, strenuously object to any cancellation or modification of the restriction claiming it was imposed for the benefit of all landowners in the subdivision and that there has not been any change in conditions justifying the relief sought.
The case was tried on stipulated facts, and from an adverse judgment by the district court, plaintiffs have appealed.
The two restrictions material to this case were contained in a warranty deed dated December 3, 1924, from the J. C. Nichols Investment Co. to Ruth White (plaintiffs’ predecessor in title) conveying a tract of land consisting of five acres. The deed provided that any residence erected on the property must have at least 150 feet frontage on the proposed road (Indian Lane) and not more than two residences were to be erected or maintained upon the property at any one time. The deed also recited that each of the various restrictions would continue for a period of 25 years from July 19, 1921, and would automatically continue for successive 25-year periods unless the owners of the majority of the front footage of the entire subdivision into which the tract might be platted agreed to release any one or more of the restrictions by executing and recording an appropriate agreement at least 5 years prior to the expiration of the original 25-year period or any successive 25-year period thereafter.
The five-acre tract was later included with other lands in the original plat of Indian Hills subdivision and designated as Lot 6, Block 2. The plat discloses the property had a westerly frontage on Indian Lane of 303.04 feet with a maximum depth of approximately 600 feet extending easterly from Indian Lane.
A house was subsequently built on the north portion of the lot by Ruth White, and in 1945 plaintiffs acquired the entire tract from her. In 1953, plaintiffs joined in a replat of a portion of the subdivision creating a new street with cul de sac known as Wenonga Terrace along the back of their property. The tract was redesignated Lot E, Block 5 of Indian Hills. The J. C. Nichols Co. con veyed to plaintiffs a triangular strip of land adjoining Lot E on the southeast in order to provide them a frontage for the back of the lot of approximately 300 feet on Wenonga Terrace.
In March 1958 plaintiffs sought and obtained a judgment in the district court of Johnson county decreeing that because of the changed conditions brought about by the establishment of Wenonga Terrace the restrictions in the deed of December 3, 1924, did not prevent the erection of a residence on a tract fronting on Wenonga Terrace, provided it had a frontage of not less than 150 feet on said street. With respect to the prior action, the parties in the present case stipulated as follows:
“At the time of the filing of the action referred to in the preceding paragraph and prior to entry of the judgment therein authorizing a variance from the restrictions affecting the subject property, plaintiffs Arthur B. Maurer and Mary Elizabeth Ford Maurer, in person and by agent, did contact defendant R. Hugh Uhlmann, owner of the property adjoining the subject property on the south, and represented that the variance from restrictions requested in such action to permit the construction of a residence fronting on Wenonga Terrace would in no wise affect or prejudice the restrictive covenant prohibiting more than two houses on the tract of land originally described as Lot 6, Block 2, Indian Hills; and that if a residence fronting on Wenonga Terrace was constructed in addition to the residence then existing on said lot, such residence would count toward the maximum, number of two residences allowed under such restriction to be constructed on said premises.” [Emphasis added.]
Four years later, in 1962, defendants, Richard J. and Edith M. Powell, became the owners of the southeastern portion of Lot E., consisting of approximately one acre fronting on Wenonga Terrace, and erected a residence thereon. The construction of the Powell residence resulted in there being two residences on what was the original five-acre tract.
Thereafter, plaintiffs contracted to sell the northern one-half of Lot E (approximately two acres), which included the residence built by Ruth White, to the Chandlers. This left plaintiffs with a vacant tract on the southern portion of Lot E of approximately two acres having a frontage of 192 feet on Indian Lane and on which they now seek the right to construct an additional residence.
Without making any attempt to secure release of the restriction in question by the method prescribed in the original deed (although consents to release could have been filed until July 19, 1966), plaintiffs instituted this action August 11, 1965. Plaintiffs’ position is well stated in the following language of the petition:
“That by reason of the changed conditions aforesaid, the said limitation of the number of residences which might be erected on said land originally constituting Lot 6 of Block 2 of Indian Hills, and presently constituting part of Lot E of Block 5 of Indian Hills, should not apply to a situation not contemplated by the parties thereto and should not limit the right of plaintiffs to erect an additional residence at the place originally contemplated in such restriction; and, unless the cloud created by said restriction is removed, it will prevent the use of the land involved to the best advantage of the owners thereof, and to the best advantage of the neighboring properties of which the defendants are or claim to be the owners.”
The trial court, after considering the evidence, concluded that as a result of plaintiffs’ actions and representations in their prior suit in 1958 in which they obtained a variance of the restrictions, “Plaintiffs do not now come before the court with completely ‘clean hands’ asking for another variance”; that there has been no change of conditions or change of character in the area so as to neutralize the benefits of the restriction and destroy its purpose; that the loss of economic gain by plaintiffs alone is not sufficient reason for changing or reforming the restriction; and that no valid reason in equity had been shown which would warrant the granting of affirmative relief.
Restrictive covenants have long been recognized in this state. These restrictions or equitable servitudes are based on the equitable principle of notice whereby a person who takes land with notice of a restriction upon it will not in equity and good conscience be permitted to act in violation of the restriction. However, the jurisdiction of equity to enforce restrictive covenants is not absolute. The right to enforce a restriction may be lost by laches, waiver, or acquiesence. In addition, equitable enforcement may also be denied when there has been a change in conditions so radical in nature as to neutralize the benefits of the restriction and destroy its purpose. (Hecht v. Stephens, 204 Kan. 559, 464 P. 2d 258; Reeves v. Morris, 155 Kan. 231, 124 P. 2d 488; N. P. Dodge Corp. v. Calderwood, 151 Kan. 978, 101 P. 2d 883; Clark v. Vaughan, 131 Kan. 438, 292 Pac. 783; Hartman v. Wolverton, 126 Kan. 613, 270 Pac. 584.)
The present action to cancel or modify a deed restriction as a cloud on title differs from the usual situation where enforcement of the restriction is sought in equity by injunction. In an injunctive action the court may, in a proper case, deny relief and remit plaintiffs to an action at law to recover damages for breach of the covenant. But, an action to nullify a restriction on a particular property for all time is far more drastic in result and, ordinarily, more is required to warrant a decree of cancellation than is neces sary when only the injunctive powers of equity are exercised. (Fidelity Title & Trust Co. v. Lomas & Nettleton Co., 125 Conn. 373, 5 A. 2d 700; Booker v. Old Dominion Land Co., 188 Va. 143, 49 S. E. 2d 314; 26 C. J. S., Declaratory Judgments, § 72; 20 Am. Jur. 2d, Covenants, Conditions, Etc., § 319; Anno. 4 A. L. R. 2d 1111, § 3-5.) In either event the same equitable principles apply and whether relief is granted rests within the sound discretion of the trial court.
Appellants’ entire argument is bottomed on the changed condition brought about by the dedication of the new street at the rear of their property — a condition they say the original grantor never contemplated. Furthermore, they contend the restriction now existing presents an intolerable burden offset by no benefits whatsoever to the surrounding properties in that it prohibits the use of the two-acre site for a residence at the precise location contemplated when the restriction was originally imposed. Appealing as the argument may seem, we cannot overlook the fact that the situation in which appellants find themselves was mainly brought about by their own doing.
As we have already indicated, the right to enforce a restriction may be lost by conduct of the parties. By the same token, parties may be estopped by their prior actions and representations from invoking their right to cancel or modify a restriction.
Appellants purchased the five-acre tract on which a residence had been erected with full knowledge of the restriction prohibiting more than two residences on the property at any one time. After joining in the replat of the subdivision in which Wenonga Terrace was created, thereby providing street frontage for the back of their property, plaintiffs pursued a course of conduct ostensibly designed to thwart the terms of the restrictions originally imposed by dividing the tract into three building sites. They proceeded to file an action in district court and obtained a variance of the frontage restriction in order to permit the construction of a residence facing on Wenonga Terrace. Apparently to allay any fears of surrounding property owners, plaintiffs contacted their neighbor to the south, R. Hugh Uhlmann, prior to entry of judgment, and represented to him that the variance requested would not affect or prejudice the restriction against more than two residences on the lot. This assurance evidently proved satisfactory to all concerned and a default judgment was duly entered by the district court. Within a year plaintiffs sold the tract on which title Powells subsequently constructed a residence. Further division of the original tract was accomplished when plaintiffs sold the north one-half containing the Ruth White residence to the Chandlers. Now, plaintiffs return to court and ask for further relief from the restriction in order to provide a homesite on the remaining two acres.
The plain facts would indicate that plaintiffs helped bring about a changed condition, of which they were able to take partial advantage as the result of the representations made in the first law suit, and now seek to take full advantage of the situation. At the time the representations were made to Uhlmann, plaintiffs were fully aware that only two residences on the entire tract were permitted. Notwithstanding, they made no effort to have the restriction removed, but proceeded to obtain only the variance requested without objection by Uhlmann or the other landowners, who had every reason to believe that plaintiffs were going to be content with the two-residence requirement even if a house fronting on Wenonga Terrace were subsequently constructed. The district court was fully justified in recognizing that plaintiffs’ prior conduct had seriously weakened their position in the eyes of the court.
The doctrine of equitable estoppel is said to be based upon the principle that a person is held to a representation made or a position assumed where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances, has in good faith relied thereon. (Board of County Commissioners v. Brown, 183 Kan. 19, 325 P. 2d 382; Gas Service Co. v. Consolidated Gas Utilities Corp., 145 Kan. 423, 65 P. 2d 584.) Under the facts disclosed in the record, we must conclude that application of the doctrine is warranted and plaintiffs are estopped from obtaining the relief requested.
The judgment is affirmed.
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from an order dismissing a third motion filed by the appellant, Oscar Glenn Lee, pursuant to K. S. A. 60-1507.
Our only information regarding appellant’s first motion is that it was dismissed by the district court, and no appeal was taken. In his second motion, which was filed on the prescribed form (205 Kan. xlvi), appellant’s grounds for relief centered on (1) the voluntariness of his plea of guilty, and (2) the alleged infringement of his constitutional rights. Following the appointment of counsel, and a full evidentiary hearing, the district court denied the motion. The judgment was affirmed by this court in Lee v. State, 204 Kan. 364, 461 P. 2d 794.
The sole ground for relief urged by appellant in paragraph 10 of his present motion was that he was held in custody for twelve days without “arraignment.” In paragraph 16 of the printed form he states the ground was not previously presented because he “didn’t know of statute and decision [Mayberry v. Kelly, 1 Kan. 116].” The lower court summarily dismissed the motion on the same date it was filed, presumably for the reason it constituted a second or successive motion.
K. S. A. 60-1507 (c) and Rule 121 (d) of this court (205 Kan. xlv) provide that a sentencing court is not required to entertain a second or successive motion for relief on behalf of the same prisoner. We have held that when a petitioner, in answer to question No. 10 of the prescribed form of the motion, sets out a ground or grounds for relief, he is presumed to have listed all the grounds upon which he is relying, and a second motion, in which additional grounds for relief are alleged, may properly be denied. (Fairbanks v. State, 199 Kan. 501, 430 P. 2d 293; Hanes v. State, 196 Kan. 409, 411 P. 2d 646; Smith v. State, 195 Kan. 745, 408 P. 2d 647. Also, see, Thomas v. State, 199 Kan. 459, 430 P. 2d 268.) The foregoing rule was called to appellant’s attention in Lee v. State, 197 Kan. 371, 416 P. 2d 285, where he challenged a previous sentence by a second 60-1507 motion.
The only justification or excuse the appellant offers for failing to raise the new ground for relief — a twelve-day delay in “arraignment” — is that he was not aware of the law on the subject. As already indicated, he was represented by counsel and accorded a full evidentiary hearing on his prior motion. He thus had ample opportunity at that time to present all his grievances, including his present ground. Both appellant and his counsel were aware or charged with knowledge of the facts upon which the purported ground is based. No unusual circumstances nor intervening change in the law have been presented which would justify further use of our post-conviction remedy. Some degree of finality in the criminal process must be achieved so that endless piecemeal litigation will not interfere with the timely dispatch of business of the courts. Under all the facts and circumstances presented in this record, appellant’s further use of K. S. A. 60-1507 constituted an abuse of remedy. (Cox v. State, 200 Kan. 198, 434 P. 2d 843; Sanders v. United States, 373 U. S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068.)
We might add that irrespective of the fact that this was appellant’s third motion, the ground urged was so insubstantial in nature that the motion could be summarily denied by the sentencing court without the necessity of the appointment of counsel, the presence of petitioner, and a plenary hearing. Appellant entered a plea of guilty to the offense for which he was charged, and under the settled law of this jurisdiction he is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto. (2 Hatcher’s Kansas Digest, Criminal Law § 100; 3B West’s Kansas Digest, Criminal Law § 273.) This, of course, would include any claimed irregularity concerning a delay in bringing him before an examining magistrate. (Baier v. State, 197 Kan. 602, 419 P. 2d 865.)
The district court’s order dismissing the motion is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This action arises out of two consecutive motor vehicle accidents which occurred about 7:45 a. m. on August 17, 1967, on a county road known as Hunter Boulevard, approximately 6.7 miles north of Nickerson, Kansas.
There were three vehicles involved. The first was a semi-trailer gasoline transport truck owned by plaintiff-appellant Gene Vannaman, leased from him and operated by plaintiff-appellant Groendyke Transport, Inc., and driven by Groendyke’s employee Bernard W. Hinck, who is not a party to the action. The second was a 1966 Chevrolet driven by defendant-appellee Verne I. Redford, and the third a 1957 Ford driven by defendant-appellee Duane E. Caldwell. Because of the multitudinous claims asserted by each in the trial court, the above persons will be referred to in this opinion by name.
Hunter Boulevard is a two lane road running north and south, with an overall width of 24 feet. The focal point of the incidents here is a bridge known as Cow Creek Bridge, which has abutments and railings some 152 feet in length. It rises in the center some 6.4 feet above the points 700 feet to the north and 700 feet to the south of the center of the bridge. Some 594 feet north of the north end of the bridge is the south end of the abutment to a smaller bridge, referred to as a “culvert.”
The truck driven by Hinck and the Redford car were proceeding south. Before reaching the culvert Redford had pulled out to pass the truck and proceeded to do so, pulling abreast of the truck at about the culvert, driving about 65 miles per hour. There is a conflict in the testimony as to when Redford returned completely to the southbound lane. Redford testified that it was about 150 to 250 feet north of the north end of the bridge; Redford’s daughter who was a passenger in his car testified they were in the southbound lane all the time their car was on the bridge; Hinck testified that Redford’s left wheels were still slightly over the center line when Redford reached the center of the bridge, although in a signed statement given the day of the accident he had stated that Redford had returned to the southbound lane before entering the bridge.
At this point Caldwell enters the scene heading north at about 70 miles per hour. He testified that as he approached the bridge he saw the Redford car in the northbound lane at the north end of the bridge, and believing Redford could not return to the southbound lane in time to avoid a collision, at the speed the two cars were going, he applied his brakes. This caused his car to swerve to the left out of control.
The result was a collision, left front to left front, between the Redford and Caldwell cars. The point of impact was 9 feet south of the south end of the bridge, 8 feet from the west edge and 16 feet from the east side of the road — in other words 4 feet into Redford’s lane.
After the impact the Redford car proceeded some 141 feet south, ending up in the ditch on the west side of the road. Caldwell’s car was pushed back about 12 feet from the point of impact and was left immobilized headed across the road, blocking both lanes, in the face of the oncoming truck.
Hinck, in the meantime, was following Redford south at about 55 miles per hour. He testified that he saw no reason to anticipate an accident, and in fact was unaware of the presence of the Caldwell car until he saw it dip and pull to the left into the southbound lane. Until then his attention had been concentrated on the Redford car. At that point Redford was back in his lane. Hinck, seeing no place to go, slammed on his brakes, leaving 189 feet of intermittent skid marks until the impact of his truck with the Caldwell car 21 feet south of the south end of the bridge. Roth the truck and the Caldwell car came to rest on the east side of the road, partially in the ditch.
Thereafter this suit was commenced by Vannaman and Groendyke against Redford and Caldwell for damages to the plaintiff’s respective interests in the truck. Subsequent pleadings, insofar as pertinent, were that Caldwell filed a counter claim against each plaintiff and a cross claim against Redford for personal injuries, and Redford filed a cross claim against Caldwell for damages to his car.
In its pre-trial order the court below recited the contentions of the respective parties. Highly summarized, they are that each denied any negligence on his own part, each alleged specific acts of negligence and/or contributory negligence on the part of each adverse party, and that each claimed the driver of his respective vehicle was confronted with a sudden emergency. Later stipulations were made as to the amount of damages suffered by each party except for Caldwell’s claim for personal injury.
At this stage the matter was tried to a jury. At the conclusion of the trial eight questions were posed to the jury which were denominated a “Special Verdict.” The questions and the jury’s answers were as follows:
“1. Do you find that plaintiff Vannaman should have judgment against defendant Caldwell for Vannaman’s damages? No.
“2. Do you find that plaintiff Groendyke Transport, Inc., should have judgment against defendant Caldwell for the trucking company’s damages? No.
“3. Do you find that plaintiff Vannaman should have judgment against defendant Redford for Vannaman’s damages? No.
“4. Do you find that plaintiff Groendyke Transport, Inc., should have judgment against defendant Redford for the trucking company’s damages? No.
“5. If your answer to 2 is no then do you find that defendant Caldwell should have judgment against plaintiff Groendyke Transport for Caldwell’s damages? No.
“6. Do you find that defendant Caldwell should have judgment against defendant Redford for Caldwell’s damages? No.
“7. If your answer to 6 is no do you find that defendant Redford should have judgment against defendant Caldwell for Redford’s damages? No.
“8. If you find that defendant Caldwell should have judgment against any party what do you find his damages to be? None.”
As may be seen, except for lack of inquiry as to the stipulated damages, these questions amounted to no more than general verdicts designed to cover the liability aspects of all the various claims, counter claims and cross claims. The jury was asked no special questions as to negligence, contributory negligence, proximate cause, or the weight given to the doctrine of emergency by the jury in reaching its verdict.
From the judgment rendered on this verdict Vannaman and Groendyke appeal. They complain of no trial error, did not object to the instructions or the form of the verdict, and neither made a motion for a directed verdict.
Although they put it in several different ways, appellants’ basic complaint here is that the verdict was against the weight of the evidence. Boiling their argument to its essence, they insist the accidents must have been caused by someone’s negligence, and it was not Hinck’s and could not have been Vannaman’s, who under the instructions was a bailor not chargeable with any negligence of Hinck’s. More will be said of Vannamans position later.
The difficulty with this argument is that it overlooks this court’s long-standing principles as to the scope of appellate review. As we said recently in Brohan v. Nafziger, 206 Kan. 58, 476 P. 2d 649:
“This court will not weigh the evidence or pass upon the credibility of the witnesses. When findings of fact are attacked for insufficiency of evidence, or as being contrary to the evidence, the power of this court begins and ends in determining whether there is any competent substantial evidence to support the findings.” (Syl. ¶ 1.)
To the same effect, See Morris v. Hoesch, 204 Kan. 735, Syl. ¶ 3, 466 P. 2d 272.
Similar principles were pronounced in a case much like this one, State Farm Mutual Auto Ins. Co. v. Cromwell, 187 Kan. 573, 358 P. 2d 761:
“When the error assigned is that the findings and judgment are contrary to the evidence, it is only necessary on appeal to consider whether there is some competent and sufficient evidence upon which the judgment is based; and a consideration or recital of the contradictory evidence cannot aid in correctly determining that question.” (Syl. ¶ 1.)
“A judgment of the trial court imports a general finding in favor of the prevailing party which determines every controverted question of fact in support of which evidence has been introduced, and raises the presumption that all facts necessary to sustain and support the judgment have been found.” (Syl. ¶ 2.)
“The question of negligence, including the determination of proximate cause, ordinarily rests in the province of the jury, or the court, as the trier of the facts.” (Syl. ¶ 3.)
In particular, when a jury verdict is involved we have said (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670):
“Upon appeal in considering the propriety of a verdict the evidence is to be viewed in a light most favorable to sustaining the verdict.” (Syl. ¶ 1.)
Our question, then, is to determine whether there is any hypothesis or combination of hypotheses under which the jury might find from the evidence that none of the parties should recover from any other party. From the evidence as outlined above, several suggest themselves immediately. They could have found none of the parties negligent, or all of the parties negligent; they could have found that any negligence which existed was not the proximate cause of any damage suffered; they could have found that the conduct of each driver was not culpable because of the emergency with which he was faced; they could have found that none of the parties sustained his burden of proof.
What has been said virtually disposes of this case. Vannamans claim, however, requires some additional consideration. As to him the jury was given, without objection below or in this court, the following instruction:
“You are instructed that plaintiff Vannaman is not responsible for any acts of the truck driver, so any negligence of Bernard W. Hinck would not bar Vannaman from recovering from defendants, or either of them, based upon negligence of such defendant. It should be understood, nevertheless, that Vannaman cannot recover if you find that Hinck was negligent and that his negligence was the sole cause of Vannaman’s damage.”
Under this instruction the jury’s conclusion that Vannaman should not recover could be predicated on a finding (a) that neither Redford nor Caldwell was negligent, or (b) that Hinck’s negligence was the sole cause of Vannaman’s damage. The first was clearly a permissible inference from the evidence on a number of theories. The second could have been based on Hinck’s failure to observe the presence of the Caldwell car until it swerved into the left lane, and hence his failure to reduce speed in time to avoid his impact with the Caldwell car.
Further, the general finding against Vannaman may be considered as in the nature of a negative finding. As to such we have said (American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561):
“The effect of a negative finding of fact by a jury, as contrasted to an affirmative one, against one upon whom the burden of proof rests, is that such party did not sustain that burden. Absent arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the jury, such finding cannot be disturbed. Appellate courts cannot nullify a jury’s disbelief of evidence nor can they determine the persuasiveness of testimony which a jury may have believed.” (Syl. ¶ 1.)
See also Schroeder v. Richardson, 196 Kan. 363, Syl. ¶ 6, 411 P. 2d 670.
Thus the jury could have found as to Vannaman, as it could as to the other parties on their affirmative claims, that he failed to sustain his burden of proof.
This is basically a fact case in which the issues were properly submitted to and determined by the jury. There being competent evidence to support their verdict, it cannot be disturbed on appeal.
The judgment is affirmed.
APPROVED BY THE COURT.
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Per Curiam:
This is an original proceeding in discipline instituted by the Ethics Committee of the Reno County Bar Association. The complaint filed October 11, 1968, alleged the respondents, Dick Klassen and Clark Wesley, were practicing law and doing business as bankers in violation of the Canons of Professional Ethics of the state of Kansas.
The State Board of Law Examiners adopted the recommendations of a three-member hearing panel and found the respondents’ conduct to be in violation of Canon 27 of the Code of Professional Ethics relating to advertising and solicitation of business. The Board further found that such conduct, if continued, would violate DR 2-101 (A), DR 2-102 (E), DR 2-103 (A), DR 2-103 (C), DR 2-103 (D), and DR 2-103 (E) of the Code of Professional Responsibility. (See, Rule 501, 205 Kan. lxxvii, effective July 1, 1970.) Recommendation was made by the Board that respondents’ licenses to practice law be suspended until such time as they present satisfactory evidence to the court that they are no longer actively engaged in the operation of a bank under circumstances which bring them into direct contact with the public in their capacity as bankers.
The evidence before the hearing panel consisted of a stipulation and testimony by the respondents and one of their clients. The following facts were developed.
Klassen and Wesley reside in Nickerson, Kansas, and are President and Vice-President, respectively, and directors of the Nickerson State Bank. They devote their full time to the bank during banking hours. Respondents, having been admitted to the Bar of this state for more than ten years, are also partners engaged in the practice of law. They maintain a law office and library in a separate room in the bank building accessible only from the lobby of the bank. There is no shingle or other indication, either on the inside or outside of the bank, that a law office exists in the building. The telephone in the law office is an extension of the bank phone. Only Klassen is listed in the white pages of the Nickerson telephone directory as an attorney, with the telephone number that of the bank. There are no other tenants in the bank budding. The law firm uses the address of the Nickerson State Bank Building on its legal stationery.
Generally, respondents conduct their law practice before and after banking hours. Minor legal questions and matters may be answered or taken care of in the lobby of the bank, but anything requiring more time and attention is handled on an appointment basis, usually after the bank is closed. About 80% of the firm’s clients are also customers of the bank. Although the bank does not have trust powers, respondents admit they have written a number of wills and prepared deeds and real estate contracts. They have also examined abstracts including, on occasion, those for purchasers where the bank was lending money on the property. Klassen and Wesley are legal counsel for the bank and bill the bank for their services on a fee-schedule basis. Respondents have no legal secretary, but do their own typing. Their partnership income from the practice of law was approximately $5,000 in 1969.
Nickerson is a town of less than 1,500 inhabitants located approximately ten miles from the city of Hutchinson with no practicing attorneys other than respondents. It is agreed that a law practice in a town of this size is not economically feasible to maintain and that respondents are providing a service to the community as attorneys.
Notwithstanding the Board’s findings and recommendations, which are advisory only, we have the duty in a disciplinary proceeding to examine the evidence and determine for ourselves the judgment to be entered. After a careful review of the record, we fail to find clear and convincing proof of substantial misconduct warranting disciplinary action against respondents. (In re Phelps, 204 Kan. 16, 459 P. 2d 172; In re Ratner, 194 Kan. 362, 399 P. 2d 865.)
We agree with the general principle stated in the Board’s report that there is nothing unethical, per se, about a practicing lawyer being an officer and a director of a bank as long as he adheres to the Canons of Professional Ethics. There is, however, absolutely no evidence showing that there has been any direct solicitation of law business by respondents stemming from their banking activities, nor has there been advertising by the bank which directly or indirectly benefited respondents in the practice of law. Furthermore, the parties expressly stipulated that, “respondents have never consciously, directly or indirectly advertised for nor solicited any law business at any time and in particular, from a customfer] of said bank.” (See, State v. Grindol, [No. 46,302, this day decided].)
Judgment is entered for respondents.
Fontron, J., not participating.
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The opinion of the court was delivered by
Foth, C.:
This is an appeal by the husband-defendant from certain aspects of the trial court’s judgment in a divorce action, basically, his complaints in this court relate to the amount of alimony decreed, the property division, and the fact that he was ordered to pay in full his wife’s attorney fees in this action.
The parties, Paxton (appellant) and Sally (appellee), were married in June, 1957, when Paxton was twenty-one and Sally was twenty. The early years of marriage are somewhat obscure in the record, but they were apparently tranquil enough to result in the first-born son, Eric, in 1961. However, in 1963, when Sally was pregnant with the parties’ second son, Keith, Paxton announced his infatuation with another woman. With this announcement in March, 1963, he left his household and moved into an apartment. He thereafter sought the advice of a clinical psychologist in Kansas City, Missouri, and embarked on a course of treatment. He took Sally to the hospital for the birth of their child, Keith, and, after the birth took the two of them “home.” He remained with his recently hospitalized wife and new-born son approximately five minutes.
Somewhat later, in September, 1963, there was a reconciliation; Paxton returned to his residence — apparently abandoning his un named paramour — and the parties resumed their matrimonial relationship.
Paxton was a scion of the family which had owned substantially all of the stock of the Parkview Drug Company of Kansas City. By virtue of a merger, the company is now Parkview-G. E. M., Inc. Shortly after the marriage of the parties, and after completion of his six-month obligatory service in the armed forces, Paxton started in the family business as an assistant buyer, with a gross salary of about $350 per month. He progressed through the company hierarchy to the rank of buyer, with the title of vice-president, and at the time of his divorce his gross salary was $30,000 per year.
In the meantime, after the reconciliation referred to above, they bought a house in Leawood, Kansas, which, with improvements they made, was valued at almost $60,000.
As the marriage progressed, Paxton continued his consultations with his clinical psychologist at intervals of two to three times a week. The efficacy of this treatment does not appear, but Sally’s testimony is that he once again became cool, withdrawn and uncommunicative. Finally, in 1968, the axe appears to have fallen on Sally’s hopes for a continued marital relationship. Paxton announced that if she did not seek a divorce, he would. After protracted discussions with Paxton, his psychologist and her father, all in an effort to preserve the marriage, Sally commenced this action.
Counsel for Paxton, with admirable candor, has conceded to this court that the divorce granted to Sally by the trial court is in the best interests of both parties. Paxton, he concedes, should probably not be married to anyone in his present psychological state. Regardless of this estimate of the husband, the evidence clearly sustains the trial court’s judgment of divorce against the husband, Paxton, and he does not appeal from that portion of the judgment.
Yet to be considered are Paxton’s basic complaints.
Taking them in inverse order, we hold, first, that the award of attorney fees of $4,000 to Sally’s attorneys was not an abuse of the trial court’s discretion. Although designated in his statement of points, in this court Paxton’s counsel did not complain of the amount of the award. He insists, however, that a wife capable of paying (as Sally obviously is) should share a portion of the attorney fees awarded by the court.
A similar contention was made in Brooker v. Brooker, 199 Kan. 783, 433 P. 2d 363. The court there said (p. 786):
“In his brief defendant appears to take the position that, under the property settlement and alimony adjudged by the trial court, the plaintiff was entirely capable of paying her own attorney fees and should have been required to do so.
“Under our statutes K. S. A. 60-1607 (d) and K. S. A. 60-1610 (f), now K. S. A. 1965 Supp. 60-1610 (f), costs and attorney fees for the preparation and trial of the case may be awarded to either party as justice and equity may require. The district court is vested with wide discretion to determine both the amount and the recipient of an allowance of attorney fees. Such discretion will not be disturbed on appeal unless an abuse of discretion clearly appears from the record.”
It may be noted that the award there was for $3,500, with the property division involving $120,000. Here, the net marital estate exceeded $175,000. It is true the trial court conducted no formal hearing on the award, although Sally’s counsel offered to produce evidence. However, as pointed out in Bennett v. Bennett, 175 Kan. 692, 699, 266 P. 2d 1021:
“In this connection it also may be well to remember a trial judge is a lawyer in his own right and is not without knowledge concerning the value of legal services. It goes without saying the trial judge approved the order he made.”
Paxton’s second point concerns the division of the parties’ property. Once again, his counsel candidly concedes that under our statutes, and particularly K. S. A. 1970 Supp. 60-1610 (b), the subject is largely entrusted to the discretion of the trial court. See, e. g., Cool v. Cool, 203 Kan. 749, 457 P. 2d 60, Syl. 3. No complaint is made as to the order that the family home be sold and the parties’ equity be equally divided. There is resistance to the division of 3,000 shares of Parkview-G. E. M. stock received by Paxton from his mother, conditioned on an annuity payment to her of $8,327.46 per year.
The trial court awarded Sally one-half (1,500) of these shares, but imposed on her the responsibility of paying one-half of the contractual annuity. The record indicates, and counsel in this court agree, that the amount the parties are obliged to pay is the actuarial equivalent of the value of the stock at the time of the contract. (There is some intimation that today the stock may be worth less than the parties are obligated to pay for it.) Paxton argues that his continued ownership of this stock is important to his job security. This seems highly speculative, particularly in view of the fact that his uncle is president of the company. It certainly furnishes this court with no foundation for finding an abuse of the trial court’s discretion.
The most serious objection Paxton makes to the trial court’s order is that portion requiring him to pay to his former wife alimony in the amount of $900 per month for life or until she remarries. No complaint is made of the $400 per month ordered for support of the two children.
In support of his contention, Paxton points to that portion of the record showing that, after deductions for state and federal income taxes, F. I. C. A., a savings bond and insurance, his net take-home pay prior to the divorce was about $1,600 per month. The four of the family apparently lived comfortably on that salary (together with such other income as Paxton may have derived from his ownership in the family business).
At first blush, to require a man with $1,600 in monthly take-home pay to pay $1,300 of it to support his ex-wife and two children may seem to be an excessive demand upon his resources. However, and again with admirable candor, Paxton’s counsel computes that the “after-tax” effect of the order — with alimony deductible to the husband and taxable to the wife — will be to allow Paxton $900 per month, free and clear, to support himself, while Sally will have $1,150 per month to support herself and two children of school age. Counsel for Sally agreed before this court to the accuracy of these figures.
The only testimony adduced as to need, either on direct or cross-examination, was Sally’s testimony that she would require about $1,500 per month to live on. This testimony was unrefuted. Leaving wholly apart the question of Paxton’s fault, with which the record abounds, the trial court’s allocation of Paxton’s after-tax salary among the four members of his family does not appear to this court to be a manifest abuse of its discretion. In any event, should circumstances change, Paxton can always apply for a modification as to alimony not yet due under K. S. A. 1970 Supp. 60-1610 (c). See Folk v. Folk, 203 Kan. 576, 455 P. 2d 487; Moran v. Moran, 196 Kan. 380, 411 P. 2d 677.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order of the district court summarily denying petitioner’s motion under K. S. A. 60-1507.
On November 19, 1965, petitioner entered a plea of guilty to second degree burglary (K. S. A. 21-516, now K. S. A. 1970 Supp. 21-3715). Before accepting his plea, the trial court made inquiry of petitioner and found specifically that he comprehended his position, understood the nature and elements of the charges against him and understood the term of sentence legally authorized therefor. The trial court made further findings that petitioner was duly apprised in the premises and that the plea of guilty was a free and voluntary act of the petitioner.
Five days later, on November 24, 1965, petitioner was granted probation. On December 29, 1969, the trial court found that petitioner had violated a number of the conditions of his probation and it was revoked. Petitioner was then ordered to serve the original sentence pronounced on November 19, 1965.
The first 60-1507 motion filed by petitioner was denied by the trial court on July 7, 1970. Thereafter petitioner filed a second motion which was denied on July 16, 1970. This appeal followed.
Petitioner states one point on appeal:
“The court erred in sentencing the Movant for burglary in the second degree because the Court lacked jurisdiction as an essential element of the offense of second degree burglary was not alleged in the Information.”
Petitioner contends the information is fatally defective because the phrase “with intent to commit a felony or any larceny” is not expressly included in the allegations of the information.
The information, in substance, charged that petitioner (defendant) unlawfully, feloniously and wilfully did break and enter in the daytime the described dwelling house of another under such circumstances as would have constituted burglary in the first degree if committed in the nighttime and if some human being had been therein, all contrary to 21-516, supra.
The information is certainly not a model of the art of good pleading. Nevertheless, we believe it sufficiently covers the elements of second degree burglary under 21-516 so as to give the court jurisdiction to accept a voluntary plea of guilty. Petitioner does not challenge the trial court’s findings that the plea was knowingly and understandably entered. Even now petitioner makes no claim that he did not know that he was charged with second degree burglary.
K. S. A. 21-516 is the catchall burglary statute which defines second degree burglary in terms of breaking and entering under circumstances which would not have constituted any other degree of burglary specified in preceding statutes. The information here was drafted on that premise. Second degree burglary was defined by measurement with the elements of first degree burglary which include “with intent to commit a felony.” Moreover, the acts of breaking and entering were alleged to have been committed feloniously which means with intent to commit a felony. We believe the information sufficiently conforms with the language of 21-516 to charge an offense thereunder.
Where an information is stated substantially in the language of the statute involved, it is sufficient. (State v. Chuning, 199 Kan. 215, 428 P. 2d 843, and State v. Kelly, 192 Kan. 641, 391 P. 2d 123.)
As a general rule, except in those cases where an information fails to state a public offense, thus giving the court no jurisdiction of the matter, the sufficiency of an information must be challenged by appeal and not by a postconviction proceeding. (Gray v. Hand, 186 Kan. 668, 352 P. 2d 3; Carrier v. Hand, 183 Kan. 350, 327 P. 2d 895; Darling v. Hoffman, 180 Kan. 137, 299 P. 2d 594.)
Petitioner cites State v. Minor, 197 Kan. 296, 416 P. 2d 724, and State v. Baker, 197 Kan. 660, 421 P. 2d 16, neither o£ which supports his position.
Minor was convicted of manslaughter in the first degree on an information which charged only manslaughter in the fourth degree. Baker was convicted of second degree burglary under K. S. A. 21-520, the information did not allege “in the nighttime” which differentiated the degrees of burglary and was specifically required. Both cases were direct appeals, obviously neither conviction could stand.
In the instant case the record conclusively shows that petitioner, at the time of entering his plea, was fully and properly apprised of the nature and elements of the crime for which he was charged and convicted. The allegations of the information covered, albeit awkwardly, the elements of second degree burglary under 21-516, supra, the offense for which petitioner entered his plea and for which he was sentenced.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the defendant was convicted of forgery under K. S. A. 21-608, and uttering under K. S. A. 21-609.
The defendant (appellant) assigns two specifications of error: (1) That the trial court erred in overruling his motion to discharge because the state failed to make out a prima facie case; and (2) the trial court erred in permitting the case to be submitted to the jury when the state failed to file an information charging the defendant.
The second specification may be summarily answered by stating that the record discloses an information was filed with the clerk of the district court of Sedgwick County on May 1, 1969, at 4:44 p. m. The information as filed is set forth in full in the counter abstract and discloses the appellant’s second specification of error to be wholly without merit.
The first specification relates to the sufficiency of the state’s evidence to sustain a conviction on the two charges.
The instrument involved was a check in the amount of $10 drawn on the personal checking account of the defendant’s brother, Bill D. Decker, carried at the Seneca National Bank of Wichita, Kansas. It was cashed at the Seneca Bowling Lanes in Wichita, Kansas, on March 24, 1969.
In March, 1969, Bill discovered several of his blank personal check forms were missing from his checkbook. The blank checks were not taken from the top of the pad, but were removed somewhere beneath the top blanks. When Bill discovered the missing check blanks he notified the bank.
On the 24th day of March, 1969, Bill took his brother, B. G. Decker (defendant-appellant) to the Seneca Bowling Lanes and let him out. They had no conversation about the defendant cashing a check. The defendant approached the cashier at the bowling alley and asked if he could cash a check for $10. The defendant had no identification but informed the cashier, Helen Corbin, that he knew Loretta Decker, a bowler, whom he identified as his sister-in-law.
When the defendant was advised he could cash a check, he wrote it on one of Bill’s missing blank checks, signing it “Bill D. Decker.” He was given $10 in cash from the cash register. The cashier stamped in the payee’s name, Seneca Bowling Lanes, Inc.
The bank refused to honor the check because the signature did not correspond with the signature card, plus the fact that the bank had previously been notified some of Bill’s blank checks were missing.
At the trial Bill testified he did not authorize anyone to sign any checks in his name.
The defendant’s testimony was to the effect that Bill had told him, when he (the defendant) asked about signing his (Bill’s) name to checks, “Go ahead, I don’t care.” The defendant, however, admitted taking blank checks out of Bill’s checkbook, and that he did not tell Bill about it.
At the time of the foregoing conversation a third party by the name of Dalton Harp was present. He testified he heard Bill say “Go ahead and write one,” but it was more or less a joke (the defendant having previously been convicted of forgery) in connection with conversation to the effect that the defendant could not forge his (Bill’s) name and get away with it.
On rebuttal Bill said he recalled the incident and testified the defendant said — in response to Bill’s statement, “I don’t believe anybody can sign my name” — that “he could or bet he could,” which made Bill a little angry. At the time of the conversation Bill informed the defendant he did not have any money in the bank anyway. On cross-examination Bill testified he did not think the defendant got the impression from the conversation that it would be all right if the defendant wrote a check on his (Bill’s) account. Bill said he might have assumed he had authority, “but I didn’t intend it.”
On rebuttal Helen Corbin testified when the check in question had been returned to the bowling alley by the bank, she received a phone call at a time when Bill Decker was present at the bowling alley standing near the cafeteria at the back of the bowlers’ section. The person calling on the phone said he was Bill Decker and would be in to pick up the check here in question. .
Three previous criminal cases showing conviction of the defendant for the offenses of forgery and uttering of a bank check were introduced in evidence. One conviction was on March 5, 1965, and the other two cases, consolidated for trial, disclose convictions on the 24th day of July, 1968, for five counts of forgery and five counts of uttering a bank check.
The defendant was on parole at the time the offense charged in this case was committed.
The appellant contends one of the critical elements to prove forgery under 21-608, supra, is that the proposed forged document be written with intent to defraud. The appellant argues the state has not attempted to show that the appellant intended or even knew that the victim was defrauded. On this point the appellant argues:
“The testimony, however, showed that the defendant merely handed State’s Exhibit No. '1’ [the check] to Helen Corbin, an employee of Seneca Bowling Lanes, Inc., stating that he would like to get a check cashed and that he had no identification. Mrs. Corbin, after being satisfied that the defendant’s sister-in-law, a person known to her, was howling on the premises, took it upon herself to stamp in the name of the payee and give the defendant $10.00.”
It is axiomatic that a person is presumed to intend the natural and probable consequences of his voluntary and deliberate act, and if the commission of an unlawful act is proved, it will be presumed that such act was done with criminal intent. (State v. Eye, 161 Kan. 69, 71, 166 P. 2d 572; and State v. Donahue, 197 Kan. 317, 318, 416 P. 2d 287.)
In a forgery prosecution where the charge includes the false making and forging of a signature of another person to a written instrument, proof that such signature is not in the handwriting of the person whose signature it purports to be is prima facie evidence that the signing of such name was unauthorized and is a forgery. (State v. Young, 203 Kan. 296, 454 P. 2d 724, Syl. ¶ 2; and K. S. A. 62-1418.)
One of the essential elements for conviction under K. S. A. 21-609 is that the accused knew the instrument was a forgery at the time he uttered or passed it, and such knowledge may be proved by circumstantial evidence. (State v. Satterfield, 202 Kan. 395, 449 P. 2d 566, Syl. ¶ 1.)
Here the evidence showed the appellant went to the cashier of Seneca Bowling Lanes, Inc. and upon being told that he could cash a check, he wrote a check on the Seneca National Bank signing another’s name in the presence of the cashier. He was thereupon given $10 from the cash register. The mere fact that the cashier stamped in the name of the payee had no bearing upon the defendant’s intent to defraud.
The evidence in the record is conflicting as to whether the appellant was authorized to sign the check in question, but the state’s evidence was quite sufficient to show that Bill’s name had been written on the check without his authority, and the jury saw fit to give it credence. (State v. Lovell, 132 Kan. 759, 297 Pac. 685.)
Bill testified he had not given anyone authority to sign his name on the check in question. On recross-examination his last statement in answer to the question, “But you might have done it; is that correct?” was “As far as I know, I didn’t authorize anybody.”
On the record presented there was substantial competent evidence to uphold the jury’s findings that the appellant was not authorized to sign the check in question, and that the appellant intended to defraud.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Harman, C.:
In district court the action was one for damages against a livestock commission company for conversion of hogs allegedly owned by plaintiff and sold by others to the commission company. In trial to the court plaintiff prevailed as to a part of his claim and the commission company has appealed. Plaintiff has cross-appealed as to the denial of the remainder of his claim.
On January 27, 1964 plaintiff Floyd DeVore entered into a written agreement with Dale Young. This writing, scant in nature, recited merely it was entered into by the parties “for the purpose of going into the hog business”, that it was for a period of two years from March 1, 1964, plaintiff was to advance Young the sum of not to exceed $1,400 during the first six months “and after that, 50% of the net profit on the Hog Operations to each party” and further "[Young] to do all the work and management and handle the operations to the best of his ability and judgment”. Plaintiff had previously known Young and had confidence in him, believing him to be honest and hard-working.
Hog raising was commenced under the foregoing arrangement. The method of operation was that plaintiff was to furnish all capital and physical facilities for the enterprise and Young was to furnish all labor and skill necessary in the purchase, feeding, breeding, raising and marketing of the hogs. Plaintiff was to maintain all business records. Hogs were to be marketed through McClure Livestock Commission Co., Inc., defendant-appellant herein. Plaintiff gave no directions to Young as to the name under which hogs should be marketed and gave no notice or directions to McClure respecting disposition of proceeds of hog sales made by Young.
In all, sales of more than 8,000 hogs in the sum of nearly $400,000 were made through McClure at the Union Stockyards at Wichita during the period of operations through the year 1966. These sales were all made by Young, either individually or by his stepson, Larry Perry, at Young’s direction. The hogs were marketed under the following names: DeVore & Young, Dale Young, A. E. Perry, Rachel Young (Dale Young’s wife) and Larry Perry, and consigned to McClure for sale. No hogs were ever marketed in plaintiff’s name.
The procedure employed at the stockyards was as follows: Livestock was received and counted by an employee of the stockyards company; a drive-in record was made which record showed the name of the trucker, the name of the owner, the number and kind of animals, and the name of the commission company which was to handle the sale; the animals were unloaded, counted again by a stockyards company employee and delivered to pens assigned to the commission company; the animals were then sold by the commission company and delivered to the scales where a stockyards employee weighed them and issued a scales ticket; the scales ticket and a copy of the drive-in ticket were returned to the accounting office of the commission company; there a written account of the sale was made and a check for the net amount of the sale, after deductions, was made out in the name of the owner as shown by the drive-in record and delivered to the trucker, unless otherwise requested. As a matter of general procedure the commission company made no inquiry respecting ownership but relied on the name shown on the drive-in record.
At the end of the calendar years 1964, 1965 and 1966 an inventory of hogs on hand was taken and a profit and loss statement was prepared by plaintiff’s accountant. The 1964 and 1965 inventories were made by Young; plaintiff made the 1966 inventory. Most of the hogs were sold in the name of DeVore & Young, a trade name chosen by Young. Young’s usual custom was to endorse the commission company’s checks made out to DeVore & Young over to plaintiff and periodically to receive back from plaintiff his share of the net profits. Plaintiff endorsed almost all the checks made out to De-Vore & Young. Eventually plaintiff discovered that Dale Young had not been accounting to him for all the hogs sold by Young through McClure, his defalcation having commenced in July, 1964. Briefly summarized, his delinquencies consisted of the following sales of 962 hogs for which Young kept the proceeds, depositing the funds in his personal bank account: In 1964, 1965 and 1966 sales in the name of Dale Young amounting to $31,800.46; in 1965 sales in the name of A. E. Perry amounting to $8,478.78; in 1965 and 1966 sales in the name of Larry Perry amounting to $5,678.25, and in 1964 sales in the name of Rachel Young amounting to $362.32, or a total default of $46,319.92. In all these instances except one the checks were made out by McClure in the name listed as the owner making the sale. In at least one instance Young endorsed over to plaintiff a small check made out in Young’s name, being the proceeds of livestock sold in Young’s name. (Young was also guilty of converting to his own use a tractor and feed corn paid for by plaintiff — of no concern here).
The name A. E. Perry was a fictitious one used by Dale Young when he personally marketed some of the hogs; hogs sold by Larry Perry in his own name were so marketed at Young’s specific direction and Perry turned most of the sale proceeds over to Young. Perry was hired and paid by Young to assist in the hog-raising enterprise.
The head of McClure’s hog division knew who plaintiff was, knew Young was working for plaintiff in running the hog farm and on occasion had assisted Young in selecting hogs for marketing and transporting them to the stockyards; Young told this individual he had an arrangement to share the profits.
Plaintiff, upon discovering his loss sometime in January, 1967, first filed his suit for damages for conversion of his hogs against Dale Young, Rachel Young and Larry Perry. Thereafter, and on June 2, 1967, he filed an amended petition naming the McClure company as a party defendant. Issues were joined, trial was had at which the salient facts as outlined above were developed and the trial court made a series of separate sets of findings and conclusions.
The court, after crediting Young with $14,000 worth of property he turned over to plaintiff, computed the net amount due plaintiff from Young as a result of the latter’s defalcation and entered judgment in plaintiff’s favor and against Young for $33,747.23.
The trial court construed the applicable two-year statute of limitations as to McClure and determined plaintiff’s injury was reasonably ascertainable when it had occurred and therefore part of his claim against McClure was barred so that plaintiff could not recover from McClure for any conversion occurring prior to June 1, 1965 — two years prior to the date plaintiff filed his claim against McClure (this ruling comprises part of plaintiff’s cross-appeal).
The trial court further found the relationship between plaintiff and Young was neither that of partners nor employer-employee but was one of joint adventure and that each, as a joint adventurer, had a proprietary interest in all hogs marketed. By reason of this finding the court concluded plaintiff could not recover from McClure for any hogs personally marketed by Young either in his own name or the fictitious name used by him and for which sales McClure gave the proceeds to Young (this ruling comprises the remainder of plaintiff’s cross-appeal). The court then found that after June 1, 1965 (or during the period not barred by the statute of limitations), Larry Perry in his own name marketed one hundred hogs belonging to the joint adventure for the sum of $5,160.06, which proceeds were retained by Perry and Young; that Perry had no authority from Young acting on behalf of the joint adventure to sell the hogs in his own name although he was specifically directed by Young so to do; that Young’s directions to Perry to sell the hogs in his own name were not within the scope of the joint adventure between plaintiff and Young. The court further found McClure had not relied on any belief that Perry was the agent of the joint adventure but accepted without question his statement of ownership as shown on the drive-in tickets. The court concluded the Federal Packers and Stockyards Act (7 U. S. C. A. §§ 181-229) did not relieve livestock commission agents who are licensed as marketing agencies thereunder from tort liability for wrongful conversion, and it rendered judgment for plaintiff and against Larry Perry and also against McClure for $5,160.06, the reasonable value of the hogs marketed by Perry. This judgment against it is the subject of McClure’s direct appeal. No appeal has been taken by any of the other defendants.
As indicated, the trial court specifically found the hog-raising operation between plaintiff and Dale Young was a joint adventure and that as such joint adventurer Young had a proprietary interest in all hogs marketed. Plaintiff has not appealed from this ruling and indeed, there was evidence in the record, including some we have not recited, to support that finding, although plaintiff attempted at trial level to establish purely an employer-employee relation.
In analyzing the rights of the appealing parties, we start with the common law rule that a factor or commission merchant who receives property from his principal, sells it under the latter’s instructions and pays him the proceeds of the sale, is guilty of a conversion if his principal had no title thereto or right to sell the property, and generally the factor may not escape liability to the true owner for the value of the property by asserting he acted in good faith and in ignorance of his principal’s want of title (32 Am. Jur. 2d, Factors and Commission Merchants, § 45; 35 C. J. S., Factors, § 57b). The basis for the factor’s liability if he assists in a conversion, even though innocent, is the fact he stands in the shoes of his principal (Birmingham v. Rice Bros., 238 Iowa 410, 26 N. W. 2d 39, 2 A. L. R. 2d 1108, cert. den. 332 U. S. 768, 92 L. ed. 353, 68 S. Ct. 79, reh. den. 332 U. S. 820, 92 L. ed. 397, 68 S. Ct. 151).
McClure, which was licensed as a marketing agency under the terms of the Federal Packers and Stockyards Act, first advances as an overall defense the contention that that act, which makes it the duty of every such marketing agency to furnish upon request, without discrimination, reasonable stockyard services, operates to relieve it from this common law rule of liability for conversion particularly in view of the fact such agencies are for regulatory purposes regarded as in the nature of public utilities. Although a few courts have taken this position our rule, as well as in most jurisdictions, is the act does not relieve livestock commission agents licensed thereunder as marketing agencies from tort liability for wrongful conversion (Citizens State Bank v. Farmers Union Livestock Cooperative Co., 165 Kan. 96, 193 P. 2d 636; anno. 2 A. L. R. 2d 1124).
However, there are other exceptions to the common law rule and it is a defense that the factor was misled by the owner or that the owner consented to the sale (35 C. J. S., Factors, § 57b; Ontario Livestock Comm. Co. v. Flynn, 256 Iowa 116, 126 N. W. 2d 362).
Applying these principles to the case at bar we conclude the trial court correctly ruled that McClure was not liable to plaintiff for the value of the hogs sold personally by Dale Young. Young as a joint adventurer with plaintiff had a proprietary interest in all hogs marketed. Plantiff concedes this. Young was in complete command of marketing operations. He had specific authority from plaintiff to market the hogs through McClure and all the hogs were so marketed. The difficulty lay in his disloyalty to his co-venturer in his subsequent failure to pay over nearly 11/2 percent of the proceeds. Plaintiff not only clothed Young with full indicia of title to the hogs, he directed Young to sell the hogs through McClure. Consent to the sales could not be more strongly evidenced. It followed that if Young had a right to market the hogs, then McClure, standing in his shoes, was not guilty of a conversion in selling the hogs and remitting the proceeds to Young. Unfortunately for plaintiff he had done nothing to alert McClure to his interest in the sale proceeds but relied completely on Young for a considerable period of time to account for them.
To avoid the impact of the finding of joint adventure plaintiff principally relies on Algeo v. Algeo, 125 Kan. 245, 263 Pac. 1077. However, that action was one by an alleged partner against the other partner for an accounting of partnership affairs and did not involve a partner’s right to convey title to a third person, and nothing therein aids plaintiff.
We hold, as did the trial court, that a commission agent who sells livestock for one joint adventurer who has an interest in an authority to market such livestock, and who delivers the proceeds of such sales to that joint adventurer, cannot thereafter be held guilty of conversion if the joint adventurer fails to account to his co-venturer for such proceeds and converts the same to his own use.
Turning to the direct appeal by McClure, we are unable to make valid distinction between the marketing of hogs by Young, either in his own or his fictitious name, and the marketing done by Larry Perry, for which the trial court held McClure liable. Under the joint adventure arrangement Young was to hire and pay for all help necessary. As such venturer he hired Perry and gave him specific directions as to the hogs marketed by him. Perry was thus Young’s agent, in legal contemplation his acts became those of Young and he in fact accounted to Young for the proceeds of hogs marketed by him. Perry’s retention of part of the proceeds was at Young’s direction and would not alter the relation of the parties. Apparently the trial court in its ruling holding McClure liable for the hogs marketed by Larry but not for those sold by Young made a distinction between conversion of the livestock and conversion of the proceeds of the sale, but in each instance the proceeds actually went to Young, the person authorized to receive them under the joint agreement. We think the rules applicable to marketing by Young are applicable as well to that by Young’s agent, hence we conclude the trial court erred in rendering judgment against McClure for the sales made by Perry.
In view of the determination made the other matters raised by both parties become moot. Upon McClure’s direct appeal the money judgment against it is reversed; upon plaintiffs cross-appeal the judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from summary judgment entered in favor of the plaintiff, Clara M. Koepp, and against the defendant, John D. Pribyl, executor of the estate of Edward C. Koepp, deceased, in the amount of $37,500, together with interest, which was made a lien on real estate owned by the decendent in his lifetime, which he transferred to Laura Pribyl, his daughter.
This controversy arises out of the construction of a property settlement agreement entered into on August 9, 1966, between Edward C. Koepp and Clara M. Koepp, husband and wife. The parties had been married many years, and had three daughters, one of whom is Laura Pribyl. During their marriage Edward and Clara accumulated a large amount of property — approximately 2200 acres of Marshall County real estate of the appraised value of $278,000, and stocks, bonds, certificates of deposit, and cash in banks.
Prior to August 1966, the parties separated and Clara moved to a nursing home at Council Grove. Edward continued to reside in the former home of the parties in Marshall County. While at the nursing home, Clara employed Mr. Marlin Brown, an attorney at Council Grove, to represent her in securing a property settlement agreement with Edward.
About that same time, Edward employed Mr. William M. Shaffer, an attorney at Frankfort, who entered into negotiations with Clara’s attorney, and prepared a property settlement agreement for the parties. Paragraph 9, hereafter referred to, prohibiting gifts or transfers by either party subsequent to January 1, 1966, was placed in the agreement at Edwards request, or the request of John D. Pribyl and Laura Pribyl, or all of them. Edward signed the agreement on August 3, 1966, and the document was forwarded to Mr. Brown at Council Grove. Certain changes were made in the agreement on behalf of Clara by her attorney, specifically, the deletion of the phrase “since January 1, 1966” so as to bring any prior gifts or transfers by Edward or Clara into the terms of the agreement, and, as amended, the agreement was returned to Mr. Shaffer.
On August 9, 1966, the interested parties met in Shaffer’s office to execute the agreement. Edward agreed to the changes made by Clara, and signed the agreement. Brown signed the agreement on behalf of Clara who was not present. After the terms of the agreement had been carried out by assigning the real and personal property to each of the parties as agreed upon, Edward conveyed all of the real estate assigned to him under the agreement to his daughter, Laura.
In December, 1966, some four months after the parties had made settlement pursuant to the property settlement agreement, it was learned that Edward, over a period of years beginning in 1954, had transferred various certificates of deposit amounting to $75,000 to “John or Laura Pribyl.” The proceeds of the certificates were placed in the joint checking account of John or Laura Pribyl, or reissued in their names as joint tenants, or expended by them from the joint checking account.
Paragraph 9 of the agreement reads:
“9. It is further agreed and understood that if either party hereto has made any gift or transfer of property or money, or rights to any money or property, to any of their children, any such gift or transfer shall be included in the total of property owned. Provided, however, that if either of said parties shall have made any such gift or transfer to any of their children, and if such party shall fail to reveal said gift or transfer when settlement is made between said parties, then upon discovery of such gift or transfer, if made within two (2) years from the date thereof, said party failing to make known such gift or transfer hereby agrees that judgment may be entered against him or her, for a sum equal to one-half of such gift or transfer, together with interest thereon at the rate of six (6%) percent per annum from the date of such gift or transfer until paid, and in addition a sum equal to twenty-five (25%) percent of the amount of such gift or transfer as punitive damages, and court costs; and it is agreed that a court of competent jurisdiction shall adjudge and decree such amounts to be a lien against the real estate allotted to such party under provisions of this agreement, until paid.”
In addition to the terms of paragraph 9, and under paragraph 1 of the agreement it is stated that the parties “will fully inform and disclose to the other their complete financial status without reservation.” In paragraph 4 the parties stated that it was their intention “to make an equal division of all properties owned by them, regardless of how title to said property is held; and, in order to carry out and effectuate their purpose and intent the value of all property shall be determined and fixed as herein set forth.” In paragraph 8 the parties stated that “they will disclose all information concerning their financial dealings where all funds are kept or deposited, or otherwise held, and that they will not hide or secrete, nor attempt to divert any money or property from being included in the list of property owned, as contemplated by this agreement.”
John Pribyl testified by deposition that over a period of years he performed certain work for Edward for which he did not receive wages and that Edward gave him the certificates of deposit. He also testified he never received any gift or property from Edward, except one grain check. He further testified he paid no income tax on the amount involved, but as conservator of Edward’s estate, he eventually paid $31,000 in gift tax on the certificates.
As indicated, the prohibition against gifts or transfers contained in paragraph 9 was originally limited to transfers subsequent to January 1, 1966, but at Clara’s insistence, was altered in the final draft to include any gift made to any of their children at any time previous to the execution of the agreement. In any event, Edward did not disclose his transfers of $75,000 in certificates of deposit as contemplated by the foregoing paragraphs of the agreement, although there was evidence of an inquiry directed to Ed ward, John and Laura at the meeting in Shaffer’s office on August 9, 1966, as to whether Edward had made gifts of any consequence or sizable amounts to anyone. Edward did not reply, and John and Laura answered in the negative.
The appellee contends that when read in its entirety, the property settlement agreement reflects the parties’ intention to make an equal division of all their property; and in making such division, to include any gifts or transfers made by them prior to the execution of the agreement. She further contends she is entitled to one-half of the $75,000 previously transferred by Edward, plus six percent interest from the date of each transfer.
With respect to interpretation of the terms of the agreement and in the light of the intention of the parties existing at the time it was entered into, the meaning attributed to the provisions is what a reasonable person would have understood them to mean under the then existing conditions and circumstances. The purpose of the contract, so as to carry out the intention of the parties, is to be arrived at by considering and construing die instrument in its entirety. (First National Bank of Lawrence v. Methodist Home for the Aged, 181 Kan. 100, 309 P. 2d 389.) In 17 Am. Jur. 2d, Contracts, § 243, p. 630, it is said:
“Common sense and good faith are the leading characteristics of all constructions of contracts, and the rules for the interpretation of contracts are intended for persons of common understanding ... It is the substance of an agreement rather than its form — that is, the spirit and purpose rather than the letter of the agreement — which must control its construction.”
It is further said:
“In construing or interpreting contracts and ascertaining the intention of the parties thereto, the contracts are to be considered in the frame of reference of their subject matter, their nature, and their object or purpose. The spirit and purpose of a contract, as well as its letter, must be regarded in the construction and effectuation thereof, and there can be no doubt that the court may look beyond the form into which the parties have cast their agreement . . . The subject matter and the purpose of the contract are material to the ascertainment of the intention of the parties and the meaning of the terms they used, and when these are ascertained, they must prevail over the dry words of the agreement. If the general purpose of a contract is ascertained, the language of its provisions must be construed with reference to that purpose and so as to subserve it. It is always of much importance in the construction of a contract upon which doubt arises to ascertain what was the attitude of the parties to the subject and to find out what was their main purpose and object in making it. If this can be done, the terms of the contract will be so construed as to promote the main purpose, if the language employed will fairly permit such construction . . .” (§ 246, pp. 635-637.)
In Wiles v. Wiles, 202 Kan. 613, 452 P. 2d 271, it was said:
“A cardinal rule in the construction of contracts is that they must be interpreted in light of their own peculiar provisions, and every provision must be construed, if possible so as to be consistent with every other provision and to give effect to all. (Citation.) If a contract is clear and unambiguous, the terms thereof must be construed in such manner as to give effect to the intention of the parties at the time they entered into the contract, and this must be determined from the four corners of the instrument itself. (Citation.)” (l. c. 619.)
The appellants do not deny the transfers were made and not disclosed to the appellee, or to the parties’ attorneys at the meeting on August 9, 1966, when the agreement was finalized and a division of property made. They attempt to escape a fair and equitable division on the ground the transfers were to a son-in-law, and argue that paragraph 9 did not specifically mention the magic word son-in-law, and was in limitation of the prior statements of intention. A reading of the agreement does not support the contention. The agreement reflects the intention of Edward and Clara to make even division of property they jointly acquired during their marriage. Its object and purpose was to require each of them to disclose all information with respect to financial dealings previously made, and not to hide, or secrete, or attempt to divert any money or property from being placed on the table in plain view, so to speak, and to make even division of their entire joint accumulations. Paragraph 9 merely implemented and reiterated that obvious intention, and was intended to prevent either party from making gifts or transfers of property without a disclosure and a division of the value thereof.
The appellee perfected a cross-appeal from the district court’s denial of interest on one-half of the aggregate amount of the gifts computed from the date of each transfer. The district court held:
“. . . the judgment of $37,500.00 shall not bear interest at the rate of six per cent (6%) per annum from the dates of the respective transfers of said Certificates of Deposit for the reason that the provision in the contract of that effect is in the nature of a penalty and void. This judgment shall bear interest on the sum of Thirty-seven thousand five hundred dollars ($37,500.00) from August 9,1966, through June 30,1969.”
The cross-appellant concedes the parties cannot contract for punitive damages, and that the provision for punitive damages in the amount of 25 percent of the transfers is void. Such a provision provides for a penalty to pay a stipulated sum on the breach of a con tract irrespective of the damages actually sustained. However, she contends she is entitled to six percent interest computed from the date of the transfers, claiming that such interest should be allowed to determine the present dollar value of the property previously disposed of.
The parties, by their contract, specified the value to be assigned the property for purposes of making an equal division. That is, since such property which was previously disposed of is to be included for purposes of distribution, it is to be included at its present value — “one-half of such gift or transfer, together with interest thereon at the rate of six (6%) percent per annum from the date of such gift . . .”
The cross-appellees were afforded the use and control of the property which was held in their names and which was enhanced in value by virtue of interest payments. The parties saw fit, and did, contract to include such property under the terms of the agreement at its present value, and agreed on the method by which the value of the gifts were to be calculated. Property settlement agreements fairly and understandingly made, just and equitable in their provisions, free from fraud, deceit and overreaching, are valid and enforceable, and are to be liberally interpreted to carry out the intention of the makers. (In re Estate of Gustason, 173 Kan. 619, 622, 250 P. 2d 837, 34 A. L. R. 2d 1014.) The district court erred in failing to award the cross-appellant interest at six percent per annum from the dates of the respective transfers of the certificates of deposit.
Other contentions have been advanced by the parties, but in view of the court’s conclusions heretofore stated, it is unnecessary to discuss and decide them. The judgment of the district court is affirmed with respect to the appeal, and is reversed with respect to the cross-appeal, and remanded with directions to compute interest in accordance with the views expressed in the opinion.
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The opinion of the court was delivered by
O’Connor, J.:
In this K. S. A. 60-1507 proceeding appellant attacks his judgment and sentence for the crime of robbery in the first degree (K. S. A. 21-527). The district court, after holding a full evidentiary hearing, denied the motion; hence this appeal.
Although numerous grounds are urged for granting relief, disposition of the case centers on appellant’s assertion that his plea of guilty was coerced and involuntary.
On April 19, 1969, appellant, whose correct name is Ralph A. Gragg, was charged in the magistrate court of Johnson county with three felonies: assault with intent to rape, assault with intent to rob, and first degree robbery. He had been apprehended the night before by Kansas City, Missouri, police and was identified by one Dorothy Monroe, who earlier in the evening had been assaulted and robbed in a parking lot located in Leawood. At a preliminary hearing held May 1 the alleged victim again identified appellant as her assailant, resulting in his being bound over to district court for trial.
An information charging the three felonies was filed in district court May 2, and Robert G. Jones was appointed as appellant’s counsel. On May 9 appellant appeared with his attorney before the district court and entered a plea of guilty to the robbery count. The transcript of proceedings at the time of the plea discloses appellant told the district court he understood the nature of the charge and the penalty therefor; that he understood he was entitled to a jury trial; and that no promises or threats had been made to induce a plea. After a brief statement of the facts pertaining to the crime by the assistant county attorney, the following transpired:
“The Court: Is that substantially correct, Mr. Jones?
“The Defendant: Well, I really don’t know. I was drunk. I can’t even recall what happened only that I was arrested and charged, and the police said the credit cards were found in my possession.
“The Court: You know they were found in your possession, though?
“The Defendant: Well they had them the next morning and said they was, so they must have been.”
Thereupon, the plea of guilty was accepted, an allocution given, and sentence imposed to the state penitentiary for a term of not less than ten nor more than twenty-one years (K. S. A. 21-530). The other two felony counts were dismissed on motion of the state and commitment was ordered to issue.
From evidence before the district court at the 60-1507 hearing, it is apparent that considerable discussion occurred between appellant’s counsel and the county attorney’s office before entry of the guilty plea. Appellant was no stranger to the halls of justice inasmuch as his record bore four previous felony convictions, making him subject to a life sentence under the habitual criminal act. Numerous conferences were held by appellant and his counsel, and on one occasion they met with the assistant county attorney who advised them of the minimum and maximum punishment appellant was facing. Defense counsel was provided access to the county attorney’s file on the case. Appellant himself was fully aware of the overwhelming evidence of guilt in possession of the state as a result of the preliminary hearing and his earlier identification by the complaining witness at the time of arrest. The plea discussions, which were in substantial compliance with the standards set forth and approved in State v. Byrd, 203 Kan. 45, 453 P. 2d 22, resulted in appellant’s plea of guilty to robbery in the first degree, the state’s dismissal of the other two felony charges, and the state’s forbearance from invoking the habitual criminal act.
Appellant’s contention that his plea of guilty was not freely, knowingly, and understandingly made because he was unable to recall and thus admit the acts constituting the crime may be laid to rest by what was said in North Carolina v. Alford, 400 U. S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160, by Mr. Justice White speaking for the majority:
“. . . Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.
“Nor can we perceive any material difference between a plea which refuses to admit commission of the criminal act [nolo contendere] and a plea containing a protestation of innocence when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” (p. 171.) (Emphasis added.)
In Alford, the defendant accompanied his plea with the statement that he had not committed the murder. In the instant case, appellant’s statement of not being able to remember what happened cannot be said to have detracted from the otherwise voluntary nature of his plea. He makes no claim that he did not understand the nature of the charge or the consequences thereof. Indeed, his own statements at the time of the plea and the allocution were specifically to the contrary. (See, Sharp v. State, 203 Kan. 937, 457 P. 2d 14; State v. Angle, 197 Kan. 492, 419 P. 2d 935. This case is readily distinguishable from Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, where it did not appear from the record that the judge asked any questions of the defendant or that defendant addressed the court when the pleas were entered.
At all times during the plea negotiations appellant had the benefit of able and competent counsel who diligently and faithfully acted in the best interests of his client. However, the ultimate decision rested squarely on the appellant. He was faced with a choice of pleading guilty to one count of the information and receiving a sentence as a “first time loser,” or going to trial on the three counts, and if convicted, receiving a lengthy sentence under the habitual criminal act. After consulting with his counsel and being fully aware of the possible penalties, he chose to plead guilty. His choice of the alternatives brought him advantages of considerable magnitude, all of which stemmed from the earlier plea negotiations. Our cases are legion that a guilty plea is not rendered involuntary by reason it was induced by the prosecutor’s promise not to invoke the provisions of the habitual criminal act. (Weigel v. State, [No. 46,267, this day decided]; State v. Byrd, supra; Whaley v. State, 202 Kan. 175, 446 P. 2d 397; Stiles v. State, 201 Kan. 387, 440 P. 2d 592.) The standard for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among alternative courses of action open to the accused. (North Carolina v. Alford, supra.)
Appellant’s further argument that his plea of guilty was coerced as a result of the totality of circumstances existing during the 21-day period from the date of his arrest to the time of sentencing is so insubstantial that discussion is not warranted. It suffices to say that a petitioner in a 1507 proceeding has the burden of proving that his plea of guilty was involuntary. Here the district court’s finding that appellant’s plea was understandingly, knowingly, and voluntarily made is supported by substantial, competent evidence and will not now be disturbed on appeal. (Cox v. State, 205 Kan. 867, 473 P. 2d 106; White v. State, 203 Kan. 687, 455 P. 2d 562; Wippel v. State, 203 Kan. 207, 453 P. 2d 43.)
Appellant also complains that his constitutional rights were violated because he was without counsel at the “one-man line up” in Kansas City, Missouri, he was held under excessive bail, and he was denied counsel at his preliminary hearing. These contentions completely overlook the impact of his guilty plea. It has long been the law of this state that when an accused enters a voluntary plea of guilty, he is deemed to have waived any irregularities which may have occurred in the proceedings prior thereto. (Lee v. State, 207 Kan. 185,_P. 2d_; State v. Brown, 204 Kan. 430, 464 P. 2d 161; State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99.) This includes any constitutional question relating to the lack of counsel at the preliminary hearing (Brown v. State, 198 Kan. 345, 424 P. 2d 576; Blacksmith v. State, 195 Kan. 523, 407 P. 2d 486); any claim of excessive bail (State v. Way, 204 Kan. 375, 461 P. 2d 820); and any question about the sufficiency of evidence to support guilt (Hughes v. State, 206 Kan. 515, 479 P. 2d 850; Toland v. State, 200 Kan. 184, 434 P. 2d 550; Dexter v. Crouse, 192 Kan. 151, 386 P. 2d 263). Once a plea of guilty has been entered there is no necessity to introduce any evidence to maintain the conviction. Therefore, whether evidence of identification from the line up would have been ad missible at a trial is immaterial. Moreover, we should add that appellant has failed to show his substantial rights were in any way prejudiced by the lack of counsel either at the line up or at his preliminary examination. (See, State v. Fountaine, 196 Kan. 638, 414 P. 2d 75.)
After a careful examination of the record, we are satisfied the district court properly concluded that appellant was not entitled to relief.
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This appeal involves the right of a surviving widow to have allocated to her the family homestead and statutory allowances, where she has elected to take under a joint, mutual and contractual will which she executed together with her late husband. The answer to the question posed, as in most probate questions to reach this court, turns on the particular circumstances of the parties and the terms of the will. Insofar as we are able to determine— and the briefs of counsel do not indicate otherwise — the question has not previously been decided in this state.
The testator, Edward H. Barnett, and the appellant, Frances D. Barnett, had four children, two daughters and two sons, all now adults. Neither party to the will had other than the mutual children to be concerned about.
The will in question was executed by Edward H. Barnett and Frances D. Barnett on August 6, 1953. Insofar as it is pertinent here, it provides basically that the survivor should have a life estate in all of the property of the testators, with full power of disposal. Upon the death of the survivor, the daughters were to share in the testators’ household goods, with the remainder of all property to be sold by the executors — they to pay specific bequests of $6,000 each to the daughters and to divide the residue among the four children. Provisions were made for a pro rata abatement of the specific bequests in the event the estate was insufficient to fulfill them at the death of the survivor, and for the disposition of the share of any child who should predecease the survivor. The two sons, Edwin and Robert, were named as co-executors.
Edward E. Barnett died on February 26, 1968, and the will was offered for probate to the probate court of Osage County by the widow and all four children. The will was admitted to probate and the named executors duly appointed. Shortly thereafter, the widow filed in the probate court her petition to set aside to her the 160 acre homestead and the statutory allowances provided for in K. S. A. 59-403, as amended. Edwin, one of the co-executors, in such capacity filed his defense to the petition, and after hearing the probate court granted the petition and set aside to the widow the homestead, the items of property set out in 59-403 (1), and other property in the amount of $1,650 under 59-403 (2).
Edwin, again in his capacity as co-executor, timely appealed this decision to the district court of Osage County. In that court there was a brief stipulation of the parties as to the facts, including the marriage of the parties to the will and their occupancy of the real estate in question as their residence. It was also stipulated that the only issues were those of law. The district court found that the will was not only joint and mutual, but also contractual. Allowing homestead rights and statutory allowances, the court found, would impair the contract implied by the will. The probate court was therefore reversed as to its order in favor of the widow.
In due course she appealed to this court, with both co-executors named as appellees. Here we are faced with an anomalous situation: The appellant naturally ruges reversal; one appellee, Robert, joins her in her position; and the other appellee, Edwin, whose position was sustained by the trial court’s decision, chooses not to favor this court with any brief attempting to support that decision.
Although it does not appear in the record, there lurks in the background a suspicion that this entire controversy stems from a dispute between the two brothers as to who should farm the homestead during the period of administration. If so, the matter may now be moot, but since mootness is not suggested by the parties and does not appear from the record, this court feels bound to decide this case on the questions and record submitted to it, within the terms of K. S. A. 60-2101 (b).
The parties agreed that the will was unambiguous, and no extrinsic evidence was offered concerning negotiations prior to its execution. The trial court therefore correctly decided that the nature of the will is to be determined solely from its terms. As noted above, it found that, in addition to its joint and mutual nature, it was contractual. With this finding we are not prepared to disagree. See the recent discussions of this aspect of the problem in In re Estate of Thompson, 206 Kan. 288, 478 P. 2d 174, and In re Estate of Chronister, 203 Kan. 366, 454 P. 2d 438.
Such a finding, however, does not dispose of the question presented by this particular will. Before a widow can be deemed to have waived the statutory benefits of homestead and allowances by consenting to the terms of her husband’s will, K. S. A. 59-404 provides that it must clearly appear from the will that its provisions were intended to be in lieu of such rights. See e. g., In re Estate of Morrison, 189 Kan. 704, 371 P. 2d 171.
In its conclusion of law the district court stated:
“It is the conclusion of the Court that the instrument is the joint, mutual, and contractual will of the decedent and his surviving spouse wherein statutory allowances are provided for each in a clear and concise manner.
“That the survivor takes under the last will and testament and under the terms thereof cannot take partly under the law and also take under last will and testament. The survivor in connection with the execution of the instrument elected to take under the instrument at the time of the execution thereof and neither could have claimed both under the will and the law.
“That to allow homestead rights or statutory allowances to either would be to allow a breach of the contract and agreement.”
However, in the light of the language of K. S. A. 59-404, it does not appear to us that a joint, mutual and contractual will and the right to homestead and statutory allowances are necessarily mutually exclusive. Under the will here in question the widow was given not only the right of occupancy of the homestead granted by K. S. A. 59-401, but full power of disposition. The same may be said of the personal property alloted under what is now K. S. A. 1970 Supp. 59-403.
As we see it, the instant petition by the surviving spouse does no violence to any of the terms of her contract with her deceased husband. As noted above, the will gives to her full power of disposition of all of deceased’s property, including the homestead. Setting it aside to her as a homestead gives her no more title than the will gives her, and for all practical purposes the same may be said of the statutory allowances.
As to the statutory allowances, they are, of course, designed for the immediate needs of the surviving spouse and minor children, if any. O’Dell v. O’Dell, 157 Kan. 351, 139 P. 2d 376. In each case, by taking under the statute the widow is given an additional element of protection against judgment creditors, if any, and the right to immediate possession as against the executors. We find nothing in the will which clearly shows an intent to deprive her of these advantages.
There is no evidence in this case that the widow, in exercising her right of disposition, has given or intends to give away any of the property involved, or take any other action which would defeat the purpose of the contract between the parties. In this respect the case differs from In re Estate of Buckner, 186 Kan. 176, 348 P. 2d 818, and does not give rise to the basic concern of the court in In re Estate of Jones, 189 Kan. 34, 366 P. 2d 792, upon both of which the trial court said it relied heavily. Should such event occur the remaindermen would not be without remedy. See In re Estate of Buckner, supra; In re Estate of Chronister, supra; Menke v. Duwe et al., 117 Kan. 207, 216, 230 Pac. 1065.
We have examined the other cases cited by the trial court. While they generally support the finding that the will here was contractual, we do not regard them as controlling on the right of the widow, under this will, to make the election she did.
To summarize, we do not find either a clear intent that the testamentary provisions for the widow should be in lieu of her homestead rights and statutory allowances, or that to grant them to her would constitute a breach of the contractual aspects of the will.
The judgment is therefore reversed with directions to enter judgment for the appellant Frances D. Barrett.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Harman, C.:
Here a township seeks to restrain a sheriff from levying an execution issued to satisfy a judgment rendered against the township on an appeal by landowners from an award of damages for opening a township road. The principal question now is, which is liable for the award — the township or the county?
Reno county has not adopted a county unit road system.
In August, 1967, pursuant to K. S. A. 68-102, et seq., a petition signed by twelve householders was filed with the Reno county board of commissioners to lay out and open a road in Clay township one mile in length. (For several years prior to this time the Clay township board had been arguing about the proposed road, trying to get the county commissioners to go ahead and open the road.) The members of the county board appointed themselves as viewers to view the proposed road and assess damages. Statutory notice to the public and the landowners involved was given. The county board viewed the property and by resolution dated November 1, 1967, assessed damages for land taken in the sum of $178.36 to Warren D. Pebley and his wife, Phyllis Jean Pebley. The board also assessed damages in a lesser amount to another landowner. At some time thereafter a Mr. Thode in the Reno county engineer s office delivered a letter to the trustee of Clay township stating the township should pay the awards allowed.
November 9, 1967, the Pebleys filed with the Reno county clerk their notice of appeal from the board’s award, along with an appeal bond and an application claiming $14,000 in damages. December 1, 1967, the county clerk filed all papers in the proceeding with the clerk of the district court of Reno county.
December 9, 1968, the township board mailed to Mr. Pebley its warrant for $178.36. At the same time it paid to the other landowner the amount awarded by the viewers. By letter dated January 18,1969, the Pebleys through their attorneys returned the warrant to the township board. The letter stated, “As you know, these folks have appealed the award of damages”.
On February 4, 1969, jury trial on the appeal was concluded in the district court of Reno county and a verdict was returned awarding the Pebleys the sum of $1,750 as damages to their property. Judgment against Clay township was entered upon this verdict. The Reno county attorney defended the action.
On July 1, 1969, the judgment remaining unpaid, the Pebleys caused execution on it to be issued against the property of Clay township. August 15, 1969, the township commenced this proceeding by filing its petition wherein it sought to have the Reno county sheriff perpetually enjoined from taking any action on the execution. The Pebleys were permitted to interplead in this action. Issues were joined, hearing was had and on September 23, 1969, the trial court ruled Clay township was liable for the damages awarded by the jury and it denied injunctive relief. This appeal ensued.
Appellant Clay township’s first contention is that the county, not the township, is by statute liable for the payment of damages incurred in opening the road.
The road is admittedly a township road.
We briefly review certain statutes applicable to township roads, all found in K. S. A., Chapter 68.
Section 102 provides that applications for laying out roads shall be by petition to the board of county commissioners, certain requisites for an application being stated.
Section 104 provides that upon finding such a petition to be proper in form, with proper bond filed, the commissioners shall appoint viewers, who may be the county commissioners, who, after notice has been given, shall view the property and give all parties a hearing. 105 prescribes the form of notice.
Section 106 gives further direction to the viewers in carrying out their duties and provides they shall determine the amount of damages sustained by any person through whose premises the road is to be established. Upon approval by the commissioners and recording of the proceedings an order is to be issued by the county surveyor to the township trustee directing opening of the road for public travel.
Section 107 provides that any person feeling aggrieved by the award of damages may appeal to the district court upon the same terms, in the same manner and with like effect as in appeals from judgments of justices of the peace in civil cases. Provision is also made for the creation of special benefit districts in particular situations with partial payment of the damages under a prescribed formula to be made by assessment of the land specially benefited by establishment of the road.
Section 114 provides generally for making changes in roads for the purpose of improving them in the interest of safety, including their laying out and relocation. Necessary laying out or relocation is to be by order of the board of county commissioners. The board is to determine applications for damages caused thereby, which amounts are to be paid from the general or road fund of a county in case of county roads and from the township road fund on township roads.
Section 115 provides that the township trustee has the duty to open all township roads and keep them in repair and free of obstruction. Material used is to be paid by the township board.
Section 518c authorizes a township located in a county not operating under the county unit system to levy an annual tax for road purposes, including the construction of township roads.
Section 526 places general charge and supervision of township roads in the township board.
Finally, section 560 provides a method whereby the township may turn over the construction, maintenance and repair of township roads to the county.
No statute explicitly states who shall pay the damages awarded for laying out and opening a township road.
For its contention the county is liable to pay to the landowner the amount of the award appellant principally relies upon a single sentence found in section 107 which states:
“The net amount of damage to be paid to acquire such land so condemned shall be advanced by the county from its general fund and it shall thereafter receive and collect benefits in the manner provided for above and place the same with interest thereon to the credit of its general fund.”
Even in isolation the application of this proviso to the case at bar appears questionable. As already indicated, 107 provides for the creation of benefit districts where real estate is specially benefited by the location and opening of particular roads, with partial payment thereof to be made by assessment against the land so benefited, to be collected in the same manner as are general taxes over a period of five years if not immediately paid in a lump sum.
Obviously the sentence relied upon must be read in connection with the lengthy section from which it is lifted, and so considered, it clearly pertains only to initial payment by the county of an award to a landowner in a benefit district determined under the statute, with subsequent reimbursement to be made by landowners in the benefit district. Here no such benefit district was ever created and is not involved, and the sentence relied upon fixes no liability upon the county.
The participation of the board of county commissioners with respect to opening or laying out a township road appears to be limited. If it appoints third parties as viewers under what is now section 107, it has no power to alter the award (Hauserman v. Clay County, 89 Kan. 555, 132 Pac. 212). County commissioners or viewers act in a judicial or quasi-judicial capacity in determining the damages allowable to a landowner upon a road opening (Larkin v. Nemaha County Comm’rs, 170 Kan. 164, 223 P. 2d 987; Hauserman v. Clay County, supra). The role of the county board in determining damages thus appears to be one of an impartial tribunal rather than a partisan representative acting in behalf of the county and we cannot spell out legislative intendment that by reason of the board’s participation in laying out a township road and awarding damages the county is to pay the damages awarded.
The statutes we have mentioned make it clear the township board has the responsibility of opening, constructing, maintaining, repairing and improving township roads. The township has special taxing powers with which to accomplish this. Under section 114 a township is specifically required to pay the damage to landowners when a township road is laid out or relocated for the purpose of eliminating a sharp turn or other dangerous place. This being true, we have difficulty in seeing any reason why the township should not be expected to pay the damage to landowners caused by establishment of the road in the first place.
Appellant tries to spell out legislative distinction between the terms establishing and opening as applied to township roads, arguing it is the county’s sole problem to lay out or establish such a road, while the duty to open the road for traffic is cast upon the township. We cannot subscribe to this theory. Rather we believe the clear statutory import and the only logical construction is that the township is liable for the damages arising from the laying out and opening of a township road and we so hold.
Appellant further contends entry of judgment against it deprives it of property without due process of law because it was never legally notified of the proceedings in which damages were assessed and was never a party to those proceedings.
Appellant recognizes that under section 107 appeals from the viewers’ award are to be taken in the same manner as appeals from judgments of justices of the peace in civil cases, and under K. S. A. 61-1001, then in effect, such appeal is by notice of appeal filed in the court from which the appeal is taken, and further that notice to the opposing side is not required (see Wald v. Bukaty, 139 Kan. 489, 491, 32 P. 2d 456). However, appellant argues that two further statutes should be read in connection with the appeal provision, namely, K. S. A. 19-223 and 19-224, which establish a procedure generally for appealing from decisions of the board of county commissioners. It is not readily apparent how appellant would have been in any better position had the particular procedure mentioned been followed; however, for two reasons the cited statutes were not pertinent: First, the appeal taken by the landowners herein was not from a decision made by the board of county commissioners sitting as such — rather it was from a decision of a statutory tribunal specially authorized to allow damages; second, where a statute specifically provides for an appeal, an appeal is to be governed by those provisions rather than by a general statute. The applicable statute was complied with in every respect in perfecting the appeal.
Resort to the record on the subject of notice of the proceedings reveals the following. The first signer on the initial petition to lay out the road was the then Clay township trustee. This official was present at the viewing. After the award was made the township clerk, who later became trustee, received advice from the county engineer s office that the township was to pay the amounts awarded and warrants were issued to the landowners; this officer also knew the Pebley award had been appealed. The new clerk knew of the appeal. The Pebleys’ letter returning the warrant to the township treasurer stated the award had been appealed. On January 19, 1969, the township treasurer conversed by telephone with one of the Pebleys’ attorneys and was advised of the exact date of trial of the appeal in district court. The treasurer testified his understanding was the county commissioners were the “guardian” of the township board and would be looking after its interest in the appeal. Thus it appears the township board was aware of the proceedings throughout their entire course. That appellant defaulted in participation in the appeal, for whatever reason, was a matter of its choice and can in no wise constitute lack of due process of law.
Appellant further contends the county is estopped to deny liability on the judgment because the county attorney assumed defense of the appeal in district court. Little more need be said. When the case came on for trial in the district court some confusion evidently existed as to the proper role of the county attorney. However, there is no showing anyone did anything to prevent the township board from participating in the appeal or to mislead it in any way to its detriment. The elements of estoppel simply do not exist (see Pelischek v. Voshell, 181 Kan. 712, 717, 313 P. 2d 1105).
No invalidity is shown in the judgment upon which the execution was issued and the trial court properly denied the injunction sought.
Judgment affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Valentine, J.:
The principal questions involved in this case are the following: (1.) When, if ever, is the negligence of an attorney at law in permitting a j udgment to be wrongfully rendered against his client such an “unavoidable casualty or misfortune, preventing the party from prosecuting or defending” the action, that the client may have the judgment vacated under §568 of the civil code, and be let in to prosecute or defend the action? (2.) And if ever such negligence may be such an “ unavoidable casualty or misfortune,” was it such in the present case?
The principal fact set forth by the present plaintiffs as rendering the negligence of the attorney material, and as rendering it an “ unavoidable casualty or misfortune,” authorizing the vacation of the judgment rendered against them, is the fact that the attorney was and is insolvent; while the principal facts urged by the present defendant as rendering the negligence of the attorney immaterial, and not such an “unavoidable casualty or misfortune,” are the facts that the said judgment was not rendered until more than four months after the attorney had committed his principal act of negligence, and was not rendered until the present plaintiffs had had ample time and opportunity to know of such negligence,'and to employ other attorneys, and to take all necessary steps to defend the action. That action, as appears from the present plaintiffs’ petition, was commenced on September 28, 1881. The summons was ■ served upon the present plaintiffs (the then defendants) in Ohio, on November 15, 1881. The answer day was fixed for January 14, 1882. The plaintiffs, immediately after being served with summons, through their agent, W. B. Beebe, who resided in Marion county, Kansas, employed an attorney, A. McKee, who also resided in Marion county, Kansas, and instructed McKee specially to file an answer in that case at the proper time, which, as before stated, was any time prior to January 15, 1882, and McKee agreed to do so; but he never did file such an answer, but before the time for filing the answer had expired, he left the state of Kansas, and has never returned. The' agent, Beebe, also left the state of Kansas about the same time, and did not return to Kansas until after the judgment was rendered in the said case. - The district court, in which said action was pending, was in session in January, 1882, but by an understanding between the parties no action was taken in the case at that term. At the next term of the district court, and on May 22, 1882, judgment was rendered by default, in favor of the present defendant, then plaintiff, and against the present plaintiffs, then defendants. The present plaintiffs had no knowledge of McKee’s negligence, or of the rendition of this judgment, until long after both had actually occurred; arid it does not appear that after McKee’s employment they ever had any correspondence with either McKee or Beebe. It would seem, in fact, that they were also negligent, as well as their attorney and agent, McKee and Beebe.
Upon the foregoing facts, should the judgment rendered against the present plaintiffs be vacated, and they be allowed to defend in the original action? Under .the authorities, we would think not. Mr. Freeman, in his work on Judgments, uses the following language:
. “The neglect of an attorney or agent is uniformly treated as the neglect of the client or principal, except in New York. A default will not be opened because the attorney had prepared a demurrer, but had failed to file it by reason of his miscalculating the time when it was due; neither will relief be granted because the attorney forgot the day and time for trial. And in general no mistake, inadvertence or neglect, attributable to the attorney, can be successfully used as a ground for relief, unless it would have been excusable if attributable to the client.” (Freeman on Judgments, § 112, and cases there cited. See also 3 Pomeroy’s Eq. Jur., §1361, and cases there cited.)
The decisions from Wisconsin cited by the plaintiffs are not applicable to the present case, for they were made under a statute very different from the statutes of Kansas. The Wisconsin cases were decided under a statute which reads as follows:
“The court may, . . . in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding against him, through his mistake, inadvertence, surprise, or excusable neglect.” (Rev. Stats, of Wis. of 1858, ch. 125, § 38; Rev. Stats. of Wis. of 1878, ch. 127, § 2832.)
But even if the statutes of Wisconsin were the same as those of Kansas, the decisions referred to would hardly be applicable to the present case, for reasons which will occur to anyone who will carefully read those decisions and this case. What has been said with reference to the Wisconsin cases we think may also be said with reference to the case of Hildebrandt v. Robbecke, 20 Minn. 100, though we are not sure from the meager report of the case. We would also think that the motion to set aside the judgment in the Minnesota case was made immediately after the rendition of the judgment, at the same term of the court at which the judgment was rendered, and upon sufficient grounds under such circumstances. (See further, Merritt v. Putnam, 7 Minn. 493.) The cases of Sharp v. The Mayor, &c., 31 Barb. 578, and Elston v. Schilling, 7 Robt. (N. Y.) 74, were not decided by courts of last resort; and the case of Meacham v. Dudley, 6 Wend. 514, was not a proceeding to vacate a judgment — it was simply a motion to set aside a default. There are no other cases cited tending to sustain the views of the plaintiffs.
We would therefore think that, as a general rule, the negligence of an attorney in unnecessarily permitting a judgment to be rendered against his client is not sufficient to authorize the vacation of such judgment. There may be exceptions to-this rule, and probably are, but we think the present case comes clearly within the general rule and not within any exception.
The plaintiffs, however, claim that the insolvency of the attorney will take this case out of the general rule; for, as they claim, the plaintiffs would have no adequate remedy for the loss they must suffer in having a judgment wrongfully rendered against them, unless they have the right to have such judgment vacated. This would hardly seem to be a sufficient ground for making an exception. It was no fault of the defendant that the plaintiffs employed an insolvent attorney; and it would hardly seem proper, after a party has obtained a judgment without any fault on his part, to say that the judgment may be vacated and set aside provided that the other party’s attorney is insolvent, but that it may not be vacated or set aside if such attorney is solvent. If such a doctrine should be sustained, then the value of a judgment would often depend upon the solvency or the insolvency of the attorney of the opposite party. But this proceeding is exclusively under § 568 of the civil code, which says nothing about the solvency or the insolvency of the attorneys. It provides that a judgment maybe vacated “ for unavoidable casualty or misfortune preventing the party from prosecuting or defending.” Now the insolvency of an attorney is not an “unavoidable casualty” “preventing the party from prosecuting or defending;” nor is it an “unavoidable misfortune preventing the party from prosecuting or defending.” No party is bound to employ an insolvent attorney, and if he does employ such an attorney the insolvency does not prevent him from employing other attorneys, or from prosecuting or defending his action. The case may be prosecuted or defended just as well with an insolvent attorney as without him, or as with any other attorney. We would therefore think that the insolvency of the attorney cannot make any difference.
Of course where the attorney, through some unavoidable casualty or misfortune, is prevented from prosecuting or defending the action, and the client has not been informed of such casualty or misfortune within sufficient time to employ another attorney, the case would come within the provision of § 568 of the civil code of Kansas. For instance, if the attorney were in some distant city, and, on account of sudden sickness, or high waters, or some railroad accident, or other unforeseen event, could not reach the place of trial within time to prevent the judgment from being rendered against his client, and the client were also absent or otherwise incapacitated from attending to his case, the case would come within the provision of §568 of the civil code; for in such a case,, the casualty or misfortune preventing the attorney from prosecuting or defending the action would also be the client’s casualty or misfortune. But none of the foregoing cases is the present case. In the present case, the attorney was not prevented from defending the action by any casualty or misfortune. Also, where a party moves to set aside a judgment immediately after its rendition, and at the same term at which it is rendéred, it may be set aside for irregularities that would not authorize its being set aside if the application were made at some subsequent term.
Under the circumstances of this case, we cannot say that the court below erred in refusing to vacate the judgment rendered against the present plaintiffs. We cannot say that the negligence of the attorney, or his insolvency, or the present plaintiffs’ (then defendants’) want of knowledge of such negligence, or all combined, constitutes such an “unavoidable •casualty or misfortune preventing the party from prosecuting or defending” the action, that the plaintiffs may have the judgment vacated under §568 of the civil code, and they be let in to defend.
The judgment of the court below will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action to recover damages for injuries sustained by the plaintiff, the defendant in error, near Montoya, Texas. The accident occurred on the morning of August 2,1881. The plaintiff was a brakeman on a train which had started that morning from El Paso, Texas, to go to San Marcial, New Mexico. At the time of the accident he was on the engine, where he went to leave his lamp. When he saw the washout on the road ahead of the engine, he called to the engineer and made a jump to get off. The engine dropped down off the bridge six or eight feet, and the apron (a piece of sheet iron to cover the space between the engine and tender) was thrown over so hard that it flew back and caught the plaintiff’s leg and cut it off. The case was before this court at our January term for 1883. (29 Kas. 632.) The judgment of the district court was then reversed, and the cause remanded. Upon the second trial, the jury returned a verdict for the plaintiff for $10,000. Judgment was rendered thereon in his favor, and the cause is before us again for review.- Upon the former hearing in this court, the judgment was reversed because the trial court failed to instruct the jury .as to the liability of the railroad company under the common law, which is in force in Texas.
The evidence upon the new trial was the same as that of the first trial. Therefore it is unnecessary to recite the facts here, as they are set forth at great length in the report of the casé in 29 Kas., supra. In the former opinion in this case, Mr. 'Justice Valentine, speaking-for the court, after a review of the facts said that—
“The railroad company in Texas, under the rule of the common law, would be liable to any one of its servants operating its road, for the negligence of any other one of its servants whose duty it was to keep the road in good condition, and who culpably failed to perform such duty or to give proper warning; for, in such a case, the two classes of servants would not be fellow-servants or coemployés, but the latter class would really be the representative of the master — the representative of the railroad company — and the failure of the servant would be within the line of his duties.”
In view of this declaration of the law, the material question upon the second trial, aside from the alleged contributory negligence of the plaintiff, was whether the road master, one E. J. Guild, who had charge of the road from Las Cruces, New Mexico, to Montoya, Texas, was culpably negligent or not. He testified:
“That his duties were generally to direct repairs and keep the road in safe condition; that in case of any sudden or serious break in the road, or any apprehension of danger to trains, to see, if possible, to have the road repaired, and notify the train dispatcher of the facts in the case, if he could not get them repaired; that it was his duty also in case of washouts to use every possible means to prevent accidents; that in the evening of August 1, 1881, he was informed by William Allen, the conductor of a train on the railroad, which had just reached Las Cruces from El Paso, 'that it was raining; that the water was rising in some of the creeks; and that if the rain continued, it was likely to .wash the road.’ He then left a message with the telegraph operator at Las Cruces for the train dispatcher at San Marcial, telling him not to send any trains over that division until he could go over it in the morning with the work train; that after giving the message to the operator, he did not remain in the office to see whether it was sent; that he stayed in Las Cruces that night in a house, or car used as a house; that he had there, subject to. his orders, an engine, a hand-car, and section men.”
The message was not sent, and evidence was produced to show that the telegraph operator could, not do so for the reason that the wires were either down or crossed. The road master further testified “ that if he had known that his message, had failed to reach its destination, he could have taken an engine or hand-car and gone down that night over the road.” Upon the evidence, the jury returned the special finding that the road master, with the information he had, did not do all that a man of ordinary prudence would have done; and further found “that he utterly failed to perform his duty, under the circumstances, in that he did not wait to know positively that his message was received by the train dispatcher.” This finding being supported by some evidence, renders the railroad company, under the previous decision of this court in this case, liable. (29 Kas. 632.) It was the duty of the company to see that its road was in good condition and in good repair all the time, and it was liable for injuries caused by the negligence of its road master, whose duty it was to keep the road in good condition and repair, if he culpably failed to do so or to give proper warning.
If it had not been that the instructions of the trial court upon the first trial were misleading, the prior judgment would have been affirmed. Upon the new trial the law was declared to the jury as directed by this court, with perhaps the single exception of the instruction relating to the conduct of the telegraph operator at Las Cruces. In view however of the special finding of the jury that the road master was culpably negligent, it is not necessary to express any opinion whether the telegraph operator at Las Cruces, who the evidence tended to show was án employé of the railroad company, and the plaintiff were fellow-servants within the meaning of the rule of the common law that the servant takes the risks of dangers ordinarily attending or incident to the business in which he voluntarily engages for compensation, including the carelessness of his fellow-servants. As we cannot say from the evidence in the case that as a matter of law no culpable negligence for which the railroad company is liable, was committed, we cannot upon the special findings of the jury reverse the judgment; nor can we in consideration of the special findings disturb the judgment for any direction given to the jury.
It is also claimed that the trial court should have set aside the verdict and refused judgment thereon, because it is alleged that the damages are excessive. The evidence conduced to show that the plaintiff when he was hurt was 27 years of age, and receiving as brakeman $60 per month; that his leg was sawed off three times before the surgeon got it right; that he was confined to his room for over fifty days; that he had the lockjaw for twelve or fifteen days so severely as to. be unconscious a part of the time; and that “he suffered' everything that a man could suffer and not die.” Upon the first trial the verdict for the plaintiff was $8,000; upon the second trial this was increased to $10,000. On consideration of all the circumstances, we cannot “say that the damages are so excessive as to strike the mind at first blush as being the result of bias or prejudice.” Therefore we cannot as a reviewing court set aside and grant a new trial solely on the ground that the damages are excessive.
The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
In 1883, by chapter 159, Laws 1883, the legislature authorized the township of Solomon, in the county of Cloud, to issue bonds for building bridges in a sum not exceeding $7,000, in addition to the amount of bonds it was already entitled to issue by law, with the proviso that the manner of issuing said bonds should be in all respects as already provided by law for issuing township bonds. Under this authority an election was held, at which more than a majority, but less than three-fifths, of the votes were cast in favor of issuing the bonds. In 1870, township bonds for bridge purposes were authorized to be issued on a vote of a majority of the qualified voters at an election called therefor. (Laws 1870, ch. 33, and Laws 1871, ch. 48.) In 1874, such bonds were authorized to be issued on a vote of three-fifths of those voting. (Laws 1872, ch. 68, and Laws 1874, ch. 39.)
The contention of defendants is, that these later laws superseded the former, and as three-fifths of the votes cast at this election were not in favor of issuing the bonds and building the bridges, no authority to act therein was granted. 'The simple question therefore is, whether the earlier statutes are superseded by the later. It is not pretended that the former are in terms repealed; but the contention is, that the latter are in the nature of a substitute for, and therefore supersede the former. It is familiar law that a later statute will operate as a repeal of a former, though it contains no express repeal, and even though its provisions are not absolutely repugnant to those of the former, whenever it is obvious that the one was intended as a substitute for the other. The rule is thus stated by Mr, Justice Field, in the case of the United States v. Tynen, 11 Wall. 92:
“Even where two acts are not in express terms repugnant, yet if the later act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.”
See also the following cases: Davies v. Fairbairn, 3 How. 636; Bartlett v. King, 12 Mass. 537; Commonwealth v. Cooley, 10 Pick. 36; Pierpont v. Crouch, 10 Cal. 315; Sacramento v. Bird, 15 id. 294; Swann v. Buck, 40 Miss. 269; Norris v. Crocker, 13 How. 429; Sedgwick on Stat. and Const. Law, 124.
We think this rule obtains, and that the law of 1870, with its amendments in 1871, was repealed by the law of 1872, and its amendment in 1874. The latter law covers the whole subject-matter of the first; embraces new and different provisions, and was obviously intended tti cover the entire field of such legislation. A slight comparison will in dicate this. The law of 1870 applied to municipal townships alone, and only gave authority to issue bonds for building bridges. The other applies to counties, cities, and townships, and authorizes bonds for bridges, railroads, and other matters. The one authorized the issue of bonds up to ten per cent, of the taxable property, and required only a majority vote. The other authorizes bonds in amount not exceeding, inclusive of all other indebtedness, five per cent, of the taxable property, and requires a three-fifths vote. The one provided for bonds of not less than $50 each, the other of not less tha.n $100 each. By the one the bonds were to be made payable where the officers of the township directed, and by the other at such place in the city of New York as should be directed. By the one a petition signed by twenty-five voters was a prerequisite to an election, and by the other a petition of two-fifths of the voters. Without pursuing this comparison further, it is obvious that the latter statute covers the entire ground of the former, embraces new and different provisions, and was obviously intended as a substitute. Evidently the legislature intended to establish one uniform law, covering these various municipalities, and providing for the issue of bonds for these different purposes, and to that end enacted the law of 1872, with its amendment of 1874. Under this, as three-fifths of the votes were not in favor of the question submitted, it failed to carry, and the defendants had no authority to act.
Counsel refer to the case of Uhl v. Township of Douglass, 27 Kas. 80, in which we spoke of the law of 1870 as still in force. But the question now presented was not suggested at that time, and for the purpose of that case it was immaterial whether the law of 1870-1871, or that of 1872-1874, was in force. The decision has no bearing upon the question here presented, and there is nothing said in the opinion which properly considered ought to interfere in the least with a full inquiry at the present time.
The judgment will therefore be entered in favor of the defendants for costs.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This is a petition in error to reverse an order of the district court of McPherson county, overruling a motion to confirm a sheriff’s sale, and sustaining a motion setting aside such sale.
It appears that the sheriff of the county, in pursuance of an order of sale, advertised a sale of certain real estate to take place on October 15, 1883, at 1 o’clock p. M. On that day, and a few minutes prior to 1 o’clock P. M., the sheriff offered the land for sale. It was worth from $1,700 to $2,000. Only two persons bid there.on. The first bid was $600, by the attorney of the purchaser, who bid on the land for and at the request of the purchaser. The second bid was $620, by the purchaser himself, Albert Pickett, the present plaintiff in error, and the land was sold to him for that amount. This was all done before 1 o’clock in the afternoon of that day. The sheriff, however, testified that it was done four or five minutes after 1 o’clock, by his watch, which was set by a certain jeweler’s time only three or four days before that time; and there was no other evidence tending to show that the sale took place at or after 1 o’clock; but at least three witnesses testified that the sale took place before 1 o’clock; other persons appeared at the time and place where the property was sold, just after the property was sold, and prior to 1 o’clock, who intended to bid on the land up to $1,600. The purchaser, Albert Pickett, who is now plaintiff in error, was one of the defendants in the court below. The present defendants in error were the other defendants in the court below, and they are the parties who objected to the confirmation of the sheriff’s sale, and who moved to set the same aside.
We think the' judgment of the court below is correct. The sale was irregular and evidently unfair, and the property was sold at a grossly inadequate price.
The order of the court below, setting aside the sale, will be affirtned.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by George Gruble against William H. Ryus, on a sheriff’s bond executed by Ryus and others. .The alleged breach of the bond was that on December 26, 1877, Ryus, as sheriff of Wyandotte county, Kansas, levied a void execution upon the personal property of George Gruble and sold the same, the last article or property being sold on January 17, 1878. The defendant, in answer to the plaintiff’s petition, not only set forth a justification, but also pleaded that the plaintiff’s supposed cause of action did not accrue within three years next preceding the commencement of the action. The action was commenced on December 23, 1882.
.Thefirst question to be considered is, whether the plaintiff’s cause of action was barred by any statute of limitations when this action was commenced. The defendant- claims that the only statute of limitations which has any application to this case, is that part of § 18 of .the civil code which reads as follows :
■ “Sec. 18. Civil actions, other than for the recovery .of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not after-wards:- . . . Third. Within two years, ... an action for taking, detaining or injuring personal property.”
The plaintiff claims that the only statute of limitations which can have any possible application to this case is the fifth subdivision of § 18 of the civil code, which reads as follows:
“Fifth. An action upon the official bond or undertaking of an executor, administrator, guardian, sheriff’, or any other officer, . . . can only be brought within five years after the cause of action shall have accrued;”
The following quotation from § 18 of the civil.code includes some of the other limitations provided for by statute, though probably the most of these limitations <jo not apply to the present case. Actions can be brought only within the following periods of time:
“First, within five years: an action upon any agreement, contract or promise in writing; second, within three years: an action upon contract, not in writing, express or implied;. . . . third, within two years: an action for trespass upon real property; an action for taking, detaining or injuring personal property, including actions for the specific recovery of personal property; an 'action for injury to the rights of another, not arising on contract and not hereinafter enumerated.”
The wrongs charged in the plaintiff’s petition as the foundation for his present action, are a trespass upon real property, and the taking, detaining and selling of personal property. Now an action for these wrongs is barred within two years; while the present action was not commenced until nearly five years after these wrongs were committed. In the language of the statute, an action for these wrongs “can only be brought” “within two years,” “and not afterwards.” The plaintiff, however, says that this is an action upon a sheriff’s bond, and that an action on a sheriff’s bond is not barred until five years have elapsed. This is generally true; but the language of the statute cited by the plaintiff undoubtedly means, when construed along with the other statutes and when all the statutes upon the subject of limitations are considered together, that all actions on a sheriff’s bond shall be barred within five years, though some of such actions may be barred within a shorter period of time; and all statutes in pari materia must be considered together in construing any part of such statutes. The language of the statute cited by the plaintiff is not that a cause of action on a sheriff’s bond shall not be barred until five years have elapsed; but the language of the statute is, that the action “can only be brought within five years after the cause of action shall have accrued.”
Under the facts of this case, the plaintiff had an action against the defendant for a trespass upon real property, which action was barred within two years. He also had an action for the taking and conversion of the personal property, which action was also barred within two years; and if the defendant, when he sold the personal property, received money therefor, then the plaintiff had an action against the defendant for money had and received, (waiving the torts and waiving the other actions,) which action was barred within three years. But the plaintiff had no cause of action against the defendant (aside from the formal cause of action on the sheriff’s bond) which would withstand the operation of all the various statutes of limitations for a period of time greater than three years.
As before stated, the wrongs committed by the defendant are the real and substantial foundation for the plaintiff’s cause of action, and the sheriff’s bond is virtually only a collateral security for the enforcement of such cause of action. The bond does not give the cause of action; the wrongs or delicts do; and the bond simply furnishes security to indemnify the persons who suffer by reason of such wrongs or delicts; and while the statute cited by plaintiff operates to bar every action brought upon the bond to enforce a cause of action which accrued more than five years prior to the commencement of the action, yet such statute does not operate to suspend the operation of the other statutes of limitations, or to continue in force or revive a cause of action which had already been barred by some one of the other statutes of limitations.’ Whenever a cause of action is barred by any statute of limitations, the right to maintain an action therefor upon a bond which simply operates as a security for the same thing, must necessarily cease to exist. When the principal debt or cause of action fails, the security must also fail; and, as we have stated before, a sheriff’s bond is simply a security, collateral to the main cause of action. Ample authority for all these propositions will be found in the following adjudicated cases: The State v. Conway, 18 Ohio, 235, 237, et seq.; Ohio v. Blake, 2 Ohio St., 147; The State v. Newman, id. 567; Mount v. Lakeman, 21 id. 643; The State v. Kelly, 32 id. 430, 431; Dawes v. Shed, 15 Mass. 6.
The judgment of the court below will be reversed, and the cause remanded.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by George W. Lane against the Kansas City, Fort Scott & Gulf railroad company, to recover damages for negligently killing two of the plaintiff’s cows at a public crossing, and appropriating the hides to its own use. The answer was a general denial. Before the trial, the defendant offered to confess judgment for the value of the hides, $8.50, and the offer was declined. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff arid against the defendant for the admitted value of the hides. The plaintiff then filed a motion for a new trial, setting forth various grounds, which motion was overruled by the court, and judgment was rendered upon the verdict. To reverse this judgment and the order of the court overruling the plaintiff’s motion for a new trial, the plaintiff now prosecutes a petition in error in this court.
The- errors alleged in this court are founded upon the instructions given by the trial court to the jury. The in structions complained of are the sixth, eighth, ninth, tenth, eleventh, twelfth and thirteenth. The sixth instruction was technically erroneous, but probably the error was immaterial. The eighth was probably correct; but the ninth, we think, was materially erroneous. It reads as follows:
“No. 9. Under the pleadings and evidence in this action, the defendant is not liable, unless it was guilty of gross negligence with reference to the acts complained of. And such gross negligence must be proven to exist, and to have been the direct cause of the injury set forth in the plaintiff’s petition in this action. Gross negligence is the want of slight diligence, and in this action there must have been an absence of even slight care on the part of the defendant before plaintiff can recover.”
The plaintiff’s petition, besides stating the facts of his case sufficiently, also alleges that the defendant’s employés in killing the plaintiff’s cows, “ were guilty of gross carelessness and a reckless disregard for the rights of others,” and the evidence shows, among other things, the following: The cows were killed where the defendant’s railroad track crosses a public road. The plaintiff’s servant was driving them along the public road, toward their home, when, just as they entered upon the railroad track, the engine of a passing train struck the cows and killed them almost instantly. There were circumstances which tended to show culpable negligence on the part of both the railroad company and the plaintiff, though possibly neither was guilty of culpable negligence. We think the evidence was such, however, that the questions whether either was guilty of culpable negligence, or not, were questions of fact for the jury, and not questions of law for the court. Then what were the rights of the parties respectively on the railroad track and on the public road where the cows were killed? And what degree of care and diligence was each required to exercise to avoid the injury to the plaintiff’s cows? Each undoubtedly had a right to pass over the ground where the plaintiff’s cows were killed, and neither was a trespasser there. The plaintiff undoubtedly had a right to have his cows driven along the public highway, and the rail- r.oad company also had a right to opérate its railroad across the public highway, their rights being equal in this respect, and neither having a paramount right over the other.
From-this we think it follows that each was bound to exercise ordinary care and diligence toward the other, and each was bound to exercise ordinary care and diligence for the protection of his or its own rights and property. The want of such care and diligence would be ordinary negligence, and, as we think, culpable negligence; while the exercise of that degree of care and diligence would not and could not in this case, as we think, constitute culpable negligence. The foregoing instruction, however, says in effect that the railroad company was not required to exercise ordinary care and diligence, but was required to exercise only slight care and diligence, and is liable only for gross negligence. In this we think the instruction is erroneous, and this notwithstanding the fact that the plaintiff alleged in his petition that the defendant’s employés, in killing the cows, “ were guilty of gross carelessness and a reckless disregard for the rights of others.” The use of the word “gross” was wholly unnecessary.
It may be that in fact the plaintiff is not entitled to recover in this case, for it may be that in fact the railroad company exercised ordinary care and diligence and was not guilty of even-ordinary negligence; or it may be that in fact the plaintiff did not exercise ordinary care and diligence and was guilty of ordinary negligence; but as the case was not submitted to the juiy upon the theory that the railroad company was required to exercise ordinary care and diligence, or that it was responsible for ordinary negligence, we cannot tell what the opinion of the jury was upon these subjects.
For the error committed by the court below, in giving said instruction, the judgment of the court below must be reversed, and the cause remanded for a new trial.
We hardly think it is necessary to comment upon the other instructions complained of.
Judgment reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The note sued on, which was non-negotiable, was executed by John McCreary, one of the plaintiffs in error, to the firm of Holland, Frear & Wilson, for certain territory covered by the Frear stone patent and the right to make, use and sell therein material manufactured under the patent. The defenses relied upon to defeat the recovery upon the note were, fraud and deceit upon the part of the payees in inducing the contract concerning which the note was given, and therefore failure of consideration. The note was executed May 7, 1870, for $700, bearing interest at 10 per cent, per annum from date, and payable on or before January 7, 1871. It was established upon the trial that, in 1871, Holland, Frear & Wilson sold and transferred, by indorsement, the note to Garland, Holmes & Co.; that not long after, the latter firm sold the note to John R. Parsons; that he died July 2, 1879; that the defendant in error, Caroline M. Parsons, was his duly-appointed executrix; that on April 25, •1871, a payment was made upon the note by McCreary, of $200; that on May 10, 1876, another payment of $200 was made by him upon the note; that on July 6, 1874, he wrote to Garland, Holmes & Co., in answer to a letter that they had about decided to foreclose the mortgage, (given to secure the note,) among 'other, things, as follows: “ It would be a very serious matter to me if you would sue for a foreclosure, and I hope you will not at present, for I think I can assure you of my ability and willingness to pay just so soon as I can collect or make sale of some property. Times are very hard, but I hope they may be better. So soon as I can get anything from the east, or otherwise, I shall remit;” that this letter came into the hands of John R. Parsons; that he wrote to McCreary concerning the note on December 16, 1874; that in answer, McCreary replied in writing: “I will pay part sometime this spring. Our farming interests have failed so for the last two years that the country is badly crippled. We are hoping that times may get better. I have claims that if I could collect, would enable me to pay you; but they are out of reach now, but think they can be had before a great while. In the meantime I shall assure you of my best efforts, and would ask that you make a statement of the way you hold the note, and what you can do for me in the way of time;” that after the death of John R. Parsons, and on October 30, 1879, he wrote to Walter M. Howland, of Chicago, 111., the attorney of Caroline M. Parsons, executrix: “Yours of 20th has been received. I have been absent since its arrival until this morning; and now, as to the claim of which you write, without looking up the amount, I suppose it is all right. The property securing the same is well worth three times the amount. I have been trying to sell, in .order to settle the matter. ... I am very anxious to get a settlement of the claim, and will still make greater efforts than I have yet done. Hoping that you will allow me such clemency as you can, I will pledge to make all the efforts I can to meet it at as early a day as possible;” that on May 27, 1882, he wrote further to Walter M. How-land, as follows: “Yours with reference to the Parsons estate was duly received, and I have been looking about for means to settle it. It has now got to be so large that I hardly know how to do with it. Since 1870 I have not been successful in business. I am getting old, and my family are all girls, and I have to hire all my help, and am not able to gain anything, but am trying to get my obligations all settled. And now I am going to ask this of Mrs. Parsons, and I feel that she will do it; and that is, give me some reduction on the amount of the claim. I know that my failure to realize from the investment is no one else’s business but my own, but the thing has been very unfortunate for me. I have been thinking that each year I could sell or do something that would enable me to get out, but have not as yet, and would ask that this thing be presented to Mrs. P. and we will make arrangements to meet the terms as nearly as we can. There have been two payments of $200 each, but still the amount is so large it will about ruin us to meet it. Please do this, and let me know soon what the terms are;” that on June 6,, 1882, he wrote to the executrix: “As to the matter of paying the claim I owe you, I am ready to do all I can, and have made arrangements for it. I can only raise $1,000 on the property, and will pay that at once, (that is, so soon as the legal arrangements can be executed.) But there will be-a balance for which I would ask some generous proposition-from you, and will be glad to hear from you at once.”
In seeking to prove his defense, McCreary, upon the trial,, sought to introduce the representations made to him by the members of the firm of Holland, Frear & Wilson regarding-the novelty, utility and value of the Frear stone patent, and the material manufactured under the patent; that the patent: right and the material of the patent were worthless, and wanting in utility, novelty, and value; also that the material-manufactured under the patent was unsafe and dangerous.. It was not shown, or attempted' to be shown, that after the-writing of the various letters by McCreary, which were read in evidence, any new or additional information had reached him in regard to the novelty, utility and value of the patent, right, or of the materials manufactured thereunder. The-court refused the evidence offered, and instructed the jury that the only matter for them to determine was the amount, of interest due upon the promissory note, and to bring a. verdict for the plaintiff for the amount found due, including; principal and interest. In all of these rulings no material-error was committed.
This action was brought about four months after the letter of June 6, 1882, was written. Up to that time McCreary had never claimed or intimated that any fraud or deceit had* been practiced upon him concerning the sale of the patent-right for which the note was given, nor had he ever attempted in any manner to disaffirm the contract. For over twelve-years after he executed the note, he had not only made no objection to the patent right purchased by him or to the material manufactured thereunder, but on the other hand, after having had full opportunity of judging of the character of the patent right and of the value of the privilege which formed the subject-matter of his dealings with Holland, Frear & Wilson, he expressly ratified the contract several times by promising to pay the note. If, after he had full knowledge of the misrepresentations — if any such were made to him by Holland, Frear & Wilson — he continued to recognize his liability upon the note and promised to pay after he had acquired such knowledge, it is but fair and just that he should be estopped from making the defense which he sought to establish upon the evidence offered. It cannot be said that the contract which he entered into with Holland, Frear & Wilson was void on the ground of public policy, or against any statute. Conceding all that McCreary claims, the contract was merely voidable on account of fraudulent representations. If afterward, being fully informed of the merits of the patent and the material authorized tó be manufactured thereunder, and of all the objections thereto, with his eyes open,.he voluntarily confirmed, the contract, he has no right to complain now. (Fitzpatrick v. Flannigan, 106 U. S. 648; Negley v. Lindsay, 67 Pa. St. 217; Davis v. Gray, 17 Ohio St. 330, and cases there cited.)
It appears that the letter of July 6, 1874, although written to Garland, Holmes & Co., must have been turned over to John R. Parsons, as it was subsequently found among his effects; and he appears to have written to McCreary on the 16th of December, 1874, concerning the note. Parsons had the right to rely upon the promises of McCreary, which were continuously made to him up to his death, on July 2, 1879; and relying upon such promises, he had the right to suppose the note he had purchased was valid in all yespeets, and not tainted with fraud or deceit.
The suggestion that the plaintiff below could not avail himself of the plea of estoppel because the facts constituting such plea were not set up in his reply, is without force, as it was alleged in the petition that on the 30th day- of October, 1879, the 27th day of May, 1882, and the 6th day of June, 1882, McCreary, in writing signed by him, acknowledged the existence of his liability on the note; also that at clivers other' times since the 10th day of May, 1876, in writing signed by him, he acknowledged the existence of his liability; also at divers times within five years last past, in writing signed by him, he promised to pay the same; and his letter, of date June 6, 1882, was copied in full in the petition. Again, under the petition all of the letters were admitted without objection or exception.
The ground of estoppel was so clearly established, and so conclusive, it was useless to send the case to the jury for anything but a computation of the amount due on the note.
With these conclusions, it is unnecessary to refer to the other questions submitted to us. The judgment of the district court will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action commenced by plaintiffs in error, plaintiffs below, on March 10, 1883, before a justice of the peace, in McPherson county, to recover on two promissory notes executed by defendants. The case was tried before the justice, and from the judgment they appealed to the district court. At the April term, 1883, of that court, the case was tried before a jury; verdict and judgment were in favor of the defendants for $161 and costs. Of this judgment the plaintiffs in error complain.
The facts are that on June 9, 1880, the defendants purchased of plaintiffs through Puterbaugh Brothers, their agents at Newton, Kansas, a machine known as the Weybrich header. The contract entered into at this time as testified to by Harris, one of the defendants, was in substance this: Defendants were to take the machine out and set it up; if it didn’t work right they were to notify plaintiffs, and they (plaintiffs) were to go out and fix it up, and to pay all the expense of fixing it; and if they failed to make it work, defendants were to return it to the plaintiffs’ agent at Newton, Kansas; and plaintiffs were either to give them a new machine, or give up the notes; and as a part of this contract, plaintiffs warranted the machine to be made of good material and to do good work. This being a credit sale, defendants gave in consideration therefor their three promissory notes, all bearing date June 9, 1880, as follows: The first was for $87, due November 1, 1880; the second was for $87, due November 1,1881; the third was for $86, due November 1, 1882. The first note was paid on or about maturity, and this action was on the last two notes. The defense was a breach of this warranty; that the machine which the purchasers received was not of the quality or as good as represented by the agent of the vendors.
It is a general proposition, that on a sale of a personal chattel with a warranty, in case the chattel turns out to be not of the kind or quality represented, the purchaser ,may have one of two remedies: he may rescind the contract and return the property. The effect of such action is to place the parties in the same condition in which they were before the purchase; and whatever has been paid or delivered by either is to be returned, and it or its value may be recovered in an action tberefor. This is one remedy. The other is: that the purchaser may affirm the contract, retain the property, and recover damages from the vendor for the breach of his warranty. These are the two and the only two remedies that the purchaser has under the circumstances. He may not set aside the express contract and have the courts create a new and implied one. He must either rest on the contract as made, or rescind and repudiate it. In the case at bar, as the purchasers retained the header and used it, not only during the seasons of 1880, but also during those of 1881 and 1882, they clearly abandoned the remedy by rescission of contract. A purchaser cannot retain and use property, and at the same time say he repudiates and rescinds the contract to purchase. The only remedy, therefore, the purchasers had in this case was to recover damages of the vendors, by reason of the breach of the warranty. This implies an affirmation of the contract as it was, and a prima faoie liability for the contract price. The trial court in its instruction in two or three places ignored this rule, and charged the jury repeatedly that they were to credit the vendors with the actual • value instead of the contract price, and then charge them for the damages resulting from the breach of the warranty. As there was testimony tending to show that the machine was of little value, the jury were obviously misled by this instruction. Obviously they gave the vendors, the plaintiffs, credit only for what they thought the machine was worth, instead of the price which the purchasers agreed to pay.
But as heretofore stated, if the contract is held good, if the plaintiffs are liable under such contract for a breach of the warranty, the contract is also good against the defendants, and they are liable for the contract price. It makes a material difference whether in the first instance the jury charged the defendants with $260, the cost price of the machine, or simply charged them with what they thought under the testimony, the machine was worth. Only for this and a subsequent error in the ruling of the court, can we understand how it is that the jury returned such a verdict in favor of the defendants. That error — or possible error, we should say — is this; we are not clear as to the exact import of the testimony of one of the defendants, and therefore we say a possible error. Generally speaking, where personal property is sold which is not of the kind represented and warranted, the measure of damages is the difference between the contract price and the value of the article delivered. It is true that the measure of damages may sometimes be enhanced by proof that the property was purchased for a specific purpose, and that the sale was made by the vendor with the knowledge that it was intended for such specific purpose. In that case special damages may sometimes be recovered; but the general rule is, that before such special damages can be recovered it must be understood that the sale was made with respect to the specific purpose. If the vendor knows nothing of the contracts made by vendee, or the specific purpose for which the property is intended, and knows simply that the purchaser is seeking for an article of the kind and quality named, his liability is limited to the difference between the value of the article actually delivered and that of the article which the parties intended to purchase and contracted for. We state this as a general proposition, and in respect to the future trial of this case. We do not mean to affirm that the court erred, for we do not understand exactly what the parties intended by their testimony.
A third proposition, and the only one which we deem worthy of further notice, is in reference to the ruling of the court as to the admission of certain evidence. This evidence -is as to the statements of certain parties, evidence which by ordinary rules it is conceded would be incompetent as mere hearsay. The trial court admitted it, because, as it said, it tended to prove good faith. We think the reason given is insufficient, and that as a general rule no testimony which upon the issues joined is clearly hearsay, can be received upon the mere supposition that it tends to prove good faith. In this case the error is material, for conversations with the agent of the plaintiffs, and statements to and by him, are admitted at second hand — not upon the theory that they prove such conversations and statements, but upon the idea that they prove good faith. Yet, naturally and unavoidably the jury regard them as statements of the plaintiff’s agent, in which respect they are clearly inadmissible. We only mention this matter for guide in the future trial of this case. Unquestionably the judgment is wrong. The plaintiffs knew not of the purpose of the defendants in purchasing, knew little or nothing as to the existing contracts of the defendants, and to say that they' must donate the machine, and pay the defendants for the privilege of donating it, is an outrage on substantial justice.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by John Foster against William Turner on a promissory note for $100, and a real-estate mortgage securing such note. The defendant answered, setting forth that the plaintiff was an attorney at law; that the defendant employed him to attend to certain legal business for the defendant; that in consideration for the anticipated services of the plaintiff in such business, the defendant gave the plaintiff $50 in cash and the note and mortgage sued on; that the plaintiff wrongfully, negligently and fraudulently attended to such business, and finally abandoned the same, to the damage of the defendant in the sum of $2,200. The defendant prayed that the note and mortgage be adjudged to be without consideration and null and void, and for an affirmative judgment in favor of the defendant and against the plaintiff for the sum of $2,200 as damages. A trial was had before the court and a jury, which resulted in a verdict in favor of the defendant and against the plaintiff for the sum of $780.75. A motion for a new trial was then made by the plaintiff upon nearly all the statutory grounds, and pending this motion the defendant remitted all the damages awarded to him except those awarded him on account of the payment of said $50, with the interest thereon, amounting, principal and interest, to the sum of $52. The motion for the new trial was then overruled by the court, and judgment was rendered in favor of the defendant and against the plaintiff for $52 and costs. To reverse this judgment the plaintiff now brings the case to this court.
The principal alleged errors are as follows: First, the refusal of the court to submit to the jury for their consideration certain particular questions of fact; second, the giving to the jury certain instructions after the argument of the case had been concluded; third, the giving to the jury certain instructions after the jury had retired to consider of their verdict, and pending their deliberations.
I. We can hardly say that the court below committed any material error in refusing to submit to the jury the particular questions of fact which the plaintiff asked to have submitted, and which the court refused to submit.
The plaintiff requested the court below to submit to the jury the following, among other questions: “4. Did the said plaintiff manage the case honestly and faithfully ? 5. If the above question is answered in the negative, then state particular acts showing the unfaithfulness of the said plaintiff in managing the case.”
The court submitted the first of the above-cited questions, but refused to submit the question numbered 5; and of this the plaintiff complains. At one time, § 286 of the civil code required that the trial court, at the l'equest of either party» should “direct the jury to find a special verdict in writing upon all or any of the issues in the case;” and upon a like request to direct the jury to find a general verdict and special findings, such as is authorized at the present time. (Laws of 1870, ch. 87, § 7.) But in 1874, special verdicts were abolished, (Laws of 1874, ch. 91, § 1,) and the present statute upon the subject was adopted, which reads as follows:
“ In all eases the jury shall render a general verdict, and the court shall in any case, at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.” (Civil Code, § 286.)
Now if the jury were required to answer said question numbered 5, would it not be requiring them to find a special verdict upon one “of the issues in the case” as was required by § 286 of the civil code before it was amended in 1874? And if so, would it not be requiring them to do just what the legislature has said by the act of 1874 need not be done? If the plaintiff has a right to require that this be done, then may he not require that questions be put in the following form: “Is the plaintiff entitled to recover in this action? If the above question be answered in the negative, then state all the particular facts of the case, and all the particular acts of the parties showing or tending to show that the plaintiff is not entitled to recover.” Under § 286 of the civil code, as it read from 1870 up to 1874, the jury themselves were required to prepare in writing and render the special verdict which they might agree upon, without any aid from either of the parties, jüst as a court is now required, under § 290 of the civil code, to prepare and deliver its own special findings, without the aid of either of the parties. But under § 286 of the civil code, as it now reads, and as it has read read since 1874, the jury are not required to do anything except to render a general verdict, and in connection therewith to make findings “ upon such particular questions of fact” as are stated in writing by one or both of the parties, and as requested by such party or parties. In other words, the old law with respect to special verdicts required that the jury should make their own statements of facts, but the present law with reference to special findings by the jury requires that the parties shall make the statements of the facts; and all that the jury are required to do is merely to give answers with reference to such facts as they are stated by the parties.
Now a court might not err materially in submitting gen eral questions of fact to the jury, leaving the jury to give particular answers thereto, and leaving the jury to state the particular facts themselves; but what we wish to say is, that the court is not bound to do so; and particularly it is not bound to submit to the jury such very general questions of fact as will require the jury themselves to state new facts not particularly mentioned in such general questions. The question as to how general or how particular the questions of fact to be submitted to the jury in any particular case should be, rests very largely in the sound judicial discretion of the trial court; but of course such questions of fact should be sufficiently particular so that they might fairly be denominated “particular questions of fact” within the meaning of said § 286 of the civil code. We think it is also true that the jury, in giving answers to “particular questions of fact,” may sometimes be required to state facts themselves, to the extent of giving amounts, dates, weights, sizes, speed or velocity, time, distances, etc., and of designating between alternative facts, and perhaps sometimes of giving other facts which do not now occur to us; but all such answers have relation to the facts already mentioned in the “particular questions of fact” stated by the parties, and not to new facts to be stated by the jury themselves in answer to some very general question of fact. Now said question 5 hardly comes within the provisions of the statute. It does not state the facts and ask that the jury shall find with reference to them, but it asks that the jury themselves shall state the facts showing why they have found in a particular way upon a certain other very general question of fact propounded by the plaintiff. Now we do not think that the trial court is bound to submit to the jury any such questions, and therefore in this particular we do not think that the trial court erred. It is possible, however, that the trial court may have erred in refusing to submit to the jury some of the questions which the plaintiff requested the court to submit, as some of them were not as objectionable as the one we have specifically referred to. (Bent v. Philbrick, 16 Kas. 190; Johnson v. Husband, 22 id. 277, 282; A. T. & S. F. Rld. Co. v. Plunkett, 25 id. 189, 198; City of Wyandotte v. Gibson, 25 id. 236; A. T. & S. F. Rld. Co. v. Ferry, 28 id. 686.) But if the court did err in this particular, we would still think that the subsequent proceedings had in the case rendered these errors immaterial.
II. The plaintiff also claims that the court below erred in giving instructions to the jury after the argument of the case had been concluded. Now prior to 1881, §275 of the civil code provided that the court should instruct the jury after the argument of the case had been concluded; but in 1881 this section of the code was so amended that the court was thereafter required to give its instructions to the jury prior to the commencement of the argument; and this was the only amendment made by the legislature to the section at that time. Hence the legislature evidently intended that this new pro-vision should be obeyed. Of course the court, for good reasons, or with the consent of the parties, may adopt some different order for the progress of the trial. Thus, where counsel in the argument of the case discuss some new point of law not previously presented by the trial court to the jury, or where counsel in the argument make some erroneous statement with regard to the facts, the evidence, or the law of. the case, the court may in some cases be justified in instructing the jury with reference to these new matters after the argument has been concluded. (Kellogg v. Lewis, 28 Kas. 536.) And there may be other eases where-the trial court would be justified in giving new instructions to the jury after the argument has been concluded. But ordinarily the court should give all its instructions prior to the commencement of the argument. And ordinarily, if counsel should go astray during the argument, the court should stop them at the time, and not permit them to proceed in the objectionable manner. In the present case, a part of the instructions given to the jury after the argument was concluded, and before the jury retired to consider of their verdict, was probably not erroneous, as it was in answer to a comment made by counsel for the plaintiff upon certain questions of law which had not at that time been presented to the jury by the court, and which neither such party nor his counsel had asked the court to present to the jury. But the court went' beyond what this comment of counsel would authorize. The court at that time, and probably without sufficient reasons, instructed the jury, among other things, as follows:
“There is one finding I will mention now, the very last one. This is' under the head of what items you will allow Mr. Turner if you find fraud on the part of Mr. Poster. I have inserted the items one, two and three, which you may find (as I have told you in my instructions). I will say on this point, that you may not be misled, you may allow all of those items or none of them, as you see fit, if you find the fraud proven.”
This is a general instruction that should have been given, if given at all, before the argument was commenced.
III. We think the court also committed error in giving instructions after the jury had retired to consider of their verdict and pending their deliberations. -It gave full instructions with reference to the whole question of damages upon all the various items claimed by the defendant, and if gave these instructions in a way that might have led the jury to believe that they should certainly find damages of some kind in favor of the defendant and against the plaintiff. It did not even intimate that if the plaintiff faithfully performed all his duties with regard to the legal business intrusted to his care by the defendant that no damages of any kind should be allowed, and that the plaintiff should recover the full amount of his note and mortgage, but simply seemed to take it for granted that the jury must find damages of some kind in favor of the defendant and against the plaintiff. In giving these instructions, the court used the following, among other language:
“There are two kinds of damages that I have mentioned, and which the defendant William Turner is entitled to recover for on his answer: they are what we call direct or compensatory damages, and exemplary damages.”
The court then instructed the jury largely with reference to damages for the alleged fraud of the plaintiff, and then said:
“ If you find no fraud, only find a lack of skill, care and diligence on Foster’s part, then a different rule will apply. You will then allow Turner only such as will make him whole, and that would be in this case, if the testimony shows that he employed other attorneys to do that which Mr. Foster by his lack of care, skill and diligence has failed or omitted to do, such reasonable amount he has so expended. You would in this event allow Mr. Foster his agreed or reasonable fee, and deduct the amount so expended from it.
“But again, this answer says he abandoned this suit, and refused to perform his duty. Under that head damages will be exactly the same as under the lack of care, skill and diligence. But should you find this fact, that Mr. Foster has abandoned this suit and his duties to Mr. Turner by reason of an employment by Mrs. Young, and that that employment is antagonistical to the rights of and his duties to Mr. Turner, then that would be such a flagrant breach of his duties as would forfeit all his rights to compensation. Mark you, if he so abandoned the employment of Mr. Turner — abandoned this law suit, and was employed by Mrs. Young, and attended to her case in matters which were antagonistical to Mr. Turner’s interests in the case of Neisley v. Turner, that would be such a flagrant breach of duty to Mr. Turner that he ought not to recover any compensation whatever for what he might have done for Mr. Turner before such abandonment.
“Now that is all the ways that I can think of that the question of damages can arise in your minds under the evidence in this case.
“You can take the question of fraud first — that covers all the rest; if you don’t find that, then come down to these others, and determine what you shall find under them.”
Of course we think there are cases where a jury after retiring may ask for further explanation or information, and where the court may rightfully give such explanation or information; but we do not think that the court would be justified in any case in giving another full, complete and different charge to the jury upon nearly all, or even some, of the material questions involved in the issues of the case. Of course the court did not intend to give anything new in its instructions, or to state them differently from what it had previously done in its general charge; but still we think the subsequent instructions were more unfavorable to the plaintiff than the general charge was. They were given in a way, as we think, to mislead the jury, and to leave the jury to infer that they must find something in favor of the defendant and against the plaintiff.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On November 19,1881, the plaintiff below was the owner of the northeast quarter of section 32, township 5, range 19, in Atchison county; and on that day, with his wife executed to the defendant or its successors in interest, a deed for a,strip of land 100 feet in width across the said premises, being 50 feet on each side of the central line of the defendant’s railroad, as then located but not constructed. The deed conveyed to the railroad company a fee simple to this strip óf land. The located line entered the land on the east line of the south 80 acres and left the land on the west line of the north 80 acres and passed some distance north of the central part of the quarter-section. On December 31, 1881, the plaintiff and his wife executed two other deeds: one to J. E. House, as trustee, for the undivided half of the east half of the southeast quarter of said northeast quarter of section 32, being about 20 acres, which it appears was afterward laid out as a town site. The other deed was for a strip of ground 250 feet in width, extending from the east line of said quarter-section westwardly 1,000 feet, being 100 feet on the north side and 150 feet on the south side of the central line of the railroad. This strip included the first granted' strip, and the deed conveyed to the company a fee-simple title. This second strip was intended to be conveyed and used for depot and station purposes. It extends some distance beyond and westwardly of the twenty-acre strip, and into the cultivated land of plaintiff below.
At the time of the execution of the first deed, said quarter-section of land was inclosed with a fence, and part of it was improved and cultivated. After the sale of the twenty-acre tract, the east fence and the south fence along the twenty-acre tract were moved back so as to inclose the 140 acres still remaining the property of the plaintiff below, excepting the strips included therein. Wheat and corn were grown upon the remaining land owned by plaintiff below during the year 1882. In the spring of that year the company constructed a railroad on said first described strip of land across the quarter-section, and made a cattle-guard on the west line of the quarter-section, but did not make any other cattle-guard on the quarter-section of land until after the completion of the railroad, nor until July, 1882, when it built a cattle-guard some distance west of the end of the said 250-feet strip. No cattle-guard was ever made on the line between the twenty-acre tract and the remaining tract, or on the east line of the quarter-section. The making of a cattle-guard at the line between the twenty-acre tract and the remaining tract would have cut the depot grounds into two parts. A side-track extended through the twenty-acre tract and for some distance west thereof, to about the limit of the depot grounds. The plaintiff below was damaged by the failure of the company to construct proper cattle-guards where its railroad entered his land on the east side. In July, 1882, he constructed a fence on each side of the right-of-way, to protect his crops from stock. The whole use of the 250-feet strip, called depot grounds, where it entered the improved land, was used only for the running of trains and as a place, to deposit earth taken from the grade, and to go to the section house. A general verdict was returned against the company for $300, made up of the following elements or sources of damages: Grass $7, fence $28, wheat $25, corn $200, labor $40.
The trial court charged the jury, among other things, that—
“A statute of this state provides, when any railroad runs through any improved or fenced land, the railroad company shall make proper cattle-guards on the railroad when it enters and when it leaves such improved or fenced land; that it was not the duty of the railway company to make a cattle-guard across its depot grounds; but notwithstanding the company obtained a fee-simple title to the strip 100 feet in width, yet it was its duty to make and maintain a cattle-guard, located at or near the west end of the depot grounds, as near to it as the lay of the ground, and the necessary use of the depot grounds, would admit of. If the cattle-guard actually put in was placed further west than it should have been, and if thereby it became necessary for the plaintiff to make a fence from his east line to the cattle-guard, in order to protect his crops, then he would be entitled to recover as damages the value of the fence from the cattle-guard as located, to the place where it should have been made, but not to the line of his land.”
The court further charged the jury that —
“The intention of the statute is to protect the owners and possessors of improved or fenced land, over which a railroad is constructed, against the depredations of domestic animals; and the term, ‘ proper cattle-guards/ means such cattle-guards as are reasonably sufficient to prevent the ingress or egress of such animals into or out of the premises.”
All of this was excepted to.
On the part of the company, it is contended that under the statute a railroad company is not required to construct cattle-guards “on its railroad,” where it owns a fee-simple title to the land on which its track is built. In support of this, the argument is that it was not the intention of the legislature to require a railroad company to do a useless thing; that the construction of a cattle-guard “on its railroad” would in no manner benefit the owner of the adjoining land without the construction of wing fences; that there is no law in this state making it the duty of a railroad company to construct such fences; that the land-owner, without the consent of the railroad company, would have no right to construct such fences, for in doing so, he would be a trespasser upon the land of the company.
It is further contended that the plaintiff below, by conveying a strip of land one hundred feet wide through his farm, thereby divided his farm; that he reserved and had after such conveyance no right to cross this strip of ground; that there was no public road over it; that there was no reservation in his deed to the company of a private road-way or crossing; that the company was under no obligation to fence its track; that as between the plaintiff and the company, there was no •greater obligation on the part of the company to fence, than exists between adjoining land-owners to build partition fences; that the company could use its own land in any manner it saw proper, and the adjoining land-owner had no right to demand that the company should construct a cattle-guard on its property for his use or protection.
Counsel for the company fail to give sufficient force to the statute, §1, ch. 81, Laws of 1869. This statute applies, whether a railroad company acquires an easement for its right-of-way by condemnation proceedings, or holds its right-of-way by absolute title. Under condemnation proceedings, a railroad company acquires the exclusive use of the land condemned, so far as is necessary for railroad purposes, and the ■original land-owner has no right to go upon the land or construct fences thereon, if his action interferes with the use of the property condemned for railroad purposes. Therefore, in many cases the right of the owner practically amounts to nothing where the land is condemned for a railroad company, because the purposes of the railroad company may require the use of the land taken to such a degree as to forbid the owner from any benefit whatever. (Railway Co. v. Allen, 22 Kas. 285.)
We perceive no error .in the charge of the court, because it was the duty of the company to make and maintain a cattle-guard at or near the west end of its depot grounds, and as near to it as the lay of the ground and the necessary use thereof would admit of. (Railroad Co. v. Newbrander, Ohio Supreme Court, April 24, 1883; 11 Am. & Eng. Rld. Cases, 480; Mundhenk v. Railroad Co., Iowa Supreme Court, June, 1882; 11 Am. & Eng. Rld. Cases, 463.)
Further than this, the term “cattle-guards” in the sense in which it is employed in the statute, means such an appliance as will prevent animals from going on the land adjoining the right-of-way. Having in view the purpose of the statute, it will not do to limit the construction of cattle-guards to the track or road-bed merely; therefore the statute is not complied with by the construction of a pit under the track or road-bed. A proper cattle-guard in this case imports a guard or protection extending the whole width of the right-of-way. (See Heskett v. Railway Co., Iowa Supreme Court, September 19, 1883, 6 N. W. Rep. 525.)
As the Missouri Pacific railway company of Kansas was consolidated with the Missouri Pacific railway company on January 25, 1882, and as the answer alleged the latter company owned, constructed and operated the railroad from and after January 25, 1882, and as the reply admitted all this, the court committed no error in permitting the petition to be amended so as to charge the Missouri Pacific railway company with the failure to construct the cattle-guards required by the statute. The damages alleged occurred long after January 25,1882, and after the consolidation; therefore the Missouri Pacific railway company was the proper party defendant.
The other alleged errors are neither material nor important, and need no special comment.
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by William Eray against the Union Pacific railway company, for the recovery of damages for the alleged negligence of the defendant in failing to provide and maintain a safe and sufficient derrick, with sufficient ropes and appliances, for the safe handling of stone in building a culvert, whereby the plaintiff was injured. The case was tried before the court and a jury, and judgment was rendered in favor of the plaintiff and against the defendant for $2,000 damages, and costs of suit. The defendant now appeals to this court.
It appears that on November 17, 1882, the plaintiff was in the employment of the defendant, aiding and assisting in building a culvert for the defendant on its line of railroad, in Wyandotte county, Kansas, at a point known as “ Deep-hollow bridge,” near a station on the line of the road called “Tiblow.” The employment of the plaintiff was in the management and operation of a derrick provided by the defendant for moving heavy stones from freight cars to the places required for the construction of the culvert. While the plaintiff was assisting in the management of said derrick, in moving a large stone, a rope attached to a pulley connected with the derrick broke, whereby the cog wheels, pulleys and other parts of the derrick were broken, and portions thereof were thrown against the plaintiff, striking him on his head and face and elsewhere, whereby injuries were inflicted upon him from which he suffered great loss and pain. It is admitted that all that happened was the result of the breaking of the rope, and that the rope was broken because of negligence’on the part of some person in not keeping it properly wet with water so as to prevent its burning from friction. The only question between the parties is, Who was the negligent party in not keeping the rope properly wet? Was it the plaintiff either alone or in conjunction with the other employés of the defendant, or was it the other employés alone? The plaintiff claims that it was no part of his duty to attend to the rope or to keep it wet, and that the negligence in not keeping it wet was solely the negligence of the other employés; while the defendant claims that it was the duty of the plaintiff, along with one or two other of its employés, to jointly and severally keep a careful watch of the rope and to keep it thoroughly wet so that it would not burn or break from friction. The evidence with respect to whose duty it was to watch the rope and to keep it wet, at the exact time when the accident occurred, is to some extent unsatisfactory and conflicting; and from this unsatisfactory condition of the evidence it is at least doubtful whether exact justice was done by the verdict and judgment rendered in the case.
Many of the instructions of the court to the jury are hardly applicable to the facts of this case; and many of the special findings of the jury are unfair, evasive and unsatisfactory. It may be that the- general verdict of the jury is right; but the manner in which the jury answered many of the special questions submitted to them is certainly sufficient to raise great doubts as to the correctness even of their general verdict.
At the present we shall pass over the instructions of the court and shall first consider the special findings of the jury, remarking, however, that we think it is probable that some of the irrelevant instructions are so misleading under the facts of this case that the judgment ought to be reversed upon the instructions alone. We would also state, before giving the special findings of the jury, that Samuel Mallison was the general superintendent of the work in building the culvert; that William Ulrich was the overseer or foreman of the work, under Mallison; and that John Nelson and the plaintiff were laborers handling the derrick, and that they were the only persons present upon the platform and near the derrick when the accident occurred.
The special findings, with our comments thereon, are as follows:
“1. Did Mallison, for the defendant, have the control and direction of the work, the way and manner of its performance, including the derrick and its apparatus, where the plaintiff was injured? Ans.: Yes, when present; when absent that duty was delegated to the foreman, Ulrich.”
This finding we think is correct.
“2. Was the plaintiff instructed by Mallison, acting under the defendant, that there was danger of the brake-rope burning in letting the rock down into place if the rope was not kept wet? A. Any instruction then given was not given particularly to the plaintiff, but generally, to all concerned.”
Mallison did give special instructions to the plaintiff, and also general instructions to all concerned.
“3. Did not Samuel Mallison, at or about the commencement of the work for the defendant, direct the plaintiff to get a bucket of water, with a cup or can, to be used in wetting the brake-rope? A. He ordered plaintiff to bring up a bucket of water and a cup, and then he (Mallison) poured the water on himself.”
This finding is literally true, but Mallison poured the water on the brake-rope himself principally for the purpose of showing the plaintiff and the other employés how it should be done.
“4. Did not Samuel Mallison direct the plaintiff to beep a bucket well supplied with water at all times, to wet the brake-rope while lowering rock, and to see to it himself that the rope where it wound around the shaft should be kept wet while rock was being lowered ? A. The preponderance of evidence shows that he did not so direct him.”
This finding, we think, is literally untrue. The question should have been answered by a simple affirmative.
“ 5. If the brake-rope had been kept wet where it was wound around the shaft and the friction occurred, would it have burned and broken? A. It would not have burnt, but might have broken.”
The answer that the rope might have broken is mere conjecture, for the fact is that the rope burned, and it probably would not have broken if it had not burned.
“6. Did the plaintiff observe and obey the directions of Samuel Mallison in respect to keeping the rope wet? A. The plaintiff obeyed all orders that he received in reference to the water until such directions were annulled by other directions from the foreman, Ulrich.”
The answer in effect that Ulrich annulled the directions of Mallison, is not responsive to the question, nor is it true. Ulrich gave to the plaintiff another duty to perform — that of giving signals; but from the preponderance of the evidence, the plaintiff might have attended to both duties — that of giving signals, and also that of keeping the rope wet. Upon this subject, however, the evidence is conflicting.
“7. Was not the plaintiff repeatedly warned by Samuel Mallison and William Ulrich, the foreman upon the works, to be careful to attend and see that the brake-rope was kept wet while rock was being lowered by the derrick to work below? A. The warnings of Mallison and Ulrich were not particularly to the plaintiffj but general to all concerned.” Some of the warnings were given particularly to the plaintiff, and others were given generally to all concerned.
“8. Were not the accident to the plaintiff and the injury sustained by him caused by the burning of the brake-rope while lowering the rock? A. They were caused by the burning and wear of the rope.”
This finding we think is correct.
“ 9. Would the brake-rope have burned if it had been kept wet as directed by Mallison? A. It would not have burnt.” This finding we also think is correct.
“10. Did any one, for the defendant, at any time relieve the plaintiff from observing the directions given by Mallison in respect to keeping the rope wet? If so, name the person and state what was said. A. The evidence shows that the 'directions of Mallison in reference to the water were not special to plaintiff Plaintiff was relieved of any duty devolving on him, in consequence of such directions, when Owens was sent up to pour water on the shaft and the plaintiff assigned the duty of giving signals, by Ulrich.”
This finding is evasive and untrue. Some of the directions of Mallison were special to the plaintiff, and some of them were general to all concerned; and while Owens at one or more times was directed to pour water on the rope, and .while the plaintiff was directed to give signals, yet the plaintiff was at no time relieved from pouring water on the rope if he could conveniently do so and it was necessary that the same should be done. At the time this accident occurred Owens was not at the derrick or near there, but was down under the bridge mixing mortar, and at that time had nothing to do with the derrick or with wetting the rope.
“11. Was not the plaintiff provided with a bucket for the water which he was to use in wetting the brake-rope and a proper vessel for applying the water to the rope, and was not water flowing near by which the plaintiff could get to wet the rope? A. A bucket, can and water were there, but it was not the plaintiff’s duty to use them.”
The plaintiff was at one time provided with a bucket, etc., for water, and it was at one time his duty to use them. Whether it was his duty to use them at the particular time when the accident occurred, is the doubtful question. If he was not relieved from such duty by having the additional duty imposed upon him of giving signals, then it was still his duty to use the water in wetting the rope at the time the accident occurred.
“12. Was not the brake-rope new and ample for the purpose of controlling the lowering of the rock by the derrick; and was not the only thing needed to make it absolutely safe the keeping it wet as directed by Mallison? A. It was not. Ulrich was informed before the accident that the brake-rope was in a very defective condition.”
Upon this subject the evidence is conflicting; but the finding, or at least the first part of the answer, is probably against the weight of the evidence.
“ 13. Had not the defendant a large quantity of new rope at the work, from which brake-ropes were to be taken as often as the brake-rope should become worn so as to be unsafe? A. Yes.”
This finding is literally true. The foregoing are all the special findings in the case.
We shall now give some of the instructions of the court to the jury, with our comments thereon. They are as follows:
“5. . . . The jury are instructed that in determining the question of negligence as in this case, they should take into consideration the situation and conduct of both parties at the time of the alleged injury as disclosed by the evidence, and if the jury believe from the evidence that the injury complained of was caused by the defendant’s agents, superintendents, overseers, and servants, as charged in the petition, and without any greater want of care and skill on the part of the plaintiff than was reasonably to be expected from a person of ordinary prudence and care in the situation in which he found himself as placed, then the plaintiff is entitled to recover.”
Now the defendant has at all times admitted that “the injury complained of was caused by the defendant’s agents . . . and servants, as charged in the petition.” It has at all times admitted that the injury complained of was caused by the negligence of the plaintiff and Nelson, in not keeping the rope wet; and claims that they were its agents and servants for the particular purpose, among others, of keeping the rope wet.
“7. The jury are instructed that a master employing servants upon any work, particularly a dangerous work, must use due and reasonable diligence that he does not induce them to work under the notion that they are working with proper and safe machinery whilst employing defective and dangerous machinery; and if an employé is so injured on that account, and without any fault of his own, the master is liable in damages.”
There was no question in this case with regard to the dangerous character of the work. All parties knew that it was comparatively safe if the rope was kept wet, but that it was very dangerous if the rope was not kept wet; and the defendant did not “induce” the plaintiff and his associates “to work under the notion that they were working with proper and safe machinery whilst employing defective and dangerous machinery.” All parties knew the condition of the machinery and in what the danger consisted.
“9. Where business is carried on by machinery, as is used in operating a derrick, as appears in the testimony in this case, it is the duty of the employer, whether corporate or not, to keep the machinery in such condition as from the nature of the business and employment the servant or employé has a right to expect it will be kept, and when the employer fails to do so, through the exercise of ordinary care, he or it is liable for the injuries arising from its neglect.”
This, as an abstract proposition, is correct, but as applied to the facts of this case it is misleading and erroneous. Of course the plaintiff had a right to expect that the railroad company, or its servants or agents, would keep the rope in safe condition; but if he and Nelson were the special servants and agents of the railroad company for that purpose, he can hardly expect to recover for injuries resulting from his own negligence in not keeping the rope in safe condition. He was really in a situation that he could have known at all times the condition of the rope.
“10. The jury are instructed that derricks, with their pulleys, ropes and other appliances, used in raising or lowering heavy rocks, are liable to wear out, to break, to become defective and dangerous; and any employer, whether corporate or not, employing such agencies, is charged with notice of this fact, and consequently is bound to exercise a degree of watchfulness over them, commensurate with the nature of the business in which they are employed, and the consequences incident to the neglect. Therefore, if an employer, whether corporate or not, fails to make frequent examinations of its machinery and appliances, or fails to take other measures or precautions necessary to prevent such appliances and machinery from becoming defective and dangerous from natural causes, and if from such defects, which might have been known by the use of ordinary care and diligence, an employé suffers injury without his fault, negligence may be predicated thereon, as such omission would be regarded as negligence.”
Of course a railroad company is required to exercise diligence in keeping its machinery in good order; but where it attempts to do the same through an agent or servant, it is not liable to that agent or servant for injuries resulting from defects in the machinery which that agent or servant could and ought to have remedied.
“11. The jury are instructed that the law will not allow the machinery of the defendant in constant use to be out of repair for want of ordinary care and skill in its management, and it is a question of fact for the jury to find from the evidence whether the defendant might have known by the exercise of ordinary and reasonable care and diligence that the machinery was unsafe and dangerous.”
This instruction is clearly misleading. It is a virtual instruction to the jury to find for the plaintiff, for it wholly ignores the alleged obligation of the plaintiff to keep the rope wet, and virtually says that if the defendant knew or “ might have known by the exercise of ordinary and reasonable care and diligence that the machinery was unsafe and dangerous,” the plaintiff might recover. Now the defendant did know that the machinery would be unsafe and dangerous if the rope was not kept wet, and it was bound through the plaintiff, or some other employé, to keep the rope wet;, but it did not do so. This instruction is erroneous in wholly ignoring the real and material question involved in the case.
“12. The jury are instructed that it is the duty of defendant to keep a sufficient force at hand, and of capacity sufficient to discover obvious defects in its machinery, and apply the remedy. Negligence to keep defendant’s machinery in a reasonably safe condition, if injury or loss occur thereby, the defendant will be liable; and it ought to be so liable, because it is required to exercise reasonable and proper care to see that its machinery is in proper condition, and to guard against defects that may arise from use or other natural causes. From this responsibility defendant cannot be relieved except by showing that the defect was sudden and unforeseen, or that it could not be discovered or remedied by ordinary care or foresight.”
This instruction is about as bad as instruction No. 11. It virtually instructs the jury to find for the plaintiff, for it says that the defendant could not be relieved from responsibility “except by showing that the defect was sudden and unforeseen, or that it could not be discovered or remedied by ordinary care or foresight.” Now the defendant admits that the defect was such as could have been discovered,, foreseen and remedied by ordinary care and foresight; and it claims that it was the duty of the plaintiff, under the instructions from the superintendent and foreman of the work, to discover, foresee and remedy such defect. Indeed, the defendant claims that all parties at all times knew of the danger, and that it was the plaintiff’s duty to remedy the same.
“13. The jury are instructed that if defendant did not appoint a foreman or other person, whose business it was to examine, supply, repair or remedy defective machinery in actual use, it is guilty of negligence in refusing to do something that a reasonable employer would do. If it does appoint a foreman or other person to represent defendant in this regard, and such foreman or other person omits his duty when he has knowledge of defects existing in machinery in use, or fails to ascertain or remedy defects he ought to have known or might have known by the exercise of reasonable and proper care on his part by examining and inspecting the same, his negligence will be the negligence of the defendant.”
Did the court by this instruction mean that the defendant should have appointed some other person than the plaintiff to examine the machinery and keep it in proper condition? The jury may have so understood the court; and if so, the instruction was misleading; for the plaintiff was amply competent to take care of the rope and see that it was wet. Or if the court did not mean to say that the defendant should have appointed some other person than the plaintiff, then did the court mean to say that “his [the plaintiff’s] negligence will be the negligence of the defendant?”
“ 15. Negligence as applied to the facts in this case, is the failure to observe that care and circumspection which ordinarily prudent men observe considering the circumstances surrounding the performance of the given act; in other words, it is a failure to observe that care in view of the consequences that may result from negligence fairly commensurate with the perils or dangers likely to be encountered.”
This instruction is subject to substantially the same criti cism as several of the others. The defendant admitted that the accident was caused by negligence, but claims that the negligence was that of the plaintiff, and not that of the defendant.
The judgment in this case must be reversed. Many of the instructions, as before stated, are irrelevant and inapplicable under the facts of this case; and while they may be correct as abstract propositions of law, or as applied to the facts of some other case, yet under the facts of this case they are misleading and erroneous. And it is a general principle that irrelevant instructions, though correct as abstract propositions of law, if containing matters which may mislead the jury under the facts of the particular case in which they are given, are erroneous. The special findings of the jury show that they were misled, from some cause, in several particulars. From some of the special findings it would seem that the jury believed that if the instructions of the superintendent and foreman to the employés of the company to keep the rope wet were general to all concerned, including the plaintiff, and not special and particular to him, he was not bound to obey such instructions or to give any attention to them. This was certainly erroneous. The plaintiff had no more right to disregard instructions given to him along with others, than though they had been given to him specially. We think the judgment in this case should be reversed because of the manner in which the jury answered the special questions submitted to them. As before stated, some of their answers are untrue, some of them are evasive, and many of them are so unsatisfactory as to lead to the belief that the defendant did not have a fair and impartial trial; and where a jury render a general verdict and make special findings by answering special questions submitted to them, and some of the special findings are not true, and some of the answers given to the special questions are so evasive and unsatisfactory as to lead to the belief that the party against whom the jury rendered their verdict did not have a fair and impartial trial, the verdict and findings should be set aside, and a new trial granted. Judgment reversed.
All the Justices concurring.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the plaintiff against the defendants for the recovery of the southeast quarter of section 35, township 19, range 13, in Coffey county. The following are the facts in the case: On April 26,1869, and for a long time prior thereto, Thaddeus H. Walker was the owner of the premises in controversy; April 14, 1869, Stephen L. Davidson obtained a judgment against Walker in the district court of Leavenworth county, in this state, for $1,794.57, and his costs; April 26,1869, a transcript of the judgment was filed in Coffey county; April 10, 1874, an execution was issued upon the judgment, directed to the sheriff of Coffey county, who levied the same upon a large amount of other lands belonging to Walker, and the same were advertised for sale, but before the day of the sale the execution was, by order of the owner of the judgment, returned without offering the lands for sale; November 24, 1874, another execution was issued on the judgment, directed to the sheriff of Coffey county, who levied the same upon the lands of Walker, other than the land in controversy, appraised and advertised the same, and offered the lands for sale, and at such sale the lands were stricken off to R. I. Lee and C. W. Holder; no money was paid on this sale; February 3,1875, the plaintiff moved to have the sale confirmed in the district court of Leavenworth county, and on February 6,1875, the motion was sustained, and the court ordered the sheriff of Coffey county to make deeds to the purchaser; August 28,1875, the sheriff and R. I. Lee, one of the purchasers, moved the said court to vacate and set aside the order of confirmation, and the sheriff asked leave to amend his return; October 9, 1875, these motions were sustained, and the order of confirmation was vacated so far as the sale to R. I. Lee was concerned, and leave was granted the sheriff to amend his return; November 17,1875, the execution recited in the sheriff’s deed held by the defendants, and under which they hold title, was issued out of the district court of Leavenworth county on said judgment, and directed to the sheriff of Coffey county, who proceeded to levy on the land in controversy, and caused the same to be advertised and sold, and made return thereof; February 12,1876, the sheriff and the owner of the judgment moved the court to vacate and set aside the order of confirmation made February 6,1875, so far as the same related to the sale to C. W. Holder, which motions were sustained, and said order was vacated; on the same day a motion was made to confirm the sale made on the execution issued November 17, 1875; March 11,1876, both of said motions were sustained and the order of confirmation was vacated, and the last-mentioned sale was confirmed and the sheriff ordered to make deeds to the purchaser, C. W. Holder; June 19, 1876, the sheriff executed and delivered the deed to C. W. Holder; May 11,1876, C. W. Holder and wife conveyed the land by warranty deed to Mary A. Milner; July 5, 1879, Mary A. M. Milner died intestate, leaving as her sole surviving heirs, William Milner, her husband, and the defendants; July 13, 1880, William Milner conveyed said land by a deed of quitclaim to the defendants; October 6, 1869, Thaddeus H. Walker, for a valuable consideration, conveyed said land to George Johnson by warranty deed, which was recorded in Coffey county, November 30, 1869; November 30, 1872, George Johnson and wife conveyed the land to Samuel McConnel and Henry A. Towne, the plaintiff, by deed of warranty; February 18, 1875, Samuel McConnel and wife conveyed by warranty deed the land to the plaintiff.
The court also made the following additional finding: “In the case of Stephen L. Davidson against Thaddeus H. Walker, in Leavenworth county, Kansas, the defendant, Thaddeus H. Walker, received due and legal notice of all the proceedings had therein from and after February 5, 1875; that is, the presumption that such notice was given is not overcome by the evidence.” Judgment was rendered for the defendants, and the plaintiff complains of the ruling.
I. The defendants offered to introduce a sheriff’s deed dated June 19, 1876, as evidence of the transfer of Walker’s title to Holder, under whom they claimed. This deed recited the judgment against Walker of April 14, 1869; the issuance of an alias execution, November 17, 1875; a sale thereunder to Holder December 31, 1875, and the confirmation of such sale on March 11,1876. The plaintiff objected to the deed upon the ground that the inference therefrom was that the execution was issued on a dormant judgment; and further, that the deed recited an alias execution, without setting forth the original execution or stating what had been done under the prior execution. After argument upon the objection, the court announced that it was of the opinion that the objection should be sustained, but that it would admit the deed upon the condition that the defendants’ counsel should consent to its reception, subject to the 'pMMiff'’8 objection, and stand as evidence only in the event that the court should, on fuller consideration, be of the opinion that it was competent, to which condition the defendants consented, and the court thereupon admitted the deed in evidence. The action of the court in this regard is claimed to be erroneous. It is further claimed that the deed upon its face, for the reasons given, was not valid. The plaintiff could not have been misled or prejudiced by the action of the court in receiving the deed upon the conditions stated, because soon thereafter he admitted the judgment recited in the deed had not become dormant by lapse of time up to the date of the execution set forth therein, but had been kept alive by executions duly issued from tímete» time thereon. If, therefore, the deed was defective by reason of the alleged omissions, it was fully cured by the admissions of the plaintiff.
II. It is also claimed that the levy upon Walker’s lands under the execution of November 24, 4874, together with-the sale of the same on January 11, 1875, and the confirmation of said sale on February 6, 1875, satisfied the judgment against Walker, and therefore that the subsequent alias execution of November 17, 1875, and the subsequent orders of the court, were void. In support of this proposition, it is contended that upon the confirmation of February 6,1875, the jurisdiction of the district court over Walker ceased, and thereafter he was out of court. It appears that after February 6,1875, and prior to the issuance of the alias execution of November 17,1875, the confirmation of the sale to R. I. Lee was vacated and the sheriff given leave to amend his return. Prior to the confirmation of the sheriff's sale under the execution of November 17, 1875, the confirmation of the sale made February 6, 1875, to C. W. Holder, was also vacated. If the order vacating the confirmation of February 6, 1875, were rendered without notice to Walker, we would agree with the counsel for plaintiff that said proceedings were invalid. The findings, however, of the court, are against the plaintiff. It does not appear that the whole record in the case of Stephen L. Davidson against Thaddeus H. Walker was produced in evidence, and although the deposition of Walker tended to prove that neither he nor his attorney had ever had notice of any of the proceedings in that case, subsequent to the confirmation of the first sale, yet neither his testimony, nor the other testimony offered by the plaintiff, was conclusive. If the plaintiff had wished to establish the fact that no notice had been given Walker or his attorney subsequent to the confirmation of the first sale, a certified transcript of the proceedings had in the case of Davidson against Walker ought to have been obtained and introduced upon the trial, or, in its absence, some other evidence equally conclusive should have been presented. As a general rule “where a party relies upon a record as proof he must introduce the whole of it, and if he does not, the presumptions from silence or absence will be against him and not in his favor.” (Hargis v. Morse, 7 Kas. 415; Ogden v. Walters, 12 id. 282.) All presumptions are in favor of the validity of the judgments, orders and proceedings of a court, of general jurisdiction's the district courts of this state are, and upon the record presented to us we cannot disturb the finding or the judgment of the trial court.
The judgment of the district court will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The plaintiff sued for damages to his property caused by the negligent setting out of a fire by an engine of the defendant company, and proved the setting out of the fire, and damage. The defendant demurred to the evidence, and the court below sustained the demurrer. The following is the record statement of the evidence:
“The plaintiff, to maintain the issues on his part, proved by due and legal evidence that the property set out in his petition was burned at the time therein stated, and that the plaintiff was damaged by said fire in the sum of $300, and that said fire was set out by an engine of defendant, drawing one of the passenger trains and going north; that it was a very dry time, and had been so for three weeks; that the prairie grass grew on defendant’s right-of-way up to the ends of the ties, and from there to the extreme limit of the right-of-way, and was dry, and had not been cut nor cleaned off that season; but cattle had grazed thereon and eaten it down in places, and in other places it was standing in rank stools; that said fire occurred September 13, 1882; that there was a dry ditch on defendant’s right-of-way near the outer limit thereof, in some places in which tumble-weeds and other matter of like character had accumulated near where the fire started,'but whether any such accumulations were where the fire was set out, the witness did not know. The plaintiff’s land next to the right-of-way had been mown off, and the hay stacked. The fire started on defendant’s- right-of-way at or in said ditch, burning up to the ends of the ties and spreading out from the right-of-way on to said plaintiff’s land. At that time defendant was running two passenger trains on that road, one train a day each way. It was one of these engines that set out this fire. One of these two engines had previously set out two fires the same day; but the witness so testifying could not state which of these two engines it was.”
This was all the evidence.
Plaintiff complains, and insists first, that as a matter of law a mere setting out of a fire by a passing engine is prima facie evidence of negligence; second, that permitting dry and inflammable material to accumulate along its right-of-way is negligence per se; and third, that if neither of these propositions be correct, there was enough testimony to raise a question of fact as to the existence of negligence, which should have been referred to a jury, and ought not to have been settled by the court.
Passing the first two propositions of counsel, we think the latter one is correct, and that there was enough testimony to send the case to the jury. As to the rule in reference to such cases, and the circumstances under which the court is justified in sustaining a demurrer to the evidence, see Brown, Adm’r, v. Rld. Co., ante, p.2. Now while it may be conceded that permitting dry grass and stubble to accumulate on its right-of-way is not negligence per se, (Rly. Co. v. Butts, 7 Kas. 314,) yet the accumulation may be to such an extent, at such a season of the year, and in such proximity to the track, that a jury would be justified in holding the company guilty of negligence. In the case of Kesse v. Rld. Co., 30 Iowa, 78, the court laid down this rule:
“To allow the dry grass, weeds and other combustible matter, the natural accumulations of the soil, to remain on the right-of-way, is not negligence per se; but there may be such peculiar or unusual circumstances in a given case as to amount to negligence in fact; and when such circumstances exist, they are proper to be submitted to a jury for the purpose of establishing the fact of negligence.”
We think it is generally true that when the evidence shows an accumulation of dry grass and stubble, it is a question of fact for the jury whether the accumulation is such and under such circumstances as to impute negligence. Here, by the statement, not only was the natural growth of grass on the right-of-way standing in places in rank stools, but further, in a dry ditch was an accumulation of tumble-weeds and other like matter. This was in the fall of the year, at a very dry time; and whether the accumulation at such time and under such circumstances was sufficient to charge negligence upon the company, is a question which the jury should have been permitted to pass upon. (Kellogg v. Rld. Co., 26 Wis. 235; Flinn v. Rld. Co., 40 Cal. 141; Rld. Co. v. Shanofelt, 47 Ill. 497; Rld. Co. v. Nunn, 51 id. 78; Barron v. Eldridge, 100 Mass. 455; Webb v. Rld. Co., 49 N. Y. 420; Snider v. Rld. Co., 11 West Va. 14; 38 Amer. Dec., p. 72, and cases cited.)
The judgment of the court below will be reversed, and the case remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Hokton, C. J.:
This was an action by the plaintiff against the defendants, to enjoin the county clerk of Montgomery county from making, and the other defendants from receiving, a tax deed to lots 8 and 9, in block 54, in the city of Independence. The facts are as follows: Prior to July 16, 1877, Peter Scott and wife, the owners of said lots 8 and 9, executed a mortgage to William P. Turner, to secure $1,500 and interest, intending to describe therein the said premises. There was however a misdescription in the mortgage. This mortgage was afterward transferred by Turner to Edward Eaton. On the 16th day of July, 1877, Peter Scott and wite executed to J. B. Ziegler a warranty deed of said lots 8 and 9, subject to any valid incumbrance thereon. This deed was given with the understanding that it was for the purpose solely of securing an indebtedness of $325 owing from Scott to Ziegler. By agreement with Scott, Ziegler took possession of the premises, collected the rents, amounting to $70 per month, and applied the same to the payment of his claim. On the 1st of January, 1878, the claim of Ziegler was wholly paid, but thereafter and until September, 1879, as the agent of Scott, he continued to hold possession of the premises and collect the rents therefrom, which rents, when collected, he paid to Scott. Ziegler spoke to Scott about paying the taxes on the premises from the rents collected, but the latter directed Ziegler not to pay the taxes, or any part of them. On the 13th day of September, 1878, Ziegler purchased the premises at a tax sale for the delinquent taxes of 1877, and paid therefor out of his own private funds. On the 20th of June, 1879, Ziegler sold and transferred his tax certificates to one Herring. On the 21st day of June, 1879, Herring paid the taxes on the premises for the year 1878, and the amount thereof was indorsed by the treasurer of the county upon the certificates which he held. On the 21st day of December, 1879, Herring paid the taxes on the premises for the year 1879, and the amount thereof was likewise indorsed on the tax certificates. On January 1,1880, Herring sold and transferred the tax certificates to the defendant M. T. Madden.
On the 20th of July, 1877, Edward Eaton commenced an action asking a reformation of the mortgage executed by Scott and wife to Turner, and praying that the mortgage be foreclosed and the premises sold. To the petition filed in this action, Ziegler answered that he was the owner of the premises, and that the mortgage was not a lien thereon. On the 29th of March, 1879, judgment was rendered in the action. It was decreed therein that the Turner mortgage was a first lien upon said lots 8 and 9, which were ordered to be sold to satisfy the debt secured thereby. The interest of Ziegler in the premises was declared subsequent ‘and inferior to that of Eaton. Under the decree in the foreclosure action, the premises were sold and the plaintiff purchased the same. The sale was confirmed on the 19th day of September, 1879, and the deed was executed by the sheriff to the plaintiff. At the commencement of this action, the county clerk was about to issue a tax deed. The court found in favor of the defendant Madden, and rendered judgment accordingly.
Two principal questions are presented in this case for our consideration. The first is: Was the relation of Ziegler to the premises at the time of the tax sale of September 13, 1878, for the delinquent taxes of 1877, such as to deceive or mislead to their prejudice persons interested in the payment of such taxes ? In other words, was Ziegler disqualified by his own conduct from becoming a purchaser of the premises at the tax sale of September 13, 1878?
The second is: Will an injunction lie to restrain the issuance of a tax deed without a prior payment or tender of the taxes which the plaintiff is under obligation to pay?
The deed to Ziegler was dated July 16, 1877. This deed was recorded on July 17, 1877. Ziegler immediately went into possession of the premises, and continued in such possession until after the date of the tax sale, and until September, 1879. Before purchasing the premises at the tax sale, Ziegler insured the property in his own name for a period of one year, and during all the time he was in possession he collected the rents. The latter action was commenced on July 20, 1877, before the taxes of 1877 became due, and in that case Ziegler alleged that he was the owner of the premises. The contrary was never determined until the judgment was rendered in this action in the court below. At the time the taxes of 1877 matured, and at the time of the tax sale of September 13,1878, Ziegler was not only in possession of the premises, but held the legal title — publicly claiming the absolute ownership thereof. Until the filing of the answer in this action, he had never disclosed the nature of the agreement existing between himself and Scott. Ziegler being the absolute owner upon the county records, and being in possession of the premises, as to Turner, the mortgagee, and as to Eaton, the assignee, and to all other persons excepting Scott, until the contrary was disclosed, his purchase at the tax sale of 1878 was justly regarded as a redemption of the premises. Applying any other construction to the conduct of Ziegler would operate as a fraud. The statute provides that “in cases where lands are mortgaged, if the mortgagor fails or neglects to pay the taxes, or in case the mortgagor permits any lands so mortgaged to be sold for taxes, the mortgagee may pay the taxes, or redeem the lands so sold for taxes.” (Comp. Laws of 1879, eh. 107, §148.) If Ziegler had not at the time of his purchase at the tax sale of 1878 claimed publicly to be the owner of the premises, Turner, the mortgagee, or Eaton, if he then held the mortgage, might have paid the taxes, and thereby secured a lien on the mortgaged premises for the taxes so paid; but after Ziegler had purchased at the sale, with his claim of ownership, it was unnecessary for anyone to attempt to redeem or to pay any taxes while he was in possession, because they had the right to consider his purchase as a redemption of the taxes.
Further, if Ziegler had disclosed the true state of affairs attending his purchase at the tax sale of September 13, 1878, prior to the sale under the decree of foreclosure, the plaintiff might have obtained, upon the confirmation of such sale, an order for all taxes and penalties against the premises to be discharged out of the proceeds of the sale. (Comp. Laws of 1879, ch. 107, §56.) Although upon the findings of the court Ziegler was under no obligation, legal or moral, to pay the taxes on the premises, yet his possession of the premises and his claim of ownership thereto were such as to deceive and mislead the mortgagee, Turner, and all other persons unacquainted with the agreement existing between him and Scott. Upon conduct so wrongful, misleading and prejudicial, no tax deed can, if properly resisted, be issued.
As to the second question, we think that an injunction will not lie without a prior payment or tender of the taxes, which the plaintiff knew before the commencement of this action were valid and had been paid after Ziegler went out of possession. The petition recites that the taxes for the year 1879 amounted to §145.55, and that the same were not paid until the 22d day of December, 1879. The sale to the plaintiff was confirmed on the 19th day of September, 1879, and soon thereafter he obtained a deed to the premises. He was then the absolute owner of the premises. The taxes of 1879 were not due or payable until November 1, 1879. At that time Ziegler was not in possession of the premises, and had no interest therein. He had transferred his tax certificates to Herring on June 20, 1879. The plaintiff ought to have paid these taxes, or tendered them, prior to the commencement of this action. In the cases of The City of Lawrence v. Killam, 11 Kas. 299, and Challiss v. Comm'rs of Atchison Co., 15 Kas. 49, it was held “an injunction will not lie to restrain a tax proceeding without a prior payment or tender of all legal taxes.” In Knox v. Dunn, 22 Kas. 682, it was decided that “without such tender an action to quiet title would not be sustained against the holder of a tax-sale certificate.” In Pritchard v. Madren, 24 Kas. 486, it was held “no action will be sustained in a court of equity to restrain proceedings to enforce and collect legal and valid taxes, or to set aside a title founded upon such proceedings, without a prior payment or tender of the amount of such taxes.” In Wilder v. Cockshutt, 25 Kas. 504, it was ruled that “before a land-owner can successfully resort to a court of equity to contest with the holder of a tax certificate, illegal taxes or charges, he must first pay or tender the taxes or charges conceded to be legal.” In Cartwright v. McFadden, 24 Kas. 662, an exception as to the payment or tender of taxes was made in an action to quiet title as against the holder of a tax deed, where there was a dispute between them as to what amount should be paid. A distinction however was made in that case between an action to set aside a tax-sale certificate and one to nullify a tax deed. Before an action is commenced to set aside a tax-sale certificate, the plaintiff should pay or tender all taxes embraced therein, which the public records show are valid, and which he is under obligation to pay. If a tender is made, it often happens that a party will accept the tender, and thereby litigation is prevented. A court of equity ought not to be called upon to cast off charges or taxes as a cloud upon title or property, until the plaintiff has paid or offered to pay all of them that are valid. “He that seeks equity must do equity.”' The objection which applies to the validity of Ziegler’s purchase applies also to all the taxes paid upon the tax certificates prior to the time that Ziegler went out of possession. The transfer of the tax certificate to Herring, and from Herring to Madden, did not attach to it any greater equities than if it had remained in the hands of Ziegler. ^
Our conclusion therefore is, that the judgment of the court below must be affirmed, because there was no payment or tender of the taxes which the plaintiff' knew were valid, and which had been paid after Ziegler went out of possession of the premises and after the plaintiff had obtained his deed thereto. If, however, the plaintiff had paid or tendered to the defendant Madden the taxes of 1879, and all subsequent taxes (if any) paid by him, he would be entitled to the injunction against the issuance of the tax deed.
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of forcible detainer, commenced in a justice’s court, and appealed to the district court, where the judgment now complained of was rendered. The plaintiff in error was plaintiff below, and the defendant in error was defendant below. The case was tried by the court and a jury, and a verdict and judgment were rendered in favor of the defendant and against the plaintiff for costs.
The plaintiff now insists that the court below committed error in giving instructions to the jury, and in refusing instructions. The court on its own motion gave a general charge to the jury, which charge was divided into fourteen separate paragraphs, and numbered. The record shows that the plaintiff excepted to this charge, in the following form, to wit: “To the giving of all and each of said instructions by the court, the plaintiff then and there duly excepted, and excepts.” Under the previous rulings of this court, this exception will be held to be sufficient. (K. P. Rly. Co. v. Nichols, 9 Kas. 236; A. T. & S. F. Rld. Co. v. Retford, 18 id. 245.) The supreme court will presume from such an exception that the plaintiff duly excepted to each separate paragraph and portion of the charge. In many states, such an exception would not be held to be sufficient.
The court below, at the request of the defendant, also gave to the jury five or more separate and distinct instructions, to the giving of which the plaintiff excepted, as the record shows, in the following form: “ To the giving of which said instructions as asked by defendant, and to the refusal of said court to charge said jury as requested by the plaintiff, the plaintiff then and there duly excepted, and excepts.” This seems to be one general exception to all the instructions given at the instance of the defendant, and not a distinct and separate exception to each of such instructions; and therefore we think the exception is not sufficient, further than to authorize this court to examine the general scope or drift of such instructions in the aggregate. (K. P. Rly. Co. v. Nichols, 9 Kas. 236; Sumner v. Blair, 9 id. 521; City of Atchison v. King, 9 id. 551; Ferguson v. Graves, 12 id. 39; Williams v. Joy, 15 id. 389; Fullenwider v. Ewing, 25 id. 69; Goodsell v. Seeley, 46 Mich. 623; Adams v. The State, 25 Ohio St. 584; Jones v. Osgood, 6 N. Y. 233; Eldred v. Oconto Co., 33 Wis. 134; University, &c., v. Shanks, 40 id. 352; Brown v. Kentfield, 50 Cal. 129; Ins. Co. v. Sea, 88 U. S. 158.)
The record does not purport to contain the entire charge of the court, nor all the instructions given; and hence this court cannot consider the instructions refused. (Ferguson v. Graves, 12 Kas. 39; Pacific Rld. Co. v. Brown, 14 id. 469; Fullenwider v. Ewing, 25 id. 69, 70.) There is probably enough in the record, however, to raise the main question desired to be raised by the plaintiff, and that is whether the statute relating to frauds and perjuries so applies to this case as to enable the plaintiff to avoid a certain lease of real estate which the defendant claims was previously entered into between the plaintiff and the defendant. This question we shall now proceed to consider.
Ever since the year 1858, the plaintiff, who resides in Wisconsin, has been the owner of the northeast quarter of section seven, township fourteen, range twenty-three, in Johnson county, Kansas; and during nearly all that time James Frame, who resides near the land, has been the plaintiff’s agent with respect thereto. Up to 1876, this land was unfenced, uncultivated and unimproved prairie land. In 1876, Frame orally leased the land to Elston for the term of six years, the lease to commence on March 1, 1877, and to end on March 1, 1883. Also, at the same time and in connection with such lease, Frame gave to Elston the privilege of entering upon said land during the year 1876 and making improvements thereon, which Elston did. This lease and all the arrangements made between Frame and Elston with regard to the land were wholly in parol. In 1877, Elston took full and complete possession of the land under the lease. He fenced the land, plowed it, cultivated it, built a dwelling house, a barn and crib thereon, dug three wells, and made other valuable improvements on the land, and paid all the taxes thereon. Elston was still in the possession of the land when this suit was brought to oust him therefrom, on March 8, 1882.
The plaintiff claimed in the court below that Frame had no authority to lease the land to any person, or for any period of time. He also claimed that he, the plaintiff, never ratified or assented to the lease made by Frame to Elston. He also claimed that the lease was only for five years, and that it terminated on March 1, 1882. He also claimed that Elston, in 1880, agreed (without any additional consideration, however, and not in writing) to quit the premises, and to surrender them back to him, the plaintiff, on March 1, 1882. But upon all these questions the jury found against the plaintiff and in favor of the defendant, upon sufficient evidence, and the court below sustained the verdict; and therefore, under the well-settled rules of this court, this court must consider the facts as thus settled and established by the trial court as the facts of the case, and this court can consider and determine only such questions of law as may arise upon these facts. The plaintiff also claimed in the court below, and claims in this court, that the lease made by Frame to Elston was void under the statute of frauds. Now, that said lease was void under the statute of frauds, when it was originally made, and before any portion of the same was executed, we think there can be no doubt. (Statute of Frauds, Comp. Laws of 1879, ch. 43, §§ 5, 6; Wolf v. Dozer, 22 Kas. 436; Powers v. Clarkson, 17 id. 218; Carr v. Williams, 17 id. 575, 582; Franklin v. Colley, 10 id. 260; Moore v. Wade, 8 id. 380.) All parol leases exceeding one year in duration are void under said statute, unless partially performed, and are generally void, even then, as to the part not performed. Generally, where a parol lease is made for a term exceeding one year, and the lessee takes possession of the property, and pays a portion of the rent, but does nothing more than this, the lease will be considered valid, but valid only to the extent of creating a tenancy-at-will, or a tenancy from month to month, or a tenancy from year to year, according to the circumstances of the case. (Sedgwick & Wait on Trial of Title to Land, § 379, and cases there cited; Reeder v. Sayre, 70 N. Y. 180; Lounsbery v. Snyder, 31 id. 514; Schuyler v. Leggett, 2 Cow. 660.)
Mere possession or mere payment of rent will not, as a general rule, make a parol lease for more than one year valid for the full term.' But parol leases exceeding one year, as well as other parol contracts with regard to real estate, may sometimes be taken out of the statute of frauds by a part performance of the contract, and by such part performance be made valid to their full extent. (Taylor’s Landlord and Tenant, §32; Grant v. Ramsey, 7 Ohio St. 157.) But parol leases for more than one year, in order to become valid by a part performance, should generally be such as would by such part performance become substantially a purchase of an interest in the real estate. Such, we think, is the present lease. The defendant, by virtue of this lease, took possession of the property and continued in the possession thereof for over five years; planted, cultivated and raised hedge fences thereon; broke up the ground; built houses and dug wells on the land, and paid all the taxes thereon, and expended time, labor and money in making improvements thereon, for which he could not well be compensated in money. We think the present lease, taking into consideration all the circumstances of the case, was taken out of the statute of frauds by a part performance of the contract; and therefore it must be held to be valid for the full term of six years; or, perhaps, more properly speaking with reference to the facts of this case, valid for the small remainder of the term.
We do not think that it is necessary to discuss either the facts or the evidence in the case, further than we have already discussed the same. Neither do we think it necessary to discuss the motion for the new trial. Much of the alleged newly-discovered evidence was merely cumulative, and much of it was impeaching, and all of it evidently could have been discovered by the exercise of reasonable diligence. We do not think that we can reverse the judgment of the district court because of such alleged newly-discovered evidence.
There was no legal evidence introduced tending to show that “ the verdict did not receive the assent of the minds of the jury.” And we do not think that the language used by counsel for the defendant in his address to the jury would authorize a reversal of the judgment of the court below. Indeed, we do not think that there is anything in the ease that will authorize a reversal of such judgment. The only substantial error committed in the case, if any substantial error was committed, was the finding by the jury that the lease was to continue six years, instead of five; but the ques tion as to whether the lease was to continue six years, or only five, was a question of fact, and it was submitted to the jury upon sufficient evidence to authorize them to find as they did; and we cannot now set aside their verdict or findings. The judgment of the court below will be affirmed.
All the Justices concurring.
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Per Curiam:
The defendant in error (plaintiff below) filed an amended bill of particulars in the district court, in the absence of the railway company and without notice to it, and the railway company made no appearance upon the trial. Under the amended petition, the court increased the claim of the attorney’s fees from fifteen dollars to thirty, and rendered judgment accordingly. Within the following cases, the judgment must be reversed, and the cause remanded for further proceedings: L. L. & G. Rld. Co. v. Van Riper, 19 Kas. 317; St. L. & S. F. Rly. Co. v. McReynolds, 24 id. 368; Same v. Ellis, 25 id. 108; A. T. & S. F. Rld. Co. v. Combs, 25 id. 729.
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The opinion of the court was delivered by
Hokton, C. J.:
This was an action brought by Rebecca Sill, widow of Daniel Sill, deceased, to have the will of her late husband set aside and declared void as to her, for the reason, as she alleged, that she never consented in writing or otherwise to the will, and never made any election under the statute to take thereunder. The case was tried by the court, a jury being waived. The court found generally for the plaintiff below, and rendered judgment in her favor. The plaintiffs in error, who are the executors and legatees under the will, complain of the judgment. #
I. The answer filed to the petition admitted that Rebecca Sill was the widow of Daniel Sill, deceased; that the said Daniel Sill made his last will and testament on the 19th day of June, 1880; that he executed a codicil thereto on July 15, 1880; that the will was probated on January 17, 1881; that George Sill and John H. Sill were appointed by the probate court executors of the will; that they qualified as such, and entered upon the discharge of their duties.
The answer alleged, as a second defense, that at the time of the execution of the will and the codicil thereto, Rebecca Sill was present and consented orally to the will in the presence of the attesting witnesses and others; and that frequently after the execution of the will, both prior to and after the death of Daniel Sill, she expressed herself as satisfied with the provision made for her in the will.
The answer further alleged, as a third defense, inter alia, that on or about January 29, 1881, and after the probate of the will, Rebecca Sill being unwell, and it being inconvenient for her to go to the county seat of Marion county, where the will was probated, procured John H. Sill, her step-son, to go to the county seat and have written out for her to sign a consent in writing to the provisions of the will and an acceptance of the will; that pursuant to her request he had a paper prepared for her to sign, and thereafter, on the 31st day of January, 1881, in the presence of several persons, she signed voluntarily the same and had one Justice Evans attest it as a witness; that prior to signing this writing, various persons explained to her the provisions of the will and her rights under it, and also her rights under the statute, in the event of her refusal to take under the will; that on February 4, 1881, at her request, John H. Sill filed the writing so signed and witnessed, with the probate judge of Marion county; that by signing and filing such written instrument, Rebecca Sill had consented to the will and elected to take under the will.
The answer further set forth that after such alleged consent and election, Rebecca Sill took and received all the property bequeathed to her by the will, and has ever since been in the actual possession and enjoyment of the same.
To the second and third defenses contained in the answer,' the plaintiff below filed a general demurrer. This was overruled, and at the same time the court denied the request of the defendants below to carry the demurrer back, and sustain it as against the petition. It is now urged that this request should have been granted, upon the ground that the petition was fatally defective. In support of this, it is, said that the petition “contained no hint or suggestion that defendants below had denied the plaintiff anything; nor that they had disputed any of her property rights as the widow of Daniel Sill; nor that they had interfered in any way, or had threatened to interfere with her retention and enjoyment of any portion of the property to which she was entitled.” If the petition was defective for want of aqy material averment, we think such defect was supplied by the answer. It is clearly apparent that the answer set up that Bebecca Sill had consented to the will, and had elected to take thereunder; that the executors and legatees claimed the property under the will, and alleged a right thereto adversely to the widow. (Irwin v. Paulett, 1 Kas. 418.)
II. On July 3,1879, Bebecca Sill executed to N. F. Allspaugh a conveyance of all her claim in her husband’s property, real and personal, and her interest in her property in McLean county, Illinois, which consisted of lots 10 and 11, in block 1, in the town of Normal — all to take effect after her death. On the same day N. F. Allspaugh and wife executed to Daniel Sill a conveyance of all the property, real and personal, both in Kansas and Illinois, conveyed to N. F. Allspaugh by Bebecca Sill; on the same day Daniel Sill executed to N. F. Allspaugh his conveyance of said lots 10 and 11, in block 1, in Normal, McLean county, Illinois; and on the same day N. F. Allspaugh conveyed said lots to Bebecca Sill.
It is contended that these conveyances taken together, and as explained by the testimony of N. F. Allspaugh and Bebecea Sill, constituted a consent in writing founded upon a valuable consideration, that Daniel Sill might dispose of more than one-half of his property by will to other persons-than his wife; and that as these conveyances were executed in the presence of two witnesses, the requirements of the statute were complied with. (Comp. Laws of 1879, ch. 117, § 35.) All of these conveyances were made nearly a year before the execution of the will, and do not refer to the will or any of its provisions. We cannot hold that they evidence any consent under said § 35. They speak for themselves; they were executed voluntarily by the parties; no fraud or mistake is charged against them, and they cannot be ex plained by parol evidence to be a consent in writing to the will subsequently executed.
III. It is further contended that the writing signed by-Rebecca Sill on January 31, 1881, and presented to the probate court on February 4,1881, was both a consent to the will and also an election by her to take under the will. It is doubtful whether a consent in writing to a will under the provisions of said § 35, is of any validity unless made in the lifetime of the party executing the will. This section reads:
“No man while married shall bequeath away from his wife more than one-half of his property; nor shall any woman while married bequeath away from her husband more than one-half of her property. But either may consent, in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so signing.” '
Even however if the consent may be given after death, we think it cannot, in the nature of things, be given after the will is probated. Thereafter the sections of the statute concerning an election under the will must control. Hence, the' paper deposited with the probate court cannot be regarded as a consent in writing to the will under said § 35. If there was not a consent in writing, was there an election under the will? The sections of ch. 117, Comp. Laws of 1879, concerning the election of a widow, are as follows:
“Sec. 41. If any provision be made for a widow in the will of her husband, and she shall not have consented thereto in writing, it shall be the duty of the probate court, forthwith after the probate of such will, to issue a citation to said'widow to appear and make her election whether she will accept such provision, or take what she is entitled to under the provisions of the law concerning descents and distributions, and said election shall be made within thirty days after the service of the citation aforesaid; but she shall not be entitled to both.
“Sec. 42. The election of the widow to take under the will shall be made by her in person in the probate court of the proper county, except as hereinafter provided; and on the application by her to take under the will, it shall be the duty of the court to explain to her the provisions of the will, her rights under it, and also her rights under the' law, in the event of her refusal .to take under the will. The election of the widow to take under the will shall be entered upon the minutes of the court; and if the widow shall fail to make such election, she shall retain her share of the real and personal estate of her husband as she would be entitled to by law, in case her husband had died intestate. If she elects to take under the will, she shall not be entitled to the provisions of the law for her benefit, but shall take under the will alone.
“Sec. 43. If the widow of the testator shall be unable to appear in court by reason of ill-health, or is not a resident of the county in which said election is required to be made, it shall be the duty of the probate court, on an application made in her behalf, to issue a commission with a copy of the will annexed thereto, directed to any suitable person to take the election of said widow, to accept the provision of said will, in lieu of the provision made for her by law; and it shall be the duty of the court in said commission to direct such person to explain to said widow her rights under the will and by law.”
It is conceded that the probate judge issued no citation for the widow to appear and make her election; that the widow did not appear in person in the probate court of Marion county to make an election; that at the time of the deposit of the writing with the probate court on February 4,1881, the court had not explained to the widow the provisions of the will, her rights under it, and her rights under the law in the event of her refusal to take'under the will. It is further conceded that no election of the widow to take under the will was entered upon the minutes of the probate court; but on the other hand, soon after the paper signed by her was presented to the court, it was lost or mislaid. It further appears that the probate court issued no commission directed to any person to take the election of the widow, to accept the provisions of the will in lieu of the provisions made for her by law. Therefore there was no literal compliance with the provisions of the statute concerning elections; nevertheless it is urged that there was a substantial following of the statute. In support of this view, it is said by counsel that—
“The election of the widow was reduced to writing; that it was full and ample in all its terms; that it was voluntarily signed by her aftlr full consideration; that it was deposited and filed in the office of the probate judge.of the proper county; that she afterward came in person to the probate judge; that he explained her rights under the law, and under the will; that she made no move to withdraw the written election; that she expressed no dissent therefrom; that both she and the probate judge understood at the time that she had made her election and acceptance of the will; and that the probate judge so certified under the seal of his court.”
While there was some evidence tending to prove these statements, yet there was other evidence directly contradictory. The court below heard all the evidence, saw the witnesses who uttered it, was the judge of the credibility of the witnesses, and of the weight of the testimony, and therefore we cannot disturb the general finding. We cannot assume that the paper deposited with the probate court was voluntarily signed by the widow after full consideration, because she testified that “it was brought to her already prepared, by her step-son, John Sill; that there were present when she signed it, Frank Allspaugh, John Sill, and Alexander Sill,” all of whom were interested in having her elect to take under the will; that “the paper was read to her by Justice Evans; that this was not long after her husband’s death, and she was much troubled and harassed; that when she signed it, she was under the impression that she had only sixty days’ time to accept or reject it; that her son-in-law, Frank Allspaugh, told her just before signing it, ‘that he thought it would be best for her to accept the will, as it would make less trouble;’ that John Sill then asked her ‘what she thought about accepting the will;’ she answered ‘I don’t know;’ then he said ‘I don’t think you will have any show to get anything if you do not accept the will;’ he said ‘We can sell every bushel of corn, every bushel of wheat, every hoof of cattle, every hog, your horse and buggy, stop the rent for two years, take the money and law you with it. How would you like that? Where will you get money to law with? — and then there will be seven to one and we will all fight;’ he said ‘you have only got two chances; you can take under the will, or under the law. You can have your choice, and you can accept either one you please. We can turn you out of house and home, and I do not think you will have anything if you do not take under the will.’”
There was evidence that the widow expressed herself at times as satisfied with the will, but she testified that her reason for so doing was “to avoid trouble, as she did not know she could get anything else.” After the paper was deposited with the probate judge she called at his house and stayed a couple of hours. The probate judge testified that “she told him, when the paper was presented and explained to her, she hesitated, and did not know just what to do; that she did not know what was really her interest to do; that she had never been entirely satisfied with the will; that she would like his advice in regard to it;” that he said to her, “It would be better to accept under the will, and avoid trouble; that if she did not do so, in all probability she would have a law suit, and it would be ah' expense to be incumbered with a suit.” The probate judge further testified, that at the time, he was of the opinion the acceptance left with him was not valid, and “that he advised her that it would not stand;” “that she did not say to him in so many words, or in any kind of words, that she had accepted the provisions of the will.” When Mrs. Sill was asked if she ever requested the probate judge to give up the paper deposited with him, she answered “ she did not, because the probate judge said to her that it was lost.”
Upon these statements and others testified to by the witnesses it is apparent that the executors and legatees under the will were anxious that Mrs. Sill should elect to take under the will; that her sister and other own relatives advised her to reject the will; that she was in great doubt what course to pursue; but it cannot be considered that she in any manner substantially complied with the provisions of the statute to elect to take under the will.
IV. Finally, it is claimed that the widow is estopped from denying an election under the law because she took possession of the personal property bequeathed to her by the will and has also had possession of the real estate. Further, that she has sold the property at Normal, Illinois, and appropriated to her use the proceed^. Daniel Sill died early in January, 1881. His will was probated on January 17, 1881. This action was commenced on the 30th of May, 1881, a little over four months after the probate of the will. About the only personal property she received which she would not be entitled to under the statute was a buggy; but it does not appear that she sold or disposed of it. There is a conflict in the evidence about the sale of the Illinois property. Mrs. Sill testified on the trial that she was willing to sell it for $500. One witness testified that “ she informed him she had sold it,” but it appears from the conveyances that this property was her own, regardless of the will, and therefore if she had made a sale of it, it was not any acceptance of or acquiescence in the terms of the. will. Considered in any light, all the acts charged against her do not constitute such an election in fact to take under the will as estops her from claiming under the statute. In Milliken v. Weliver, 37 Ohio St. 460, the law is thus declared:
“In order that acts ofla widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended by her acts to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be an election.”
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is one of res adjudicata. The facts are these: On June 24,1873, plaintiff brought a certain action in the district court of Atchison county against George Scarborough, David Auld, and W. R. Stebbins. The petition alleged that plaintiff was the owner and entitled to the possession of the undivided half of certain real estate in Atchison city; that while entitled to the possession, he had in fact been deprived of it for several years by defendants. It alleged that Scarborough was the owner of the other undivided half; that Auld and Stebbins claimed to own the property by virtue of a tax deed; that the tax deed was void; that defendants had held possession for years, and collected rents largely in excess of taxes paid. The prayer was for possession of the undivided half, parti tion, and for rents and profits; and also that the tax deed be adjudged void, and the cloud cast thereby on plaintiff’s title removed. The trial was had in this case at the November term, 1874, before the court without a jury, and judgment rendered in favor of Smith, adjudging him the owner of the undivided half, and decreeing partition as between him and Scarborough. The tax deed was adjudged void, and defendants barred from setting up any claim to the property by reason thereof. The defendants brought the case to this court, and the judgment was affirmed. (18 Kas. 399.) No judgment was rendered in favor of the plaintiff for the rents and profits claimed, for reasons to be hereafter stated. Thereafter the plaintiff commenced this action to recover such rents and profits. The case was tried in the district court without a jury, and judgment rendered in favor of the plaintiff for $261.85. That judgment was brought to this court, and reversed. (23 Kas. 65.) The case went back for a second trial, and on this trial the court found in favor of defendants. The plaintiff now alleges error.
On the former trial of this case, the district court treated the findings in the old case of Smith v. Scarborough, as an adjudication, and upon them rendered judgment in favor of the plaintiff. This court held that was error, and that findings without a judgment do not amount to an adjudication. The facts as disclosed by the record in the original case are as follows: “Auld and Stebbins collected $1,825 as rent from 1868 to 1875, on the same,” that is, on said, real property. (10th finding of fact.) “Auld and Stebbins paid $1,354.25” taxes on said property. (11th finding of fact.) “Auld and Stebbins and Scarborough went into possession of said lot on March 30, 1868, and have ever since been in possession and receiving rents, and have also paid taxes, as appears on the tax-roll, thereon each year, and each year’s rent has been in excess of each year’s taxes, and in the aggregate has been $470.75 in such excess.” (24th finding of fact.) “The plaintiff’s claim for a judgment for rents received, being a matter of accounting between them (Smith, Auld and Stebbins), and not affecting all the parties to this action, the same cannot be determined in this action, and the same is refused. It is sufficient here to say that the rents received are in excess of the taxes paid by them (Auld and Stebbins), and consequently there can be no lien against the property.” (Part of conclusions of law.) “And plaintiff also excepts to the dismissal by the court of his claim for an account of rents and profits against Auld and Stebbins, and refusal to make a decision thereon.” (Part of plaintiff’s exceptions.)
“And the court thereupon does dismiss so much of the plaintiff’s petition as demands an accounting for the rents and .profits against defendants Auld and Stebbins, and a personal judgment therein against such defendants for any excess therein found due to plaintiff.” (Order of judgment dismissing plaintiff’s claim for rents and profits.)
Judgment was rendered in that action, that the property belonged to Smith and Scarborough, and that neither Auld nor Stebbins had any lien thereon or interest therein, and that the property should be partitioned between Smith and Scarborough; “ and that of the costs in the action, said Auld and Stebbins be adjudged to pay ten dollars, part thereof, and each said Albert G. Smith and George Scarborough one-half the balance of such costs, and therefor that execution issue.” No judgment further than the said judgment or order of dismissal was rendered concerning said rents or profits.
On the second trial, the district court held that the proceedings in the first case were an adjudication against the plaintiff’s right to recovery. This of course goes to the other extreme. On the first trial, the proceedings were held conclusive in favor of the plaintiff, and now they are held conclusive against the plaintiff. This rests upon the theory that the question of rents and profits was in issue in the former, case, and that a failure to render judgment for them is equivalent to a judgment against them. And the question now presented is, whether the findings, order and judgment in the first case are an adjudication conclusive against the plaintiff’s right of recovery.
The whole philosophy of the doctrine of res adjudicata is summed up in the simple statement that a matter once decided is finally decided; and all the learning that has been bestowed and all the rules that have been laid down, have been for the purpose of enforcing that one proposition. One rule fully established is, that you may examine the entire record of the prior action in order to determine what was in fact adjudicated. The inquiry is not limited to the mere formal judgment. It extends to the pleadings, the verdict, or the findings, and the scope and meaning of the judgment is often interpreted by the pleadings, verdict, or findings. Indeed, to determine the matters which were adjudicated, not only may you look to the entire record, but also in many instances you may resort to parol testimony. (Wood v. Jackson, 8 Wend. 10; Doty v. Brown, 4 N. Y. 71; Babcock v. Camp, 12 Ohio St. 11; Strother v. Butler, 17 Ala. 733; Littleton v. Richardson, 34 N. H. 179.)
Now if we examine the record, nothing can be plainer than that the court did not pretend to decide whether plaintiff was or was not entitled to recover rents and profits. True, it found the amount of taxes paid, the amount of rents collected, and the excess of the latter over the former, but it expressly said that the plaintiff’s claim for judgment for rents, being a matter of accounting between certain of the parties, and not affecting all, could not be determined in that action, and was refused. It is true that the last clause is, that the claim was refused; and if that stood alone, it might be fairly inferred that the court decided against the validity of the claim. But that clause is interpreted manifestly by what precedes, and taking it all together it means that the court refuses to render judgment in reference to this rent matter, because it is not properly determinable in that action. Taking the whole language of this finding together, the question is free from doubt.
But it is said by counsel for defendants in error, that in the entry of judgment was an order dismissing plaintiff’s claim for rents and profits; that such dismissal does not pur port to have been made without prejudice; that the action was an equitable one; and that the settled rule in equity proceedings is, that a judgment of dismissal, unless expressly stated to be without prejudice, is conclusively presumed to be a judgment on the merits, and a final determination of the controversy — citing in support thereof, these among other authorities: Barrowscale v. Tuttle, 5 Allen, 377; Foote v. Gibbs, 1 Gray, 511; Perin v. Dun, 4 Johns. Ch. 141; Durant v. Essex Co., 7 Wall. 107; Weldon v. Bodley, 14 Pet. 156; Bigelow v. Winsor, 1 Gray, 299—301; Durant v. Essex Co., 8 Allen, 103; Blackington v. Blackington, 113 Mass. 231.
We think counsel state the rule a little too broadly, even as respects the old equity practice. In Freeman on Judgments, § 270, the author thus states it:
“The dismissal of a bill in chancery stands nearly on the same footing as a judgment at law, and will be presumed to be a final and conclusive adjudication on the merits, whether they were or were not heard or determined, unless the contrary is apparent on the face of the pleadings, or in the decree of the court.”
Story, in his Commentaries on Equity Pleadings, §§791, 793, holds that an order of dismissal is a bar only where the court has determined that the plaintiff had no title to the relief sought by the bill, and that therefore a dismissal for the want of prosecution is no bar. (See also Neafie v. Neafie, 7 Johns. Ch. 4.)
In the case of Loudenback v. Collins, 4 Ohio St. 251, the court held, that when it did not appear affirmatively that the dismissal was upon the merits or upon hearing, it would not be presumed that it was so dismissed, and that it was therefore no bar. A similar ruling was made in the case of Love v. Trueman, 10 Ohio St. 45. In that case a demurrer to the bill was sustained, and thereupon, as the record reads, the bill was dismissed at the cost of complainants. The court said that the sustaining of the demurrer might have been on the ground that there was a plain and adequate remedy at law, and therefore no jurisdiction in a court of equity; and hence the subsequent dismissal did not affirmatively appear to be a decision upon the merits.
In the case of Foster v. The Richard Busteed, 100 Mass. 409, the court thus states the law:
“To be a bar to future proceedings, it must appear that the former judgment necessarily involved the determination of the same fact, to. prove or disprove which, it is introduced in' evidence. It is not enough that the question was one of the issues in the former trial. It must also appear to have been precisely determined. The doctrine of res adjudícala is plain and intelligible, and amounts simply to this: that a cause of action once finally determined without appeal between the parties, on the merits, by any competent tribunal, cannot afterward be litigated by new proceedings, either before the same or any other tribunal. But no such effect is attributable to a decree dismissing a bill for want of jurisdiction, failure of prosecution, want of parties, or any other cause involving the essential merits of the controversy. (1 Dan. Ch. Pr., 3d Am. ed., 683, 808.) And where in the answer various matters of defense are set up, some of which relate only to the maintenance of the suit, and others to the merits, and there is a general decree of bill dismissed, from which it does not appear what was the prevailing ground of defense, it is impossible to hold that the decree operates to preclude future proceedings.”
See also Foote v. Gibbs, 1 Gray, 412; Howard v. Kimball, 65 Me. 308; Merritt v. Campbell, 47 Cal. 542; Gray v. Dougherty, 25 Cal. 266-272.
In the case from 1 Gray, Chief Justice Shaw, speaking for the court, observes:
“ But if a court does not take jurisdiction of a suit in equity, but dismisses the bill because the plaintiff has an adequate remedy at law, or for want of prosecution or otherwise, for some cause not embracing an adjudication on the merits, such dismissal is not a bar.”
We think it fairly follows from these authorities that the mere fact that the dismissal is not expressed to be without prejudice, does not necessarily establish that it was a decision on the merits, and therefore a bar to a subsequent action.
But it is said that this was an equity action; that the court had jurisdiction of the parties, and could fully determine all rights between them; that it had jurisdiction to render judgment in favor of the plaintiff, and against Auld and Stebbins, for these rents; that this is clear from the opinion of this court in 18 Kas., supra; that the issue as to the rents and profits and the recovery thereof was fully tendered by the pleadings, and that notwithstanding all this the court rendered judgment against the plaintiff in respect to these rents; and that whatever reason the court may have given, whether good or bad, does not avoid the effect of the judgment which in fact it rendered. In other words, looking at it in the most favorable light for the plaintiff, it is simply a case of a wrong reason for a right judgment; and that in any subsequent inquiry, regard will be paid rather to the fact of the judgment than to the sufficiency or the insufficiency of the reasons given for it; that not only was a judgment rendered, but exceptions were taken, and the plaintiff if he had desired could have brought the record to this court and obtained a review of so much of the judgment as denied him relief for rents. This reasoning ■ is not satisfactory. The vice of it is here: no distinction is drawn between a reason for a judgment on the merits, and a reason for refusing judgment on the merits. If it appears that judgment on the merits was in fact rendered, then, whether the reason therefor be good or bad, is immaterial; but here the reason that the court gives is for its refusal to render judgment on the merits, and that reason determined the scope and effect of the judgment which it in fact rendered. The fact that exceptions were taken, and that the judgment or order of dismissal might have been brought to this court and reviewed, is not conclusive; for wherever an order of dismissal is entered, whether involving a decision on the merits, or based upon the ground of a want of proper parties, or on the ground that the action was prematurely brought, or any other matter outside the merits, the order or judgment of dismissal may be brought to this court and reviewed. The fact that the trial court may consider any of these outside matters as sufficient to prevent an inquiry into the merits of the claim, is not conclusive on that question, and may be corrected by proceedings in error. If not corrected, it remains simply as an adjudication of the precise matters determined, and not as a judgment on the merits.
In conclusion, it may be laid down as a general proposition, that wherever from the face of the record it affirmatively appears that an order of dismissal was based on matters other than the merits, such order of dismissal will not be a bar to a future action. Prom the findings of fact as preserved in the record, it is apparent that the case is ready for final disposition by this court. The judgment will therefore be reversed, and the case remanded with instructions to enter judgment in favor of the plaintiff in error, plaintiff below, for the sum of $361.70.
"Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel at one time in the case in the court below.
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The opinion of the court was delivered by
Horton, C. J.:
On June 5, 1882, Mary Isabel Martin and her son, E. D. Mosley, were jointly charged with the murder of Loraine M. Keiger, who died May 23, 1882, from the effect of poison. The trial of Mary Isabel Martin, the mother, was commenced on June 12, 1882. A verdict of guilty of murder in the first degree was rendered against her, and on December 29,1882, she was sentenced. The defendant Mosley was tried in February following, and convicted of murder in the first degree, for counseling, aiding and abetting*his mother in the commission of the murder of Mrs. Keiger.
Upon the trial, the record of the conviction of Mary Isabel Martin was introduced in evidence, and the court also permitted witnesses to testify to statements made by her half an hour after Mrs. Keiger died, tending to show she was guilty of poisoning her. The court instructed the jury that the record of the conviction of Mrs. Martin was prima facie evidence of her guilt. All of these rulings are complained of. The objections, however, are unavailing. Sec. 287, ch. 31, Comp. Laws of 1879, reads:
“ Every, person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony, before the fact, shall upon conviction be adjudged guilty of the offense in the same degree, and punished in the same manner, as herein prescribed with respect to the principal in the first degree.”
And § 115, eh. 82, Comp. Laws of 1879, provides:
“Any person who counsels, aids or abets in the commission of any offense, may be charged, tried and convicted in the same manner as if he were a principal.”
While these sections of the statute authorized the charging of defendant — an accessory before the fact — as a principal, to convict him it was necessary to establish that the mother, Mary Isabel Martin, had poisoned the deceased. It was not, therefore, error to allow facts to be shown on the trial tending to prove the guilt of the principal, Mary Isabel Martin. (The State v. Cassady, 12 Kas. 550.) The record showing her conviction was proof prima faeie of that fact, but this was not conclusive, and other evidence of the commission of the crime by her was admissible. (Levy v. The People, 80 N. Y. 327; Arnold v. The State, 9 Tex. Ct. App. 435.)
Upon the trial, after the defendant had rested without testifying, the state introduced a witness — one Marsh — and offered to prove certain facts, to which the defendant objected as not being proper rebuttal. Thereupon the county attorney said to the court: “Your honor, we had a right to presume that the defendant would testify as a witness in his own behalf, in which case this evidence would have been proper rebuttal, and he having failed to do so, we claim the right to introduce it now.” It is claimed that in using this language to the court in the hearing and presence of the jury, the county attorney was guilty of such misconduct as warrants the granting of a new trial. This claim is made under the provision of §1, ch. 118, Laws of 1871, which reads:
“And provided further, that the neglect or refusal of the person on trial to testify, or of a wife to testify on behalf of her husband, shall not raise any presumption of guilt, nor shall the circumstance be referred to by any attorney prosecuting the case.”
“The neglect or refusal” of the defendant to testify was not referred to by the county attorney, except incidentally to the judge of the court in his argument favoring the introduction of evidence. We understand the statute is explicit that when a defendant in a criminal cause declines to testify in his own behalf, absolute silence on the subject is enjoined on counsel in their argument on the trial, and that the courts will hold prosecuting attorneys to a strict observance of their duty in this respect. (State v. Graham, 17 N. W. Rep. 192; Long v. State, 56 Ind. 182; Commonwealth v. Scott, 123 Mass. 239.) Yet we do not think the incidental allusion to the court by the county attorney, under the circumstances, was such misconduct as requires us to grant a new trial. The remarks of the county attorney were not made in an address to the jury, were not directed to the jury, nor intended for the jury. It is possible and more than probable that the members of the jury heard the remarks, as they were uttered in their presence, but the county attorney evidently did not intend to infringe upon the provision of the foregoing statute, and we cannot regard his remarks, made ,as they were, as material error. (Calkins v. State, 18 Ohio St. 366.)
An examination of the affidavits does not satisfy us that the county attorney in his closing argument to the jury referred to the defendant's failure or refusal to testify in his own behalf. The language of the county attorney was concerning the trial of Mary Isabel Martin, and the failure of her son to testify as a witness in that case. This was made in answer to the remarks of one of the attorneys for the defendant, that the latter was not present and had not testified on the trial of his mother, and therefore her conviction should not be conclusive of her guilt against him.
In view of the decisions of this court in The State v. Kearley 26 Kas. 87; The State v. Bridges, 29 id. 138, nothing further need be said regarding the refusal of the court to define the phrase “reasonable doubt.'' We have already held that there was sufficient evidence to warrant the jury in finding Mary Isabel Martin guilty of the murder of Mrs. Keiger, ante, p. 000, and we cannot, upon the record, say that there was no evidence in this case to sustain the verdict against the defendant.
The judgment of the district court must be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This case has once before been in this court. (Wagstaff v. Challiss, 29 Kas. 505.) The action was originally bronght by Challiss before a justice of the peace,, to recover from Wagstaff the sum of $300 on an account for rent. The defendant filed no answer or bill of particulars, and none was demanded by the plaintiff. After judgment the case was appealed to the district court, where judgment was rendered in favor of Challiss and against Wagstaff. This judgment was reversed by the supreme court. (Wagstaff v. Challiss, supra.) On filing the mandate of the supreme court in the district court, Challiss demanded that Wagstaff should file a bill of particulars of any set-off which he might claim in the case, and the court ordered the same to be done within twenty days. In pursuance of this order, Wagstaff filed a bill of particulars containing: (1) a general denial; (2) a set-off for $692.38, with interest; (3) a set-off for $2,225, and interest. Challiss then moved to strike out these set-offs because they were beyond the jurisdiction of a justice of the peace and not triable in that action, and the court sustained the motion. Wagstaff then moved the court to permit him, “in furtherance of justice,” to file a new pleading setting forth his said set-offs, amounting to nearly $3,000. This motion the court overruled. On the trial, which was before the court and a jury, Wagstaff offered to prove his said set-offs, but the court refused to permit him to do so.
These proceedings raise simply the following question: Where an action for the recovery of money only has been commenced before a justice of the peace and is afterward appealed to the district court, has the defendant the absolute right to set up, claim and prove a set-off for an amount exceeding $300?
Section 2 of the justices code provides, among other things, that—
“Justices of the peace shall have original jurisdiction of civil actions for the recovery of money only, and to try and determine the same where the amount claimed does not exceeds three hundred dollars.”
Section 122 of the justices code provides, among other things, that a case appealed from a justice of the peace to the district court—
“Shall be tried de novo in the district court upon the original papers on which the case was tried before the justice, unless the appellate court, in furtherance of justice, allow .amended pleadings to be made, or new pleadings to be filed.”
•Section 116 of the justices code reads as follows:
'“Sec. 116. When the amount due to either party exceeds 'the sum for which the justice is authorized to enter judgment, such party may remit the excess, and judgment may be entered for the residue. A defendant need not remit such excess, and may withhold setting the same off; and a recovery for the amount set off and allowed, or any part thereof, shall not be a bar to his subsequent action for the amount withheld.”
From these provisions of the justices code it appears that no cause of action, whether it be the foundation of a suit or a set-off in the action, is within the jurisdiction of a justice of the peace, unless “the amount claimed does not exceed three hundred dollars.” It is the “amount claimed” that fixes the jurisdiction of the justice of the peace. (Justices Code, § 2.) Either party, however, may set forth the whole of his cause of action as the foundation of a suit or as a set-off in a justices court, if he does not claim thereon more than three hundred dollars. If it is the plaintiff who sets forth the cause of action, he must remit the excess over and above $300; but if it is the defendant who sets forth the cause of action as a set-off, he is not required to remit the excess, but he is required to “withhold setting the same off;” and he cannot make any claim therefor in his bill of particulars, or in any other manner, in the justice’s court. If he should make a claim therefor, he would at once oust the justice of his jurisdiction to hear and determine such cause of action. And when the ease is appealed to the district court, the district court takes the case just as it was when it was tried in the justice’s court. The jurisdiction of the district court in such a case is wholly and exclusively appellate. Its original juris-' diction is not invoked at all. If we are correct in this, then the authorities cited by counsel for plaintiff in error have no application to this case; for in those cases the appellate court retried the cases just as though such cases had originated in the appellate court. Their original jurisdiction was invoked, and not merely their appellate jurisdiction, as is the case on appeals from justices of the peace to the district court in Kansas.
We have not been referred to any cases exactly in point. Whether there are any such; we do do not know. We refer, however, to the following decisions of our own court, as having some application: Sanford v. Shepard, 14 Kas. 228, 231; Stanley v. Farmers’ Bank, 17 id. 592, 595, 596; Kuhuke v. Wright, 22 id. 464; Robbins v. Sackett, 23 id. 301, 304; Ziegler v. Osborn, 23 id. 464, 466, 467.
We also refer to §§121 and 128 of the justices code, as throwing some light upon this question. Section 121 provides, in substance, among other things, that the sureties on the appeal bond shall satisfy any judgment rendered against the appellant, or be liable on such bond. Now may the appellee set forth new claims in the district court, or enlarge his previous claims so as to place them vastly beyond the jurisdiction of a justice of the peace, and by this means swell to an unlimited extent the amount of the judgment against the appellant, and the amount for which the surety is liable on his appeal bond ?
Section 128 of the justices code provides that—
“If any person appealing from a judgment rendered in his favor shall not recover a greater sum than the amount for which judgment was rendered, besides costs and interest accruing thereon, every such appellant shall pay the costs of such appeal.”
Now may the appellee present new claims in the district court, or enlarge his previous claims to an extent vastly beyond the jurisdiction of a justice of the peace, and thereby prevent the appellant from recovering a greater sum than the amount of the judgment which he had formerly recovered, and thereby make the appellant pay the costs of the appeal, although upon the original claim he may recover vastly more than he did on the original trial? We certainly think such cannot be the case. Indeed, the district court takes a case appealed from a justice of the peace merely as an appealed case, and does not take any original jurisdiction; and the district court cannot add to its jurisdiction by allowing new claims to be presented, or the former claims to be increased, or augmented, so as to place the case beyond what would have been the jurisdiction of the justice of the peace, who fifst had jurisdiction of the case, if the case had still remained in that court.
As before stated, the district court takes merely appellate jurisdiction, and not any original jurisdiction. Upon this question we think the, decision of the district court was correct. In this case the defendant claimed to set off the whole of his set-offs, and did not propose merely to set off an amount within the jurisdiction of a justice of the peace, and to withhold setting off the excess over and above the jurisdiction of a justice of the peace. It was this claim, of the defendant that deprived the district court of jurisdiction to hear and determine the defendant’s set-offs, or any portion thereof. If the defendant had proposed to set off only a portion of his set-offs, and a portion within the jurisdiction of a justice of the peace, the district court would have had the jurisdiction to hear and determine the same. But the defendant did not choose to split the amounts of his set-offs. We suppose he preferred to commence one new single original action in the district court for the entire amount. Probably that was better than to split the amounts of his set-offs and make virtually two suits to enforce them, and be under the necessity of proving them twice.
The plaintiff in error also claims that the court below erred in refusing to suppress a certain, deposition of Alfred Pritchard. The deposition was taken before John R. Reiss, a notary public of Milwaukee, Wisconsin. There was a firm of lawyers in that city whose firm-name was “Davis & Reiss,” one of whom, to wit, Davis, acted as counsel for Challiss in taking this deposition; and the plaintiff in error, Wagstaff, claims that the other member of the firm was the John R. Reiss before whom the deposition was taken. The said John R. Reiss, as notary public, however, certified that he was not an attorney for either party, and not otherwise interested in the event of the suit; and there is no fact stated in the record of the case showing that this was not true. If it was not true, it could easily have been shown; for the deposition of Pritchard was taken on December 4, 1880, and it was not used on the trial of which the plaintiff in error, Wagstaff, now complains, until June 28 or 29, 1883. Wagstaff had ample notice of the manner in which this deposition was taken;’ for while the case was still pending in the justice’s court in 1880 or 1881 a similar motion was made by him to suppress this deposition, and the motion was supported by similar evidence, but the justice overruled the motion. One of the counsel for Wagstaff filed in the district court an affidavit in the case, stating, among other things, “that to the best of his information and belief, the John R. Reiss who acted as notary public in taking and writing the deposition of said Pritchard was and is one of the firm of Davis & Reiss, employed by plaintiff Challiss in the ease.” But “ information and belief” is hardly sufficient to overturn the certificate of the notary public that he was not an attorney or interested in the case, and to overturn the decision of the district court refusing to suppress the deposition, and to overturn the judgment of the district court, when, from anything appearing in the record, the judgment may be right, even if this deposition had been suppressed. In all probability, John R. Reiss had no interest as attorney or otherwise in this case.
We presume that the instructions of the district court are correct under the evidence. Certainly we cannot say, from the evidence brought to this court, that they are not correct.
Perceiving no material error in any of the rulings of the district court, its judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Hokton, C. J.:
This was an action brought by J. H. Barnes, to charge the assets of the Riley County Bank of Manhattan, in this state, in the hands of Joseph T. Ellieott, its assignee, with a trust in his favor for the sum of $500, which he delivered to J. K. Winckip, as cashier of the bank, on December 21, 1881, for the purpose, as he alleges, of paying a note executed to the bank prior to that date, but at the time owned and held by the Harrison National Bank of Cadiz, Ohio. He obtained a judgment in his favor, which the plaintiff in error claims is erroneous.
The material facts in the case do not differ from those in Peak v. Ellicott, 30 Kas. 156, with the exception that in the latter case the maker of the note had satisfied the note held by the Harrison National Bank prior to instituting his action against the cashier, while in this case the Harrison National Bank has obtained judgment for the amount due on the note, but the judgment has not been paid and is wholly unsatisfied. This difference, however, does not change the law applicable to the cases. “ If the money was not applied by the bank of which Windup was the cashier, to the satisfaction of the note, according to the understanding of the parties, it should have been returned to the plaintiff below.” The Harrison National Bank does not claim the money deposited, has made no demand for it, and has not agreed to accept it from the bank or its assignee. (Peak v. Ellicott, supra.)
It is next contended that the court erred in permitting the introduction of a conversation between Barnes and the cashier, who died subsequently, and before the trial. Counsel suggest that —
“If the acts of the cashier are the acts of the bank, and if what he says are the words of the bank, then to all intents and purposes the cashier is the bank. If this be true, when the cashier is dead the bank is a deceased person, within the meaning of the statute, § 322 of the code.”
This argument is neither plausible nor sound. The cashier is the executive officer or agent of the financial department of the bank, and in all the duties imposed upon him by law or usage, as such cashier he acts for the bank and speaks for the bank; but if he dies the bank does not die, and §322 has no application whatever. The Riley County Bank is not a deceased person within the meaning of the statute; neither was the adverse party in the case the executor, administrator, heir-at-law, next of kin, surviving partner or assignee of any deceased person.
It is also contended that the court erred in rendering judgment, because it did not appear that the money delivered to the cashier was credited upon the books of the bank. The money was delivered to the cashier of the bank, at the bank, and as an officer of the bank such cashier properly received it on behalf of the bank, and then handed back the ordinary memorandum, stating what sum had been received or deposited. There is no evidence that the money has been lost or embezzled, and the bank must be holden liable therefor, notwithstanding the evidence of the assignee that the books of the bank show no entry of the deposit of the money. The cashier may have omitted to enter the same on the books of the bank, but such omission cannot prejudice the rights of anyone interested.
It is finally insisted that Barnes was an ordinary depositor in the bank, and not entitled to any more than an ordinary depositor’s rights, because concluded by the memorandum or receipt he accepted from the cashier. This memorandum, or receipt, was signed by Winchip, as cashier, was dated the day of the delivery of the money, and credited Barnes with $500. It did not set forth, however, that the money was to be applied solely in the payment of the note executed to the bank. Barnes, however, testified that when he delivered the money to the cashier he did so for the express purpose of paying the note; that the cashier then told him that the bank-did not have the note, but would get it from Kansas City and return it to him. This memorandum or receipt was open to explanation by evidence aliunde; therefore the admission of evidence stating the purpose of the deposit, and the agreement of the cashier as to the use of the money, was not improper, and Barnes was not concluded by the character of the receipt he took from impressing the money he paid to the cashier with the trust. (Morse on Banks and Banking, 58, 59; Bridge Co. v. Murphy, 13 Kas. 40; Stout v. Hyatt, 13 id. 233.)
The judgment of the district court will be affirmed.
All the Justices concurring.
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Per Ouriam:
William Forney, city marshal of Cottonwood Falls, in Chase county, was charged with unlawfully and feloniously taking, stealing and carrying away in the nighttime, out of and from a drawer in a writing desk in the office of J. A. Smith, one Smith & Wesson revolving pistol, of the value of $15. The jury returned a verdict of not guilty, as to Forney; and further found that J. A. Smith was the prosecuting witness, and that the prosecution had been instituted without probable cause, and from malicious motives. Judgment was rendered in accordance with this verdict. J. A. Smith appeals to this court.
Within the authority of The State v. Zimmerman, ante, p. 85, the judgment of the district court must be affirmed. See also The State v. Spencer, 81 N. C. 519; The State v. Adams, 85 id. 560.
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The opinion of the court was delivered by
Horton, C. J.:
It appears from the findings of the trial court that the real estate described in the petition, viz., lot 19, in block 16, in L. C. Challiss’s addition to the city of Atchison, was assessed and placed upon the tax roll for taxation in 1872 as in “Challiss’s addition;” that the taxes for 1872 remaining due and unpaid thereon, the county treasurer advertised the same for sale at the tax sale to be held on the first Tuesday of May, 1873, and the lot, described only as in “Challiss’s addition,” was sold on May 15, 1873, to the de fendant in error, for $23.12; that on May 15, 1873, a tax-sale certificate was issued by the county treasurer of Atchison county to the defendant in error, describing the property only as “lot 19, in block 16, C. A., situated in Atchison county, Kansas;” that on June 28,1877, the lot not being redeemed, the county clerk, on the application of the plaintiff below, issued to him a tax deed, describing the property as in “ Challiss’s addition to the city of Atchison;” that this deed was recorded in the office of the register of deeds of the county on June 29, 1877; that on March 25, 1881, the defendant in error again presented the same tax-sale certificate to the county clerk, and requested him to issue another tax deed, describing the lot as in “L. C. Challiss’s addition to the city of Atchison; ” that the county clerk then issued to the defendant in error another tax deed upon the old certificate, describing the lot as requested, and reciting only the payment of the taxes for 1872, 1873, 1874, and 1875, as in the prior tax deed.
Upon these and the other findings of the district court, we think the power of the county clerk was exhausted in executing the first deed. It is unnecessary for the purpose of this case to decide whether the tax roll of 1872, or the tax certificate of May 15, 1873, sufficiently described lot 19 in block 16 in L. C. Challiss’s addition to the city of Atchison. A tax deed, to be valid, must not only substantially conform to the requirements of the statute, but must correspond with the proceedings upon which it is based, in all essential particulars. The county treasurer must give to the purchaser, on payment of his bid, a certificate describing the lands purchased, in accordance with the records of the tax proceedings in his office. If the land be not redeemed within the time prescribed by the statute, the county clerk of the county where the land is sold, on presentation to him of the certificate of sale, must execute in the name of the county, as county clerk, to the purchaser, his heirs or assigns, a deed to the land remaining unredeemed; but he has no power to insert in the deed executed by him another and different de scription from that contained in the tax proceedings. While it is sufficient to describe lands in all proceedings relative to assessing, advertising or selling the same for taxes, by initial letters, abbreviations and figures to designate the township, range, section or parts of section, and also the number of lots and blocks, and while it is competent for the county clerk, instead of using such initial letters, abbreviations and figures in the tax deed executed by him, to write out in full the words which such initial letters, abbreviations, etc., represent, yet he is not to make any material or substantial variance in the description of the property inserted in the deed, from that set forth in the prior tax proceedings upon which it is based. Each act of the tax proceedings must substantially correspond with its immediate antecedent. (Blackwell on Tax Titles, 434.)
A tax certificate and a deed thereon have relation to, and are founded upon, the tax proceedings prior thereto, and a county clerk fully performs his duty when he writes out in full, in the tax deed, the description of land given on the tax roll, and the proceedings upon which the tax sale is made. The deed of June 28, 1877, described the premises therein mentioned as fully as any of the records of the tax proceedings authorized. The county clerk had no power to go further. If he had added anything in the tax deed to the description not contained in the tax proceedings, such addition would not aid or materially benefit the deed. He could not affect the title thus conveyed, or attempted to be conveyed, by the execution of a subsequent tax deed containing a different description from that set forth in the prior tax proceedings. If the proceedings up to the execution of the first tax deed were invalid for want of a sufficient description of the property sold at the tax sale, the fatal defect could not be cured by the execution of a subsequent tax deed containing a description not found in the prior tax proceedings. If, however, the description in the tax proceedings prior to the execution of the first deed was sufficiently definite and certain, then the first tax deed was valid for all purposes, and the county clerk had no power to execute the subsequent tax deed.
It is shown from the findings that the plaintiff in error, L. C. Challiss, has been the owner of said lot 19 since November 18, 1858, and that for ten years past the lot has been actually and continuously occupied by various persons as lessees of said plaintiff in error. As the first tax deed was recorded on June 29, 1877, and as no action was brought for the recovery of the lot sold for taxes within two years after the recording of the deed, the plaintiff was not entitled, under the statute of limitations, to maintain any action thereon. (Bowman v. Cockrill, 6 Kas. 311; Corbin, v. Bronson, 28 id. 532.) And as such tax deed had become barred by the statute of limitations before the commencement of this action, the plaintiff was not entitled in this action to recover back the taxes paid by him, or to have them declared a lien on the land. (Corbin v. Bronson, supra.)
The judgment of the district court must be reversed, and the cause remanded with direction to the district court to enter judgment upon the findings of fact in favor of the plaintiffs in error.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action to compel the specific performance of a contract for the sale of certain real estate situated in Wyandotte county. The contract of sale is embodied in a certain written instrument, which reads as follows:
“Article of agreement made and entered into this 21st day of February, 1880, between Simeon B. Bell, of the first part, and T. W. Wright, of the second part, witnesseth: That the said Simeon B. Bell, of the first part, rents, leases, and bargains to the party of the second part a certain tract of land described and bounded as follows, namely: Commencing one hundred and fifty feet southwest of the culvert near the old graveyard on the Eosedale and Kansas City road ; running northeast along said road, southwest side, four hundred and seventeen feet to the stone retaining-wall; thence northwest to a tall walnut stump in the cabbage patch; thence west to a lai’ge hollow walnut stump; thence south of west to old locust stump; thence southwest across the spring run to big lone elm tree; thence to place of beginning. The same to be enlarged or contracted upon an accurate measurement, so as to contain three acres: To have and to hold said land for stock, fruit, and gardening purposes for a period of ten years from this date. The gas well is included in said lease.
“In consideration of which, the party of the second part agrees to pay to said Bell the sum of thirty dollars per year, the sum of seven dollars and fifty cents quarterly, in advance; to pay all lawful taxes on said land when due; to fence said land with a good five-board fence, except along the Eosedale road, and to maintain and keep in repair all of said fence while in possession. And it is further agreed by these parties, that this lease is transferable, and that all buildings erected on said land may be removed unless the parties in interest can agree on the purchase and sale of the same; but that all shade trees and fruit trees, bushes, small fruit, shrubs, vineyards and berry plants, shall be preserved, and fences also shall be left and remain on said premises as part of the same. And further, that if the above stipulations are not fulfilled and complied with, that such failure at any time renders this lease void, and that the property reverts to the original owner. Further, the said Simeon B. Bell agrees to take three hundred and fifty dollars ($350) per acre for said land if purchased and paid for within two years. Said lease to take effect March 1,1880.
“In witness whereof, we have hereunto set our hands and seals, this 21st day of February, 1880.
Simeon B. Bell.
T. W. Weight.”
After the issues were all properly made up by the filing of a petition, answer and reply, the ease was referred to a referee, who tried the ease and made special findings of fact and of law, and reported the same to the district court, where judgment was rendered in favor of the plaintiff and against the defendant, requiring the defendant to specifically perform the contract and to pay the costs of suit. The defendant, not being satisfied with this judgment, brings the case to this court and asks that the judgment may be reversed.
T. W. Wright, the defendant in error, was the plaintiff in the court below; and Simeon B. Bell, the plaintiff in error, was the defendant in the court below. The plaintiff in the court below alleged in his petition, among other things, that within two years of the making of the said contract, he exercised his option to purchase the property in controversy, and tendered to the defendant the amount required to purchase the same; but that the defendant below refused to convey the property to the plaintiff; and therefore the plaintiff prayed in his petition that the defendant be compelled to specifically perform his contract by conveying said property to the plaintiff.
Under the foregoing contract, the plaintiff went into the immediate possession of the property, and proceeded at once to erect a house thereon, and to make other lasting and valuable improvements thereon, of .the aggregate value of several hundred dollars; he also dug a well, planted trees, shrubbery, etc., and made other improvements of a fixed and permanent character, and such as cannot well be removed from the premises; and he has remained in the possession of the premises ever since he first took possession thereof.
It will be seen, by an inspection of the foregoing contract, that the plaintiff below agreed to perform three things as a consideration for his use of the property ten years as a lessee thereof, to wit: (1.) He agreed to pay, as rent for the use of the property, $30 a year, in payments of $7.50 quarterly, in advance. (2.) He agreed to pay all the lawful taxes on the land “when due.” (3.) He agreed “ to fence said land with a good five-board fence, except along the Rosedale road, and to keep in repair all of said fence while in possession.”
But the plaintiff did not agree to do anything as a condition precedent to the exercise of his option to purchase the property. He had the right to exercise this option tó purchase the property at any time within two years after making the contract; even on the next day thereafter; before the commencement of the lease; before he took possession of the property; before he paid any rent thereon; before he paid any taxes; before he fenced the land; and before he repaired any of the fences: and if he had done so, he would certainly never have been required to do any of these things,, for evidently whenever he exercised his option to purchase the property he terminated the lease, and released himself from the performance of all things not yet due by virtue of the stipulations contained in the lease. He however allowed the lease to continue in force for the period of nearly twp years, and so did • the defendant. Neither of them attempted to terminate the lease at any earlier period of time. The plaintiff paid the rent regularly, in quarterly payments, as he agreed to do, for the period of two years, and up to March 1,1882, and the defendant received the same. The plaintiff did not, however, pay the taxes due upon the land “when due,” and about December 20,1881, the defendant paid the same, which amounted in the aggregate to $25.85. In a very few days after, however, the plaintiff tendered this amount to the defendant, and the defendant refused to accept the same, but did not at that time, or at any other time before or afterward, within the two years, claim any forfeiture of the lease or of the contract, on account of this failure of the plaintiff to pay the taxes; but, on the contrary, expressly as well as impliedly waived such forfeiture; allowed the plaintiff to continue in possession of the property, and to use the same, and continued to receive the rent frdm the plaintiff, as he had previously done, up to the end of the two years. The continuance to receive the benefits of the lease was certainly an implied waiver of the forfeiture. Neither did the plaintiff build the fence which he had agreed to build, nor did he repair the same. But he was not required to build the fence within the two years. The contract does not specify when he was to build the fence. It would therefore seem that the plaintiff would not and could not be in default because of any failure to build the fence, unless the property should finally révert to the defendant; and unless the plaintiff up to the time of such reversion, which might be ten years under the lease, or never under the contract for the purchase and sale of the property, should utterly fail to build the fence. It is now the intention of the plaintiff, and has been since February 21, 1882, that the property shall never revert to the defendant, and if it does not, then it is immaterial to the defendant whether the fence is built at all or not. And as the fence was not built prior to the time when the plaintiff exercised his option to purchase the property, the failure to keep such fence in repair was also rendered immaterial. And the defendant did not claim any forfeiture even of the lease, (saying nothing about the contract of purchase,) because of such failure to build the fence or to keep the same in repair. Indeed, at the time the plaintiff exercised his option to purchase the .property, the lease was still in full force, though the plaintiff still owed the defendant $25.85, the amount of the taxes which the defendant had previously paid on the property, which of course the plaintiff must pay. But as the plaintiff has exercised his option to purchase the property, he may now fence the same, or not, at his option.
On February 21, 1882, the plaintiff tendered to the defendant the sum of $1,100. This amount covered the contract price of the land in controversy, and the sum of $50 in addition thereto, which sum of $50 was intended and was sufficient to repay the taxes which the defendant had paid, and to cover any and all damages or losses which the defendant might have sustained by reason of any failure on the part of the plaintiff to perform any of the stipulations contained in the written contract which he had agreed to perform. This tender was absolute and unconditional; but the defendant nevertheless refused to accept the same, and refused absolutely to convey the property to the plaintiff.
The referee finds that—
“Defendant refused to accept the same, and refused to make a deed, and assigns as his sole and only ground for such refusals the non-payment of said taxes, and plaintiff’s default in making the fence mentioned in. the contract, and told plaintiff then and there to make said fence and pay said tax before making tender, but said nothing about interest at the time of refusing tender of purchase-money.”
The defendant now claims that the tender was insufficient, and claims that it was insufficient for still other reasons than those mentioned by him when the tender was made. The defendant now claims that the tender was insufficient, because the plaintiff did not also tender ten per cent, interest on the purchase-money. On the trial before the referee, the defendant testified, among other things, that within two or three days after the time when the defendant paid the taxes, the plaintiff came to him and had a conversation with him, a portion of which conversation is hereafter given. A portion of the defendant’s testimony on this subject is as follows:
“He [the plaintiff] was scarlet in his face. He thought I had paid tax and wanted to take advantage of him. I said I did not. ... I said inasmuch as he had put on some improvements, if he would pay me 10 per cent, interest from date of .lease, I would still make him a deed. He assented, and said he would do it. This was a few days after I had paid the taxes. He was excited, and said I was trying to take his home from him.”
Upon this same subject the referee finds that the plaintiff did promise the defendant that he would pay such interest; but also finds that “ such promise was without consideration, and was made while the plaintiff was in a state of great excitement, induced by the fear that he was about to lose the land.”
Now so far as this case is concerned, we do not think that it makes any difference whether any such parol contract was entered into between the plaintiff and the defendant, or not; or whether it was without consideration, or not; or whether the plaintiff was in a state of great excitement, or not; for no such question as these matters involve has ever in fact been in the case. It was admitted by the pleadings in the court below that the written instrument which we have already quoted, embodied the contraet between the parties; and no claim was made by the defendant in his answer that any other contract, either in writing or by parol, was ever made, or that any change or modification of the original written contract was ever made; and the defendant in his answer made no claim that the tender made by the plaintiff was not sufficient for the reason that the plaintiff did not tender any amount for interest on the contract price of the land. Upon this subject the defendant, in his answer, uses the following language:
“Defendant further says, that at the time said plaintiff made the tender of the money in February, 1882, he fully notified said plaintiff that he would have to comply with the terms of said contract in payment of taxes and building fence before defendant would convey said land, and that if he complied with said terms before two years expires, that then he would sell and convey the said land as set out in said contract.”
It will therefore be seen from the answer of the defendant and the finding of the referee, that the only ground upon which the defendant refused the tender was that the taxes had not been paid and that the land had not been fenced. Now the plaintiff tendered more than enough to pay the taxes and all possible damages; tendered it absolutely and unconditionally, and did not even intimate that he desired any change back; and, as before stated, the plaintiff was not in default with regard to the fence; and besides, as the plaintiff had concluded to purchase the land, it was immaterial to the defendant whether the fence was built, or not; and the question as to the defendant’s right to receive interest on the purchase-money was not in the case.
The above-quoted paragraph from the defendant’s answer shows that the defendant relied entirely upon the original written contract; and that he did not intend to make any defense under the subsequent parol contract. And a defendant generally has no right to rely upon any defense except such as he has set up in his answer. But the defendant now also claims that a deed for the land, filled up and ready to be executed, should have been tendered along with the money tendered. But as the defendant refused absolutely to execute any deed or any conveyance, this was unnecessary.
The defendant also claims that the land should have been surveyed before the plaintiff asked him to execute a deed therefor. Now this was not essentially necessary, though it would have been much better to have had the land surveyed first; but it devolves upon the defendant as much as upon the plaintiff to have such survey made. Besides, the defendant did not refuse the tender because of any want of a survey. The defendant also claims that one Emmet Werk should have been made a party to the case. Werk was not a necessary party. Besides, no question with reference to this matter was raised in the court below. (See §§89 and 91 of the Civil Code.)
We perceive no substantial error in this case. With reference to the main question involved in the case, see Hagar v. Buck, 44 Vt. 285; same case, 8 Am. Rep. 368.
The judgment of the court below will be affirmed,
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
A judgment was rendered in the district court of Allen county, in favor of H. N. Boyd and against the board of county commissioners of said county, for $225, damages alleged to have been sustained by Boyd by reason of the establishment of a county road, laid out, located and established under the authority and direction of such board of county commissioners. The county board now claims that such judgment is erroneous, for the following reasons: first, that said county road was never, in legal contemplation, laid out or established; second, that the district court had no jurisdiction to render such judgment; third, that the court erred in its instructions to the jury; fourth, that the court erred in overruling the motion of plaintiff in error for a new trial; fifth, that the judgment should have been in favor of the plaintiff in error and against the defendant in error, Boyd.
We do not think that any of the alleged errors are available to the plaintiff in error. None of the evidence has been brought to this court, and hence we cannot tell whether the said county road was legally established, or not, or whether the district court had jurisdiction to try the case, or not; but presumptively it had; and we cannot presume that the district court committed error in any particular, unless the error is affirmatively shown. Besides, the parties on the trial waived all irregularities and defects in locating, establishing and opening the said road, and especially agreed that the only question for the district court to determine was the amount of the damages which the plaintiff, .Boyd, was entitled to recover. After this agreement on the part of the parties was entered into, it was not necessary for the plaintiff below, Boyd, to show that the road was legally established, or to show that the prior proceedings were so regular as to give the district court jurisdiction to hear and determine the case. After this agreement, all these things should be presumed against the plaintiff in error, and it has certainly not been shown affirmatively that the road was not legally established, or that the district court did not have jurisdiction to hear and determine the case.
Further, as the evidence has not been brought to this court, we cannot tell whether the instructions complained of were erroneous, or not; or if erroneous, whether they were materially erroneous, or not.
Besides, it does not appear that any exception was taken to any of the instructions; and this court will not review instructions given by the district court to the jury, unless the instructions were excepted to at the time. Neither has it been shown that the court below erred in overruling the motion of plaintiff in error for a new trial, or in rendering judgment in favor of the plaintiff below, and against the plaintiff in error.
The judgment of the court below will be affirmed.
All the Justices concurring.
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Per Curiam:
The question involved in this case is one of fact, and the testimony wholly by affidavits. After a careful examination of all the affidavits introduced upon the motion to discharge the attachment, we are forced to the conclusion that there was not evidence sufficient to establish that the plaintiff in error (defendant below) on or before the 3d day of December, 1881, had sold and conveyed, or otherwise disposed of his property, or any part thereof, with the fraudulent intent to cheat or defraud his creditors, or hinder and delay them in the collection of their debts; or that he was about to make a sale and disposition of his property with such fraudulent intent; or that he was about to remove his property, or a part thereof, with such intent.
On the other hand, it does appear that just prior to the attachment, the defendant below was collecting his bills for the purpose of paying his debts, among others, a debt due to Challiss Bros, for $506, and that he continued paying his bills up to the levy of the attachment, and also paid many of them thereafter. It is shown in evidence, by testimony not contradicted, that between October 10th and December 3d he purchased of Challiss Bros, alone, about $2,000 worth of goods; that at the time of the levy he had over $800 worth of goods and merchandise on hand. It appears that the trans fer of the stock and fixtures to one Charles Collins was made after the levy of the attachment, and according to the testimony of Collins the chattel mortgage he held was given to secure him as a bondsman on the forthcoming bond given by the defendant below in this action.
This is not a case where the ruling of the district judge is to be sustained if there is any evidence supporting it, but the question whether the attachment should be sustained or dissolved is to be determined from the facts established by the testimony; and where the testimony is all contained in affidavit.*, this court is as competent as the district judge to form a just estimate of the credence to be given thereto. (Connor v. Comm’rs of Rice Co., 20 Kas. 575.) Even if it be true that the defendants in error, plaintiffs below, were induced by false promises to sign the notes sued on; that defendant below had failed before and cheated his creditors; that he is guilty of violating the criminal laws of the state; and that he had mortgaged his real estate for its full value before the execution of the note upon which the plaintiffs below were sureties; nevertheless, all of this would not establish the specific charges upon which the attaehment was granted. The district judge must have given, in view of the conclusion reached by him, too great weight to the testimony showing generally the bad conduct and bad faith of the defendant below, regardless whether these charges sustained the grounds of the attachment.
The ruling and order of the district judge will be reversed, and the case remanded with instructions to discharge the attachment.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment of the district court of Johnson County, Kansas upholding an order of the State Board of Tax Appeals which determined the state-wide 1969 ad valorem assessment of the appellant’s interstate natural gas pipeline property located in Kansas.
The primary issue presented for this court’s determination is whether the trial court erred in not finding that the order of the State Board of Tax Appeals (hereinafter referred to as the Board) was unreasonable, arbitrary or capricious in not granting the appellant relief from the order.
The facts leading up to this appeal will be stated.
The appellant operates an interstate pipeline system originating in gas fields in the Texas and Oklahoma panhandles and the Hugoton field in southwest Kansas. From Liberal, Kansas the appellant operates four parallel pipelines running through twenty-six counties in Kansas and extending through the states of Missouri, Illinois, Indiana and Ohio and into southeast Michigan where it serves an area in and about Detroit.
The Federal Power Commission at this time controls and limits the earnings which appellant is permitted to make by limiting appellant to a rate of return of 6%% on the original cost of its property less depreciation. Any buyer of plaintiff’s property would also be limited to the same earnings base and rate as appellant now has. The F. P. C. requires depreciation to be taken at the rate of 3Wo per year on appellant’s property in Kansas, and the rate base on which appellant is permitted to earn is reduced each year by additional mandatory depreciation except for net adjustment made to increase original cost less depreciation as a result of replacements of items that are part of the system or for new construction. All figures relating to the original cost and depreciation of appellant’s entire system used by both parties have as their basic source appellant’s annual report filed with the F. P. C.
Appellant filed with the Director of Property Valuation, on statements and schedules prescribed by the director, a report showing a “Return Value” of $30,967,805.00 for 1969 for properties in the state of Kansas. The director, by an order dated May 28, 1969, assessed appellant’s tangible properties in the state of Kansas for 1969 in the sum of $56,078,497.00.
Appellant’s timely appealed to the Board on June 27, 1969, from the findings, rulings, orders, decisions and other final action of the director pursuant to K. S. A. 74-2438. On August 1, 1969, the Board, having heard all the evidence presented by appellant and the director on said appeal, entered its final order August 20, 1969, denying the appeal.
The appellant then appealed the order of the Board to the district court of Johnson County, where part of its property is located. The appellant challenged the order of the Board as unreasonable, arbitrary or capricious and sought relief therefrom under the provisions of K. S. A. 1970 Supp. 74-2426.
The trial court concluded:
“. . . All factors specified by K. S. A. 79-503 for determining of justifiable value were considered by the assessing authorities.
“The use by the Board of a 5% capitalization rate was a matter of judgment and not unlawful.
“The factor of F. P. C. control on the income earnings of the appellant (F. P. C. rate base of original cost less accrued depreciation) was considered as an element of the Board’s valuation and appraisal.
“The system market value approach or unit method is best suited for valuation of plaintiff’s property for its entire system and an allocation made on the percentage of the original cost in Kansas bears to the original cost of the entire system, and the correct Kansas allocation percentage is 29.47%.
“The market approach and net stock and debt approach to value were not used or applied by either party, and should not be used or applied in this matter, and was not pertinent under the evidence before the Board.
“This is a review of an order of the Board of Tax Appeals which involves not only the assessment of the appellant’s property for taxation but also the question of equalization of that assessment, and it is the performance of a highly technical administrative function.
“Under K. S. A. 79-709, after the completion of an assessment it must be apportioned not only to the several counties but to the townships, cities, school districts and other taxing districts which is determined by a formula which apportions to each taxing district that part of the total assessment as is proportionate to the total length of lines within the taxing disrict. The District Court should not undertake to ‘substitute its judgment’ for the determinations of the Director of Property Valuation and the findings of the Board of Tax Appeals, or to impose a method of distribution which is incomplete under statutory requirements.
“The Court further finds that the order of the Board of August 20, 1969, appealed from herein, with respect to plaintiff, was not unreasonable, was not arbitrary, and was not capricious. Said order was lawful and applied required statutory standards of value to plaintiff’s property. The order was also reasonable and not arbitrary or capricious in all respects, and in accordance with the evidence before it. There was ample evidence to support said order and findings of and by the Board.
“There is no evidence that the Board of Tax Appeals has been guilty of doing acts under the influence of a corrupt motive, or acted with unreasonable, arbitrary or capricious conduct; and therefore the administrative decision should be upheld by this Court.
“The record indicates only a difference of opinion as to the amount of assessment and there is nothing in the record to justify a conclusion by the Court upon review that the Board of Tax Appeals in this case has not exercised good faith and rendered an opinion honestly formed.”
The appellant has now appealed to this court raising substantially the same issues.
Before considering the specific objections we will give attention to the limited extent of this court’s power to review.
The statute under which this appeal is taken, K. S. A. 74-2426, closes with the following statement:
“. . . In hearing and considering any such appeal, the court shall not enforce or give effect to any rule or regulation which it shall find to be unreasonable, arbitrary or capricious.”
However, regardless of the statute it has always been the rule of this court that matters of taxation, especially assessments, are administrative in their character and should remain free of judicial interference in the absence of fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud. (Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982.)
In the early case of Symns v. Graves, 65 Kan. 628, 70 Pac. 591, we stated at page 636 of the opinion:
“. . . Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waived aside to meet the exigencies of any particular case. . . .”
Unless there has been fraud, corruption or conduct so oppressive, arbitrary or capricious as to amount to fraud in the assessment, the courts cannot interfere.
Appellant first contends—
“The trial court erred in finding the order of the Board of Tax Appeals determining the assessment of Appellant’s property in Kansas was not unreasonable, arbitrary or capricious under Chapter 368 of the Laws of Kansas 1969 when the pertinent mandatory statutory factors for determining the justifiable value required by K. S. A. (1964 ) 79-501 and K. S. A. 1968 Supp. 79-503 which in common experience determine and control the justifiable value of Appellant’s property, were not considered, applied, or followed, and were totally ignored, lost sight of, or willfully abandoned by the Board.”
In considering the merits of this appeal, it is necessary to have before us K. S. A. 79-501 (Laws of 1963, Chapter 460, § 3) which provides in part:
“Each parcel of nonexempt real property shall be valued at its justifiable value in money, the value thereof to be determined by the assessor from actual view and inspection of the property; but the price at which such real property would sell at auction or forced sale shall not be taken as the criterion of such justifiable value. . . .”
K. S. A. 1968 Supp. 79-503 provides how justifiable value shall be determined as follows:
“Justifiable value shall mean the value of real estate which is arrived at after applying factors hereinafter set forth.
“To arrive at the justifiable value of real property the assessor or appraiser shall actually view and inspect the property. The price at which real property would sell at auction, forced sale or any transaction in which personal elements were a factor regarding the sale price shall not be taken into consideration in determining the justifiable value. In determining the justifiable value of real property, the assessor or appraiser shall consider that value in money arrived at when the following factors or combinations thereof are considered:
“(a) The proper classification of lands and improvements;
“(b) the size thereof;
“(c) the effect of location on value;
“(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
“(e) cost of reproduction or improvements;
“(f) productivity;
“(g) earning capacity as indicated by lease price or by capitalization of net income;
“(h) rental or reasonable rental values;
“(i) sale value on open market with due allowance to abnormal and inflationary factors influencing such values;
“(/) comparison with values of other property of known or recognized value; and
“(h) valuations of land and improvements on the basis of the foregoing elements and such other elements as may be just and proper.
“It shall be unlawful to determine justifiable value of real property in any manner other than authorized and provided for in this section. Any person authorized to assess or equalize property shall consider class, location, productivity, rental values and capitalization.”
The appellant contends that “(d) depreciation, including physical deterioration or functional, economic or social obsolescence; (e) cost of reproduction or improvements; (f) productivity; (g) earning capacity as indicated ... by capitalization of net income;” and “(/) comparison with values of other property of known or recognized value;” are pertinent factors listed in the statute and should have been given consideration.
Our attention is called to Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59, in which we held the standards prescribed by the statute may not be ignored by taxing officials.
The commission contends and the trial court found that — “all factors specified by K. S. A. 79-503 for determining justifiable value were considered by the assessing authorities.”
We have some difficulty in finding the basis for appellant’s contentions.
The appellant’s expert witness capitalized his anticipated income of $30,383,113.00 at a rate of 7% and got a value on the income approach of $434,044,400.00. He made certain adjustments and arrived at a value of $437,500,000.00 for the total plant. He then took 29.47% of that amount as the indicated values of operating properties within the state of Kansas and arrived at a value of $128,931,250.00. He next took 30%, the assessment ratio for Kansas, of the total value in Kansas and arrived at assessment for properties in Kansas of $38,373,865.00.
The Roard’s expert witness capitalized his anticipated income of $29,854,000.00 at a rate of 5% and got a value on the income approach for the property in Kansas of $186,928,324.00 after certain adjustments. He then took the assessment ratio of 30% and arrived at an assessment for properties in Kansas of $56,078,497.00.
The chief difference in the results obtained by the two experts is the rate used for capitalization of income. The net operating income for 1969 was used by the board’s expert witness — $29,-854,662.00. The appellant’s expert witness took the past five years and arrived at an average income of $30,383,113.00. The difference was not material. The difference in the rate used of 2% resulted in a difference in value of $150,000,000.00 for the system at large, or a difference in the value of the property in Kansas of slightly less than $50,000,000.00. We have used round figures to stay within the realm of our ability to calculate. Neither do our figures take into consideration adjustments for materials and supplies, etc.
If the board was not guilty of unreasonable, arbitrary or capricious conduct in using the 5% figure for capitalizing income this court should not interfere with the assessment order.
The trial court found that the use by the Roard of a 5% capitalization rate was a matter of judgment and not unlawful. We are inclined to agree.
The appellant argues that the assessment should be close to the rate base and therefore the rate of capitalization should be at least equal to the rate of return.
The Board argues that a prudent purchaser would be satisfied with a lower rate of return on investment if he knew at the same time he would receive annually a partial return of the investment. We do not care to engage in an argument over a statement made in good faith by the Board.
When the Board used the income approach, there was reflected in the results reached physical functional productivity and economic depreciation.
The Board’s engineer also used original cost and reproduction cost less depreciation and the weighted results arrived at a comparable figure.
A careful examination of the record discloses no showing by appellant which would justify a finding of unreasonable, arbitrary and capricious conduct on the part of the Board in using the capitalization rate of 5%.
The appellant next contends that the Board and the trial court erred in failing to use the median real estate assessment ratio of the official sales ratio study for the assessment ratio in each county in which appellant had property in order to provide a uniform rate of assessment and taxation of appellant’s property in each county under Article 11, Section 1, of the Kansas Constitution.
We are forced to conclude that the ratio study standing alone is not conclusive as to value. In Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791, we held:
“Ratio studies provided for by K. S. A. 79-1436 are proper evidence of justifiable value but such evidence, standing alone, is not conclusive in establishing a basis for comparison in determining uniformity of values for assessment purposes.” (See, also, Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117.)
It might also be suggested that the 1969 legislature passed a law, (K. S. A. 79-503 [j]) not made applicable to this case, stating:
“. . . The ratio study shall not be used as an appraisal for appraisal purposes.”
It would at least indicate the legislature was not out of harmony with the decisions of this court.
There are too many speculative elements involved and too few properties are subject to sale for the ratio study to be relied on for appraisal purposes. It may, however, serve as a signal that a reappraisal is in order.
We are forced to conclude that the appellant has not by the ratio study alone presented sufficient evidence of inequality to justify a reduction of their assessment apportioned to the various counties.
The appellant complains that:
“The trial court erred in failing to find the order of the Board of Tax Appeals was unreasonable, arbitrary, or capricious because of the fact the order on its face and the evidence conclusively proves the Board failed to equalize the assessed value of Appellant’s property with property of other similar companies.”
The Board concluded and the conclusion was approved by the trial court:
“The taxpayer has the burden of proof and has failed to sustain the burden of proof to establish by evidence that the assessment lacks uniformity.”
A careful search of the record by us discloses no evidence which would justify a finding that there was not a good faith attempt to equalize the assessment of appellant’s property and property of other pipeline companies. It is disclosed the sixty-two pipelines have been appraised by the Kansas taxing authorities using the factors that were used here in arriving at the assessed value. It would result in real lack of uniformity if a single taxpayer were assessed on a different basis. It would serve no useful purpose to attempt to state what is not in the record or to attempt a justification of one isolated appraisal of the old Board as affecting the appraisals of the new Board.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
^.Brewer, J.:
This is a case in which an appeal has been taken to this court from an order of the district court of Lyon county, refusing to discharge the petitioner on habea's corpus, and remanding him to the custody of the sheriff. A motion has been filed by the respondent to dismiss, on the ground that such an order can be reviewed, if reviewable at all, only by petition in error; but on the hearing of the case, counsel have waived this matter, desiring a decision on the merits.
The facts are these: A complaint was filed before a justice of the peace, charging defendant with the violation of the prohibitory law. This complaint contained thirteen counts, charging as many distinct offenses. The record of the justice shows a trial, testimony offered, and that defendant was found guilty on each count, and sentenced to pay a fine of one hundred dollars and costs on each count, or thirteen hundred dollars in the aggregate. Failing to pay, a mittimus was issued, and defendant arrested and committed to jail. Now petitioner claims that he was not present at any trial; that in fact none was had, and no testimony offered; but that his attorney consented to such an entry without any authority from him so to do, and for the sake of testing the jurisdiction of the justice and the legality of the proceedings. He offered testimony to prove this on the hearing of the habeas corpus in the district court, but it was rejected, the court holding the record of the justice conclusive.
The ruling of the district court in this respect was right. The record in judicial proceedings is the evidence of what was done, and cannot be overthrown in a collateral proceeding by parol testimony. (In re Watson, Petitioner, 30 Kas. 753.) It will be borne in mind that this is not a case in which the jurisdiction of the court over the person is challenged, or any attack made upon the service of process. Indeed, the petition filed in these proceedings distinctly alleges that the complaint was filed before the justice, a warrant issued, petitioner duly arrested thereon and brought before the justice; so that the petitioner, conceding jurisdiction over the person, was seeking in this collateral proceeding by parol testimony to prove that what the record of the court showed was done, was not in fact done. Judicial records are not thus overthrown.
Again/it is insisted that the justice had no jurisdiction to try, because of the joinder of thirteen counts in the complaint. The contrary has already been decided. (In re Donnelly, Petitioner, &c., 30 Kas. 191, 424.)
Whether the justice could impose a fine in the aggregate exceeding $500, the unquestioned limit of his jurisdiction as to any single offense, is a question not now before us. As the record disclosed, the defendant was found guilty upon each count, and upon each count sentenced to pay a fine of $100 and costs. It is not pretended that any part of the sentence has been complied with, so that even upon the authorities most favorable to the petitioner, he is legally in custody. (People v. Liscomb, 60 N. Y. 572; People v. Baker, 89 id. 467; People v. Wolf, 66 id. 10; Ex parte Van Hagan, 25 Ohio St. 426; People v. Shattock, 45 N. H. 211.)
The ruling of the district court will be affirmed.
All the Justices .concurring.
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The opinion of the court was delivered by
Valentine, J.:
The only question which we need to. consider in this case is, whether the district court erred in entertaining the defendant’s motion for a new trial; for if it. did err in this respect, then the order of the district court granting the new trial, and from which order the plaintiff appeals, must be reversed; but if it did not so err, then such order must be affirmed.
It appears from the record, that on May 17, 1882, a verdict was rendered in favor of the plaintiff and against the defendant for $300, and thirty-two special findings of fact were also made by the jury. The defendant immediately moved the court for a judgment in its favor upon the special findings, notwithstanding the general verdict, and “requested the court to rule upon said motion at once, as it desired to file and present to said court a motion for a new trial, if said motion for judgment should be overruled. The court, being then otherwise occupied, declined to do so. . . . The court thereupon ordered that the presentation and hearing of said motion for judgment be postponed until May 20, 1882." May 20, 1882, was Saturday, and on that day nothing was done in the case, as it was understood by the court and the parties that the defendant’s attorney could not reach the court' on account of high water. On Monday, the defendant’s attorney, as well as the plaintiff’s attorney, appeared in court, and the motion for judgment was heard by the court and overruled; and the defendant’s attorney thereupon asked the court for leave to file a motion for a new trial, and supported such application by an affidavit tending to show that the defendant and its attorney were unavoidably prevented from appearing in court or filing a motion for a new trial on Saturday, May 20, 1882, or at any time earlier than May 22, 1882, the time when they made this application for leave to file the motion for a new trial. The court sustained this application, and the motion for the new trial was immediately filed, which motion contained nearly all the statutory grounds for the granting of new trials. The plaintiff’s attorney then filed a motion to strike from the files of the case the motion for the new trial, on the ground that such motion was not filed in proper time; but upon the evidence introduced on the hearing, the court overruled the motion of plaintiff’s attorney, and the motion for the new trial was immediately heard and sustained by the court; and this is the ruling of the trial court of which the plaintiff now complains in this court.
Whether the new trial was granted upon some specific ground or grounds, or upon all the grounds alleged in the defendant’s motion for a new trial, the record does not show; and neither does it show specifically whether all the evidence presented to the trial court with reference to the cause of the delay in filing the motion has been preserved or brought to this court. These omissions from the record we think are fatal to the plaintiff’s petition in error, for presumably the decision of the trial court is correct; and if the plaintiff claims otherwise it devolves upon him to show it affirmatively. Error on the part of the trial court is never presumed, but on the contrary, its decisions are always presumed to be correct; and it devolves upon the party claiming error to show the error. But suppose that we have all the evidence presented to the trial court with reference to the motion for the new trial: then can we say that the trial court erred? We would still think not. It is claimed that the trial court erred in entertaining the motion for a new trial because it was filed out of time — that is, because it was filed more than three days, and was in fact filed five days, after the verdict of the jury was rendered. Now a party is not in all cases and under all circumstances required to file a motion for a new trial within three days after the time when the verdict is rendered. A motion for a new trial upon the ground of newlv-discovered evidence may be filed whenever the newly-discovered evidence is first discovered, although such discovery may be many days, or even weeks, or months, after the time when the verdict is rendered; and a party may also file a motion for a new trial after the lapse of more than three days, provided he was unavoidably prevented from filing the same within three days. (Civil Code, §308.)
Now one of the grounds for the new trial in the present case was newly-discovered evidence, material for the defendant which it could not with reasonable diligence have discovered and produced at the trial. The motion was certainly filed in time for this ground. The defendant also showed by evidence sufficient to convince the trial court that it, the defendant, was unavoidably prevented from filing the motion for a new trial on the third and indeed on the fourth day after the time when the verdict was rendered; and we cannot say, as a matter of law, that the trial court erred in its findings upon this subject. We cannot say that as a matter of law, and against the findings of the trial court, the defendant was not unavoidably prevented from filing the motion for a new trial on the third day after the rendering of the verdict. But the defendant in fact filed the motion on the fifth day after the rendering of the verdict; and this under the circumstances of the case, we think made the filing sufficient with respect to all the grounds set forth in the defendant’s motion for the new trial.
The defendant also showed that it had sufficient reason for not filing the motion prior to the third day, for it also had a motion pending for judgment upon the special findings of the jury from the time when the verdict was first rendered up to and after the third day after the day on which the verdict was rendered; and it was not reasonable, under such circumstances, to expect the defendant to file a motion for a new trial prior to the closing moments of the third and last day given by said §308 for the filing of motions for a new trial. Of course the defendant might have filed its motion for a new trial on the first or second day after the time when the verdict was rendered, but under the circumstances it was certainly not compelled to do so. On the third day it was unavoidably prevented from doing so, the fourth day was Sunday, and on the fifth day the defendant filed its motion for the new trial, which was the earliest time at which it could have filed its motion after the second day. This motion for a new trial was also made at the same term at which the verdict was rendered, and only five days thereafter. In the case of Hemme v. School District, 30 Kas. 377, it was held that “a trial court, for the purpose of administering justice has a very wide and extended discretion in setting aside or modifying proceedings had in its own court, if it does so at the same term at which such proceedings are had;” and therefore in that case an order of the district court granting a new trial was sustained by the supreme court, although the motion for the new trial was not filed until seven days after the verdict of the jury was rendered. In that case, as well as in this, the evidence was so unsatisfactory that if the decision of the trial court upon the evidence had been against entertaining the motion for the new trial, except upon the ground of newly-discovered evidence, this court would have sustained its decision. But recognizing the fact that the trial court has some discretion in granting new trials, we shall reverse its orders granting new trials only where it very clearly appears that the trial court has erred with respect to some well-settled principle of law, or has manifestly abused its discretion.
The present case is still pending in the district court, undisposed of, and we think it is much more likely that justice will be subserved by leaving the parties to their new trial, than by making some other order.
The order of the court below, granting the new trial, will be affirmed.
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The opinion of the court was delivered by
Price, C. J.:
In this appeal from a conviction of the offense of forcible rape as defined by K. S. A. 21-424, defendant asserts three contentions of alleged error.
The first is that the verdict of the jury was contrary to the evidence.
The details of the incident need not be related. Highly summarized — the state s evidence established the following: The prosecutrix lived in Osage City. At about 5:30 on the morning of May 18, 1969, defendant went to her home and advised her that her boy-friend was in jail in Emporia on a drunk-driving charge and that he wanted to see her. Defendant offered to drive her to Emporia. About 7:00 that morning they started out — but never reached Emporia. Instead, a few miles out of Osage City defendant turned off on a country road. Following a scuffle in the car, including force and threats of physical violence — defendant forced himself upon her and had sexual intercourse. He then drove her back to her home. She told no one about the matter until that evening — when she reported it to the sheriff.
Defendant contends that as there was no evidence of torn clothing or bruises on prosecutrix — and that as she did not report the incident until that evening — the only conclusion to be drawn is that if the incident did in fact occur — it was with her consent and not against her will.
We have no doubt but that these matters were argued to the jury, and we find no merit in the contention the verdict was contrary to the evidence. The testimony of prosecutrix was that she was forcibly ravished — and her credibility was a question for the jury (State v. Wade, 203 Kan. 811, 457 P. 2d 158).
It next is contended the court erred in admitting the testimony of two other women to the effect they had been forcibly raped by defendant under somewhat similar circumstances. One of these incidents occurred about two years prior and the other about five months subsequent to the alleged rape here in question. Defendant had not been convicted of either of those offenses.
The contention is without merit. The name of one of the women was endorsed on the information as a witness at the time it was filed. The name of the other was endorsed several days before trial — and defendant was in no position to claim surprise. Their testimony was admissible under K. S. A. 60-455 as showing identity, guilty knowledge, motive, intent and plan — and the jury was given a proper limiting instruction. Further, such evidence was not inadmissible on the ground defendant had not been convicted of the alleged offenses, or on the ground that one of them had occurred subsequent to the one here in question (State v. Darling, 197 Kan. 471, syl. 3 and 4, 419 P. 2d 836 and State v. Miller, 204 Kan. 46, 48, 460 P. 2d 564).
Finally, it is contended a new trial should have been granted because one of the jurors allegedly failed to follow the instruction with respect to defendant’s failure to testify. At the hearing on the motion for a new trial defendant sought to show by the testimony of this juror that there was discussion in the jury room to the effect that defendant did not testify — thus the jury was “under the impression that he might have been guilty”.
K. S. A. 60-441 provides that upon an inquiry as to the validity of a verdict no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind o£ a juror as influencing him to assent to the verdict or concerning the mental processes by which it was determined. At the hearing in question evidence as to the alleged “mental processes” by which the jury arrived at a verdict of guilty was properly excluded (Ingram v. State, 204 Kan. 836, 465 P. 2d 925 and State v. Schroeder, 201 Kan. 811, 822, 443 P. 2d 284).
We find no error in the record and the judgment is affirmed.
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